General Terms & Conditions

The definitions set out in Schedule 1 (Glossary) apply to these General Terms and Conditions and each executed Order Form unless the context otherwise requires.

1.2 Interpretation

(a) Headings are inserted for ease of reference only and do not affect the interpretation of the Agreement.

(b) A reference in the General Terms and Conditions to "dollars" or "$" means the currency specified in the Order Form and all amounts payable under the Agreement are payable in that currency.

(c) Unless otherwise specified, if a party consists of more than one person the Agreement binds each of them separately and any two or more of them jointly.

(d) An obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly.

(e) A provision of the Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.

(f) Unless expressly stated otherwise in these General Terms and Conditions, a reference to a schedule or clause is a reference to a schedule to, or clause of, these General Terms and Conditions.

(g) Unless the context requires otherwise:

(i) the singular includes the plural and vice versa;

(ii) if a word or phrase is defined, another grammatical form of that word or phrase has a corresponding meaning;

(iii) the word "includes" in any form is not a word of limitation;

(iv) a reference to a law, legislation or legislative provision includes any statutory modification, amendment or re–enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision;

(v) a reference to any document or agreement (including the Agreement) is to that document or agreement as amended, novated, supplemented or replaced;

(vi) a reference to a person includes an individual, company, trust, partnership, joint venture, association, body corporate or governmental agency; and

(vii) a reference to a party to the Agreement or any other deed or agreement includes that party's administrators, successors and permitted assigns.

2. Precedence

In the event and to the extent of any inconsistency between two or more documents which form part of the Agreement, those documents will be interpreted in the following order of precedence:

(a) the Order Form (including any special conditions); and then

(b) the General Terms and Conditions.

3. Term

(a) The Agreement commences on the Commencement Date and, unless terminated earlier in accordance with its terms, continues for the Initial Term.

(b) At the end of the Initial Term, the Agreement will continue for recurring Renewal Terms unless a party elects to end the Agreement by written notice to the other party at least 60 days prior to the relevant rollover date.

(c) Zap may accept a request to terminate the Agreement prior to the conclusion of the Subscription Term, subject to the Customer's payment of a termination fee calculated by reference to the remaining time (in days) of the Subscription Term.

4. Order Form

Each Order Form executed by the parties:

(a) will constitute a separate and binding agreement between the parties and will incorporate these General Terms and Conditions; and

(b) will commence on the Commencement Date and continue for the Subscription Term.

5. Provision of Services

Zap will provide the Services specified in an executed Order Form to the Customer:

(a) with due care, skill and diligence;

(b) for the Subscription Term; and

6. SaaS Subscription

If the Customer procures a SaaS Subscription from Zap under an Order Form, the terms and conditions set out in Schedule 2 (Software-as-a-Service Subscription) will apply.

7. On Premises Subscription

If the Customer procures an On Premises Subscription from Zap under an Order Form, the terms and conditions set out in Schedule 3 (On Premises Subscription) will apply.

8. Licence Grant and Restrictions

8.1 Licence Grant

(a) Subject to clause 8.1(b), the Customer's compliance with the Agreement and payment of all amounts due under the Agreement, Zap hereby grants to the Customer a limited, non-exclusive, non-transferable, non-sublicensable licence to access and use the Software during the Subscription Term.

(b) The licence granted by Zap to the Customer under clause 8.1(a) is contingent on the Customer accepting all terms and conditions imposed by a third party in connection with the Customer's use of any Required Third Party Service.

8.2 Use of Software by Affiliates

(a) The Customer may permit an Affiliate to access and use the Software:

(i) strictly in accordance with the terms of the Agreement; and

(ii) subject to the following conditions:

(A) the Customer implements and maintains appropriate measures, including organisational and technical measures, to ensure that the Affiliate is aware of and complies with the terms of the Agreement as if they were a party to it;

(B) immediately upon becoming aware of any breach of the Agreement by an Affiliate, the Customer notifies Zap in writing of the breach and agrees to promptly implement such corrective actions reasonably directed by Zap at Customer's sole cost to rectify the breach; and

(C) the Customer provides Zap with an accurate list of Affiliates in writing and promptly notifies Zap if any company is no longer an Affiliate, in which case such Affiliate will automatically lose any rights of use relating to the Software.

(b) The Customer agrees that any act or omission of an Affiliate that the Customer permits to access and use the Software in accordance with clause 8.2(a), will be deemed under the Agreement to be an act or omission of the Customer.

8.3 Limits of Licence

The Customer must not, and must not permit its Personnel or any third party to:

(a) duplicate or otherwise make any copy of the Software or the Documentation;

(b) rent, lease, loan, lend, sell, reuse, distribute, license, sublicense, market or commercialise any part of the Software or use the Software as part of a facility management, timesharing, or service bureau arrangement or for software or application development;

(c) except as expressly set out in clause 8.2, transfer or delegate any right granted to the Customer under the Agreement or permit any parent, Affiliate, subsidiary or any other third party to use or benefit from any functionality found in the Software, either directly or via a facility management, timesharing, service bureau or any other access arrangement; or

(d) other than to the extent expressly permitted by applicable law or with Zap's prior written consent, alter, modify, merge, translate, adapt, decompile, disassemble, reverse-engineer or create any derivative work based upon the Software, either in whole or in part;

(e) use the Software for personal, family, household, or other non-business purposes;

(f) remove, change or obscure any copyright, trademark or other proprietary notices or labels in or on the Software, including the Zap name, Zap logo, Zap product names, or the names or logos of Required Third Party Service providers;

(g) use or try to use the Software in a way not expressly authorised under the Agreement;

(h) use the Software in excess of the Subscription Limitations;

(i) use, export, re-export or otherwise transfer the Software in violation of any domestic or foreign laws or regulations in effect from time to time in the jurisdiction in which the Customer is resident or the Software is used. The Customer represents and warrants that it is not located in, under the control of, or a national or resident of, any restricted country or of any entity or person designated as restricted.

9. Zap Software

(a) The Customer must not, and must procure that its Personnel do not:

(i) share or disclose with any third party any license keys, passwords or system IDs provided by or on behalf of Zap to the Customer for the Program; or

(ii) use or copy (irrespective of the extent of copying) the whole or any part of the graphic user interface, operating logic or underlying database structure and database fields of the Program, including for incorporation into or the development of any software or other product or technology.

(b) The Customer acknowledges and agrees that:

(i) any report-writing software contained within the Program may be subject to a restriction such that its use may be limited to accessing only the data that is created by, or used by, the Program; and

(ii) any right to use, transmit, reproduce, distribute, download, or exploit the Program not expressly licensed to the Customer under the Agreement is strictly prohibited.

(i) certain components within the Program may enable or assist the Customer to access the website content of, correspond with, and purchase products and services from third parties via third party websites. Any such purchases made by the Customer are at the Customer's sole risk;

(ii) Zap makes no representation, warranty or commitment and will have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third party website, or any transactions completed and any contract entered into by the Customer with any such third party; and

(iii) Zap does not endorse or approve any third party website nor the content of any of the third party website made available via the Program.

10. Software

10.1 Use of Software

The Customer must, and must procure that its Personnel (as applicable):

(a) comply with all applicable laws and regulations pertaining to the Customer's use of and access to the Software;

(b) use the Software only in accordance with the Documentation and the terms of the Agreement;

(c) ensure that all Personnel to whom the Customer has provided access to the Software or Documentation are made aware of and comply with the terms of the EULA and the Agreement;

(d) prevent unauthorised access to the Software and promptly notify Zap of any unauthorised access or use; and

(e) keep confidential all user ID(s) and passwords provided by or on behalf of Zap to the Customer to access the Software.

10.2 Software Updates

(a) Zap may, from time to time and in its sole discretion, make Software Updates available to the Customer:

(i) at no additional cost where Zap makes such updates generally available to other Zap customers in similar circumstances at no cost; or

(ii) at a cost determined by Zap acting reasonably.

(b) Any Software Updates made by Zap and provided to the Customer will form part of the Software.

(c) Where the Customer fails to include, implement or otherwise accept any Software Update recommended or made available by Zap, the warranties, representations, guarantees and undertakings provided by Zap in respect of the Services under the General Terms and Conditions will not apply to any such Software and, for such Software, Zap expressly excludes all warranties, representations, guarantees and other undertakings express or implied and, to the maximum extent permitted by law, Zap will not be responsible or liable for the operation of such Software.

10.3 Software Modifications

(a) The Customer must not modify the whole or any part of the Software or combine or incorporate the whole or any part of the Software in any other program or system without Zap's prior written consent.

(b) If the Software is modified in accordance with clause 10.3(a), the modifications must, unless Zap directs otherwise, be made in accordance with a written proposal submitted by the Customer to Zap and accepted by Zap.

(i) the Software (as modified), and all Intellectual Property Rights in the Software (as modified) remains Zap's property;

(ii) the Agreement continues to apply to the Software as modified; and

(iii) Zap is not liable to the Customer for any Software performance issues or errors caused or contributed to by the Customer's modification of the Software.

10.4 Customer Warranties and Acknowledgements

(a) The Customer warrants that it will:

(i) not use, copy, reproduce, adapt, modify or exploit the Software other than in accordance with the Agreement, and will not authorise the doing of any of these things without Zap's prior written consent;

(ii) not, and will not directly or indirectly allow a third party to, reverse engineer, disassemble or decompile the whole or any part of the Software;

(iii) take all reasonable steps to maintain the confidentiality of the Software and to prevent any unauthorised access or use;

(iv) not threaten, institute, invalidate, challenge or put in dispute Zap's ownership, use or title to the Zap Intellectual Property;

(v) not infringe Zap's Intellectual Property Rights;

(vi) not remove from the Software or the Documentation any notices relating to Zap's ownership of the Intellectual Property Rights in the Software or the Documentation; and

(vii) not use or refer to the Software or the Documentation in developing any competitive good or service.

(b) The Customer acknowledges and agrees that the Software is not error-free and the existence of any error in any of the Software will not constitute a breach by Zap of the terms of the Agreement.

11. Support Services

(a) Subject to clause 11(b), Zap will provide the Customer with Support Services using qualified Personnel in accordance with the Standard Support Policy set out in SCHEDULE 4 (Support Services).

(b) The Customer acknowledges that Zap is not required to provide the Support Services where Software errors arise from the Customer's or its Personnel's (as applicable):

(i) incorrect use of the Software;

(ii) failure to comply with the obligations set out in clause 8 of the General Terms & Conditions;

(iii) use of any third party equipment, hardware, software or communication lines;

(iv) failure to maintain the required compatible equipment, software and communications lines which are required by the Customer to connect to the internet and access the Services; and/or

(v) failure to ensure that the Customer's network and systems comply with the relevant specifications notified by Zap in writing from time to time.

12. Subscriptions and Payment

12.1 Payment

(a) The Subscription Fees are payable by the Customer to Zap:

(i) annually in advance; and

(ii) within 30 days of Zap's invoice date.

(b) Zap may invoice the Customer as follows:

(i) in relation to the Initial Term, on the Commencement Date; and

(ii) in relation to each Renewal Term, 30 days prior to the commencement of the relevant Renewal Term.

(c) Each payment made by the Customer to Zap under the Agreement must be made in the currency and in the manner set out in the Order Form unless otherwise agreed by Zap in writing;

(d) All amounts payable by the Customer to Zap under the Agreement are to be paid without set-off and free and clear of any currency control restrictions, bank charges, fees, duties or other transactional costs.

12.2 Failure to Pay

If the Customer fails to pay any amount due under the Agreement by the due date, without prejudice to Zap's other rights under this Agreement, Zap may in its sole discretion:

(a) immediately terminate the Agreement by written notice to the Customer;

(b) suspend the licence granted to the Customer under clause 8.1 and/or the performance of all or any of Zap's obligations under the Agreement until the date payment is received from the Customer in full; and/or

(c) charge the Customer interest on the unpaid amount at a rate equal to 3% per annum above the base lending rate of the Reserve Bank of Australia accruing daily from the first Business Day following the due date for payment specified in the relevant invoice.

12.3 Increase in Subscription Fees

(a) Zap may increase the Subscription Fees at any time during the Subscription Term in the following circumstances:

(i) if the Customer requests to increase the storage or number of users authorised to use the Software under the Subscription Limitations, and Zap approves that request;

(ii) if the Customer requests to increase its access to additional components of the Services such as plan type and Zap approves that request; and/or

(iii) subject to clause 12.3(b), if there is an increase in the fees charged by the provider of a Required Third Party Service, including Zap's third party hosting service provider,

(each, an Increase Event).

(b) In respect of any increase in the Subscription Fees under clause 12.3(a)(iii):

(i) Zap will give the Customer reasonable prior written notice of the fee increase, including the effective date of the fee increase; and

(ii) the Customer is entitled to terminate the Agreement without penalty by written notice to Zap at any time prior to the effective date of the fee increase.

The Customer will be deemed to have agreed to any fee increase under clause 12.3(a)(iii) on and from the effective date of the fee increase, if the Customer does not elect to terminate the Agreement in accordance with clause 12.3(b)(ii).

(c) Where an Increase Event occurs, Zap will issue an invoice for an amount equal to the increase in the Subscription Fees applying for the remainder of the Subscription Term (Additional Fees). The Customer must pay the Additional Fees within 14 Business Days of receipt of Zap's invoice. The applicable Subscription Fees will be pro-rated from the effective date of the relevant Increase Event until the earlier of the expiry of the Subscription Term and the commencement of the Customer's next Renewal Term.

(d) Subject to Zap providing the Customer at least 90 days written notice prior to the commencement of a Renewal Term, Zap reserves the right to increase the Subscription Fees (acting reasonably) effective upon the commencement of the relevant Renewal Term. The Customer will be deemed to have accepted the increase if the Customer does not elect to terminate the Agreement within the notice period specified in clause 3(b).

13. Audit Rights

(a) Zap may audit the Customer's use of the Software at any time with or without prior notice to ensure that the Customer is complying with the terms of the Agreement and the Subscription Limitations. If an audit reveals that the Customer's use of the Software has exceeded the Subscription Limitations, or that the Customer has underpaid Subscription Fees or otherwise owes Subscription Fees to Zap (Outstanding Amount), Zap will invoice the Customer for the Outstanding Amount.

(b) Subject to clause 13(c), once invoiced the Outstanding Amount will be a debt immediately due and payable by the Customer to Zap in accordance with clauses 12.1(c) and 12.1(d) of the General Terms and Conditions.

(c) The Customer may withhold payment of any amount which it disputes in good faith until the dispute has been resolved in accordance with clause 25 (Dispute Resolution).

14. Taxes

14.1 Non-Australian resident Customers

(a) All amounts payable by the Customer to Zap under the Agreement are exclusive of all applicable sales, consumption, withholding or other similar or equivalent taxes (Taxes).

(b) Should any Taxes be levied on, in respect of, or in relation to the Services, including Taxes levied on payments made by the Customer to Zap in connection with the provision of the Services, such Taxes must be paid by the Customer and are in addition to the amounts payable by the Customer to Zap under the Agreement.

(c) In some circumstances, the Customer may be legally required to pay Taxes to the local tax authority instead of Zap. Where the Customer is liable to pay any Taxes to the relevant authority on behalf of Zap, the Customer must promptly provide reasonable documentary evidence substantiating the payment upon Zap's written request.

14.2 Australian resident Customers

(a) In this clause 14.2, a term or expression starting with a capital letter which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated acts and legislative instruments (collectively, the GST Law) will have the same meaning as in the GST Law, unless the context otherwise requires.

(b) The parties agree that:

(i) each consideration or payment obligation in the Agreement is exclusive of GST;

(ii) if GST is or becomes payable on a Supply made under or in connection with the Agreement, an additional amount is payable by the party providing the consideration for the Supply equal to the amount of GST payable on that Supply, as calculated by the party making the Supply in accordance with the GST Law;

(iii) the additional amount payable under paragraph clause 14.2(b)(ii) is payable at the same time and in the same manner as the Consideration for the Supply;

(iv) unless otherwise stated in the Agreement, when determining the amount of a payment under the Agreement;

(A) if a party is entitled to be reimbursed or indemnified by the other party for an expense, claim, loss, liability or cost incurred in connection with the Agreement, the reimbursement or indemnity payment must not include any GST component of the expense, claim, loss, liability or cost for which an Input Tax Credit may be claimed; and

(B) if a party sets off an amount under the Agreement, the same principles apply to calculate the amount to be set-off, as if the amount had been paid in accordance with clause 14.2(b)(iv)(A); and

(v) if an Adjustment Event occurs, the parties must do all things necessary to make sure that the Adjustment Event may be appropriately recognised, including the issue of an Adjustment Note.

15. Intellectual Property

(a) The parties acknowledge and agree that:

(i) the Zap Intellectual Property is the sole and exclusive property of Zap or its licensors (as applicable) and the Agreement does not confer on the Customer any proprietary right, ownership, or title to any of the Zap Intellectual Property; and

(ii) all Customer Data remains the sole and exclusive property of the Customer and does not form part of the Zap Intellectual Property.

(b) The Customer must, and must procure that its Personnel do (as applicable):

(i) notify Zap as soon as practicable of any infringement or suspected infringement of Zap Intellectual Property by the Customer or its Personnel; and

(ii) not carry out any activities on the Software which may compromise the stability, integrity or security of the Software or Zap's ownership of the Zap Intellectual Property.

(c) The Customer agrees to do all things and sign all documents required by Zap to give effect to this clause 15 or to otherwise enable Zap to protect the Zap Intellectual Property.

16. Privacy

(a) Each party must comply with the Data Protection Laws in the collection, use, storage and handling of any Personal Information obtained from the other party in connection with the Services.

(b) The Customer acknowledges and agrees that:

(i) Zap will handle any Personal Information provided by the Customer to Zap under the Agreement in accordance with the Zap Privacy Policy; and

(ii) the Customer's use of Required Third Party Services will be subject to privacy policies of the relevant third party providers.

(c) If the Customer provides Personal Information to Zap in connection with the Agreement, the Customer warrants to Zap that it is permitted to provide such Personal Information and has made any disclosures or obtained any consents required under the Data Protection Laws.

17. Security

Zap will:

(a) establish and maintain appropriate and commercially reasonable technical and organisational security measures in accordance with good industry practice to keep the Customer Data secure;

(b) ensure the Software provides protection against unauthorised access to or use thereof and is not vulnerable to known exploits;

(c) ensure the Software is protected against any anticipated threats or hazards to the security or integrity or availability thereof; and

(d) develop all software provided as part of the Software in accordance with the security approaches and standards specified on the Zap website from time to time.

18. Suspension

Any Services provided by Zap to the Customer under the Agreement may at any time, on at least 24 hours' written notice to the Customer, be suspended, either in whole or in part, by Zap (without any liability to the Customer) if either:

(a) the Customer acts in a manner that, in the reasonable opinion of Zap, is inconsistent with the Agreement; or

(b) Zap is instructed to do so by a court of law, government or other regulatory authority.

19. Confidentiality

(a) The Receiving Party must only use the Confidential Information of the Disclosing Party for the purposes of performing its obligations or exercising its rights under the Agreement and must keep the Disclosing Party’s Confidential Information confidential.

(b) Despite cause 19(a), the Receiving Party may disclose the Confidential Information of the Disclosing Party:

(i) to those employees, agents or contractors of the Receiving Party reasonably requiring it on a need-to-know basis, provided that the Receiving Party ensures that those employees, agents or contractors keep such Confidential Information confidential in accordance with this clause 19;

(ii) to the extent required by law; and/or

(iii) with the prior written consent of the Disclosing Party.

20. Customer Data

(a) Zap will not use or disclose the Customer Data for Zap’s own benefit or for the benefit of any third party except to the extent required to provide the Services and/or to procure the provision of the Required Third Party Services.

(b) Zap may, when necessary to maintain, upgrade, troubleshoot and/or protect the integrity of the Services and/or the Customer Data, request access to, read or download the Customer Data, for the sole purpose of completing support, maintenance, upgrades, troubleshooting, and/or protecting the integrity of the Services and/or the Customer Data.

(i) ensure the accuracy of the Customer Data and the process by which it is inputted into the Software;

(ii) examine and confirm results obtained from the Software before relying on such results;

(iii) adopting procedures to identify and correct any errors and omissions in the Customer Data; and

(iv) reconstructing or refreshing the Customer Data.

21. Limited Warranties and Disclaimers

(a) Zap warrants that the Software will perform substantially in accordance with the Documentation when used in accordance with Zap's operating instructions.

(b) If the Customer notifies Zap in writing that the Software does not conform with the warranty in clause 21(a), Zap will use reasonable commercial efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Subject to the Customer's right to terminate in accordance with the Agreement, such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the warranty in clause 21(a).

(c) If Zap is liable to the Customer in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) that cannot be excluded, Zap's total liability to the Customer for that failure is limited to the resupply of the services or the payment of the cost of resupply.

(d) To the fullest extent permitted by applicable law:

(i) Zap does not warrant or make any representation that the Customer's use of the Software will be uninterrupted or error-free;

(ii) Zap does not warrant or make any representation that the Services, the Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements or produce particular outcomes or results (irrespective of whether the Customer informed Zap about how it intend to use the Software at the point of purchase); and

(iii) Zap is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

(e) Other than the express, limited warranties stated in this clause 21, Zap expressly disclaims to the fullest extent permitted by applicable law, all other representations, warranties, conditions and guarantees of any kind or nature whatsoever (whether express, implied, statutory or otherwise), including but not limited to any warranties, conditions, or guarantees:

(i) of merchantability or satisfactory quality;

(ii) of fitness for a particular purpose; and

(iii) arising from custom or trade usage or by any course of dealing or course of performance.

22. Liability

(a) The Customer acknowledges that the provision of the Software is inherently complex and may not be free from errors, and that the Customer has been advised to verify the output produced by the Software. Neither party will be liable to the other party whether in tort, (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise (even if Zap knew or should have known there was a possibility the Customer could suffer or incur such loss or damage) for:

(i) any special, indirect, incidental, consequential, or punitive damages or loss;

(ii) any loss of profits, loss of business, loss of chargeable time, loss of anticipated savings, depletion of goodwill or similar losses however caused; or

(iii) loss of use or loss of or damage to data/information inputted by the Customer into the Software.

(b) To the full extent permitted by applicable laws, in no event will Zap's liability to the Customer arising out of or in connection with the Services or the Agreement (whether in contract, tort or otherwise) exceed the Subscription Fees actually paid by the Customer to Zap in the first twelve (12) month period under the Agreement or the twelve (12) month period preceding the Customer's claim, whichever the greater.

23. Zap Indemnity

(a) Subject to clause 22(a) and clause 23(b), Zap indemnifies the Customer and its Personnel (Customer Indemnified Parties) from and against any Loss incurred or suffered by the Customer Indemnified Parties arising out of a claim made or brought against the Customer Indemnified Parties by any third party that the Customer Indemnified Parties' use of the Software in accordance with the Agreement infringes the Intellectual Property Rights of any third party, provided that the Customer:

(i) promptly gives Zap notice of the claim;

(ii) gives Zap control of the claim and any negotiations for settlement at Zap's sole expense; and

(iii) at Zap’s request and expense, gives Zap all reasonable information and assistance in connection with its handling of the claim.

(b) The indemnity in clause 23(a) does not extend to any claim:

(i) arising from the combination of the Software with other elements not under Zap’s sole control;

(ii) arising from any part of the Software that the Customer or a third party modifies, or that incorporates specifications, designs or formulas that the Customer provides; or

(iii) that arises as a result of the Customer's or its Personnel's continued use of the Software after the Customer has been notified that the Software infringes the rights of a third party.

(c) If the Customer is prevented from using the Software because of any actual or threatened infringement of third-party Intellectual Property Rights, then at Zap’s option, Zap will promptly either:

(i) obtain for the Customer the right to continue using the affected part of the Software; or

(ii) replace or modify the affected part of the Software so that it becomes non-infringing.

(d) If having used all reasonable commercial efforts Zap cannot achieve either of the circumstances in 23(c) on reasonable terms:

(i) Zap will promptly refund to the Customer a pro-rata portion of the Subscription Fee paid in advance by the Customer to Zap based on the Customer's use of the Software during the Subscription Term; and

(ii) the Agreement including the Customer's right to use the Software will automatically terminate.

24. Termination

24.1 Termination by Either Party

Either party may immediately terminate the Agreement by notice in writing to the other party:

(a) if an event of Force Majeure subsists for a continuous period of more than 90 days;

(b) if the other party is the subject of an Insolvency Event or ceases, or indicates that it is about to cease, carrying on its business, subject to any law suspending or preventing the exercise of a termination right in the relevant circumstances; or

(i) is not capable of being remedied; or

(ii) is capable of being remedied but is not remedied within 30 days after receiving written notice of the breach.

24.2 Termination by Zap

Zap may terminate the Agreement with immediate effect by notice in writing if the Customer commits a serious breach of the Agreement. Without limitation, a breach of any of the following clauses will be a serious breach: 8 (Licence Grant), 10 (Software) and 15 (Intellectual Property).

24.3 Effect of Termination

(a) On expiry or earlier termination of the Agreement for any reason:

(i) the Customer must pay to Zap the Subscription Fees for any Services provided to the Customer up to and including the date of termination, whether or not an invoice has been issued for those Services as at the date of termination, and any other money owed by the Customer to Zap under the Agreement as at the date of termination;

(ii) the licences granted to the Customer under the Agreement will cease immediately;

(iii) the Customer must cease using the Software and all Intellectual Property Rights relating to and subsisting in the Software; and

(iv) the Customer must deliver to Zap all of the Zap Intellectual Property and other things containing the Zap Intellectual Property that came into the Customer’s possession or control during the Subscription Term.

(b) If the Agreement is terminated by the Customer in accordance with clause 24.1, Zap will provide the Customer with a pro-rata refund of any Subscription Fees paid in advance by the Customer to Zap for Services not supplied by Zap as at the date of termination.

(c) Expiry or termination of the Agreement will not affect any claim which a party may have against the other in respect of the period before termination of the Agreement or other accrued right or remedy of a party.

25. Dispute Resolution

(a) If a dispute arises out of or relating to the Agreement (Dispute), either party may give written notice to the other party specifying the nature and particulars of the Dispute (Dispute Notice).

(b) Within 10 Business Days of the date of delivery of the Dispute Notice, each party must nominate an authorised representative and procure those representatives to use reasonable endeavours to resolve the dispute by good faith negotiations on a without prejudice basis.

(c) Neither party may commence any legal proceedings with respect to a Dispute unless it has complied with the provisions of this clause 25 except to seek urgent equitable or interlocutory relief.

(d) Pending resolution of any Dispute, the parties will continue to perform their obligations under the Agreement (excluding those parts that are the subject of a Dispute) without prejudice to their respective rights and remedies.

26. Force Majeure

26.1 Event of Force Majeure

(a) If a party is prevented in whole or in part from carrying out its obligations under the Agreement (other than an obligation to pay money) due to Force Majeure, it will notify the other party accordingly. The notice will:

(i) specify the obligations it cannot perform;

(ii) describe the event of Force Majeure; and

(iii) estimate the time during which the event of Force Majeure will continue (if practicable).

(b) Following this notice and while the event of Force Majeure continues, the obligations of both parties which cannot reasonably be performed (other than an obligation to pay money) because of the event of Force Majeure will be suspended until they are no longer affected by the event of Force Majeure.

26.2 Mitigation and Remedy of Force Majeure

A party who serves a notice under clause 26.1 will:

(a) take reasonable steps to mitigate any loss suffered by either party as a result of the inability of that party to carry out its obligations under the Agreement; and

(b) remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.

26.3 Liability

The parties acknowledge and agree that if a party is prevented or delayed (in whole or in part) from performing its obligations under the Agreement (other than an obligation to pay money) due to a Force Majeure event, that party will not be in breach of the Agreement or liable for any such failure or delay in performance.

27. Anti-Bribery and Corruption

Each party will and will procure that its Personnel will (as applicable):

(a) comply with all applicable laws relating to anti-bribery and corruption (Relevant Requirements);

(b) not engage in any conduct which will or may constitute an offence under any of the Relevant Requirements;

(d) promptly report to the other party any request or demand for any undue financial or other advantage received by it in connection with the Agreement; and

(e) during the Subscription Term, have and maintain in place its own policies and procedures to ensure compliance with the Relevant Requirements and enforce them where appropriate.

28. Notices

(a) Any formal notice or other communication given under the Agreement must be in writing and may be given by one party to the other by pre-paid post, hand delivery or email at the address set out in the applicable Order Form (or such other address as may be subsequently notified by the other party in accordance with this clause.)

(b) Any notice or other communication provided under clause 28(a) will be deemed to have been received:

(i) if served by pre-paid domestic post, three Business Days after being posted;

(ii) if served by pre-paid international post, five Business Days after being posted;

(iii) if served by hand, when delivered by hand; and

(iv) if sent by email, when the email is confirmed to have been sent from the sender's server,

provided that if the notice or other communication is deemed under this clause to have been received on a day this is not a Business Day or after 5.00pm in the place of intended receipt, then it will be deemed to have been received at 9.00am on the next Business Day.

29. General

29.1 Publicity

(a) Subject to clause 29.1(b), the Customer authorises Zap to:

(i) make public statements or announcements (including in promotional materials), and issue any press release or like statement, stating that Zap has entered into an agreement for the supply of Services with the Customer; and

(ii) use the Customer's name, logo, or trade mark solely to identify the Customer as a customer of Zap on the Zap website and/or in printed materials.

(b) The Customer may at any time revoke the authorisation granted to Zap under clause 29.1(a) by written notice

29.2 Variation

No variation of the Agreement will be legally binding on either party unless in writing and signed by both parties.

29.3 Severance

If the whole or any part of the Agreement is invalid, unenforceable, illegal, void or voidable for any reason, the Agreement will be construed and be binding on the parties as if the invalid, unenforceable, illegal, void or voidable part had been deleted from the Agreement or read down to the extent necessary to overcome the difficulty.

29.4 Waiver

A waiver by either party of any breach or a failure to enforce or to insist upon the observance of a condition of the Agreement will not be a waiver of any other or of any subsequent breach. A waiver must be in writing and signed by the party granting the waiver.

29.5 Relationships of the Parties

The parties agree that Zap is engaged as an independent contractor and nothing in the Agreement is to be construed as constituting a partnership, employment relationship, agency relationship or joint venture between the parties.

29.6 Further Assurances

Each party must, at its own expense, promptly do all things and execute all documents reasonably necessary to give effect to the Agreement and all transactions incidental to it, and must use all reasonable endeavours to cause relevant third parties to do the same.

29.7 Assignment and Novation

Zap may in its sole discretion assign or novate any of its rights and obligations under the Agreement. The Customer must not assign or transfer any of its rights or obligations under the Agreement without obtaining Zap's prior written consent (which may be given or withheld in Zap's absolute discretion).

29.8 Export

The Software may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any United States government denied-party list. The Customer must not and must procure that its Personnel must not, access or use the Software in a United States embargoed country or in violation of any United States export law or regulation or that of any other applicable jurisdiction.

29.9 Survival

Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement will remain in full force and effect, including but not limited to all clauses in the Agreement relating to payment, confidentiality, privacy, warranties, indemnities, limitations on liability, dispute resolution, and intellectual property.

29.10 Entire Agreement

The Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties.

29.11 Governing Law and Jurisdiction

(a) The Agreement is governed by and is to be construed in accordance with the laws of the State of Victoria and the Commonwealth of Australia without giving effect to any choice of law rules that would cause the application of laws of any other jurisdiction.

(b) Each of the parties irrevocably and unconditionally agree to submit to the exclusive jurisdiction of the courts of the State of Victoria and the Commonwealth of Australia.

29.12 Counterparts

The Agreement may be executed (including by way of Electronic Signature) in any number of counterparts, each of which constitutes an original, and all such counterparts taken together are deemed to constitute one and the same document.

29.13 Electronic Signing

(a) The party's consent to the Agreement being signed by or on behalf of a party by an Electronic Signature.

(b) Where an Electronic Signature has been used to sign the Agreement, the parties warrant that their Electronic Signature was used to:

(i) identify and authenticate the person signing;

(ii) where the party is an individual, indicate that the person, intended to be bound by the terms of the Agreement; and

(iii) where the party is a company, the person or persons intended to bind the company to the terms of the Agreement.

Schedule 1 - Glossary

Affiliate means any entity that controls the Customer, that the Customer controls, or that is under common control with the Customer, where "control" means the ownership, directly or indirectly, of equity securities or other ownership interests which represent more than 50% of the voting power of such affiliate.

Agreement means the agreement for the supply of specific Services under an executed Order Form, incorporating the General Terms and Conditions.

Business Day means a day (other than a Saturday, Sunday, public holiday or bank holiday) in the Victoria, Australia.

Cloud Solution Services means a service hosted in the cloud by Zap or provided by a third party.

Commencement Date means the commencement date specified in the Order Form.

Confidential Information means any information of whatever kind disclosed or revealed by the Disclosing Party to the Receiving Party under or in relation to the Agreement that:

(a) is by its nature confidential;

(b) is designated by the Disclosing Party as confidential; or

(i) where Zap is the Disclosing Party, any part of the Services and Zap Intellectual Property that are not otherwise publicly available; and

(ii) where the Customer is the Disclosing Party, any Customer Data,

but does not include information that:

(d) is published or has otherwise entered the public domain without a breach of the Agreement;

(e) is obtained from a third party who has no obligation of confidentiality to the Disclosing Party; or

(f) is independently developed or obtained without breach of the Agreement.

Customer means the party specified as such in the Order Form.

Customer Data means the data and other information that the Customer uploads to or processes through the Software.

Data Protection Laws means the Privacy Act 1988 (Commonwealth of Australia), the UK GDPR and the EU GDPR.

Data Warehouse Size mean the total size (expressed in giga-bytes) of the database that the Software generates that holds the Customer Data.

Device means any device that meets Zap’s system requirements that a Customer uses to access any part of the Software.

Disclosing Party means the party who discloses Confidential Information to the Receiving Party under or in connection with the Agreement.

Documentation means the prevailing documentation and information made available to the Customer by Zap, and which may be updated by Zap from time to time, including specifications, technical and user guides (including guidance as to minimum system requirements) that are set out in the Software help files and any release-related notes, guides or manuals Zap publishes specific to the version of the Software which is made available, but excluding marketing materials and sales publications.

Electronic Signature means a visual representation of a person's handwritten signature which is placed on the Order Form and/or the General Terms and Conditions using DocuSign, Adobe Sign or another electronic signing platform agreed by the parties.

Environment means the servers, operating systems, databases and other operating software required for use with the Software.

EU GDPR means the General Data Protection Regulation (EU) 2016/679 of the European Parliament.

EULA means the Zap end user licence agreement accessible here.

Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure, including (without limitation):

(a) hacker attack, penetration or attack of computer virus, destruction, breakdown or impossibility of use of computer system;

(b) act of God, lightning, storm, flood, fire, earthquake or explosion, adverse weather conditions;

(d) act of public enemy, war (declared or undeclared), sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic, or terrorism;

(e) the effect of any applicable laws, orders, rules or regulations of any government or other component authority, coming into effect after the Commencement Date; and

(f) embargo, or a power or water shortage.

General Terms and Conditions means the general terms and conditions (including any schedules) which governs the provision of the Services by Zap accessible above, as updated from time to time.

Improvements means any update, development, enhancement or modification of the Software by Zap including in relation to the specifications of the Software, its design or manufacturing process that may make the Software better, more efficient, more economical, more effective, more useful or suitable or would in any other way render the Software more valuable or preferable, including any such improvements arising from ideas, feedback or recommendations by the Customer.

Initial Term means the initial term set out in the Order Form.

Insolvency Event means where a party:

(a) has an order made or resolution passed for its winding up, liquidation or dissolution;

(b) has a receiver, manager, controller, administrator, liquidator or similar officer appointed over any of its assets or business;

(d) has a writ of execution levied against it or its property;

(e) is unable or ceases to pay its debts as they fall due;

(f) makes any composition, arrangements or general assignment with any creditor;

(g) is or is deemed bankrupt or insolvent;

(h) enters into liquidation;

(i) ceases or threatens to cease carrying on business; or

(j) anything occurs under the law of the jurisdiction in which a party is incorporated which has a substantially similar effect to any of the events described in this paragraphs (a) to (i) above.

Intellectual Property Rights means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future, including, without limitation, business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off, and rights to use, and protect the confidentiality of, confidential information, whether registered or unregistered, and includes the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.

Loss means all liabilities, losses, damages, costs and expenses (including all legal costs determined on a full indemnity basis) whether incurred by or awarded against a party.

On Premises Subscription means the provision by Zap of Software installed on the Customer's premises or hosted in a privately hosted platform provider.

Order Form means an order form agreed by the Customer and Zap for the procurement of Services.

Personal Information has the meaning given to that term in the Privacy Act 1988 (Commonwealth of Australia) and any applicable Data Protection Laws.

Personnel means any employee, agent, sub-contractor, contractor, partner, representative, director or officer of a party.

Program means the Zap installer or application.

Receiving Party means the party who receives Confidential Information from the Disclosing Party under or in connection with the Agreement.

Renewal Term means the renewal term set out in the Order Form.

Required Third Party Service means a required service, software, or other functionality made available by a provider other than Zap, that Zap makes available to the Customer as part of the SaaS Subscription and On Premises Subscription (as applicable).

SaaS Subscription means the Customer's access to and use of the Software in a cloud or wireless environment together with any Required Third Party Services and/or Supplemental Services that Zap makes available to the Customer.

Services means all services procured by the Customer from Zap under an executed Order Form from time to time, including the:

(a) SaaS Subscription;

(b) On Premises Subscription; and/or

Software means:

(a) any software supplied by Zap to the Customer from time to time, whether in object code, source code, reconfigurable binary or any other form, and includes any backup or other copies, Software Updates, modifications, enhancements and extensions; and

(b) any solution, being a pre-built set of analytics and/or data model pipelines.

Software Updates means:

(a) enhancements to existing versions of Software made generally available at no charge by Zap to the Customer; and

(b) Software releases made generally available by Zap to resolve known issues with existing versions of Software.

Solution Module means an area of a solution which includes a set of analytics and/or data model pipelines.

Subscription Fees means any or all (as the context requires) fees and other charges payable by the Customer to Zap for the Services as specified in an Order Form and amended in accordance with the General Terms and Conditions.

Subscription Limitations means the maximum number of users authorised to use the Software, the Data Warehouse Size, the solution(s), and the Solution Modules, that are included in the Customer's SaaS Subscription or On Premises Subscription (as applicable).

Subscription Term means the Initial Term and any Renewal Terms effected under clause 3(b) of the General Terms and Conditions.

Support Services means the support services provided or otherwise made available by Zap to the Customer including on-line, by phone, by email, or other reasonable means.

UK GDPR means the General Data Protection Regulation (EU) 2016/679 of the European Parliament as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal Act) 2018 (UK) and any regulations thereunder.

Zap means Zap Technology Pty Ltd (ACN 093 757 745).

Zap Intellectual Property means all of Zap's present and future Intellectual Property Rights in the Services, Documentation, Improvements and Zap Confidential Information (including know how and trade secrets).

Zap Privacy Policy means the Zap privacy policy accessible here, as may be updated or amended from time to time.

Schedule 2 - SaaS Subscription

1. Service Restrictions

(a) The Customer is only authorised to access and use the Software through:

(i) its private internet or extranet using an internet connection the Customer provides; or

(ii) a wireless communication network that the Customer connects to on the Customer's Devices.

(b) The Customer must not install any components of the Software on any Customer Device without Zap's prior written consent.

2. Cloud Solution Services

(a) Where any functionality of the Software is provided by Zap using Cloud Solution Services, Zap will use all reasonable endeavours to provide that functionality in accordance with the Zap Cloud Service Level Agreement accessible in Schedule 4 - Annexure A.

(b) Where any functionality of the Software is provided by Zap using Cloud Solution Services, the Customer must not, and must not permit its Personnel or facilitate any third party to, use the Cloud Solution Services to:

(i) provide Zap with fraudulent information;

(ii) send spam or other unsolicited or duplicative messages in violation of applicable laws;

(iii) store, distribute or transmit material that:

(A) is obscene, threatening, libelous or otherwise unlawful or tortious (including material harmful to children or in violation of third party privacy or Intellectual Property Rights);

(B) contains viruses or other harmful or malicious code that may compromise the security or functionality of any website, program, process, business or data;

(iv) apply any tool, process, or method to:

(A) collect or detect email addresses, financial information, or other information from Zap or other Zap customers; or

(B) attempt to gain unauthorised access to the Software, other accounts, computer systems or networks connected to or supporting the Software through hacking, password mining or by any other means;

(v) post, upload, use framing techniques to use or otherwise distribute copyrighted material without the consent of the copyright holder;

(vi) in any way that threatens the integrity, performance or reliability of the Cloud Solution Services infrastructure, or in any manner that works around any technical limitations in either the whole or any part of the Software; or

(vii) make or attempt to make a local non-cache copy of any part of the Software.

(i) the Customer acknowledges and agrees that the provision of the Cloud Solution Services is subject to limitations, security vulnerabilities, delays and other problems inherent to the operation of the internet and other electronic communications, and that Zap and/or its licensors will not be liable or responsible to the Customer for any such delays, interruptions, security problems, delivery failures or other damage resulting from such problems;

(ii) the Customer acknowledges that that the Cloud Solution Services may be interrupted by routine maintenance (Zap agrees to use its commercially reasonable efforts to minimise such interruption and to schedule routine maintenance at non-peak hours);

(iii) Zap may suspend access to the Cloud Solution Services without notice to the Customer and without liability in the following circumstances, however, will use reasonable endeavours to give the Customer prior notice where practicable:

(A) if there is an attack on the servers of Zap’s hosting provider or other event for which Zap reasonably believes the suspension of the Cloud Solution Services is necessary to protect the Customer, other Zap customers, Zap or its third party hosting provider; and

(B) if required by law or regulation or as compelled by a law enforcement or government authority; and

(iv) the Customer must comply with all reasonable policies and other directions notified to the Customer by Zap in writing in relation to the Customer's use of the Cloud Solution Services.

Schedule 3 - On Premises Subscription

1. Use of Software by Third Party IT Providers

(a) Subject always to Zap’s prior written consent, the Customer may from time to time retain third parties to provide information technology services to the Customer in connection with the Software. If a third party is required to install the Software in order to provide such information technology services to the Customer, then:

(i) that third party is authorised to install the Customer's copy of the Software provided that the Customer does not also install the Software on another machine;

(ii) the third party must not use the Software or allow anyone else to use the Software; and

(iii) the Customer must enter into a written agreement with that third party which includes, at a minimum, such provisions as are necessary to protect Zap and its licensors’ Intellectual Property Rights in the Software and to protect Zap and its licensors’ interests in the licence granted to the Customer under the General Terms and Conditions.

(b) If the Customer becomes aware of any breach of the provisions the Agreement, or of its own agreement with the third party, the Customer must immediately notify Zap in writing of the breach and must, at its sole cost, promptly take any corrective action reasonably required by Zap.

(c) Notwithstanding this clause 1 of Schedule 3, the Customer acknowledges and agrees that Zap has not tested the Software for use other than directly by the Customer in accordance with the Documentation.

2. Customer Obligations

(a) The Customer must use the Software within an Environment that has been selected from Zap's published list of supported Environments, as amended by Zap from time to time and available on its website.

(b) The Software may be transferred from one Environment to a replacement Environment, and if transferred, the Software must be irretrievably deleted from the replaced Environment.

Schedule 4 - Support Services

Last Updated: 13 September 2024

1. Definitions

In this Agreement the following terms have the corresponding meanings unless the context requires otherwise:

Additional Support Charges means charges for services beyond the scope of the Support Services calculated in accordance with a quotation provided by Zap on a time-and-materials basis.

Customer Environment means the Customer’s information technology, communications, internet, software and other relevant infrastructure that interfaces with the Zap Software and/or Support Services.

Maintenance Services includes error corrections, versions, releases, and enhancements published from time to time in respect of the Zap Software.

SLA Targets means a service level agreement targets as set out in Annexure A and updated from time to time.

Support Contact means a designated support contact who is able to log Support Tickets.

Support Services means the services outlined in clause 2 provided by Zap to the Customer.

Support Ticket means an electronic lodgement for one or more Support Services by completing a form on the online helpdesk or emailing helpdesk@zapbi.com.

2. Support Services

During the Term, Zap will supply to the Customer:

(a) a resolution or response from Zap in relation to the Support Ticket and in accordance with the priority and response times in this schedule;

(b) access for designated Support Contacts to log incidents and questions into an online helpdesk ticketing system, available 24 x 7 x 365 (excluding scheduled and unscheduled outages); and

(i) access to an online forum, which provides a discussion community to exchange ideas and contribute feature requests; and

(ii) access to a knowledge base that provides a searchable repository of information on how to use the Zap Software,

together, the Support Services.

3. Provision of Support Services

(a) Zap will supply Support Services in accordance with the terms identified in Annexure A. Where a Support Ticket is raised outside a product version's 24-month lifespan, the additional terms provided in Annexure B will apply.

(b) Zap will undertake reasonable commercial efforts to respond to and resolve logged incidents within the target time frames specified in Annexure A.

(d) The Customer agrees that Support Tickets do not constitute a replacement for training or education. Support Tickets that are deemed to be knowledge-related and reflect inadequate training or education, as mutually agreed upon, may be billed at the then published professional service rates on a time and material basis. Zap will use reasonable discretion to differentiate between how-to questions and Support Tickets that fall this term.

4. Customer Obligations

In order for Zap to supply the Support Services, the Customer will:

(a) ensure the Customer Environment is in good working order and complies with the Zap Software and hardware specifications articulated in the online documentation;

(b) ensure that Support Contacts and other Customer personnel who interact with Zap for the relevant Support Services are suitably qualified and adequately trained;

(c) make its suitably qualified and informed personnel available to assist Zap to replicate the problem, undertake testing of resolutions provided by Zap, and otherwise assist Zap to resolve the problem. Where a response to a request for information is not provided within a reasonable time, Zap may consider the relevant Support Ticket to be dormant and update the status appropriately; and

(d) provide all reasonable information that Zap requires to replicate and resolve the Customer’s problem.

5. Maintenance

Zap will provide the Maintenance Services with all due care and skill and in a professional manner consistent with generally-accepted industry standards.

6. Zap's Obligations

Zap warrants it will supply the Support Services with all due care and skill and in a professional manner consistent with generally-accepted industry standards and in accordance with the SLA Targets and

7. Mutual Obligations

Zap and the Customer agree:

(a) that when communicating with each other, each party is responsible for conducting appropriate virus checks on any electronic media sent or received to/from the other party; and

(b) to ensure any of their locations the other party’s personnel are required to attend, comply with all applicable legislative and regulatory requirements, including but not limited to as workplace occupational health and safety, equal opportunity and anti-discrimination legislation and no smoking policies.

8. Suspension of Support Services

Zap may immediately suspend its provision of Support Services if the Customer has not:

(a) paid any undisputed Fees by the due date; or

(b) met one or more of its obligations under the General Terms which generally prevents or obstructs Zap from delivering one or more Support Services.

9. Exclusions

(a) Unless otherwise agreed in writing, Zap has no liability for, and is not required to provide Support Services to the extent the service request relates to:

(i) Support Services outside of Support Hours, as specified in Annexure A;

(ii) information provided by the Customer that is inaccurate or incorrect;

(iii) the Customer not complying with the Zap Software user documentation provided to Customer; or

(iv) any malfunction or specific requirement of the Customer Environment or any other item of hardware or software that the Customer has linked to Zap Software.

(b) Support Services specifically exclude any other service offerings from Zap which are the subject of a further agreement or additional terms and conditions.

Annexure A - Service Level Agreement (SLA) Targets

When requesting Support Services from Zap, an incident, request or question shall be categorized in accordance with the following priority categories:

Issue Priority

Business Impact

Target Response Time

Target Resolution Time

Urgent (SaaS outage)

Zap Data Hub SaaS is completely inoperable or completely inaccessible. (Zap Data Hub SaaS only).

2 Hours, 24/7

4 Hours, 24/7

Urgent

Completely inoperable or completely inaccessible. All users or model processing is affected.

4 Hours

8 Hours

High

Severely impacted performance, functionality, or data accuracy, majority of users or models affected.

8 Hours

3 Days

Normal

Impacted performance, functionality or data accuracy, minority of users or models affected.

1 Day

5 Days

Low

Minimally impacted performance, functionality data accuracy, minority of users or models affected. Also, how-to questions.

2 Days

Urgent

General Terms

Support Feature

Details

Support Hours Note: SaaS services outage support is provided 24/7

Monday to Friday
9am – 5pm Americas -4UTC
10am – 6pm Europe, Middle East, and Africa UTC
9am – 5pm Asia Pacific +10UTC

Support Contacts

Hotfixes

Zap may, at its discretion, provide product fixes on either the product version on which the issue was identified or the current release version. Where the product version on which the issue was identified was released within the last 12 months, Zap will use reasonable commercial efforts to provide the hotfix on this version.

Case Escalation

Zap may determine a priority different to that the Customer provides and Zap may update priorities over the life of a Support Ticket as partial solutions or work-arounds are provided.

Zap recognizes that extenuating circumstances may result in a specific Support Ticket having an outsized impact on business operations. The Customer may request a higher priority by escalating through the support helpdesk or by contacting their account manager.

Annexure B - Extended Support Policy Terms

Extended support applies where a Support Ticket is raised outside a product version's 24-month lifespan*. Supported Data Hub versions can be found here. Extended support is intended to assist Zap customers through extended upgrade projects. Extended support is not intended for indefinite support of end-of-life versions.

The following terms apply:

Term

Business Impact

Double target resolution times

For Zap to deliver on targeted resolution times, support staff maintain instances of current software and hone their skills against current software. Therefore, Zap is unable to target the same resolution times on end-of-life product version.

No consultancy

The Zap Professional Services team members also hone their skills on current software. Where professional services are requested on an end-of-life product version, Zap will request that a current version of Zap Software be put in place prior to providing the services. This will ensure the efficient delivery of services and ensure the Zap Support team is able to support the outcome of any such services.

No new data sources

Zap will not produce new or updated data sources for end-of-life product versions. Note: An upgrade to a source system (ERP, CRM, etc.) may necessitate a data source replacement. This presents a risk to continuity of operations. Zap therefore strongly recommends remaining on current versions of Zap Software.

No new solutiuons

Zap will not produce new or updated solutions for end-of-life product versions. Note: An upgrade to a source system (ERP, CRM, etc.) may necessitate a solution upgrade. This presents a risk to continuity of operations. Zap therefore strongly recommends remaining on current versions of Zap Software.

No hotfixes

Zap will not produce hotfixes for end-of-life product versions.

No performance Support Tickets

Zap will not accept performance-related Support Tickets for end-of-life product versions. Zap will continue to accept Support Tickets relating to installation and configuration, how-to questions, licensing and product issues. Zap will handle such non-performance Support Tickets using all reasonable commercial efforts, within the constraints outlined in the Extended Support Policy.

* The lifespan of a hotfix product version is dated from the generally available version against which the hotfix was applied. Hotfixes themselves are not generally available. For example, the lifespan of a product version 1.1 hotfix 3 would be dated from when product version 1.1 was made generally available.

General Terms & Conditions

On this page, you will find the terms of use that govern the usage of Zap's software. We recognise that different conditions apply to On-Premises and Cloud services. Therefore:

Schedule 2 applies only to Cloud SaaS environments

Schedule 3 applies only to On-Premises environments

All other Terms and Conditions, including Schedules 1 and 4, are applicable to both services.

T&Cs Sections

1. Definitions and Interpretation

2. Precedence

3. Term

4. Order Form

5. Provision of Services

6. SaaS Subscription

7. On Premises Subscription

8. Licence Grant and Restrictions

9. Zap Software

10. Software

11. Support Services

12. Subscriptions and Payment

13. Audit Rights

14. Taxes

15. Intellectual Property

16. Privacy

17. Security

18. Suspension

19. Confidentiality

20. Customer Data

21. Limited Warranties and Disclaimers

22. Liability

23. Zap Indemnity

24. Termination

25. Dispute Resolution

26. Force Majeure

27. Anti-Bribery and Corruption

28. Notices

29. General

(a) The party's consent to the Agreement being signed by or on behalf of a party by an Electronic Signature.

(b) Where an Electronic Signature has been used to sign the Agreement, the parties warrant that their Electronic Signature was used to:

(i) identify and authenticate the person signing;

(ii) where the party is an individual, indicate that the person, intended to be bound by the terms of the Agreement; and

(iii) where the party is a company, the person or persons intended to bind the company to the terms of the Agreement.

Schedule 1 - Glossary

Schedule 2 - SaaS Subscription

1. Service Restrictions

2. Cloud Solution Services

Schedule 3 - On Premises Subscription

1. Use of Software by Third Party IT Providers

2. Customer Obligations

Schedule 4 - Support Services

1. Definitions

2. Support Services

3. Provision of Support Services

4. Customer Obligations

5. Maintenance

6. Zap's Obligations

7. Mutual Obligations

8. Suspension of Support Services

9. Exclusions

Annexure A - Service Level Agreement (SLA) Targets

General Terms

Annexure B - Extended Support Policy Terms