Aerotruth Onboarding Terms of Engagement

1.1 Definitions: In this Agreement, the following terms have the stated meaning:

1.2 Interpretation: In this Agreement:

• clause and other headings are for ease of reference only and do not affect the interpretation of this Agreement;
• words in the singular include the plural and vice versa;
• a reference to:
  • a party to this Agreement includes that party’s permitted assigns;
  • personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include Aerotruth;
  • a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
  • including and similar words do not imply any limit; and
  • a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them; and
• no term of this Agreement is to be read against a party because the term was first proposed or drafted by that party.

2.1 General: Aerotruth agrees to provide, and the Client agrees to buy, the “Aerotruth Onboarding Software-as-a-Service” (defined below) offering on the terms and conditions set out in this Agreement. That service is defined as the provision of an online document management platform to assist the Client in onboarding and refreshing business partners and counterparties. Aerotruth must use reasonable efforts to provide the Services:

• in accordance with this Agreement;
• exercising reasonable care, skill and diligence; and
• using suitably skilled, experienced and qualified personnel.

2.2 Non-exclusive: Aerotruth’s provision of the Services to the Client is non-exclusive. Nothing in this Agreement prevents Aerotruth from providing the Services to any other person and the Client’s prior consent is not required.

2.3 Availability:

• Subject to clause 2.3b, Aerotruth will use reasonable efforts to ensure the SaaS Service has an uptime availability of at least 99.9% but does not guarantee such availability. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. Aerotruth will use reasonable efforts to publish on the Website or notify the Client by email advance details of any unavailability.
• Through the use of web services and APIs, the SaaS Service interoperates with a range of third-party service features and Aerotruth accepts no liability in respect of such third-party service features and provides no warranty and gives no endorsement in respect of such features or any party connected with them. Aerotruth does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, Aerotruth may cease to make available that feature to the Client. To avoid doubt, if Aerotruth exercises its right to cease the availability of a third-party feature, the Client is not entitled to any refund, discount or other compensation.

2.4 Additional Related Services:

• Aerotruth may be paid a fee by or on behalf of potential or actual partners of the Client which have been introduced by Aerotruth to the Client for the introduction and/or resulting business relationship between the partner and the Client.
• Aerotruth may, from time to time, make available additional services to supplement the SaaS Service.
• Subject to the Client paying the applicable Fees, Aerotruth may agree to provide to the Client an additional Related Service on the terms of this Agreement.

3.1 General use: The Client and its personnel must:

• a use the Services in accordance with this Agreement solely for:
  • the Client’s own internal business purposes; and
  • lawful purposes; and
• not resell or make available the Services to any third party, or otherwise commercially exploit the Services.

3.2 Access conditions: When accessing the SaaS Service, the Client and its personnel must:

• not impersonate another person or misrepresent authorisation to act on behalf of others or Aerotruth;
• correctly identify the sender of all electronic transmissions;
• not attempt to undermine the security or integrity of the Underlying Systems;
• not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
• not attempt to view, access or copy any material or data other than:
  • that which the Client is authorised to access; and
  • to the extent necessary for the Client and its personnel to use the SaaS Service in accordance with this Agreement;
• neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
• comply with any terms of use on the Website, as updated from time to time by Aerotruth.

3.3 Personnel:

• Without limiting clause 3.2, no individual other than a Permitted User may access or use the SaaS Service.
• The Client may authorise any member of its personnel to be a Permitted User, in which case the Client will provide Aerotruth with the Permitted User’s name and other information that Aerotruth reasonably requires in relation to the Permitted User.
• The Client must procure each Permitted User’s compliance with clauses 3.1 and 3.2 and any other reasonable condition notified by Aerotruth to the Client.
• A breach of any term of this Agreement by the Client’s personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of this Agreement by the Client.

3.4 Authorisations: The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.

4.1 Aerotruth access to Data:

• The Client acknowledges that:
  • Aerotruth may require access to the Data to exercise its rights and perform its obligations under this Agreement; and
  • to the extent that this is necessary but subject to clause 7, Aerotruth may authorise a member or members of its personnel to access the Data for this purpose.
• The Client must arrange all consents and approvals that are necessary for Aerotruth to access the Data as described in clause 4.1a.

4.2 Analytical Data: The Client acknowledges and agrees that:

• Aerotruth may:
  • use Data and information about the Client’s and the Client’s end users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data);
  • use Analytical Data for Aerotruth’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
  • supply Analytical Data to third parties;
• Aerotruth’s rights under clause 4.2a above will survive termination or expiry of this Agreement; and
• title to, and all Intellectual Property Rights in, Analytical Data is and remains Aerotruth’s property.

4.3 Agent:

• The Client acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, Aerotruth is acting as an agent of the Client for the purposes of applicable privacy laws.
• The Client must obtain all necessary consents from the relevant individual to enable Aerotruth to collect, use, hold and process that information in accordance with this Agreement.

4.4 Backups of Data: While Aerotruth will take standard industry measures to back up all Data stored using the Services, the Client agrees to keep a separate back-up copy of all Data uploaded by it onto the SaaS Service.

4.5 International storage of Data: The Client agrees that Aerotruth may store Data (including any Personal Information) in secure servers in local and/or overseas territories and may access that Data (including any Personal Information) in those territories from time to time. The parties agree and acknowledge that unless it is subsequently determined that the UK GDPR or EU GDPR apply to the Services (in which case the parties will enter into an appropriate data processing agreement), both the UK GDPR and EU GDPR are expressly excluded and do not govern this Agreement.

4.6 Indemnity: The Client indemnifies Aerotruth against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by Aerotruth’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.

5.1 Fees: The Client must pay to Aerotruth the Fees.

5.2 Invoicing and payment:

• Aerotruth will send the Client a monthly invoice on or around the first day of each calendar month, with payment required 14 days after the relevant invoice date.
• The Fees exclude any GST (or equivalent), which the Client must pay on taxable supplies under this Agreement if applicable.
• The Client must pay the Fees:
  • pursuant to clause 5.2(a); and
  • electronically in cleared funds without any set off or deduction.

5.3 Overdue amounts: Aerotruth may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by Aerotruth’s primary trading bank as at the due date (or, if Aerotruth’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

5.4 Increases: By giving at least 30 days’ notice, Aerotruth may increase the Fees once each Year (but not the first Year) by the percentage change in the United States Consumer Price Index (or similar or equivalent index if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by the US Bureau of Labor Statistics prior to the date of the notice.

6.1 Ownership:

• Subject to clause 6.1b, title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of Aerotruth (and its licensors). The Client must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
• Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Client. The Client grants Aerotruth a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with this Agreement.

6.2 Know-how: To the extent not owned by Aerotruth, the Client grants Aerotruth a royalty-free, transferable, irrevocable and perpetual licence to use for Aerotruth’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by Aerotruth in the provision of the Services.

6.3 Feedback: If the Client provides Aerotruth with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):

• all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by Aerotruth; and
• Aerotruth may use or disclose the feedback for any purpose.

6.4 Third party sites and material: The Client acknowledges that the SaaS Service may link to third party websites or feeds that are connected or relevant to the SaaS Service. Any link from the SaaS Service does not imply any Aerotruth endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, Aerotruth excludes all responsibility or liability for those websites or feeds.

6.5 Third party Intellectual Property Rights indemnity:

• Aerotruth indemnifies the Client against any claim or proceeding brought against the Client to the extent that claim or proceeding alleges that the Client’s use of the SaaS Service in accordance with this Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Client:
  • promptly notifying Aerotruth in writing of the IP Claim;
  • making no admission of liability and not otherwise prejudicing or settling the IP Claim, without Aerotruth’s prior written consent; and
  • giving Aerotruth complete authority and information required for Aerotruth to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for Aerotruth’s account.
• The indemnity in clause 6.5a does not apply to the extent that an IP Claim arises from or in connection with:
  • the Client’s breach of this Agreement;
  • use of the SaaS Service in a manner or for a purpose not reasonably contemplated by this Agreement or otherwise not authorised in writing by Aerotruth; or
  • any third-party data or any Data.
• If at any time an IP Claim is made, or in Aerotruth’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, Aerotruth may (at Aerotruth’s option):
  • obtain for the Client the right to continue using the items which are the subject of the IP Claim; or
  • modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.

7.1 Security: Each party must, unless it has the prior written consent of the other party:

• keep confidential at all times the Confidential Information of the other party;
• effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
• disclose the other party’s Confidential Information to its personnel or professional advisers on a need to know basis only and, in that case, ensure that any personnel or professional adviser to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 7.1a and 7.1b.

7.2 Permitted disclosure: The obligation of confidentiality in clause 7.1 does not apply to any disclosure or use of Confidential Information:

• for the purpose of performing this Agreement or exercising a party’s rights under this Agreement;
• required by law (including under the rules of any stock exchange);
• which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
• which was rightfully received by a party to this Agreement from a third party without restriction and without breach of any obligation of confidentiality;
• by Aerotruth if required as part of a proposed financing (whether debt, equity or hybrid) of its business, or proposed sale of its business (assets or shares, whether in whole or in part) to a third party; or
• by Aerotruth in the form of a press release, website publication and/or public comment only insofar as the press release and/or public comment notes that the Client is a client or customer of Aerotruth.

8.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under this Agreement which, when signed, will constitute binding obligations on the warranting party.

8.2 No implied warranties: To the maximum extent permitted by law:

• Aerotruth’s warranties are limited to those set out in this Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to a sum equal to the applicable monthly Fee; and
• Aerotruth makes no representation concerning the quality of the Services and does not promise that the Services will:
  • meet the Client’s requirements or be suitable for a particular purpose, including that the use of the Services will fulfil or meet any statutory role or responsibility of the Client; or
  • be secure, free of viruses or other harmful code, uninterrupted or error free.

8.3 Purposes of trade: The Client agrees and represents that it has full power, authority and authorisations to carry out its trade and is acquiring the Services, and entering this Agreement, for the purposes of trade. The parties agree that:

• to the maximum extent permissible by law, any applicable consumer protection legislation does not apply to the supply of the Services or this Agreement; and
• it is fair and reasonable that the parties are bound by this clause 8.3.

8.4 Limitation of remedies: Subject to any responsibilities implied by law and which cannot be excluded, Aerotruth (including its directors, officers, employees and contractors) is not liable to the Client for any losses, damaged, liabilities, claims and expenses (including, but not limited to, legal costs and defence or settlement costs) whatsoever arising out of, or referable to, the Services, whether in contract, tort, negligence, statute or otherwise. Where legislation or rule of law implies into this Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in this Agreement. However, the liability of Aerotruth for any breach of that condition or warranty is limited, at Aerotruth’s option, to:

• supplying the Services again; and/or
• paying the costs of having the Services supplied again.

9.1 Maximum liability: The maximum aggregate liability of Aerotruth under or in connection with this Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Client under this Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability). The cap in this clause 9.1 includes the cap set out in clause 8.2a.

9.2 Unrecoverable loss: Neither party is liable to the other under or in connection with this Agreement or the Services for any:

• a loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
• b consequential, indirect, incidental or special damage or loss of any kind.

9.3 Unlimited liability:

• Clauses 9.1 and 9.2 do not apply to limit Aerotruth’s liability:
  • under the indemnity in clause 6.5a; or
  • under or in connection with this Agreement for:
    • personal injury or death;
    • fraud or wilful misconduct; or
    • a breach of clause 7.
• Clause 9.2 does not apply to limit the Client’s liability:
  • to pay the Fees;
  • under the indemnity in clause 4.6; or
  • for those matters stated in clause 9.3aii.

9.4 No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of this Agreement for any failure to perform its obligations under this Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under this Agreement, or by the negligence or misconduct of the other party or its personnel.

9.5 Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with this Agreement.

10.1 Duration: Unless terminated under this clause 10, this Agreement:

• starts on the Start Date and ends on the End Date; and
• subject to earlier termination as provided below, this Agreement shall be automatically renewed for additional periods of the same duration as the initial service term, unless either party requests termination for any reason at least 14 days prior to the end of the then-current term.

10.2 Termination rights:

• Either party may, by notice to the other party, immediately terminate this Agreement if the other party:
  • breaches any material provision of this Agreement and the breach is not:
    • remedied within 14 days of the receipt of a notice from the first party requiring it to remedy the breach; or
    • capable of being remedied;
  • becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
  • is unable to perform a material obligation under this Agreement for 30 days or more due to Force Majeure.
  If the remedies in clause 6.5c are exhausted without remedying or settling the IP Claim, Aerotruth may, by notice to the Client, immediately terminate this Agreement.

10.3 Consequences of termination or expiry:

• Termination or expiry of this Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
• On termination or expiry of this Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry.
• Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of this Agreement and subject to clause 10.3d, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
• At any time prior to one month after the date of termination or expiry, the Client may request:
  • a copy of any Data stored using the SaaS Service, provided that the Client pays Aerotruth’s reasonable costs of providing that copy. On receipt of that request, Aerotruth must provide a copy of the Data in a common electronic form. Aerotruth does not warrant that the format of the Data will be compatible with any software; and/or
  • deletion of the Data stored using the SaaS Service, in which case Aerotruth must use reasonable efforts to promptly delete that Data.
  To avoid doubt, Aerotruth is not required to comply with clause 10.3di to the extent that the Client previously requested deletion of the Data.

10.4 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of this Agreement, including clauses 4.6, 6, 7, 9, 10.3, 10.4 and 11, continue in force.

10.5 Rights to restrict: Without limiting any other right or remedy available to Aerotruth, Aerotruth may restrict or suspend the Client’s access to the SaaS Service and/or delete, edit or remove the relevant Data if Aerotruth considers that the Client (including any of its personnel) has:

• undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
• used, or attempted to use, the SaaS Service:
  • for improper purposes; or
  • in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;
• transmitted, inputted or stored any Data that breaches or may breach this Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
• otherwise materially breached this Agreement.

10.6 Process:

• Aerotruth must notify the Client where it restricts or suspends the Client’s access, or deletes, edits or removes Data, under clause 10.5.
• Clause 10.3di will not apply to the extent that it relates to Data deleted or removed under clause 10.5.

11.1 Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, this Agreement through good faith negotiations.

11.2 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under this Agreement even if there is a dispute.

11.3 Right to seek relief: This clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

12.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under this Agreement to the extent caused by Force Majeure, provided that the affected party:

• immediately notifies the other party and provides full information about the Force Majeure;
• uses best efforts to overcome the Force Majeure; and
• continues to perform its obligations to the extent practicable.

12.2 Rights of third parties: No person other than Aerotruth and the Client has any right to a benefit under, or to enforce, this Agreement.

12.3 Waiver: To waive a right under this Agreement, that waiver must be in writing and signed by the waiving party.

12.4 Independent contractor: Subject to clause 4.3, Aerotruth is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement.

12.5 Notices: A notice given by a party under this Agreement must be delivered to the other party via email using the email address previously notified by the other party. If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive Officer or equivalent officer of the other party at the other party’s last known physical address.

12.6 Severability:

• If any provision of this Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
• If modification under clause 12.6a is not possible, the provision must be treated for all purposes as severed from this Agreement without affecting the legality, enforceability or validity of the remaining provisions of this Agreement.

12.7 Variation: Subject to clause 5.4, any variation to this Agreement must be in writing and signed by both parties.

12.8 Entire agreement: The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the Start Date.

12.9 Subcontracting and assignment:

• The Client may not assign, novate, subcontract or transfer any right or obligation under this Agreement without the prior written consent of Aerotruth, that consent not to be unreasonably withheld. The Client remains liable for its obligations under this Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
• Any change of control of the Client is deemed to be an assignment for which Aerotruth’s prior written consent is required under clause 12.9a. In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.

12.10 Law: The Agreement is governed by, and must be interpreted in accordance with, the laws of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts there in relation to any dispute connected with this Agreement.

12.11 Counterparts: The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter this Agreement by signing and emailing a counterpart copy to the other party.