Diolog provides a software solution to facilitate two-way communication between companies and their retail shareholders, via its website www.diolog.com and a mobile application (App). This document sets out the terms on which Diolog will provide this solution to its Customers.
Version: 1.3
Updated: February 2024
Customer General Terms 1.2 - January 2024
Customer General Terms 1.1 - November 2022
1.1 These Diolog Customer General Terms (General Terms) are issued by DIOLOG PTY LTD ABN 46 649 313 833 of Level 26, 56 Pitt Street, Sydney NSW 2000, AUSTRALIA (Diolog).
1.2 Diolog provides an online process for a Customer User to create an account for a customer organisation (typically their employer) at www.diolog.com (Website). As part of that process, the user will need to enter or confirm details of the customer company (including legal name, ASX code and ABN). In these General Terms, Customer means the company identified when creating an account on the Website.
1.3 When a user first creates an Account for a Customer through the Website, they are required to accept these General Terms, which creates a binding agreement (Agreement) between Diolog and the Customer. The Customer User who first creates the Account will be the first Account Administrator. The Customer User who creates the Account warrants that they have the authority to enter into this Agreement on behalf of the Customer.
1.4 Diolog offers a free Trial Period. Creating an Account on the Website, and entering into this Agreement, does not commit the Customer to pay any Fees.
1.5 For ongoing use after the Trial Period, Diolog will give the Customer an Order Form (which may be via the Website, or a separate document) which sets out the details of the Diolog products and services, Fees, Subscription Period and any other specific terms.
1.6 If the Customer signs or otherwise accepts an Order Form (including via the Website), the Customer agrees to pay the Fees for the Subscription Period, on the terms of this Agreement. If there is a conflict between these General Terms and an Order Form, the Order Form prevails.
2.1 Terms defined in clause 1 have the meanings set out there (and terms defined in this clause 2 have the same meaning when used in clause 1). In addition:
- Account means a unique account established by or on behalf of Customer (including by Diolog at the Customer’s request) to enable the Customer Users to access and use the Diolog Software.
- Account Administrator is a Customer User who is assigned and expressly authorised by Customer as its agent to manage Customer’s Account.
- Affiliate in relation to a party, means any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
- Agreement Term means the Trial Period plus the Subscription Period.
- AI Technology means any training, self-improving, or machine learning software, algorithms, hardware, or other artificial intelligence tools used by Diolog in the Diolog Software which is currently provided by OpenAI, LLC, but may be provided by other providers from time to time.
- Beta Release means Diolog Software which is not fully developed for commercial release, including new functionality, features and integrations.
- Confidential Information means any information provided by a party or any of its employees, agents, related parties or representatives to the other party or any of its employees, agents, related parties or representatives, or otherwise obtained by that party (whether oral, written or viewed by inspection) which is marked as "proprietary" or "confidential" or similar language or which the recipient knows or reasonably should know is proprietary or confidential, or which is by its nature confidential or ought to be understood from the circumstances to be confidential (whether or not marked as such). Confidential Information of Diolog includes the Diolog Software and Documentation, the results of any performance tests of the Diolog Software, material developed by Diolog as part of Diolog Support, and the terms of the Agreement. Confidential Information of the Customer includes Customer Data.
- Customer Data means any content, materials, data and information (including Customer PI) that Customer or its Customer Users or Investor Users enter into the Diolog Software. Customer Data does not include any component of the Diolog Software or material provided by or on behalf of Diolog.
- Customer Indemnified Party is defined in clause 11.1.
- Customer PI means Personal Information provided or made available by or on behalf of the Customer or its Customer Users or Investor Users to Diolog or input into the Diolog Software in connection with the Agreement.
- Customer Release means a media release, ASX release or other communication uploaded to the Diolog Software by a Customer User for intended release to Investor Users.
- Customer User means one individual natural person who registers via the Website to use the Diolog Software on behalf of the Customer.
- Data Breach means: there is unauthorised access to or disclosure of Customer PI, or a loss of Customer IP; which is likely to result in serious harm to one or more individuals; and Diolog has been unable to prevent the likely risk of serious harm with remedial action.
- Diolog Indemnified Party is defined in clause 11.3.
- Diolog Software means the Diolog two-way communications software as further described on the Website and in the Order Form, including, where the context requires, a mobile App version available to Investor Users and Customer Users.
- Diolog Support means Diolog’s technical support service for the Diolog Software, including error corrections and upgrades, as generally released by Diolog, and as further described in clause 5 and the Website or Order Form.
- Diolog Services means Diolog Software plus Diolog Support.
Documentation means documents about the Diolog Software as made generally available by Diolog to users of the Diolog Software from time to time, and may include installation guidelines, specification documents and user guides and other resources provided on the Website.
- Fees means the fees payable by the Customer for the Diolog Services, as described in the Order Form (which may be via the Website).
- Infringement Claim means a claim by a third party (not being an Affiliate of the Customer) against a Customer Indemnified Party alleging that any part of the Diolog Software or the Customer Indemnified Party’s use of it as authorised under the Agreement infringes any third party's Intellectual Property Rights.
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs (including in relating semiconductor topography), database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Investor User means a person who is a shareholder in the Customer, and who uses the App version of the Diolog Software.
Order Form means an order form (which may include online form/s, screens and options for the Customer to select via the Website) provided by Diolog and agreed or accepted on behalf of the Customer describing the pricing and options of the Diolog Services to be provided to the Customer, which may be via an online process for the Customer to select the subscription terms and fees and accept the Order Form.
- Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information is true or not; and (b) whether the information or opinion is recorded in material form or not.
- Privacy Act means the Privacy Act 1988 (Cth).
Subscription Period means the period set out in an Order Form, beginning from the end of the Trial Period, for which Customer agrees to subscribe to the Diolog Services.
- Support Hours means the hours specified in an Order Form during which Diolog will provide Diolog Support, and for which ‘availability’ is measured (as described in clause 4.2).
- Taxes means all taxes, customs duties, levies, imposts, fines or similar governmental assessments, including goods and services taxes (GST), imposed by any jurisdiction and the interest and penalties on them.
- Trial Period means the period described on the Website (or in an Order Form) when the Customer may use the Diolog Software on a trial basis, without committing to an ongoing subscription, as described in clause 14.1.
3.1 Diolog Services. Diolog will provide to Customer the Diolog Services set out on the Website and/or the Order Form. The Diolog Software will be hosted and managed by third party hosting providers engaged by Diolog and made available to the Customer (and Customer Users) via the internet; and made available to the Investor Users via an App.
3.2 Right to Use. Subject to the restrictions and obligations in the Order Form and these General Terms, Diolog grants to Customer a non-exclusive, non-transferrable right during the Agreement Term to: (a) implement, configure, and through its Account Administrator, permit its Customer Users to access and use the Diolog Software; (b) invite its Investor Users to access and use the Diolog Software; and (c) access and use the Documentation.
3.3 Use of the Services. When using the Diolog Software, the Customer and its Customer Users must: (a) use the Diolog Software solely for Customer’s and its Affiliates’ internal business purposes; (b) comply with any usage restrictions set out the Order Form; (c) use the Diolog Services only in accordance with the Documentation; (d) not interfere with or disrupt the integrity, operation, or performance of the hosting environment on which the Diolog Software operates, or the use or enjoyment of it by others.
3.4 Restrictions. Customer shall not, and shall not permit its Customer Users or others under its control to do (or attempt to do) the following:
3.4.1 license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Diolog Software available for access by third parties (other than Investor Users or others expressly authorised by the Agreement);
3.4.2 use the Diolog Services to develop or operate products or services which perform the same or similar functions, in competition with the Diolog Software;
3.4.3 modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the Diolog Software;
3.4.4 reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about the Diolog Software without consent, unless and then only to the extent expressly permitted by applicable law;
3.4.5 use the Diolog Services in a way that infringes the rights of a third party, including relating to contract, intellectual property or privacy;
3.4.6 bypass or breach any security device or protection used for or contained in the Diolog Software or Documentation; or
3.4.7 use the Diolog Services to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or circumvent or disclose the user authentication or security of the Diolog hosting environment.
3.5 Customer Users and Accounts.
3.5.1 A Customer User must be identified by a unique email address and user name, and two or more persons may not use the Diolog Software as the same Customer User.
3.5.2 Customer will appoint at least one of its Customer Users as an Account Administrator, with authority to manage the Customer’s Account including to: add and remove Customer Users and set permission levels for each of them; configure administration settings; approve Customer Releases for release to Investor Users; request different or additional services; provide usage and performance reports, manage templates, execute approved campaigns and events, and to receive privacy disclosures. Customer may appoint and change its Account Administrator at any time through its Account.
3.5.3 If a Customer User is not an employee of Customer (or an Affiliate), the Customer must ensure the user: (a) is subject to written confidentiality obligations at least as restrictive as those in the Agreement; and (b) is accessing or using the Diolog Software solely to support the internal business purposes of the Customer or its Affiliates.
3.5.4 Customer will ensure that its Affiliates and all Customer Users comply with all of Customer’s obligations under the Agreement, and Customer is responsible for their acts and omissions as though they were those of Customer.
3.5.5 Customer is solely responsible for the protection and security of all access and login credentials used with the Diolog Software, and will be responsible and liable for all activity undertaken using such credentials (whether authorised or not). If Customer reasonably considers that any access or login credentials have been compromised, disclosed to or obtained by an unauthorised person in connection with Diolog Software, Customer must promptly notify Diolog.
3.5.6 Diolog reserves the right to deactivate or not to activate a Customer Account where such an account was created by a person who was not authorised by Customer; or where inaccurate or incomplete data has been imported onto the Customer Account. Diolog may take all reasonable steps that it considers necessary to verify the accuracy of the data entered by or on behalf of the Customer when creating the Account.
3.6 Investor Users.
3.6.1 To enable Investor Users to access and use the Diolog Software, Diolog will ask the Investor User to accept terms of use for the Diolog Software, and to enter their name, email, and proof of identity (but not HIN or SRN numbers).
3.6.2 The Customer acknowledges that Diolog is not responsible for any delays or faults in providing the Diolog Services, or any Data Breaches, caused by the acts or omissions of the Customer’s share registry provider.
3.7 Suspension. Diolog may suspend the Diolog Services at any time if:
3.7.1 Customer uses the Diolog Software in breach of this Agreement;
3.7.2 Diolog determines that it is necessary to protect the operation, security, availability, viability or integrity of the Diolog Software or other customers of the Diolog Software;
3.7.3 Diolog is carrying out scheduled or emergency maintenance;
3.7.4 Diolog determines that it is reasonably necessary in order to address, investigate, respond to or otherwise attend to any incident (including any security incident) concerning the Diolog Software;
3.7.5 Diolog receives or anticipates a claim relating to the Diolog Software (including any claim concerning intellectual property rights or other rights to use and access the Diolog Software); or
3.7.6 where the relevant hosting services provider suspends the hosting services used in connection with the Diolog Services.
3.8 Prior Notice. Diolog will use all reasonable efforts to notify the Customer before any suspension and, where possible using commercially reasonable efforts, will endeavour to minimise the duration and disruption caused by such suspension.
3.9 Beta Releases. Where Diolog gives the Customer access to a Beta Release, the Customer acknowledges that it’s features, functions and performance will not be equivalent to a fully developed and tested product, and Diolog does not provide any warranty or error corrections for Beta Releases.
3.10 Open Source Materials. Diolog may incorporate free or open source material in the Diolog Software. Diolog is responsible for ensuring that the licence terms of any such free or open source material do not conflict with the licence for the Diolog Software, or otherwise prevent Customer from using the Diolog Services in accordance with the Agreement.
3.11 Use of AI Technology. Diolog incorporates and uses AI Technology in the Diolog Software. While AI Technology can provide valuable assistance and improve efficiency, the Customer acknowledges that: AI Technology has inherent limitations and may produce inaccurate or incomplete results; Diolog does not guarantee error-free operation due to these limitations; and it is the responsibility of the Customer Users to verify the accuracy and appropriateness of any output generated by AI Technology.
3.12 Changes. Diolog may upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise modify the Diolog Software from time to time. Diolog will not do this in a way that would intentionally cause Customer Users to lose access to Customer Data or materially decrease the functionality or security features of the Diolog Software.
4.1 Hosting Provider. The Diolog Software will be installed and hosted on computing equipment of the cloud computing service provider selected and retained by Diolog from time to time. Diolog will ensure the hosting service provider:
4.1.1 is a globally recognised, tier one hosting provider;
4.1.2 agrees to provide the hosting using cloud infrastructure located in Australia;
4.1.3 agrees to maintain a professional hosting facility designed for such use, equipped with industry-standard physical access security, climate control, fire suppression, and managed power supply with UPS and generator back-up;
4.1.4 agrees to provide industry-standard data access security arrangements; and to implement and maintain appropriate technical and organisational measures, including information security policies and safeguards, designed to preserve the security, integrity, and confidentiality of Customer Data (including personal information) and to protect against unauthorised or unlawful disclosure or corruption of or access. (On request Diolog will give the Customer details of its then-current hosting provider and links to their security procedures.)
4.2 Internet. Diolog will provide internet connectivity through an internet service provider at the hosting facility. The connectivity shall include multiple, diversely routed high-speed connections, a firewall for security and a load balancer for traffic management and speed optimisation. The Customer will provide internet access in order for Customer Users to access and use the Diolog Software.
4.3 Hosting Maintenance. During the Support Hours Diolog will monitor the hosted computing, operating and networking infrastructure to detect and correct abnormalities. This includes environmental monitoring, network monitoring, load-balancing monitoring, web server and database monitoring, firewall monitoring, and intrusion detection.
4.4 Back Ups. Diolog will develop the back-up schedule, perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process. The back-up schedule shall include at least weekly full back-ups and daily incremental back-ups. In the event of data loss, Diolog shall provide recovery services to use reasonable commercial efforts to try to restore the most recent available back-up.
4.5 Upgrades. Diolog will provide release management and change control services to ensure that versions of servers, network devices, storage, operating system software and utility and application software are audited and logged, and that new releases, patch releases and other new versions are implemented as deemed necessary by Diolog to maintain the Diolog Software.
4.6 Availability. Diolog will use all reasonable efforts to provide 99.5% availability for the Diolog Software during Support Hours, subject to: (a) periods of emergency maintenance; (b) any suspension or termination of access to Diolog Software in accordance with the Agreement; and (c) any unavailability caused by the third party hosting provider failing to make available the third party hosting service.
5.1 Software Maintenance
5.1.1 Diolog shall maintain and update the Diolog Software. Should the Customer determine that the Diolog Software includes a defect, the Customer may at any time file error reports.
5.1.2 Maintenance includes all regularly scheduled error corrections, software updates and any upgrades which Diolog develops and releases generally to users of the Diolog Software. Diolog will implement such releases automatically and deploy and make them available (to all customers) as part of the Diolog Services.
5.2 Customer Support
5.2.1 Diolog will provide technical support for the Customer to log queries, issues or errors with the Diolog Software. All support requests must be lodged by Customer Users.
5.2.2 Support requests may be lodged online (email or support portal) 24 hours a day, seven days a week, using Diolog’ then-current support processes.
5.2.3 Diolog’s technical support call centre in Sydney provides telephone support during Support Hours.
5.2.4 Diolog may update its support processes from time to time by giving Customer at least one month’s notice, but only where Diolog makes this change for its customers generally (for example, details of how to log a support request) and the changes do not materially reduce the scope or level of support.
6.1 Customer Data. Customer Data processed using the Diolog Services is and will remain, as between Customer and Diolog, owned by Customer.
6.2 Background IP. Nothing in the Agreement affects the ownership of any Intellectual Property Rights of either party existing or created prior to the Order Start Date.
6.3 Diolog Services. Diolog, its Affiliates, or its licensors own and retain all right, title, and interest in and to any and all Intellectual Property Rights in and to the Diolog Software, Documentation, any deliverables, reports or materials created in the course of performing Diolog Services and any improvements, modifications, design contributions, or derivative works, and any knowledge or processes related to them and/or provided under the Agreement.
6.4 Licence. Diolog grants to Customer and its Customer Users a non-exclusive, non-transferable, perpetual and non-sublicensable licence to use and copy any Documentation, including reports, guides or manuals Diolog supplies to Customer in connection with Diolog Services, for the internal business use of the Customer in receiving the benefit of the Diolog Services, and subject to clause 13 (Confidentiality).
6.5 Feedback. Diolog encourages Customer to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to Diolog Services (Feedback). To the extent Customer provides Feedback, Customer grants to Diolog a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit Feedback (including by incorporation of such feedback into the Diolog Services) subject to Diolog’s obligations under clause 13 to not disclose Customer Data and other Confidential Information.
7.1 Customer Data.
7.1.1 Customer is responsible for the accuracy, quality and legality of the Customer Data (including Personal Information) as entered into the Diolog Software, or otherwise supplied or used by Customer and its Customer Users, including the means by which the Customer or its Customer Users acquired the Personal Information.
7.1.2 Customer grants to Diolog the non-exclusive right to access, process, transmit, store or disclose the Customer Data (including Personal Information): (a) for the sole purpose of Diolog: providing the Diolog Services; and verifying that Customer, Customer Users and Investor Users are complying with the Agreement; and (b) as otherwise set out in the Agreement.
7.2 Privacy
7.2.1 Customer is solely responsible for determining the suitability of the Diolog Services for Customer's business and complying with any data privacy and protection regulations, laws or conventions (including the Privacy Act) applicable to Customer Data and Customer’s use of the Diolog Services.
7.2.2 During the Agreement Term, each party will, and will ensure that its personnel, comply with the Privacy Act in respect of Personal Information collected, held, used or disclosed by it in connection with the Agreement.
7.2.3 Without limiting clause 7.2.2:
(i) Diolog will: (a) hold and use Customer PI only for the purpose of performing the Agreement; (b) not disclose, or provide third party access to, any Customer PI other than in accordance with this Agreement or with the written consent of the Customer; (c) co-operate with any reasonable requests or inquiries made by Customer in relation to the management of Customer PI by or on behalf of Diolog under or in connection with this Agreement; and (d) not disclose, export or transfer Customer PI to a country or to a third party outside Australia without Customer’s prior written consent, and
(ii) Customer, in relation to Customer Data that is Personal Information, warrants that it has obtained all consents required by law to be obtained from affected individuals to permit Customer to provide to Diolog and for Diolog to use, process, transfer and disclose such Personal Information as contemplated by the Agreement.
7.3 Data Security. The following terms apply to Customer Data:
7.3.1 Diolog will provide reasonable information and assistance to Customer, on reasonable request, in connection with the way that Diolog collects, stores or deals with Customer Data;
7.3.2 Diolog will provide reasonable information and assistance to Customer, on request, to assist the Customer in responding to or resolving any complaint, investigation or request by an individual or regulator under applicable privacy legislation, where such complaint, investigation or request concerns Customer Data stored or processed by or on behalf of Diolog;
7.3.3 Diolog acknowledges that Customer Data is confidential to the Customer;
7.3.4 Diolog will store Customer Data in Australia and will not transfer such Customer Data into another country except as reasonably required to provide the support services in accordance with clause 5.2.
7.3.5 Diolog will implement reasonable measures required to keep Customer Data secure and protected from unauthorised access as follows: (a) Diolog will implement (and ensure its third-party hosting providers also agree to implement) industry standard electronic security measures to protect against unauthorised access to or disclose of Customer Data; (b) Diolog will ensure it selects third party hosting service providers which meet the requirements of clause 4.1.2.
7.3.6 Customer acknowledges that it is impossible to guarantee against security or data breaches, third party unauthorised access, intrusion or attack, the introduction of viruses or harmful code, or similar events (Security Breaches). Accordingly, Diolog is not liable to Customer for any Security Breaches, or for any loss or corruption of data (including where arising in connection with any third party hosting) other than where Diolog has failed to comply with its obligations under this clause 7.3. In such events Diolog’s liability will be limited in accordance with clause 12. In any event, Diolog is not responsible or liable for: (a) the acts and omissions of any third party hosting provider; or (b) any illegal intrusion, denial of service attack, attacker or hacker or any other intrusion that could not reasonably have been prevented or avoided using industry standard measures to protect against unauthorised access.
7.4.1 Diolog will maintain a response and crisis communication program that is reasonably designed to detect, contain, respond and recover from a Data Breach. These Diolog security measures are detailed in the Diolog data security manual provided to the Customer and as updated from time to time.
7.4.2 If Diolog becomes aware of a Data Breach, Diolog will: (a) take steps to minimise the Data Breach; (b) take appropriate measures to secure the Personal Information and prevent a recurrence of the Data Breach; (c) provide reasonable information to the Customer about its remediation efforts and make any applicable notifications to a regulator; (d) to the extent available to Diolog, provide Customer with reasonable details of the Data Breach, including, a description of the Personal Information subject to the Data Breach and date and time of the Data Breach; and (e) take appropriate steps to remediate the root cause(s) of a Data Breach and give Customer a summary of the results of the investigation and any remediation efforts taken by Diolog.
7.5 Usage Data. Customer agrees that Diolog may collect, use, and disclose quantitative data derived from Customer’s use of the Diolog Services for its business purposes, including industry analysis, benchmarking, analytics, and product development and marketing. All data so used and disclosed will be in aggregate and deidentified form only and must not identify Customer or its Customer Users or include any Customer PI.
7.6 At Termination. If the Customer makes a request within two weeks of the termination date, Diolog will deliver to the Customer an electronic copy of the then most recent back-up of the Customer Data contained within the Diolog Software hosted by Diolog, within two weeks’ of Customer’s request. There is no charge for data export format/s then commonly used by Diolog; if Customer requests different formats, Diolog may charge a fee. Diolog will delete the Customer Data in its possession, within six months of the termination date.
8.1 Fees. Customer will pay Diolog the licence and subscription Fees for the Diolog Software and Diolog Support as set out in the applicable Order Form. Unless otherwise agreed, payment terms are 30 days from the date Customer receives the invoice.
8.2 Commitment for Term. Each Agreement for Diolog Services is for the full Subscription Period (including any renewal) and is non-refundable except as provided in these terms or an Order Form.
8.3 Taxes. Fees are stated exclusively of GST and any other Taxes. Customer must pay any applicable Tax at the same time and in the same manner as the relevant Fees. Diolog will issue a tax invoice for GST or other Taxes.
8.4 Disputed invoices. Customer may withhold from payment any charge or amount disputed by Customer in good faith pending resolution of such dispute, provided that Customer: (a) notifies Diolog of the dispute within 14 days of the invoice date, specifying: the amount in dispute and the reason for the dispute; (b) pays all undisputed Fees and amounts by the due date; and (c) works diligently with Diolog and promptly provides all information reasonably requested by Diolog to resolve the dispute promptly.
8.5 Overdue. If a payment is overdue then Diolog may, after giving Customer at least two weeks’ notice, charge interest at the rate of 8.0% per annum, calculated daily from the due date. In addition, if a payment is overdue by more than 90 days, then Diolog may, after giving Customer at least two weeks’ notice, suspend the Customer’s Account until payment is made.
9.1 Diolog Software. Diolog warrants that the Diolog Software, when used as authorised under this Agreement, will perform substantially in conformance with its Documentation. (This warranty does not apply to Beta Releases or AI Technology.)
9.2 Defects. If the Diolog Software fails to comply with this warranty, Customer shall promptly notify Diolog in writing including reasonable details of any alleged defects. Upon such notice, Diolog shall, as Customer’s sole remedy, within a reasonable period (depending on the severity of the defect) correct the defect or, at Diolog’s election, refund the pro-rata Fees paid for the defective Diolog Software.
9.3 AI Disclaimer. In addition to any other terms of this Agreement, the AI Technology is provided on an “as-is” basis and Diolog makes no representations or warranties of any kind (express or implied), as to the operation of the AI Technology or the information, text and content included in any output of the AI Technology. Diolog will have no liability or responsibility arising from the use of the AI Technology, or any errors or omissions contained in the outputs of the AI Technology.
9.4 General Disclaimer. Except for the warranty in clause 9.1, or in an Order Form, Diolog: (a) makes no additional representation or warranty of any kind, whether express, implied in fact or by operation of law; (b) disclaims all implied warranties, including fitness for a particular purpose, to the fullest extent allowed by law; and (c) does not warrant that the Diolog Services are or will be error-free, constantly available or meet Customer’s requirements. The Customer assumes sole responsibility for results obtained from its use of the Diolog Services.
10.1 Anti-bribery Laws. In entering into and performing its obligations under the Agreement, Diolog will and will procure that its personnel: (a) comply with all applicable anti-bribery and anti-corruption laws, statutes, regulations, regulatory policies from time to time in force in Australia, including the Criminal Code Act 1995 (Cth), state and territory legislation including the Crimes Act 1900 (NSW), Crimes Act 1958 (Vic), Criminal Law Consolidation Act 1935 (SA), Criminal Code Act 1899 (Qld), Criminal Code (WA), Criminal Code Act 1924 (Tas), Criminal Code 2002 (ACT) and Criminal Code Act 1983 (NT); and (b) promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by Diolog in connection with the performance of the Agreement.
10.2 Modern Slavery Laws. In performing its obligations under the Agreement, Diolog will (a) comply with all applicable modern slavery laws from time to time in force in Australia including the Modern Slavery Act 2018 (NSW) and the Modern Slavery Act 2018 (Cth); and (b) have and maintain throughout the Agreement Term its own policies and procedures designed to ensure compliance with this clause.
10.3 Securities Laws.
10.3.1 Inside information. Each party acknowledges and agrees that: (a) the Customer Releases, and some or all of the other Customer Confidential Information, may be information that: (i) is not generally available; and (ii) if it were generally available, a reasonable person would expect to have a material effect in the price or value of the Customer’s shares or other securities; and (b) the insider trading provisions or market abuse provisions of the Corporations Act 2001 (Cth) or other relevant securities laws may restrict or prohibit use of such information.
10.3.2 Compliance with securities laws. In performing its obligations under the Agreement, each party will: (a) comply with, and will procure that its personnel comply with, the insider trading provisions and market abuse provisions of the Corporations Act 2001 (Cth) and any other relevant securities laws; and (b) maintain and enforce its own policies and procedures designed to ensure compliance with such laws.
10.3.3 Other Compliance. Without limiting any other clause, the Customer must ensure that when using the Diolog Software, including creating and publishing Customer Releases, it complies with the Corporations Act 2001 (Cth) and related laws and, where the customer is listed on the ASX, with the ASX listing rules.
11.1 By Diolog. Diolog will indemnify Customer, its Affiliates and their Authorised Users, employees, directors, agents, and representatives (Customer Indemnified Parties) from, and defend them against, any Infringement Claim, except that Diolog will not be responsible for alleged infringement that is due to the combination of Diolog Services with goods or services provided by third parties, or use of the Diolog Services contrary to the terms of this Agreement, or any Open Source or other third-party materials.
11.2 Infringement Remedy. If Customer is prohibited from using any of the Diolog Services because of an Infringement Claim covered by Diolog’s indemnification obligations under clause 11.1, then Diolog will, at its sole expense and option, either: (a) obtain for Customer the right to use the allegedly infringing portions of the Diolog Services; (b) modify the allegedly infringing portions of the Diolog Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Diolog Services with non-infringing items of substantially similar functionality. If Diolog determines that none of these remedies is commercially reasonable, then either party may terminate this Agreement, and in such case, Diolog will provide a prorated refund to Customer for any prepaid fees received by Diolog under this Agreement that corresponds to the unused portion of the Agreement Term. The remedy set out in this clause 11.2 is Customer’s sole and exclusive remedy for any Infringement Claim.
11.3 By Customer. Customer will indemnify Diolog, its Affiliates and their employees, directors, agents, and representatives (Diolog Indemnified Parties) from, and defend them against, any claim by a third party (not being an Affiliate of Diolog) including any Investor User, arising from or related to: (a) use of the Diolog Services by Customer or its Customer Users in violation of this Agreement, the Documentation, or applicable law; (b) the nature or content of Customer Data or Customer Releases published on the Diolog Software, or (c) the use by a Diolog Indemnified Person of Customer Data (including Customer PI) as authorised by the Customer under this Agreement.
11.4 Indemnity coverage. In respect of any claim to which clause 11.1 or 11.3 applies, the indemnifying party will indemnify the Customer Indemnified Parties or Diolog Indemnified Parties (as the case may be) against: (a) all damages, costs, and legal fees finally awarded with respect to the claim; (b) all out-of-pocket costs (including reasonable legal fees) reasonably incurred in the defence of the claim (other than legal fees and costs incurred without the indemnifying party’s consent after it has accepted defence of such claim); and (c) all amounts the indemnifying party agrees to pay to any third party in settlement of the claim.
11.5 Procedures. The Parties’ respective indemnification obligations above are conditioned on: (a) the indemnified party giving the indemnifying party prompt written notice of the claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the indemnifying party is prejudiced by the delay or failure; (b) the indemnifying party being given full and complete control over the defence and settlement of the claim (as long as the settlement does not include any payment of any amounts by or any admissions of liability, whether civil or criminal, on the part of any of the indemnified parties); (c) the relevant indemnified parties providing assistance in connection with the defence and settlement of the claim, as the indemnifying party may reasonably request; and (d) the indemnified parties’ compliance with any settlement or court order made in connection with the claim.
12.1 Indirect Losses. Subject to clause 12.4, to the fullest extent allowed by law, each party excludes all liability for any loss of product, loss of data, loss of revenue, loss of profit, loss of or damage to reputation, loss of anticipated savings or benefits, or any indirect, special or punitive loss, damage, cost or expense or other claims for consequential compensation however arising under or in connection with this Agreement or the performance or non-performance of this Agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity.
12.2 Ordinary Cap. Subject to clauses 12.1, 12.3 and 12.4 and to the maximum extent permitted by law, a party’s aggregate liability for any and all claims, losses or damages arising out of or in connection with the performance or non-performance of each Agreement, whether based on contract, warranty, tort (including negligence), statute or otherwise, is capped at the amounts paid by Customer to Diolog under the Agreement during the Subscription Period in which the events giving rise to the claim occurred. This cap applies in the aggregate to all claims made relating to events in the same Subscription Period.
12.3 Super Caps. Subject to clause 12.4 and to the maximum extent permitted by law, a party’s aggregate liability under all Agreements for any and all claims, losses or damages arising out of or in connection with: (a) any breach of clause 7.2 (Privacy); and (b) in the case of Diolog, any liability arising under clause 7.3 (including any breach of security or data loss to the extent such liability is the responsibility of Diolog), is capped at an amount equal to three (3) times the amount paid by the Customer to Diolog for the affected Diolog Services.
12.4 Exceptions. No provision of this Agreement limits the liability of a party for: (a) interest due by any party for late payments; (b) personal injury or tangible property damage caused by negligence; (c) losses caused by fraud or fraudulent misrepresentation; (d) any breach of clause 13 (Confidentiality) except to the extent that such breach is also a breach of clause 7.2 (Privacy), in which case the limitation in clause 12.3 will apply; (e) in the case of Customer, payment of Fees or any breach of clause 3. Each party’s obligation to indemnify under clause 10 is limited by clause 12.1 and clause 12.5, but is not capped under clauses 12.2 or 12.3.
12.5 Contribution. Each party’s liability shall be reduced proportionately to the extent that the other party’s acts or omissions causes or contributes to, directly or indirectly, the loss or damage for which the first party is liable.
12.6 External factors. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement (except an obligation to pay money) if such delay or failure results from events, circumstances or causes including strikes, lock-outs or other industrial disputes (whether involving the workforce of Diolog or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, pandemic or public health crisis, fire, flood, storm, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, accident, or breakdown of plant or machinery, or any other events whether similar or not, which are beyond the party’s reasonable control and could not reasonably be overcome through the application of reasonable diligence and the deployment of industry standard business continuity or disaster recovery measures. In such circumstances the affected party is entitled to a reasonable extension of time for performing its obligations, provided that if the delay or non-performance continues for three months, the party not affected may terminate this Agreement by giving one month’s notice to the other party. If the Customer terminates under this clause it will receive a pro-rata refund of pre-paid Fees.
13.1 Obligations. Where one party (Recipient) has access to Confidential Information of the other party (Discloser), Recipient must (during and after the Agreement Term):
13.1.1 hold the Discloser’s Confidential Information in strict confidence, and apply at least the standard of care used by the Recipient in protecting its own Confidential Information, but not less than a reasonable standard of care;
13.1.2 not disclose such Confidential Information to any third party, except as permitted under this Agreement;
13.1.3 not use any Confidential Information of the Discloser except as reasonably required to exercise its rights or perform its obligations under this Agreement;
13.1.4 immediately notify Discloser of any potential, suspected or actual unauthorised use, copying or disclosure of its Confidential Information; and
13.1.5 cause its employees, subcontractors, agents and Affiliates to comply with these obligations.
13.2 Permitted use. Notwithstanding clause 13.1, Recipient may use or disclose the Confidential Information to the extent necessary to comply with any law or the requirements of a regulatory body (including a stock exchange), or to obtain professional legal or accounting advice, or for use in legal proceedings regarding the Agreement.
13.3 Exceptions. Clause 13.1 does not apply to Confidential Information which Recipient can prove by written evidence: (a) is in or becomes part of the public domain other than through breach of an obligation of confidence; (b) was known to Recipient at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence; (c) was independently developed by Recipient; or (d) is acquired from a third party who was entitled to disclose it.
13.4 Publicity. Neither party shall refer to the identity of the other party in promotional material, publications, or press releases or other forms of publicity relating to the Diolog Services unless the prior written consent of the other party has been obtained, provided, however, that Diolog may use Customer’s name and logo for the limited purpose of identifying Customer as a customer of the Diolog Services.
14.1 Trial Period. During the Trial Period the Customer may use the Diolog Software, and Diolog will provide the Diolog Support, for no Fees. During the Trial Period the Customer can choose not to continue with the subscription, by notifying Diolog (via email or its Account settings) before the end of the Trial Period; or the Customer can renew for the Subscription Period, by signing or accepting an Order Form provided by Diolog. If the Customer does not accept an Order Form, then the Agreement, and Customer’s right to use the Diolog Software, terminates at the end of the Trial Period.
14.2 Auto Renew. Unless the Order Form specifies otherwise, at the first renewal of the Subscription Period (and at each anniversary) the Subscription Period will automatically renew for successive one-year terms, following this process:
14.2.1 At least 60 days before the renewal date, Diolog will notify the Customer (via email or the Customer’s Account) of the renewal date, and any change in the Fees for the next year;
14.2.2 The Customer may choose not to renew, by notifying Diolog (via email or the Customer’s Account) at least one month before the renewal date;
14.2.3 If the Customer does not give notice in this time, the term renews for another year at the Fees notified by Diolog; and
14.2.4 The process repeats each year.
14.3 Terminate for convenience. The Customer can cancel its Account and terminate this Agreement at any time by giving Diolog one month’s notice; however the Customer will not receive a refund of any pre-paid Fees. Diolog can terminate this Agreement if it stops providing the Diolog Services generally, by giving the Customer three months’ notice; in which case the Customer will receive a refund of any pre-paid Fees.
14.4 Breach or Insolvency. Either party may terminate this Agreement if the other party: (a) commits a material breach of this Agreement and does not remedy the breach within 14 days of written notice; (b) breaches any term of this Agreement which cannot be remedied (including a material breach of confidentiality or Intellectual Property Rights); or (c) becomes subject to an event of insolvency (including having an administrator, receiver or liquidator appointed or making an assignment for the benefit of creditors, or being unable to pay its debts as they fall due).
14.5 Post-Termination Obligations. When this Agreement is terminated: (a) Customer will pay to Diolog any amounts that have accrued before, and remain unpaid as of, the termination date; (b) any liabilities of either party that have accrued before the termination date will survive; (c) Customer’s right to use the Diolog Services terminates; (d) Diolog’s obligation to provide any further services will terminate, except any services that are expressly agreed to be provided following termination; and (e) the Parties’ rights and obligations under clauses 6, 7.6, 8.6, 11, 12, 13, 14 and 15 will survive.
15.1 Independent Contractors. The parties are independent contractors, not employees, agents, partners or representatives of each other. Each party may not create or assume any obligation or liability on behalf of the other party.
15.2 Assignment. Each party may only assign its rights or obligations under the Agreement with the other party’s prior written consent.
15.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party represents and warrants that in entering into the Agreement it is not relying on any statement, representation, assurance or warranty given or made by the other party, except as expressly set out in the Agreement. This Agreement will prevail over terms and conditions of any Customer-issued purchase order or other ordering documents, which will have no force and effect, even if Diolog accepts or does not otherwise reject the document.
15.4 Construction. In interpreting this Agreement, no presumption shall be made against the party that drafted the term. The singular includes the plural and vice versa. Words like including, for example, such as or similar expressions are to be interpreted as meaning including, without limitation. Headings are for convenience only and do not affect the interpretation of this contract.
15.5 Severability. If a clause or part of a clause of this Agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of this document is not affected.
15.6 Variation & Waiver. No variation of this Agreement will be of any force or effect unless it is in writing and signed by the parties to it. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement, does not amount to a waiver of any obligation of, or breach of obligation by, another party. A waiver by a party is only effective if it is in writing.
15.7 Governing law. This Agreement is governed by the laws of New South Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales in respect of any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it.
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