These terms and conditions in this Agreement apply between SuccessCX Pty Ltd (ACN 621 183 640) (we, us, or our) and you (you or your), together the Parties and each a Party, in respect to your use of the Application. 

1. Interpretation

In this Agreement, unless the context otherwise requires:(a) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;(c) a reference to a person includes a natural person, body corporate, partnership, joint venture, association, government or statutory body; and(d) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, and permitted assigns.

2. Acceptance

You accept this Agreement by accessing the Application or signing a statement of work.  If You are entering into this Agreement on behalf of a company, organization, or another legal entity (an Entity), You are agreeing to this Agreement for that Entity and representing to SuccessCX that You have the authority to bind such Entity and its affiliates to this Agreement, in which case the terms, you or your, herein refers to such Entity.

3. SuccessCX Support App

3.1 SuccessCX will make the Application available to you on an “as-is” and “as-available” basis.  SuccessCX does not warrant that it will be uninterrupted, error-free or fit for any particular purpose. 

3.2 SuccessCX will use commercially reasonable efforts to correct material malfunctions within a reasonable time after becoming aware of them.

3.3 SuccessCX offers the application in conjunction with Adelante.  Adelante may need to access the Application including Your Zendesk instance in order to make the Application available to you and for routine updates and maintenance.  SuccessCX does not accept any liability in respect of Adelante. 

3.4 You are responsible for uninstalling the Application if You no longer wish to use it.

4. Your Responsibilities

4.1 You are solely responsible for backing up all data, files and content that you input to, store in, or generate through the Application.

4.2 To the maximum extent permitted by law, we are not liable for any loss, corruption or unauthorised disclosure of data arising from your use of the Application, system outages or third-party actions.

4.3 You must not (i) de-compile, disassemble, reverse-engineer or otherwise attempt to derive the Application’s source code; (ii) interfere with security-related features; or (iii) use the Application in a manner that is unlawful, infringes third-party rights, or could damage, disable, overburden or impair our systems. 

5. Third Party Services & Payment

5.1 The Application may display advertisements for, or enable you to purchase, products or services offered by third parties. SuccessCX is not responsible for those products, services or the acts or omissions of any third party.

5.2 SuccessCX may receive referral, affiliate or other fees in connection with such third-party offerings.

5.3 If you make payments through any third-party payment provider integrated with the Application, you agree to comply with that provider’s terms and conditions. SuccessCX is not a party to, and are not liable under, those terms.

6. Warranties and Representations

6.1 Each Party represents, warrants and agrees that:(a) it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business;(b) that this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms;(c) if applicable, it holds a valid ABN which has been advised to the other Party; and(d) if applicable, it is registered for GST purposes.

6.2 You represent, warrant and agree:(a) to comply with this Agreement and all applicable Laws;

(b) that you must not use, and you must ensure that no person uses, any part of the Application:(1) to break any Law or infringe any person’s rights (including Intellectual Property Rights);(2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or(3) in any way that damages, interferes with, or interrupts the supply of, the Application; andthat you do not enter this Agreement as a trustee of a trust.

7. Intellectual Property

7.1 As between the Parties:(a) we own all Intellectual Property Rights in Our Materials;(b) you own all Intellectual Property Rights in Your Materials; and(c) nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
 

7.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials and Feedback will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.
 

7.3 We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you and the New Materials, solely for your use and enjoyment of the Application, as contemplated by this Agreement.
 

7.4 You grant us a non-exclusive, irrevocable, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non-transferable right and licence, to use Your Materials that you provide to us solely for the purpose of performing of our obligations or exercising our rights under this Agreement.
 

7.5 If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.
 

7.6 As between the Parties, you acknowledge and agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.
 

7.7 This clause 7 will survive termination or expiry of this Agreement.

8. Your Data

8.1 As between the Parties:(a) Your Data is and will remain your property; and(b) you retain any and all rights, title and interest in and to Your Data, including all copies, modifications, extensions and derivative works.
 

8.2 You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data during the Term (and for a reasonable period after the Term), to:(a) make the Application available to you (including to enable you and your Personnel to access and use the Application), and otherwise perform our obligations under this Agreement;(b) diagnose problems with the Application;(c) enhance and otherwise modify the Application;(d) perform Analytics;(e) develop other services, provided we de-identify Your Data; and(f) as reasonably required to perform our obligations under this Agreement.
 

8.3 You agree that: 

(a) You will maintain a secure Computing Environment (including by ensuring that agent credentials for your Personnel are protected by passwords, subject to MFA and that such details are kept secure (for example, by using a secure password manager / or other secure encrypted solution)); 

(b) Agent seat licences are not shared by more than one user. 

8.4 You acknowledge and agree that:(a) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, or your Personnel; (b) we assume no responsibility or Liability for Your Data. You are solely responsible for Your Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to backup Your Data; 

(c) we are not liable For any breach of Your Computing Environment or loss of data, personal, sensitive or confidential information from Your Computing Environment, save to the extent caused by our gross negligence. 
 

8.5 You represent, warrant, acknowledge and agree that:(a) you have obtained all necessary rights, releases and permissions to provide or have Your Data provided to us and to grant the rights granted to us in this Agreement;(b) Your Data (and its transfer to and/or use, collection, storage or disclosure by us as contemplated by this Agreement) does not and will not violate any Laws (including those relating to export control and electronic communications) or the rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and(c) the operation of the Application is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Application.

8.6 This clause 8 will survive termination or expiry of this Agreement.

9. Analytics

9.1 You acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Application, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:(a) does not contain any identifying information; and(b) is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.
 

9.2 We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
 

9.3 We may use and disclose anonymous data about your access and use of the Application for the purpose of helping us improve the Application. Any such disclosure will not include details of your or your Personnel’s identity or personal information.

10. Confidential Information

10.1 Each Receiving Party agrees:(a) not to disclose the Confidential Information of the Disclosing Party to any third party (subject to subclause 10.1(c);(b) to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure;(c) to only disclose the Confidential Information to those of its Personnel who need to know the Confidential Information in connection with this Agreement, provided those persons keep the Confidential Information confidential in accordance with this clause 10; and(d) to only use the Confidential Information of the Disclosing Party for the purpose of performing obligations, or exercising rights or remedies, under this Agreement.
 

10.2 The obligations in clause 10.1 do not apply to Confidential Information that:(a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;(b) is authorised in writing to be disclosed by the Disclosing Party;(c) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement or other duty of confidence; or(d) must be disclosed by Law or by a regulatory authority, including under subpoena, provided that (to the extent permitted by Law) the Receiving Party has given the Disclosing Party notice prior to disclosure.
 

10.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 10. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 10.
 

10.4 This clause 10 will survive the termination of this Agreement.

11. Australian Consumer Law

11.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Application by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at law, nothing in this Agreement excludes those Consumer Law Rights.
 

11.2 Subject to your Consumer Law Rights, we exclude all warranties, and all material, work and services (including the Application) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
 

11.3 This clause 11 will survive the termination or expiry of this Agreement.

12. Limitations on liability

12.1 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by law:(a) neither Party will be liable for Consequential Loss;(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and(c) (in respect of any failure by us to comply with relevant Consumer Law Rights) our Liability is limited (at our discretion) to supplying the Application again or paying the cost of having the Application supplied again; and(d) the aggregate liability for any Liability arising from or in connection with this Agreement of either Party will be limited to the amount of $100.

12.2 Where either party instructs (the Instructing Party) the other party (the Instructed Party) to liaise with a third party on behalf of the Instructing Party then the Instructing Party releases the Instructed Party from any liability that may arise related to the actions or omissions of the third party, other than where such liability is directly caused by the Instructed Party's fraud, gross negligence or wilful misconduct. The Instructed Party agrees to provide all reasonable assistance to the Instructing Party in any litigation between the Instructing Party and the third party.
 

12.3 This clause 12 will survive the termination or expiry of this Agreement.

13. Term and Termination

13.1 SuccessCX may cease making the Application available and / or terminate this Agreement: 

(a) upon 30 days notice; or

(b) in the event that you breach its terms, immediately upon notice to you. 

13.2 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
 

13.3 This clause 13 will survive the termination or expiry of this Agreement.

14. GST

14.1 If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
 

14.2 If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
 

14.3 If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
 

14.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

15. General

15.1 Publicity: You agree that we may advertise or publicise the broad nature of our supply of the Application to you, including on our website or in our promotional material.
 

15.2 Privacy: Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
 

15.3 Amendment: This Agreement may be amended by SuccessCX providing 30 days written notice to you. 
 

15.4 Assignment: SuccessCX  may assign its rights under this Agreement upon written notice to you. 

15.5 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
 

15.6 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
 

15.7 Electronic Execution: This Agreement may be executed using an Electronic Signature. The Parties acknowledge and agree that if a Party executes this Agreement using an Electronic Signature, then the Party is taken to have entered into this Agreement in electronic form and the Electronic Signature is deemed to be an original execution of the Agreement by the Party. “Electronic Signature” means an electronic method of signing that identifies the person and indicates their intention to sign this Agreement which may include software programs such as DocuSign.
 

15.8 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 15.8. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute. If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
 

15.9 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
 

15.10 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:(a) as soon as reasonably practical, notifies the other party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and(b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.Where the Force Majeure Event prevents a Party from performing a material obligation under this agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
 

15.11 Subcontracting: We may subcontract the provision of any part of the Application or related services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.
 

15.12 Governing law: This Agreement is governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
 

15.13 Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
 

15.14 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
 

15.15 Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing and will be effective only to the extent specifically stated.
 

15.16 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

16. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the following meaning:ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Adelante means Adelante Ltd of Rotschild 3, Tel Aviv, Israel.

Agreement means these terms and conditions.Application means the SuccessCX Support Application.

Business Day means a day on which banks are open for general banking business in Victoria, excluding Saturdays, Sundays and public holidays.Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and systems.Confidential Information means information which:(a) is disclosed to the Receiving Party in connection with this Agreement at any time;(b) relates to the Disclosing Party’s business, assets or affairs; or(c) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise:(a) any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into this Agreement as the probable results of the relevant breach, act or omission; and/or(b) without limiting subclause (a), any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data.Consumer Law Rights has the meaning given in clause 11.1.Disclosing Party means the Party disclosing Confidential Information to the Receiving Party.Dispute has the meaning given in clause 15.8.Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel or your customers, whether made verbally, in writing, directly or indirectly, in connection with the Application.Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Application.Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.MFA means multi-factor authentication.Moral Rights has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the supply of the Application, whether before or after the date of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials.Our Materials means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property.Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.Receiving Party means the Party receiving Confidential Information from or on behalf of the Disclosing Party.Term means the period beginning on the date you install the Application to the date you cease using the Application. Your Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data provided by you or your Personnel or stored by or generated by your use of the Application, including any personal information collected, used, disclosed, stored or otherwise handled in connection with this Agreement. Your Data does not include the Analytics, or any data or information that is generated as a result of your usage of the Application that is a back-end or internal output or an output otherwise generally not available to users of the Application.Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the commencement of this Agreement (which is not connected to this Agreement) and/or developed by or on behalf of you or your Personnel independently of this Agreement and any improvements, modifications or enhancements of such Intellectual Property.