Cloud Ops Terms and Conditions

  1. Agreed Terms & Interpretation

    This Agreement includes capitalised terms and phrases which are defined in one of the documents that form part of the Agreement.
    Unless the context requires otherwise each capitalised term or phrase shall have the same meaning in each of the document that form the Agreement.

    Acceptable Use Policy means Anchor’s policy for access to the Network and the Hosted Environment that applies equally to all of Anchor’s customers for the Services,
    as is available on the Website.

    Additional Service means any service described in the Proposal as an Additional Service, and any service provided under clause 2.8.

    Agreement means the documents set out in clause 2.1 of this Proposal.

    Anchor Tools means scripts, programs and VPN connections that Anchor requires to be installed and operate on the Hosted Environment in order to facilitate the performance of the Services,
    including facilitating remote access and monitoring, job scheduling, build and deployment scripts.

    Application Stack means the software and tools set out in the Proposal under the heading “AWS Hosted Environment” and sub-heading “Application Stack”,
    including (if stated under that sub-heading) the database software.

    Approved Card means any Visa, MasterCard, debit card, charge card or other payment mechanism that is supported by Anchor from time to time as an acceptable payment method.

    Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).

    AWS means Amazon Web Services, Inc., or any of its Related Bodies Corporate.

    AWS Customer License Terms means the document identified by AWS as AWS Customer License Terms (including all the documents referred to in it, as may be amended from time to time)
    which is a separate agreement between Customer and Amazon Web Services, Inc., a current version of which is located here:

    https://s3-us-west-2.amazonaws.com/legal-reseller/AWS+Reseller+Customer+License+Terms.pdf

    AWS Hosted Environment means the server and/or processing capacity (whether using shared, virtual, cloud or dedicated servers), storage systems, Application Stack, operating system, web server,
    email server or database server or other equipment provided as part of the Managed Services, as set out in the Proposal. The AWS Hosted Environment excludes any Customer Application,
    the Network and any network (including the internet) that connects to the Network

    AWS Partner Agreement means the agreement between Anchor and Amazon Web Services, Inc., under which Anchor is appointed an authorised partner for AWS Services,
    as may be amended from time to time in accordance with its terms.

    Business Day means any week day excluding a public holiday in Sydney.

    Business Hours means 0830 to 1730 on any Business Day in Sydney.

    Caretaker Service means Services described in the table in the Proposal under the heading “Service Inclusions” under the sub-heading Caretaker.

    Change in Law
    means any present or future law, regulation, treaty, order or official directive or request (which, if not having the force of law, would be complied with by a responsible provider).

    Change Request means the process by which Parties discuss and may agree a variation to the Services or the Agreement, as set out in the Proposal.

    Cloud Ops Services means the Services described in the table in the Proposal under the heading “Service Inclusions” under the sub-heading Cloud Ops Lite, Cloud Ops and Cloud Ops Premium.

    Confidential Information means any non-trivial information however recorded, preserved, disclosed or communicated (whether directly, indirectly, orally or by writing),
    disclosed by either Party or its Representatives to the other Party or its Representatives in connection with this Agreement that,
    if disclosed in writing is marked as “Confidential” or “Proprietary,” or, if disclosed orally is identified as “Confidential” or “Proprietary” at the time of disclosure and is specifically
    identified as confidential in a written document provided by Discloser to Recipient within 20 Business Days after the oral disclosure, or which is, or ought to have been, understood by the Parties,
    using reasonable business judgment, to be confidential. For clarity, Anchor’s Confidential Information includes this Agreement, including the Fees, the Services and Deliverables, the Anchor Tools,
    the Operations Guide, any Anchor Intellectual Property Rights and Pre-existing IP, any trade secrets, methodology and knowhow, or other Intellectual Property Rights provided to Customer by Anchor.

    Consequential Loss means:

    1. loss of revenues;
    2. loss of reputation or goodwill;
    3. consequential loss;
    4. any pure economic loss;
    5. loss of profits;
    6. indirect loss;
    7. loss of bargain;
    8. loss of actual or anticipated savings;
    9. lost opportunities, including opportunities to enter into arrangements with third parties;
    10. or loss or corruption of data.

    Customer (you, your) means the person set out in this Proposal as the Customer.

    Customer Application means the Customer’s software application that is to be hosted on the AWS Hosted Environment, the details of which are set out in the Proposal.

    Customer Data
    means any application, information of any kind (including information whether generated by humans or computers that is only in machine readable form, whether permanent or temporary)
    including all content, software and data in any form, including software, applets, servlets, scripts, HTML files, materials, code, information, data, text (whether or not perceptible by users),
    metatags, multimedia information (including sound, music, data, audio, video, graphics, photographs, or artwork), customer domain name(s), e-mail, chat room content, bulletin board postings, that
    is either:

    1. loaded into the software on any AWS Hosted Environment or other environment that is being managed by Anchor under this Agreement, by any person other than Anchor or its contractors;
    2. is processed by any AWS Hosted Environment or other environment that is being managed by Anchor under this Agreement, except for any application, data or information that is Anchor Tools or
      is machine generated by the AWS Hosted Environment.

    Customer Readiness Tests means the tests and checklists that Anchor makes available to Customer to validate the readiness of the Customer Applications, to deploy Customer Applications
    into a live production environment.

    Customer Representative means the person Customer nominates to be authorised to act on behalf of Customer to manage Customer account, including ordering of Additional (or varying the amount of)
    Services, including any options, and starting and terminating any Service.

    Data Centre
    means the AWS controlled premises where the AWS Hosted Environment is located, and includes the building, power, power back up, cooling, fire prevention equipment, core network, racks,
    cabinets and the fixtures at the Data Centre. The term Data Centre specifically excludes the AWS Hosted Environment and the Network.

    Deliverable
    means any output from the Services that is specifically identified as a “Deliverable” in the Proposal. The term Deliverable expressly excludes (i) the Operations Guide, (ii) any configuration of,
    or related information in respect of, the AWS Hosted Environment or (iii) any Open Source Code, even if physically delivered or otherwise provided to Customer by Anchor.

    Discloser means the Party that makes a disclosure of Confidential Information.

    Effective Date means the date when both Parties have signed the Proposal.

    Emergency
    means any event or circumstance which in the reasonable opinion of Anchor (or AWS) endangers or threatens to endanger the safety or health of any person or destroys or damages or
    threatens to destroy or damage any part of the AWS Hosted Environment, Network or the Data Centre.

    Fee means the amounts payable for each of the Services, exclusive of all Taxes, as set out in the Proposal.

    Force Majeure Event includes:

    1. any consequence of a virus, Trojan horse or any malicious code, denial of service attack or other malicious activity;
    2. an Emergency;
    3. a physical natural disaster including fire, flood lightning or earthquake;
    4. a war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or
      declaration of martial law;
    5. an epidemic or quarantine restriction;
    6. any ionizing radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;
    7. any confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency;
    8. any legally binding requirement placed on Anchor, its Related Bodies Corporate or their respective contractors by a government, regulator or other authority;
    9. any law taking effect after the date of this Agreement;
    10. any strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a Party or the Party’s contractors;
    11. if you have not required Anchor to provide a high availability configuration of the Hosted Environment with at least 2 Availability Zones, damage to any part of the
      AWS Hosted Environment, Network or the Data Centre caused by any event out of Anchor’s control;
    12. unauthorised or illegal access by any person to any part of the AWS Hosted Environment, Network or the Data Centre;
    13. or any circumstance beyond the reasonable control of a Party (other than the inability to pay).

    GST means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

    Insolvency Event in the context of a Party means:

    .

    1. a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act 2001 (Cth)), trustee or controlling
      trustee or similar official is appointed over any of the property or undertaking of the person;
    2. the person or the person’s property or undertaking becomes subject to a personal insolvency arrangement under Part X Bankruptcy Act 1966 (Cth) or a debt agreement under
      Part IX Bankruptcy Act 1966 (Cth);
    3. the person is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act or is presumed to be
      insolvent under the Corporations Act;
    4. the person ceases to, or threatens to cease to, carry on business; or
    5. an application or order is made for the liquidation of the person or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the person,
      otherwise than for the purpose of an amalgamation or reconstruction.

    Intellectual Property Rights
    includes copyright, trade mark, service mark, patent, design, semiconductor, circuit layout rights, database rights or other rights in the nature of intellectual
    property rights (whether registered or unregistered), any right to registration of such rights, or any similar rights protected by statute, from time to time existing in Australia or
    elsewhere, including the right to keep Confidential Information confidential.

    Managed Service means:

    1. the level of Cloud Ops Services (Cloud Ops Lite, Cloud Ops or Cloud Ops Premium) selected by you in the Proposal and
      described in the section in the Proposal under the heading “Managed Services”; or
    2. Caretaker Services, if selected by you in the Proposal and described in the section in the Proposal under the heading “Managed Services”;
    3. Caretaker Services, if selected by you in the Proposal and described in the section in the Proposal under the heading “Managed Services”;
    4. any other services described in the Proposal as Managed Services.

    For clarity, Managed Services does not include the supply of any AWS Hosted Environment, Application Stack, Network, Data Centre or any other good or service that is provided under your
    AWS Customer License Terms with AWS.

    Minimum Service Period means:

    1. in relation to a Cloud Ops Service (Cloud Ops or Cloud Ops Premium): the minimum period for which Customer may acquire the particular Cloud Ops Service, which is 12 months
      from the Production Date, unless stated otherwise in the Proposal;
    2. in relation to a Reserved Instance: the minimum period for which Customer may acquire a particular Reserved Instance, which is determined by AWS.

    Network
    means the telecommunications network comprised of equipment, wiring and circuits within and between the upstream provider’s network backbone nodes (points of presence) and the servers in the
    AWS Hosted Environment. The term Network does not include any:

    1. circuits to a backbone node, Customer premises or any network or equipment not owned or controlled by Anchor; or
    2. third party networks or equipment not owned or maintained by Anchor, including connections to peer networks and the internet.

    New Release
    means a major update to a software program (including an operating system on the AWS Hosted Environment or any part of the Application Stack) that is supplied by the
    software provider primarily to provide new or enhanced features or benefits to its software program, but may also correct deficiencies or security issues.
    New Release includes any update (even if it is a ‘minor’ update) to a software program that cannot be installed remotely in less than 60 minutes.

    Open Source Code means any software code that is licensed under a license that is generally accepted to be an open source license, including GPL.

    Operations Guide
    means Anchor’s run book or manual that sets out the processes and procedures for performing the Services and working with Customer.
    The Operations Guide may be in hard or electronic copy format and may include information posted on a wiki. The Operations Guide is Anchor’s Intellectual Property and Confidential Information.

    Party means each of Anchor and Customer.

    Patch
    means a minor update to a software program (including an operating system on the Hosted Environment or any part of the Application Stack) that is supplied by the software provider to correct
    deficiencies or security issues in its software program. Patch does not include any New Release, new version or any update to a software program that cannot be installed remotely in less than
    60 minutes.

    Personal Information means any information or data that is subject to any Privacy Law.

    PPSA means the Personal Property Securities Act 2009 (Cth).

    Pre-existing IP means any Intellectual Property Rights that existed prior to the date when the Proposal is signed or that are developed independently of this Agreement.

    Privacy Law
    means any law, regulation or common law which governs the use of information that is about, identifies or can be used to identify, any identifiable individual, or which is generally
    understood in the relevant jurisdiction to protect an individual’s privacy and/or to govern the collection, use, disclosure or transmission of Personal Information or data.

    Privacy Policy means the document that sets out how Anchor deals with Personal Information and which is available from the Website.

    Production Date means that date when Anchor advises Customer that the Managed Service is ready to be accessed and used by Customer, as described in the Proposal.

    Professional Services
    includes services that are described in the Proposal as Professional Services and may include set up, installation, data migration, advice or other consulting services that are provided by Anchor.

    Proposal
    means the document to which these Terms and Conditions are attached and which includes the details of the Deliverables, Services, the purpose and required outcomes (if any)
    of the Service, Fee, Taxes and other details relating to transaction under this Agreement.

    Recipient means the Party that receives a disclosure of Confidential Information.

    Related Body Corporate has the meaning given to it by the Corporations Act 2001.

    Representatives
    means the employees, agents, contractors of a Party, or those of any Related Body Corporate, and the professional representatives of a Party providing advice in relation to this
    Agreement, including the lawyers, bankers, auditors, accountants and insurers of a Party.

    Scheduled Maintenance
    means the routine maintenance for any part of the AWS Hosted Environment, Network or the Data Centre that is recommended by the manufacturer or supplier of
    that item that is designed to be undertaken at regular intervals to prevent failures or defects, and includes implementing Updates or Patches of any software and any engineering changes to hardware.

    Security Policy means the document that sets out the security arrangements for certain Services and which is available from the Website.

    Service includes the provision of Anchor’s:

    1. Transition In Services;
    2. Caretaker Services;
    3. Cloud Ops Service, including Disengagement Services;
    4. Professional Services.

    Service Credit means the pre-agreed recourse that may be available to Customer if there is a failure to meet a Service Level as described in the Proposal.

    Service Description which is provided to Customer as part of the Proposal (a copy of which may also be obtained from Anchor on request).

    Service Level means a standard that is specified for a particular Service in the Proposal.

    Service Period means the period during which the Managed Services will be provided and is calculated in accordance with clauses 2.5 and 2.6.

    Taxes
    includes any GST, sales taxes, duties, withholding taxes, levies, tariffs, imposts or other charges levied by any federal, state or local government in Australia or elsewhere,
    that arise out of or in connection with any Deliverable, the Services or the Agreement, and any interest, penalties or liabilities incurred on such amounts, but excludes taxes
    based on the net income of Anchor.

    Time and Materials Rates means the rates (exclusive of Taxes), as set out in the relevant section of the Proposal.

    Third Party Provider
    means any provider of (a) any part of the AWS Hosted Environments (including AWS); (b) any services related to the AWS Hosted Environments; or (c) hardware, operating system, other software or
    technology that is connected to, or operates with, the AWS Hosted Environments.

    Transition In Period means the period during which the Transition In Services are provided (up to and including the Production Date), as set out in the Proposal.

    Transition In Services means the services (if any) that are provided to facilitate a smooth transition to the Managed Services, as set out in the Proposal.

    Website means Anchor’s website, currently at www.anchor.com.au.

    1. The words “includes”, “including”, “for example” and “e.g.” are not words of limitation.
    2. Headings are for convenience only and do not affect interpretation.
  2. Formation of Contract

    1. The Agreement in respect of any Service comprises the following documents and information:

      1. the Proposal or other document signed (including by electronic signature and online) by the Parties setting out the details of the transaction;
      2. clauses 1 to 19 of these Terms and Conditions;
      3. the Acceptable Use Policy;
      4. the Privacy Policy;
      5. the Security Policy,

      as amended from time to time in accordance with the Agreement.

    2. If there is any inconsistency between the documents in clause 2.1 then to the extent of that inconsistency, the item that is higher in the list above shall prevail.
    3. If the Service includes any open source software that open source software is subject to the terms of its open source license.
      Service Period
    4. The Agreement is binding on the Parties from the Effective Date. Anchor will use its best efforts to perform any Transition In Services during the Transition In Period.
    5. The Service Period for:

      1. Caretaker Services commence on the Production Date, and continues for a month;
      2. any Cloud Ops Service for which the Service Period set out in the Proposal is one month (e.g. CloudOps Lite) commences on the Production Date and continues for a month;
      3. any Cloud Ops Service for which the Service Period set out in the Proposal states a Minimum Service Period, the Service Period commences on the Production Date and continues
        for the Minimum Service Period. (Note: The Service Period for Reserved Instances ends of the last day of the Service Period for that Reserved Instance as defined by
        AWS and the Customer must ensure that it acquires Cloud Ops Services for the period during which the Service Period for any Reserved Instances is running);
      4. Professional Services is from the date the Professional Services commences until the last day of the performance of the Professional Service.
    6. The Service Period for a Service is renewed as follows:

      1. for Caretaker Services and Cloud Ops Lite Services: where the Managed Services are provided on a month to month basis,
        then unless either party has provided the other with 30 days written notice to terminate the Agreement, the Managed Services are automatically renewed on Anchor’s then current Fees,
        Service Descriptions and Terms and Conditions as applicable on the first day of each month. Anchor will provide notice (including by posting them on the Website)
        of any changes to the Fees, Services Descriptions or Terms and Conditions as they change from time to time.
      2. for Cloud Ops and Cloud Ops Premium Services where there is a Minimum Service Period:
        at least 30 days prior to the end of any Cloud Ops Services with a Minimum Service Period of 12 months Anchor will advise Customer of the Fees, Service Descriptions and any new
        Terms and Conditions that will apply for a further Minimum Service Period of 12 months of the Cloud Ops Services.
        If Customer does not wish for the Cloud Ops Services to continue at the new Fees, Service Descriptions and Terms and Conditions Customer must advise Anchor in writing prior
        to the end of the Service Period of the Cloud Ops Service. If Customer does not advise Anchor in writing prior to the end of the Service Period, the Agreement will be automatically
        renewed and Anchor will continue to provide the Services for a further Minimum Service Period of 12 months and Customer must pay Anchor the new Fees and the new Service Descriptions
        and Terms and Conditions will apply for that period. This renewal process will apply at the end of each renewal of the Service Period. Anchor will provide notice
        (including by posting them on the Website) of any changes to the Fees, Services Descriptions or Terms and Conditions as they change from time to time.

      Customer Changes

    7. Subject to clause 2.9, if Customer wishes to:

      1. enter into a new agreement for other Services;
      2. acquire any optional items or Services;
      3. increase, decrease or otherwise vary any Service, including any Managed Services;
      4. terminate any Service, including any option,

      in accordance with this Agreement, then that change must be made either by agreement by the Parties (which may include agreement by email and/or through the support ticketing system).
      All changes will be subject to the provisions of this Agreement.

    8. In circumstances where Anchor deems it necessary and urgent to make a change to the Service to facilitate the Service being provided to meet the Service Levels or,
      if there are no Service Levels, to meet acceptable standards of service (e.g. if there has been a substantial unexpected demand on the Customer Application that requires immediate addition of
      sever capacity in order to maintain availability of the Customer Application) then Anchor will take whatever action it determines appropriate to try and ensure the Service Levels or acceptable
      standards of service are maintained, and this may include performing Additional Services or adding AWS capacity or services. Anchor will use its best efforts to obtain Customer’s approval prior
      to performing such Additional Services or adding AWS capacity or services, but if Anchor is unable to speak to Customer in a timely manner it will (and Customer authorises Anchor to)
      perform the Additional Services and/or add AWS capacity or services and Customer must pay for them. In this situation Anchor will continue to attempt to obtain Customer’s approval, and will
      cease to provide such Additional Services and/or add AWS capacity or services on the sooner of the circumstances changing so that the Additional Services and/or add AWS capacity or services are
      not needed or Customer advises Anchor to stop providing them.
      Changes to the Agreement
    9. Subject to clauses 2.7 and 2.8, Anchor may seek to vary any part of the Agreement at any time during the Service Period of any Managed Service by giving Customer at least 30 days’ notice
      (Proposed Change). Subject to clause 2.10, any variation will be effective at the end of the 30 day notice period.
    10. If the Proposed Change is for a Service for which there is a Minimum Service Period and that Proposed Change will deprive Customer of more than an insubstantial benefit of the Service then Customer
      may give Anchor notice of that fact within 10 days of Anchor’s notice of Proposed Change.
      If Anchor receives such a notice from Customer and is unable to agree with Customer an acceptable alternative within 20 days of the date that Anchor issued the notice of Proposed Change then:

      1. Anchor may give Customer notice that Anchor elects not to make the Proposed Change; or
      2. if Anchor does not issue Customer with notice that it elects not to make the Proposed Change within 25 days of the date when Anchor issued the notice of Proposed Change, Customer may:

        1. continue to use the Service and the Proposed Change will be effective 30 days after Anchor issued the notice of Proposed Change; or
        2. Customer may terminate the Agreement immediately by giving Anchor notice prior to the date which is 30 days from the date of issue of the Proposed Change.
          In this case Anchor will provide Customer with a pro-rate refund of any Fees that have been paid in advance for Services that will not be provided
          after deducting any monies owed by Customer to Anchor), and such payment will be Anchor’s entire liability and Customer sole remedy in connection with such
          Proposed Change and/or termination.
  3. Services

    1. Subject to the receipt of the Fees and Taxes:

      1. Anchor will provide Customer the Services described in the Proposal during the periods set out in the Proposal;
      2. Customer may acquire additional or varied Services of that additional or varied Service in accordance with clauses 2.7 and 2.8.

      All such Services are provided on the provisions of this Agreement.

    2. Promptly following the Effective Date, Anchor will set up the AWS Hosted Environment and perform any other Transition In Services set out in the Proposal that have to be performed in order
      to provide Customer with access and use of the Hosted Environment and Network. Anchor will give Customer written notice of when the AWS Hosted Environment and Network are ready for Customer to use.
    3. Where Anchor is providing Cloud Ops Services, Anchor grants the Customer a non-transferable, limited, revocable, non-exclusive right to remotely access the Application Stack operating on
      the AWS Hosted Environment via the Network during the Service Period in accordance with the Proposal. Customer’s right to access and use the AWS Hosted Environment, Network and Data Centres
      (and any Customer Data or Customer Applications installed in it) are subject to the AWS Customer Licence Terms).
    4. Where Anchor is providing any data migration Services, Customer is responsible for ensuring that the data that is to be migrated is accurate, up to date and correctly formatted prior to migration.
      Customer is responsible for loss, damage or expense incurred by Anchor (or any other person) as a result of any errors caused by inaccurate, out of date or incorrectly formatted data:
  4. Back Ups

    1. You acknowledge and agree that your right and ability to take back ups of the Customer Application and Customer Data is set out in the AWS Customer Licence Terms and not in this Agreement.
    2. If the Proposal states that Anchor is providing back up Services then:

      1. Anchor will take back ups of the agreed Customer Application and Customer Data at the intervals, in the manner described and will retain the back ups for the periods,
        all as stated in the Proposal. Any superseded back up may be destroyed;
      2. Upon request form Customer, and subject to payment of Professional Services Fees for the work required, at Anchor’s time and materials rates, Anchor will use its best efforts
        (but will not be liable for any failure to) to ensure that it can restore Customer Application and Customer Data from the back up within 48 hours of being notified that a restoration is
        required;
      3. Anchor is not responsible for any failure to restore data if the back up process fails to take a back up and such failure could not have been discovered by the standard verification test;
    3. as Anchor does not know what Customer Data is hosted in the AWS Hosted Environment Customer must ensure that the back ups that are taken are complete and accurate

  5. Operational Issues

    1. Anchor must use its best efforts to ensure that Scheduled Maintenance will not exceed the periods stated in the Proposal. Anchor must use its best efforts to minimise any disruption or
      inconvenience to Customer caused by Scheduled Maintenance.
    2. In order to access the Customer Applications and Customer Data each user must have its own device with a web browser which is compatible with the Customer Applications,
      Customer Data and AWS Hosted Environment. Customer acknowledges and agrees that it is the user’s responsibility to acquire, maintain and properly use any device,
      communications link and software and to update any device, communications link or software if these access requirements change during the Service Period.
      Customer acknowledges and agrees that all capital and on- going costs for such items are the responsibility of the user.
    3. Customer acknowledges and agrees that nothing in this Agreement transfers title to any part of the AWS Hosted Environment, Network or Data Centre to Customer at any time..
    4. Customer must not to register any security interest (as defined under the PPSA) against Anchor, its Related Bodies Corporate or their respective contractors in respect of any of Customer
      Applications, Customer Data and/or in connection with this Agreement.
    5. No Services may be used for any high risk activities, including any application or situation where the failure of any part of the Service could lead to death or serious bodily injury of any person,
      or to severe physical or environmental damage.
  6. Customer’s Obligations

    1. Customer must:

      1. provide Anchor with the necessary facilities, equipment and resources to enable Anchor to perform the Services;
      2. provide Anchor with user names, passwords and full authority to access and manage Customer’s AWS account 24×365 on Customer’s behalf, without reference to Customer or AWS;
      3. provide Anchor access to any third party software, operating systems and hardware on which they are run, as is required for Anchor to perform the Services,
        as well as providing Anchor direct access to the third party’s maintenance services (especially help desk support) to facilitate Anchor performing the Services;
      4. provide Anchor with complete and accurate information in a timely manner as may be needed to facilitate Anchor performing the Services;
      5. make available appropriately knowledgeable personnel in a timely manner who are capable of answering Anchor’s questions;
      6. ensure that where there are multiple stakeholders within Customer who have an interest in the Services, the person that is dealing with Anchor is authorised to represent the
        views of all Customer’s stakeholders, has obtained those views prior to providing information or instructions to Anchor, and provides information or instructions that are
        the single authorised position of Customer;
      7. promptly make any decisions needed by Anchor to perform the Services.
    2. Customer acknowledges and agrees that that a failure to meet the obligations in clause 6.1 may result in delays in the provision of the Services.
      Anchor is not responsible for any such delays. Anchor is entitled to charge Customer for any time or expenses incurred as a result of the failure of Customer to comply with its obligations
      under this Agreement, including those in clause 6.
    3. If Anchor performs any Services at Customer’s offices:

      1. Customer must provide office space and facilities to Anchor’s personnel commensurate with those provided to Customer’s own employees of similar standing;
      2. Anchor must ensure that its personnel and those of its contractors comply with the security procedures and standards as are notified to it in writing by Customer;
      3. Customer must provide a safe place to work for any of Anchor’ personnel that are working at Customer’s site.
    4. Customer must at all times:

      1. take effective back-ups of data in all its IT systems, except only in so far as it is Anchor’s responsibility to take back ups of specific data items as part of the
        Managed Services (which will be set out specifically in the Proposal);
      2. ensure that it has duplicate copies of all data that is provided to Anchor;
      3. ensure that it operates anti-virus software on all its IT systems, connected to the AWS Hosted Environments or Anchor’s systems,
        in accordance with a high standard of commercial practice.
    5. Customer warrants that it has the authority to allow Anchor, its Related Bodies Corporate and their respective contractors to use any facilities,
      equipment, resources, information, data and/or Intellectual Property Rights that Customer provides to Anchor, its Related Bodies Corporate and their respective contractors
      for use in connection with performing the Services.
    6. If Customer disputes any time or expense on an invoice, or believes that the Services were not performed in accordance with this Agreement,
      then Customer must promptly provide Anchor with written details of the issue and any other details as may be reasonably requested.
    7. Where the Managed Services include installing Patches or New Releases to the Application Stack:

      1. Anchor recommends installing any Patch or New Release in a non-production environment and testing the installation to ensure that it does not adversely affect any
        Customer Applications, Customer Data, API or other technology, prior to installing the Patch or New Release in a production environment;
      2. if Customer requests that Anchor installs any Patch or New Release directly into a production environment, without first testing the Patch or New Release in a
        non-production environment Customer bears all risks associated with the integration of the Patch or New Release with any Customer Applications, Customer Data, API or other technology;
      3. Customer agrees that the Managed Services do not include any work that is required to integrate the Patch or New Release with any Customer Applications, Customer Data,
        API or other technology and that if Customer requires any such work the Parties must first agree a Change Request;
      4. Anchor may install any update/Patch that a Third Party Provider states addresses an important security flaw into the production AWS Hosted Environment immediately and without
        notice to Customer. Anchor is not responsible for any adverse effect on any Customer Applications, Customer Data, API or other technology that may result;
      5. this does not include the installation of New Releases to the Application Stack unless expressly stated in the Proposal.
    8. Where the Managed Services includes the provision of back ups of Customer Applications and Customer Data:

      1. Customer acknowledges and agrees that Anchor does not know what Customer Data includes, and so Customer must promptly verify the accuracy of every back up that Anchor takes;
      2. the obligation to take a back up is limited to an obligation to run back up software at the agreed intervals and ensuring that the back up software does not provide a
        record that advises that the back up has failed.
    9. Where the Managed Services does not include the provision of back ups of Customer Applications and Customer Data:

      1. Customer must take regular and complete back ups of Customer Applications and Customer Data in accordance with industry best practice;
      2. Anchor is not liable for any loss of Customer Applications or Customer Data, under any circumstances.
    10. Where the Managed Services include the provision of anti-virus scanning Anchor’s obligation to provide anti- virus scanning is limited to an obligation to run commercially available
      anti-virus software at the agreed intervals and at the latest reasonably practical level of anti-virus database. Given the nature of viruses and protection from viruses, Trojan horses and
      other malicious code or events, Anchor cannot guarantee that all viruses, Trojan Horses or other malicious code or events, (including denial of service attacks) will be prevented from
      entering into the AWS Hosted Environment, Customer Applications, Customer Data or other of Customer’s systems or be rendered ineffective.
    11. Where the Managed Services does not include the provision of anti-virus scanning, Customer must at all times operate anti-virus software in accordance with industry best practice and at the
      latest reasonably practical level of anti-virus database.
  7. AWS

    1. Customer must enter into the AWS Customer License Terms prior to the start of the Services, and if Customer does not, Customer appoints Anchor as its lawful agent to do so on its behalf.
      Customer appoints Anchor as its lawful agent to access, use and manage (including the right to add/modify or delete features or services within Customer’s AWS account for the purpose of providing
      any Service under this Agreement).
    2. Customer warrants to Anchor that it will fully and strictly comply with AWS Customer License Terms. Customer must use the AWS Services only for itself and must not resell or allow any third party
      access to, or use of, the AWS Services. Customer warrants to Anchor that Customer will comply with any license rights or limitations, including limitations relating to copying, adapting, other
      copyright, number of users or other metric whether set out in this Agreement of the AWS Customer License Terms when using any component of the AWS services (including any software).
    3. Anchor’s obligations under this Agreement are suspended for any period when the AWS Customer License Terms is suspended, but Customer must continue to pay the Fees to Anchor during any such
      period of suspension.
    4. The Parties acknowledge and agree that the AWS Partner Agreement provides that AWS may unilaterally change the terms of the AWS Partner Agreement and/or the AWS Customer License Terms. If this occurs:

      1. Anchor shall consult with Customer, and after such consultation may vary this Agreement to take into account the changes imposed by AWS under the AWS Partner Agreement.
        Such variation will be made by written notice to Customer and will be effective upon receipt of that notice;

      if the change is solely to the AWS Customer License Terms, that change will be made under the terms of the AWS Customer Licence Terms between Customer and AWS and there will be no requirement for
      consultation or notice from Anchor.

    5. Customer must ensure that Anchor retains the sole control over all aspects of the programming, composition, management, support and operation of the AWS Hosted Environment whilst it is
      operating the Customer’s AWS account for any Cloud Ops Service. Anchor retains all Intellectual Property Rights in any information, software, configuration of the AWS account or other
      item provided to Customer, or implemented in the AWS account, in connection with this Agreement, and to any adaptations, translation or derivatives thereof.
    6. Customer acknowledges and agrees that nothing in this Agreement transfers title to any part of the AWS Hosted Environment to Customer at any time.
  8. Warranties

    1. Where the Agreement is a “consumer contract” as defined under the Australian Consumer Law:

      1. Customer is entitled to the benefit of the statutory guarantees under sections 54 to 59 of the Australian Consumer law in respect of any goods supplied under the agreement; and
      2. Customer is entitled to the benefit of the statutory guarantees under sections 60 to 62 of the Australian Consumer law in respect of any service supplied under the agreement.
    2. Where clause 8.1 does not apply then this clause 8.2 applies:

      1. Anchor warrants to Customer that:

        1. the Services will be performed with due skill and care;
        2. where the Proposal states that the particular Service will be performed in accordance with the Service Levels,
          then Anchor warrants that it will provide those Services in accordance with the Service Levels; and
        3. if no time for the supply of the Services is set out in the Proposal, the Services will be provided in a reasonable time.
      2. if any Service provided to Customer under this Agreement is not performed in accordance with the warranties in this Agreement, Customer must notify Anchor in writing within
        7 days of the performance of the relevant service and Anchor will, at its option and cost, rectify the deficiency, re-perform the service or refund the amount paid for the
        deficient service. To the extent permitted by law, the remedies in this clause 8.2(b) are Anchor’s exclusive liability and Customer’s sole remedy for breach of clause 8.2(a).
    3. Where Customer is exercising Customer rights in respect of a “Warranty Against Defects” (as defined by Regulation 90, issued under the Australian Consumer Law) then, in accordance with that Regulation:
      Customer may report any defect in the Service to Anchor via Anchor’s website at www.anchor.com.au at any time up to the end of the Service Period. Anchor must use its best efforts to remedy material defects in the Service within a reasonable period.
      The Warranty Against Defect services are provided by Anchor Systems Pty Ltd ABN 46 093 848 278 of 201 Elizabeth St, Sydney NSW 2000 Australia, telephone: +61 (0)2 8296 5111 email address: [email protected]
      The costs for the service that Anchor provides as a Warranty Against Defects are included within the Fees. No additional fees are payable by Customer for this service. Customer is responsible for any expenses Customer incurs in using this service.
      The statement in italics below is required to be included in these terms and conditions under Regulation 90.
      “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
      The benefits that Anchor provides to consumers under this Warranty Against Defects are in addition to any other rights or remedies a consumer may have in respect of the goods or services under the Australian Consumer Law.
    4. It is acknowledged and agreed by both Parties that given the nature of the Services:

      1. it is not possible for Anchor to guarantee that any Service is fit for a particular purpose or that any particular outcome will be achieved as a result of any Service,
        or any product that results from the Service;
      2. it is not reasonable for Customer to rely on Anchor’s skill and judgment to guarantee that any Service is fit for a particular purpose or that any particular outcome
        will be achieved as a result of any Service, or any product that results from the Service.
    5. Anchor does not warrant that:

      1. uninterrupted, secure access or error free operation of the AWS Hosted Environment, Network, Customer Application or the Customer Data; or
      2. Anchor can prevent any third party disruptions to the Services or that Anchor will correct all defects.
    6. Customer must comply with all laws which are relevant to Customer performing its obligations under the Agreement.
      Customer is solely responsible for ensuring it uses the Services and any Deliverable in accordance with all laws. Customer is solely responsible for complying with any laws
      relating to record keeping, audit or Privacy Law in relation to Customer Data.
    7. Anchor is not liable for any breach of the Agreement, including any Service Level, which arises as the result of:

      1. any component of the Customer Application, Customer Data, AWS Hosted Environment, any item provided by a Third Party Provider or any equipment or resources supplied
        by or on behalf of Customer not operating in accordance with its documentation or the requirements in the Agreement, provided that nothing in this sub-clause negates
        Anchor’s liability to meet the relevant Service Level or provide the applicable Service Credit where Anchor is providing an AWS Hosted Environment configured for high
        availability using at least 2 Availability Zones and the failure to meet the Service Level was caused solely because the AWS Hosted Environment was not working properly;
      2. modifications to any part of the AWS Hosted Environments or any Deliverables that were effected or attempted by a person other than Anchor or its authorised representative;
      3. any act, error, fault, neglect, misuse or omission of Customer or its respective contractors or agents;
      4. any use, storage, dissemination, publication or handling of any Customer Data;
      5. damage caused by the operation of any part of the Customer Application or Customer Data other than in accordance with recommended operating procedures,
        Operations Guide or otherwise than in accordance with the directions or recommendations of the original owner of the Intellectual Property Rights, its authorised distributor or Anchor;
      6. any virus, denial of service attack or other malicious act or code that adversely affects the Services, AWS Hosted Environment, Customer Application or the Customer Data,
        provided that nothing in this sub-clause negates Anchor’s liability to meet the relevant Service Level or provide the applicable Service Credit where Anchor is providing an
        AWS Hosted Environment configured for high availability using at least 2 Availability Zones and the failure to meet the Service Level was caused solely because the AWS Hosted
        Environment was not working properly;
      7. suspension or termination of the AWS Customer License Terms;
      8. if AWS suspends, prevents or reduces the AWS services provided to Anchor in connection with this Agreement, or the AWS Partner Agreement expires or is terminated in accordance
        with the terms of the AWS Partner Agreement;
      9. a Force Majeure Event.
  9. Payment and Invoicing

    Payment

    1. All Fees, Taxes or other amounts due by Customer to Anchor under this Agreement must be paid to Anchor in accordance with this Agreement without any set-off,
      counter-claim, deduction or withholding to the maximum extent permitted by law. Anchor may set-off any amount that it owes to Customer against any amount that Customer
      owe to Anchor under this Agreement.
    2. Unless stated otherwise in the Proposal, Customer must pay Anchor:

      1. the AWS Security Deposit in the amount set out in the Proposal, or if no amount is set out in the Proposal, the amount that Anchor estimates to be approximately
        1 month’s AWS Spend. This amount is due on the Effective Date and will be held as security for payment of any Fees, Taxes or other amounts under due this Agreement.
        Anchor will return this amount to Customer within 30 days of the end of the Service Period, less amounts that have been deducted for unpaid Fees, Taxes or other amounts
        due under this Agreement;
      2. The fees that are due to AWS arising from Customer’s use of the AWS Hosted Environments and AWS Services, including Reserved Instances, as calculated by AWS, and for
        which Anchor provides the invoicing and collection services. These amounts are due on the day that AWS issues the corresponding invoice to Anchor for these amounts;
      3. Fees for Caretaker Services. These Fees are due on the last day in the month in which the Caretaker Service was provided;
      4. Fees for the Cloud Ops Services. These Fees are due on the last day of each month in which the Cloud Ops Services where provided during the entire Service Period,
        and subject to any Minimum Service Period;
      5. any Fees for any Additional Service. The applicable additional Fees will be due on the last day of the month in which the additional use occurred; and

      for any one-off Fees, including Transition In Fees, Fees for other Professional Services or other items; such Fees are due on the last day of the month in which the Service or item was provided.

    3. The Fees for any Professional Services are set out in the Proposal, or if they are not set out in the Proposal, the Fees are charged for all work done to perform the Professional
      Services at Anchor’s then current hourly rates and are charged on a time and materials basis in 30 minute increments.
      Exchange Rate
    4. Unless otherwise expressly stated in the Proposal, all Fees are stated in US Dollars. Anchor will convert all Fees, related Taxes and other amounts due under this Agreement into
      Australian dollars using the exchange rate that it uses internally when converting currency.
      Fee Increases
    5. Anchor may at any time increase the Fees for any reason during the Service Period, including as a result of an increase in fees charged by Anchor’s contractors (including AWS).
      If Anchor increases the Fees in accordance with this clause, Anchor must provide the Customer 30 days’ notice (including by posting notice on the Website).
      If Anchor increases the Fees (other than the Fees relating to Anchor’s billing of Customer’s AWS Spend, as Anchor has no control over AWS’ fee increases) by more than 5% in aggregate
      (as calculated in USD) in any 12 month period, the Customer may terminate this Agreement without penalty by giving Anchor 30 days written notice, such notice to be given within 15 days of
      receipt of notice of the proposed increased Fees.
      Rounding
    6. Anchor may:

      1. pro rate invoices so that they are billed to coincide with the first or last day of calendar months and/or provide a single billing date for multiple Services;
      2. round up small amounts to the nearest 5c, and/or delay billing of small amounts until subsequent invoices.

      Payment by Approved Card

    7. Customer must pay Anchor the Fees and related Taxes by Approved Card, in the currency stated in the Proposal, on the due date stated in the Proposal.
      Anchor will issue Customer with a Tax Invoice/receipt on or about the 6th of each month.
    8. Any Tax Invoice that has not been disputed by Customer in writing within 3 months of date of issue is deemed to be accurate in absence of fraud or manifest error.
    9. Where the Fees and Taxes are denominated in a currency other than the currency that is used as the default currency of Customer’s Approved Card
      (i.e. Customer’s Approved Card is not issued in the country which uses the currency of payment), Customer agrees:

      1. to pay any charge from the provider of the Approved Card for an international transaction;
      2. to use the exchange rate used by the provider of the Approved Card for the conversion of the Fees, Taxes or other amounts payable under this Agreement into the currency Anchor uses;

      that the net amount that is to be received by Anchor must always be the Fees, Taxes and other amounts that are dominated in the currency specified in this Agreement.

    10. Customer irrevocably authorises Anchor to deduct from any Approved Card that Customer has used to pay any amount under this Agreement or for which Customer
      has provided the details to Anchor, any:

      1. Fees and Taxes that are due under this Agreement;
      2. charge backs or fees, including any related Taxes, incurred by Anchor for any failed transaction from the Approved Card, as well as Anchor’s then current
        administration fee for dealing with any failure to receive payment; and
      3. amount payable as damages, losses or expenses arising out of or in connection with this Agreement.
    11. If there is any failure to make payment by the Approved Card by the due date for any reason, including that the Approved Card ceases to be valid, ceases to be authorised for debiting any
      amount stated in this Agreement or there is insufficient funds in the relevant account, then Customer must within 7 days:

      1. provide an alternative Approved Card and authorise all amounts due to be deducted from that Approved Card; and/or
      2. make payment of all amounts due by another payment method agreed with Anchor.

      Minimising the Risk of Fraud

    12. In order to minimise the risk to Anchor of credit card fraud, Anchor may allow Customer to pay for the Services using an Approved Card up to a maximum value of $5,000 in any month
      (inclusive of GST) (Monthly Credit Limit) without providing Anchor with specific information to enable Anchor to conduct credit checks.
    13. If Customer wishes to increase Customer’s Monthly Credit Limit Anchor may require to Customer to provide Anchor with any information required by Anchor to assess Customer’s creditworthiness
      or the creditworthiness of the person whose Approved Card is used to pay for the Services. Anchor may increase or decrease the Monthly Credit Limit in its discretion.
      In determining the Monthly Credit Limit Anchor may agree that Customer can provide an agreed form of security for payment or enter into alternative payment arrangements.
      Anchor reserves the right to suspend the Services where Customer exceeds the Monthly Credit Limit that Anchor has approved for Customer at the time.
    14. Customer consents (and Customer warrants it has obtained the necessary consent from any individual whose Approved Card is proposed to be used to pay for any Services) to
      Anchor obtaining from, or providing to, a credit provider named in a credit report, credit reporting agency, or any person Customer authorises Anchor to contact, any of
      your personal or corporate information, including information relating to creditworthiness, credit standing, credit history or credit capacity, for the purposes of assessing,
      or providing information in relation to, Customer’s creditworthiness (including notifying others of any default or notifying others of the status of Customer’s account if
      Customer is in default with any other credit provider) and/or deciding whether to grant or continue to provide credit approval to Customer. Customer consents to Anchor
      being given a consumer credit report to collect overdue payment on commercial credit (s18K(1)(h) of the Privacy Act 1988).
    15. Anchor reserves the right not to accept payment from any Approved Card that is issued to a person that has an address outside of Australia.
      Other Payment Methods
    16. Anchor may, in its discretion, permit Customer to pay by methods of payment other than by using an Approved Card, including by EFT or direct debit.
      If Anchor agrees to allow Customer to pay by such other methods, then Customer must:

      1. provide any financial information reasonably requested by Anchor in relation to Customer or any proposed guarantor of Customer;
      2. complete any documents (such as direct debit mandates) required by Anchor;
      3. at any time requested by Anchor provide updated financial information in relation to Customer or any proposed guarantor of Customer;

      ensure that at all times any bank account or other source of funding has sufficient cleared funds available on the due date for payment to enable Anchor to receive
      payment for the amount due on the due date.
      Late Payment

    17. Anchor reserves the right to require Customer to pay a late charge for any failure to make any payment by the date required under this Agreement, calculated daily using a rate
      that is 4% over the Reserve Bank of Australia’s Cash Rate, from the date that the payment first becomes overdue, to the date that the payment is received by Anchor, both dates inclusive.
  10. Taxes

    Payment of GST

    1. The Fees exclude GST. Customer must pay any applicable GST in addition to the Fees at the same time as Customer pay the relevant Fees.
      Indemnity and reimbursement payments
    2. Where one Party must indemnify or reimburse the other Party (Payee) for any loss or expense incurred by the Payee, the required payment does not include any amount which the Payee
      (or an entity that is in the same GST group as the Payee) is entitled to claim as an input tax credit, but the payment will be increased if it is consideration for a taxable supply.
      Adjustment event
    3. Customer must pay any GST without set-off or deduction regardless of any entitlement Customer may have to a credit or offset. However, if:

      1. the GST paid or payable by Customer in respect of the supply is different from the amount of GST payable at law; and
      2. an adjustment of that GST is made between Anchor and the relevant taxing authority, then Anchor and Customer must make the same adjustment to the GST which Customer
        have paid or are otherwise required to pay in accordance with this Agreement.

      Other Taxes

    4. All payments under this Agreement must be made free and clear and without deduction for any and all present and future Taxes.
      Payments due to Anchor under the Agreement must be increased so that amounts received by Anchor, after provisions for Taxes and all Taxes on such increase,
      will be equal to the Australian dollar amounts required under the Agreement, as if no Taxes were due on such payments.
  11. Intellectual Property Rights

    1. As between Customer and Anchor all Intellectual Property Rights in any Customer Application and Customer Data remain the sole property of Customer.
      Customer grants Anchor, its Related Bodies Corporate and their respective contractors a non-exclusive, royalty-free licence to host, cache, copy, transmit, adapt, edit, change,
      publish or otherwise use or access any Customer Application or Customer Data in connection with the performance of the Services under this Agreement and any legal requirements.
      Customer warrants that none of Customer Data is subject to any export control law or other law that would prevent access by Anchor, its Related Bodies Corporate, their respective contractors.
    2. Customer warrants that possession, use or access to Customer Application or Customer Data by Anchor, its Related Bodies Corporate and their respective contractors,
      in accordance with this Agreement will not infringe the intellectual property rights or other rights of any third party.
    3. If Anchor provides any Open Source Code to Customer, including as part of Anchor Tools, it does so as a convenience only and is not responsible for ‘supplying’ that Open Source Code as
      defined under the Australian Consumer Law. Any Open Source Code is subject to its open source license, and is not subject to any of the licensing terms, warranties, indemnities or other
      terms in this Agreement.
    4. All Intellectual Property Rights in any:

      1. materials provided to Customer prior to the Agreement, including any documents that include any design, solution architecture, configurations or other technical details
        relating to the Services (Pre-contract Materials);
      2. the Deliverables; and
      3. any programs, Anchor Tools, methodologies, processes, systems or materials, including the Operations Guide,

      that are created by any person, including adaptations, translations and derivative works in any of them, are and shall remain the exclusive property of Anchor (and its licensors, if any)
      or shall vest in or be transferred to Anchor immediately upon creation, as the case may be.

    5. Subject to clause 11.6, and the payment of the Fees, expenses and Taxes due under this Agreement, Anchor grants Customer a non-exclusive,
      non-transferrable right to use, copy, adapt and translate any Pre-contract Materials and Deliverable for its (and its Related Bodies Corporates’) own internal business purposes,
      for the Service Period, at no additional cost. Customer must not sub-licence, commercialise or disclose the Pre-contract Materials or Deliverables, or any part of any of them, to any other
      person (other than to a contractor acting on behalf of Customer or any Related Bodies Corporate).
    6. Unless otherwise stated on the Proposal, Anchor grants Customer a non-exclusive, non-transferrable right to use, copy, adapt and translate any Pre-existing IP that is owned by Anchor and
      that is included in any Deliverable, solely as part of the Deliverable (and not on a standalone basis or integrated with any other software), for Customer’s (and its Related Bodies Corporates’)
      own internal business purposes, for the Service Period, at no additional cost.
    7. Anchor grants Customer (and any contractor acting on behalf of Customer) a non-exclusive, non-transferrable, royalty-free licence to install and run any Anchor Tools that are installed on
      the AWS Hosted Environments for Anchor’s use in connection with the Services during the Service Period. Customer has no right to use the Anchor Tools itself.
    8. Customer grants Anchor, its Related Bodies Corporate and their respective contractors a non-exclusive, royalty free right to use, copy and adapt any of Customer’s Pre-existing IP
      that Customer provides to Anchor in connection with the Services solely for the purpose of performing its obligations under the Agreement, and such licence will terminate at the end of
      the Service Period.
    9. Except for the rights expressly granted by Anchor to Customer under this Agreement:

      1. Anchor and its licensors, if any, reserve all right, title and interest in and to the Deliverables, its Pre-existing IP and all Intellectual Property Rights in them;
      2. no right, title or ownership interest in or to the Deliverables or Anchor’s Pre-existing IP whether by implication, estoppel or otherwise, is granted, assigned or transferred
        to Customer under or in connection with this Agreement.
    10. Each Party agrees to allow reference to the other and the relationship under the Agreement in its marketing presentations, marketing materials, lists of customers or suppliers
      (as applicable), and websites as well as in discussion with prospective resellers and customers, and industry/financial analysts.
    11. Neither Party may use the other Party’s trade marks, logos, get up or other branding without the other Party’s prior written consent, such consent not to be unreasonably withheld.
    12. Customer acknowledges and agrees that the unauthorised disclosure, use or copying of the Deliverables or Anchor’s Pre-existing IP may cause Anchor serious reputational or financial loss
      that may not be adequately compensated by monetary damages. Accordingly, in the event of any unauthorised disclosure, use or copying of the Deliverables or Anchor’s Pre-existing IP,
      Customer agrees that Anchor shall have the right to seek injunctive relief to stop such unauthorised disclosure, use or copying.
  12. Confidentiality

    1. The Recipient must not use any of the Discloser’s Confidential Information except in connection with the performance of its obligations specified in this Agreement.
    2. The Recipient must not disclose the Discloser’s Confidential Information to any third party without obtaining the Discloser’s prior written consent,
      provided that the Recipient may disclose the Discloser’s Confidential Information to:

      1. its employees, agents and contractors, and those of any of its Related Bodies Corporate, who have entered into a written agreement with the Recipient that is no less
        protective of the Discloser’s Confidential Information than this Agreement provided those persons have a need to know such information for the purposes of this Agreement;
      2. its lawyers, bankers, auditors, accountants and insurers, who have a need to know the information in order to provide professional advice to the Discloser relating to this Agreement;
      3. where the Recipient is Anchor, Anchor may disclose Customer’s Confidential Information to AWS in connection with the Services and in connection with the AWS Partner Agreement;
      4. where Customer have been introduced to the Services by a channel partner of Anchor then Anchor may disclose such details of Customer use of the Services and this
        Agreement to the relevant channel partner as is necessary identify the amounts that Anchor must pay to the relevant channel partner and to comply with its agreement with that
        channel partner.
    3. The Recipient must use, and must ensure that any person to whom it is permitted by this Agreement to disclose the Discloser’s Confidential Information to uses,
      the same measures to protect the Discloser’s Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable measures.
    4. The restrictions of this clause 12 shall not apply to information that:

      1. is independently developed by the Recipient without any access to the Confidential Information of the Discloser;
      2. becomes known to the Recipient without restriction, from a third party who, to the Recipient’s knowledge, was not bound by a confidentiality agreement with the Discloser,
        or otherwise prohibited from disclosing the information to the Recipient, or had the right to disclose it;
      3. was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;
      4. was lawfully in the possession of the Recipient before the information was disclosed to it by the Discloser;
      5. is or becomes in the public domain through no act or omission of the Recipient;
      6. the Parties agree in writing is not confidential or may be disclosed; or
      7. is required to be disclosed under an order or requirement of a court, administrative agency, or other governmental body (but only to the minimum extent required to comply),
        provided however, that Recipient shall provide prompt notice to Discloser of any potential disclosure and shall use its reasonable efforts to prevent disclosure of such information.
  13. Privacy

    1. The Parties must:

      1. comply with the requirements of any Privacy Law in the state, territory or country in which the party
        (and/or the individual about whom the Personal Information relates) is located, and in any state, territory or country to which the Personal Information is to be sent; and
      2. only use, manipulate, store, process and handle Personal Information for the purposes of meeting its obligations under this Agreement or as may be required by law.
    2. Customer warrants that Customer has obtained the express informed consent from each individual about whom Anchor will obtain Personal Information from Customer in connection
      with this Agreement, for Anchor, its Representatives and their permitted successors, assignees and sublicensees to use that individual’s Personal Information in any manner that may
      be reasonably contemplated by this Agreement and/or is stated in Anchor’s privacy policy (as available on Anchor’s website), including a transfer interstate and/or overseas to the
      countries stated in the privacy policy.
    3. Customer may request that Anchor sets the AWS account geographic setting to “Asia-Pacific – Sydney” and if Customer makes such request Anchor will implement
      that setting and not change it during the Service Period without Customer’s prior written consent.
    4. Customer warrants that Customer has reviewed the security features and responsibilities in this Agreement and has determined that they meet Customer needs.
      Marketing
    5. Each Party agrees to allow reference to the other and the relationship under this Agreement in its marketing presentations, marketing materials,
      lists of customers or suppliers (as applicable), and websites as well as in discussion with prospective resellers, channel partners and customers, and industry/financial analysts.
    6. Neither Party may use the other Party’s trademarks, logos, get up or other branding without the other Party’s prior written consent, such consent not to be unreasonably withheld.
      Security of Customer Data
    7. Anchor must provide security for the Customer Application and the Customer Data in accordance with the Security Policy.
    8. Customer acknowledges and agrees that Customer is solely responsible for all aspects of the Customer Application and Customer Data, including:

      1. its selection, design, creation, posting, use, licensing, updating, maintenance, technical operation (including ensuring APIs are compatible with any requirements of the Service)
        and testing;
      2. managing, renewing, creating, deleting, editing, maintaining and otherwise controlling its editorial content;
      3. ensuring that any Personal Information that is included in Customer Data is stored, used, handled and transmitted in accordance with the law;
      4. properly handling and processing of any legal notices (including those required by privacy and copyright laws);
      5. determining the appropriate procedures and controls regarding the security of Customer Data, and for implementing those procedures and controls.
    9. Customer must provide Anchor with access to any password or other item that is needed by Anchor to provide the Services.
  14. Liability and Indemnity

    1. Where Customer is entitled to the benefit of a statutory guarantee under sections 54 to 59 of the Australian Consumer Law, then unless Customer can prove that it is not fair or reasonable
      for Anchor to rely on this limitation, then Anchor’s liability for breach of such statutory guarantee is limited to one of the following, at Anchor’s option:

      1. the replacement of the goods or the supply of equivalent goods;
      2. the repair of the goods;
      3. the payment of the cost of replacing the goods or of acquiring equivalent goods;
      4. the payment of the cost of having the goods repaired.
    2. Where Customer is entitled to the benefit of a statutory guarantee under sections 60 to 62 of the Australian Consumer Law, then unless Customer can prove that it is not fair or
      reasonable for Anchor to rely on this limitation, then Anchor’s liability for breach of such statutory guarantee is limited to one of the following, at Anchor’s option:

      1. supplying the services again; or
      2. payment of the cost of having the services supplied again.
    3. To the extent permitted by law, and subject to any applicable exclusive remedy for breach of any Service Level and to clauses 8.1, 14.1, 14.2, 14.4 and 14.5,
      Anchor is not liable to Customer in contract (including under an indemnity), tort, breach of statutory duty or otherwise in respect of any loss, damage, cost or expense arising out of or in
      connection with the Services, this Agreement or the relationship between the Parties that:

      1. is for any Consequential Loss, even if Anchor has been advised of, knows of, or should have known of the possibility of such loss, damage or expense,
        and irrespective of whether the loss, damage or expense arises naturally, was in the contemplation of the Parties or was reasonably foreseeable;
      2. is for an amount that exceeds the Fees paid for that Service in the 12 months prior to the date that the claim arose unless clause 14.4 applies.
    4. Where Anchor’s liability arises from:

      1. death or bodily injury (including sickness) caused by the willful, unlawful or negligent act or omission of Anchor, its Related Bodies Corporate or their respective contractors;
      2. loss of, or damage to, tangible property caused by the willful, unlawful or negligent act or omission of Anchor, its Related Bodies Corporate or their respective contractors, or
      3. breach of Anchor’s obligations of confidence in clause 12 or privacy in clause 13,

      then, for the purpose of clause 14.3(b) Anchor’s liability is limited to $1,000,000.

    5. Anchor is not liable to Customer for any loss suffered by Customer due to Anchor’s inability to comply with its obligations under this Agreement as a result of any Force Majeure Event.
    6. Each Party shall make every effort to mitigate any loss, damage, cost or expense that it may suffer arising out of or in connection with the Services,
      this Agreement or the relationship between the Parties.
    7. Customer must indemnify, hold harmless and defend Anchor from and against all losses, damages, costs and expenses (including legal costs and expenses on an indemnity basis),
      that may arise directly or indirectly out of or in connection with:

      1. any use of the AWS Hosted Environment, the Network, Customer Application or the Customer Data, including where the access to the Customer Application or Customer
        Data has been obtained through use of any password or other security mechanism issued to Customer or created by Customer whether or not Customer have authorised such use or access;
      2. a dispute between Customer and any of the users of the Customer Application or Customer Data;
      3. any failure to ensure that the Customer Application and Customer Data is free, and at all times remains free, from any virus, worm, Trojan horse, zombie, keylogger or
        other form of malicious code;
      4. the enforcement of Anchor’s rights in connection with any of its rights under this Agreement or any

        1. alleged or actual breach of this Agreement by Customer;
        2. any claim or allegation arising in connection with the exercise of the rights contemplated by clause 16.1;
        3. any unlawful, wilful or negligent act or omission of Customer, its agents, contractors or invitees,
        4. except to the extent that such loss, damage, cost or expense has been caused by: a breach of this Agreement by Anchor; or
        5. an unlawful, wilful or negligent act or omission of Anchor, its Related Bodies Corporate or their respective contractors.
    8. Each indemnity contained in this Agreement is a continuing obligation notwithstanding:

      1. any settlement of account; or
      2. the occurrence of any other thing,

      and it is not necessary for Anchor to incur expense or make payment before enforcing or making a claim under an indemnity.

  15. Hiring Anchor Personnel

    1. Customer may employ or engage, directly or indirectly, any of Anchor’s employees or contractors (or persons who were Anchor’s employees or contractors in the six months prior to
      commencing work with Customer) who Anchor determines to be in a technical role to work for, or be engaged by Customer, at any time after the last day of the Services under this Agreement
      have been performed. If this occurs Customer must immediately pay Anchor an amount equal to $175,000.
    2. Customer must not, without the prior written consent of Anchor, during the period when Anchor is providing the Services, either on his own account (or for any person, company or entity)
      cause, facilitate or procure any other person, company or entity to employ, contract or enter into any other arrangement, directly or indirectly:

      1. to receive the services of any Anchor’s employees who provided Services under the Agreement or who dealt with Customer in connection with the Agreement; or
      2. with any of Anchor’s contractors (or any individuals employed by, or contracted to, the contractor) that provided services in connection with the Agreement, where the services
        that are to be provided to Customer relate to the same or similar work to the work that was provided under the Agreement.
    3. Customer must give Anchor written notice as soon as it employs or engages any person who has been an Anchor’s employee or contractor within 6 months of the date that the Customer
      employed or engaged that person.
  16. Suspension and Termination

    Suspension

    1. Anchor may suspend access to the AWS Hosted Environment, Customer Application and/or the Customer Data if:

      1. any amount payable under this Agreement is not paid within 14 days of its due date;
      2. Anchor reasonably believes that Customer is in breach, or anticipated breach, of the Acceptable Use Policy in a material way;
      3. Anchor reasonably believes that Customer’s use of the Services is detrimental to other users of the AWS Hosted Environment, Network or the Data Centre;
      4. there is an Emergency.
    2. Where Anchor suspends the Services it will provide Customer with written notice advising Customer of the suspension, the reason for the suspension and the steps that Customer is
      required to take prior to the Service being resumed (if applicable).
    3. Customer acknowledges and agrees that:

      1. during any period of suspension the Fees remain due and payable;
      2. there may be a re-activation Fee payable by Customer prior to Anchor allowing the Services to be resumed.

      Termination

    4. Anchor may immediately terminate or suspend part or all of the Agreement by giving Customer written notice if Customer:

      1. breaches any provision of the Agreement and the breach has not remedied within 10 days of written notice from Anchor specifying the breach;
      2. ceases to carry on business, is unable to pay its debts as they fall due, enters into liquidation, has a controller, managing controller, liquidator or administrator appointed,
        or (ii) being an individual: is unable to pay its debts as they fall due, lodges a declaration of intention under the Bankruptcy Act 1966 (Cth), enters into a debt agreement,
        enters into a personal insolvency (a) agreement or becomes bankrupt, whether voluntarily or involuntarily;
      3. merges with another entity, sells substantially all of Customer’s assets, or is subject to a change of control. A “change of control” is deemed to occur when an
        entity acquires 50% or more of the voting shares or equity interest in Customer or 50% or more of the assets of Customer, in the event of a change of a majority of the
        Board of Directors (or majority of the partners if a partnership) of Customer or if there is a change of effective control of Customer;
      4. by giving Customer 30 days written notice if the AWS Partner Agreement terminates or expires, or AWS suspends, prevents or reduces the AWS services provided to
        Anchor in connection with this Agreement in accordance with the terms of the AWS Partner Agreement;
      5. a Force Majeure Event prevents Anchor from performing all or substantially all of its obligations under this Agreement for a period exceeding 30 days; or
      6. a Change in Law makes it commercial unviable (in the reasonable opinion of Anchor), or illegal, for Anchor to continue to provide the Services;
      7. Anchor’s agreement with a contractor ends for any reason and as a consequence Anchor cannot continue to supply all or part of the Service.
    5. Customer may immediately terminate this entire Agreement, by giving Anchor written notice if;

      1. Anchor breaches any provision of this Agreement and the breach has not remedied within 30 days of written notice from Customer specifying the breach;
      2. Customer is entitled to under the provisions of Proposal that provide for a right to terminate for certain breaches of the Service Levels;
      3. Anchor suffers an Insolvency Event; or
      4. a Force Majeure Event prevents Anchor from performing all or substantially all of its obligations under this Agreement for a period exceeding 30 days.
    6. Anchor may use any technological means to enforce its rights under this Agreement, including preventing access to the AWS Hosted Environment, Network, Customer
      Application or any of the Customer Data.
  17. Consequences of Termination

    1. Termination of the Agreement for any reason does not:

      1. release Customer from the obligation to pay any monies to Anchor whether due before or after termination of the Agreement;
      2. excuse the payment of any instalment of the Fee, nor does it entitle Customer to any refund of any instalment of the Fee (except to the extent required by law); or
      3. discharge either Party from any liability which has been incurred by that Party prior to termination of the Agreement.
    2. At the end of the Agreement:

      1. Anchor shall have the right to enter on Customer’s site and take possession of its equipment, resources, Anchor Tools and other Intellectual Property Rights;
      2. each Party must immediately return to the other Party or certify in writing to the other Party that it has destroyed, all copies and partial copies of the other
        Party’s Confidential Information or any material that includes the other Party’s Intellectual Property Rights;
      3. Customer must immediately pay to Anchor all monies that are outstanding under the Service that has been terminated or that are payable in respect of the Service
        that has been terminated, including any unbilled additional use Fees.
    3. If Anchor terminates the Agreement under clause 16.4(d) then Customer shall not be required to pay any Fees for any period that is after the last day of the Agreement,
      and if Anchor has received any Fees in advance that relate to a period after the last day of the Agreement, Anchor shall refund them promptly after the least day of the Agreement.
  18. Dispute Resolution

    1. If any bona fide dispute arises between the Parties under or in relation to this Agreement, before commencing any action or court proceeding,
      the Party raising the dispute must give the other Party written notice of the dispute setting out the details of the dispute and the required remedy (Dispute Notice).
      Each Party must then nominate a senior representative with authority to resolve the dispute and those representatives must meet within 10 days of receipt of the date of the
      Dispute Notice to attempt to resolve the dispute in good faith.
    2. If the dispute is not resolved within 20 days from the date of receipt of the Dispute Notice, either Party may commence any action or court proceeding in relation to the dispute.
    3. Nothing in this clause 18 prevents either Party from commencing any action or proceeding at any time for urgent interlocutory relief in any court or tribunal having jurisdiction
      over such action or proceeding.
    4. Each Party must bear its own costs of complying with this clause 18.
  19. General

    1. Neither Party will be liable for any delay or failure to perform its obligations under the Agreement if such delay is due to a Force Majeure Event.
    2. Each Party must promptly sign any documents reasonably requested by the other Party to affect any provisions or requirements for any part of the Agreement.
    3. Any notice that is to be given under the Agreement must be in writing and signed by the person giving the notice. Any notice must be hand delivered to the address or sent
      by prepaid post to the address of the recipient as set out in the Agreement. Anchor may send a notice by email to any email address that Customer has used to communicate with Anchor.
    4. Each Party must promptly notify the other of any change of address or contact details, and such details shall be incorporated into the Agreement from the date following the date of receipt.
    5. Any notice sent in accordance with the Agreement is deemed to have been received if:

      1. hand delivered, on the date of delivery;
      2. if posted from Australia to an address in Australia using pre-paid priority letter, within 5 Business Days after the date of posting;
      3. when posted from an address outside of Australia, within 7 Business Days of the date when it was posted;
      4. if sent by Anchor by email, within 1 Business Day of the time that the email was sent, provided no notice of failure has been received by the sender within that Business Day.
    6. Customer may give any notice that it is providing under the Australian Consumer Law, in accordance with that law.
    7. Customer must not transfer, assign or novate the whole or any part of the Agreement without the prior written consent of Anchor.
    8. Anchor may transfer, assign or novate the whole or any part of this Agreement without the prior written consent of the Customer.
      Notwithstanding any other provision in the Agreement, Anchor may disclose any of the Customer’s Confidential Information that is reasonably necessary to affect any transfer,
      assignment or novation.
    9. No provision of the Agreement shall be deemed waived, amended or modified by either Party, unless the waiver, amendment or modification is in writing and signed by both Parties.
    10. If any provision of the Agreement is for any reason declared invalid or unenforceable the validity of the remaining portion of the Agreement will not be affected and the
      remaining portion will remain in force.
    11. Except as expressly provided otherwise in the Agreement, the Parties’ rights and remedies under the Agreement are cumulative and there is no obligation to exercise a particular remedy.
      If a Party is in breach of the Agreement, the non-breaching Party may avail itself of all other rights, remedies and causes of action available at law, in equity or otherwise.
    12. To the extent permitted by law:

      1. this Agreement records the entire agreement between the Parties in relation to its subject matter.
        The Agreement supersedes all previous negotiations, understandings or agreements in relation to the subject matter and expressly excludes the pre-printed terms
        and conditions of Customer’s purchase order (if any);
      2. all conditions, warranties, guarantees or rights, including any implied by custom or other circumstance, that are not expressly specified in this Agreement, are excluded.
    13. The Agreement may be signed in any number of counterparts, each of which shall be original, and any one of which shall be deemed to be validly executed if evidenced by a facsimile copy
      of the executing Party’s signature with the same effect as if the signatures were on the same document.
    14. The Parties consent to dealing with each other using electronic means.
    15. Nothing in the Agreement is to constitute or be deemed to constitute a partnership among the Parties, joint venture, employment relationship, fiduciary relationship or franchise arrangement.
      Neither Party is authorised to act as agent for the other.
    16. The Agreement is governed by the laws of New South Wales, Australia. The Parties submit to the exclusive jurisdiction of the courts of New South Wales,
      Australia and any courts competent to hear appeals from those courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.