HabitJam Platform Agreement – General Terms
1. Definitions
In this Agreement, the following words shall have the following meanings:
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
"Agreement" means this platform agreement, including all Order Forms, appendices, and incorporated documents.
"API" means the application programming interface provided by HabitJam to facilitate integration and interaction with the HabitJam Platform.
"Authorized Users" shall have the meaning set out in the Order Form.
"Charges" means the fees payable by the Customer as specified in the Order Form.
"GDPR Compliance Addendum" means the GDPR Compliance Addendum for EU Customers, which is incorporated into and forms an integral part of this Agreement for all Customers operating within the European Union.
"HabitJam Platform" means the cloud-based application platform provided by HealthChase Pty Ltd, including all associated software and services.
"License Provisioning Date" means the date on which the Customer is granted access to the HabitJam Platform.
"License Term" means the duration of the license as specified in the Order Form.
"Licensing Year" means each 12-month period commencing on the License Provisioning Date.
"Order Form" means the document(s) executed by both the Supplier and the Customer that specifies the details of the services, Software, licensing terms, Charges, and any additional terms and conditions applicable to the Customer’s use of the HabitJam Platform. Each Order Form is subject to the terms and conditions of this Agreement.
"Software" means the software components of the HabitJam Platform.
"Supplier" means HealthChase Pty Ltd, ABN 14 603 184 532.
"Third-Party Materials" means software, databases, interfaces, or other materials provided by third parties and made available to the Customer through the HabitJam Platform.
"Warranty Period" means the period of 30 days starting from the original date of installation of the HabitJam Platform.
2. General Terms
2.1 For Customers operating within the European Union, the terms and conditions set forth in the GDPR Compliance Addendum shall apply and are hereby incorporated into this Agreement by reference.
2.2 In the event of any conflict between this Agreement and any Order Form or other document referenced or included in this Agreement, the terms of this Agreement shall prevail unless expressly stated otherwise in such Order Form or document.
2.3 Any provisions of this Agreement that by their nature should survive termination or expiration shall so survive, including but not limited to provisions relating to confidentiality, intellectual property, liability, and dispute resolution.
2.4 This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
3. Scope of License
3.1 In consideration of the Charges, the Supplier grants the Customer a non-transferable, non-sublicensable, non-exclusive license to use the HabitJam Platform from the License Provisioning Date for the License Term.
3.2 The Customer shall ensure that only Authorized Users, as specified in the Order Form, use the HabitJam Platform, and shall not exceed the permitted number of users.
3.3 Licensing of additional users shall require an adjustment to the Charges, calculated proportionally.
3.4 The Customer is granted access to the base HabitJam platform and any pre-defined processes or content as described in the Order Form. In the absence of any specific program, process or module entitlements defined in the order form, the Customer will have access only to the basic HabitJam platform as offered to the market without any specific processes or premium features.
3.5 The Software shall be used solely for the Customer's internal business purposes and not provided to third parties.
3.6 The Customer agrees to comply with all usage restrictions, including not republishing, modifying, or reselling the Software.
3.7 The Customer will:
a) use the Software only in accordance with the Documentation and otherwise in accordance with terms of this Agreement;
b) not directly or indirectly (and will not allow or facilitate others to):
i. republish, reproduce code or functionality, reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software;
ii. create derivative works (as defined by 17 U.S.C. § 101) of, modify, adapt or otherwise alter the Software;
iii. resell, rent or lease the Software; or
iv. remove any product identification, copyright or other notices from the Software or associated documentation.
4. Access to the Software
4.1 Access to the HabitJam Platform is contingent upon payment of the Charges. The Supplier will provision the Software on the License Provisioning Date upon receipt of payment.
4.2 For each day that the payment or purchase order is late, the provisioning will be delayed by a day. The Customer acknowledges and accepts that, notwithstanding its license in paragraph 2.1 and its other benefits under this Agreement, it will be unable to access or use the Software until the provisioning is completed and that no extension to the License Term will be granted.
4.3 Access to the Software is granted to the Customer only for use by the Authorized Users in accordance with the terms of this Agreement.
5. Services
5.1 The Supplier will provide the Customer with initial one-off onboarding activities as defined in the Order Form. In the absence of this, no specific onboarding activities will be provided to the Customer.
5.2 Additional professional services, such as journey design, configuration, and testing assistance, will be provided if specified in the Order Form.
5.3 Training services will be provided on dates agreed upon by both parties and in accordance with the Supplier’s training terms, if training services are included in the Order Form.
6. The Customer’s Responsibilities
6.1 The Customer shall:
· Ensure compliance with licensing conditions.
· Use the Software only for its intended purposes and in accordance with documentation.
· Not allow more than one user per authorized login.
· Cooperate with and act in good faith towards the Supplier and provide all technical and business information and assistance reasonably required by Supplier to ensure effective use of the Software.
· Accept and acknowledge that the Supplier is not providing any hardware, hosting or connectivity services, change or program management consultancy services, or any software other than the Software.
· Acknowledge that the Supplier shall not be liable under this Agreement for any adverse impact on the Customer’s systems or other projects or programs resulting from the use of the HabitJam Platform.
· Not use the Software in any way that violates, plagiarizes, or infringes upon the rights of any others, including copyright, trademark, the right of privacy or the right of publicity, or that would be abusive, profane, obscene, indecent, threatening, defamatory, slanderous, libelous, offensive, or illegal.
· Not solicit the performance of any activity that is prohibited by law.
· Comply with all applicable laws, rules, and regulations in connection with this Agreement.
6.2 The Customer will not allow more than one user to gain access to the functionality of the Software under the login details of a single Authorized User (whether by multiplexing, sharing login details, etc.). The Customer accepts that the Supplier may monitor its use of the Software to verify that it complies with this paragraph 5.
6.3 The Customer shall not interfere with the Supplier's ability to monitor Software usage or data capture mechanisms.
6.4 The Customer is responsible for backing up their data and for restoring it as necessary.
7. Charges and Payment Terms
7.1 Charges are specified in the Order Form and are payable based on the terms outlined in the Order Form. Invoices will be issued in accordance with the payment schedule specified in the Order Form.
7.2 Late payments may result in suspension of access to the HabitJam Platform until payment is received.
7.3 Additional users given access to the HabitJam Platform may result in proportional adjustments to the Charges.
7.4 All payments must be made without set-off or deduction.
7.5 Applicable taxes and duties are the responsibility of the Customer and will be added to the Charges.
8. Intellectual Property Rights
8.1 The Supplier retains all intellectual property rights in the HabitJam Platform and associated materials. The Customer acquires no rights other than those expressly granted in this Agreement.
8.2 Third-Party Materials provided through the HabitJam Platform remain the property of their respective owners.
8.3 Use of User-Generated Content
8.3.1 The Customer retains ownership of all content uploaded to the HabitJam Platform by its employees, representatives and agents.
8.3.2 The Customer grants HabitJam a non-exclusive, worldwide, royalty-free license to use, reproduce, distribute, and display such user-generated content for the purposes of operating, providing, and improving the HabitJam Platform.
8.3.3 The Customer also grants HabitJam an exclusive license to use user-generated content in promotional materials, marketing, and advertising, provided that such use does not breach confidentiality obligations, complies with applicable privacy and data protection laws.
8.3.4 HabitJam agrees to respect the confidentiality of any sensitive information contained within the user-generated content and will not disclose any confidential information without prior consent from the Customer, consistent with the Confidentiality section of this platform agreement.
8.4 Use of User-Generated Data
8.4.1 The Customer grants HabitJam the right to use all user-generated data for the purpose of operating and improving the HabitJam Platform.
8.4.2 This includes, but is not limited to, detecting user behaviours and trends, analysing responses to different types of stimuli, conducting behavioural segmentation, and creating behavioural models.
8.4.3 HabitJam may utilize this data in its analytical, computational, algorithmic, or self-learning models to optimize platform management and user response strategies.
8.4.4 All such data will be used in an aggregated and anonymized fashion to ensure that no personal information of individual users is exposed or used in a manner that could identify any specific individual.
8.4.5 Any subsequent requirement to return or remove personal data from the HabitJam platform will apply only to the data specifically related to those person(s) and will not include any data derived from that personal data through algorithms, mathematical models or other means, when used in an anonymised fashion.
8.5 For Customers operating within the European Union, the processing of personal data shall be governed by the terms of the GDPR Compliance Addendum, which is incorporated herein by reference.
9. Confidentiality
9.1 Both parties shall keep all confidential information secure and not disclose it to third parties without the other party's consent.
9.2 Confidential information includes all non-public information disclosed by one party to the other.
9.3 Each party shall ensure that its employees, directors, and its Affiliates and their employees and directors: a) shall only be given access to Confidential Information received from the other party on a “need to know” basis for the purposes of this Agreement; b) shall have been made aware of the requirements of confidentiality set out in this Agreement; c) shall not cause or permit the Confidential Information to be disclosed to any third party.
9.4 The obligation of confidentiality survives the termination of this Agreement indefinitely or until such information becomes disclosed publicly.
10. Warranties
10.1 The Supplier warrants that it has the right to grant the licenses provided in this Agreement.
10.2 The Supplier warrants that the Software will be free from viruses and will perform substantially in accordance with the documentation during the Warranty Period.
10.3 The Supplier does not warrant that the Software or the functions contained therein will meet the Customer’s requirements, or operate without interruption or be error-free at all times, or be compatible with any third-party software or hardware except the HabitJam Platform.
11. Liability
11.1 The Supplier shall not be liable for any damages, including but not limited to direct, indirect, incidental, special, consequential, or punitive damages, arising out of or in connection with the use of the HabitJam Platform, even if advised of the possibility of such damages. This includes, without limitation, any loss of profits, revenue, data, or use of the software.
12. Customer Support
12.1 The Customer may report issues through the designated support channels provided by the Supplier.
12.2 Authorised Users may also report issues or ask for support specific to the use of the platform through features provided within the platform, such as “Ask the Gamemaster” Chat and Reporting content.
12.3 The Supplier will use commercially reasonable efforts to resolve reported issues in a timely manner.
13. Term and Termination
13.1 This Agreement remains in effect until the end of the License Term unless terminated earlier as provided herein.
13.2 Either party may terminate this Agreement for material breach if the breach is not cured within 30 days of notice.
13.3 Upon termination, the Customer must cease using the Software and return or destroy all copies of any information regarding the HabitJam Platform provided to it.
14. Force Majeure
14.1 Neither party shall be liable for delays or failures to perform due to events beyond their reasonable control.
14.2 The party affected by Force Majeure shall take all reasonable steps available to it to minimize the effects of Force Majeure on the performance of its obligations under this Agreement.
14.3 If a Force Majeure event continues for more than 30 days, either party may terminate the Agreement.
15. Public Announcements
15.1 The Customer grants the Supplier the right to use the Customer's name and logo in marketing materials and on a dedicated page on the Supplier’s website.
15.2 The Customer agrees to provide the supplier with a written quote, highlighting the benefits experienced by choosing the Supplier. The Customer Quote will be attributable to a senior employee of the Customer, as agreed with the Supplier.
15.3 The Customer agrees to be interviewed for the purposes of constructing a written case study by the Supplier or a nominated agent and its publication. The case study will set out quantitative benefits.
15.4 The Customer agrees to support the creation of a minimum of one video testimonial which includes Customer representatives being interviewed.
15.5 The Customer agrees to a written announcement of a new signed Order Form.
15.6 The Customer agrees to the Supplier using all material described in this section during the normal course of prospecting, selling and servicing of both new prospects and existing customers.
15.7 The Customer agrees to the Supplier providing this same information to third parties in the same manner to support their own business operations in relation to the Supplier.
16. Independent Contractor
16.1 The relationship between the parties is that of independent contractors. Nothing in this Agreement creates a partnership, joint venture, or employer-employee relationship.
16.2 Neither party will represent the other party in any capacity, bind the other party to any contract, or create or assume any obligation on behalf of the other party for any purpose whatsoever, except as expressly authorized by this Agreement.
17. Export Compliance Assurance
17.1 The Customer agrees to comply with all applicable export control laws and regulations.
17.2 The Supplier may terminate this Agreement if the Customer breaches this obligation.
18. Whole Agreement
18.1 This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings.
18.2 Any amendments to this Agreement must be in writing and signed by both parties.
18.3 Each Order Form signed by the parties shall accrete to and form part of a single agreement.
19. Headings and Interpretation
19.1 Headings are for convenience only and do not affect interpretation.
19.2 This Agreement shall be construed according to its fair meaning and not strictly for or against either party.
20. Assignment
20.1 Neither party may assign or transfer their rights or obligations under this Agreement without the other's written consent, except to Affiliates or in the case of a merger or acquisition.
21. Waiver
21.1 A waiver of any term or condition of this Agreement or any breach thereof must be in writing and does not constitute a waiver of any other term or condition or breach.
21.2 The failure of either party to enforce any provision of the agreement does not constitute a waiver of that provision or any other provision.
22. Notices
22.1 Notices under this Agreement must be in writing and delivered to the addresses specified in the Order Form.
23. Severability
23.1 If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
24. Amendments
24.1 This Agreement may be amended only by a written document signed by authorized representatives of both parties.
25. Third-Party Rights
25.1 This Agreement does not confer any rights on third parties, except as expressly provided.
26. Anti-Corruption
26.1 Both parties shall comply with all applicable anti-bribery and anti-corruption laws.
27. Dispute Resolution
27.1 In the event of any dispute arising out of or in connection with this Agreement, the parties shall first attempt to resolve the dispute through good faith negotiations.
27.2 If the dispute cannot be resolved through negotiations within 30 days, either party may request mediation administered by a mutually agreed-upon mediator.
27.3 If the dispute is not resolved within 60 days of mediation, either party may commence arbitration in accordance with the rules of the Australian Centre for International Commercial Arbitration (ACICA).
27.4 The decision of the arbitrator shall be final and binding on both parties. Each party shall bear its own costs of arbitration.
27.5 The place of arbitration shall be Sydney, New South Wales, Australia, and the language of the arbitration shall be English.
28. Law and Jurisdiction
28.1 This Agreement is governed by the laws of New South Wales, Australia. Any disputes shall be resolved in the courts of New South Wales.
GDPR COMPLIANCE ADDENDUM FOR EU CUSTOMERS
Note that this addendum is only applicable for customers licensing the HabitJam Platform in the European Union. For all other jurisdictions this addendum is not applicable nor enforceable.
This GDPR Compliance Addendum forms part of the Agreement between the Supplier and the Customer, collectively referred to as the "Parties."
1. Definitions
· "Data Protection Laws" means all applicable laws and regulations relating to the processing of personal data and privacy, including, where applicable, the guidance and codes of practice issued by supervisory authorities, including but not limited to the GDPR.
· "GDPR" means the General Data Protection Regulation (EU) 2016/679.
· "AWS" means Amazon Web Services, the cloud infrastructure provider used by the Supplier to host the HabitJam Platform.
2. Compliance with Data Protection Laws
2.1 Both parties agree to comply with all applicable Data Protection Laws in relation to the processing of personal data under this Agreement.
3. Data Processing
3.1 Role of the Parties: The Customer acts as the data controller, and the Supplier acts as the data processor with respect to personal data processed on behalf of the Customer in the provision of the HabitJam Platform.
3.2 Processing Instructions: The Supplier shall process personal data only on documented instructions from the Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by EU or Member State law to which the Supplier is subject.
3.3 Data Processing Agreement: The parties shall enter into a separate Data Processing Agreement (DPA) that complies with the requirements of Article 28 of the GDPR.
4. Use of AWS
4.1 AWS as Sub-processor: The Supplier uses AWS as a sub-processor to host the HabitJam Platform. AWS's role is to provide the infrastructure and services necessary to host and run the platform.
4.2 AWS Compliance: AWS complies with GDPR and has implemented appropriate technical and organizational measures to ensure a level of security appropriate to the risk. More information about AWS’s data protection and GDPR compliance can be found at the AWS GDPR Centre.
4.3 Data Transfers: Data processed by AWS may be transferred and stored in data centres located in various regions. AWS ensures that any data transfer outside the EU is compliant with GDPR requirements, including the use of Standard Contractual Clauses (SCCs) and adherence to the EU-US Privacy Shield Framework (if applicable).
5. Security of Processing
5.1 The Supplier shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
6. Sub-processors
6.1 The Supplier shall not engage another processor without prior specific or general written authorization of the Customer. In the case of general written authorization, the Supplier shall inform the Customer of any intended changes concerning the addition or replacement of other processors, thereby giving the Customer the opportunity to object to such changes within 30 days.
6.2 The Customer authorizes the Supplier to use AWS as a sub-processor for hosting and infrastructure services. Any other sub-processors will be communicated to the Customer for approval.
7. Data Subject Rights
7.1 Considering the nature of the processing, the Supplier shall assist the Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR.
8. Data Breach Notification
8.1 The Supplier shall notify the Customer without undue delay after becoming aware of a personal data breach. The Supplier shall assist the Customer in meeting the Customer’s obligations pursuant to Articles 33 and 34 of the GDPR.
9. Data Protection Impact Assessment
9.1 The Supplier shall provide reasonable assistance to the Customer with any data protection impact assessments and prior consultations with supervisory authorities or other competent data privacy authorities, which the Customer reasonably considers to be required by Article 35 or 36 of the GDPR, in each case solely in relation to processing of Customer Personal Data by and considering the nature of the processing and information available to, the Supplier.
10. Return or Deletion of Personal Data
10.1 At the choice of the Customer, the Supplier shall delete or return all the personal data to the Customer after the end of the provision of services relating to processing and delete existing copies unless EU or Member State law requires storage of the personal data.
11. Audit Rights
11.1 The Supplier shall make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer.