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Master Services Agreement - Australia

THIS MASTER SERVICES AGREEMENT (“MSA”) SETS OUT THE STANDARD TERMS APPLICABLE TO ALL SERVICES PROVIDED BY LITHIUM TECHNOLOGIES, INC. (“LITHIUM”). YOU (“CUSTOMER”) SHOULD CAREFULLY READ THIS MSA BEFORE SIGNING A SERVICE ORDER (“SO”) UNDER IT, AS EACH SO FORMS PART OF AND IS SUBJECT TO THIS MSA. BY SIGNING A SO, YOU CONFIRM THAT YOU HAVE READ AND ACCEPT THIS MSA. ANY DIFFERENT OR ADDITIONAL TERMS YOU MAY REFERENCE OR PROVIDE ARE OF NO EFFECT UNLESS THEY ARE AGREED IN WRITING BY US.

1 Definitions

1.1 “Applications” mean the software applications provided by Lithium under this MSA along with applicable documentation and programming and user interfaces (other than Customer Interface Elements), whether or not hosted by Lithium.

1.2 “Application Calls” is a unit of service volume which measures use of the Application via calls to the Application’s REST API and ActiveCast components (each as described in the applicable SO or the Documentation).

1.3 “Business Day” means a day which is not a Saturday, Sunday, a public holiday or a bank holiday in the State of New South Wales, Australia, and “Business Hours” means 9:00am to 5:00pm on a Business Day.

1.4 “Change Request” or “CR” means a Customer request for Applications customization by Lithium, and the resulting work product. Each CR that is accepted in writing by Lithium forms part of this MSA.

1.5 “Content” means the data, information and materials processed and/or stored by the Applications hereunder (including certain of Customer’s Confidential Information and the Protected Data), other than information and materials provided by Lithium.

1.6 “Contract Volume” or “Usage Limit” means the maximum number of relevant units of service volume, as specified in the applicable SO. In addition to the Usage Limit specified in the applicable SO, the following monthly Usage Limit will apply unless the applicable SO specifies an increase: 1 million Application Calls, 10 million RSS Feed Views (the number of messages pushed via RSS); 40 million Attachment Segments (the number of 25kb data blocks uploaded or downloaded as attachments).

1.7 “Customer” means the legal entity signing this MSA.

1.8 “Customer Interface Elements” means any Customer-provided software or other materials inserted in or added to the Application’s user interface including (i) header, footer, left and/or right sidebars and (ii) text, graphic files, and cascading style sheets.

1.9 “Customer Users” means the individuals authorized by Customer to access and/or use the Subscription Services on behalf of Customer. Customer Users include the following types, further defined below, for purposes of calculating Usage Limits and related fees:

  • 1.9.1 “Operational Analytics Users” means, in relation to the Lithium Response Application, the individuals who have access to analytics dashboard features of the Application in addition to Named Users permissions.
  • 1.9.2 “Expert Users” means the individuals who may view and internally comment while using the Applications but cannot respond to, publish to, or coomnicate with external End Users.
  • 1.9.3 “Named Users” means the individuals who have access to the Application for the purposes of communicating with both internal Customer Users and external End Users. Examples of Named User roles would include: Agent, Supervisor, Account Admin, Publisher, and/or Publisher Admin.

1.10 “Documentation” means Lithium’s online user guides, documentation, and help and training materials, as updated from time to time, accessible via Lithium’s support portal lithosphere.lithum.com or website lithium.com.

1.11 “End Users” means individuals or third parties, other than Customer Users, who access and/or participate in Customer’s online communities hosted by Lithium as part of the Subscription Services.

1.12 “Force Majeure” means an event beyond a party’s reasonable control and which such party is unable to overcome by exercise of reasonable diligence, including acts of God, war, terrorism, strikes, failure of suppliers, fires, floods and earthquakes, but not including a lack of funds for any reason.

1.13 “GST” has the meaning given in the GST Act.

1.14 “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).

1.15 “include/including” means include but not limited to / including without limitation.

1.16 “Personal Information” has the meaning given to that term in the Privacy Act 1988 (Cth).

1.17 “Privacy Law” means all legislation, principles, industry codes and policies (as amended from time to time) relating to the collection, use, disclosure, storage or granting of access rights to the Personal Information, and includes the Privacy Act 1988 (Cth), the SPAM Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth).

1.18 “Protected Data” has the meaning set out in Section 12.

1.19 “Subscription Duration” is specified in the applicable SO, and starts on the Subscription Start Date.

1.20 “Service Order” or “SO” means the order issued by Customer for Applications and Services, on Lithium’s standard form (and including any associated SOW), subject to the terms set out in this MSA.

1.21 “Services” means, as applicable, the (i) hosting services for delivery and storage of the Applications and Content (“Hosting Services”), and/or (ii) professional services as specified in a CR or SO, such as moderation or analytics, if any (“Professional Services”).

1.22 “SOW” means a statement of work attached and forming part of to a SO.

1.23 “Subscription Start Date” is defined in the applicable SO.

1.24 “Tax Invoice” has the meaning given to that term by the GST Act.

1.25 “Total Visits” means the maximum number of Visits specified in the applicable Service Order.

1.26 “Users” means collectively End Users and Customer Users.

1.27 “Visits” is a measure of Application usage meaning the number of visits to a page containing Application tracking code.

2 Services

2.1 Professional Services. Lithium shall perform the Professional Services purchased by Customer in a Service Order and/or SOW during the period stated therein.

2.2 Hosting Service. Lithium will provide access to and host the Applications listed in the SO, in compliance with the service level agreement in Appendix 1 of this MSA (the “SLA”), during the Subscription Duration and any renewals.

2.3 Customer Duties. Customer must manage the Content and administer the Applications using their interfaces in a lawful manner and without infringing the rights of any person, including intellectual property and privacy rights. Customer must provide Lithium with all information, access, and full good faith cooperation reasonably necessary to facilitate the provision of the Services, and must also perform any obligation identified in a SO as Customer’s responsibility. If Customer delays or fails to perform under this Section, Lithium will be excused from performing its obligations to the extent and/or for so long as those obligations are dependent on such Customer performance.

3 Ownership. Grant of Rights

3.1 No Intellectual Property Assignment or Implied Licenses. The parties agree that no ownership interest in intellectual property or other rights is assigned or otherwise transferred under this MSA, and disclaim any implied licenses. Except for licenses expressly granted in this Section 3 and Section 5, as between the parties, Customer retains all rights, title and interest in the Content and Customer Interface Elements, and Lithium retains all rights, title and interest in the Applications and Services, including any intellectual property rights in or to them.

3.2 Content and Customer Interface Elements. Subject to the terms of this MSA, and solely for purposes of Lithium’s performance of this MSA, Customer grants to Lithium a temporary, limited, non-exclusive, world-wide, royalty-free licence to copy, create derivative works, and display Customer Interface Elements and Content. Lithium will use the Customer Interface Elements and Content strictly as necessary to carry out its obligations under this MSA, and for no other purpose whatsoever.

3.3 Applications. Subject to the terms of this MSA, Lithium grants to Customer, a temporary, limited, non-exclusive, non-transferable, world-wide use licence to use the administration, Content management, and end user interfaces of the Applications listed in the applicable SO. Only Authorized Users may use the Hosted Services, and only up to the permitted number of Named Users specified in the applicable Service Order. Lithium may, at its option, grant Customer access to a stage/development instance(s) and/or other non-production instance of the Application(s) for collaborative activities in connection with Lithium’s provision of Professional Services to Customer and/or Customer’s internal testing purposes. Such access and use by Customer shall be subject to all of the provisions of the MSA in regards to Applications, except that Customer’s use and access to such stage/development instance(s) shall be restricted solely to development and testing activities as directed by Lithium, and the warranty, support and SLA provisions of the MSA shall not apply to such stage/development instance(s).

3.4 Restrictions. Customer must:

  • 3.4.1 not copy, distribute, modify, reverse engineer, decompile, attempt to obtain the source code or algorithms of, sell, rent, lease, license, sublicense, resell or transfer any Application;
  • 3.4.2 not use the Applications to spam, send unsolicited e-mail, or conceal the identity of an e-mail sender, or otherwise in any manner that would breach (or place Customer or Lithium in breach of) any Privacy Law;
  • 3.4.3 obtain consent from the Named Users before uploading any Named User Personal Information as Content, or providing any Named User Personal Information to Lithium (such consent to cover use of that information by Lithium if provided to Lithium for the purpose of its performance of the Services);
  • 3.4.4 impose on Named Users, a written and binding obligation to obtain consent from the relevant individual before uploading any Personal Information of that individual as Content, or providing such Personal Information to Lithium (such consent to cover use of that information by Lithium if provided to Lithium for the purpose of its performance of the Services);
  • 3.4.5 not use Applications as a service bureau or for the benefit of any third party other than its authorized end users of the Applications, whether on a paid or unpaid basis;
  • 3.4.6 not store, distribute or transmit through the Applications any material that is unlawful, obscene, defamatory, threatening or harassing or that infringes any privacy or proprietary rights, and will not allow or authorize anyone to do so;
  • 3.4.7 include, in the terms of use for communities based on Application(s), provisions that:
    • (i) notify users that Lithium owns all copyright and other intellectual property rights in the Applications and the Services;
    • (ii) state that neither Customer nor Lithium (Relevant Supplier) will be responsible or liable to any person for any Content posted by a user if the Relevant Supplier complies with any notice of claimed infringement and counter-notices and any court orders relating to take-down or put back, as if the provisions of Regulations 20I to 20W of the Copyright Regulations 1969 applies to the Relevant Supplier (with references in those regulations to “carriage service provider” being read as a reference to the Relevant Supplier);
    • (iii) prohibit storage, distribution or transmission through the Applications, of any material that is unlawful, obscene, defamatory, threatening or harassing or that infringes any privacy or proprietary rights (and state that the user will also not allow or authorize anyone else to do any of the foregoing);
    • (iv) advise end users not to disclose or solicit any Personal Information when using the Application or the Services (including when posting Content);
    • (v) reserve the right to suspend users who breach the provisions of paragraphs (ii) to (iv) of this Section;
    • (vi) state that the end user is responsible for the use by third parties of any Personal Information disclosed by the end user to the community, whether such use was permitted or not by the end user; and
    • (vii) the end user indemnifies Customer and Lithium for any claim that may arise as a result of such disclosure, solicitation or use;

3.4.8 enforce the provisions referred to in Section 3.4.7, and comply with any take-down notices, and orders arising from counter-notices and put-back notices; and

3.4.9 only allow access to the Applications, to its end users who expressly agree to comply with the restrictions in this Section 3.4.

4 Payment of fees.

4.1 Invoicing and Payment generally. Customer shall pay Lithium the fees set out in the applicable SO. Invoices for Professional Services may include reasonable expenses that have been pre-approved in writing by Customer. Implementation, Professional Services and other non-recurring fees will be invoiced when such Services are requested. Recurring fees for the first year of the Subscription Duration of a valid SO will be invoiced on execution of such Service Order. Subsequent recurring fees will be invoiced 30 days before the start of the following annual period.

4.2 Pricing for renewal periods. Lithium may increase the Customer’s renewal pricing for the Services set out in a SO by up to 6% (the “Renewal Price Cap”) of the fees applying to that SO immediately before renewal. No such increase will be applied, however, if: (a) the renewed Services are of reduced scope or volume; or (b) the Services are not renewed before expiry of the SO.

4.3 Due date for payment. Payment is due 30 days from the effective date of the SO (unless otherwise stated in the SO). Non-payment or late payment of undisputed fees is a material breach of this MSA. If undisputed fees are not paid by the due date, and if they remain unpaid for a further 15 days, then Lithium may: (a) impose interest on the overdue balance at 1% per month or the maximum permitted by law (whichever is less), and recover all expenses of collection and/or (b) terminate this MSA (including all SOs), or the relevant SO, for such material breach or otherwise suspend Customer’s access to the Hosting Services until past due amounts are paid. If Lithium terminates this MSA and/or any SO for non-payment, all unpaid fees for the remainder of any original active Subscription Duration will be immediately due (as if the MSA/SO had not been terminated and payment of the fees under it had been moved forward to the date of such termination).

4.4 Taxes etc. All taxes and other governmental charges including GST or withholding taxes, applying to Customer payments or the Applications and Services under this MSA (except for income taxes) are in addition to the fees charged, and borne solely by Customer. To the extent any supply made in connection with this MSA is a Taxable Supply (as defined in GST Act) then the GST-exclusive consideration for it will be increased by an amount equal to that consideration multiplied by the rate at which GST is imposed on that supply (except to the extent that the consideration is expressed to be inclusive of GST). The additional consideration is payable at the same time and in the same manner as the consideration to which it relates. If any amount is payable as a reimbursement, indemnification or similar payment calculated by reference to a loss, cost, expense or other amount incurred, then that amount must be reduced by any input tax credit available to that party. The party that makes the supply must provide the recipient of the supply a valid Tax Invoice.

4.5 All payment obligations are non-cancelable and all amounts paid are non-refundable, except as otherwise stated in this MSA.

4.6 If this Section 4 conflicts with an applicable SO, the terms of the SO will prevail.

5 Marketing.

Each webpage served by the Applications will contain a link identified by the Lithium logo and trademark similar to equivalent Lithium deployments and Lithium may use Customer’s name and logo on Customer’s Applications deployment. Subject to Customer’s prior written approval (not to be unreasonably withheld) Lithium may:

5.1 identify Customer as a Lithium customer; and

5.2 issue a press release and case study about Customer’s selection and use of the Application(s) and Service(s).

6 Term and termination

6.1 Term and termination of the MSA. This MSA may be terminated for convenience by either party on 90 days’ prior written notice to the other, except that it will remain in effect past such termination for the remaining term of any SO in effect at the time of the notice.

6.2 Term of a SO. The initial term of a SO starts on its Subscription Start Date, and ends on the last day of its Subscription Duration. A SO will automatically renew for subsequent terms equal to the Subscription Duration unless either party notifies the other in writing of its intent not to renew at least 90 days before expiry of the then current term.

6.3 Termination for breach. Either party may immediately terminate this MSA and all SOs if the other party commits a material breach that is not cured within 30 days after receipt by the other party of written notice specifying the breach and requiring it to be remedied. Either party may also immediately terminate a SO for material breach by the other party of the specific terms of the SO if that breach is not cured within 30 days after receipt of such a written notice.

6.4 Termination for insolvency. Either party may terminate this MSA and all SOs on notice to the other if the other party ceases to conduct business in the ordinary course without a successor.

7 Consequences of termination.

7.1 Immediately on termination: (a) the licence grants to either party will terminate; (b) each party will destroy or return to the other party any and all Confidential Information or Personal Information received from the other party; and (c) Customer will cease to use the Applications and Lithium will cease hosting the Applications.

  • 7.1.1 If only one or more SOs are terminated but the MSA and other SOs remain in effect, Section 7.1 will only apply to the SO(s) being terminated.
  • 7.1.2 Fees for partially completed Professional Services will be due within 30 days, prorated to the number of hours expended or the milestones reached.
  • 7.1.3 Termination will not relieve Customer from its obligation to pay all undisputed charges accrued before the effective date of termination.
  • 7.1.4 The parties' rights and obligations under this Section 6, and under Sections 3.1 (No IP Assignment), 3.4 (Restrictions), Section 9 (Indemnification), 10 (Limitation of liability), 11 (Confidentiality), 16 (Governing law and jurisdiction), 17 (Arbitration) and 18 (General provisions) will survive such termination of expiry.

7.2 Transition Assistance. Within 14 days after a termination notice, the parties will discuss the transfer of Content. All Customer Confidential Information and Content will be provided by Lithium to Customer in standard industry format (XML or equivalent) free of cost on a mutually agreed schedule. Lithium will provide additional reasonable assistance for Customer’s transition from its hosted environment, at Lithium’s standard Professional Services rate as agreed by the parties (each acting reasonably and in good faith).

8 Limited warranties

8.1 Non-Infringement. Lithium warrants to Customer that it can grant the rights set out in Section 3.3 with respect to the Applications. If any Application is held or believed by Lithium to infringe or misappropriate any third party’s intellectual property rights, or its provision is enjoined, Lithium may, at its expense: (a) modify the Application, without materially degrading performance or functionality, so that it no longer infringes or misappropriates; (b) obtain for Customer the right to continue accessing the appropriate interfaces of the Application; (c) substitute the Application with another, substantially comparable application; or (d) if none of (a) to (c) are commercially feasible, terminate the Hosting Service for such Application and refund Customer any recurring fees prepaid for that portion not yet provided. Together with Section 9.1 (Indemnification), this section states Lithium’s entire liability and Customer’s exclusive remedy for infringement and misappropriation.

8.2 Hosting and Professional Services. Lithium warrants to Customer that its Hosting Service and Applications will substantially perform according to the SLA and relevant specifications set out in the applicable online documentation and that the Professional Services work product will substantially conform to the applicable CR or SOW. If, after the Subscription Start Date, the Hosting Service or an Application fails to substantially perform according to specifications and Customer timely notifies Lithium of such failure, Lithium will promptly modify the Hosting Service / Application to conform, or will (after first using its reasonable efforts to fix the failure) refund or credit Customer the fees paid for such Application / Hosting Service for the duration of such failure, prorated to reflect the number and importance of the failed or materially underperforming functionality relative to the total set of functions, options and configurations provided by the Application / Hosting Service. If Customer rejects a CR for Professional Services, and Lithium is not able to cure per the SOW, Lithium will fully refund the amounts received for such CR. This section (along with the ability to terminate pursuant to Section 6 for repeated material failures) states Lithium’s entire liability and Customer’s sole remedy for any Application, Hosting or Professional Services performance failures the subject of this Section 8.2.

8.3 DISCLAIMER. EXCEPT AS SET OUT IN THIS SECTION 8 OR OTHERWISE REQUIRED BY LAW, LITHIUM MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. LITHIUM ALSO DOES NOT WARRANT THAT THE APPLICATIONS OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. LITHIUM'S LIABILITY FOR BREACH OF A STATUTORY IMPLIED TERM OR WARRANTY THAT CANNOT BE EXCLUDED BY LAW IS LIMITED (AT LITHIUM’S OPTION AS TO REMEDY SELECTED) TO:

  • 8.3.1 REPLACING OR REPAIRING RELEVANT GOODS, OR SUPPLYING EQUIVALENT GOODS;
  • 8.3.2 PAYING THE COST OF REPLACING, REPAIRING, OR SUPPLYING EQUIVALENT, GOODS;
  • 8.3.3 RE-PERFORMING RELEVANT SERVICES OR PAYING THE COST OF DOING SO.

Customer acknowledges that the architecture and security algorithms implemented by the Applications and Hosting Service have inherent limitations and Customer is solely responsible for determining that the Applications / Services reasonably meet Customer’s functionality, security, confidentiality and operational needs.

9 Indemnification

9.1 Indemnification by Lithium. Lithium indemnifies Customer as specified in Section 9.3 for any third party claim that the Applications or Services, used within the scope of this MSA and in accordance with the applicable documentation, infringe a patent or any other third party intellectual property rights, except to the extent such claim is based on:

9.1.1 CRs or other specifications provided by Customer (where it is the actual design, specification, instruction, or technical information that causes the infringement, rather than the particular coding or manner of implementation used by Lithium (to effect a design, specification or instruction) that does so); or

9.1.2 Customer Interface Elements or Content.

9.2 Indemnification by Customer. Customer indemnifies Lithium as specified in Section 9.3 for any third party claim arising from: (i) Customer’s alleged use of Applications or Services in an unlawful manner or in a manner inconsistent with the terms of this MSA, including Section 3.4 (Restrictions); or (ii) Content or Customer Interface Elements (including, without limitation, infringing the intellectual property rights or other rights of that third party); or (iii) Customer’s breach of any applicable Privacy Law, or failure to obtain (or require the end user to obtain) privacy consents to allow Lithium to use Personal Information (provided by Customer or its end users) required for the purpose of performing Lithium’s obligations under this MSA.

9.3 Scope and conditions of indemnification. The indemnifying party will defend, at its expense, the other party and its officers, directors, shareholders, employees, agents and affiliates, subsidiaries, successors and assigns against any third party claims, actions or demands, to the extent arising from a cause specified in Sections 9.1 or 9.2, respectively, and will pay any resulting final judgment or arbitral award or any agreed settlement. These indemnification obligations are subject to the following conditions to the extent failure to meet these conditions would be materially detrimental to the indemnifying party: (i) prompt written notice by the indemnified party to the indemnifying party of any claim, action or demand for which indemnity is claimed; (ii) complete control of the claim defence and settlement by the indemnifying party; and (iii) such reasonable cooperation by the indemnified party in the defence as the indemnifying party may request (but at the indemnifying party’s cost).

10 LIMITATION OF LIABILITY.

EXCEPT FOR LIABILITY UNDER SECTIONS 3.4 (RESTRICTIONS), 4 (PAYMENT OF FEES), 9 (INDEMNIFICATION) AND 11 (CONFIDENTIALITY), OR FROM PERSONAL INJURY OR PHYSICAL DAMAGE, NEITHER PARTY’S LIABILITY UNDER OR IN CONNECTION WITH THIS MSA (INCLUDING ALL SERVICE ORDERS UNDER IT) WILL EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE IMPLICATED DURING THE 12 MONTHS PRIOR TO THE EVENT TRIGGERING SUCH LIABILITY. NEITHER PARTY WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR BY ANY THIRD PARTY, INCLUDING DAMAGES BASED ON:

10.1 LOSS OF PROFITS, REVENUE OR DATA, OR

10.2 LOSS FLOWING FROM A LOSS OF SERVICE OR USE,

HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION 10 REPRESENTS A REASONABLE ALLOCATION OF RISK AND AN IMPORTANT CONSIDERATION IN DETERMINING THE FEES PAYABLE UNDER THIS MSA. NEITHER PARTY WILL BE LIABLE UNDER THIS MSA (INCLUDING UNDER ANY INDEMNITY) TO THE EXTENT THE RELEVANT LOSS, DAMAGE OR CLAIM WAS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY, ITS EMPLOYEES, CONTRACTORS OR AFFILIATES. EACH PARTY WILL MITIGATE, TO THE EXTENT REASONABLY POSSIBLE, ITS LOSS ARISING FROM A BREACH BY THE OTHER OR FROM AN EVENT COVERED UNDER ANY INDEMNITY SET OUT IN THIS MSA, PROVIDED THAT THIS DUTY WILL NOT LIMIT OR EXCLUDE ANY EXPRESS RIGHT OR REMEDY SET OUT IN THIS MSA. NOTHING IN THIS CLAUSE 10 WILL LIMIT OR EXCLUDE A PARTY’S LIABILITY TO THE EXTENT THAT DOING SO IS PROHIBITED BY LAW.

11 Confidentiality

11.1 Confidential Information. “Confidential Information” means information, disclosed by a party to the other in connection to this MSA, which is either marked confidential or disclosed in circumstances in which a reasonable person would consider the information to be confidential. It includes the terms of this MSA, Protected Data, Applications, Services, the present or future functionality of the Applications, and all technical information underlying such functionality. It does not include information that the receiving party can demonstrate: (i) was in receiving party’s possession before receipt from the disclosing party; (ii) is or becomes publicly available other than through a breach of this MSA; or (iii) is rightfully received from a third party without a duty of confidentiality. The receiving party must provide prompt advance written notice if Confidential Information is required to be disclosed pursuant to applicable law, regulation or court order, to enable the disclosing party to seek a protective order or otherwise prevent such disclosure.

11.2 Protection of Confidential Information. The receiving party must use the same degree of care as it uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care, to prevent: (a) use of the disclosing party’s Confidential Information for any purpose other than to carry out the terms of this MSA: and (b) disclosure of such Confidential Information to any person or party other than those who need to know such Confidential Information to carry out the terms of this MSA and who are bound by written confidentiality agreements reflecting the requirements of this clause 11. This MSA may be disclosed in confidence to legal counsel or other professional advisors with a need to know in the context of a merger, financing or similar transaction or for securities or other regulatory filings. Each party acknowledges that unauthorized disclosure of the other party’s Confidential Information would cause irreparable harm to the other party, and would entitle the other party to seek injunctive relief upon disclosure or threatened disclosure, without a requirement to prove irreparable harm or the posting of a bond.

12 Protected Data.

Customer acknowledges that the Applications are designed and the Services are provided for the purposes of sharing information and enabling public communications with and among end users, and not for the storage, management or processing of Personal Information or other confidential data. Some Personal Information is required to use the Application and provide Services such as email address, password, and a user name (“Protected Data”). Lithium will comply with the Privacy Law with respect to Protected Data and will take commercially reasonable measures to safeguard Protected Data, along with any Customer specific security or privacy terms specified in the SO or otherwise notified to Lithium in writing, provided that Customer must:

12.1 use all reasonable efforts to prevent unauthorized access to or use of Services or Applications;

12.2 notify Lithium promptly of any such unauthorized access or use;

12.3 use Services or Applications only in accordance with the Documentation and as instructed by Lithium Support and Information Security representatives;

12.4 use a standard Lithium SAN SSL certificate;

12.5 abide by all applicable laws and government regulations; and

12.6 comply with Section 3.4 and the terms of service referred to in Section 3.4.7 at all times.

Lithium will not be responsible for protecting Personal Information processed or stored by the Applications that is not Protected Data, or Protected Data not entered in or submitted via approved interfaces. Customer will be solely responsible for any failure of the Services and Applications to protect any Personal Information (including Protected Data), including through any security breach, that results from Customer’s negligence or misconduct with respect to systems or processes under Customer’s control. Customer acknowledges that Lithium may store and process Protected Data and Content in its data centres in the United States and the Netherlands. However, Lithium will not transfer any Personal Information outside Australia, the EU or USA without the Customer’s prior written consent or as provided in this MSA. Lithium will promptly notify Customer of any threatened or actual breach of this Section 12 and, if requested by Customer (at Customer’s cost, unless Lithium is in breach of its obligations under this Section 12), co-operate with Customer to resolve any complaint made under any Privacy Laws.

13 Aggregated Data.

Lithium may compile Content and usage information that has been stripped of all Personal Information and may use this aggregated information, both during and after the term of this MSA, to determine and report Applications and Services usage patterns by customers and end users generally, provided that such use does not identify Customer or any end user.

14 SSAE 16 Audit and ISO 27001:2005 Standard Compliance.

Lithium will conduct an annual SSAE 16 SOC audit and maintain ISO 27001 certification during the term of this MSA and will, on request, provide Customer a valid ISO 27001 certificate or SSAE 16 SOC Type II audit report covering the Applications and Services.

15 Insurance.

Lithium will maintain at all times during the term of this MSA, at its own expense, the following minimum policies with insurance companies rated “A” or better by AM Best:

15.1 statutory workers compensation insurance in the states or territories in which its employees are located, with coverage limits no less than statutorily required;

15.2 public liability insurance with coverage limits for bodily injury and property damage liability of at least $1,000,000 for each occurrence, and at least $2,000,000 general aggregate, with umbrella liability coverage of $4,000,000 per occurrence;

15.3 professional indemnity insurance with coverage limits of $5,000,000 per occurrence, with excess coverage of $5,000,000 per claim and $5,000,000 aggregate subject to $75,000 deductible;

15.4 Cyber-risk insurance with coverage limit of $5,000,000 per claim and $5,000,000 total limit of coverage for development and online services;

15.5 employer’s liability insurance as part of Lithium’s umbrella policy with coverage limits of at least $1,000,000 (a) for each accident and (b) for each employee for occupational disease (this coverage is afforded in Lithium’s master workers’ compensation program); and

15.6 business automobile liability insurance with a single limit of at least $1,000,000 per occurrence for bodily injury and property damage liability (this automobile insurance does not cover independent contractors). Lithium must provide Customer with evidence of the currency of the required insurance on request.

16 Governing law and jurisdiction.

This MSA is governed by the laws of New South Wales, Australia without regard to its conflict of law principles and, subject to clause 17, the parties submit to the non-exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters relating to this MSA.

17 Dispute Resolution.

The parties must attempt to settle any dispute within 15 days after notice of the dispute is given by a party to the other. If the parties are unable to resolve any dispute relating to this MSA within 15 days after notice of such dispute (or such longer time as the parties agree in writing), then the dispute must be submitted to an arbitration in Sydney, Australia, in accordance with the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators Australia, which rules are taken to be incorporated into this MSA. The award of the arbitrator will be final and binding on the parties, and each party waives, to the fullest extent permitted by law, any right it may otherwise have under the laws of any jurisdiction to any form of appeal. Notwithstanding this Section, either party may apply to any court of competent jurisdiction for immediate injunctive relief. The losing party in any dispute must pay all costs, expenses and reasonable attorneys' fees of the prevailing party.

18 General provisions.

The parties are independent contractors. This MSA (including the SLA, SOW and SOs) contains the entire agreement of the parties, supersedes any prior or present understanding or communications regarding its subject matter, and may only be amended by agreement in writing. If any provision of this MSA is held by a court of law or other governmental agency to be void or unenforceable, it will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law (or failing that, will be severed from this MSA), and the remaining provisions will remain in full force and effect. Neither party may assign any of its rights or obligations under this MSA without the other party’s prior written consent (not to be unreasonably withheld) except pursuant to a merger, consolidation or sale of substantially all of its assets related to this MSA – in which case it must promptly notify the non-assigning party in writing of the assignment and obtain the assignee’s agreement in writing to be bound by this MSA. This MSA is binding on and inures to the benefit of the parties and their successors and permitted assigns. Neither party will be deemed to be in breach of this MSA for any failure or delay in performance (except in respect of payment of money) to the extent caused by Force Majeure, provided that it takes all reasonable steps to mitigate the effects of the Force Majeure and resume performance of its affected obligations as soon as reasonably practicable.