General Terms and Conditions

1. Agreement between 6clicks and Users 

1.1 Structure of the Agreement 

(a) These General Terms set out the detailed terms applicable between 6clicks Trading Pty Ltd ACN 634 263 166 (6clicks) and a Customer, a Service Provider, or an Assessment Counterparty (collectively referred to as Users).

(b) The agreement between the parties includes: 

(i) these General Terms;  

(ii) any document incorporated by reference in these General Terms and the Customer Terms, the Service Provider Terms (Reseller Arrangement), or the Service Provider Terms (Referral Arrangement) (as applicable); and

(iii) the Customer Terms, the Service Provider Terms (Reseller Arrangement), or the Service Provider Terms (Referral Arrangement) (as applicable),

(collectively referred to as the Agreement) and in the event of any inconsistency between these documents, the document appearing lower in the list set out above will prevail to the extent of the inconsistency. 

1.2 Updates to these terms 

6clicks may change these General Terms, the Customer Terms, the Service Provider Terms (Reseller Arrangement), or the Service Provider Terms (Referral Arrangement) at any time by notice to the User. If the User:

(a) does not accept the changes, it may terminate the Agreement in accordance with clause 13.3(a); or

(b) does not terminate the Agreement in accordance with clause 13.3(a), the Agreement will continue in effect and the changes will apply to the Agreement with effect 30 days from 6clicks’s notice of the changes.

2. License

2.1 Grant and Term of Licence  

(a) Subject to the User complying with this Agreement, 6clicks grants to the User, and the User accepts, a non-transferable, non-exclusive, revocable licence to: 

(i) if the User is a Customer or Service Provider, access and use the Platform for the purposes set out in this Agreement on a monthly rolling basis unless this Agreement is terminated in accordance with clause 13; or 

(ii) if the User is an Assessment Counterparty, access and use the Platform for the purpose of completing and submitting Assessments to a Customer only. 

(b) The User must not access or use the Platform for any purpose other than its internal business use except to the extent the Platform is designed to allow the User to use the Platform to engage with third parties (for example, in order for a Customer to obtain Products from a Service Provider).  

2.2 Authorised Users 

The User may authorise its Authorised Users to access and use the Platform. The User acknowledges and agrees that it:  

(a) is responsible for the access to and use of the Platform by its Authorised Users, including their compliance with this Agreement; and

(b) will be liable for all acts and omissions of its Authorised Users as if they were the User’s own acts and omissions.

3. Platform

3.1 Subscription Scope

(a) 6clicks will provide the Platform in accordance with the Subscription Scope as selected by the User, on the terms and conditions set out in this Agreement. 

(b) The Subscription Scope and their respective features and functionality are further described at https://6clicks.io/pricing or as set out in the Schedule.  

(c) The parties may at any time agree to vary the User‘s selected Subscription Levelincluding any related variation to the Fee.

3.2 Availability 

(a) Although 6clicks will use commercially reasonable efforts to ensure the Platform is available 24 hours a day, 7 days per week, the Platform may become unavailable from time to time for scheduled Updates or as a result of events beyond 6clicks’s reasonable control including:

(i) failure or default by any of 6clicks‘s third party service providers; 

(ii) abnormal usage volumes; or

(iii) any breach of this Agreement by the User or the negligence of the User or its Personnel. 

(b) In the case of downtime for reasons outside of 6clicks‘s reasonable control, 6clicks will use commercially reasonable efforts to overcome such circumstances or mitigate their effects and resume full operation as soon as reasonably practical. 

3.3 Content and Analytics 

Although 6clicks will use commercially reasonable endeavours to ensure that any Content and Analytics available to the User through the Platform are kept current and up-to-date, there may be circumstances outside of 6clicks’s reasonable control that may delay Updates to the Content and Analytics from time to time. Users acknowledge and agree that Content and Analytics may be out-of-date, inaccurate, or incomplete at any time.

3.4 Updates to the Platform 

(a) 6clicks may in its sole discretion release Updates to the Platform from time to time. The User acknowledges and agrees that the Platform may be unavailable for the purpose of 6clicks incorporating the Updates to the Platform.

(b) 6clicks will use commercially reasonable endeavours to ensure that any Updates to the Platform will not materially adversely impact the User‘s use of the Platform 

(c) In the event that the User does not agree to an Update, it may terminate this Agreement in accordance with clause 13.3(a).

3.5 Feedback 

In the event that the User or any of its Authorised Users provides 6clicks with any Feedback regarding the Platform, the User grants (and must ensure any of its relevant Authorised Users grant) to 6clicks a worldwide, irrevocable, perpetual, sub-licensable, transferable, royalty-free licence to use any such Feedback for any purpose and without any obligation or compensation to the User or any of its Authorised Users.

3.6 Marketplace Transactions 

6clicks is not party to, and has no obligations under, any Marketplace Transaction, and the User releases 6clicks and its Personnel from any Claim arising out of or in connection with any Transaction (except to the extent the Claim arises due to a breach of this Agreement by 6clicks or the fraud, gross negligence or wilful misconduct of 6clicks), including any Claim regarding the quality or fitness for purpose of the Products the subject of the Marketplace Transaction.

4. User Obligations

4.1 General Obligations 

The User will (and must ensure that each of its Authorised Users will): 

(a) maintain its Environment in order to obtain full access and use of the Platform; 

(b) maintain adequate security of the User‘s Environment to minimise the risk of introducing Harmful Code to the User‘s Environment or the Platform 

(c) hold, and comply with any conditions of, all permits and licences required by any Relevant Laws for Customers and Service Providers (as applicable); 

(d) keep and maintain a separate back up copy of all User Data stored or processed by it through the Platform 

(e) cooperate with 6clicks in relation to, and take all reasonable steps to facilitate, the provision of the Platform by 6clicks; 

(f) comply with all reasonable directions in relation to the Platform issued by 6clicks from time to time; 

(g) notify 6clicks promptly if it becomes aware of, or forms a reasonable belief that there has been an occurrence of, any unauthorised access to or use of the Platform; 

(h) perform its obligations owed to any Customer, Service Provider or Assessment Counterparty in accordance with the terms of those obligations, using appropriately qualified Personnel, and with a high degree of care and skill; and 

(i) provide to 6clicks any information relating to this Agreement or the Platform as 6clicks may reasonably request from time to time. 

4.2 Acceptable Use 

The User will (and must ensure that each of its Authorised Users will): 

(a) comply with all Relevant Laws and Legal Requirements in relation to its access to and use of the Platform; 

(b) take all reasonable precautions to keep access to the Platform (including login information and passwords) secure and protected at all times from misuse or any form of unauthorised access or use;

(c) not:

(i) access and use the Platform in a manner which could interfere with the Platform or the provision of the Platform by 6clicks to other Clients; 

(ii) engage in conduct or activities which attempt to manipulate or bypass any limitations on the Platform; 

(iii) use the Platform in a manner, nor permit the transmission, inputting or storage of any User Data in a manner, that infringes any third party rights (including Intellectual Property Rights);

(iv) use the Platform to input, store, or transmit any objectionable, defamatory, obscene, harassing, threatening, misleading or unlawful User Data; 

(v) do (or omit to do) anything that may jeopardise the security of the Platform or access to the Platform;

(vi) transfer, assign, grant a security interest in, or otherwise deal with its rights in relation to the Platform contrary to the terms under this Agreement; 

(vii) resell, sub-license, resupply, provide a bureau service using, communicate or otherwise make the Platform available to a third party (except as may be expressly permitted by this Agreement); and

(viii) copy, reproduce, translate, decompile, reverse-engineer, modify, vary or otherwise deal with the Platform or any computer code underlying the Platform (except as may be expressly permitted by this Agreement).

4.3 User Data 

(a) The Platform may allow the User to enter and manage User Data. The User acknowledges and agrees that 6clicks may alter or remove any User Data if 6clicks reasonably considers that it breaches the Relevant Laws or the Legal Requirements, including any third party’s rights. 

(b) The User will (and must ensure that each of its Authorised Users will):

(i) ensure that the User Data is accurate, complete, reliable, up to date, and fit for purpose; and

(ii) take reasonable steps to ensure that the User Data and any Products complies with all Relevant Laws and Legal Requirements.

5. Payments

5.1 Fee 

(a) In consideration of 6clicks providing the Platform in accordance with this Agreement, the User will pay the Fee to 6clicks. 

(b) 6clicks (acting reasonably) may vary the Fee from time to time by giving the User prior notice. If the User does not agree with the variation to the Fee, the User may terminate this Agreement in accordance with clause 13.3(a). 

5.2 Invoicing and payment 

6clicks will invoice the User for the Fee monthly in advance. The User authorises 6clicks to use a third party payment processor to process payment of the invoiced Fee prior to the due date of the relevant invoice.

5.3 Additional Fees 

There may be additional Fees applicable to the User as set out in the relevant Customer Terms, Service Provider Terms (Reseller Arrangement), or Service Provider Terms (Referral Arrangement)

5.4 Payment processing 

Users acknowledge and agree that the Platform uses a third party payment processor (Stripe) to handle payments, including payments for all Marketplace Transactions, and all payments made through the Platform are subject to:  

(a) the terms and conditions of the third party payment processor (found through: https://stripe.com/au/ssa); and 

(b) any charges that the third party payment processor may apply 

5.5 Taxes 

(a) Except where this Agreement specifies otherwise, Fees payable by the User to 6clicks do not include any Taxes. The User must, in addition to the Fees and at the same time, pay to the supplier the amount of Taxes imposed by the relevant Regulatory Body payable in respect of the supply of the Platform or any Marketplace Transactions, unless the User provides 6clicks with a valid Tax exemption certificate authorised by the relevant Regulatory Body. For the avoidance of doubt, the Taxes payable under this clause will be calculated by multiplying the amount payable by the prevailing rate of Taxes imposed by the relevant Regulatory Body.

(b) The User warrants to 6clicks that if it is a Legal Requirement, it is registered with the relevant Regulatory Body in relation to the Taxes applicable to the Fees or any Marketplace Transactions at the time of entering this Agreement and will promptly notify 6clicks if it ceases to be so registered.

6. Privacy

6.1 Compliance with Privacy Laws  

(a) The parties will, in performing their respective obligations under this Agreement, comply with all applicable Privacy Laws, and neither party will put the other in breach of any such Privacy Laws. 

(b) The User will ensure that the User is entitled to transfer the relevant Personal Information to 6clicks so that 6clicks may lawfully use, process and transfer the Personal Information as necessary to provide the Platform in accordance with this Agreement, including by ensuring that the User’s privacy policy and privacy collection statements provide that individuals’ personal information may be collected, used, transferred or otherwise processed by 6clicks for the purpose of this Agreement.

6.2 6clicks‘s Use and Disclosure Obligations  

6clicks will (except where otherwise required or authorised by law): 

(a) only access or use the relevant Personal Information provided by the User for the purposes set out in its Privacy Policy; and 

(b) not otherwise access, use, process, modify or disclose the relevant Personal Information except with the User‘s or the relevant individual’s prior written consent, 

however, 6clicks is under no obligation to:  

(c) withhold any User Data or related data, documentation or records from any Regulatory Body with apparent authority to seek delivery or access to such data; or  

(d) refuse to provide any such Regulatory Body with access to User Data or related data, documentation or records  

if 6clicks receives a request or demand for such information which on its face appears to be valid and lawful.  

6.3 Transfer of User Data Outside of Australia 

6clicks stores User Data (including any Personal Information) in servers located in Australia for the purposes of performing its obligations under or in connection with this Agreement. 6clicks may store marketing data and related analytics in servers located overseas, and may access those Analytics from both within and outside Australia from time to time.

6.4 Security 

6clicks will take commercially reasonable steps to: 

(a) protect User Data (including Personal Information) to which 6clicks has access in connection with this Agreement against unauthorised access, use, modification or disclosure; 

(b) ensure the security of User Data (including Personal Information) to which 6clicks has access in connection with this Agreement by maintaining security systems and procedures that comply with the Privacy Laws; and 

(c) destroy, permanently de-identify, or return (at the User‘s direction) any User Data (including Personal Information) held by 6clicks which is no longer required for the purposes of performing its obligations under this Agreement. 

6.5 6clicks is a Processor of User Data 

The User acknowledges and agrees that 6clicks is a processor of any Personal Information included in the User Data and the User is the controller of that Personal Information. 6clicks will only process the personal data on documented instructions from the User (including the instructions constituted by this Agreement).

6.6 Deletion of Personal Information 

The User must take reasonable steps to promptly delete from the Platform any Personal Information contained in the User Data once it is no longer required for the User’s business purposes.

6.7 Provision of information 

6clicks will provide the User with all information reasonably requested in order to demonstrate 6clicks’s compliance with this clause 6, including allowing suitable representatives of the User to audit relevant records of 6clicks, subject to 6clicks and the User first agreeing the terms applicable to the audit (with each party to act in good faith).

6.8 Survival 

The provisions of this clause 6 will survive the termination or expiry of this Agreement. 

7. Intellectual Property Rights

7.1 Ownership 

(a) As between the parties:

(i) the User acknowledges that 6clicks is the proprietor or licensee of all Intellectual Property Rights in the Platform, any Updates, Content, and Analytics provided under or in connection with this Agreement, including any improvements, developments or inventions (whether or not such improvements, developments or inventions require or rely upon any User Data) and that these Intellectual Property Rights are supplied to the User in accordance with the licence under clause 2.1 and solely for the purpose of 6clicks meeting its obligations under this Agreement; and 

(ii) 6clicks acknowledges that the User is the proprietor or licensee of all Intellectual Property Rights in the User Data provided under or in connection with this Agreement and that these Intellectual Property Rights are supplied to 6clicks in accordance with the licence under clause 7.2.

(b) Nothing in this Agreement will be construed as granting the parties any ownership rights in respect of the other party’s Intellectual Property Rights.

7.2 Licence to 6clicks and Service Provider

(a) The User grants to 6clicks:  

(i) a non-exclusive, royalty-free, worldwide and perpetual licence to use (and allow 6clicks’s Personnel to use) the User Data for the purposes of performing their obligations under this Agreement or any Service Provider agreement, to further develop and make improvements to the Platform and to create, develop, manage, and commercialise the Analytics; and

(ii) a non-exclusive, royalty-free, worldwide and perpetual licence to use the User Trade Marks for the duration of this Agreement for the purposes of advertising and promoting the Platform, Content and Analytics, provided that:

(A) the use is compliant with any guidelines as the User may notify in writing to 6clicks and the Service Provider from time to time;

(B) the User Trade Marks will remain the property of the User; and 

(C) the use of the User Trade Marks under this Agreement, and any goodwill arising from that use, will accrue solely for the User’s benefit.

(b) The User grants to the Service Provider:

(i) a non-exclusive, royalty-free, worldwide and perpetual licence to use the User Data for the purposes of performing their obligations under this Agreement or any Service Provider agreement and to create, develop, manage, and commercialise the services of the Service Provider.

7.3 Survival 

The provisions of this clause 7 will survive the termination or expiry of this Agreement. 

8. Confidentiality

8.1 Confidential Information 

The parties acknowledge that one party may provide the other party with Confidential Information for the purposes of this Agreement. Each party agrees to take reasonable steps to keep the other party’s Confidential Information secure from unauthorised disclosure.

8.2 Use of Confidential Information 

A party will not, without the prior written approval of the other party, disclose, copy or use the other party’s Confidential Information, other than to:

(a) the extent required to exercise its rights or perform its obligations under this Agreement; 

(b) its Personnel for the purposes of the party exercising its rights or performing its obligations under this Agreement; 

(c) comply with any Legal Requirements; or 

(d) obtain professional advice in relation to matters arising under or in connection with this Agreement. 

8.3 Compliance by Personnel  

Each party must procure compliance by each of its Personnel to whom the other party’s Confidential Information is disclosed, with the obligations under this clause 8 as if this clause 8 applied directly to them.

8.4 Return of Confidential Information 

Upon termination or expiry of this Agreement, each party must promptly either return or destroy (at that party’s option) the other party’s Confidential Information in its possession or control. Each party must promptly certify in writing to the other party that it has complied with its obligations under this clause 8.4.

8.5 Survival 

The provisions of this clause 8 will survive the termination or expiry of this Agreement. 

9. Warranties

9.1 General 

Each party warrants that: 

(a) it has full power and authority to enter into and perform its obligations under this Agreement which, when executed, will constitute binding obligations on that party; and 

(b) all information it provides to the other party is true and correct to the best of its knowledge, information and belief.  

9.2 Exclusions 

To the extent permitted by the Relevant Law, 6clicks gives no warranties or representations that:  

(a) the operation of the Platform will be uninterrupted, always accessible, or free from Harmful Code; 

(b) the Content and Analytics will be up-to-date, accurate, error-free, or complete; and  

(c) the Platform will perform to a specific standard or be fit for a particular purpose. 

Further, Users acknowledge and agree that 6clicks is not responsible or liable for any Products or any services to the extent not provided by 6clicks or its Personnel. 

9.3 No representations 

The User acknowledges that it has not relied on any term, condition, representation, warranty, matter, statement or conduct in entering into this Agreement that is not expressly stated in this Agreement. In particular, the Customer has not relied on any descriptions, illustrations or specifications contained in any document (including any catalogues or publicity material produced by 6clicks).

10. Indemnities

10.1 6clicks’s Indemnity 

(a) 6clicks will indemnify, defend, and hold the User and its Personnel harmless from and against any Claim by any third party that the Platform or the permitted use of the Platform infringes or violates any third party’s valid Intellectual Property Rights (IP Claim). If in 6clicks’s reasonable judgment any such IP Claim, or threat of an IP Claim, materially interferes with the User’s access and use of the Platform, 6clicks will consult with the User, and 6clicks will have the option, in its sole discretion, to:

(i) substitute a functionally equivalent non-infringing Platform 

(ii) modify the Platform to make it non-infringing; or 

(iii) obtain for the User at 6clicks’s expense the right to continue using the infringing Platform. 

(b) If 6clicks cannot achieve any of the remedies in the preceding clause on a reasonable commercial basis, it may, by written notice, require the User to cease using the Platform (or the relevant functionality) and 6clicks will refund a pro-rata portion of the Fee for the Platform for such period of time in which the User was unable to use the Platform (or the relevant functionality).

(c) 6clicks will have no indemnity obligation for any IP Claims resulting or alleged to result from:

(i) any combination, operation, or use of the Platform with any programs or equipment not supplied by 6clicks or not specified in this Agreement for such purpose if in 6clicks’s reasonable judgment such infringement is caused by such use; 

(ii) inclusion of User Data; or 

(iii) the use of the Platform in a manner other than for their intended purposes or contrary to this Agreement or 6Clicks’s lawful directions.  

(d) To the extent permitted at Law, the provisions in this clause 10.1 state the User‘s sole and exclusive remedy in relation to any IP Claim. 

10.2 User’s Indemnity 

The User agrees to defend, indemnify and hold harmless 6clicks, its Personnel and its Related Bodies Corporate (as defined under the Corporations Act 2001 (Cth)) from and against any and all Claims or Losses arising from:  

(a) the User’s use of the Platform (except to the extent any such Claim or Loss arises from a breach of this Agreement by 6clicks or the fraud, gross negligence or wilful misconduct of 6clicks);

(b) the User’s breach of any third party right (including Intellectual Property Rights) or any Relevant Law or Legal Requirements; or  

(c) any claim arising in relation to any content of the User Data.  

10.3 General 

The defence and indemnification obligations provided for in this clause 10 are conditional upon: 

(a) the indemnified party providing the indemnifying party timely notice of any claim or cause of action upon which the indemnified party intends to base a claim of indemnification; 

(b) the indemnified party providing reasonable assistance and cooperation to enable the indemnifying party to defend the action or claim; and 

(c) the indemnified party allowing the indemnifying party to control the defence and all related settlement negotiations; provided that the indemnifying party may not settle any claim that results in the indemnified party’s liability and the indemnifying party will be required to consult in good faith with the indemnified party during any settlement discussions. 

10.4 Survival 

The provisions of this clause 10 will survive the termination or expiry of this Agreement. 

11. Limit on liability

11.1 Competition and Consumer Act  

Nothing in this Agreement restricts, excludes or modifies any consumer rights under any statute including the Competition and Consumer Act 2010 (Cth). 

11.2 Exclusion of liability 

6clicks will not have any liability to any party (including the User) because of any act or omission of 6clicks or its Personnel, where such act or omission is specifically required by a direction to 6clicks or its Personnel from a Regulatory Body purporting to exercise its functions or powers.

11.3 Consequential Loss 

To the full extent permitted by law, neither party is liable to the other party for any Consequential Loss arising out of or in relation to this Agreement. 

11.4 Conditions and warranties excluded 

Except for conditions and warranties expressly stated in this Agreement and to the extent permitted by law, each party excludes all conditions and warranties arising out of or in connection with this Agreement.

11.5 Limitation of liability 

(a) 6clicks’s total aggregate liability in respect of all Claims arising out of or in connection with this Agreement (including in negligence) will not exceed:  

(i) the total Fees actually paid by the User to 6clicks under this Agreement in the 12 months preceding the Claim; or  

(ii) if there has been less than 12 months since the commencement of this Agreement, the total Fees actually paid by the User to 6clicks up to the date of the event giving rise to the Claim.  

(b) 6clicks’s liability arising out of or in connection with this Agreement (including in negligence) will be reduced by the extent, if any, to which the User’s or its Personnel caused or contributed to the relevant Losses 

(c) The User must take reasonable steps to mitigate any Losses it suffers as a result of a breach by 6clicks of this Agreement or the negligence of 6clicks or 6clicks’ Personnel.

(d) To the extent permitted by the Relevant Law, 6clicks’s liability for breach of any condition, warranty or guarantee imposed by statute that cannot be excluded and the User’s sole and exclusive remedy in relation to such breach will be limited to (at 6clicks’s election):  

(i) in the case of goods: 

(A) replacement or repair of the goods or supplying the equivalent goods again; or 

(B) paying the cost of replacing or repairing the goods or of acquiring equivalent goods; and 

(ii) in the case of services: 

(A) supplying the services again; or 

(B) paying the cost of having the services supplied again.  

11.6 Survival 

The provisions of this clause 11 will survive the termination or expiry of this Agreement. 

12. Insurance

(a) Subject to any other requirement for insurance set out in any Reseller Arrangement or Referrer Arrangement, 6clicks will effect and maintain at its own expense the following insurance policies until the termination or expiry of this Agreement:

(i) professional indemnity insurance with a policy value of not less than $10 million; and  

(ii) public liability insurance with a policy value of not less than $10 million. 

13. Suspension and Termination

13.1 Suspension  

Without limiting 6clicks’s rights in respect of any breach of this Agreement, if the User or any of its Personnel breaches any material obligation in this Agreement, 6clicks may suspend the User’s or any of its Authorised User’s access to or use of any or all of the Platform until the breach is remedied to 6clicks’s reasonable satisfaction.

13.2 Termination  

Without limiting the generality of any other clause in this Agreement, a party may terminate this Agreement by written notice to the other party if the other party:  

(a) breaches a material term of this Agreement and does not remedy the breach within 14 days of receiving a notice of the breach, or   

(b) breaches a material term of this Agreement that is not capable of remedy; or   

(c) becomes, threatens or resolves to become or is in jeopardy of becoming subject to any bankruptcy, receivership, external administration or other form of insolvency administration, and fails to make any payment when due under this Agreement;  

(d) being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; or   

(e) ceases or threatens to cease conducting its business in the normal manner.  

13.3 Termination for convenience  

Either party may terminate this Agreement for convenience by:   

(a) in the case of the User, immediately by contacting 6clicks at support@6clicks.io; and  

(b) in the case of 6clicks, by giving the User at least 30 days’ prior written notice.

14. Dispute Resolution

14.1 Initial negotiations 

A party must use its best efforts and enter into good faith negotiations with the other party to resolve any dispute under or in connection with this Agreement before taking any further action.  

14.2 Escalation 

If the parties have been unable to resolve the dispute through the negotiations specified in clause 14.1 within 20 Business Days, then the parties’ representatives will meet with a view to resolving the dispute.

14.3 Mediation 

If the process in clause 14.2 fails to resolve the dispute to each of the parties’ reasonable satisfaction, the parties will appoint a mutually agreed third party mediator to mediate the dispute, the costs of which will be shared equally between the parties.

14.4 Arbitration 

(a) If the parties cannot agree on the identity of a mediator within 7 days after either party notifies the other party that the dispute is to be referred for mediation, either party may submit the matter for arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Arbitration Rules.  

(b) The seat of arbitration shall be Melbourne, Australia. 

(c) The language of arbitration shall be English.   

14.5 Confidential and Without Prejudice 

All negotiations connected with dispute resolution under this clause 14 must be conducted in strict confidence, and are without prejudice to rights of the parties in any further legal proceedings. 

14.6 Costs 

Each party must pay its own costs in relation to complying with this clause 14 except for the costs and expenses of mediation or arbitration which will be borne by the parties equally. 

14.7 Interlocutory Relief 

Nothing in this clause 14 restricts or prevents a party from applying for urgent interlocutory relief. 

15. Relationship

The parties are independent contractors. Nothing in this Agreement will create the relationship of partnership, joint venturers, principal and agent, trustee and beneficiary or employer and employee between the parties, and it is the express intention of the parties that any such relationships are denied.

16. General provisions

16.1 Force Majeure 

(a) Neither party will be responsible for a failure to perform any obligation under this Agreement (except an obligation to pay money) to the extent that it is caused by a Force Majeure Event, provided that such party has:

(i) taken all reasonable steps to prevent and avoid the effects of the Force Majeure Event; 

(ii) taken all reasonable steps to overcome and mitigate the effects of the Force Majeure Event as soon as reasonably practicable; and 

(iii) on becoming aware of the Force Majeure Event, promptly informed the other party of the Force Majeure Event.  

(b) In the event that the Force Majeure Event continues for more than 30 days starting on the day the impact of the Force Majeure Event starts, the unaffected party may terminate this Agreement by not less than 10 days’ notice in writing to the affected party. 

16.2 Subcontracting 

6clicks may subcontract all or part of its obligations under this Agreement without the prior written consent of, or notice to, the User, including but not limited to the hosting, management, and support of the Platform. 

16.3 Assignment 

The User must not assign any right or liability under this Agreement without the prior written consent of 6clicks. 6clicks may assign its rights or liabilities under this Agreement, or novate this Agreement, to a Related Body Corporate (as defined under the Corporations Act 2001 (Cth)) that has the resources and expertise to fully perform this Agreement and the User must take all steps, including executing all documents, reasonably requested by 6clicks for this purpose.

16.4 Notices 

(a) Any notice may be served by delivery in person or by post to the address of the recipient specified in the Details Table or most recently notified by the recipient to the sender, or to the email address most recently notified by the recipient to the sender.

(b) Any notice is effective for the purposes of this Agreement upon delivery to the recipient before 4.00pm local time on a day in the place in or to which the notice is delivered or sent or otherwise at 9.00am on the next day following delivery or receipt.

16.5 Governing law and jurisdiction 

This Agreement is governed by the laws of Victoria, Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the courts having jurisdiction in that state. 

16.6 Amendments 

Subject to clause 1.2, any amendment to this Agreement has no force or effect, unless effected by an agreement executed by the parties. 

16.7 Third parties 

This Agreement confers rights only upon a person expressed to be a party, and not upon any other person. 

16.8 Further assurances 

Each party must execute any document and perform any action necessary to give full effect to this Agreement, whether before or after performance of this Agreement. 

16.9 Continuing performance 

(a) The provisions of this Agreement do not merge with any action performed or document executed by any party for the purposes of performance of this Agreement

(b) Any indemnity under this Agreement:

(i) constitutes a liability separate and independent from any other liability under this Agreement or any other agreement; and

(ii) survives and continues after performance of this Agreement.

16.10 Waiver 

Any failure by any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by a party does not preclude any other or further exercise of that or any other right by that party. 

16.11 Remedies 

The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law. 

16.12 Severability 

Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction. 

16.13 Survival 

Any term of this Agreement that is expressed to survive, or by its nature survives, the termination or expiry of this Agreement will survive and continue in effect following termination or expiry of this Agreement. 

16.14 Party acting as trustee 

If a party enters into this Agreement as trustee of a trust, that party and its successors as trustee of the trust will be liable under this Agreement in its own right and as trustee of the trust. Nothing releases the party from any liability in its personal capacity. The party warrants that at the date of this Agreement:

(a) all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by the party as trustee and have not been varied or revoked and the trust is a valid and subsisting trust; 

(b) the party is the sole trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by this Agreement on behalf of the trust and that this Agreement is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust; and

(c) no restriction on the party’s right of indemnity out of or lien over the trust’s assets exists or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the trust’s assets.

17. Definitions and interpretation

17.1 Definitions 

In this Agreement unless the context otherwise requires:

Analytics means any analysis or interpretation of User Data, Personal Information, and other statistics (de-identified and aggregated) undertaken or performed by 6clicks from time to time, and any Intellectual Property Rights created or developed from such activities.
Assessment means a third party risk assessment module created or used by the Customer through the Services.
Assessment Counterparty means a third party authorised by a Customer to access the Platform for the purpose of completing an Assessment.
Authorised User means an authorised end user of a Customer, a Service Provider, or an Assessment Counterparty.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria.
Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation of a claim.
Commencement Date means the date on which a User first logs into the Platform;
Confidential Information means, in relation to a party (for the purposes of this definition, the Discloser):

(a) information relating to or used by the Discloser, including know-how, trade secrets, ideas, marketing strategies and operational information;

(b) information concerning any Fees other than such information in the public domain;

(c) information concerning the current or proposed business affairs (including financial information, products, services, customers and suppliers) or property of the Discloser; and 

(d) other information which is disclosed, communicated or imparted by or on behalf of the Discloser in circumstances importing an obligation of confidence or which a reasonable person would have realised was of a confidential nature,

and, in respect of 6clicks, includes the source code, object code, and details of the features and functionality of the Platform, and the Analytics, and in respect of the User, includes User Data, but Confidential Information excludes information which is:  

(e) User Data and Personal Information that has been de-identified or aggregated by 6clicks; 

(f) in or enters the public domain other than through an unauthorised act of the receiving party, which is or becomes publicly known other than by breach of this Agreement or any other obligation of confidentiality; or

(g) developed independently by the receiving party without reliance on any of the Discloser’s Confidential Information. 

Content means all data, text, images, audio, video, or other material in any medium delivered to the User by 6clicks through the Services, but excluding any User Data and Products. 

Consequential Loss includes special, incidental, punitive, exemplary, indirect or consequential Losses, as well as business interruption losses, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business opportunity, costs of procurement or substitution of goods, technology or services, and loss of information or data (including the costs of recovering or reconstructing any lost or corrupted data).

Customer means a person using the Services for the purpose of automating and managing its Assessments and obtaining Products from Service Providers.

Environment means the User’s existing hosting and processing environment, including all hardware, software, storage space, power, Internet connectivity and other components to be used in conjunction with the Platform.

Fee means any fee or fees as described in the relevant Customer Terms, Service Provider Terms (Reseller Arrangement), or Service Provider Terms (Referral Arrangement).

Feedback means any feedback, suggestions or comments.

Force Majeure Event means an event or circumstance whose occurrence and effects could not have been prevented or overcome, such as earthquakes, natural disasters, fire, flood, riots, civil commotion, industrial disputes, malicious damage, failure of any utility services, viruses, denial of service attacks, other acts or omissions or service outages by third parties (including any Internet service provider) or breakdown of plant or equipment.

Harmful Code means any computer code, software routine, or programming device that is designed to or may:

(a) disable, disrupt, impair, delete, damage, corrupt, reprogram, recode or modify in any way a computer processing system, computer network, computer service, a deliverable, interface, data, files, software, storage media, hardware, or equipment;  

(b) impair in any way the operation of any a computer processing system, computer network, computer service, a deliverable, interface, data, files, software, storage media, hardware, or equipment based on the elapsing of a period of time, advancement of a particular date or other numeral; or  

(c) permit a non-authorised third party to access, transmit or utilise, as appropriate, any a computer processing system, computer network, computer service, a deliverable, interface, data, files, software, storage media, hardware, or equipment; or  

(d) any other similar harmful or hidden procedures, routines or mechanisms. 

Intellectual Property Rights means all intellectual or industrial property rights, including without limitation any copyright, trade or service mark, patent, moral rights, registered design, trade secret, logo, know how, rights in relation to inventions, rights in respect of Confidential Information and circuit layout rights. 

Legal Requirements means any present and future obligation arising under laws, statutes, regulations, by-laws, codes, orders, ordinances, proclamations and decrees (provided such orders, ordinances, proclamations and decrees are legally binding). 

Loss means any loss, damage, liability, cost (including all legal and other professional costs), charge, expense, outgoing, fine or payment of any nature or kind. 

Marketplace Transaction means an agreement for the purchase and supply of any Products between a Customer and a Service Provider facilitated using the Platform. 

Personal Information has the meaning given to that term in the Privacy Laws. 

Personnel means the directors, officers, employees, contractors and subcontractors of the relevant party. 

Platform means 6clicks’ software and online platform that enables Customers to automate and manage Assessments of their Assessment Counterparties, and enables Service Providers to offer and sell Products to Customers, provided on a ‘software as a service’ basis. 

Privacy Laws means the Privacy Act 1988 (Cth) and any other laws or legally-binding codes of practice, guidelines or standards issued by regulators or authorities that apply to the collection, handling, disclosure and use of Personal Information by the parties. 

Privacy Policy means 6clicks‘s privacy policy as amended from time to time, the current version of which is set out at https://6clicks.io/privacy. 

Products means any Service Provider’s goods and services offered to Customers to be used in conjunction with the Platform. 

Regulatory Body means any government or any governmental, semi-governmental, or judicial entity or authority, any self-regulatory organisation established or recognised under any statute or any stock exchange. 

Relevant Laws means all laws and legally-binding codes of practice, guidelines or standards issued by relevant regulators or authorities or industry bodies including the Privacy Laws and the Competition and Consumer Act 2010 (Cth). 

Schedule means a schedule to the Service Provider Terms. 

Service Provider means any person using the Services for the purpose of offering and selling Products to Customers. 

Subscription Level means the licensing option for the Platform selected by the User in accordance with the Customer Terms or the Service Provider Terms, further described at https://6clicks.io/pricing or as set out in the Schedule. 

Taxes means taxes, levies, imposts, charges and duties (including, stamp and transaction duties) imposed by any government entity, together with any related interest, penalties, fines and expenses in connection with them except if imposed on, or calculated having regard to, the overall net income of 6clicksincluding any goods and services tax or value-added tax. 

Updates means any upgrades, maintenance, additions or removals of any features and functionality, redesign, improvements, or any other alterations to the Platform. 

User Data means any data inputted into the Platform by the Customer, Service Provider, or Assessment Counterparty 

User Trade Mark means the brands, logos, and trade marks used by the User to brand and promote itself and its products and services. 

 

17.2 Interpretations 

In this Agreement unless the context otherwise requires:

(a) clause and subclause headings are for reference purposes only;

(b) the singular includes the plural and vice versa;

(c) words denoting any gender include all genders;

(d) reference to a person includes any other entity recognised by law and vice versa;

(e) where a word or phrase is defined its other grammatical forms have a corresponding meaning;

(f) any reference to a party to this Agreement includes its successors and permitted assigns;

(g) any reference to any agreement or document includes that agreement or document as amended at any time;

(h) the use of the word “includes” or “including” is not to be taken as limiting the meaning of the words preceding it;

(i) the expression “at any time” includes reference to past, present and future time and the performance of any action from time to time;

(j) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally; and

(k) reference to a statute includes all regulations under and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.

6clicks Solutions Partner Agreement

Background to this Agreement

A. This is a contract between you (the Partner) and us (“6clicks”), a Delaware corporation with an address of 651 N. Broad Street, Suite 206, Middletown, Delaware 19709. It describes how we will work together and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible.

B. This document applies to your participation in our Solutions Partner Program (the “Program”) and the use of our Platform subject to your agreed Subscription Scope. By participating in our Program, you are agreeing to these terms.

C. This Agreement outlines what you need to be aware of when you use our website and Platform. They set out the legal relationship between us with respect to your use of the Platform and revenue share of the Platform with your Customers.

D. We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Program, ends, or becomes part of another partner program. If we update or replace the terms we will let you know via an in-app notification in your portal or by email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.

E. By clicking “I Accept” you warrant your acceptance of and agree to be bound by the terms and conditions of this Agreement as set out below.

F. If you do not accept the terms of this Agreement you are unable to participate in our Program or subscribe to, or use the Platform or the Content.


1. Meaning of Words

In this Agreement the following definitions apply unless the context otherwise requires:

(a) Additional Services means the services to be provided by 6clicks to the Partner agreed between the parties from time to time.

(b) Additional Service Fees means the fees payable by the Partner to 6clicks for the Additional Services as agreed between the parties from time to time.

(c) Analytics means any analysis or interpretation of User Data, Personal Information, and other statistics (de-identified and aggregated) undertaken or performed by 6clicks from time to time, and any Intellectual Property Rights created or developed from such activities.

(d) Commencement Date means the date the Partner accepts these terms by clicking “I accept”.

(e) Confidential Information means, in relation to a party (for the purposes of this definition, the Discloser):

(i) information relating to or used by the Discloser, including know-how, trade secrets, ideas, marketing strategies and operational information;

(ii) information concerning any Fees other than such information in the public domain;

(iii) information concerning the current or proposed business affairs (including financial information, products, services, customers and suppliers) or property of the Discloser; and

(iv) other information which is disclosed, communicated or imparted by or on behalf of the Discloser in circumstances importing an obligation of confidence or which a reasonable person would have realised was of a confidential nature,

and, in respect of 6clicks, includes the source code, object code, and details of the features and functionality of the Platform, and the Analytics, and in respect of the User, includes User Data, but Confidential Information excludes information which is:

(v) User Data and Personal Information that has been de-identified or aggregated by 6clicks;

(vi) in or enters the public domain other than through an unauthorised act of the receiving party, which is or becomes publicly known other than by breach of this Agreement or any other obligation of confidentiality; or

(vii) developed independently by the receiving party without reliance on any of the Discloser’s Confidential Information.

(f) Content means all data, text, images, audio, video, or other material in any medium delivered to the User by 6clicks through the Services including the Analytics, but excluding any User Data and Products.

(g) Customer means a person using the Platform and associated services and obtaining Products from Partners.

(h) Customer Contract means the agreement for the resale of the Platform by the Partner to the Customer.

(i) Environment means the User's existing hosting and processing environment, including all hardware, software, storage space, power, internet connectivity and other components to be used in conjunction with the Platform.

(j) Fees means each of the Platform Fees, Additional Service Fees and Onboarding Fees.

(k) Force Majeure Event means an event or circumstance whose occurrence and effects could not have been prevented or overcome, such as earthquakes, natural disasters, fire, flood, riots, civil commotion, industrial disputes, malicious damage, failure of any utility services, viruses, denial of service attacks, other acts or omissions or service outages by third parties (including any Internet Partner) or breakdown of plant or equipment.

(l) Harmful Code means a “back door”, “time bomb”, “logic bomb”, “Trojan Horse”, “worm”, “drop dead device”, “virus” or any other malware, spyware or computer software routine having the effect of permitting unauthorised access to or use of the Platform.

(m) Intellectual Property Rights means all intellectual or industrial property rights, including without limitation any copyright, trade or service mark, patent, moral rights, registered design, trade secret, logo, know how, rights in relation to inventions, rights in respect of Confidential Information and circuit layout rights.

(n) Marketplace Transaction means an agreement for the purchase and supply of any Products between a Customer and a Partner facilitated using the Platform.

(o) Onboarding Fee means the fee or fees payable by 6clicks to the Partner in accordance with clause 5, as selected by the Partner on the subscription page of the website.

(p) Partner and you means the person or entity using the Platform and reselling licences to use the Platform and for the purpose of offering and selling Products to Customers.

(q) Personal Information has the meaning given to that term in the Privacy Laws.

(r) Platform means 6clicks's online software and mobile app that provided on a 'software-as-a-service' basis;.

(s) Platform Fees means the fees payable by the Partner to 6clicks for the access to the Platform as selected by the Partner on the subscription page of the website.

(t) Privacy Laws means any laws or legally-binding codes of practice, guidelines or standards issued by regulators or authorities that apply to the collection, handling, disclosure and use of Personal Information by the parties.

(u) Products means any Partner's goods and services offered to Customers to be used in conjunction with the Platform.

(v) Referral Fee means the amount based on partner tier as defined in the 6clicks Partner Tiers and Benefits Guide available here: https://www.6clicks.io/partner/ of the 6clicks fees received by 6clicks from Customers for access to the Platform and referred by the Partner to 6clicks using the Referral URL (inclusive of Tax) payable by 6clicks to the Partner in accordance with this agreement.

(w) Referral URL means the unique URL allocated by 6clicks to the Partner for the purpose of referring potential Customers to 6clicks, as provided to the Partner by 6clicks from time to time.

(x) Relevant Laws means all laws and legally-binding codes of practice, guidelines or standards issued by relevant regulators or authorities or industry bodies including the Privacy Laws.

(y) Resale Fee means the fees payable by 6clicks to the Partner in accordance with this agreement as agreed between the parties from time to time.

(z) SLAs means the service level agreements for the Platform as set out in Annexure B.

(aa) Solutions Partner Program Policies means the policies which govern your conduct as a Partner of 6clicks available at https://www.6clicks.io/partners/resource-center/policies.

(bb) Subscription Scope means the licensing scope for the Platform as selected by the Partner on the subscription page of the website or agreed between the parties from time to time in writing.

(cc) Support Services means the services to be provided by 6clicks to the Partner as referenced in Annexure A of this Agreement.

(dd) Taxes means taxes, levies, imposts, charges and duties (including, stamp and transaction duties) imposed by any government entity, together with any related interest, penalties, fines and expenses in connection with them except if imposed on, or calculated having regard to, the overall net income of 6clicks, including any goods and services tax or value-added tax.

(ee) Term means the duration for which you participate in the Program and fulfill all the participation requirements under the Program, until terminated duration of this Agreement as subscription page of the website and any renewal of this term under this Agreement.

(ff) User Data means any data inputted into the Platform by the Customer, Partner, or any assessment responder.

2. Licence to Use the Platform

Grant of Licence

(a) On payment of the Fees in accordance with this Agreement, 6clicks grants to the Partner a limited, non-exclusive, non-transferable licence for the duration of the Term:

(i) access and use the Platform and Content;

(ii) allow access to the Platform and Content by its Users and third parties to respond to audits and assessments;

(iii) to enter into Marketplace Transactions with Customers;

(iv) refer Customers to 6clicks in accordance with clause 5; and

(v) resell to Customers licences to use the Platform in accordance with clause 6.

(b) The Partner’s access and functionality of the Platform is as set out in the chosen Subscription Scope.

Subscription Scope and Support Services

(c) The Partner acknowledges and agrees that:

(i) its access to and use of the Platform will be limited to the number of Users and Subscription Scope selected by the Partner on the subscription page of the website or within the web application;

(ii) it will receive from 6clicks the Support Services and the Partner will provide 6clicks access to its systems and technology environment as required to enable 6clicks to provide the Support Services;

(d) This Agreement is subject to the SLAs set out in Annexure B. 6clicks agrees to meet the SLAs and, in the event of any inconsistency between the SLAs and the terms of this Agreement, the parties agree that the SLAs shall prevail.

3. Term

(a) This agreement will commence on the Commencement Date and will continue for the Term.

(b) At the completion of the Term and each renewal of the Term, this agreement will automatically renew for an additional term equivalent to the duration of the Term unless terminated on the completion of the Term or renewal term by either party providing the other party with at least 30 days written notice prior to the end of the Term or renewal term.

(c) This Agreement cannot be terminated by the Partner before the completion of the then-current Term without 6clicks’ prior written consent which will not be unreasonably withheld if the Partner agrees to payout the balance of the Fees payable for the duration of the Term.

4. Fees

(a) The Partner will pay 6clicks the:

(i) Onboarding Fee;

(ii) Platform Fees; and

(iii) Additional Service Fees,

for the access to the Platform and the Support Services as selected by the Partner on the subscription page of the website.

(b) Subject to clause 5, 6clicks will pay the Partner the Referral Fees each month for the previous month, calculated on the basis of each Customer purchasing from 6clicks a licence to use the Platform using the Referral URL.

(c) Subject to clause 6, 6clicks will pay the Partner (or allow the Partner to retain) the Resale Fee immediately upon entering into of a Customer Contract by the Partner.

(d) The Partner must pay the Fees to 6clicks within 30 days of the date of any validly issued tax invoice.

(e) The Partner must pay interest of 10% per annum on all overdue amounts, including on any Tax payable, in connection with any overdue payments, calculated daily from the due date until paid in full.

5. Referral Arrangement

(a) In consideration of the Referral Fee paid by 6clicks to the Partner, the Partner will:

(i) use commercially reasonable endeavours to market and promote the Platform, with a view to maximising the number of Customers who purchase from 6clicks licences to use the Platform; and

(ii) use only the Referral URL and promotional materials approved by 6clicks.

(b) The Partner will at its own expense:

(i) not remove, deface or obscure any 6clicks' trade marks, copyright notices or other proprietary notices or legends from any materials provided by 6clicks;

(ii) conduct all of its business in its own name and not in the name of 6clicks;

(iii) comply with all Relevant Laws in the marketing, promotion, support in respect of the Platform;

(iv) effect and maintain suitable insurance in respect of potential liability, loss or damage arising under any law (including statute) in respect of claims for property damage, personal injury, public liability and professional indemnity. For the duration of this Agreement and for a period of 6 years after the termination or expiry of this Agreement; and

(v) produce evidence of the insurance effected and maintained in accordance with this clause within seven days of being requested to do so.

(c) Any Referral Fees with respect to a Customer is subject to that Customer's payment of the fees for accessing the Platform. For the avoidance of doubt, if the Customer:

(i) fails to pay their fees;

(ii) has their fees refunded or reimbursed;

(iii) suspends payment of their fees; or

(iv) has their contract with 6clicks suspended or terminated for any reason,

the Partner will not be entitled to any Referral Fees in respect to that specific Customer. If any of the above events occur in respect of a Customer after 6clicks has paid the Referral Fee to the Partner, 6clicks will deduct and/or set-off the amount of the Referral Fee incorrectly paid to the Partner.

6. Resale of Platform

(a) In the event that 6clicks agrees to allow the Partner to resell to Customers licences to the Platform, this clause 6 shall apply.

(b) In consideration of the Resale Fee paid by 6clicks to the Partner, the Partner will:

(i) use commercially reasonable endeavours to market and promote the Platform, with a view to maximising the number of Customers and revenue derived from the resale of the Platform; and

(ii) keep 6clicks reasonably informed of the progress of any discussions with potential Customers in order to enable 6clicks to plan resource allocations for the Platform.

(c) The Partner may set the resale pricing.

(d) The Partner will at its own expense:

(i) use reasonable endeavours to market and promote the Platform and procure the execution of Customer Contracts by potential Customers;

(ii) ensure that each Customer Contract contains the minimum provisions set out in Annexure C;

(iii) reasonably co-operate with 6clicks in relation to the maintenance, improvement and marketing of the Platform;

(e) Within five (5) business days after the end of each calendar month during the Term, the Partner will provide 6clicks with a report, showing information reasonably required to substantiate the calculation of the Resale Fees.

7. Partner’s Additional Obligations

The Partner will:

General Obligations

(a) maintain adequate security of the Partner's Environment to minimise the risk of introducing Harmful Code to the Partner's Environment or the Platform;

(b) cooperate with 6clicks in relation to, and take all reasonable steps to facilitate, the provision of the Platform by 6clicks;

(c) notify 6clicks promptly if it becomes aware of, or forms a reasonable belief that there has been, an occurrence of any unauthorised access to or use of the Platform;

Acceptable Use

(d) comply with all Relevant Laws in relation to its access to and use of the Platform;

(e) not:

(i) access and use the Platform in a manner which could interfere with the Platform or the provision of the Platform by 6clicks to other Partners;

(ii) copy, reproduce, translate, decompile, reverse-engineer, bypass, modify, vary or otherwise deal with the Platform or any computer code underlying the Platform (except as may be expressly permitted by this Agreement).

Program Policies

(f) We may change the Solutions Partner Program Policies from time to time. Your participation in the Program is subject to the Solutions Program Policies, which are incorporated herein by reference. The Solutions Program Policies can be found here: https://www.6clicks.io/partners/resource-center/policies, we encourage you to review the Solutions Program Policies periodically. If we update or replace the Solutions Program Policies we will let you know via an in-app notification in your portal or by email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.

8. 6clicks' obligations

(a) 6clicks will:

(i) meet the SLAs as set out in Annexure B;

(ii) promptly notify the Partner of any event or incidents that are likely to or will have a material adverse impact on the provision of the Platform;

(iii) comply with any reasonable requests of the Partner consistent with this Agreement, including in order to assist the Partner to enter into Customer Contracts;

(iv) use commercially reasonable endeavours to ensure that any emergency updates to the Platform will not materially adversely impact availability of or the Partner's use of the Platform; and

(v) at all times during the Term maintain an information security management system in accordance with ISO 27001.

9. Indemnities

6clicks’s Indemnity

(a) 6clicks will indemnify, defend, and hold the Partner harmless from and against any and all claims by any third party that the Platform or the Content infringes or violates any third party's valid Intellectual Property Rights (IP Claim). If in 6clicks’s reasonable judgment any such IP Claim, or threat of an IP Claim, materially interferes with the Partner’s access and use of the Platform, 6clicks will consult with the Partner, and 6clicks will have the option, in its sole discretion, to:

(i) substitute a functionally equivalent non-infringing Platform;

(ii) modify the Platform to make it non-infringing; or

(iii) obtain for the Partner at 6clicks’s expense the right to continue using the infringing Platform.

(b) If 6clicks cannot achieve any of the remedies in the preceding clause on a reasonable commercial basis, it may, by written notice, require the Partner to cease using the Platform (or the relevant functionality) and 6clicks will refund a pro-rata portion of the Fee for the Platform paid by the Partner.

(c) 6clicks will have no indemnity obligation for any IP Claims resulting or alleged to result from:

(i) any combination, operation, or use of the Platform with any programs or equipment not supplied by or approved by 6clicks or not specified in this Agreement for such purpose, if such infringement is caused by such use; or

(ii) the User Data.

(d) To the extent permitted at Law, the provisions in this clause state the Partner's sole and exclusive remedy in relation to any IP Claim.

Partner’s Indemnity

(e) The Partner agrees to indemnify 6clicks, its personnel and its associated bodies corporate from and against any third party claims or losses arising from:

(i) the Partner's use of the Platform (other than in accordance with the terms of this Agreement and, at all times, except to the extent any such claim or loss arises from a breach of this Agreement by 6clicks or the fraud, negligence or wilful misconduct of 6clicks);

(ii) the Partner's breach of any third party right (including Intellectual Property Rights) or any Relevant Law; or

(iii) any claim arising out of or in relation to the Partner’s collection or use of any User Data.

General

(f) The defence and indemnification obligations provided for in this clause are conditional upon:

(i) the indemnified party providing reasonable notice, assistance and cooperation to enable the indemnifying party to defend the action or claim; and

(ii) the indemnified party allowing the indemnifying party to control the defence and all related settlement negotiations on the condition that the parties engage in consultation with respect to any loss or claim.

(g) The provisions of this clause will survive the termination or expiry of this Agreement.

10. Liability

(a) To the extent permitted by law, in no event will either 6clicks’ or the Partner’s total aggregate liability under this Agreement exceed:

(i) the total Fees paid by the Partner to 6clicks under this Agreement in the 12 months preceding the claim; or

(ii) if there has been less than 12 months since the Commencement Date, the total Fees paid by the Partner to 6clicks up to the date of the event giving rise to the claim.

(b) Each party's liability arising out of or in connection with this Agreement (including negligence) will be reduced to the extent, if any, to which the other party's or its personnel's acts or omissions caused or contributed to the relevant loss.

(c) Nothing in this Agreement shall limit a party's liability for fraud, death, personal injury, negligence or wilful misconduct.

(d) This clause shall survive termination of this Agreement.

11. Intellectual Property

(a) Except as provided for in clause 10(c) and unless otherwise set out in this Agreement, all Intellectual Property held, located within and related to the Platform and the Content is the property of 6clicks and its related bodies corporate. Nothing in this Agreement conveys or vests to the Partner any interests or ownership in such Content or Intellectual Property.

(b) Any improvements, suggestions, ideas, enhancement requests, feedback, recommendations, templates, libraries or other software or information provided to or jointly developed with 6clicks shall belong solely to 6clicks.

(c) 6clicks acknowledges that the Partner and each Customer is the proprietor or licensee of all Intellectual Property in the User Data provided under or in connection with this Agreement and that this Intellectual Property is supplied to 6clicks in accordance with the licence granted under this Agreement.

(d) The Partner grants to 6clicks a non-exclusive, royalty-free, worldwide and perpetual licence to manage, edit and use the User Data for the purposes of:

(i) performing their obligations under this Agreement.

(ii) to further develop and make improvements to the Platform and to create, develop, manage, and commercialise the Analytics;

(iii) to create, develop, manage, and commercialise the services of 6clicks; and

(iv) to comply with any Relevant Laws.

12. User Data

(a) The Platform may allow the Partner to enter and manage User Data. The Partner acknowledges and agrees that 6clicks may alter or remove any User Data if 6clicks reasonably considers that it breaches the Relevant Laws, including any third party's rights.

(b) The Partner must take reasonable steps to ensure that the User Data and any Products complies with all Relevant Laws.

13. Confidentiality & Privacy

(a) The parties acknowledge that one party may provide the other party with Confidential Information for the purposes of this Agreement. Each party agrees to take reasonable steps to keep the other party's Confidential Information secure from unauthorised disclosure.

(b) Upon termination or expiry of this Agreement, each party must promptly either return or destroy (at that party's option) the other party's Confidential Information in its possession or control.

(c) The provisions of this clause will survive the termination or expiry of this Agreement.

(d) 6clicks handles all information, including Personal Information, in accordance with its privacy policy available at 6clicks.io/privacy/. The Partner agrees to comply with this policy.

14. Dispute Resolution

(e) Any dispute or difference between the parties arising from or in connection with this Agreement which cannot be settled by negotiation between the parties must be referred for determination by representatives of each party for at least 20 days, and, failing agreement, appointment of an arbitrator.

(f) Nothing in this clause restricts or prevents a party from applying for urgent interlocutory relief.

15. Termination

(a) Either party may terminate this Agreement immediately upon delivery of written notice of termination to the other of them if:

(i) the other party commits a breach of this Agreement that is not capable of remedy;

(ii) the other party commits a breach of this Agreement which is not rectified within 30 days of notice of breach;

(iii) the other party becomes insolvent, appoints a receiver, liquidator or administrator or makes an assignment for the benefit or creditors, other than in the case of an amalgamation, reconstruction, merger or takeover of either party;

(iv) the other party makes an assignment of or charge over its rights under this Agreement without the prior written consent of the other party; or

(v) there is any change in the beneficial ownership of the party outside a party’s affiliated corporate group of companies without the prior written consent of the other, which consent will not be unreasonably withheld.

(b) Upon termination, 6clicks will provide to the Partner a copy of all User Data the Partner has been entitled to access or use in accordance with the Agreement.

(c) If the Partner breaches any material obligation in this Agreement, 6clicks may suspend the Partner's access to or use of any or all of the Platform until the breach is remedied to 6clicks's reasonable satisfaction.

16. Taxes

(a) Except where this Agreement specifies otherwise, Fees payable by the Partner to 6clicks do not include any Taxes. The Partner must, in addition to the Fees and at the same time, pay to the supplier the amount of Taxes imposed by any relevant regulatory body payable in respect of the supply of the Platform.

(b) The Partner warrants to 6clicks that if it is a required by any regulatory body, it is registered with such body in relation to the Taxes applicable to the Fees or the Resale Fee or the Referral Fee and will remain registered for the duration of this Agreement.

17. General

(a) This Agreement is governed by the laws of the state of Delaware, USA. The parties irrevocably submit to the non-exclusive jurisdiction of the courts having jurisdiction in that state.

(b) Any reference to a party in this Agreement includes the directors, officers, employees, contractors and subcontractors of the relevant party.

(c) Any amendment to this Agreement has no force or effect, unless effected in accordance with the express terms of this Agreement or by a written agreement executed by the parties.

(d) This Agreement:

(i) expresses and incorporates the entire agreement between the parties, and all the terms of that agreement; and

(ii) supersedes and excludes any prior collateral negotiation, understanding, communication or agreement by or between the parties concerning that subject matter or any term of that agreement.

(e) This Agreement may be executed in any number of counterparts (including by way of digital signature through Docusign or other digital signature protocol).

(f) Neither party will be responsible for a failure to perform any obligation under this Agreement (except an obligation to pay money) to the extent that it is caused by a Force Majeure Event, provided that such party has:

(i) taken all reasonable steps to prevent and avoid the effects of the Force Majeure Event;

(ii) taken all reasonable steps to overcome and mitigate the effects of the Force Majeure Event as soon as reasonably practicable; and

(iii) on becoming aware of the Force Majeure Event, promptly informed the other party of the Force Majeure Event.

(g) In the event that the Force Majeure Event continues for more than 30 days starting on the day the impact of the Force Majeure Event starts, the unaffected party may terminate this Agreement by not less than 10 days' notice in writing to the affected party.

(h) 6clicks may subcontract all or part of its obligations under this Agreement without the prior written consent of, or notice to, the Partner, including but not limited to the hosting, management, and support of the Platform.

(i) Any notice may be served by delivery in person or by post to the address of the recipient specified in the Details Table or most recently notified by the recipient to the sender, or to the email address most recently notified by the recipient to the sender.

(j) The provisions of this Agreement do not merge with any action performed or document executed by any party for the purposes of performance of this Agreement. The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law.

(k) Any failure by any party to exercise any right under this Agreement does not operate as a waiver of that or any other right by that party.

(l) Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

(m) Any term of this Agreement that is expressed to survive, or by its nature survives, the termination or expiry of this Agreement will survive and continue in effect following termination or expiry of this Agreement.


 

18. Annexure A – Support Services

This Annexure A governs the provision of support services by 6clicks to the Partner during the Term of the Agreement.

1. Definitions

In this Annexure A, unless the context otherwise requires:

(a) Business Day means Monday to Friday; and

(b) Business Hours means 9.00am to 5.00pm in the local timezone .

2. Scope

During the term of the Agreement, 6clicks will provide the following support services to the Partner at no additional cost:

(a) PartnerPartnerPartnerTechnical support

Unlimited technical support during Business Hours on Business Days delivered through:

(i) telephone support – 1800 6CLICKS;

(ii) email support – support@6clicks.io;or

(iii) ticket support – through the Platform.

6clicks' target response time to technical support requests is four (4) hours. The response time depends on the complexity of the request and the current support request volumes.

3. Exclusions

The support services do not apply to any downtime of, or defect in, the Platform arising from:

(a) suspension or termination of the Partner's access to the Platform due to the Partner's breach of the Agreement;

(b) routine scheduled maintenance;

(c) unscheduled, emergency maintenance or an emergency caused by a Force Majeure Event, User Data, or Internet Partner failures or delays; and

(d) the Partner's equipment, software or other technology, or any equipment, software or technology not supplied by 6clicks.

19. Annexure B – Support Level Agreements

The service levels for the performance of the Platform and the supply of the Additional Services and Support Services will be:

1. 6clicks will make the Platform and Additional Services and Support Services available to you pursuant to this Agreement;

2. Subject to item 3 below, the uptime access for the Platform will be at least 99.9% and 6clicks will strive for 100% availability.

3. 6clicks will make the Platform available 24 hours a day, 7 days a week, except for:

a. planned downtime (for which 6clicks will give advance notice); or

b. any unavailability caused by a Force Majeure Event; or

c. any access issues resulting from your or the Customer’s software or hardware or third party software or hardware, or both; or any access issues resulting from your or the Customer’s use of the Platform inconsistent with this Agreement including but not limited to access by unauthorised users.

20. Annexure C – Customer Contract Requirements

1. The Customer Contract must define the:

a. Platform;

b. Support Services; and

c. User Type or Subscription Scope,

on terms identical to this Agreement.

2. Under the Customer Contract the Customer is granted access to the Platform for use by its Users (based on the defined User Type and number of Users) plus any Support Services to be provided by you or 6clicksto the Customer in accordance with the terms of this Agreement.

3. The Customer Contract will continue for the Term and cannot be terminated by the Customer before the completion of the Term without the prior written consent of you and 6clicks which will not be unreasonably withheld if the Customer agrees to payout the balance of the Fees payable for the duration of the Term.

4. The use of the Platform will be limited to the number of Users specified in the Agreement.

5. The features and functionality of the Platform available to, or accessible by, the Customer will be limited to those available to, or accessible by, its selected User Type.

6. In the event that payments for the fees under the Customer Agreement cannot be processed by the Partner or by 6clicks, 6clicks may limit the Customer's access to and use of the Platform until all fees due and owing are paid in full.

7. 6clicks prefers that the Customer Contract be governed by the laws of Australia, with the parties irrevocably submitting to the non-exclusive jurisdiction of the courts having jurisdiction in that state. This is not an essential requirement.

8. The Customer may enter into Marketplace Transactions directly with the relevant Partner for the provision of the Content. The Customer releases 6clicks and its personnel (and 6clicks’s associated bodies corporate and their Personnel) from any claim arising out of or in connection with any Products received from any Partners through any Marketplace Transactions facilitated through the Platform.

9. The Customer must provide you or 6clicks (as the case may be) access to its systems and technology environment as required to enable the parties to provide the Support Services or maintain the Platform on behalf of the Customer.

10. The Customer must maintain adequate security of the Customer's Environment to minimise the risk of unauthorised access, use or disclosure of User Data.

11. The Customer must comply with 6clicks’ privacy policy available at 6clicks.io/privacy/.