End User License Agreement Terms
Introduction
A. These End User License Agreement terms and any annexures set out the terms on which 6clicks will provide its Platform and Support Services to Customers (“Agreement”).
B. By accessing, downloading or using the Platform, or by using the Support Services, you accept and agree to be bound by the terms and conditions of this Agreement as set out below.
C. If you do not accept the terms of this Agreement you are not authorized to subscribe to or use the Platform and should not access or use the Platform or the Support Services.
Operative Part
1. Meaning of words
In this Agreement:
(a) 6clicks, we, us and our means the applicable 6clicks contracting entity as specified in the Jurisdiction Specific Terms;
(b) Agreement means the terms contained in this document, the Jurisdiction Specific Terms, the Quote, (iv) our Data Processing Agreement and our Privacy Policy;
(c) Analytics means any analysis or interpretation of User Data, Personal Data (whether de-identified, aggregated or otherwise), and other statistics undertaken or performed by 6clicks from time to time;
(d) Artificial Intelligence (AI) means the field of technology that uses computers or other technology to do things that have traditionally been done using human intelligence and includes techniques, methods and algorithms designed to imitate human reasoning, learning and decision making in a manner that resembles human intelligence including any AI tools developed by 6clicks;
(e) Business Days means business days in the Jurisdiction that applies to you as specified in the Jurisdiction Specific Terms and will typically mean Monday to Friday excluding government recognised public holidays;
(f) Continuous Control Monitoring CCM refers to the functionality developed by 6clicks within the Platform that enables real-time monitoring and assessment of a Customer's security controls through integrations with their cloud platforms and other external data sources;
(g) Commencement Date means the earlier of the date the Platform or the Support Services are first accessed or used by the Customer;
(h) Confidential Information means any information which is disclosed by either party to the other party pursuant to or in connection with this Agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential or marked as such) including, but not limited to, any technical, financial, operational or any other information that is related to the business of either party but excludes information that is in or enters the public domain other than through an unauthorized act or breach of confidentiality of the receiving party;
(i) Content refers to all information, data and content within, uploaded, accessed through and generated by 6clicks including but not limited to 6clicks’ AI and Generative AI the Analytics, and excluding User Data;
(j) Customer and you means the person or entity using the Platform or the Support Services as identified on the Quote or the Purchase Order and its Users;
(k) Developer API means the set of protocols and tools developed by 6clicks which enables the Platform to integrate with other systems or applications;
(l) DPA means 6clicks’ Data Processing Agreement available at https://www.6clicks.com/privacy;
(m) Fees means the fees payable by you for the use of the Platform and the Support Services in accordance with the selected Subscription Scope;
(n) 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;
(o) Further Term means subsequent renewal term(s) of 12 months commencing after the expiration of the Initial Term;
(p) Generative AI means any type of AI that can be used to create new text, images, video, audio, code or synthetic data including the output generated by the AI tools developed by 6clicks from time to time;
(q) Harmful Code means any computer code, software routine, or programming device that is designed to or may:
(i) disable, disrupt, impair, delete, damage, corrupt, reprogram, recode or modify in any way any computer processing system, computer network, computer service, a deliverable, interface, data, files, software, storage media, hardware, or equipment;
(ii) permit a non-authorized third party to access, transmit or utilize, as appropriate, any computer processing system, computer network, computer service, a deliverable, interface, data, files, software, storage media, hardware, or equipment; or
(iii) any other similar harmful or hidden procedures, routines or mechanisms.
(r) Initial Term means the initial term referenced on the covering page of this Agreement and if no period is specified then it is taken to be 3 years;
(s) Intellectual Property means, whether registered or not, all copyright, designs, industrial designs, circuit layouts, trademarks, service marks and commercial names and designations, trade secrets, know-how, Confidential Information, patents, invention and discoveries, literary artistic and scientific works, inventions in all fields of human endeavor, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
(t) Jurisdiction Specific Terms means the additional terms that apply to your Subscription Scope depending on your location which form part of this Agreement and are available at Annexure C;
(u) Notice includes a disclaimer, a disclosure or other statement and a consent provided in writing;
(v) Knowledge Base means the platform maintained by 6clicks which contains documentation relating to the functionality of the Platform and the Support Services, which can be accessed at https://knowledgebase.6clicks.com/ as modified from time to time;
(w) Relevant Laws means all laws and legally binding codes of practice, guidelines or standards issued by relevant regulators or authorities or industry bodies applicable in connection with the parties’ obligations under this Agreement including but not limited the Privacy Act 1988 (Cth), the General Data Protection Regulation ((EU) 2016/679) and the Competition and Consumer Act 2010 (Cth);
(x) Partner means a referrer, reseller or managed services provider approved by 6clicks to refer, resell, distribute or otherwise provide access to the Platform and Support Services to their User’s in accordance with the Partner Agreement;
(y) Partner Agreement means the agreement for the referral, resale or distribution of the Platform between the Partner and 6clicks;
(z) Personal Data means any information relating to an identified or identifiable individual where:
(i) such information is contained within the User Data; and
(ii) is protected as personal data, personal information or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
(aa) Platform means 6clicks' web- based application or mobile app that the Customer has subscribed to which is provided by 6clicks on a 'software-as-a-service' basis including all 6clicks ancillary products such as but not limited to AI, Generative AI, Developer API and CCM;
(bb) Privacy Policy means 6clicks’ privacy policy available at https://6clicks.com/privacy;
(cc) Purchase Order means a signed written order (in the form supplied by 6clicks) between 6clicks and the Customer for the supply of the Subscription Scope;
(dd) Quote means the signed quote supplied by 6clicks between the parties for the supply of the Subscription Scope;
(ee) Security Incident means any breach, incident or event which does or could result in an actual or potential compromise of the confidentiality or integrity of the User Data or the Platform;
(ff) Subscription Scope means the licensing option selected by the Customer relating to access to the Platform, the Support Services and tools and applications including but not limited to AI, CCM and Developer API;
(gg) Support Services means the professional services provided by 6clicks to the Customer or by the Customer to their Users (as the case may be) which may include training, installation, integration and other technical support services as set out in Annexure A;
(hh) Taxes means taxes, levies, imposts, charges, fees 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;
(ii) Term means collectively, the Initial Term and any Further Term(s);
(jj) User means the Customer, any staff, representatives, consultants, contractors, agents or client(s) of the Customer and any third party directed by the Customer that are authorized under this Agreement to access the Platform and the Support Services;
(kk) User Data means any data or Personal Data generated or inputted into the Platform by the Customer or its Users including any data generated using AI or Generative AI based on the User’s prompts but does not include the Content;
(ll) Website refers to www.6clicks.com and any variation or tailored version of the website created for your use; and
(mm) the singular includes the plural and vice versa.
2. Licence to use the Platform
Grant of Licence
(a) In accordance with this Agreement, we grant you a limited, non-exclusive, non-transferable license in accordance with the selected Subscription Scope in order to:
(i) access, download and use the Platform;
(ii) allow access to the Platform by Users and third parties to perform assessments; and
(iii) access, download and use the Content.
(b) The license granted under clause 2(a):
(i) is granted for the duration of the Initial Term and thereafter will continue for subsequent Further Term(s);
(ii) is granted until such time as this Agreement is terminated; and
(iii) is subject to your compliance with the terms of this Agreement.
(c) The Customer’s access to, and the functionality of, the Platform is as set out in the Subscription Scope.
(d) Depending on the agreement between us, you may be both a Customer and a Partner. If you are also an approved Partner, you acknowledge and agree that you have additional rights and obligations under the Partner Agreement between us.
Fees
(e) Your Fees will remain fixed for the Initial Term unless you upgrade your Subscription Scope.
(f) You must pay the Fees strictly in accordance with the dates and for the amounts, minimum terms and payment terms including that Fees are payable 12 months in advance and otherwise as set out in the Quote.
(g) Upon renewal for each Further Term(s), we reserve the right to increase your Fees up to our then-current list price as set out on our Website or by a fixed rate of 5% (whichever is the higher). We will notify you at least 90 days in advance of the new Fees that will apply at the start of the Further Term. If you disagree with the Fee adjustment then you must provide notice of non-renewal in accordance with clause 2(p), otherwise, you agree to pay the Fees as adjusted under this sub-clause.
(h) You agree to 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.
(i) You authorize us to charge your nominated payment method for all Fees payable. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
(j) If you are a Partner (managed service provider only), you acknowledge and agree that you may be responsible for all Purchase Order(s) including guaranteeing the payment of all Fees for your Users.
(k) All fees are exclusive of Taxes, which we will charge as applicable. You agree to pay any Taxes applicable to your use of the Platform and Support Services.
(l) The Customer warrants to 6clicks that if it is required by any regulatory body, it is registered with such body in relation to the Taxes applicable to the Fees at the time of entering this Agreement and will remain registered for the duration of this Agreement.
(m) You indemnify us and our related bodies corporate from all Tax liabilities arising from or in connection with any Tax liability that may be imposed on you or on 6clicks or its affiliates as a result of information provided by you or your failure to comply with any of your tax obligations.
(n) These clauses in connection with the Fees payable under this Agreement survive the termination or expiration of this Agreement.
Term and Termination
(o) Your Subscription Scope will continue for the Initial Term and unless otherwise specified in the Quote, your Subscription Scope will automatically renew for subsequent Further Term(s) unless otherwise agreed between the parties.
(p) Unless otherwise specified in your Quote, to prevent renewal of your Subscription Scope for a Further Term, you must give written notice of non-renewal to support@6clicks.com.au at least 60 days before the expiration of the then current Term.
(q) You may terminate this Agreement at any time for any reason. You will not be entitled to a refund of any prepaid Fees or unused Fees, and you will be liable for any and all unpaid Fees due for the remaining portion of the then current Term.
(r) We may terminate this Agreement at any time by providing you no less than 30 days written notice. If we terminate this Agreement under this clause and provided you are not in breach of this Agreement, then we shall refund you any Fees paid by you to us in advance for the remainder of the then current Term.
(s) You may terminate this Agreement at any time by written notice to us if:
(i) we commit a material breach of this Agreement and fail to remedy the breach within 30 days of receiving written notice to do so;
(ii) we fail to satisfy the response times in accordance with our SLAs available at Annexure B on more than 3 occasions on a rolling 6-month period; or
(iii) there is continuous downtime of the Platform for a period of more than 3 Business Days.
For the avoidance of doubt, you will not be required to pay us any Fees from the date of termination if you validly terminate under this clause 2(s).
(t) We may in our sole discretion (but at all times acting reasonably) immediately suspend, terminate or limit you or your User’s access to the Platform or Content if:
(i) you or your User’s repeatedly post or upload material that infringes or is alleged to infringe on the Intellectual Property rights of any person or entity;
(ii) we deem that you or your Users are in breach of this Agreement or the Relevant Laws; or
(iii) the Fees payable by the Customer are not paid when due but only after we have provided you with 7 days to rectify such non-payment.
(u) We will notify you of such suspension, termination or limitation under sub-clause (t) by email within five (5) Business Days. You agree that we will not be liable to you or any third party for any termination of your or your User’s access to the Platform or Content.
(v) For the avoidance of doubt, the Fees shall continue to accrue during any period of suspension or limitation in accordance with clause 2(t).
Subscription Scope and Support Services
(w) The Customer acknowledges and agrees that:
(i) it or its Users access to and use of the Platform will be limited to the maximum number of Users (if any) set out in the selected Subscription Scope and any reduction in Users will not result in a reduction in the corresponding Fees for the then current Term;
(ii) the features and functionality of the Platform available to, or accessible by, the Customer or its Users will be limited to those available to, or accessible by, its selected Subscription Scope;
(iii) issues resulting from your use of AI, Generative AI, Developer API's, CCM or your modifications to code in the Subscription Scope may be outside the scope of the Support Services. 6clicks will only provide support for integrations which are listed in-app as being supported by 6clicks; and
(iv) it will receive from 6clicks the Support Services provided the Customer agrees to provide 6clicks all required access to the Customer’s systems and technology environment associated with the Platform as required to enable 6clicks to provide the Support Services.
(x) The Customer acknowledges and agrees that 6clicks reserves the right to change the Severity (as defined at Annexure B) of a support ticket submitted by the Customer if in 6clicks’ reasonable opinion, the Severity of the support ticket is not appropriate for the nature or scope of the incident.
3. Account Management
(a) You are responsible for maintaining the security and confidentiality of any usernames, password and any Developer API keys used by you and your Users in relation to the Platform.
(b) You are responsible for any and all activities that occur under you and your User’s accounts in relation to the Platform. You agree to notify us immediately of any unauthorized use of your accounts or any other breach of security by you or your Users.
(c) We will not be liable for any loss that you may incur as a result of someone else using your password, Developer API's keys or account, either with or without your knowledge. However, you will be held liable for losses incurred by us or by another party due to someone else using your account, Developer API's keys or password.
(d) You may not use anyone else's account at any time, nor assign or transfer your account to any other person without the written permission of 6clicks.
(e) You agree to maintain and update your user information (including Personal Information), data and password as required to keep it accurate, current and complete.
(f) You agree to notify us promptly of any unauthorized use of your User’s identifications and passwords or your account by emailing us at support@6clicks.com.
(g) You agree that your payment information will be held by us for use in maintaining your account for the Term.
4. Platform Availability, Updates and Modifications
(a) 6clicks uses commercially reasonable endeavors to achieve uptime access for the Platform of at least 99.9% in any given calendar month. All availability calculations will be based on system records which are available at: https://status.6clicks.com/.
(b) 6clicks will make the Platform available 24 hours a day, 7 days a week, except for:
(i) planned downtime (for which 6clicks will give advance notice);
(ii) any unavailability caused by a Force Majeure Event;
(iii) any access issues resulting from your or a User’s software or hardware or third party software or hardware, or both; and
(iv) any access issues resulting from your or a User’s use of the Platform inconsistent with this Agreement including but not limited to access by unauthorized users.
(c) 6clicks may in its sole discretion release updates to the Platform from time to time. Any updates are also subject to this Agreement. Where you do not agree to an update, your sole remedy shall be to terminate your use of the Platform and to comply with the termination obligations set forth in this Agreement. Any use of the Platform after the update will constitute your acceptance of the update.
(d) 6clicks may in its sole discretion change or discontinue all or any parts of the Platform including any AI, CCM or the Developer API's tool subject to providing you with minimum 3 months’ notice. The parties agree that 6clicks will not be held liable for any damages or losses suffered by you or your Users in connection with any changes or discontinuation of any parts of the AI, CCM or the Developer API's tool.
(e) 6clicks will use commercially reasonable endeavors to ensure that any updates to the Platform will not materially adversely impact your use of the Platform.
(f) The Platform may become unavailable from time to time for scheduled updates or as a result of events beyond 6clicks' reasonable control including:
(i) failure or default by any of 6clicks's third party service providers; or
(ii) any breach of this Agreement by the User or the negligence of the User or its personnel.
(g) We will endeavor to provide you with reasonable notice of any prolonged maintenance, downtime, updates or upgrades as soon as reasonably practicable after becoming aware of any need for prolonged scheduled or unscheduled maintenance, downtime, updates or upgrades.
(h) In the event that the Platform becomes unavailable for any failure or default of 6clicks or their third party service providers for a period of more than 2 Business Days then you may by written notice, request that we suspend the Fees until such time as the Platform is available (which shall not be unreasonably withheld) and, if those Fees have been paid in advance, we will credit them to you.
(i) We may update or change Content on the Platform and Website at any time.
5. Limitation of Liability
(a) To the extent permitted by the Relevant Law, 6clicks provides the Platform and the Support Services “as is” without any warranty or condition of any kind except for the express warranties provided under clause 5(b) of this Agreement. 6clicks disclaims all warranties or representations that:
(i) the operation of the Platform will be uninterrupted, always accessible, or free from Harmful Code;
(ii) the Content is or will be up to date, accurate, error free or complete; and
(iii) the Platform will perform to a specific standard (other than as outlined in the specifications/documentation contained in the Knowledge Base) or be fit for a particular purpose.
(b) Notwithstanding clause 5(a), 6clicks warrants that during the Term of the Agreement:
(i) the Platform and Support Services will be provided in a manner consistent with generally accepted industry standards and will function in accordance with the specifications or documentation provided in the Knowledge Base by 6clicks from time to time; and
(ii) 6clicks owns or licenses the Platform, has the right to grant and extend any licenses provided and to provide the Support Services.
(c) With respect to any User Data which is disclosed or otherwise provided under this Agreement, the Customer warrants and represents that it has provided required notices to, or obtained necessary consents from relevant individuals; and it is permitted under Relevant Laws to provide such User Data to 6clicks and that 6clicks is permitted to use the User Data in the manner contemplated by this Agreement.
(d) The Customer acknowledges and agrees that 6clicks is not responsible or liable for:
(i) any third party products or any services to the extent that such products and services are incorporated into or used in conjunction with the Platform or the Customer’s own products and services. 6clicks makes no representations or warranties regarding the quality, safety or performance of any third party products or services; and
(ii) any loss or damage suffered by the Customer as a result of, or arising out of the use of the User Data generated by the User’s use of the AI or Generative AI.
(e) Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Users’ compliance with the terms of this Agreement.
(f) The Customer 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 or the materials available in the Knowledge Base.
(g) Under no circumstances shall either party be liable for any damages suffered by a User or any third party, including without limitation, any direct or indirect, incidental, punitive, exemplary, special or consequential damages (including, without limitation, any reputational damages, any lost profits, damages for business interruption, or loss of information, programs or other data) that result from access to, link to, use of or inability to use the Platform or the Content or due to any breach of security associated with the transmission of information through the internet including a Security Incident, regardless of the theory of liability and even if foreseeable or even if either party was advised of the possibility of such damages unless as a result of fraud or a willful act or omission of that party.
(h) If, despite this liability limitation, either party has any liability to the other party or any third party for any damage, (except for your liability for payment of Fees, your obligations under the Customer’s Indemnity, your misappropriation of Intellectual Property or breach of your confidentiality obligations), each party's aggregate liability under these terms shall be limited to the Fees paid and payable by you under this Agreement for the twelve (12) months immediately prior to the event giving rise to the claim for such damage. No claim may be pursued by you more than one (1) year after the facts giving rise to such claim have arisen. This liability limitation forms an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in this Agreement does not fully compensate you for any losses.
(i) You understand and agree that absent your agreement to this limitation of liability, we will not provide the Subscription Scope to you.
6. Indemnity
6clicks Indemnity
(a) 6clicks will indemnify, defend, and hold the Customer and its Users harmless from and against any claim by any third party that the Platform violates any third party's valid Intellectual Property rights (“IP Claim”). If in 6clicks’ 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 Customer, and 6clicks will have the option, in its sole discretion, to:
(i) substitute a functionally equivalent non-infringing Platform; or
(ii) modify the Platform to make it non-infringing.
(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 Customer and its Users 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 Customer was unable to use the Platform.
Customer’s Indemnity
(c) The Customer agrees to make good, defend, indemnify and hold harmless (at your expense) 6clicks, its personnel and its related bodies corporate from and against any and all actions, claims or losses arising from:
(i) the Customer or its User’s breach of this Agreement;
(ii) the Customer or its User's use of the Platform in breach of this Agreement (except to the extent any such claim or loss arises from the fraud, gross negligence or willful misconduct of 6clicks);
(iii) the Customer’s or its User's breach of any third party right (including Intellectual Property rights) or any Relevant Law; or
(iv) any claim arising out of or in relation to any content of the User Data in breach of this Agreement.
General
(d) The defense 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 defense and all related settlement negotiations on the condition that the parties engage in consultation with respect to any loss or claim.
(e) The provisions of this clause 6 will survive the termination or expiry of this Agreement.
7. Intellectual Property, Confidentiality and Privacy
Intellectual Property
(a) You acknowledge and agree that all Intellectual Property held, located within and related to our Platform and the Content is the property of 6clicks and its related bodies corporate, excluding the User Data, and protected by Intellectual Property law. Nothing in this Agreement conveys or vests to you any interests or ownership in such Content or Intellectual Property.
(b) You acknowledge and agree that any improvements, suggestions, ideas, enhancement requests, feedback, recommendations, or other information you provide to 6clicks shall belong solely to 6clicks without any payment or attribution to you.
(c) Subject to clause 7(d), 6clicks acknowledges and agrees that the User 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 license granted under this Agreement. For the avoidance of doubt, this Agreement does not grant us any ownership rights in the User Data.
(d) The parties agree that 6clicks retains all Intellectual Property rights, title, and interest in and to any output generated through the User’s use of the AI or Generative AI tools available within the Platform to the extent that it incorporates both Content and User Data (Co-Mingled Data). 6clicks grants the Customer a non-exclusive, royalty free, irrevocable, transferable, worldwide and limited license to manage, edit and use the Co-Mingled Data solely for the purposes outlined in this Agreement.
(e) The Customer grants 6clicks a non-exclusive, royalty free, irrevocable, transferable, worldwide and limited license to manage, edit and use the User Data:
(i) for the purposes of performing its obligations under this Agreement;
(ii) to further develop and make improvements to the Platform including undertaking Analytics but only to the extent required to enhance our service offering to you; and
(iii) to comply with any Relevant Laws,
(f) For the avoidance of doubt, 6clicks’ use of the User Data as outlined in clause 7(d) will not comprise the transfer of the User Data outside the Customer’s 6clicks tenancy without the prior written approval of the Customer.
Confidentiality and Security Incident
(g) A party must not, without the prior written consent of the other party, use or disclose the other party's Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
(h) A party may:
(i) use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
(ii) disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the receiving party is bound by confidentiality obligations no less than those contained in this Agreement.
(i) Each party must implement and maintain effective security measures to prevent unauthorized use and disclosure of the other party’s Confidential Information whilst it is in the receiving party’s possession or control. 6clicks agrees, during the Term of this Agreement, to maintain accreditation against ISO27001:2013 (or its updated version).
(j) Each party must return, or at the other party’s option delete or destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of the disclosing party’s request or on termination of this Agreement for any reason.
(k) If either party becomes aware of a Security Incident:
(i) it must notify the other party within 72 hours (of becoming aware) in writing and give full details about the Security Incident;
(ii) reasonably cooperate with the other party in respect of the Security Incident including any investigation undertaken by the other party; and
(iii) at its sole discretion, conduct its own investigation of the Security Incident, and where it deems appropriate, implement rectification measures.
Privacy
(l) You acknowledge that the Platform and Support Services collects minimal Personal Data including names, email addresses and business titles of Users and at all times excluding the collection of any sensitive data. For more information on the types of Personal Data we collect, please see our Privacy Policy and Data Processing Agreement available at: https://www.6clicks.com/privacy.
(m) The terms of the DPA are hereby incorporated by reference and will apply to the extent any User Data includes Personal Data. The DPA sets out how we will process Personal Data on your behalf in connection with the Platform and the Support Services provided to you under this Agreement. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA, including our Security Measures in Annexure 2 of our DPA
(n) We will store your User Data in the Regional Data Hosting center as specified in the Jurisdiction Specific Terms.
(o) As a condition of your use of our Platform, you authorize us to include you or your organization’s name in our published list of users. You can opt out of this use by writing to us at support@6clicks.com.au.
8. User Data
(a) The Platform may allow the Customer and its Users to enter and manage User Data. The Customer acknowledges and agrees that 6clicks may alter or remove any User Data if 6clicks reasonably considers that it breaches the Relevant Laws or a third party's rights provided that reasonable notice is given to the Customer.
(b) The Customer will (and must ensure that each of its Users will) ensure that the User Data is accurate, complete, reliable, up to date, and compliant with any Relevant Laws.
(c) Once this Agreement is terminated by you or by us, your User Data is archived and is no longer available to you. We retain it for a period of time consistent with our data retention policy, during which, you can reactivate your Subscription Scope and once again access your data by paying the Fees.
(d) Notwithstanding any provision to the contrary in this Agreement, 6clicks will, on request of the Customer for a period of up to three (3) months after the termination or expiration of this Agreement, provide reasonable instructions and assistance to the Customer in connection with the transition of User Data to the Customer or an alternate service provider. If the Customer requires further assistance beyond the instructions provided by 6clicks under this clause, such reasonable assistance will be charged to the Customer based on 6clicks’ standard hourly rates and the scope of the assistance shall include providing the User Data to the Customer or an alternative service provider as requested by the Customer in a standard industry format.
(e) Upon request, 6clicks may provide the Customer with access to all relevant documents and information that will reasonably enable the Customer to verify 6clicks’ compliance with the security requirements under this Agreement, including, but not limited to, annual independent audits and/or certifications of compliance with ISO27001:2013 (or its updated version), summaries of other independent testing or reviews (for example, penetration testing showing summary results), For the avoidance of doubt, 6clicks may in its sole discretion provide summaries or redacted versions of each of the documents contemplated by this clause as required to maintain confidentiality of its Confidential Information.
9. Permitted use
(a) You agree not to use the Platform or Content and ensure your Users do not use the Platform or Content:
(i) in violation of this Agreement or Relevant Law;
(ii) in any manner that could damage, disable, overburden, or impair our server, or the network(s) connected to our server, or interfere with our operation, or any other party's use and enjoyment, of the Platform;
(iii) to store, transmit or otherwise make available any content that you do not have a right to make available under any law or which infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(iv) other than for the purposes and subject to the conditions prescribed under this Agreement, to reproduce, upload to a third party, link to, frame, store in a retrieval system or transmit any part of the Platform or Content without our prior written consent;
(v) to redistribute or resell the Platform or Content or the Intellectual Property in the Platform or Content other than as a Partner in accordance with the Partner Agreement as may be separately agreed between the parties;
(vi) to do, or cause to be done, any act or thing that may impair any of 6clicks’ Intellectual Property rights in connection with the Platform or Content;
(vii) use the Platform on behalf of any third party other than your Users;
(viii) modify, adapt, or hack the Platform or otherwise attempt to gain or gain unauthorized access to the Platform or related systems or networks or tamper with or breach the security of the Platform;
(ix) attempt to decipher, decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover or attempt to derive the source code or underlying program of any software making up the Platform;
(x) use the Platform to send unsolicited communications, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages;
(xi) remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Platform or the Content, or add any other markings or notices to the Platform or the Content unless otherwise agreed by us in writing;
(xii) use the Platform to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory or promotes any financial exploitation or a criminal activity;
(xiii) modify, port, test, adapt, translate or create any derivative work or competitive product based upon the Platform;
(xiv) use the Platform to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, worms or cancelbots or any other Harmful Code;
(xv) establish a link to the Platform or our website in such a way as to suggest any form of association, approval or endorsement by us where none exists; or
(xvi) use the Platform for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, or sending electronic communications (including e-mail).
(b) If you or your User’s are in breach of this clause 9 of this Agreement, we have the right (but not the obligation) in our sole discretion to:
(i) refuse access to or use of the Platform;
(ii) move any Content that is available within the Platform;
(iii) to remove any Content that violates this Agreement or is otherwise deemed by us to be inappropriate or objectionable; and
(iv) preserve or disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect our rights, property or the personal safety of our staff, other users or the public.
10. Force Majeure
(a) Neither party will be responsible for a failure to perform any obligation under this Agreement (except for an obligation to pay the Fees) 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 Business Days notice in writing to the affected party. Where you terminate the agreement under this clause, you shall pay the Fees until the date of termination.
11. Amendment
(a) In order to remain compliant with all relevant legislation, we may modify any part or all of the Agreement by posting a revised version at https://www.6clicks.com/terms-and-conditions. The revised version will become effective and binding the next Business Day after it is posted. We will provide you Notice of this revision via the Platform, by email or via our Website.
(b) If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send Notice of the revision. The parties agree to use best endeavors to negotiate the modified terms. If the parties are unable to come to an agreement, then, you can terminate this Agreement by providing us with 6 months’ Notice. At the expiration of the notice period under this sub-clause, we will promptly refund any prepaid but unused Fees from the date of termination.
12. Contracting Party and Applicable Law
(a) You are contracting with the 6clicks Contracting Entity applicable to you as set out in the Jurisdiction Specific Terms.
(b) The terms and conditions of this Agreement will be construed in accordance with the laws in force in the Governing Law applicable to you as set out in the Jurisdiction Specific Terms without regard to the conflict of laws provisions, and both parties agree to submit to the non-exclusive jurisdiction of the courts and tribunals of the Jurisdiction applicable to you as set out in the Jurisdiction Specific Terms.
13. Anti-bribery
(a) The parties must not offer or provide any benefit (including any payment, gift, hospitality or gratuity) to any person with the intention of improperly influencing such person in the exercise of their duties (including to make a decision or to take any other action) in entering into or performing the obligations under this Agreement.
(b) Each party represents, warrants and undertakes that, to the best of its knowledge and control:
(i) neither it nor any of its related bodies corporate, nor any of its personnel have offered, authorized, promised, given, solicited or accepted, and none of the foregoing will offer, authorize, promise, give, solicit or accept, to or from a government official or any other person, any payment, gift, service, thing of value or other advantage where such an action would violate any applicable anti-corruption or anti-bribery law, including but not limited to the Criminal Code Act 1995 (Cth), the UK Bribery Act of 2010 and the US Foreign Corrupt Practices Act 1977 (Anti-Bribery and Corruptions Laws); and
(ii) each party and its personnel have been in full compliance with Anti-Bribery and Corruption Laws.
(c) Upon becoming aware of any actual, reasonably suspected or anticipated breach of this clause 13, the defaulting party must immediately provide written notice of the breach giving full details of such breach to the non-defaulting party.
(d) If a party (Notifying Party) is in breach of any part of this clause 13 then without prejudice to any other remedy the other party (Notified Party) may have, the Notified Party may:
(i) if the breach is not due to an act of the Notifying Party or any of its related bodies corporate or any of its personnel, immediately terminate this Agreement for breach with notice in writing; or
(ii) if the breach is due to an act of an agent of the Notifying Party or any of its related bodies corporate any of its personnel, provide the Notifying Party with a written notice of the default and may immediately terminate this Agreement by providing written notice if the Notifying Party fails to cure such breach to the reasonable satisfaction of the Notified Party within five (5) Business Days of receipt of that notice.
(e) Notwithstanding any other provision of this Agreement, as a consequence of the termination under this clause 13, the Notified Party shall be excused from further observance of the obligations under this Agreement and shall not be liable for any loss or damage or other costs or expenses of any kind whatsoever that the Notifying Party may suffer as a result of such termination.
14. General
(a) You 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 that has the resources and expertise to fully perform this Agreement and the Customer must take all steps, including executing all documents, reasonably requested by 6clicks for this purpose.
(b) Each party must pay its own costs and expenses in respect of negotiating, preparing, signing, delivering and performing this Agreement and any other agreement or document entered into or signed under this Agreement.
(c) This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior agreement or understanding on anything connected with that subject matter.
(d) 6clicks may give you Notice under this Agreement through the Platform, on our Website or by email. You must provide Notice to the contact address set forth in the Jurisdiction Specific Terms which will be deemed delivered as of the date of actual receipt.
(e) If any provisions of this Agreement become void, voidable or unenforceable then those provisions are deemed to be severed and the remaining provisions will continue to have full force and effect.
(f) Any failure or delay by 6clicks in exercising any right, power or privilege available to us will not operate as a waiver of that power or right.
(g) The parties agree that no joint venture, legal partnership, employment, or agency relationship exists between us.
(h) In the event of a conflict between the terms of this Agreement or a Purchase Order, the terms of the Purchase Order will prevail but only to the extent of the inconsistency.
(i) 6clicks may subcontract all or part of its obligations under this Agreement without the prior written consent of the Customer. 6clicks agrees to provide reasonable notice of any changes to its subcontracting arrangements by maintaining an updated list of subcontractors/sub-processers on its DPA.
Annexure A – Support Services
This Annexure A governs the provision of support services by 6clicks to the Customer during the Term of the Agreement.
1. Definitions
In this Annexure A, unless the context otherwise requires:
(a) Business Day means business days in in the jurisdiction where the relevant 6clicks Contracting Entity (as outlined in the Jurisdiction Specific Terms) resides and will typically mean Monday to Friday excluding government recognised public holidays; and
(b) Business Hours means 9.00am to 5.00pm in the Jurisdiction applicable to you as specified in the Jurisdiction Specific Terms.
2. Scope
During the term of the Agreement, 6clicks will provide the following support services to the Customer:
(a) Technical support
Unlimited technical support during Business Hours on Business Days delivered through:
(i) email support – support@6clicks.com; or
(ii) ticket support – through the Platform.
6clicks' target response time to technical support requests is defined in Annexure B.
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 Customer’s access to the Platform due to the Customer'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 service provider failures or delays; and
(d) the Customer's equipment, software or other technology, or any equipment, software or technology not supplied by 6clicks.
Annexure B – Response Time SLAs
Response Times and Expected Support Experience
|
Severity |
Situation |
Response |
Customer Expectation |
|
Low |
Minor functionality unavailability. Simple workarounds are available. |
- Respond to the ticket within 48 hours of receiving it. |
The internal team will acknowledge the ticket and come to a resolution. |
|
Medium |
Key functionality unavailable. No workaround is available. |
- Response to the ticket within 24 hours of receiving it. |
- The internal team will acknowledge the ticket. |
|
High |
The system is down or severely impaired. |
- Response to the ticket within 12 hours of receiving it. |
- The internal team will acknowledge the ticket. |
|
Critical |
Productivity Blocker. |
- Acknowledgment of issue within 1 hour. |
- Allocation of appropriate resources to sustain 24x7 continuous effort to resolve. - Regular communication from respective support personnel |
Annexure C – Jurisdiction Specific Terms
Depending on your location, some of these Jurisdiction Specific Terms will apply to you. They form part of the 6clicks End User Licence General Terms and are incorporated as part of the Agreement.
This document may be updated from time to time. You can access all of 6clicks’s terms and conditions and privacy documents at: https://www.6clicks.com/terms-and-conditions.
If you are located in a geographic region that does not fall into one of the designations described in the table, then you are contracting with 6clicks Trading Pty Ltd and you are bound by the Laws of the state of Victoria, Australia and the Commonwealth of Australia.
|
Customer Location |
6clicks Contracting Entity |
Address for Notices |
Governing Law and Jurisdiction |
Regional Data Hosting |
|
APAC Region (including Australia, New Zealand, East Asia and Southeast Asia) |
6clicks Trading (Australian Company Number 634 263 166) |
C/o Andrew Cook & Associates, 165 Martin Street, Brighton, Victoria 3186, Australia. |
Laws of the state of Victoria, Australia and the Commonwealth of Australia |
Australia |
|
North America or South America |
6clicks Inc (File Number 3720268) |
131 Continental Drive Suite 305, Newark, the State of Delaware, the United States of America |
Laws of the State of Delaware, the United States of America |
United States of America |
|
United Kingdom |
6clicks International Ltd (Company number 13098330) |
10 John Street, London, United Kingdom, WC1N 2EB |
Laws of England and Wales |
Laws of England and Wales |
|
Europe (including Russia) |
6clicks International Ltd (Company number 13098330) |
10 John Street, London, United Kingdom, WC1N 2EB |
Laws of England and Wales |
Laws of England and Wales |
|
Middle East |
6clicks International Ltd (Company number 13098330) |
10 John Street, London, United Kingdom, WC1N 2EB |
Laws of England and Wales |
Laws of England and Wales |
|
Africa |
6clicks International Ltd (Company number 13098330) |
10 John Street, London, United Kingdom, WC1N 2EB |
Laws of England and Wales |
Laws of England and Wales |