Terms of Service
1.1. These Terms of Service (“Terms”), together with any Application Form, exhibits, schedules, attachments and materials that expressly reference these Terms, collectively form the agreement by and between Whispir and Customer (“Agreement”) that govern Customer’s use of the Whispir Services and the provision by Whispir of Deliverables.
1.2. This Agreement is binding on the parties and deemed to be validly executed on the earlier to occur of the following:
1.2.1. the Customer receives a copy of these Terms and the other applicable Agreement documents, either in hard copy, electronically or by being provided with a hyperlink to them, and the Customer then proceeds to log into or otherwise use any of the Whispir Services or uses any Deliverables; or
1.2.2. both parties have signed, either electronically or in hard copy, a document referencing these Terms (including an Application Form or a Statement of Work).
1.3. Capitalized terms not otherwise defined in these Terms have the meanings ascribed in Section 3.
1.4. If any provision of the Agreement conflicts with or is inconsistent with any other provision of the Agreement, then the following order of precedence shall apply:
1.4.1. Schedule 2: Data Protection Addendum (but solely with respect to Personal Information);
1.4.2. these Terms (excluding Schedules);
1.4.3. the Application Form;
1.4.4. Schedule 1: Whispir Product & Services Catalogue;
1.4.5. any then-current Statement of Work or Service Description;
1.4.6. any document expressly incorporated by reference in any of the above; and
1.4.7. any other exhibit, attachment or document that expressly references the Agreement and is executed by a duly-authorized representative of each of Whispir and Customer, in each case where a provision in a later dated exhibit, attachment or document shall prevail over any conflicting provision in an earlier-dated exhibit, attachment or document.
2.1. The Agreement is effective on the date specified in the Application Form (or, if no effective date is specified, the earlier of the two dates indicated in Section 1.2) (“Effective Date”) and continues for the Initial Term unless earlier terminated in accordance with Section 25.
2.2. After the Initial Term, the Agreement (but not a Trial Package) will automatically renew for additional successive periods equal in length to the Initial Term (each, a “Renewal Term”) unless earlier terminated pursuant to Section 25 or either party provides written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the Initial Term or then-current Renewal Term (as applicable). Trial Packages do not automatically renew.
3.1. Capitalized terms not otherwise defined herein have the following meanings.
Acceptable Use Policy means the policy found at https://www.whispir.com/acceptable-use.
Accepted means the issuance or deemed issuance of a Certificate of Acceptance for a Deliverable.
Acceptance Tests has the meaning given in Section 9.2.
Acceptance Test Period has the meaning given in Section 9.2.
Access Information means a username, PIN, password or any combination of the foregoing that Whispir allocates to Customer or Users for the purpose of accessing the Service.
Affiliate means an entity controlled by or under common control with Customer or Whispir (as applicable).
Applicable Data Protection Laws has the meaning given in the Data Protection Addendum, and includes the Privacy Act 1988 (Cth), the Australian Privacy Principles under that Act, and any other Laws relating to privacy, data protection, surveillance, direct marketing, spam or the handling of personally identifiable information or data by which the relevant party is legally bound to comply with.
Application Form means the hard copy or electronic application form (as specified by Whispir from time to time) executed by the parties that outlines the party details and other commercial details (such as the Whispir Services being obtained and the Initial Term) and which references or attaches these Terms, as amended pursuant to the Agreement.
Base Services means the Whispir Services identified in the Application Form.
Business Day means any day except Saturdays, Sundays or public holidays in the Governing Location.
Certificate of Acceptance has the meaning set out in Section 9.4.2.
Change Event means a change in Laws affecting the manner in which Whispir provides any of the Whispir Services.
Charges means the fees for the Whispir Services set forth in the Application Form, then-current Whispir Product & Services Catalogue and SOW.
Confidential Information means, in relation to a party, any information (a) marked or otherwise designated as confidential or proprietary; (b) that is confidential in nature and disclosed by one party to the other in circumstances importing an obligation of confidence; or (c) relating to the financial information, business activities or affairs of a party or any of its Affiliates. Confidential Information does not include information that (i) is or becomes readily available in the public domain other than as a result of a breach of the Agreement; (ii) was known to the other party before it received it and is not subject to an existing obligation of confidentiality among the parties; (iii) is developed by the receiving party independently of the disclosure; (iv) is provided to a party by a third party who or that is not under an obligation of confidence in respect of the information; or (v) Usage Data.
Customer means the entity identified on the Application Form as a customer of Whispir or any third party authorized by Whispir to, directly or indirectly, access or use the Service pursuant to a reseller, value-added reseller, distributor, channel partner or similar authorized agreement.
Customer Data means data embodied in any electronic or tangible medium and distributed by Customer via the Service, uploaded to the Service by or on behalf Customer or otherwise made available by or on behalf of Customer to Whispir. The term "Customer Data" does not include Usage Data.
Customer Industry Regulations means any laws, regulations, government authority requirements and binding codes of practice and standards that are applicable to Customer's particular industry or sector in which it conducts business, as may be amended from time to time.
Customer Material means material (including any text, drawings, multimedia content, software, RSS feeds, websites and databases) that is provided or made available by or on behalf of Customer to Whispir in connection with the Agreement, including any material uploaded to the Service by or on behalf of Customer or Users.The term "Customer Material" does not include Usage Data.
Data Protection Addendum means the additional terms relating to Personal Information set forth in Schedule 2 as amended from time to time by Whispir in accordance with Section 5.5.
Defect means, in relation to the Service or a Deliverable or any part thereof, a failure to perform in any manner that is internally inconsistent or otherwise clearly erroneous.
Deliverable means all tangible or intangible goods or services made available by Whispir to Customer under the Agreement, including the Software and goods and services produced as a result of Professional Services, that are intended for delivery to Customer by Whispir as defined in the Service Description or SOW.
Effective Date has the meaning given in Section 2.1.
Force Majeure means (a) an event which renders a party (the "affected party") unable to carry out the whole or any part of the Agreement for any reason beyond its control including (but not limited to) acts of God, natural disasters, epidemics, acts of governments or governmental authorities, strikes or riots, acts of war or terrorism, third party network or telecommunications failures, cyber security attacks inability of suppliers to deliver or provide products or services that occurs without fault on the part of the affected party and any other causes of like nature; and/or (b) any delay or failure by a third-party service provider of Whispir to provide goods and services to Whispir which renders Whispir unable to carry out the whole or any part of the Agreement, including any failure of Whispir's hosting, short message service (SMS), technology, and telecommunications service providers.
Governing Location means: (a) unless sub-section (b) of this definition applies, Victoria Australia; (c) if executed in New Zealand by a Customer that is a New Zealand company or resident, New Zealand.
Help Desk means the service that forms part of the Support Services established and operated by or on behalf of Whispir that enables Customer to obtain instructions or advice over the telephone (or email or web queries), in relation to the Service.
Insolvency Event means, with respect to a party, (a) the party becomes insolvent or is otherwise unable to pay its debts as and when they fall due; (b) the party (or any third party) institutes any insolvency, liquidation, receivership or bankruptcy proceedings with respect to the party, or a voluntary administrator or an administrator of a deed of company arrangement is appointed to all or any part of the property, assets or business of the party; (c) the party makes a general assignment for the benefit of creditors; (d) the party ceases to conduct business; or (e) any event analogous or equivalent to the events described in paragraphs (a) to (d).
Intellectual Property means all rights in relation to patents, copyrights, registered designs, registered and unregistered trademarks, trade secrets, knowhow, database rights and all other intellectual property (including any right to register those rights) and Moral Rights, wherever in the world arising.
Invoice means an invoice sent to Customer setting out Charges payable by Customer and any other amount due to Whispir under the Agreement.
Laws means all laws, rules of common law and equity, statutes, regulations, mandatory codes and standards, writs, orders, injunctions, judgments and government authority requirements, each as amended from time to time.
Marketing Message means a Message that is designed to promote the sale of goods or services.
Material Defect means a Defect in any Deliverable that has (or would have, if the Deliverable were used by Customer) a substantial adverse impact on the business operations of Customer.
Message means an SMS (Short Message Service) or MMS (Multimedia Message Service) message sent via a mobile telephone network or an email sent via an email network or a pager message sent via a paging network or a voice message or a fax sent via a telecommunications network via the Service or any internet protocol (“IP”) based transfer of information using the Internet or any IP-based network.
Message Plan means the volume and/or value of Messages committed by Customer in the Application Form during the Term.
Moral Rights means any of the following rights for a natural person author of the work as recognized under applicable Laws: (a) a right of attribution of authorship; (b) a right not to have authorship falsely attributed; or (c) a right of integrity of authorship.
Non-Excludable Terms has the meaning given in Section 22.2.
Personal Information has the meaning given in the Data Protection Addendum and includes: (a) 'personal information' as defined in the Privacy Act 1988 (Cth); and (b) any other information that is regulated by, or under, any Applicable Data Protection Laws.
Personnel means officers, directors, members, managers, employees, independent contractors, subcontractors, consultants, service providers, authorized representatives, agents, legal advisers and certified public accountants.
Professional Services means any labor-based services performed on either fixed price or time and materials basis including consulting, implementation, enablement, software development, support or training services provided by or on behalf of Whispir pursuant to an agreed SOW or Service Description.
Renewal Term has the meaning given in Section 2.2.
Service means access to the editions and modules of Whispir's technology platform as selected by Customer in the Application Form and further described in the Whispir Product & Services Catalogue that is made available via an internet uniform resource locator (URL) or other means as notified by Whispir to Customer from time to time.
Service Description means the written description for a packaged Professional Service attached to or referenced in an Application Form and/or the Whispir Product & Services Catalogue.
Service Levels means the service levels set out in the Whispir Product & Services Catalogue.
Software means any installed software licensed to Customer by Whispir to access the Service and includes any modification or alteration to such software provided to Customer from time to time.
Statement of Work (or SOW) means a document by and between Whispir and Customer that, once executed, forms part of the Agreement and typically defines project-specific scope, activities, deliverables, responsibilities, indicative timelines, pricing, governance and acceptance criteria for Professional Services that Whispir will provide to Customer.
Support Services means the support services set out in the Whispir Product & Services Catalogue.
Taxes means a tax, levy, duty, charge, deduction or withholding, however described, imposed by Laws or government agencies, together with any related interest, penalty, fine or other charge, other than GST or income tax.
Term means the Initial Term and each Renewal Term (if any).
Terms has the meaning given in Section 1.1
Territory means the country in which the Customer is based (determined by reference to the address specified for the Customer in the Application Form), and such other countries (if any) specified in the Application Form as being permitted countries in which the Customer may utilise and access the Whispir Services and Software.
Trial Packages means a one-time trial of the Service as indicated in the Application Form or that is denoted ‘Trial Package’ on www.whispir.com.
Usage Data means data that are generated by or derived from Customer’s use of the Service and Whispir's monitoring of Customer's access to or use of the Service, which are processed by Whispir for Whispir’s analysis, development, improvement, maintenance, auditing of the Service, security and fraud detection and prevention for the Service, and similar technological operational purposes.
User means Personnel of Customer and Customer Affiliates who Customer authorizes to use the Service pursuant to the Agreement.
Whispir means Whispir Australia Pty Limited (ABN 86 101 853 132) of Level 15, 360 Collins Street, Melbourne, Victoria, 3000, Australia.
Whispir Product & Services Catalogue means the catalogue that describes the Whispir Services and associated Charges attached as Schedule 1, as updated in accordance with Section 5.5.
Whispir Services means the Service, Professional Services, Support Services and other services (whether or not part of a Trial Package) selected by Customer in the Application Form and further described in the Whispir Product & Services Catalogue, together with specifications, documentation and other information, documents, content, technologies, technical or functional descriptions, plans or reports provided or used by Whispir in connection with the Service or otherwise comprise of or relate to the Service, and Usage Data.
4. Whispir Services
4.1. Whispir will provide the Whispir Services to Customer for the Term in accordance with the terms of the Agreement.
4.2. Customer acknowledges and agrees that Whispir’s provision of the Whispir Services relies on third-party services that may be affected by technical problems, telecommunications network coverage, availability issues and similar factors outside Whispir’s reasonable control, such as unsuccessful or untimely termination of Messages on an end-user’s handset; messages not received because the recipient's mobile phone memory is full; and inability to track the status of all Messages.
4.3. Charges for the Service are based on Messages sent, irrespective of whether they are delivered to or received by the intended recipient.
4.4. A Message sent to a group of recipients will be treated as an individual Message sent to each member of the group and charged accordingly.
5. Addition And Removal Of Whispir Services And Changes To The Agreement
5.1. Subject to Section 5.4, Customer may request the addition or removal of any of the Whispir Services to be provided or performed under the Agreement by submitting a new Application Form, or by submitting a change request (in such form determined by Whispir from time to time) to Whispir.
5.2. Whispir will notify Customer in writing of any associated increase or decrease in the Charges and any other applicable commercial terms as a result of Customer’s request to add or remove Whispir Services. If Customer elects to proceed after receiving details of any changes to the Charges and other commercial terms notified by Whispir in relation to the change, Customer will confirm that it wishes to proceed with the new Application Form or change request in writing and such change is effective when Whispir agrees in writing to the request. Whispir will not unreasonably withhold or delay its consent to any such request.
5.3. Any new Application Form or change request submitted by Customer that is accepted by Whispir in accordance with Section 5.2 will supersede (or in the case of a change request, vary) any prior Application Form or the relevant Agreement document (for example, a SOW). The parties agree that the Agreement is varied such that any new Application Form or change request accepted by Whispir in accordance with Section 5.2 will form part of the Agreement and supersede any inconsistent term but solely to the extent of the inconsistency.
5.4. Customer agrees to procure the Base Services for the Term unless the Agreement is terminated earlier in accordance with Section 25. Customer acknowledges and agrees that Whispir is not required to reduce the level, amount or type of Whispir Services provided by Whispir under the Agreement to a level or an extent that does not include or is less than the value of the Base Services.
5.5. Whispir may, on at least 30 days’ prior written notice to Customer (each such notice a “change notice”) amend this Agreement. If any change in a change notice (a) materially adversely affects Customer’s rights under this Agreement (other than the Whispir Product and Services Catalogue) or the Data Protection Addendum; (b) is made to the Whispir Product & Services Catalogue and results in a material degradation in the Services Description, Service Levels, specifications or performance of Whispir Services (taken as a whole); or (c) increases the unit prices or rates such that the Charges payable by Customer in the upcoming 12-month period increase by more than 20% when compared to the Charges for the previous 12-month period for the equivalent volume and scope of Whispir Services, then Customer may object to the proposed change in writing to Whispir within 30 days after receipt of the change notice. If Customer does not object to a change notice within 30 days after receipt, then the terms of the change notice shall be effective on the date set out in the change notice (such date, the “change effective date”), provided that the change effective date must be no less than 30 days after the date of the change notice. Unless Whispir agrees in writing to Customer’s objection, then Customer may, within 30 days after receipt of the change notice, elect to terminate the Agreement on 30 days’ prior written notice to Whispir. If Customer elects to terminate the Agreement pursuant to this Section 5.5, then Whispir will provide Customer with a pro-rata refund of pre-paid fees that relate to the period following the effective date of termination.
6. Service Levels
6.1. Subject to Section 7, Whispir agrees to provide the Whispir Services in accordance with the applicable Service Levels.
6.2. Subject to Section 7, if Whispir fails to meet the applicable Service Levels, then, to the extent permitted by Law, Customer's sole remedy shall be compensation by Whispir in accordance with the "Support Service Level Credits" and "System Availability Service Level Credits" sections of the Whispir Product & Services Catalogue. Compensation credits will only apply to the billing of the monthly Charges (excluding costs for Support Services) for the Whispir Service that is directly affected by the failure to meet the Service Levels. To the extent permitted by Laws and subject to Section 22, Customer agrees that Whispir is not liable for any other loss or damage arising from or related to delays in sending Messages or a failure to terminate Messages for any reason.
6.3. Except as provided in Section 6.2, the terms of this Section 6 supersede any contrary provision of the Whispir Product & Services Catalogue.
7. Exemptions To The Service Levels
7.1. Notwithstanding anything to the contrary in the Agreement, to the extent permitted by Law, Customer has no right to make any claim against Whispir for any failure to meet any Service Level under the Agreement in the following circumstances:
7.1.1 a failure to meet a Service Level that is attributable to Force Majeure or breach of the Agreement by Customer or acts or omissions of Customer, Customer's Personnel or Users;
7.1.2. if the credit claim request form (in Whispir Product & Services Catalogue) is not received by Whispir from Customer within 90 days after the end of the calendar month in which the event that gave rise to the claim occurs;
7.1.3. disconnection and/or reconnection of the Service due to non-payment of any of the Charges;
7.1.4. unavailability due to Customer owned and/or maintained equipment and/or infrastructure, including Customer Material;
7.1.5. if a failure to meet any Service Level is caused by Customer’s provision to Whispir of inaccurate, incomplete or untimely information; or
7.1.6. if Customer or its Users does not use the Service in accordance with instructions provided by Whispir including but not limited to Whispir’s product and help documentation, material on Whispir's developer website and both written and verbal instructions provided to Customer by Whispir personnel.
7.2. Subject to Section 7.4, Whispir shall use its best efforts to restore access to the Service if the Service becomes unavailable. Customer may upon written notice to Whispir terminate the Agreement if:
7.2.1. Whispir is unable to restore access to the Service within five (5) Business Days after the date of commencement of the unavailability the Service provided, however, that the cause of the unavailability is not any of the events or circumstances set out in Sections 7.1 or 7.4; or
7.2.2 a Force Majeure event causes or results in Whispir’s inability to restore access to the Service within 90 days.
7.3. If Customer terminates the Agreement pursuant to Section 7.2, Customer must pay Charges up to (but not including) the date on which the Service became unavailable.
7.4. To the maximum extent permitted by Laws and subject to Section 22, Whispir shall not be responsible or liable to Customer for:
7.4.1. Whispir Service impairments caused by acts within the control of Customer, Customer’s Personnel or Users;
7.4.2. inter-operability of specific Customer Material, such as internet browsers and email applications;
7.4.3. interaction with Customer’s service providers, networks or informational or computing resources;
7.4.4. Customer's reliance on third-party services to access the Service; or
7.4.5. performance impairments caused by the Internet, telecommunications networks or other Force Majeure events.
8.1. Whispir will allow Users to access and use the Service on behalf of Customer. Customer is responsible and liable for all acts and omissions of Users in connection with their use of the Whispir Services as if such acts and omissions were acts and omissions of Customer.
8.2. Customer may add, cancel or amend the provision of the Service to Users from self-provisioning tools offered through the Service or otherwise upon advance written notice to Whispir.
8.3. Customer must ensure that all information received by or on behalf of Whispir from or about Users is accurate, and is kept up-to-date. Whispir is not responsible or liable for the accuracy of User information.
8.4. Customer agrees to pay all Charges as set forth in an Application Form relating to Users who have access to the Service. Whispir reserves the right to limit or revoke access for any particular User at the sole discretion of Whispir.
8.5. Customer agrees to pay all additional Charges if the addition of new Users results in the need to upgrade to the next edition of the Service as set forth in the Whispir Product & Services Catalogue.
8.6. Customer agrees to take all reasonable steps to prevent unauthorized use of the Service and to ensure that the Access Information of Customer and Users is not disclosed to a third party or otherwise compromised.
8.7. Customer must promptly notify Whispir if Customer becomes aware of any use of the Service by a User in breach of the Agreement or contrary to the Acceptable Use Policy or if Customer becomes aware of an actual or suspected compromise to Customer Data or the Service.
9. Professional Services
9.1. The terms of this Section 9 shall only apply to Professional Services purchased by Customer. During the Term, Customer may purchase Professional Services for the Charges and on terms set out in the Whispir Product & Services Catalogue or a SOW (as applicable).
9.2. All Deliverables will be presented to Customer by Whispir for review and acceptance. Customer will have five (5) Business Days to test and Accept or reject the Deliverables (“Acceptance Test Period”) to ensure that the Deliverables are free from all Material Defects (“Acceptance Tests”). The Acceptance Test Period shall commence immediately upon delivery of each Deliverable to Customer.
9.3. During each Business Day of an Acceptance Test Period, Whispir will, upon reasonable request, provide Customer with assistance for its conduct of the Acceptance Tests. Customer will pay for reasonable travel and accommodation costs (that Customer has pre-approved) of Whispir's Personnel who are on Customer's premises in accordance with this Section 9.3.
9.4. During the Acceptance Test Period, Customer must give notice in writing to Whispir:
9.4.1. of any Material Defect, which must include a reasonably detailed written description of each Material Defect. Customer must provide any further information relating to any Material Defect that is reasonably requested by Whispir; or
9.4.2. that the Acceptance Tests are complete and the Deliverables are free from all Material Defects (“
Certificate of Acceptance
9.5. A Certificate of Acceptance for the Deliverable is deemed provided two (2) Business Days after the end of the Acceptance Test Period for any Deliverable that Customer has not either rejected in writing or provided a Certificate of Acceptance pursuant to Section 9.4.2 or, if earlier, the date on which Customer first uses the Deliverable outside of the test environment.
9.6. If Customer gives notice of a Material Defect to Whispir under Section 9.4.1, then Whispir shall use its best efforts to promptly correct the Material Defects and give notice to Customer stating when the Deliverable is ready for further Acceptance Tests.
9.7. When a rejected Deliverable is ready for Acceptance Tests, Whispir shall present to Customer for review and acceptance in accordance with the procedure set out in Sections 9.2 thru 9.6 above, and Customer shall repeat the procedure for Acceptance Testing in accordance with Sections 9.2 thru 9.7 again.
9.8. Upon request from Customer and as part of the Professional Services, Whispir may, in its sole discretion, conduct a discrete project to certify that the Whispir Services meet specific requirements as identified by Customer in writing.
10.1. Whispir will charge Customer the Charges set forth in the Whispir Product & Services Catalogue or the Application Form (if different from the Whispir Product & Services Catalogue) and in accordance with Section 10.4.
10.2. Customer will reimburse Whispir for its pre-approved and reasonably-documented travel and accommodation expenses necessary to perform the Whispir Services, including assistance with Customer’s conduct of the Acceptance Tests in accordance with Section 9.3 above.
10.3. The Charges in Whispir Product & Services Catalogue may be adjusted in accordance with Section 5.5.
10.4. Whispir will commence charging the Charges immediately upon delivery of Access Information to Customer.
11.1. Customer must pay the Charges for the Whispir Services in the Invoice no later than 30 days after the date of the Invoice.
11.2. An Invoice for all Charges for Whispir Services is sent monthly in advance except that:
11.2.1. Messaging charges are invoiced thirty (30) days in arrears.
11.2.2. Professional Services are invoiced fifty percent (50%) in advance (non-refundable deposit) and fifty percent (50%) on the earlier of:
126.96.36.199. the date that Customer issues the Certificate of Acceptance for all Deliverables presented to Customer by Whispir for review and acceptance pursuant to Section 9.2; and
188.8.131.52. six (6) months after the date that Customer agreed to procure these Professional Services (such as pursuant to a Statement of Work or Application Form), whether or not all Professional Services have been utilized by Customer.
11.2.3. Upon Customer's request, Whispir may submit for payment an Invoice to Customer for 12 months of Charges in advance or the Charges for the full Term of the Agreement in advance, as specified in the Application Form.
11.3. If Whispir identifies that Charges in an Invoice are incorrect, then Whispir will Invoice Customer the additional Charges and provide Customer sufficient evidence of these Charges.
11.4. Whispir’s business records are sufficient evidence of the amount payable unless Customer can demonstrate, with reasonably-detailed documentation, that the records are incorrect.
12. Late Payment
12.1. If Customer fails to pay any amount invoiced by the due date (except any amount that Customer disputes in good faith), then Whispir may charge Customer a late fee of five percent (5%) (or if this exceeds the maximum interest rate permitted by Law, the maximum percentage interest rate permitted by applicable Law) of the unpaid amount per month calculated daily from the due date until the date of payment in full as set out in Section 12.2.
12.2. The late-payment Charges set out in Section 12.1 may be charged in relation to each calendar month during which an account is overdue.
13.1. Unless otherwise expressly stated, all amounts stated to be payable in this Agreement are exclusive of goods and services taxes, value added tax or similar indirect taxes (GST).
13.2. If GST is imposed on any sale or supply made under or in accordance with this Agreement under any applicable law (Taxable Supply), the recipient of the Taxable Supply must pay to the supplier an additional amount equal to the GST payable in respect of the Taxable Supply. Payment of the additional amount must be made at the same time as payment for the Taxable Supply is required under this Agreement.
13.3. If this Agreement requires a party (first party) to pay for, reimburse or contribute to any expense, loss, indemnity or outgoing (Reimbursable Expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
13.3.1. the amount of the Reimbursable Expense less the GST related credits (if any) to which the other party is entitled in respect of the Reimbursable Expense; and
13.3.2. if the other party’s recovery from the first party constitutes a Taxable Supply, any GST payable in respect of that supply.
13.4. In this clause, words or expressions that have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or in the applicable GST law, shall have the same corresponding meanings, unless the context suggests otherwise.
13.5. Subject to this Section 13, Customer is responsible for payment of all Taxes that arise as a result of or in connection with the Agreement.
13.6. If Customer is required by Law to make any deduction or withholding on account of any Taxes or any form of withholding tax from payments due under this Agreement, the Customer must increase the payment due so that, after deducting or withholding such tax, Whispir receives an amount equal to the amount it would have received had no deduction or withholding been made.
14. Customer’s Obligations
14.1. Customer must:
14.1.1. not resell or make the Whispir Services (including the Software) or Deliverables available to any third party, other than a User, without Whispir’s prior written consent;
14.1.2. at its own expense, procure and maintain any hardware, software or facilities and maintain at its own expense all licenses, permissions and approvals necessary for Whispir to supply Whispir Services to Customer in compliance with all Laws, including any Customer Industry Regulations;
14.1.3. promptly identify and report to Whispir any issue with the Whispir Services;
14.1.4. provide all reasonable assistance and resources to Whispir or its representatives for the purpose of maintaining the Whispir Services and comply with any reasonable request issued by Whispir pertaining to the correction of any issue with the Service or the Whispir Services generally;
14.1.5. comply with the Acceptable Use Policy and all other policies and procedures provided in writing to Customer (including as published on Whispir.com) and updated by Whispir from time to time and regularly check, keep appraised of and comply with such written policies; and
14.1.6. not perform system load, stress tests, security scans or penetration testing against the Whispir Services without obtaining express written approval from and co-ordination with Whispir prior to each instance of such a test or scan being conducted.
15. Restrictions On Use Of The Service
15.1. Customer must ensure that Customer and Users do not use the Service to send, receive or transmit Messages that:
15.1.1. are for any illegal purpose or in a way contrary to any Laws (including privacy, spam, marketing and telecommunications laws) or Customer Industry Regulations, including those Laws and Customer Industry Regulations applicable in the Territory;
15.1.2. are defamatory, offensive, abusive, indecent, sexually explicit, menacing or harassing or cause damage or injury to any person or property;
15.1.3. infringe any third party rights, including any Intellectual Property rights or Moral Rights;
15.1.4. represent (by act or omission, unless accurate) that Whispir, its network suppliers or any other person created, endorses, has reviewed, or is in any way involved in the production of Customer Data;
15.1.5. are for the provision of emergency call services (e.g., 999, or 000);
15.1.6. contain a Marketing Message, unless the message conforms to the applicable Laws (including privacy, spam, marketing and telecommunications laws) for sending Marketing Messages, including those Laws applicable in the Territory and any Customer Industry Regulations;
15.1.7. affects the availability of the Service or causes interference to the normal operation of a telecommunications network or equipment;
15.1.8. result in the sending of a “virus”, “worm” or “trojan” or similar program;
15.1.9. impersonate another person or entity or are misleading or deceptive as to Customer’s (or the sender's) identity; or
15.1.10. tamper with, hinder the operation of or make unauthorized modifications to the Service or Software.
15.2. Customer must report problems with the Service to the Help Desk within twenty-four (24) hours of becoming aware of such problem. Customer must not attempt to rectify (or permit any other person to attempt to rectify) any such problem. If Customer or a third party interferes with the Service or Software with or without Whispir’s written approval, without limiting Whispir's other rights and remedies, Whispir will not be liable for any damage to or the costs and expenses of rectifying the Service. All such costs and expenses must be borne by Customer.
16. Software, License And Intellectual Property
16.1. Whispir grants Customer, in consideration of Customer's performance of its obligations under the Agreement, a non-exclusive, non-transferrable, non-sublicensable, revocable and limited license in the Territory for the Term:
16.1.1. to access and use the Service, and to permit the Users to do so solely in connection with Customer's business purposes, subject to compliance with the Agreement;
16.1.2. to use and have the benefit of Whispir Services and the Deliverables (other than Software) to the extent required for Customer to access and use the Service; and
16.1.3. to install and use the Software, to the extent required for Customer to access and use the Service. Whispir reserves all rights not expressly granted in this Section 16.1 and no rights are granted by implication.
16.2. Customer must not:
16.2.1. translate, copy, modify or create derivative works or improvements of the Whispir Services;
16.2.2. reverse engineer, decode, adapt, create derivative works of, decompile or disassemble any part of the Software or Whispir Services, or otherwise attempt to gain access to the source code of the Software (or the underlying ideas, algorithms, structure or organization of the object code in the Software) or Service in whole or in part (
) unless expressly required by Law. The foregoing restriction does also not apply to the extent Whispir is prohibited from restricting such use under relevant copyright laws. Customer shall notify Whispir prior to exercising any right at Laws to undertake such prohibited uses;
16.2.3. bypass or breach any security device or protection used by the Software or Service, access or use the Whispir Services other than by a User through the use of his or her own then valid Access Information to the extent permitted by the terms of the Agreement or use the Whispir Services for the benefit of any third party;
16.2.4. input, upload, transmit, or otherwise provide to or through the Service, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
16.2.5. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Whispir Services, or Whispir's provision of services to any third party, in whole or in part;
16.2.6. remove, delete, alter or obscure any trademarks, specifications, documentation, warranties, or disclaimers, or any copyright, trademark, patent or other Intellectual Property or proprietary rights notices from any Whispir Services, including any copy thereof;
16.2.7. access or use the Whispir Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Whispir customer), or that violates any applicable Laws or Customer Industry Regulations;
16.2.8. access or use the Whispir Services for purposes of competitive analysis of the Whispir Services, the development, provision or use of a competing software, service or product or any other purpose that is to Whispir's detriment or commercial disadvantage;
16.2.9. rent, lease, lend, sell, assign, distribute, publish, transfer, sub-license or make available Whispir Services to any person in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; or
16.2.10. otherwise access or use the Whispir Services beyond the scope of the authorization granted in the Agreement.
16.3. Unless otherwise agreed, Customer will be responsible for the installation of the Software.
16.4. All rights (including Intellectual Property rights) in the Deliverables, Whispir Services and Software are owned by Whispir and its licensors. Customer understands and agrees that nothing in the Agreement transfers or assigns any Intellectual Property rights in or relating to any part of the Deliverables, Whispir Services or Software to Customer, whether expressly, by implication, estoppel or otherwise. Customer hereby irrevocably assigns to Whispir all rights in and to Usage Data (if and to the extent applicable).
17. Customer Material
17.1. Customer is solely responsible for obtaining, maintaining and using any Customer Material used in connection with the Whispir Services and Software and ensuring that such Customer Material and any person’s use of that Customer Material with the Services and Software:
17.1.1. complies with Laws (including privacy, spam, marketing and telecommunications laws) and Customer Industry Regulations;
17.1.2. complies with the terms of any license under which the Customer Material is provided;
17.1.3. does not infringe the rights (including Intellectual Property rights and Moral Rights) of any third party; and
17.1.4. does not disrupt the proper functioning or delay the Whispir Services for Customer or any other person.
17.2. Customer will retain all Intellectual Property rights in the Customer Data and Customer Material. Customer grants to Whispir (or will ensure the grant of) a royalty-free, non-exclusive and worldwide right and licence (including the right to sublicense through multiple tiers) to use the Customer Data and Customer Material to perform its obligations, and exercise its rights, as set out in the Agreement and the Data Protection Addendum. Customer acknowledges and agrees that Whispir may use for any purpose Usage Data and other data that does not identify Customer and data that is not Personal Information.
18. Access Information
18.1. Customer is responsible for keeping all Access Information secure and protected from unauthorized use.
18.2. Unless otherwise notified in accordance with Section 18.3, Whispir is entitled to treat any access with the use of the Access Information as access authorized by Customer and Whispir is not required to verify that authority.
18.3. Customer must notify Whispir immediately if Customer becomes aware of any access to the Access Information by unauthorized persons or any unauthorized access to information intended for Customer.
19.1. Each party (receiving party) must:
19.1.1. keep the other party’s Confidential Information secret and confidential;
19.1.2. not access, use or reproduce the other party’s Confidential Information for any purpose other than to the extent required to perform the receiving party's obligations or exercise the receiving party's rights under the Agreement, nor assist or permit any other person to do so;
19.1.3. not disclose the other party’s Confidential Information except as permitted under the Agreement; and
19.1.4. take all steps reasonably necessary to safeguard the other party’s Confidential Information from unauthorized access, use or disclosure using the same degree of care that it uses to protect its own confidential information of a similar nature, but in no case will it exercise less than a reasonable degree of care.
19.2. A receiving party may only disclose the other party’s Confidential Information:
19.2.1. on a confidential basis to those of its Personnel who need to know the Confidential Information for the purposes of exercising the receiving party's rights or performing the receiving party's obligations under the Agreement. A party is liable for any unauthorized access, use or disclosure by its Personnel of the other party’s Confidential Information;
19.2.2. if disclosure is required by Laws or the rules of any stock exchange, provided that it first notifies the other party of the required disclosure (or if prior notice is not permitted by such Laws or rules, as soon as practicable after making the disclosure) and only discloses the minimum amount of information required to comply with the Laws or rule; or
19.2.3. with the prior written consent of the other party.
19.3. A receiving party who has received Confidential Information from the other party under the Agreement must, on the request of the other party, either (i) return to the other party within a reasonable time frame all copies of documents or other materials containing Confidential Information of the other party in its power, possession or control or (ii) destroy all copies of documents or other materials containing Confidential Information of the other party in its power, possession or control and certify in writing it has done so, and procure the same from any persons who have received Confidential Information from it. This Section 19 will not be breached by a party retaining a copy of Confidential Information to comply with a legal requirement to do so.
19.4. Each party acknowledges that monetary compensation may not be a sufficient remedy for any breach of the Agreement and that the other party may seek and obtain specific performance or injunctive relief as a remedy for any breach or threatened breach of the Agreement, in addition to any other remedies available under Laws.
19.5. The parties' obligations under this Section 19 survive after the expiration or any earlier termination of the Agreement.
20.1. Whispir complies with Applicable Data Protection Laws applicable to Whispir.
20.3. Whispir will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data as described in the Data Protection Addendum, including measures for preventing unauthorized access, use, modification and disclosure of Customer Data.
20.4. Whispir will only collect, hold, use, store, disclose and otherwise process Customer Data in accordance with the Data Protection Addendum and as otherwise required to perform its obligations under the Agreement.
20.5. Notwithstanding any other provision of the Agreement:
20.5.1. Customer represents and warrants that it will, prior to providing Customer Data to Whispir, obtain all necessary consents and approvals from, and make any notifications to, any individuals to whom the Customer Data relates as required by Laws (including privacy, spam, marketing and telecommunications laws) and Customer Industry Regulations:
184.108.40.206. for Customer to use the Service to send Messages to its customers the subject of the Customer Data, including any Marketing Messages it elects to send; and
220.127.116.11. to allow Whispir to collect, hold, use, store, disclose and otherwise process any Customer Data in the manner contemplated by the Agreement;
20.5.2. Customer must at all times comply with all Applicable Data Protection Laws in relation to Customer Data, its use of the Service and in relation to any Personal Information that Whispir provides or discloses to Customer;
20.5.3. Customer represents and warrants that the notifications, approvals and consents referred to in Section 20.5.1 will have been made and obtained in such a manner that Whispir is not required by Laws to itself directly notify, or obtain the consent of, the relevant individuals to whom the Personal Information relates in order for Whispir to provide the Whispir Services to Customer in accordance with the terms of the Agreement and the Data Protection Addendum; and
20.5.4. Customer must promptly notify Whispir if Customer no longer holds any necessary consents or approvals to use any individual's Personal Information contained in any Customer Data (including to send Messages to such individuals), and Customer must immediately cease to use the Service in respect of any such individual.
20.6. Whispir may, in accordance with and subject to Section 5.5, vary the Data Protection Addendum upon written notice to Customer including where necessary to comply with Applicable Data Protection Laws.
21.1. Each party warrants to the other that it is duly authorized to enter into and perform the Agreement.
21.2. Subject to Section 22, Whispir does not warrant that the Whispir Services and Deliverables will operate free from defects, bugs or errors. Customer is responsible to ensure that the Software is compatible with any hardware, software, accessory or services supplied to or on behalf of Customer by third parties.
21.3. Whispir warrants that the Professional Services will be performed in a competent and workmanlike manner in accordance with generally accepted industry standards and practices and all material requirements set forth in the SOW or Service Description. Customer will notify Whispir of any breach within 30 days after performance of the non-conforming Professional Services. On receipt of such notice, Whispir, at its option, will either use commercially-reasonable efforts to re-perform the Professional Services in conformance with these warranty requirements or will terminate the affected Professional Services and refund to Customer any amount paid for the nonconforming Professional Services. The foregoing is Customer's sole and exclusive remedy for Whispir's breach of this Professional Services warranty.
21.4. In addition to warranties set forth hereinabove, Customer warrants that:
21.4.1. it has obtained all necessary consents, licenses, permits and approvals to receive the Whispir Services;
21.4.2. it is not in breach of any undertaking, obligation or arrangement (whether written or otherwise) or in breach of Laws in entering into the Agreement; and
21.4.3. the use of Customer Material and Customer Data in connection with the Whispir Services, including the Service and Software, does not breach any obligation or arrangement (whether written or otherwise), any Laws (including privacy, spam, marketing and telecommunications laws) or Customer Industry Regulations.
21.5. To the maximum extent permitted by Laws, and subject to Section 22, Whispir:
21.5.1. makes no representation with regard to any third-party content offered or made available or accessible by the Service;
21.5.2. shall not be liable for Customer's reliance on or use of such third party content offered or made available or accessible using the Service; and
21.5.3. does not make any warranties in respect of services provided by third parties or Customer's reliance on third party services to access the Service. Customer must only access the Service by directly accessing Whispir's website or using applications created or authorized by Whispir.
22. Non-Excludable Terms
22.1. CUSTOMER MAY HAVE STATUTORY RIGHTS AND WARRANTIES UNDER APPLICABLE LAWS INCLUDING CONSUMER GUARANTEES UNDER THE AUSTRALIAN CONSUMER LAW, WHICH CANNOT LAWFULLY BE EXCLUDED. NOTHING IN THIS AGREEMENT HAS THE EFFECT OF EXCLUDING, RESTRICTING OR MODIFYING SUCH STATUTORY RIGHTS, WARRANTIES OR CONSUMER GUARANTEES.
22.2. All implied terms, conditions, guarantees and warranties that otherwise apply to or arise out of the Agreement are excluded other than:
22.2.1. those expressly set out in the terms of the Agreement; and
22.2.2. any term, condition, guarantee or warranty which cannot lawfully be excluded or modified by agreement including the consumer guarantees under the Competition and Consumer Act 2010 (Cth) (“Non-Excludable Terms”).
22.3. If a party is liable for a breach of a Non-Excludable Term, where it is permissible to limit liability for such Non-Excludable Term, that party's liability is limited (at its option, acting reasonably) to:
22.3.1. in relation to goods, replacing or repairing the goods, or paying the costs of replacing or repairing the goods; or
22.3.2. in relation to services, the re-supply of services or the payment of the cost of having the services resupplied.
23.1. Sections 23.1 and 23.2 set forth Whispir’s entire liability and Customer’s sole and exclusive remedy with respect to any infringement of any Intellectual Property rights of any third party. Whispir indemnifies Customer for any damages awarded or settlement agreed as a result of any claim against Customer by a third party that the Whispir Services or Deliverables infringe a third party's Intellectual Property rights, provided that:
23.1.1. Customer notifies Whispir promptly in writing of any such claim;
23.1.2. Whispir is given sole control of the defense and/or settlement of the claim; and
23.1.3. Customer fully co-operates and provides all reasonable assistance to Whispir in the defense or settlement.
23.2. Whispir shall have no obligations under Section 23.1 to the extent that a claim is based on:
23.2.1. the combination, operation or use of the Whispir Services or Deliverables with other data, products, software, processes, materials or services not provided or authorized by Whispir;
23.2.2. any unauthorized use of the Whispir Services or Deliverables, including use of the Whispir Services or Deliverables by Customer or a User in any manner inconsistent with the Agreement;
23.2.3. modification of the Whispir Services or Deliverables by a party other than Whispir; or
23.2.4. Customer Data or Customer Materials.
23.3. Customer indemnifies Whispir from and against any claims by third parties against Whispir, any of its Affiliates or any of their respective Personnel (those indemnified) from and against any loss, damage or expense suffered or incurred by those indemnified in connection with:
23.3.1. any breach by Customer of Section 14.1, 15.1, 16.1, 16.2, 17.1, or 21.4.3; or
23.3.2. any claim or allegation by a third party against any of those indemnified that:
18.104.22.168. the collection, use, disclosure or processing of any Customer Data, or the sending of any Messages, infringes a third party's rights (including privacy, Intellectual Property rights or Moral Rights), breaches Laws (including privacy, spam, marketing and telecommunications laws) or any Customer Industry Regulations; or
22.214.171.124. the use, disclosure or dissemination of any Customer Material infringes a third party's rights (including privacy and Intellectual Property rights), breaches Laws (including privacy, spam, marketing and telecommunications laws) or Customer Industry Regulations, provided that:
126.96.36.199.1. Whispir must notify Customer promptly in writing of any claim or allegation referred to in Section 23.3.2;
188.8.131.52.2. Customer is given sole control of the defense and/or settlement of any claim or allegation referred to in Section 23.3.2; and
184.108.40.206.3. Whispir fully co-operates and provides all reasonable assistance to Customer in the defense or settlement of such claim or allegation.
24.1. Whispir will not be liable to Customer for any delay or failure to perform Whispir's obligations under the Agreement if the delay or failure is due to Force Majeure, Customer or Customer's Personnel. Whispir will endeavor to notify Customer as soon as reasonably practicable of a failure or delay caused by a Force Majeure.
24.2. To the full extent permitted by Laws;
24.2.1. a party will not be liable to the other party in respect of any claim arising under or in connection with the Agreement in contract, tort (including negligence), statute or otherwise for any loss of profit, data, goodwill or business, for any interruption to business, for any failure to realize anticipated savings or for any consequential, indirect, exemplary, special, punitive or incidental damages, and regardless of whether such losses are foreseeable or whether either party has been advised of the possibility of such losses;
24.2.2. Whispir's total aggregate liability to Customer for any loss or damage of any kind suffered or incurred by Customer whether arising in contract, tort (including negligence), under statute or otherwise arising under or in connection with the Agreement is limited to an amount equal to the Charges paid by Customer under the Agreement for the 3-month period immediately preceding the event to which the liability relates; and
24.2.3. Whispir has no liability to Customer arising in relation to the introduction or distribution, by reply or otherwise, of any Message by a third party that is distributed via the Service.
24.3. The limitations and exclusions of liability in the Agreement do not apply to limit or exclude a party's liability:
24.3.1. arising from such party’s gross negligence or willful misconduct;
24.3.2. for the payment of Charges due and payable by Customer under the Agreement;
24.3.3. for death or personal injury of any person that is caused by that party (or its employees or contractors) when on the other party's premises;
24.3.4. for loss of, or damage to, any property that is caused by that party (or its employees or contractors) when on the other party's premises;
24.3.5. for fraud or repudiation;
24.3.6. for infringement of the other party's Intellectual Property rights;
24.3.7. under an indemnity given by that party under the Agreement; or
24.3.8. for liability that cannot be excluded or limited under Laws.
25. Termination And Suspension
25.1. Either party may terminate the Agreement without cause at any time by notifying the other party upon 30 days’ prior written notice. If Customer wishes to terminate pursuant to this Section, it must send a written notice requesting termination to firstname.lastname@example.org. Upon receipt of the Customer's termination request, the Customer will receive an automated email response from Whispir to confirm receipt of cancellation and the commencement of the 30-day notice period and that the Customer acknowledges that the termination charges will be calculated and charged in the final invoice (in accordance with Section 25.2). Whispir will only acknowledge and action termination requests emailed to email@example.com. Failure to adhere to this process will result in the Agreement continuing for the agreed Term. In the event the Customer does not receive a confirmation of their termination request from Whispir, they are advised to contact their account manager directly.
25.2. In the event of termination of the Agreement by Customer, except where such termination is by Customer in accordance with Section 5.5, 7.2 or 25.4, an early termination Charge is due and payable to Whispir by Customer. The early termination Charge is equal to eighty percent (80%) of the average monthly Charges (including Charges for access to the Service, monthly support Charges and Message Plan Charges or part thereof) paid by Customer as at the date of termination multiplied by the number of months (or part thereof) remaining in the Term had the Agreement not been earlier terminated. Whispir will Invoice Customer the early termination Charges within 30 days after the termination date as notified by Customer to Whispir in writing.
25.3. Without limiting Whispir's other rights and remedies in relation to the Agreement, Whispir may suspend the Service immediately and/or terminate the Agreement on written notice to Customer:
25.3.1. if Customer fails to pay Customer’s account on time;
25.3.2. if Customer fails to rectify a breach of the Agreement within 14 days of a written notice to do so from Whispir, or Customer breaches a material term of the Agreement that is not capable of remedy;
25.3.3. if Customer suffers an Insolvency Event;
25.3.4. if Whispir can no longer provide the Service;
25.3.5. in the event Customer breaches Sections 14.1.1, 15 or 19;
25.3.6. in the event that a Change Event occurs and suspension is necessary to ensure compliance with any notice, direction, declaration, order, directive, judgment, code or standard the subject of the Change Event; or
25.3.7. if an emergency (as determined by Whispir in good faith) makes termination reasonably necessary or reasonable in order to safeguard provision of the Service to emergency or other essential services.
25.4. Customer may terminate the Agreement on written notice to Whispir:
25.4.1. if Whispir fails to rectify a breach of the Agreement within 15 Business Days of a written notice to do so from Customer, or Whispir breaches a material term of the Agreement that is not capable of remedy; or
25.4.2. if Whispir suffers an Insolvency Event.
25.5. If the Agreement expires or is terminated for any reason:
25.5.1. Customer and its Users will no longer be able to, and must not, access or use the Service;
25.5.2. where applicable, Customer will forfeit any Messages included in the Service that were not used as at the date of termination, as well as any unused credits; and
25.5.3. Customer will be immediately liable for any Charges accrued and unpaid.
25.6. Termination or expiration of the Agreement does not affect any party's rights or obligations under any terms that expressly or due to their nature should survive termination or expiration of the Agreement.
25.7. The termination of the Agreement for any reason will not prejudice any rights which have accrued to either party prior to the date of termination.
25.8. In the event of the termination or expiration of the Agreement, Whispir agrees to provide Customer any assistance reasonably required to assist with the transition of information back to Customer or to a third party at Whispir’s standard time and material rates. Prior to termination or expiry, it is the Customer's responsibility to ensure it has downloaded or exported such Customer Data and Customer Material through reports available in the Whispir platform prior to the termination / expiry date.
26.1. Customer must not assign or novate any of Customer’s rights or obligations under the Agreement without prior written consent by Whispir. Customer consents to Whispir, on 30 days prior written notice, assigning or novating any or all of its rights and obligations under the Agreement.
26.2. Waiver of a breach of the Agreement, or of any rights created by or arising upon default under the Agreement, can only be made in writing and must be signed by the party granting the waiver. A breach of the Agreement is not waived by a failure to exercise, a delay in exercising, or a partial exercise of, any remedy available under the Agreement or by Law.
26.3. The Agreement constitutes the entire agreement between Customer and Whispir in respect of its subject matter and supersedes any prior agreement, written or otherwise, between the parties. If Customer submits a separate set of terms and conditions other than those incorporated in the Agreement, those terms and conditions will not form part of, or be incorporated into, the Agreement and are not legally binding on Whispir, unless executed by a duly authorized representative of Whispir.
26.4. Despite any other provision of the Agreement, a party will not be in breach of the Agreement if performance is prevented or delayed by any Force Majeure except in respect of the payment of money.
26.5. Except where prohibited or restricted by Law, Whispir may subcontract any of its obligations under the Agreement to a third party without notice to Customer and without Customer’s consent. Whispir remains responsible to Customer for the performance of any sub-contracted obligations in accordance with the Agreement.
26.6. During the Term, either party may publicly refer to the other, orally and or in writing, as a customer or vendor (as applicable) of the other and may publish the other’s name and/or logo on its website or promotional materials unless the other party has provided prior notice that it should not be referenced in such use or publication.
26.7. The Agreement is governed by and construed in accordance with the Laws of the Governing Location. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the Governing Location and courts of appeal from them for determining any dispute concerning the Agreement or the transactions contemplated by the Agreement. Each party waives any right it has to object to an action being brought in those courts including claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.
26.8. All notices, consents, requests and other communications required or permitted to be given under the Agreement must be:
26.8.1. in writing addressed to the nominated Whispir contact if sent by Customer or to the nominated Customer contact if sent by Whispir; and
26.8.2. where such notice is delivered by hand, dispatched by courier or dispatched by facsimile transmission, facsimile, or other electronic means, such notice shall be deemed to have been received on the day of dispatch if sent with confirmed email delivery and if dispatched by mail shall be deemed to have been received at the expiry of two (2) Business Days from such dispatch.
26.9. The Agreement may be executed in any number of counterparts and by the parties on separate counterparts. Each counterpart constitutes an original of the Agreement, all of which together constitute one Agreement.
26.10. Except as otherwise provided in Section 5, no variation of the Agreement is effective unless made in writing and signed by each party.
26.11. Each party agrees that electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record or, if different, as defined in Laws of the Governing Location.
27.1. A Customer Affiliate may only use Whispir Services and Deliverables to the extent expressly authorized in the Agreement and subject to Section 27.2.
27.2.1. must ensure that any Customer Affiliate that uses or has the benefit of any of the Whispir Services or Deliverables observe all of the terms of the Agreement;
27.2.2. is liable for the use of the Whispir Services and Deliverables by all Customer Affiliates (including for all associated Charges), whether or not authorized by Customer;
27.2.3. is liable to Whispir under this Agreement for any act, default or omission of a Customer Affiliate (
Customer Affiliate Default
), as if it were an act, default or omission of Customer under this Agreement;
27.2.4. agrees to indemnify Whispir and its Affiliates from and against any loss, damage, expense, liability or claim they may suffer or incur in connection with a Customer Affiliate Default but only to the extent Customer would have been liable for it under the Agreement had Customer conducted the Customer Affiliate Default; and
27.2.5. must ensure that any Customer Affiliate that may have a claim against Whispir in connection with this Agreement, whether based in contract, tort (including negligence) or otherwise, is brought against Whispir by Customer. Any loss incurred by a Customer Affiliate in connection with this Agreement, whether based in contract, tort (including negligence) or otherwise, will be deemed to be loss incurred by Customer. If, notwithstanding the foregoing, a Customer Affiliate brings a claim directly against Whispir or its Affiliates in connection with the Agreement including in negligence (
Customer Affiliate Claim
), Customer must indemnify Whispir and its Affiliates for any loss, damage, liability or expense it suffers or incurs in connection with the Customer Affiliate Claim.
28.1. Unless the contrary intention appears, in the Agreement:
28.1.1. Headings and sub-headings are inserted for ease of reference only and do not affect the interpretation of the Agreement;
28.1.2. the words “such as”, “including”, and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
28.1.3. no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of the Agreement or any part of it;
28.2. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
Schedule 2 - Data Protection Addendum as of the Effective Date
Data Protection Addendum
This Data Protection Addendum (“Addendum”) forms part of the Terms of Service (available at www.whispir.com/terms-of-service ("Terms") and all written or electronic agreements (collectively, the “Agreement”) by and between the customer specified in an Application Form (as defined in the Terms) or other document in which the Terms are referenced or attached (“Customer”) and the entity defined as "Whispir" in the Terms ("Whispir Contracting Party"). References in the remainder of this Addendum to "Whispir" means the Whispir Contracting Party, Whispir Ltd and its Affiliates. Whispir Contracting Party enters into this Addendum in its own capacity and for and on behalf of the other Whispir entities.
1. Defined Terms
In this Addendum, the following terms have the following meanings:
a. “Authorized User” means a Data Subject who accesses and/or uses the Whispir Services pursuant to the Agreement, including Customer’s customers.
b. “Applicable Data Protection Laws” means applicable laws relating to privacy protection in all jurisdictions where the Agreement is performed (including where applicable GDPR and CCPA), each as amended from time to time.
c. “CCPA” means the California Consumer Privacy Act of 2018 (Cal. Civ. Code §§ 1798.100 – 1798.199) and its implementing regulations (as and when finalized).
d. “Controller” means the person or entity who or that determines the purpose and means of Processing of Personal Information, including a “business” as defined in CCPA.
e. “Data Subject” means a natural person to whom Personal Information relates, including a “consumer” as defined in CCPA.
f. “GDPR” means the General Data Protection Regulation (EU 2016/679) and its implementing laws.
g. “Personal Information Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration or unauthorized disclosure of or access to Personal Information that requires notification to third parties pursuant to Applicable Data Protection Laws.
h. “Personal Information” has the meaning given under Applicable Data Protection Laws and that is Customer Data (as defined in the Agreement) or identifies Authorized Users.
i. “Process” and “Processing” (and their variants) means any operation or set of operations performed on Personal Information.
j. “Processor” means the person or entity who or that Processes Personal Information on behalf of the Controller, including a “service provider” as defined in CCPA.
k. “Purpose" means Processing of Personal Information of Authorized Users to: (i) identify Authorized Users to enable their use of the Whispir Services; (ii), track and record support provided to or for Authorized Users; (iii) communicate with Authorized Users regarding the Whispir Services and related services; (iv) detect and prevent fraudulent or unauthorized use of the Whispir Services; (v) analyze and use data generated and derived from or about the operation and use of the Whispir Services for Whispir’s technological development, marketing, improvement and other legitimate and lawful operational purposes; and (vi) report and account for use of the Whispir Services as required by law applicable to Whispir.
l. “Whispir Services” has the meaning given in the Agreement.
Any other capitalized term used but not defined in this Addendum has the meaning given in the Agreement.
2. Data Processing Obligations
a. Except as set forth in Section 2b, Customer as Controller appoints Whispir as Processor to Process Personal Information on behalf of Customer for the purposes set forth in the Agreement and as otherwise instructed by Customer in writing or as required to comply with applicable law. Whispir shall have no liability for any claim arising from or related to Whispir’s Processing of Personal Information under this Addendum pursuant to Customer’s instructions.
b. Whispir shall Process Personal Information for the Purpose as a separate and independent Controller. In no event will Customer and Whispir Process Personal Information as Joint Controllers (as such term is defined in GDPR). Each of Customer and Whispir is individually and separately responsible for complying with the obligations that apply to it as a Controller under Applicable Data Protection Laws.
c. Customer will only provide Personal Information to Whispir to Process as necessary to perform the Agreement. With respect to all Personal Information provided by or on behalf of Customer to Whispir for Processing in connection with the Agreement, Customer hereby represents to Whispir that the Personal Information was collected by Customer and is transmitted to Whispir in accordance with Applicable Data Protection Laws and that Customer has obtained all necessary consents from each Data Subject required under Applicable Data Protection Laws to enable Whispir to Process the Personal Information pursuant to the Agreement and to exercise its rights and fulfil its obligations under this Agreement.
3. Whispir as Processor
When Whispir is acting as a Processor pursuant to Section 2a, the following terms shall apply:
a. Unless restricted by applicable law, Whispir shall inform Customer if, in Whispir’s reasonable judgment, Processing of Personal Information pursuant to the Agreement or Customer’s instruction conflicts or is inconsistent with Applicable Data Protection Laws or Whispir’s other legal obligations.
b. Whispir shall ensure that all employees and agents (including sub-Processors) who or that are authorized by Whispir to Process Personal Information are subject to contractual, statutory or common law obligations of confidentiality.
c. Whispir shall provide Customer with reasonable assistance with data protection impact assessments and prior consultations with a supervisory authority that Customer is required to carry out under Applicable Data Protection Laws.
d. Whispir shall implement reasonable and appropriate administrative, physical and technical safeguards in relation to the Processing of Personal Information that are intended to ensure a level of security appropriate to the Personal Information Processing pursuant to the Agreement, including as applicable the ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and a procedure for regularly testing, assessing and evaluating the effectiveness of its administrative, physical and technical safeguards including as set forth in Appendix 1.
e. Without undue delay and within no more than forty eight (48) hours after Whispir has a reasonable degree of certainty about the occurrence of a Personal Information Breach affecting Personal Information Processed by Whispir pursuant to this Addendum, Whispir shall notify Customer of the Personal Information Breach via email to the email address provided to Whispir in the Application Form or otherwise in writing (“Customer Notification Email”), provide such information as Customer may reasonably require to meet its obligations under Applicable Data Protection Laws with respect to the Personal Information Breach and take all necessary steps to remediate the Personal Information Breach.
f. Whispir shall timely notify Customer via the Customer Notification Email if Whispir receives a valid and verifiable request from an Authorized User relating to the Processing of his or her Personal Information by Whispir pursuant to the Agreement. Whispir shall provide Customer with reasonable assistance in responding to the request.
g. If Customer is subject to an information inspection or investigation request from a competent government regulator, Whispir shall, when required, assist Customer to respond to the requests (if and to the extent Whispir has the requested information and Customer does not) for the purpose of evidencing its compliance with this Addendum, provided that, unless otherwise required by applicable law:
i. Customer shall ensure that all information obtained or generated in connection with any such request is treated as Whispir’s Confidential Information;
ii. If any request relates to systems provided by or on the premises of Whispir’s sub-Processors, the scope of such request shall be as permitted under the relevant agreement between Whispir and the sub-Processor;
iii. Customer shall pay Whispir’s reasonable costs for Whispir’s assistance with a request unless such costs directly relate to Whispir’s breach of its obligations under this Addendum;
iv. Customer shall use best efforts to ensure that no request shall oblige Whispir to provide or permit access to information concerning Whispir’s internal pricing information or relating to other recipients of Whispir Services and to minimize disruption to Whispir’s business.
h. Customer may conduct one audit per twelve (12) months period during the term of the Agreement unless Customer has a good-faith belief that Whispir is not in compliance with Applicable Data Protection Laws and Customer identifies in writing the basis for its good-faith belief. Customer shall give Whispir no less than 30 thirty days’ prior notice of any such audit and shall cooperate with Whispir to identify the scope and plan for such audit, including steps to minimize disruption to Whispir’s business. Customer shall pay Whispir’s reasonable costs for Whispir’s assistance with the audit unless the audit relevels that Whispir has failed to materially comply with Applicable Data Protection Law.
i. Upon expiration or any earlier termination of the Agreement, Whispir shall, as set forth in the Agreement or upon Customer’s written request, delete or return to Customer all Personal Information in Whispir’s possession; provided, however, that Whispir may retain Personal Information as permitted or required to meet its obligations under applicable law. Deletion for the purposes of this sub-section (i) shall include putting Personal Information beyond further use, such as anonymizing Personal Information together with technical safeguards designed to prevent re-identification of a Data Subject.
j. Customer hereby provides its general authorization to Whispir to appoint sub-Processors to perform the Agreement. Upon Customer’s request, Whispir shall provide a list of Whispir’s then-current sub-Processors.
i. Whispir shall ensure that its sub-Processors are contractually obligated to protect Personal Information in compliance with Applicable Data Protection Laws and consistent with the obligations imposed on Whispir in this Addendum. Whispir shall remain responsible for the acts and omissions of each sub-Processor, subject in each case to the terms of the Agreement.
ii. Whispir shall notify Customer of any addition or replacement of sub-Processors. Customer agrees that Whispir may provide notification of any such addition or replacement of sub-Processors via the Customer Notification Email. Customer must object to any additional or replacement sub-Processor in writing within ten (10) business days after the date of the notification. If Customer and Whispir cannot mutually agree to a reasonable resolution to Customer’s objection, either party may terminate the Agreement upon written notice to the other party.
k. Whispir certifies that it i) will not sell (as such term is defined in CCPA) Personal Information Processed by Whispir to perform the Agreement or take any action that causes or will cause Customer to be deemed as selling Personal Information Processed by Whispir to perform the Agreement unless and until Whispir provides advance written notice to Customer and Authorized Users; and ii) understands the restrictions set forth in Section 1798.140(w)(2)(A) of CCPA and will comply with them.
l. Customer understands and agrees that Whispir is not liable for Customer’s failure to timely receive any duly-transmitted email sent to the Customer Notification Email pursuant to Sections 3e, 3f and 3j that was not received by Customer due to Customer’s failure to monitor or maintain as active the Customer Notification Email or technical issues outside of Whispir’s reasonable control.
4. International Transfers
If Whispir transfers Personal Information from the European Economic Area (EEA), United Kingdom or Switzerland to a jurisdiction outside of the EEA, United Kingdom or Switzerland, then either (i) the Standard Contractual Clauses (Commission Decision C(2010)593 Standard Contractual Clauses (processors) or Commission Decision 2004/915/EC on 27 December 2004, as applicable to Whispir’s role) and any successor clauses thereto will be incorporated into this Addendum and shall apply or (ii) Whispir shall adopt another legally-sufficient transfer mechanism, including an approved code of conduct or certification mechanism, in lieu of the Standard Contractual Clauses to protect such transfers of Personal Information. If Whispir transfers Personal Information from a jurisdiction other than the European Economic Area (EEA), United Kingdom or Switzerland (exporting jurisdiction) to another jurisdiction, Whispir will make such transfers in accordance with Applicable Data Protection Laws in the relevant exporting jurisdiction.
Except as amended by this Addendum, the Agreement shall remain in full force and effect. Any claim arising from or related to this Addendum is subject to the exclusions and limitations in the Agreement. If the Agreement and this Addendum conflict, then this Addendum shall control with respect to the Processing of Personal Information. If any provision of this Addendum is deemed invalid or unenforceable by a court of competent jurisdiction, then the remainder of this Addendum shall remain valid and in force and the invalid or unenforceable provision shall be either amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or otherwise construed in a manner as if the invalid or unenforceable part had never been contained therein. This Addendum shall expire on the date on which Whispir no longer Processes Personal Information on behalf of Customer as a Processor (pursuant to Sections 2.a and 3), other than Processing needed to fulfil Whispir’s record retention and other legal obligations. Upon expiration or any earlier termination of the Agreement, Whispir, acting as a Controller pursuant to Section 2.b, may continue to Process Personal Information provided that such Processing complies with the requirements of this Addendum and Applicable Data Protection Law.
Technical And Organizational Measures
1. Encryption Data (including Personal Information) is encrypted at rest and in transit. Data at rest is encrypted using Advanced Encryption Standards (AES) using 256-bit keys. Data in transit is encrypted using TLS 1.2 for network traffic between Whispir’s systems and Customer systems.
2. Ongoing confidentiality, integrity, availability and resilience of Processing systems Whispir operates under an ISO 27001 certified Information Security Management System that governs the integrity and availability of Whispir’s Processing systems and services, including access controls and patch and vulnerability management. A copy of Whispir’s ISO 27001 certification is available upon request.
3. Restoring the availability and access to Personal Information following a security incident; Whispir’s policies govern the operation and regular testing of its business continuity management and planning, including Recovery Point Objectives (RPO) and Recovery Time Objectives (RTO).
4. Processes for regularly testing the effectiveness of technical and organisational measures for ensuring the security of Processing systems. Whispir conducts regular automated vulnerability testing of its Processing systems and third-party penetration testing is conducted twice annually.