The Wishlist Company Terms of Service

(Version 1.11) 

1. Agreement. The Wishlist Company Pty Ltd (“The Wishlist Company”, “us”, “our” or “we”) is a company with a principal place of business at Suite 305, 30 Kingsway Cronulla NSW Australia 2230. These Terms of Service, together with any Subscription Order, our Acceptable Use Policy and Privacy Policy (together, “Terms of Service”) govern all use of our Cloud Service, any third-party integration and any Professional services we offer (together, “Services”). BY SUBSCRIBING TO OUR CLOUD SERVICE, SIGNING A SUBSCRIPTION ORDER OR STATEMENT OF WORK, OR ACCESSING OR USING ANY OF OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MUST NOT USE OUR SERVICES. IF YOU ARE USING OUR WEBSITE, YOU AGREE TO BE BOUND BY OUR PRIVACY POLICY.

2. Agreement modification. We may amend these Terms of Service by giving you at least 30 days prior written notice. Notice includes an email to you, or providing a notice of the new version when you access our Cloud Service. If such change is detrimental to you, we will provide you with not less than 30 days prior notice of the amendment. If you do not wish to be bound by any amendment, you must cease using the Cloud Service. We will make the most recent version of our Terms of Service available on our website, along with prior versions. Please regularly check our website to review our most up-to-date version.

3. Cloud Service. Should you, or the company you work for (“Client”), elect to subscribe to the Cloud Service, then you may use the Cloud Service for your own business purposes or for the business purposes of the Client, subject to this Agreement, during each Subscription Term (“Permitted Use”). This includes the right to copy and use any software that we might provide to you, and the Documentation, as part of your Permitted Use. You will comply with the Documentation in using the Cloud Service.

4. Authorized Users. A Client may permit Authorized Users to use the Cloud Service on its behalf. The Client is responsible for provisioning and managing the accounts of its Authorized Users, for their actions through the Cloud Service and for their compliance with this Agreement. Client will ensure that Authorized Users keep their login credentials confidential and will promptly notify us upon learning of any compromise of User accounts or credentials.

5. Affiliates. Unless otherwise specified in a Subscription Order, the use of Services is limited to a single website that is specified in the Subscription Order. Affiliates must subscribe through their own Subscription Order if they wish to utilise the Cloud Services with another website. Client’s Affiliates may serve as Authorized Users under this Agreement.

6. Our Usage

6.1. Use of Client Data. Subject to this Agreement, we will access and use Client Data solely to provide and maintain the Cloud Service, Support and Professional Services under this Agreement. This includes sharing Client Data as you direct through the Cloud Service, but we will not otherwise disclose Client Data to third parties except as permitted in this Agreement.

6.2. Data Security. We will use appropriate technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Client Data.

6.3. Usage Data. We may collect Usage Data and use it to operate, improve and support the Cloud Service and for other lawful business purposes, including benchmarking and reports. However, we will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify you, your Authorized Users, your customers or any other person and (b) aggregated with data across other clients.

7. Your Usage

7.1. Compliance. You represent and warrant that you have all rights necessary to use Client Data with the Cloud Service and grant us the rights to Client Data specified in this Agreement, including personally identifiable information. You are responsible for the content and accuracy of Client Data.

7.2. Setup Responsibilities. You are responsible for setting up and configuring our Cloud Service, and for obtaining at your expense all the necessary computer hardware, software and internet connectivity required to access the Cloud Service through the internet. We may assist you or advise you regarding installation, configuration or support, and in such cases our assistance or advice cannot be construed as legal advice.

7.3. Acceptable Use. You represent and warrant that you will abide by our Acceptable Use Policy.

7.4. Email Consent. You warrant that your use of email, SMS and MMS notifications shall always comply with all the following:

(a) all requirements and restrictions generally applicable to the Cloud Service under these Terms of Service.
(b) be sent only to your active existing customers and shall be sent solely for the purpose of information and alerts.
(c) all requirements and restrictions of applicable law including email consent, privacy and content requirements and restrictions under the New Zealand Unsolicited Electronic Messages Act 2007, the New Zealand Privacy Act 2020, United States CAN-SPAM Act of 2003, the Canadian Anti-Spam Legislation, the Australian Privacy Act 1988 (Cth), the Australian Spam Act 2003 (Cth), the United Kingdom (UK) Privacy and Electronic Communications (EC Directive) Regulations 2003, UK Data Protection Act 2018, General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, (“EU GDPR”) and EU GDPR as transposed into UK national law by operation of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019, as may be applicable. To the extent you submit Client Data which constitutes “personal data” of individuals subject to the privacy laws of the European Economic Area or Switzerland (collectively “EU Personal Data”), you acknowledge that in all cases we act as the processor of EU Personal Data, and you remain the controller of EU Personal Data.
7.5. Using our APIs. You will only access (or attempt to access) our APIs by the means described in our API documentation. We may set and enforce limits on your use of our APIs (e.g., limiting the number of API requests that you may make) in our sole discretion. You agree not to circumvent any limitations documented with our APIs. Our APIs may evolve and change over time, and while we do our best to notify developers of major changes in advance, we reserve the right to modify our APIs, cease to offer support for our APIs, or require you to use our APIs in a different manner at any time without notice.

7.6. Removal of Client Data. You must promptly remove any Client Data or content that breaches this section 7 or any other provision of these Terms of Service on notice from us or a governmental agency. We are entitled to suspend access to, disable or remove, any content, that we, acting reasonably consider is in breach of or is likely to be in breach of this clause or these Terms of Service or where we receive a notice from a third party claiming such. We will notify you of such action, prior to or as soon as reasonably practicable after we have taken such action.

8. Mutual Compliance with Laws. Each party will comply with all Laws including data protection laws that apply to its performance under this Agreement.

9. Support. We will provide Support for the Cloud Service consistent with industry-standards and our general business practices.

10. Maintenance Windows. From time to time, we and/or a third-party service provider may update or perform maintenance on the underlying Cloud Service. We will use commercially reasonable efforts to provide notice to you in advance of all outages due to such planned maintenance.

11. Third-Party Platforms. You may choose to enable integrations or exchange Client Data with Third-Party Platforms. Your use of a Third-Party Platform is governed by your agreement with the relevant provider, not this Agreement, and we are not responsible for Third-Party Platforms or how their providers use Client Data.

12. Professional Services. We will perform Professional Services as described in a Subscription Order or Statement of Work, which may identify additional terms or milestones for Professional Services. You will give us timely access to Client Materials reasonably needed to deliver Professional Services, and we will use the Client Materials only for purposes of providing the Professional Services. Subject to any limits in a Subscription Order or Statement of Work, and with prior agreement, you will reimburse us for reasonable travel and lodging expenses incurred in providing Professional Services. You may use code or other deliverables that we furnish as part of Professional Services only in connection with your authorized use of the Cloud Service under this Agreement.

13. Fees.

13.1. Fees and Payment. We will charge you fees in advance, as specified in a Subscription Order. Payment of fees must be using a valid credit card unless otherwise specified on a Subscription Order. By approving a Subscription Order with an agreed credit card method of payment, you authorize us to charge your credit card monthly, in advance, for the fees specified in the Subscription Order. If we are unable to effect automatic payment via your credit card, you will be notified by email and access to the Cloud Service will be disabled until payment is received. If you are not paying by credit card, payment terms are 14 days from date of invoice unless otherwise stated in the Subscription Order. Late payments are subject to a charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees and expenses are non-refundable except as expressly set out in this Agreement. The Cloud Service purchased cannot be decreased during the Subscription Term.

13.2. Pricing changes. We may change our pricing at any time and will provide advance notification to existing Clients by email. Pricing changes will come into effect at the end of your then current Subscription Term. You have the right to terminate your Subscription Order within 14 days of receiving such notice, and your failure to terminate on within this period constitutes your acceptance of the new pricing terms. We also reserve the right to offer new functionality and services for a separate fee.

  Fees are payable in US Dollars unless otherwise specified in a Subscription Order.

13.4. Taxes. All Fees quoted and payable under the Agreement exclude taxes unless otherwise stated. Subscriber will be responsible for, and shall reimburse us for, any applicable sales, service and other taxes (excluding taxes on our income) levied upon the provision of Services under this Agreement.

13.5. Payment Disputes. If you dispute an invoice in good faith, you will notify us within the payment period and we will seek to resolve the dispute over a 15-day discussion period. You are not required to pay disputed amounts during the discussion period but will timely pay all undisputed amounts. After the discussion period, either party may pursue any available remedies.

14. Suspension. We may suspend your access to the Cloud Service and related services if a) your account is 30 days or more overdue, (b) you breach section 7 (Your Usage). We will give you reasonable prior notice of Suspension so that you may seek to resolve the issue and avoid suspension, but we are not required to give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Law. We will promptly restore your access to the Cloud Service in accordance with this Agreement once the Suspension event is resolved.

15. Term and Termination.

15.1. Subscription Term. Each Subscription Term commences upon the date on which we receive a monthly subscription fee, or as otherwise specified in a Subscription Order. The Subscription Term shall automatically renew for successive periods unless (a) the parties agree on a different renewal Subscription Order or (b) this Agreement is terminated as set forth in this section 15. The Subscription Order may specify fees for optional products or modules, in which case the Subscription Term and Payment Terms are deemed to be the same unless otherwise specified.

15.2. Termination. Either party may terminate this Agreement with at least 14 days notice prior to the end of the Subscription Term. In the event of such termination, fees due for the full Subscription Term remain payable. A party may also terminate this Agreement if the other party (a) fails to cure a material breach of this Agreement within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

15.3. Data Export & Deletion. During a Subscription Term, you may export Client Data from the Cloud Service (or we will otherwise make the Client Data available to you) as described in the Documentation. After termination or expiration of this Agreement, within 60 days of request, we will delete Client Data and each party will delete any Confidential Information of the other in its possession or control, except that a recipient may retain Client Data or Confidential Information in accordance with its standard backup or record retention policies or as required by Law, subject to section 6.2 (Data Security) and section 21 (Confidentiality).

15.4. Effect of Termination. Your right to use the Cloud Service, Support and Professional Services will cease upon any termination or expiration of this Agreement, subject to this section 15. The following sections will survive expiration or termination: 6.3 (Usage Data), 7 (Your Usage), 13.1 (Fees and Payment) for amounts due, 13.4 (Taxes), 15.3 (Data Export & Deletion), 15.4 (Effect of Termination), 16 (Intellectual Property), 18 (Disclaimers), 19 (Limitations of Liability), 20 (Indemnification), 21 (Confidentiality), 24 (Miscellaneous and 25 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

16. Intellectual Property.

16.1. Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for our express rights in this Agreement, as between the parties, you retain all intellectual property and other rights in Client Data and Client Materials provided to us. Except for your express rights in this Agreement, as between the parties, we and our licensors retain all intellectual property and other rights in the Cloud Service, Professional Services deliverables and related technology and Services.

16.2. Feedback. If you give us feedback regarding improvement or operation of the Cloud Service, Support or Professional Services, we may use the feedback without restriction or obligation. We will not publicly identify Client as the source of feedback without your permission.

17. Warranties.

17.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that it will use industry-standard measures to avoid introducing viruses, malicious code or similar harmful materials into the Cloud Service.

17.2. Performance Warranty. We warrant that the Cloud Service will perform materially as described in the Documentation during a Subscription Term (the “Performance Warranty”). You acknowledge that we may change, suspend or terminate features or functionality at any time, and that we are under no obligation to update the Cloud Service to ensure compatibility or continuity between any release of the Cloud Service and any prior or subsequent version. If we make a material change to the Cloud Service, you may terminate a Subscription Order with written notice within 14 days of the date of such material change.

17.3. Professional Services Warranty. We warrant that any Professional Services will be provided in a professional and workmanlike manner (the “Professional Services Warranty”).

17.4. Warranty Remedy. We will use reasonable efforts to correct a verified breach of the Performance Warranty, or the Professional Services Warranty reported by you. If we fail to do so within 30 days after your warranty report, then either party may terminate the Subscription Order related to the non-conforming Cloud Service or Professional Services, in which case we will refund to you any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). To receive these remedies, you must report a breach of warranty in reasonable detail within 14 days after discovering the issue in the Cloud Service or 14 days after delivery of the relevant Professional Services. These procedures are your exclusive remedies and our sole liability for breach of the Performance Warranty or Professional Services Warranty.

18. Disclaimers.

(a) EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT AND TO THE EXTENT PERMITTED BY LAW, ALL SOFTWARE, DATA AND INFORMATION AND SERVICES PROVIDED THROUGH THE CLOUD SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT AND TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM AND YOU HEREBY WAIVE ALL CONDITIONS, REPRESENTATIONS, WARRANTIES AND GUARANTEES, EXPRESSED OR IMPLIED, INCLUDING TITLE, NON-INFRINGEMENT, AVAILABILITY, UNINTERRUPTED OR ERROR-FREE OPERATION, CURRENCY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE AND COMPATIBILITY BETWEEN THE CLOUD SERVICE AND ANY EQUIPMENT OWNED OR SOFTWARE LICENSED BY YOU OR YOUR AUTHORIZED USERS.
(b) YOU ACKNOWLEDGE AND AGREE THAT WE ARE A PROVIDER OF SOFTWARE FUNCTIONALITY AND THAT WE DO NOT WARRANT, REPRESENT OR GUARANTEE THE COMPLETENESS, ACCURACY, RELIABILITY, AND CURRENCY OF ANY DATA OR INFORMATION DOWNLOADED, UPLOADED, OR OTHERWISE VIEWED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE CLOUD SERVICE. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE VIEWED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE CLOUD SERVICE ARE AT YOUR (AND EACH USER’S) SOLE RISK AND DISCRETION AND, TO THE EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO YOU, ANY AUTHORIZED USERS OR THEIR RESPECTIVE PROPERTY IN CONNECTION WITH SUCH DATA AND INFORMATION.
(c) YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR OBTAINING, AND HAVE OR WILL OBTAIN, ANY NECESSARY CONSENT FOR USE OF CLIENT DATA AND AUTHORIZED USER INFORMATION AND DETERMINING THE DATA NECESSARY FOR AUTHORIZED USERS TO MAKE DECISIONS USING THE CLOUD SERVICE.

19. Limitations of Liability.

19.1. Liability Cap. Each party’s entire liability arising out of or related to this Agreement will not exceed amounts paid or payable by you to us under this Agreement less any refunds or credits we have provided to you, in the 12 months prior the data of the event giving rise to a claim or where a series of related events, the first event giving rise to a claim.

19.2. CONSEQUENTIAL DAMAGES WAIVER. NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.

19.3. Nature of Claims. The waivers and limitations in this section 19 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

20. Indemnification.

20.1. Indemnification by The Wishlist Company. We will, at our own cost defend Client from and against any claim that the Cloud Service, when used by you as authorized in this Agreement, infringes or misappropriates a third party’s intellectual property rights, and will indemnify and hold you harmless from and against any damages or costs awarded against you (including reasonable attorneys’ fees) or agreed in settlement by us resulting from such claims.

20.2. Indemnification by Client. You, at your own cost, will defend us from and against any claim arising from your breach or alleged breach of section 7.1 (Compliance) or section 7.4 (Email Consent) and will indemnify and hold us harmless from and against any damages or costs awarded against us (including reasonable attorneys’ fees) or agreed in settlement by you resulting from such claims.

20.3. Procedures. The indemnifying party’s obligations in this section 20 are subject to receiving from the indemnified party: (a) prompt notice of the claim (but delayed notice will only reduce the indemnifying party’s obligations to the extent it is prejudiced by the delay), (b) the exclusive right to control the claim’s investigation, defence and settlement and (c) reasonable cooperation at the indemnifying Party’s expense. The indemnifying party may not settle a claim without the indemnified party’s prior approval if settlement would require the indemnified party to admit fault or take or refrain from taking any action (except regarding use of the Cloud Service when we are the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

20.4. Mitigation. In response to an infringement or misappropriation claim, if required by settlement or injunction or as we determine necessary to avoid material liability, we may: (a) procure rights for your continued use of the Cloud Service, (b) replace or modify the allegedly infringing portion of the Cloud Service to avoid infringement, without reducing the Cloud Service’s overall functionality or (c) terminate the affected Subscription Order and refund to you any pre-paid, unused fees for the terminated portion of the Subscription Term.

20.5. Exceptions. Our obligations in this section 20 do not apply to claims resulting from (a) modification or unauthorized use of the Cloud Service, (b) use of the Cloud Service in combination with items not provided by us, including Third-Party Platforms or (c) if we made available (at no additional charge) a newer release of the Cloud Service that would avoid infringement.

20.6. Exclusive Remedy. This section 20 sets out the indemnified party’s exclusive remedy and the indemnifying party’s sole liability regarding third-party claims of intellectual property infringement or misappropriation.

21. Confidentiality

21.1. Use and Protection. As recipient, each party will (a) use Confidential Information only to fulfill its obligations and exercise its rights under this Agreement, (b) not disclose Confidential Information to third parties without the discloser’s prior approval, except as permitted in this Agreement and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.

21.2. Permitted Disclosures. The recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for us, Subcontractors referenced in section 24.8), provided it remains responsible for their compliance with this section 21 and they are bound to confidentiality obligations no less protective.

21.3. Exclusions. These confidentiality obligations do not apply to information that the recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without using or referencing Confidential Information.

21.4. Remedies. Breach of this section 21 may cause substantial harm for which monetary damages are an insufficient remedy. Upon a breach, the discloser is entitled to seek appropriate equitable relief, including an injunction, in addition to other remedies.

21.5. Required Disclosures. The recipient may disclose Confidential Information (including Client Data) to the extent required by Laws. If permitted by Law, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.

22. Publicity. Neither party may publicly announce this Agreement without the other party’s prior approval or except as required by Laws.

23. Trials. We may offer optional Trials. Use of Trials is permitted only for Client’s internal evaluation during the period designated by us on the Order (or if not designated, 30 days). Either party may terminate Client’s use of Trials at any time for any reason. Trials may be inoperable, incomplete or include features never released. Notwithstanding anything else in this Agreement, we offer no warranty, indemnity, service level agreement or Support for Trials and our liability for Trials will not exceed US$1,000.

24. Miscellaneous

24.1. Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement, with notice to the other party, in connection with the assigning party’s merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

24.2. Governing Law. These Terms of Service are governed by the laws in force in New South Wales, Australia, (“Laws”) without regard to conflict of law principles. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them.

24.3. Notices. Except as set out in this Agreement, notices, requests and approvals under this Agreement must be in writing to The Wishlist Company and will be deemed given: (1) upon receipt if by personal delivery, (2) upon receipt if by certified or registered mail (return receipt requested), (3) one day after dispatch if by a commercial overnight delivery or (4) upon delivery if by email. Either party may update its address with notice to the other. The Wishlist Company may also send operational notices through the Cloud Service.

24.4. Entire Agreement. These Terms of Service, together with the Subscription Order and any other agreements and documents referenced therein, as such may be amended from time to time, constitute the complete understanding between the parties concerning the subject matter thereof. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. Any prior agreements, understandings, negotiations or communications written or otherwise are deemed superseded by these Terms of Service. Any amendments to this Agreement (“Additional Terms”) must be in writing and signed by each party’s authorized representatives. A Subscription Order may not modify any other part of the Agreement unless the Subscription Order specifically identifies the provisions that it supersedes. These Terms of Service and any Subscription Order may be executed in any number of counterparts. Each counterpart is an original, but the counterparts together are one and the same agreement.

24.5. Operational Changes. With notice to Client, we may modify Support or Data Security to reflect new features or changing practices, but the modifications may not be retroactive or materially decrease our overall obligations during a Subscription Term.

24.6. Waivers and Severability. No waiver by either party of any provision or any breach of these Terms of Service constitutes a waiver of any other provision or breach of these Terms of Service and no waiver shall be effective unless made in writing. The right of either party to require strict performance and observance of any obligations hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect, and the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision.

24.7. Force Majeure. Neither party will be deemed in default of these Terms of Service as a result of a delay in performance or failure to perform its obligations caused by acts of God or governmental authority, strikes or labor disputes, fire, acts of war, failure of third-party suppliers, or for any other cause beyond the control of that party.

24.8. Subcontractors. We may use subcontractors and permit them to exercise our rights and fulfill our obligations, but we remain responsible for their compliance with this Agreement and for our overall performance under this Agreement. This does not limit any additional terms for sub-processors under a data protection agreement.

24.9. Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.

24.10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

24.11. Open Source. Our Software distributed to Client (if any) may include third-party open-source software (“Open Source”) as listed in the Documentation or by us upon request. If Client elects to use the Open Source on a stand-alone basis, that use is subject to the applicable open-Source license and not this Agreement.

24.12. Export and Import. Each party (a) will comply with all export and import Laws in performing this Agreement and (b) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or designated by the U.S. government as a ”terrorist supporting” country. Client will not submit to the Cloud Service any data controlled under the U.S. International Traffic in Arms Regulations.

25. Definitions.

“Affiliate” means an entity controlled, controlling or under common control with a party, where control means at least 50% ownership or power to direct an entity’s management.

“Authorized User” means anyone that Client allows to use its accounts for the Cloud Service, who may include (a) employees, advisors and contractors of Client and its Affiliates and (b) others if permitted in this Agreement, the Documentation or a Subscription Order.

“Client” (“you”, “your”) means the party named as “Client” on a Subscription Order as the purchaser of a subscription to The Wishlist Company Services.

“Client Data” means any data, content or materials that Client (including its Authorized Users) submits to its Cloud Service accounts, including information pertaining to Client’s customers, including Personal Data and non-personally identifiable information, and from Third-Party Platforms.

“Client Materials” means materials and resources that Client makes available to The Wishlist Company in connection with Professional Services.

“Cloud Service” means The Wishlist Company’s proprietary cloud service, as identified in the Subscription Order and as modified from time to time, and Documentation but not Professional Services deliverables or Third-Party Platforms. The Cloud Service may include optional modules that the Client may subscribe to, and which may require additional fees to be paid.

“Confidential Information” means information disclosed by or on behalf of one party (as discloser) to the other party (as recipient) under this Agreement, in any form, which (a) the discloser identifies to recipient as “confidential” or “proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. The Wishlist Company’s Confidential Information includes technical or performance information about the Cloud Service, and Client’s Confidential Information includes Client Data.

“Documentation” means The Wishlist Company’s standard usage and installation documentation for the Cloud Service.

“Force Majeure” means an unforeseen event beyond a party’s reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party Internet or utility failure, refusal of government license or natural disaster, where the affected party takes reasonable and customary measures to avoid or mitigate such event’s effects.

“Personal Data” means Client Data relating to an identified or identifiable natural person.

“Professional Services” means training, migration or other professional services that The Wishlist Company furnishes to Client related to the

Cloud Service.

“Sensitive Data” means (a) patient, medical or other protected health information regulated by the Health Insurance Portability and

Accountability Act (as amended and supplemented) (“HIPAA”), (b) credit, debit, bank account or other financial account numbers,

(c) social security numbers, driver’s license numbers or other government ID numbers and (d) special categories of data enumerated

in European Union Regulation 2016/679, Article 9(1) or any successor legislation.

“Statement Of Work” means a statement of work for Professional Services that is executed by the parties and references this Agreement.

“Subscription Order” means an order for Client’s access to The Wishlist Company’s Cloud Service, Support, Professional Services or related services that is executed by the parties and references this Agreement. A Subscription Order may specify limitations (“Subscription Limits”) relating to the use of the Cloud Service and should Client exceed the stated Subscription Limits then additional fees may apply.

“Subscription Term” means the term for Client’s use of the Cloud Service as identified in a Subscription Order.

“Third-Party Platform” means any product, add-on or platform not provided by The Wishlist Company that Client uses with the Cloud Service.

“Trials” mean access to the Cloud Service (or Cloud Service features) on a free, trial, beta or early access basis.

“Usage Data” means The Wishlist Company’s technical logs, data and learnings about Client’s use of the Cloud Service but excluding Client Data.

The Wishlist Company Terms of Service

(Version 1.12)

1. Agreement. The Wishlist Company Pty Ltd (“The Wishlist Company”, “us”, “our” or “we”) is a company with a principal place of business at Suite 305, 30 Kingsway Cronulla NSW Australia 2230. These Terms of Service, together with any Subscription Order, our Acceptable Use Policy and Privacy Policy (together, “Terms of Service”) govern all use of our Cloud Service, any third-party integration and any Professional services we offer (together, “Services”). BY SUBSCRIBING TO OUR CLOUD SERVICE, SIGNING A SUBSCRIPTION ORDER OR STATEMENT OF WORK, OR ACCESSING OR USING ANY OF OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MUST NOT USE OUR SERVICES. IF YOU ARE USING OUR WEBSITE, YOU AGREE TO BE BOUND BY OUR PRIVACY POLICY.

2. Agreement modification. We may amend these Terms of Service by giving you at least 30 days prior written notice. Notice includes an email to you, or providing a notice of the new version when you access our Cloud Service. If such change is detrimental to you, we will provide you with not less than 30 days prior notice of the amendment. If you do not wish to be bound by any amendment, you must cease using the Cloud Service. We will make the most recent version of our Terms of Service available on our website, along with prior versions. Please regularly check our website to review our most up-to-date version.

3. Cloud Service. Should you, or the company you work for (“Client”), elect to subscribe to the Cloud Service, then you may use the Cloud Service for your own business purposes or for the business purposes of the Client, subject to this Agreement, during each Subscription Term (“Permitted Use”). This includes the right to copy and use any software that we might provide to you, and the Documentation, as part of your Permitted Use. You will comply with the Documentation in using the Cloud Service.

4. Authorized Users. A Client may permit Authorized Users to use the Cloud Service on its behalf. The Client is responsible for provisioning and managing the accounts of its Authorized Users, for their actions through the Cloud Service and for their compliance with this Agreement. Client will ensure that Authorized Users keep their login credentials confidential and will promptly notify us upon learning of any compromise of User accounts or credentials.

5. Affiliates. Unless otherwise specified in a Subscription Order, the use of Services is limited to a single website that is specified in the Subscription Order. Affiliates must subscribe through their own Subscription Order if they wish to utilise the Cloud Services with another website. Client’s Affiliates may serve as Authorized Users under this Agreement.

6. Our Usage

6.1. Use of Client Data. Subject to this Agreement, we will access and use Client Data solely to provide and maintain the Cloud Service, Support and Professional Services under this Agreement. This includes sharing Client Data as you direct through the Cloud Service, but we will not otherwise disclose Client Data to third parties except as permitted in this Agreement.

6.2. Data Security. We will use appropriate technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Client Data.

6.3. Usage Data. We may collect Usage Data and use it to operate, improve and support the Cloud Service and for other lawful business purposes, including benchmarking and reports. However, we will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify you, your Authorized Users, your customers or any other person and (b) aggregated with data across other clients.

7. Your Usage

7.1. Compliance. You represent and that you have all rights necessary to use Client Data with the Cloud Service, and that you have paid any applicable royalties or fees required to upload, publish, broadcast or modify Client Data. You agree to grant us, and any provider of email or SMS that we embed into the Cloud Service the rights to Client Data specified in this Agreement, including personally identifiable information. You are responsible for the content and accuracy of Client Data.

7.2. Setup Responsibilities. You are responsible for setting up and configuring our Cloud Service, and for obtaining at your expense all the necessary computer hardware, software and internet connectivity required to access the Cloud Service through the internet. We may assist you or advise you regarding installation, configuration or support, and in such cases our assistance or advice cannot be construed as legal advice. You also agree to upload Client Data in the correct format, and that we will not be liable for charges incurred by you as a result of, or relating to misuse of the Cloud Service, any error or defect in Client Data that was directly or indirectly caused by you.

7.3. Acceptable Use. You represent and warrant that you will abide by our Acceptable Use Policy.

7.4. Email Consent. You warrant that your use of email, SMS and MMS notifications shall always comply with all the following:

(a) all requirements and restrictions generally applicable to the Cloud Service under these Terms of Service.
(b) be sent only to your active existing customers and shall be sent solely for the purpose of information and alerts.
(c) all requirements and restrictions of applicable law including email consent, privacy and content requirements and restrictions under the New Zealand Unsolicited Electronic Messages Act 2007, the New Zealand Privacy Act 2020, United States CAN-SPAM Act of 2003, the Canadian Anti-Spam Legislation, the Australian Privacy Act 1988 (Cth), the Australian Spam Act 2003 (Cth), the United Kingdom (UK) Privacy and Electronic Communications (EC Directive) Regulations 2003, UK Data Protection Act 2018, General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, (“EU GDPR”) and EU GDPR as transposed into UK national law by operation of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019, as may be applicable. To the extent you submit Client Data which constitutes “personal data” of individuals subject to the privacy laws of the European Economic Area or Switzerland (collectively “EU Personal Data”), you acknowledge that in all cases we act as the processor of EU Personal Data, and you remain the controller of EU Personal Data.
7.5. Using our APIs. You will only access (or attempt to access) our APIs by the means described in our API documentation. We may set and enforce limits on your use of our APIs (e.g., limiting the number of API requests that you may make) in our sole discretion. You agree not to circumvent any limitations documented with our APIs. Our APIs may evolve and change over time, and while we do our best to notify developers of major changes in advance, we reserve the right to modify our APIs, cease to offer support for our APIs, or require you to use our APIs in a different manner at any time without notice.

7.6. Removal of Client Data. You must promptly remove any Client Data or content that breaches this section 7 or any other provision of these Terms of Service on notice from us or a governmental agency. We are entitled to suspend access to, disable or remove, any content, that we, acting reasonably consider is in breach of or is likely to be in breach of this clause or these Terms of Service or where we receive a notice from a third party claiming such. We will notify you of such action, prior to or as soon as reasonably practicable after we have taken such action.

8. Mutual Compliance with Laws. Each party will comply with all Laws including data protection laws that apply to its performance under this Agreement.

9. Support. We will provide Support for the Cloud Service consistent with industry-standards and our general business practices.

10. Maintenance Windows. From time to time, we and/or a third-party service provider may update or perform maintenance on the underlying Cloud Service. We will use commercially reasonable efforts to provide notice to you in advance of all outages due to such planned maintenance.

11. Third-Party Platforms. You may choose to enable integrations or exchange Client Data with Third-Party Platforms. Your use of a Third-Party Platform is governed by your agreement with the relevant provider, not this Agreement, and we are not responsible for Third-Party Platforms or how their providers use Client Data.

12. Professional Services. We will perform Professional Services as described in a Subscription Order or Statement of Work, which may identify additional terms or milestones for Professional Services. You will give us timely access to Client Materials reasonably needed to deliver Professional Services, and we will use the Client Materials only for purposes of providing the Professional Services. Subject to any limits in a Subscription Order or Statement of Work, and with prior agreement, you will reimburse us for reasonable travel and lodging expenses incurred in providing Professional Services. You may use code or other deliverables that we furnish as part of Professional Services only in connection with your authorized use of the Cloud Service under this Agreement.

13. Fees.

13.1. Fees and Payment. We will charge you fees in advance, as specified in a Subscription Order. Payment of fees must be using a valid credit card unless otherwise specified on a Subscription Order. By approving a Subscription Order with an agreed credit card method of payment, you authorize us to charge your credit card monthly, in advance, for the fees specified in the Subscription Order. If we are unable to effect automatic payment via your credit card, you will be notified by email and access to the Cloud Service will be disabled until payment is received. If you are not paying by credit card, payment terms are 14 days from date of invoice unless otherwise stated in the Subscription Order. Late payments are subject to a charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees and expenses are non-refundable except as expressly set out in this Agreement. The Cloud Service purchased cannot be decreased during the Subscription Term.

13.2. Pricing changes. We may change our pricing at any time and will provide advance notification to existing Clients by email. Pricing changes will come into effect at the end of your then current Subscription Term. You have the right to terminate your Subscription Order within 14 days of receiving such notice, and your failure to terminate on within this period constitutes your acceptance of the new pricing terms. We also reserve the right to offer new functionality and services for a separate fee.

13.3. Currency. Fees are payable in US Dollars unless otherwise specified in a Subscription Order.

13.4. Taxes. All Fees quoted and payable under the Agreement exclude taxes unless otherwise stated. Subscriber will be responsible for, and shall reimburse us for, any applicable sales, service and other taxes (excluding taxes on our income) levied upon the provision of Services under this Agreement.

13.5. Payment Disputes. If you dispute an invoice in good faith, you will notify us within the payment period and we will seek to resolve the dispute over a 15-day discussion period. You are not required to pay disputed amounts during the discussion period but will timely pay all undisputed amounts. After the discussion period, either party may pursue any available remedies.

14. Suspension. We may suspend your access to the Cloud Service and related services if a) your account is 30 days or more overdue, (b) you breach section 7 (Your Usage). We will give you reasonable prior notice of Suspension so that you may seek to resolve the issue and avoid suspension, but we are not required to give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Law. We will promptly restore your access to the Cloud Service in accordance with this Agreement once the Suspension event is resolved.

15. Term and Termination.

15.1. Subscription Term. Each Subscription Term commences upon the date on which we receive a monthly subscription fee, or as otherwise specified in a Subscription Order. The Subscription Term shall automatically renew for successive periods unless (a) the parties agree on a different renewal Subscription Order or (b) this Agreement is terminated as set forth in this section 15. The Subscription Order may specify fees for optional products or modules, in which case the Subscription Term and Payment Terms are deemed to be the same unless otherwise specified.

15.2. Termination. Either party may terminate this Agreement with at least 14 days notice prior to the end of the Subscription Term. In the event of such termination, fees due for the full Subscription Term remain payable. A party may also terminate this Agreement if the other party (a) fails to cure a material breach of this Agreement within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

15.3. Data Export & Deletion. During a Subscription Term, you may export Client Data from the Cloud Service (or we will otherwise make the Client Data available to you) as described in the Documentation. After termination or expiration of this Agreement, within 60 days of request, we will delete Client Data and each party will delete any Confidential Information of the other in its possession or control, except that a recipient may retain Client Data or Confidential Information in accordance with its standard backup or record retention policies or as required by Law, subject to section 6.2 (Data Security) and section 21 (Confidentiality).

15.4. Effect of Termination. Your right to use the Cloud Service, Support and Professional Services will cease upon any termination or expiration of this Agreement, subject to this section 15. The following sections will survive expiration or termination: 6.3 (Usage Data), 7 (Your Usage), 13.1 (Fees and Payment) for amounts due, 13.4 (Taxes), 15.3 (Data Export & Deletion), 15.4 (Effect of Termination), 16 (Intellectual Property), 18 (Disclaimers), 19 (Limitations of Liability), 20 (Indemnification), 21 (Confidentiality), 24 (Miscellaneous and 25 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

16. Intellectual Property.

16.1. Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for our express rights in this Agreement, as between the parties, you retain all intellectual property and other rights in Client Data and Client Materials provided to us. Except for your express rights in this Agreement, as between the parties, we and our licensors retain all intellectual property and other rights in the Cloud Service, Professional Services deliverables and related technology and Services.

16.2. Feedback. If you give us feedback regarding improvement or operation of the Cloud Service, Support or Professional Services, we may use the feedback without restriction or obligation. We will not publicly identify Client as the source of feedback without your permission.

17. Warranties.

17.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that it will use industry-standard measures to avoid introducing viruses, malicious code or similar harmful materials into the Cloud Service.

17.2. Performance Warranty. We warrant that the Cloud Service will perform materially as described in the Documentation during a Subscription Term (the “Performance Warranty”). You acknowledge that we may change, suspend or terminate features or functionality at any time, and that we are under no obligation to update the Cloud Service to ensure compatibility or continuity between any release of the Cloud Service and any prior or subsequent version. If we make a material change to the Cloud Service, you may terminate a Subscription Order with written notice within 14 days of the date of such material change.

17.3. Reports and product data. Whilst we will endeavour to ensure the accuracy of the product data and reports available in the Cloud Service, we make no warranty or representation regarding the accuracy of product data or reports.

17.4. Professional Services Warranty. We warrant that any Professional Services will be provided in a professional and workmanlike manner (the “Professional Services Warranty”).

17.5. Warranty Remedy. We will use reasonable efforts to correct a verified breach of the Performance Warranty, or the Professional Services Warranty reported by you. If we fail to do so within 30 days after your warranty report, then either party may terminate the Subscription Order related to the non-conforming Cloud Service or Professional Services, in which case we will refund to you any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). To receive these remedies, you must report a breach of warranty in reasonable detail within 14 days after discovering the issue in the Cloud Service or 14 days after delivery of the relevant Professional Services. These procedures are your exclusive remedies and our sole liability for breach of the Performance Warranty or Professional Services Warranty.

18. Disclaimers.
(a) EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT AND TO THE EXTENT PERMITTED BY LAW, ALL SOFTWARE, DATA AND INFORMATION AND SERVICES PROVIDED THROUGH THE CLOUD SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT AND TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM AND YOU HEREBY WAIVE ALL CONDITIONS, REPRESENTATIONS, WARRANTIES AND GUARANTEES, EXPRESSED OR IMPLIED, INCLUDING TITLE, NON-INFRINGEMENT, AVAILABILITY, UNINTERRUPTED OR ERROR-FREE OPERATION, CURRENCY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE AND COMPATIBILITY BETWEEN THE CLOUD SERVICE AND ANY EQUIPMENT OWNED OR SOFTWARE LICENSED BY YOU OR YOUR AUTHORIZED USERS.
(b) YOU ACKNOWLEDGE AND AGREE THAT WE ARE A PROVIDER OF SOFTWARE FUNCTIONALITY AND THAT WE DO NOT WARRANT, REPRESENT OR GUARANTEE THE COMPLETENESS, ACCURACY, RELIABILITY, AND CURRENCY OF ANY DATA OR INFORMATION DOWNLOADED, UPLOADED, OR OTHERWISE VIEWED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE CLOUD SERVICE. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE VIEWED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE CLOUD SERVICE ARE AT YOUR (AND EACH USER’S) SOLE RISK AND DISCRETION AND, TO THE EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO YOU, ANY AUTHORIZED USERS OR THEIR RESPECTIVE PROPERTY IN CONNECTION WITH SUCH DATA AND INFORMATION.
(c) YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR OBTAINING, AND HAVE OR WILL OBTAIN, ANY NECESSARY CONSENT FOR USE OF CLIENT DATA AND AUTHORIZED USER INFORMATION AND DETERMINING THE DATA NECESSARY FOR AUTHORIZED USERS TO MAKE DECISIONS USING THE CLOUD SERVICE.

19. Limitations of Liability.

19.1. Liability Cap. Each party’s entire liability arising out of or related to this Agreement will not exceed amounts paid or payable by you to us under this Agreement less any refunds or credits we have provided to you, in the 12 months prior the data of the event giving rise to a claim or where a series of related events, the first event giving rise to a claim.

19.2. CONSEQUENTIAL DAMAGES WAIVER. NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.

19.3. Nature of Claims. The waivers and limitations in this section 19 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

19.4. Embedded Services. The Cloud Service offering may include embedded email and SMS services. These services are provided by third parties, including without limitation, telecommunications companies and mobile network aggregators, and we are not liable for any failure or defect in the Cloud Service directly, or indirectly caused by, or resulting from, a failure, defect or technical constraint relating to the Services provided by such third party.

20. Indemnification.

20.1. Indemnification by The Wishlist Company. We will, at our own cost defend Client from and against any claim that the Cloud Service, when used by you as authorized in this Agreement, infringes or misappropriates a third party’s intellectual property rights, and will indemnify and hold you harmless from and against any damages or costs awarded against you (including reasonable attorneys’ fees) or agreed in settlement by us resulting from such claims.

20.2. Indemnification by Client. You, at your own cost, will defend us from and against any claim arising from your breach or alleged breach of section 7.1 (Compliance) or section 7.4 (Email Consent) and will indemnify and hold us harmless from and against any damages or costs awarded against us (including reasonable attorneys’ fees) or agreed in settlement by you resulting from such claims.

20.3. Procedures. The indemnifying party’s obligations in this section 20 are subject to receiving from the indemnified party: (a) prompt notice of the claim (but delayed notice will only reduce the indemnifying party’s obligations to the extent it is prejudiced by the delay), (b) the exclusive right to control the claim’s investigation, defence and settlement and (c) reasonable cooperation at the indemnifying Party’s expense. The indemnifying party may not settle a claim without the indemnified party’s prior approval if settlement would require the indemnified party to admit fault or take or refrain from taking any action (except regarding use of the Cloud Service when we are the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

20.4. Mitigation. In response to an infringement or misappropriation claim, if required by settlement or injunction or as we determine necessary to avoid material liability, we may: (a) procure rights for your continued use of the Cloud Service, (b) replace or modify the allegedly infringing portion of the Cloud Service to avoid infringement, without reducing the Cloud Service’s overall functionality or (c) terminate the affected Subscription Order and refund to you any pre-paid, unused fees for the terminated portion of the Subscription Term.

20.5. Exceptions. Our obligations in this section 20 do not apply to claims resulting from (a) modification or unauthorized use of the Cloud Service, (b) use of the Cloud Service in combination with items not provided by us, including Third-Party Platforms or (c) if we made available (at no additional charge) a newer release of the Cloud Service that would avoid infringement.

20.6. Exclusive Remedy. This section 20 sets out the indemnified party’s exclusive remedy and the indemnifying party’s sole liability regarding third-party claims of intellectual property infringement or misappropriation.

21. Confidentiality

21.1. Use and Protection. As recipient, each party will (a) use Confidential Information only to fulfill its obligations and exercise its rights under this Agreement, (b) not disclose Confidential Information to third parties without the discloser’s prior approval, except as permitted in this Agreement and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.

21.2. Permitted Disclosures. The recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for us, Subcontractors referenced in section 24.8), provided it remains responsible for their compliance with this section 21 and they are bound to confidentiality obligations no less protective.

21.3. Exclusions. These confidentiality obligations do not apply to information that the recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without using or referencing Confidential Information.

21.4. Remedies. Breach of this section 21 may cause substantial harm for which monetary damages are an insufficient remedy. Upon a breach, the discloser is entitled to seek appropriate equitable relief, including an injunction, in addition to other remedies.

21.5. Required Disclosures. The recipient may disclose Confidential Information (including Client Data) to the extent required by Laws. If permitted by Law, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.

22. Publicity. Neither party may publicly announce this Agreement without the other party’s prior approval or except as required by Laws.

23. Trials. We may offer optional Trials. Use of Trials is permitted only for Client’s internal evaluation during the period designated by us on the Order (or if not designated, 30 days). Either party may terminate Client’s use of Trials at any time for any reason. Trials may be inoperable, incomplete or include features never released. Notwithstanding anything else in this Agreement, we offer no warranty, indemnity, service level agreement or Support for Trials and our liability for Trials will not exceed US$1,000.

24. Miscellaneous

24.1. Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement, with notice to the other party, in connection with the assigning party’s merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

24.2. Governing Law. These Terms of Service are governed by the laws in force in New South Wales, Australia, (“Laws”) without regard to conflict of law principles. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them.

24.3. Notices. Except as set out in this Agreement, notices, requests and approvals under this Agreement must be in writing to The Wishlist Company and will be deemed given: (1) upon receipt if by personal delivery, (2) upon receipt if by certified or registered mail (return receipt requested), (3) one day after dispatch if by a commercial overnight delivery or (4) upon delivery if by email. Either party may update its address with notice to the other. The Wishlist Company may also send operational notices through the Cloud Service.

24.4. Entire Agreement. These Terms of Service, together with the Subscription Order and any other agreements and documents referenced therein, as such may be amended from time to time, constitute the complete understanding between the parties concerning the subject matter thereof. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. Any prior agreements, understandings, negotiations or communications written or otherwise are deemed superseded by these Terms of Service. Any amendments to this Agreement (“Additional Terms”) must be in writing and signed by each party’s authorized representatives. A Subscription Order may not modify any other part of the Agreement unless the Subscription Order specifically identifies the provisions that it supersedes. These Terms of Service and any Subscription Order may be executed in any number of counterparts. Each counterpart is an original, but the counterparts together are one and the same agreement.

24.5. Operational Changes. With notice to Client, we may modify Support or Data Security to reflect new features or changing practices, but the modifications may not be retroactive or materially decrease our overall obligations during a Subscription Term.

24.6. Waivers and Severability. No waiver by either party of any provision or any breach of these Terms of Service constitutes a waiver of any other provision or breach of these Terms of Service and no waiver shall be effective unless made in writing. The right of either party to require strict performance and observance of any obligations hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect, and the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision.

24.7. Force Majeure. Neither party will be deemed in default of these Terms of Service as a result of a delay in performance or failure to perform its obligations caused by acts of God or governmental authority, strikes or labor disputes, fire, acts of war, failure of third-party suppliers, or for any other cause beyond the control of that party.

24.8. Subcontractors. We may use subcontractors and permit them to exercise our rights and fulfill our obligations, but we remain responsible for their compliance with this Agreement and for our overall performance under this Agreement. This does not limit any additional terms for sub-processors under a data protection agreement.

24.9. Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.

24.10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

24.11. Open Source. Our Software distributed to Client (if any) may include third-party open-source software (“Open Source”) as listed in the Documentation or by us upon request. If Client elects to use the Open Source on a stand-alone basis, that use is subject to the applicable open-Source license and not this Agreement.

24.12. Export and Import. Each party (a) will comply with all export and import Laws in performing this Agreement and (b) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or designated by the U.S. government as a ”terrorist supporting” country. Client will not submit to the Cloud Service any data controlled under the U.S. International Traffic in Arms Regulations.

25. Definitions.

“Affiliate” means an entity controlled, controlling or under common control with a party, where control means at least 50% ownership or power to direct an entity’s management.

“Authorized User” means anyone that Client allows to use its accounts for the Cloud Service, who may include (a) employees, advisors and contractors of Client and its Affiliates and (b) others if permitted in this Agreement, the Documentation or a Subscription Order.

“Client” (“you”, “your”) means the party named as “Client” on a Subscription Order as the purchaser of a subscription to The Wishlist Company Services.

“Client Data” means any data, content or materials that Client (including its Authorized Users) submits to its Cloud Service accounts, including information pertaining to Client’s customers, including Personal Data and non-personally identifiable information, and from Third-Party Platforms.

“Client Materials” means materials and resources that Client makes available to The Wishlist Company in connection with Professional Services.

“Cloud Service” means The Wishlist Company’s proprietary cloud service, as identified in the Subscription Order and as modified from time to time, and Documentation but not Professional Services deliverables or Third-Party Platforms. The Cloud Service may include optional modules that the Client may subscribe to, and which may require additional fees to be paid.

“Confidential Information” means information disclosed by or on behalf of one party (as discloser) to the other party (as recipient) under this Agreement, in any form, which (a) the discloser identifies to recipient as “confidential” or “proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. The Wishlist Company’s Confidential Information includes technical or performance information about the Cloud Service, and Client’s Confidential Information includes Client Data.

“Documentation” means The Wishlist Company’s standard usage and installation documentation for the Cloud Service.

“Force Majeure” means an unforeseen event beyond a party’s reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party Internet or utility failure, refusal of government license or natural disaster, where the affected party takes reasonable and customary measures to avoid or mitigate such event’s effects.

“Personal Data” means Client Data relating to an identified or identifiable natural person.

“Professional Services” means training, migration or other professional services that The Wishlist Company furnishes to Client related to the
Cloud Service.

“Sensitive Data” means (a) patient, medical or other protected health information regulated by the Health Insurance Portability and
Accountability Act (as amended and supplemented) (“HIPAA”), (b) credit, debit, bank account or other financial account numbers,
(c) social security numbers, driver’s license numbers or other government ID numbers and (d) special categories of data enumerated
in European Union Regulation 2016/679, Article 9(1) or any successor legislation.

“Statement Of Work” means a statement of work for Professional Services that is executed by the parties and references this Agreement.

“Subscription Order” means an order for Client’s access to The Wishlist Company’s Cloud Service, Support, Professional Services or related services that is executed by the parties and references this Agreement. A Subscription Order may specify limitations (“Subscription Limits”), and/or conditions (“Special Conditions”) relating to the use of the Cloud Service. Should Client exceed the stated Subscription Limits or not comply with the Special Conditions, then additional fees may apply.

“Subscription Term” means the term for Client’s use of the Cloud Service as identified in a Subscription Order.

“Third-Party Platform” means any product, add-on or platform not provided by The Wishlist Company that Client uses with the Cloud Service.

“Trials” mean access to the Cloud Service (or Cloud Service features) on a free, trial, beta or early access basis.

“Usage Data” means The Wishlist Company’s technical logs, data and learnings about Client’s use of the Cloud Service but excluding Client Data.