4. Fees and Payments.

4.1. Fees. Customer will pay to Colloquial all fees set forth in Order Forms (the “Fees”). Except as otherwise set forth in this Agreement or an Order Form, payment obligations are non-cancelable, and Fees paid are non-refundable. Except as otherwise set forth in an Order Form, Colloquial may increase the Fees upon renewal of each Order Form subscription term by providing written notice to Customer at least forty-five (45) days prior to the commencement of the applicable renewal subscription term.

4.2. Invoices and Payments. Except as otherwise set forth in the relevant Order Form, Colloquial will invoice Customer, or, where Customer has provided valid credit card information to Colloquial, Colloquial will charge Customer, for all Fees in advance either annually or monthly as specified on the Order Form. Unless otherwise stated in the Order Form, full payment for invoiced Fees is due within 30 days after the invoice date.

4.3. Late Payments. Customer will be responsible for reasonable costs and expenses incurred by Colloquial in the collection of any overdue Fees. If any Fees are 15 days or more overdue, Colloquial may, without limiting its other rights and remedies, immediately suspend Services until such amounts are paid in full, provided that Colloquial will use commercially reasonable efforts to give Customer at least 5 days’ prior written notice that its account is overdue before suspending Services.

4.4.Payment Disputes. Colloquial will not exercise its rights under the “Late Payments” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

4.5. Taxes. The Fees do not include taxes, duties, levies or similar government assessments of any kind, including value-added, sales, use or withholding taxes assessable by any jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. Customer will not withhold any taxes from any amounts due to Colloquial. If Colloquial has a legal obligation to pay or collect any Taxes for which Customer is responsible, Colloquial will invoice Customer and Customer will pay that amount unless Customer provides Colloquial with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, Colloquial is solely responsible for taxes assessable against it based on its income, property and employees.

5. Term and Termination.

5.1. Term. This Agreement will begin on the effective date of the first Order Form between the Parties and will continue for as long as any Order Form remains in effect, unless earlier terminated in accordance with this Agreement (the “Term”).

5.2. Term of Order Forms. The initial term of each Order Form will begin on effective date of such Order Form and continue for the subscription term set forth therein. Except as set forth in such Order Form, each Order Form will automatically renew for successive renewal terms equal in length to the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current subscription term.

5.3. Termination for Cause. Either party may terminate this Agreement immediately upon notice to the other party if: (a) the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach; or (b) the other party: (i) becomes insolvent; (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement; or (c) makes an assignment for the benefit of its creditors.

5.4. Effect of Termination. Upon the earlier of expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will immediately terminate, Customer will cease use of the Services and Documentation, and Customer will return or destroy all copies of the Documentation in its possession or control. Termination or expiration will not relieve Customer of its obligation to pay all Fees that accrued prior to such expiration or termination.

5.5. Return of Customer Data. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Colloquial will make Customer Data available to Customer.  After such 30-day period, Colloquial will have no obligation to maintain any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

5.6. Renewals. The Agreement will automatically renew at the end of each Term for one year unless either party gives the other written notice of termination or requests an extended License Term prior to the beginning of the subsequent License Term. Customer will be notified no less than 14 days’ notice of the renewal of the subscription.

5.7. Survival. The sections titled “Services Fees and Payments,” “Effect of Termination,” “Survival,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” and “Miscellaneous” will survive and termination or expiration of this Agreement, and the section titled “Security and Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Colloquial retains possession of Customer Data.

7. Confidentiality

7.1. Definition of Confidential Information. “Confidential Information” shall mean any information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), either directly or indirectly in writing, orally, or by inspection of tangible objects (a) that the disclosing party identifies as confidential or proprietary; or (b) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself.  Confidential Information of Customer includes Customer Data; Confidential Information of Colloquial includes the Services, all technical information relating thereto, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information does not include information that the Receiving Party can document: (i) is or becomes generally available to the public other than through a wrongful act of the Receiving Party; or (ii) was lawfully in its possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it without restriction by a third party who is not bound by any confidentiality obligations with respect thereto; or (iv) is independently developed by the Receiving Party, its employees or third-party contractors without use of or reference to the Confidential Information. For clarity, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Colloquial services and offerings.

7.2. Protection of Confidential Information. All Confidential Information disclosed by Disclosing Party shall remain the property of the Disclosing Party.  The Disclosing Party reserves all rights in its Confidential Information.  The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) except as otherwise authorised by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.  Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.  Notwithstanding the foregoing, Colloquial may disclose the terms of this Agreement and any applicable Order Form to a contractor to the extent necessary to perform Colloquial’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

7.3. Compelled Disclosure. Either party may disclose Confidential Information to the extent required by law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and cooperates with the Disclosing Party so that the Disclosing Party may obtain appropriate confidential treatment for such Confidential Information.

8. Representations, Warranties and Disclaimers

8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

8.2. Colloquial Warranties. Colloquial warrants that during the applicable subscription term Colloquial will not: (a) materially decrease the overall functionality of the Services; or (b) materially decrease the overall security of the Services.

8.3. Warranty Remedies. Customer will notify Colloquial of any non-conformance of the Services under a warranty above within 30 days. Provided that Customer notifies Colloquial within such time, Colloquial will use commercially reasonable efforts to correct the non-conformance at no additional charge. If Colloquial is unable to correct such non-conforming Services as warranted within a reasonable time, Customer will be entitled to terminate the applicable Order Form and receive a prorated refund of any prepaid, unused Fees covering the remainder of the subscription term. The foregoing remedy is Customer’s sole remedy in case of a breach of the limited warranties above.

8.4 Disclaimers.
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND REPORTS ARE PROVIDED “AS IS,” NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COLLOQUIAL DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION, THAT THE REPORTS WILL BE ACCURATE AND COLLOQUIAL GRANTS NO WARRANTY REGARDING THE USE BY CUSTOMER OF THE SERVICES.  THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  COLLOQUIAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT COLLOQUIAL IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD COLLOQUIAL LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.

(c) FROM TIME TO TIME, COLLOQUIAL MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH CUSTOMER MAY EXPERIMENT.  SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COLLOQUIAL’S SOLE DISCRETION.

(d) CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND THE REPORTS PROVIDED BY COLLOQUIAL TO CUSTOMER ARE INTENDED AS RECOMMENDATIONS ONLY AND DO NOT CONSTITUTE ANY WARRANTY OR GUARANTY THAT CUSTOMER, BY FOLLOWING SUCH RECOMMENDATIONS, WILL BE FULLY COMPLIANT WITH ANY APPLICABLE STANDARDS CONTEMPLATED BY THE SERVICES.  CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO ENSURE THAT IT COMPLIES WITH ALL SUCH APPLICABLE STANDARDS.

9. Mutual Indemnification

9.1. Indemnification by Colloquial. Colloquial will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Purchased Services infringe or misappropriate such third party’s intellectual property rights (each, a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Colloquial in writing of, a Claim  Against Customer, provided  Customer: (a) promptly gives Colloquial written notice of the  Claim Against  Customer; (b)  gives  Colloquial sole control of the defence and settlement of the  Claim  Against  Customer; and  (c)  gives  Colloquial  all reasonable assistance, at Colloquial’s expense.  If  Colloquial  receives information about an infringement  or misappropriation  claim  related to the Services,  Colloquial may in  its discretion  and  at  no  cost  to  Customer:  (i)  modify  the  Services  so  that  they are no longer claimed  to  infringe  or  misappropriate; (ii)  obtain  a  license  for Customer’s  continued use of the Services  in  accordance  with  this  Agreement; or  (iii)  terminate Customer’s  subscriptions for the Services  upon  30  days’  written notice and refund Customer  ny prepaid fees covering the  remainder of the subscription term of the terminated  Services.  The above defence and  indemnification  obligations  do  not  apply  if  a  Claim  Against Customer arises from:  (I) the  use  or  combination  of  the  Services  or  any  part  thereof  with software, hardware,  data,  or  processes not  provided  by  Colloquial,  if  the  Services or  use  thereof would  not  infringe without such combination;  (II) modifications to the Services not made by Colloquial; or  (III)  Customer’s breach of this Agreement, applicable Order Forms or the Documentation.

9.2. Indemnification by Customer. Customer will defend Colloquial and its Affiliates against any claim,  demand, suit or proceeding made or brought against Colloquial by a third party arising from: (a)  Customer’s use of the Services in an unlawful manner or in violation of this Agreement, an Order Form or the Documentation; (a  “Claim  Against  Colloquial”), and will indemnify  Colloquial from any damages,  attorney fees and costs finally awarded against  Colloquial as a result of, or for any amounts paid by Colloquial under a  settlement approved by  Customer in writing of,  a  Claim  Against  Colloquial, provided  Colloquial:  (i) promptly gives  Customer written notice of the  Claim  Against  Colloquial;  (ii)  gives Customer sole control of the defence and settlement of the  Claim  Against  Colloquial;  and  (iii)  gives Customer all reasonable assistance,  at  Customer’s expense.  The above defence and indemnification obligations do not apply if a Claim Against Colloquial arises from Colloquial’s breach of this Agreement, applicable Order Forms or the Documentation.

9.3. Sole and Exclusive Remedy. This Section 9 sets forth the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for the third-party claims described herein.

10. Limitation of Liability

10.1. Exclusion of Certain Types of Damages. EXCEPT TO THE EXTENT PROHIBITED BY LAW, NEITHER PARTY OR ITS AFFILIATES WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, COVER, BUSINESS INTERRUPTION, LOST PROFIT, OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

10.2. Liability Cap. EXCEPT FOR AMOUNTS PAYABLE UNDER A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OR CUSTOMER’S BREACH OF SECTION 3.3, IN NO EVENT SHALL THE AGGREGATE TOTAL LIABILITY OF EITHER PARTY TOGETHER WITH ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY OR DUE FROM BUT NOT YET PAID BY CUSTOMER UNDER THE ORDER FORM(S) GIVING RISE TO SUCH LIABILITY IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENTS” SECTION ABOVE.

11. Miscellaneous

11.1. Relationship Between the Parties. Colloquial is an independent contractor; nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties.

11.2. Export Compliance.  The Services may be subject to the export laws of Australia and other jurisdictions Customer will not permit any User to access or use the Services in an Australian-embargoed country or region or in violation of any Australian export law or regulation.

11.3. Anti-Bribery.  Neither party has received or been offered any illegal or improper bribe, rebate, payoff, influence payment, kickback, or other thing of value from an employee or agent of the other party in connection with this Agreement.

11.4. Assignment.  Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, and any assignment or transfer in derogation of the foregoing shall be null and void, provided, however that either party shall have the right to assign the Agreement, without the prior written consent of the other party, to the successor entity in the event of merger, corporate reorganisation or a sale of all or substantially all of such party’s assets. This Agreement shall be binding upon the parties and their respective successors and permitted assigns.

11.5. Notices.  All notices required or permitted under this Agreement must be delivered in writing, if to Colloquial, by emailing support@colloquial.io and if to Customer by emailing the Customer Point of Contact email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the party’s address as listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognised express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.

11.6. Waivers; Severability.  Any waivers shall be effective only if made by a writing signed by representatives authorised to bind the parties.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

11.7. Construction.  The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.  As used in this Agreement, the word “including” means “including but not limited to.”

11.8. Force Majeure.  Any delay in the performance of any duties or obligations of either Party (except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outages any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.

11.9. Entire Agreement; Amendment. This Agreement and any applicable Order Form constitutes the complete agreement between the Parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement.  To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of the Order Form or SOW will govern.  It is expressly agreed that the terms and conditions of this Agreement and any Order Form supersede the terms any of Customer’s purchase order.