Customer Agreement

1. access and use the Service; and
2. permits its End Users to access and use the Service,
3. to auto-provision, and deploy Customer Software into, the Cloud Environments during the Subscription Term, subject to and in accordance with the Agreement (including any usage limitations specified in the Order).

1. access, use, or otherwise exploit the Service, except as permitted under clause 1.1;
2. reverse engineer, decompile or disassemble the Service, view or gain access to the source code to the Service, or use the Service to provide any product or service that is an alternative, substitute or competitor to the Service;
3. copy, develop any modification, enhancement, derivative work or other development of the Service or incorporate any Customer, End User or third party material into the Service (except Customer Material as expressly permitted under the Agreement);
4. upload to the Service any material that is unlawful, harmful, malicious, threatening, defamatory, obscene, infringing, offensive, sexually explicit, violent or discriminatory;
5. remove any product identification, proprietary, trade mark, copyright or other notices applied to or contained in the Service;
6. access or use the Service by any unauthorised means, including using any bot, script, spider, crawler, scraper, or automated device; or
7. allow any person (other than authorised End Users) to access or use the Service for any purpose without Nitric's consent.

1. all Customer Software has been developed using the Nitric Development Framework;
2. all Customer Software is properly coded, supported and maintained and free from errors, defects and branching issues;
3. the Customer Software Repository and Cloud Environments are properly configured and connected to the Service in accordance with Nitric's APIs for the Service at all times during the Subscription Term; and
4. it obtains and maintains all hardware, software, services and network connectivity necessary to access and use the Service at all times during the Subscription Term.

1. ensuring that the Service is accessed and used strictly in accordance with the Agreement;
2. each act and omission of End Users as though it were an act or omission of Customer;
3. ensuring that Customer's, and each End User's, access and use of the Service, and all Customer Software uploaded to the Service, complies with all applicable laws, regulations and contractual obligations;
4. obtaining all consents, licences and approvals necessary to lawfully Process any Customer Material (including those protected by Intellectual Property Rights, confidentiality or privacy) uploaded to the Service;
5. ensuring that the Cloud Environment is secure, scalable, compatible with the Customer Software and otherwise fit for Customer's requirements;
6. implementing all steps and controls necessary to secure and keep confidential all user credentials issued to Customer and its End Users; and
7. all dealings with its End Users and must ensure that no End User makes any Claim against Nitric in connection with the Service, Support Services, Professional Services or the Agreement.

1. Nitric has no control over, and is not responsible for, any Third Party Material;
2. Third Party Material is provided directly to Customer by the relevant Third Party Material provider, does not form part of the Service and is not governed by the Agreement;
3. Customer is solely responsible for entering into, and complying with, its own agreement with each Third Party Material provider necessary for Customer's proposed use of the Service;
4. Customer uses all Third Party Material at its own risk and that (as between Customer and Nitric) Customer is solely responsible for all costs, Claims and Losses relating to Third Party Material; and
5. Third Party Material is subject to change, suspension, termination or discontinuation by at any time and without notice by the Third Party Material provider (and that this may cause the Service to cease to be compatible).

1. Customer's breach of the Agreement, including its responsibilities under this clause 2; or
2. Customer Material or Third Party Materials.

1. upon renewal of, or change to, Customer's subscription; and
2. at any other time provided that the increased Fees will only apply to Orders entered into after the date of the Fee increase.

1. suspend Customer's right to access and use the Service; and
2. charge interest at a rate of 2 percent per annum above the current published overdraft rate of the Commonwealth Bank of Australia,
3. in each case, from the due date for payment until the date that payment is made by Customer.

1. pay to Nitric all additional Fees payable in respect of any excess use (at Nitric's then current list prices) in addition to Nitric's reasonable audit costs; and
2. take all other steps required to remedy the breach of the Agreement and prevent its recurrence at Customer's own cost.

1. infringement or unauthorised use of the Service by any person, including any End User; or
2. Claim by any person that use of the Service in accordance with the Agreement infringes the Intellectual Property Rights of any person.

1. procure the right for Customer to continue using the Service;
2. modify the Service such that it no longer infringes the relevant Intellectual Property Rights; or
3. terminate the Agreement and provide Customer with a refund of any Fees paid in advance for use of the Service after the effective date of termination.

1. grants Nitric, its sub-processors and their respective personnel a licence to Process the Customer Material (including all Intellectual Property Rights therein); and
2. warrants that it has obtained all consents, licences and approvals from third parties necessary to enable Nitric, its sub-processors and their respective personnel to Process the Customer Material,
3. in each case, as necessary to provide the Service, Support Services, any Professional Services and as contemplated by the Agreement.

1. not disclosing the Customer Material except to its sub-processors and their respective personnel for the purpose of performing the Agreement; and
2. maintaining appropriate business continuity and disaster recovery measures for the Service, provided that Customer remains responsible for regularly downloading and backing up its own Customer Material using the Service.

1. that party must promptly notify the other party in writing, including in such notice all known details of the actual or suspected Data Breach;
2. Nitric must provide Customer with information and assistance reasonably required by Customer to investigate and assess the actual or suspected Data Breach (at Customer's cost);
3. Customer is solely responsible for determining whether the actual or suspected Data Breach is notifiable under Privacy Laws, subject to clause 6.2(e);
4. Customer must not reference Nitric in any notification or communication relating to the actual or suspected Data Breach without Nitric's prior written approval as to the form and content of the reference; and
5. Nitric may make a notification or communication about the Data Breach if Customer fails to do so and Nitric is required to do so under applicable Privacy Laws.

1. use data relating to Customer's and End User's use of the Service for billing, capacity planning, compliance, security, integrity, availability, providing and improving the Service; and
2. freely create, use, disclose and Process analyses, materials, data, insights, works and other things derived from (wholly or partly) use of the Service and the Customer Material in anonymised and aggregated form such that neither Customer nor End Users are identifiable.

1. to the Affiliates, personnel and professional advisers of the Recipient that need to know the Confidential Information for the purposes of the Agreement and that are subject to binding obligations of confidence at least as stringent as those set out in this clause;
2. to the extent required by law or the rules of any stock-exchange; and
3. with the prior written consent of the Discloser.
4. To avoid doubt, either party may make public statements about the existence of the Agreement and the fact that it is a supplier or customer of the other (as applicable), including referencing the other party's name and logo, without being in breach of this clause.

1. CONTINUOUS, FREE FROM ERRORS, OMISSIONS, DEFECTS, SECURITY RISKS OR VULNERABILITIES;
2. FIT FOR ANY PURPOSE OR MEET THE REQUIREMENTS OF CUSTOMER OR ANY END USER.

1. any IP Claim;
2. any breach of clause 5.2, 6 or 7 by Nitric,
3. in each case, except to the extent that the Claim or breach is caused or contributed to by Customer, End Users or any Customer Materials or Third Party Materials.

1. any Claim that any Processing of the Customer Material infringes the Intellectual Property Rights or rights in information of a third party;
2. any breach of clause 1.2, 5.2, 6 or 7 by Customer,

in each case, except to the extent that the Claim or breach is caused or contributed to by Nitric

1. promptly notifying the indemnifying party of the third party Claim;
2. permitting the indemnifying party to control the defence of the third party Claim; and
3. providing (at the indemnifying party's cost) all information and assistance reasonably requested by the indemnifying party in connection with the defence of the third party Claim.

1. clause 4.4 and 8.3 sets out Customer's sole and exclusive remedy in respect of the matters indemnified by Nitric; and
2. clause 8.4 sets out Nitric's sole and exclusive remedy in respect of the matters indemnified by Customer.

1. UNDER ANY INDEMNITY IN CLAUSE 8.4;
2. TO PAY FEES THAT ARE DUE AND PAYABLE; OR
3. FOR ANY MATTER IN RESPECT OF WHICH LIABILITY MAY NOT BE LIMITED AT LAW.

1. during any period in which Customer is in breach of the Agreement; or
2. to prevent or mitigate actual or suspected illegal activity, damage to Nitric's systems, or threat to the integrity of the Service.

1. commits a material breach of the Agreement and fails to remedy that breach within 14 days of receipt of a notice specifying the breach and requiring it to be remedied. Any breach by Customer of clauses 1.1, 1.2, 2.1, 3.2, 5, or 7 is a material breach for the purposes of this clause;
2. becomes subject or threatens to become subject to, any form of insolvency or bankruptcy proceeding, appoints a liquidator, receiver or administrator, enters into an arrangement with its creditors, ceases to trade or do business in the ordinary course or is otherwise unable to pay its debts as and when they fall due.

1. all rights to the Service granted under the Agreement cease immediately and Customer must immediately cease using the Service;
2. Nitric has no further obligation to retain the Customer Material, provided that Nitric permits Customer to access the Service for the sole purpose of downloading the Customer Material for a period of 30 days following expiry or termination; and
3. Customer must immediately pay Nitric all Fees due and payable as at the date of termination or expiry and, if Nitric terminates pursuant to clause 10.3, all Fees payable for the remainder of the Subscription Term.

1. 30 days following of the amendment to this Customer Agreement; and
2. the next renewal date of Customer's subscription.

1. assigning its rights under the Agreement to its Affiliates;
2. assigning or novating the Agreement in connection with any solvent amalgamation, reconstruction, restructure, sale of shares, assets, raise or financing of Nitric and/or its Affiliates; and
3. subcontracting its obligations under the Agreement to third parties, including Affiliates.