Introduction
In this Cogniti Subscription Agreement (this “Agreement”), the University of Sydney (“the University”), provides Cogniti, a software application using generative artificial intelligence technology. The University takes the privacy and security of data seriously (see our Privacy Policy).
1. Background
1.1 The Parties. This Agreement is between the University and the entity (or entities) that’s identified in the relevant Order (“Customer”) or similar document that references this Agreement and is executed by the parties (“Order”) by, for example, signing up for Cogniti in the Azure Marketplace. This Agreement is effective as of the effective date of the first Order entered into between the University and Customer (except as set forth in Section 1.3 below) (“Effective Date”).
1.2 Applicable Terms. This Agreement sets forth the terms and conditions under which the University agrees to provide, and Customer agrees to receive and pay for, access to and use of the Services (defined in Section 2.1 below) described herein and the relevant Order. Capitalised terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement or in an Order.
1.3 Controlling Terms. If there’s a direct conflict between the terms of this Agreement, an Order, the documents will control in the following order: Order and this Agreement.
2. Services and Each Party’s Responsibilities
2.1 Orders and Applicable Services. Each Order will set forth the University offerings (the “Services”) of Cogniti. Each Order constitutes Customer’s binding commitment to purchase the items described on such Order and is incorporated into this Agreement by reference. During the Subscription Term (defined in Section 5 below) set out in the Order, the University shall make available to Customer the Services set forth in such Order under the terms of this Agreement.
2.2 Service and Support Levels. Support may be arranged and purchased separately to the Cogniti managed application. Please contact the University at cogniti@sydney.edu.au to arrange a consultation to discuss your requirements and for further details regarding available support packages, response times, service levels, and applicable fees.
2.3 Customer’s Rights to Use the Services. Subject to the terms of this Agreement, the University hereby grants Customer a limited, non-exclusive, non-transferable, worldwide license during the relevant Subscription Term to access and use the Services and permit the number and type of individual users (“Authorised Users”) specified in the Order to access and use the Services solely for internal purposes of education and institutional operations.. Authorised Users may include Customer’s or Customer’s Affiliates’ (defined below) designated employees, contractors, or consultants.
2.4 Use of the Services by Customer Affiliates and Authorised Users. Customer may permit its Authorised Users, designated Affiliates, and Authorised Users of such Affiliates to access and use the Services pursuant to the terms of this Agreement; provided that additional fees may apply and such allowance does not expand the University’s liability under Section 8 below, the DPA (Data Processing Addendum), and volume of claims, and any claim under this Agreement, an Order, or DPA must be brought by Customer unless an Affiliate has separately signed an ordering document directly with the University for Services. Customer must notify the University of the identity of any Affiliates exercising rights granted to Customer hereunder. Customer is liable for all Affiliates and Authorised Users compliance with Customer’s obligations under this Agreement and the DPA. Customer must take reasonable steps to prevent unauthorised access to the Services, including, without limitation, by ensuring that all access credentials are kept confidential. No Authorised User will share its credentials or permit another individual to circumvent the privileges restrictions pertaining to the Services. Customer is liable to the University for all activity that occurs with Customer’s credentials or otherwise through or in connection with Customer’s or its’ Affiliates or Authorised Users’ accounts, including, without limitation, any unauthorised use or access of the Services through Customer or its’ Affiliates or Authorised Users’ accounts by Customer or any third parties. If Customer discovers any vulnerabilities or breaches related to Customer’s, an Affiliate’s, or an Authorised User’s use of the Services, Customer will: (a) promptly contact the University and provide details of the vulnerability or breach; and (b) cooperate with the University to remediate such vulnerability or breach. “Affiliate” of a party means any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, and “control” (including as used in the terms “controlled by” and “under common control with”) means the ownership, beneficially or of record, of more than fifty percent (50%) of the voting securities of an entity.
2.5 Customer Obligations When Using the Services.
(a) Customer understands that it has control over who are designated as Authorised Users and their specific roles and access rights, the files, information, or other data that’s uploaded, inputted, or otherwise processed in, through, and to the Services (together, “Customer Content”), and the specific purpose of how the Services are configured and used. Accordingly, in addition to Customer’s other obligations under this Agreement, in connection with Customer’s use of the Services, Customer agrees as follows:
(i) Customer will ensure that it has obtained all requisite consents to enable the University to provide the Services;
(ii) Customer will not use the Services in a manner that generates inquiries from a law enforcement or other regulatory agency or triggers such an agency to request the suspension of the Services;
(iii) the Services may not be used to violate system or network security, including, but not limited to, transmitting files or messages containing computer viruses or propagating worms, Trojan horses, or “spyware” programs;
(iv) Customer may not perform any audits, penetration testing, or make any other intrusion attempts on the Services without the University’s prior written consent;
(v) the Services may not be used to transmit any Customer Content that violates or infringes the intellectual property, proprietary, or other rights of third parties, or that is offensive, illegal, or otherwise reasonably objectionable to any person or entity; and
(vi) Customer will not upload any of the following types of information: personally identifiable health information, financial account numbers (such as credit card or bank account numbers), or any other information or combinations of information that falls within the definition of “special categories of data” under applicable European Data Protection Law (defined in the DPA) or “sensitive information” under any other applicable law.
(b) The following describes general use restrictions for the Service. Except as expressly allowed under this Agreement, Customer shall not, directly, indirectly or through its Affiliates, Authorised Users, employees, or independent contractors:
(i) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties the benefit of the Services;
(ii) “frame,” “mirror,” copy or otherwise enable third parties to use the Services (or any component thereof) as an outsourced service;
(iii) allow access to the Services by multiple individuals impersonating a single end user;
(iv) modify or use the Services in a manner that interferes with, degrades, or disrupts the integrity or performance of any of the University services, systems or other offerings, including, without limitation, data transmission, storage, and backup;
(v) use the Services to develop a product or service that competes with any of the University’s products or services;
(vi) circumvent or disable any security features or functionality associated with the Services;
(vii) access the Services or associated data through web scraping or any undocumented process or API; or
(viii) use the Services in any manner prohibited by applicable law or treaties.
2.6 Optional Use of Beta Services. The University may offer a product, service, integration, or other feature available to Customer to try at Customer’s election that is designated as beta, experimental, preview, trial, or other similar description (“Beta Service”). Beta Services are intended for evaluation purposes only and not suitable for production use. Unless otherwise agreed by the parties, use of any Beta Service will expire upon the earlier of: (a) the date provided by the University in an email notice; and (b) the date a version of the Beta Service becomes generally available without the applicable Beta Service designation. The University may discontinue a Beta Service at any time in its sole discretion. Customer understands that Beta Services are under development and may have flaws. As such, all Beta Services are provided “AS IS,” and Sections 6, 7, and 8.2(a) shall not apply to Customer’s use of any Beta Service, except that to the extent a Beta Service processes Customer Confidential Information (defined in Section 9 below) or Personal Data (defined in the DPA) this Section 2.6 shall not limit the University’s obligations under this Agreement regarding compliance with applicable laws and obligations under the DPA and under Section 9 below regarding the confidentiality of Customer Content.
3. Fees and Payment Terms
3.1 Fees and Taxes. In consideration of the rights granted herein and access to and use of the Services, Customer shall pay the University the amounts specified in an Order for the Services provided thereunder (“Fees”). Fees are non-refundable and non-cancellable unless expressly agreed otherwise under this Agreement. Taxes are continually evolving and vary by jurisdiction. As such, Fees specified in an Order are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs, or other amounts attributable to Customer’s execution of this Agreement or purchase or use of the Services (collectively, “Taxes”). Customer is solely responsible for the payment of any applicable Taxes. The University is responsible for any taxes based on the University’s net income, assets, payroll, property, and employees. If the University is required to pay Taxes on Customer’s behalf, Customer shall promptly reimburse the University for all amounts paid.
3.2 Billing and Payment Terms. Fees are payable in Australian Dollars . If Customer reasonably disputes an invoice, Customer must deliver a written statement to the University no later than ten (10) days prior to the due date of such invoice listing all disputed items and providing a reasonably detailed description of each disputed item. In such event, the parties will work together in good faith to resolve any such dispute. If Customer does not so notify the University of its dispute of an invoice within such time period, such invoice is deemed undisputed and the right to dispute such invoice is waived. The University reserves (among other rights and remedies) the right to suspend Customer’s access to the Services if undisputed Fees are not paid when due. Amounts payable to the University shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation. Customer’s failure to pay any undisputed Fees when due shall be deemed a breach of a material obligation under this Agreement.
4. Proprietary Rights and Data Protection
4.1 Rights to Customer Content. As between the parties, any rights in and to Customer Content are retained by Customer. The parties agree that Usage Data (defined as follows) and Feedback (defined in Section 4.4 below) are not considered Customer Content for purposes of this Agreement. As used herein, “Usage Data” means data and other information pertaining to Customer’s use of the Services, including, but not limited to, the number of assets created, the number of users, the number and frequency of interactions with AI, and the number of other interactions with the Services.
4.2 License to Customer Content. Customer, on behalf of itself and all authorised Affiliates, hereby grants to the University a limited, non-exclusive, royalty-free, worldwide license to use, copy, store, modify, distribute, transfer, and display all Customer Content solely for the purpose of providing and improving the Services. Customer understands that to build and deliver a great product, the University improves the Services using Usage Data and aggregated and anonymised Customer Content. Accordingly, notwithstanding the foregoing, in compliance with applicable laws, this Agreement, and the DPA, the University may: (a) during and after the Term, use Usage Data to develop, improve, support, secure, market, and operate the Services, except that any Usage Data shared externally must be aggregated and anonymised and in a format that is not traceable back to Customer; and (b) improve the Services by using Customer Content that has been de-identified, anonymised, or aggregated so that it does not identify Customer, Customer Affiliates, Authorised Users, or any other individual person. The University agrees that once Usage Data and Customer Content are converted to a de-identified, anonymised format (together, “De-Identified Data”), it cannot be re-identified.
4.3 The University’s Proprietary Rights. Customer understands that the Services, AI, and underlying technology are core to the University’s business. As such, all rights (including all ownership rights) not expressly granted to Customer under this Agreement or in an Order are reserved by the University, its suppliers, and licensors. The University and its licensors retain all right, title, and interest in and to the University’s name, logo, and other marks, the Services, any documentation related thereto, all underlying software, De-Identified Data, methodologies, and all components, updates, modifications, derivative works, and manifestations to the foregoing, including, but not limited to, all intellectual property and proprietary rights in the foregoing (including, without limitation, any changes which incorporate any Feedback) (collectively, “the Cogniti Technology”).
4.4 Feedback. Customer and any Authorised User may submit comments, suggestions, ideas, or other feedback to the University related to the Services or any of the Cogniti Technology (together, “Feedback”). Customer hereby grants the University a perpetual and irrevocable license to use and exploit any portion of Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise. Any Feedback provided by Customer is AS IS and the University will not attribute to Customer any Feedback used.
4.5 Data Processing, Privacy, and Security. The Data Processing Addendum (“DPA”) (available at Data Processing Addendum) includes terms required under applicable laws and regulations and contains security-related provisions. The DPA will be updated from time to time to meet the requirements of new Applicable Data Protection Laws (defined in the DPA). The parties agree that the terms of the DPA are hereby incorporated by reference. As described in the DPA, the University will maintain reasonable administrative, technical, and physical safeguards designed to protect Customer Content and any Personal Data processed, stored, collected, or transmitted by the Services. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by the University, the Standard Contractual Clauses (as defined in the DPA) shall apply, as further set forth in the DPA. For purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and an applicable Affiliate’s execution of an Order, shall be treated as its execution of the Standard Contractual Clauses and Appendices.
5. Term and Termination Rights
5.1 Term and Renewals. The term of this Agreement will begin on the Effective Date and shall continue thereafter until all Orders have expired or terminated (“Term”). The term of Customer’s subscription to the Services is set out in the applicable Order (“Subscription Term”). Unless otherwise specified in such Order, Customer’s subscription to the Services shall thereafter automatically renew for additional periods of one (1) month (“Renewal Subscription Term”) terminated by a party.
5.2 Termination without cause. Unless otherwise set forth in an Order, either party may terminate this Agreement or any Order without cause on 60 days’ notice. Termination without cause will not affect Customer’s perpetual licenses, and licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement. Publisher will not provide refunds or credits for any partial subscription period(s) if the Agreement or an Order is terminated without cause.
5.3 Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement or any Order immediately on notice if (i) the other party materially breaches the Agreement or an Order, and fails to cure the breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes Insolvent. Upon such termination, the following will apply:
(a) All licenses granted under this Agreement will terminate immediately except for fully-paid, perpetual licenses.
(b) All amounts due under any unpaid invoices will become due and payable immediately. For metered Offerings billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.
(c) If the University is in breach, Customer will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
5.4 Mutual Right to Terminate For Cause. This Agreement or any Order may be terminated (a) by either party if the other party breaches or violates a material obligation under this Agreement and does not cure such violation or breach within thirty (30) days after receiving written notice thereof from the non-breaching party, (b) as expressly set out in this Agreement, or (c) by either party if the other party provides proof that it made a general assignment for the benefit of creditors, suffered or permitted the appointment of a receiver for its business or assets, or availed itself of or became subject to any bankruptcy, insolvency, reorganisation or liquidation proceedings or other proceedings or relief under any bankruptcy law under any foreign or domestic statute, law, rule or regulation relating to insolvency or the protection of rights of creditors. If Customer terminates this Agreement or an Order due to the University’s uncured breach of a material obligation, then the University will refund Customer a prorated amount of the prepaid monthly subscription Fees paid by Customer to the University for the terminated Service based on the effective date of termination of this Agreement or Order and Customer will not be liable to pay Fees due for the unused portion of the remainder of the applicable Subscription Term. If the University terminates this Agreement due to Customer’s uncured breach of a material obligation, the University will not refund any Fees or other amounts paid by Customer and Customer remains liable for payment of all Fees due under this Agreement and all Orders.
5.5 Effect of Termination. Upon expiration or termination for any reason, Customer and all Authorised Users shall discontinue all use of the Services. If requested by Customer, within thirty (30) days following the expiration or termination of this Agreement and in the format that the University will decide to make available to its customers:
(a) at no charge and subject to the functionality limitations of the Services, the University shall grant Customer limited access to the Services for the sole purpose of exporting Customer Content that’s then-capable of being exported from the Services and that’s then-stored by Customer; or
(b) make available to Customer all Customer Content that’s then-capable of being exported from the Services and then-stored by Customer.
After such thirty (30) day period, the University shall have no further obligation to retain any Customer Content and Customer consents to deletion by the University, except that the University may retain relevant information for financial reporting, compliance, or other legal purposes. Any Customer Content retained by the University for the foregoing reasons will continue to be protected by applicable terms of this Agreement and the DPA and will remain subject to confidentiality obligations set out in Section 9 below. The parties agree that definitions, payment obligations of either party, Sections 1, 2.6, 3, 4.2, 4.3. 4.4, 5.3 and 6-10, and other provisions that reasonably should survive to interpret the obligations or parties’ intent of this Agreement will survive any expiration or termination of this Agreement.
6. Indemnification from third-party claims
6.1 Protection of Customer from third-party claims. Subject to the terms set forth in this Section 6, at its expense, the University will defend Customer and its personnel, successors, and assigns from and against any Customer Claim (defined below) brought against them, and indemnify them for any judgment that a court of competent jurisdiction grants a third-party on such Customer Claim or that’s awarded to a third-party under any the University-approved settlement of any such Customer Claim. A “Customer Claim” means a third-party claim, suit, or proceeding (which, for purposes of Section 6 of this Agreement, a “third-party” is a party that is not a party to this Agreement or Order (or such party’s Affiliate)) alleging that the Services, when used as intended, infringe or misappropriate the intellectual property rights of a third-party. If any portion of the Services is subject to a Customer Claim that prohibits or impairs Customer’s use of the Services, the University will, at its own cost and discretion, either procure for Customer the right to continue the Services or modify the Services so that they are non-infringing but retain materially equivalent functionality. If neither of the foregoing options are available on terms that are commercially reasonable for the University, then the University may terminate Customer’s right to access and use such portion of the Services subject to the Customer Claim, and the University will refund Customer any prepaid Fees for the unused portion of the applicable terminated Service’s Subscription Term, prorated from the effective date of termination.
6.2 Protection of the University from third-party claims. Subject to the terms set forth in this Section 6, at its expense, Customer will defend the University and its personnel, successors, and assigns from and against any the University Claim (defined below) brought against them, and indemnify them for any judgment that a court of competent jurisdiction grants a third-party on such the University Claim or that’s awarded to a third-party under any Customer-approved settlement of any such the University Claim. A “the University Claim” means a third-party claim, suit, or proceeding alleging that the Customer Content, when processed or used as allowed under this Agreement, violate, misuse, infringe, or misappropriate the intellectual property, propriety, privacy, or other rights of a third-party.
6.3 Tendering Claims. A party seeking indemnification hereunder (“Indemnitee”) must promptly notify in writing the other party (“Indemnitor”) of any claim for which defence and indemnification are sought per this Section 6. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defence that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Indemnitor has the sole right to control the defence of any claim for which it is providing indemnification hereunder with its choice of counsel, and such control extends to all negotiations relating to the settlement of any such claim (except that Indemnitor may not make any admissions on Indemnitee’s behalf or settle the claim unless the settlement unconditionally releases Indemnitee of all liability). Indemnitee understands that Indemnitor’s obligations under this Section 6 will be limited to the extent a court of final jurisdiction finds that Indemnitee contributed to the claim. Indemnitee may, at its own cost and expense and election, participate in the defence of any such claim. To the extent covered under this Section 6, indemnification is each party’s sole and exclusive remedy under this Agreement for any third-party claims.
6.4 Mutual Limitation to Obligations. Neither party’s defence or indemnification obligations under this Agreement or the DPA will apply or will be comparatively reduced to the extent the underlying allegation arises from the Indemnitee’s fraud, gross negligence, wilful misconduct, violation of any applicable law, or breach of any of its obligations under this Agreement. The University’s defence and indemnification obligations will not apply or will be comparatively reduced to the extent a Customer Claim arises from: (a) any Customer Content if used by the University as permitted under this Agreement; (b) any modification to the Services made by Customer, its Authorised Users, or a party at the direction of Customer or its Authorised Users without the University’s prior written consent if the Customer Claim would have been avoided in the absence of such modification; or (c) Customer’s use of the Services in breach of this Agreement (any of the foregoing subsections (a) to (c) are “Exclusions”).
7. Warranties and Disclaimers
7.1 Warranties. Each party warrants to the other that it is duly authorised to execute this Agreement and perform the obligations set forth herein. Customer warrants that it has all rights and permissions to grant to the University the license and rights in and to Customer Content expressly set out in this Agreement. The University warrants to Customer that (a) the University will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “virus,” or other computer software routines within the Services that are intentionally designed to permit unauthorised access to or use of either the Services or Customer’s computer systems. In the event of any breach of the foregoing warranties, the University shall, as its sole liability and Customer’s sole remedy diligently remedy any deficiencies that cause the Services, to not conform to the foregoing warranty. If the University determines this remedy to be impracticable, or otherwise is unable to provide a workaround within thirty (30) days of Customer notifying the University of the defect, then Customer may terminate the applicable Order as an uncured material breach in accordance with Section 5.2 above. The University will not be liable to the extent that any breach of the foregoing warranties are caused by any Exclusions.
7.2 Disclaimers. Except for the express warranties set forth herein, the Services are provided on an “AS IS,” “AS AVAILABLE” basis. To the maximum extent allowed under applicable law, the express warranties in this Agreement are the exclusive warranties offered by either party and neither party makes any warranties of any kind, whether express, implied, statutory, or otherwise, an each party disclaims all implied warranties, including, without limitation, any warranties of fitness for a particular purpose, accuracy, quiet enjoyment, title, non-infringement, merchantability and those that arise from any course of dealing or course of performance are hereby disclaimed.
8. Mutual limitations on liability
8.1 Aggregate liability and exclusion of certain types of damages.
(a) TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW AND SUBJECT TO SECTION 8.2 BELOW, THE TOTAL AGGREGATE LIABILITY OF EACH PARTY AND ITS SUPPLIERS AND LICENSORS RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL AND PROVEN DIRECT DAMAGES INCURRED, UP TO THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER HEREUNDER AND ALL ORDERS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES.
(b) TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW AND SUBJECT TO SECTION 8.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
8.2 Exceptions and interpretation.
(a) Notwithstanding anything to the contrary in this Agreement and to the maximum extent allowed under applicable law, Section 8.1 above will not apply to: (i) the amounts incurred by a party when acting as an Indemnitor under Section 6 above; (ii) Customer’s obligation to pay all Fees due under this Agreement and all Orders; or (iii) actual and proven damages incurred by a party arising from the other party’s intentional misconduct, fraud, or gross negligence. Notwithstanding anything to the contrary in this Agreement and to the maximum extent allowed under applicable law, a party’s aggregate liability to the other arising out of claims pursuant to: (A) its breach of its confidentiality obligations as a Receiving Party set forth in Section 9 below, will be limited to actual and proven damages in an amount not to exceed one (1) time the amount paid or payable by Customer to the University under this Agreement during the 12-month period immediately preceding the incident giving rise to the claim; and (B) a breach of its obligations under the DPA will be in accordance with limitation of liability terms set forth in the DPA.
(b) The parties agree that: (i) for purposes of this Agreement and the DPA, a breach of confidentiality claim described in Section 8.2(a)(A) is distinct and separate from a breach of DPA claim described in Section 8.2(a)(B); (ii) the limitations in Sections 8.1(a) and 8.1(b) above are independent of each other; and (iii) the limitation of damages set forth in Section 8.1(a) shall survive any failure of essential purpose of the limited remedy in Section 8.1(b). The parties agree that they have entered into this Agreement in reliance on the terms of this Section 8 and these terms form an essential basis of the bargain between the parties.
9. Mutual confidentiality obligations
9.1 Meaning of Confidential Information. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical, and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the disclosing party (together, “Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Service performance information, pricing terms, and documentation shall be deemed Confidential Information of the University. Customer Content shall be deemed Customer’s Confidential Information.
9.2 Standard of care. Except as expressly authorised herein, the Receiving Party will hold in confidence and not use or disclose any of the Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement, will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and will limit access to Confidential Information of Disclosing Party to those of its employees, contractors, advisors, and agents with a need to know or who need access for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as protective to those in this Agreement. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third-party without breach of any confidentiality obligation; or (d) is independently developed by employees or contractors of the Receiving Party who had no access to such information.
9.3 Compelled disclosure and equitable relief. A Receiving Party may disclose Confidential Information if so required pursuant to a regulation, law, or court order, but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party. The Receiving Party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law in any court of competent jurisdiction.
10. General Provisions
10.1 Notices. Either party may give notice to the other party by means of electronic mail which shall constitute written notice under this Agreement. Customer must give notice to the University in writing to cogniti@sydney.edu.au. The University will provide notice to Customer at the email provided by Customer designated on the most current Order (or then-current address provided by Customer).
10.2 Additional or amended terms. The parties may amend or supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement. The University shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, vendor portal, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by the University and counter-signed by its authorised agent.
10.3 Governing law and venue. This Agreement shall be governed by the laws of New South Wales, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement, an Order, any the Cogniti Technology, or the Services shall be subject to the exclusive jurisdiction of New South Wales.
10.4 Assignment. Neither party may assign its rights or delegate obligations hereunder to a third-party except (a) as may be expressly permitted in this Agreement or an Order, or (b) to a successor-in-interest pursuant to a merger, acquisition, reorganisation, or sale of all or substantially all of such party’s assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ respective successors and permitted assigns.
10.5 Trade mark rights. Customer agrees that the University may identify Customer as a University customer in or on the University’s website or other promotional materials. The University’s use of Customer’s name and logo will be in accordance with any Customer supplied guidelines. Upon Customer’s written request, the University will remove Customer’s name or any Customer marks from the University’s website, and to the extent feasible, any the University marketing materials. Customer owns and retains all rights in and to its name, logo, and other trademarks.
10.6 Third-party systems. Customer understands that while the Services integrates with many third-party systems, the University isn’t responsible for applications, services, software, or other products supplied by a third-party (excluding the University’s licensors and contractors engaged to provide services or technology to deliver the Services) (each a “Third-party Service”) that Customer chooses to integrate with the Service (including, without limitation, a learning management system, third-party communication service ) even if Customer uses the University’s API to enable the integration with a Third-party Service. Use of a Third-party Service is subject to the terms of the agreement between Customer and the Third-party Service provider.
10.7 Miscellaneous. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. Except as otherwise provided in this Agreement, there are no third-party beneficiaries under this Agreement. Any claims brought against the University may only be brought by the Customer entity that executed the relevant Order. No joint venture, partnership, employment, agency, or exclusive relationship exists between the parties as a result of this Agreement or use of the Services. Customer agrees that its purchase of the Services under this Agreement is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by the University regarding future functionality or features. Each party will comply with the export laws and regulations of the Australia and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (a) each party represents that it is not named on any Australian government list of persons or entities prohibited from receiving exports, and (b) Customer will not permit any Authorised Users to access or use the Services in violation of any Australian export embargo, prohibition, or restriction. Customer agrees not to export, re-export or transfer any part of the Services in violation of export laws and regulations.
10.8 Entire agreement. This Agreement, together with all Orders comprises the entire agreement between Customer and the University and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein.