Protecht Group Marketplace - APAC
Terms and Conditions
The “Protecht Group Marketplace” is an online marketplace for new features or modules (“Packages”) of the cloud-based enterprise risk management software as a service known as “Protecht.ERM”.
Access to and use of the Protecht Group Marketplace is governed by these Protecht Group Marketplace Terms and Conditions (“Terms and Conditions”), which form a legally binding agreement between you (defined in clause 1.1) and Protecht.ERM Pty Ltd (ABN 50 158 878 347) (“Protecht Group” or “we”).
By placing an Order for a Package, or accessing or using the Protecht Group Marketplace, you indicate your assent to be bound by these Terms and Conditions. If you do not agree to these Terms and Conditions, do not place an Order or access or use the Protecht Group Marketplace.
1.1. You. Because all Packages available through the Protecht Group Marketplace are designed for use with Protecht.ERM, in these Terms and Conditions, “you” and “your” refers to the Protecht Group customer with a subscription to Protecht.ERM. You are fully responsible for compliance with these Terms and Conditions by anyone using the Protecht Group Marketplace or placing an Order on your behalf. Any person using the Protecht Group Marketplace or placing an Order on your behalf is binding you to these Terms and Conditions. These Terms and Conditions also apply to you if you are browsing the Marketplace.
1.2. Orders. An “Order” includes any order to subscribe for a Package (including renewals and upgrades) through the Protecht Group Marketplace. By downloading a Package you will be regarded as placing an Order for a Package. All Orders are subject to these Terms and Conditions.
1.3. Marketplace Policies. Your Orders and use of the Protecht Group Marketplace are also subject to Protecht Group’s marketplace FAQs and posted policies, as may be modified from time to time (“Marketplace Policies”), which are incorporated into these Terms and Conditions.
2. Your Orders
2.1. Order details. Your Order will identify the Packages you wish to subscribe for, along with any usage restrictions or other terms associated with any of the Packages. Once you complete your Order, Protecht Group will provide you with access to the applicable Packages.
2.2. Payment. To receive access to a Package, you must have paid for that Package as part of a “Marketplace Plan”, or pay Protecht Group the fees, including all taxes, indicated at the time of your Order. Terms for renewals, including pricing, will be described within the Package’s listing on the Protecht Group Marketplace (or if different, your Order).
2.3. Trial periods. The Protecht Group Marketplace may offer free trial periods for Packages. After expiration of the trial period, if you do not place an Order for the Package, the Package will cease to function and you must cease using the Package.
3. Use of Marketplace Packages
3.2. Services. Protecht Group will provide any other services (including training, consulting, support, advisory, analytics and implementation services) in accordance with the Service Agreement.
3.3. Reservation of rights. Except for any rights expressly granted to you in these Terms and Conditions and in the Service Agreement, all right, title and interest (including intellectual property rights) in the Protecht Group Marketplace and the Packages are reserved and retained by Protecht Group and its affiliates. Packages are provided on a subscription basis, not sold, and you do not acquire any ownership rights in the Protecht Group Marketplace or the Packages.
4. Your Responsibilities
4.1. Representations and Warranties. You (including anyone acting on your behalf) represent and warrant that you have all necessary right, power and authority (i) to enter into and be legally bound by these Terms and Conditions, and (ii) to place any Orders, all without violation of any other agreements or policies.
4.2 Compliance with Law. You must use the Protecht Group Marketplace and Marketplace Packages in compliance with all applicable laws.
4.3. Indemnification. You agree to indemnify, defend (at Protecht Group’s request) and hold harmless Protecht Group, its affiliates, and its and their employees, contractors and agents from any claims by third parties, and any related damages, losses or costs (including reasonable attorney fees and costs) arising out of your breach of these Terms and Conditions, or your infringement of any rights of a third party. You may not settle any such claim without Protecht Group’s prior written consent.
5. Term and Termination
5.1. For Cause. Your rights under these Terms and Conditions will automatically terminate upon your failure to comply with any of the provisions of these Terms and Conditions. In case of such termination, you must cease all use of the Protecht Group Marketplace, and Protecht Group may immediately revoke your access to the Protecht Group Marketplace without notice to you and without refund of any purchases.
5.2. Discontinuation of Marketplace. Protecht Group may terminate these Terms and Conditions without notice to you if Protecht Group, in its discretion, discontinues the Protecht Group Marketplace.
5.3. Effect on Packages. If these Terms and Conditions terminate, your rights to use any previously purchased Packages will survive in accordance with the Service Agreement.
5.4. Survival. The following provisions will survive any termination or expiration of these Terms and Conditions: Clause 3.1 (Service Agreement) (if applicable for continued use of Protecht Group Packages), Clause 3.3 (Reservation of Rights) and Clause 4 (Your Responsibilities) through Clause 7 (General).
6. Important Disclaimers and Limitations of Liability
6.1. Removal of Packages. At any time, Protecht Group may update, modify or remove a Package from the Protecht Group Marketplace in accordance with its applicable policies.
6.2. Interoperability. Protecht Group makes no guarantee that any Packages will work properly with Protecht.ERM or that Packages will continue to work with Protecht.ERM as they change over time. Some Packages rely on hosted or cloud services provided by Protecht Group or third parties, and these Packages may not function properly or may become inoperable if those services are discontinued.
6.3. Disclaimer of Warranties. To the maximum extent permitted by law, Protecht Group offers the Protecht Group Marketplace and all Packages “AS IS” and “AS AVAILABLE”, and Protecht Group hereby disclaims all warranties, whether express, implied or statutory, including but not limited to any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose, relating to the Protecht Group Marketplace or these Terms and Conditions. You may have other statutory rights, in which case the duration of any statutory warranties will be limited to the maximum extent permitted by law.
6.4. Limitations of Liability. To the maximum extent permitted by law, in no event will Protecht Group, its affiliates, or its or their employees, contractors or agents be liable for any direct, indirect, consequential, special, exemplary, punitive or other liability related to the Protecht Group Marketplace or any Packages, including for any loss of use, lost or inaccurate data, failure of security mechanisms, interruption of business or costs of delay. If the foregoing disclaimer of direct damages is not enforceable at law for any reason, in no event will the aggregate liability of Protecht Group, its affiliates, and its and their employees, contractors and agents to you under these Terms and Conditions exceed the amount you paid to Protecht Group for the Package related to your claim.
6.5. Disclaimers and Limitations of Liability for Protecht Group Packages. Clause 6.3 (Disclaimer of Warranties) and 6.4 (Limitations of Liability) do not alter the disclaimers or limitations of liability for Protecht Group Packages in the Service Agreement, which continue to fully apply.
6.6. Basis of Bargain; Failure of Essential Purpose. Protecht Group entered into these Terms and Conditions relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk in these Terms and Conditions, and you agree that such provisions are an essential basis of the bargain between the parties. You agree that the waivers and limitations specified in this Clause 6 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 specified in these Terms and Conditions is found to have failed of its essential purpose.
6.7. Protecht Group Affiliates. You acknowledge and agree that Protecht Group’s affiliates may exercise all rights of Protecht Group under these Terms and Conditions, and that all limitations of liability and disclaimers in these Terms and Conditions apply fully to and benefit Protecht Group’s affiliates.
7.1. Governing Law; Jurisdiction. These Terms and Conditions will be governed by and construed in accordance with the laws of New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the Courts in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
7.2. Changes to Terms. Protecht Group may modify these Terms and Conditions at its sole discretion by posting the revised terms on the Protecht Group website for Australia. You may be required to click to agree to the modified Terms and Conditions in order to continue using the Marketplace, and in any event your continued use of the Protecht Group Marketplace (including any future Orders) after the effective date of the modifications constitutes your acceptance of the modified terms. For clarity, the version of these Terms and Conditions in place at the time of your Order will apply for purposes of that Order. Except as provided in this Clause 7.2, all changes or amendments to these Terms and Conditions require the written agreement of you and Protecht Group.
7.3. Entire Agreement. These Terms and Conditions constitute the entire agreement between the parties with respect to their subject matter and supersedes any and all prior or contemporaneous agreements between the parties with respect to their subject matter. For clarity, this does not limit the Service Agreement, which applies in accordance with Clause 3 above.
7.4. Interpretation. If any provision of these Terms and Conditions is held invalid by a court with jurisdiction over the parties to these Terms and Conditions, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of these Terms and Conditions will remain in full force and effect. Protecht Group’s failure to enforce any provision of these Terms and Conditions will not constitute a waiver of Protecht Group’s rights to subsequently enforce the provision. In these Terms and Conditions, headings are for convenience only and terms such as “including” are to be construed without limitation.
7.5. Assignment. You may not assign or transfer these Terms and Conditions. Protecht Group may freely assign, transfer and delegate its rights and obligations under these Terms and Conditions.
Last Revised: 4 April 2022