MogoPlus

MOGOPLUS TERMS AND CONDITIONS (GOOGLE MARKETPLACE ONLY)

These Terms and Conditions are between Mogo Holdings Pty Ltd, a company incorporated and registered in New South Wales, Australia with a registered office at Suncorp Building, Level 5, 10 Shelley Street, Sydney, NSW 2000 and Australian company number 163313862 (“MOGOPLUS” or “Vendor”) and the company that has agreed to use the Service via the Google Cloud Marketplace (“You” or “Client” or “Customer”).

  1. SOFTWARE LICENCE AND PROVISION OF SERVICES

  1. MOGOPLUS agrees to provide You with access to the Service for the Term in accordance with the Service Levels.

  1. You grant to MOGOPLUS the right to integrate its software via its API with any of Your applications (including via scraping) for the purposes of allowing MOGOPLUS to provide the Service.

  1. MOGOPLUS reserves the right to undertake all necessary updates, upgrades, enhancements, releases, corrections, bug fixes, patches and modifications (“Updates”) to the Service for any reason at any time.  Updates may result in the Service being temporarily unavailable to You.

  1. SECURITY

  1. You shall use commercially reasonable efforts to ensure that:

  1. any application used to access the Service aligns to ISO 27001 or other applicable information security standard for data security; and

  1. you will not introduce any publicly known malware to MOGOPLUS’s software.

  1. You will not:

  1. seek to circumvent or violate any data security measures employed by MOGOPLUS; or

  1. attempt breach MOGOPLUS’s data security procedures.

  1. INTELLECTUAL PROPERTY RIGHTS

  1. Nothing in these Terms and Conditions assigns or transfers to You any rights, title or interest (including any Intellectual Property Rights) in MOGOPLUS’s software.

  1. MOGOPLUS grants to You a non-exclusive licence to use the Depersonalised Output Data and the MOGOPLUS Data solely for your internal business purposes during the Term.   MOGOPLUS shall retain all rights, title and interest in the Depersonalised Output Data and the MOGOPLUS Data not expressly granted under this clause 3.2.  Nothing in in these Terms and Conditions shall prohibit MOGOPLUS from using the Raw Data provided that it has been anonymised.

  1. If at any time all or any part of the software used by MOGOPLUS to provide the Service becomes subject to any infringement claim, MOGOPLUS may, at its own expense and option, elect to modify or replace the affected software so that it is non-infringing or obtain a licence to continue to use it

  1. If neither of the options at clause 3.3 are, in MOGOPLUS’s opinion, commercially reasonable, either party shall have the right to terminate these Terms and Conditions by notice in writing to the other party.

  1. FEES, INVOICES AND GST

  1. Your sole payment obligations are contained in the GCP Marketplace Agreement entered into between You and Google.

  1. The Fees outlined in the Google Cloud Marketplace may be adjusted to take effect from the commencement of any Renewal Term on 30 days’ written notice ahead of the start of such Renewal Term.

  1. MOGOPLUS does not provide any refunds should You decide to stop using the Service early.

  1. WARRANTIES AND DISCLAIMERS

  1. MOGOPLUS represents and warrants that:

  1. it will comply with all applicable laws in carrying out its obligations under these Terms and Conditions;

  1. the Service will be provided with due care and skill and good industry practice; and

  1. excluding any data from a third party supplier, any software we use to provide the Service will not infringe the Intellectual Property Rights of any third party.

  1. You represent and warrant that You:

  1. have provided complete and accurate information when creating your account on the GCP Cloud Marketplace and registering to use the Service;

  1. will comply with all applicable laws including, but not limited to, the Data Protection Laws and CDR Rules, in carrying out Your obligations under these Terms and Conditions;

  1. will not share any login details or otherwise enable unlawful access to the Service by any other person or third-party;

  1. will not data mine, scrape, crawl, aggregate, copy, extract or attempt to harvest MOGOPLUS’s software for any purpose;

  1. will not decompile, disassemble, translate, replicate or otherwise reverse engineer any portion of MOGOPLUS’s software, including any source code, object code, algorithms, methods, processes or techniques used or embodied in them including those in respect of categorisation;

  1. have obtained all rights and consents necessary (including any such rights and consents imposed by applicable Data Protection Laws) to access and share the Raw Data with MOGOPLUS and for MOGOPLUS to access, use and process the Raw Data in accordance with these Terms and Conditions; and

  1. will ensure the accuracy and appropriateness of all Raw Data.

  1. Each party warrants and represents to the other that:

  1. it has the full legal capacity, power and authority to enter into these Terms and Conditions;

  1. these Terms and Conditions are legally binding on it and enforceable against it; and

  1. its representatives are properly authorised to undertake the actions that they undertake.

  1. Except as expressly warranted in these Terms and Conditions, and except to the extent prohibited by law, MOGOPLUS disclaims all implied representations and warranties regarding the Service including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose.  MOGOPLUS makes no representation that the Service or the Depersonalised Output Data or MOGOPLUS Data or any third party data collected on your behalf will be error-free, correct, accurate, complete, reliable, secure, current or up-to-date.

  1. You acknowledge that:

  1. You have not relied on any representation made by MOGOPLUS which has not been expressly stated in these Terms and Conditions (including any descriptions or specifications contained in any document made available by MOGOPLUS outside of these Terms and Conditions); and

  1. any data sourced from third parties is made available subject to any disclaimers and limitations as may be notified by MOGOPLUS to You and You will not interfere with the provision of such data or act in any way to cause MOGOPLUS to be in breach of its agreements with such third parties.

  1. INDEMNITY

  1. You indemnify MOGOPLUS, MOGOPLUS’s Affiliates and each of their respective directors, officers, contractors, authorised representatives, agents and employees from and against any claim or loss (including as a result of any third party claim against MOGOPLUS) that MOGOPLUS may suffer arising out of or in connection with a breach of any of clauses 10 or 11.

  1. MOGOPLUS indemnifies You, Your Affiliates and each of and their respective directors, officers, contractors, authorised representatives, agents and employees from and against any claim or loss (including as a result of any third party claim against You that You may suffer arising out of or in connection with a breach of any of clauses 5.1.3, 10 or 11.

  1. SUSPENSION AND FORCE MAJEURE

  1. MOGOPLUS may, in its sole discretion, suspend access to the Service without liability to You:

  1. if You are in breach of these Terms and Conditions;

  1. if an event of Force Majeure occurs; or

  1. if it has any reasonable systems or security concerns; or

  1. due to any scheduled or emergency maintenance, system updates or upgrades to the Service (but will endeavour to undertake any scheduled outages outside of working hours).

  1. MOGOPLUS will give as much notice to You of any suspension as it considers reasonable in the circumstances.

  1. TERMINATION OF THESE TERMS AND CONDITIONS

  1. These Terms and Conditions shall commence on the Start Date and continue for the Term after which it shall automatically renew for additional periods of 12 months (each a “Renewal Term”) unless terminated by either party on 2 months’ written notice prior to the commencement of a Renewal Term.

  1. These Terms and Conditions may be terminated by either party immediately on written notice to the other if:

  1. the other party materially breaches any of its obligations under these Terms and Conditions (including non-payment of Fees) and such breach remains uncured for fifteen (15) days following receipt of written notice by the non-breaching party; or

  1. the other party is insolvent or subject to a winding up petition.

  1. These Terms and Conditions may be terminated by MOGOPLUS on written notice to You if MOGOPLUS no longer has access to data from third parties that is required to provide the Service.

  1. Termination of these Terms and Conditions shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms and Conditions and the right for MOGOPLUS to recover any outstanding Fees.

  1. Upon termination of these Terms and Conditions for any reason, Your access to the Service shall terminate immediately.

  1. Any clauses intended by their nature to survive termination or expiration shall survive.

  1. LIMITATION OF LIABILITY

  1. Notwithstanding any other clause in these Terms and Conditions but subject to clause 9.3, each party’s maximum aggregate liability to the other party and its Affiliates for any claim or loss arising directly or indirectly in connection with these Terms and Conditions shall be capped at the amount of Fees actually paid by You for the Service in the 12 months preceding the date of the claim.

  1. Notwithstanding any other clause in these Terms and Conditions but subject to clause 9.3,  neither party shall be liable to the other party or its Affiliates for any consequential, special, incidental, or indirect damages or loss of profits arising from or related to these Terms and Conditions, under any cause of action or theory of liability and irrespective of whether the party has been advised of the possibility of any such loss or damage.

  1. Nothing in these Terms and Conditions shall limit or exclude either Party’s liability for death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation, or any matter which cannot be limited or excluded by law.

  1. CONFIDENTIALITY

The parties agree to treat all information that should reasonably be considered as confidential, including, without limitation, trade secrets, technology, information relating to business operations and strategies, and information relating to customers, pricing and marketing (“Confidential Information”) in the strictest confidence.  Neither party shall disclose any Confidential Information unless they have received the prior written consent of the other party, it is required by law or an applicable regulator, or the information is already in the public domain.

  1. DATA

  1. The parties shall comply with all Data Protection Legislation in connection with Personal Data processed under these Terms and Conditions and in accordance with Schedule 2.

  1. MOGOPLUS does not own and will not sell any Personal Data.

  1. MOGOPLUS will not sell the Depersonalised Output Data or the Depersonalised Raw Data.

  1. MOGOPLUS shall own the MOGOPLUS Data, the Depersonalised Output Data and the Depersonalised Raw Data.

  1. You will own the Client Processing Logic.

  1. MOGOPLUS shall ensure that access to the Raw Data is limited to those employees, subcontractors and subprocessors who need access to it in order to provide the Service. All such employees, subcontractors and subprocessors are subject to obligations of confidentiality.

  1. MOGOPLUS may collect and analyse data regarding the Client’s use of the Service. This data may be used by MOGOPLUS for its own business purposes.

  1. AUDIT RIGHTS

  1. The Client agrees to maintain complete and up-to-date records in respect of its use of the Service (“Records”) for a period of 7 years after the termination of these Terms and Conditions.

  1. MOGOPLUS shall have the right to audit the Records for the sole purposes of determining compliance with these Terms and Conditions.  If an audit discloses any breaches of these Terms and Conditions, then MOGOPLUS shall be entitled to reimbursement for its reasonable audit costs.

  1. INSURANCE

Both parties shall maintain appropriate levels of professional indemnity and public liability insurance during the Term.

  1. MISCELLANEOUS

  1. All notices shall be in writing and delivered by email to the address of the other party’s primary point of contact

  1. These Terms and Conditions constitute the entire agreement between the parties about its subject matter.

  1. No variation of these Terms and Conditions will be binding unless it is in writing and signed by the Parties.

  1. Neither party may assign these Terms and Conditions without the other party’s prior written consent (not to be unreasonably withheld) provided that assignments incidental to a sale of all or substantially all assets by either party shall not require any such consent and, in the case of MOGOPLUS, assignment to an Affiliate shall not require any such consent.  MOGOPLUS shall have the right to subcontract any of its obligations under these Terms and Conditions provided that MOGOPLUS remains solely liable for the provision of the Service.

  1. If any clause is held by a court to be unenforceable, that clause shall be deleted from these Terms and Conditions.

  1. A party’s delay to pursue remedies for a default does not amount to a waiver of any obligation of the other party.

  1. Nothing in these Terms and Conditions will be taken as giving rise to a relationship of employment, agency, partnership or joint venture.  Each party to these Terms and Conditions is an independent contractor and neither party has any authority to bind the other.

  1. These Terms and Conditions will be governed by and construed in accordance with the laws in force in New South Wales, Australia. Each Party submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

  1. DEFINITIONS

Affiliate means any business entity from time to time controlling, controlled by, or under common control with, either party.

Business Day means a day which is not a weekend or public holiday in Australia.

Business Hours means 8am to 6pm on a Business Day.

CDR Rules means the Competition and Consumer (Consumer Data Right) Rules 2020, as amended from time to time.

Confidential Information shall be as defined in clause 10.

Client Processing Logic means any bespoke logic that the Client requests MOGOPLUS to apply to the processing of the Raw Data and the MOGOPLUS Data.

Data Controller means the person who, alone or jointly with others, determines the purposes for which and the manner in which any Personal Data are processed.

Data Processor means any person (other than an employee of a Data Controller) who processes Personal Data on behalf of a Data Controller.

Data Protection Laws means the Privacy Act 1988 (Cth), Directive 95/46/EC including as implemented by the Data Protection Act 2018, Regulation (EU) 2016/679, and any other laws relating to the processing of Personal Data under these Terms and Conditions including the Privacy and Electronic Communications (EC Directive) Regulation 2003 and all related regulations, guidance and codes of practice issued from time to time by a relavant data protection supervisory authority.


Data Subject shall be as defined in the Personal Data definition.

Depersonalised Output Data means the data that is output from the Service that is derived from the Raw Data and MOGOPLUS Data solely to the extent that (i) it is based on Client Processing Logic and (ii) it does not contain Personal Data.

Depersonalised Raw Data means the Raw Data after excluding all Personal Data.

Fees shall be as set out in the Listing.

Force Majeure means any circumstances beyond a Party's control including strikes or industrial disputes, acts of God, acts of government, refusal of licence, failures or outages of any utilities (including telecommunications and data communication equipment or services), denial of service attacks, fire, explosion, floods, cyclone, tsunami or other extreme weather events, aircraft unserviceability or unavailability, war, terrorism or civil disturbance, or impossibility of obtaining material and/or data.

GCP Marketplace Agreement means the terms between Google, as Google is defined under such agreement, and the Client, governing the Client’s use of the GCP Cloud Marketplace, including the terms described at https://cloud.google.com/terms/marketplace/launcher?hl=en

Google Cloud Marketplace means the online platform operated by Google that allows the procurement or deployment by customers of software or services.

GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.

Intellectual Property Rights means patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Listing means the page in Marketplace that describes the Service.

MOGOPLUS Data means any data that is output from the Software that is derived from the Raw Data, provided that (i) it is not Depersonalised Output Data, and (ii) it does not contain Personal Data.

Service means the service offered by MOGOPLUS as described in the Listing.

Service Levels means the Service Levels at Schedule 1.

Personal Data means any information relating to an identified or identifiable individual.

Raw Data means all data provided by You to MOGOPLUS relating to end users.

Records shall be as defined in clause 12.1.

Security Breach shall be as defined in paragraph 2.1.4 of Schedule 2.

Start Date shall be the date You first have access to the Service

Taxable Supply has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.

Term means the applicable subscription term purchased for the Service or, if earlier, the period of time until theseTerms and Conditions are terminated.

Territory means Australia.

Updates shall be as defined in clause 1.3.

 


SCHEDULE 1

SERVICE LEVELS

 

MOGOPLUS Services availability and uptime

MOGOPLUS Services will be available 99.5% of the time. MOGOPLUS shall not be liable for any issues with the Services as a result of issues relating to accessing data via third parties or issues with third party systems not in its control. 

MOGOPLUS Support

Support

Any Client user may log a support request via the web-based ticketing system or email on a 24x7 basis. MOGOPLUS shall process support requests using a ticketing procedure so that each query shall receive a ticket number and may be tracked until it is satisfactorily resolved.

Classifying a Support Incident

MOGOPLUS Support shall identify the severity of the support request, based on the evidence provided by the Client and the definitions in the below table. All new support cases are created, by default, as Severity 3. 

If the Client believes that the support request should be classified as something other than Severity 3, it is recommended that the Client raises the request with Support via email to request a higher severity level to reduce delays in the initial response.

Upgrade/Downgrade of Severity Level

If, during the support request process, the issue either warrants assignment of a higher severity level than currently assigned or no longer warrants the severity level currently assigned based on its current impact on the production operation of the Services offering, then the severity level will be upgraded or downgraded by MOGOPLUS Support accordingly to the severity level that most appropriately reflects its current impact.

Services Support Target Response Times

The times set forth below are response times to a ticket logged via our ticketing system or by email. A resolution may consist of a fix, workaround, service availability or other solution.

Severity Level

Definition

Target Resolution Times

Level 1

Loss of all MOGOPLUS Services and all functionality to a Client. The situation halts Client business operations and no procedural workaround exists.

Business Hours: Within 4 hours

Outside Business Hours: within 7 hours

MOGOPLUS will provide continuous efforts to resolve a Severity 1 error until a workaround or resolution can be provided or until the incident can be downgraded to a lower severity level.

Level 2

Significant and prolonged reduction in the performance of Services to some Clients, however Services and functionality still present. 

Within 12 hours. If a workaround is not available, reasonable efforts will be made to release an emergency patch to resolve or mitigate the issue or to allow the severity level to be reduced.

Level 3

There is a partial, non-critical loss of use of the MOGOPLUS Services with a medium-to-low impact to the Client. Loss of Services and functionality to a group of end-users, but not to all end users emanating from the Client.

2 - 4 Business Days

Level 4

Enquiry regarding a routine technical issue; information requested on application capabilities, navigation, best practice or configuration, a bug affecting a small number of users and an acceptable workaround is available.

2 weeks

Service Deprecation

In order to provide our clients with the best performance and technology, we have to update our services every now and then. Most times the updates occur in the background, with minimum impact to our clients. However, there may be infrequent instances where client will need to migrate to improved services.  

To ensure a smooth transition, we will communicate with you via email with an intention announcing the intended deprecation, with the proposed deprecation time frame, next version release schedule (if any), and additional information like support, contact information, etc. 

Once deprecation notice is given, we reserve the right to switch off a given service 6 months thereafter.

 


SCHEDULE 2

Data Processing Addendum

  1. DEFINITIONS & INTERPRETATION

Where there is any inconsistency between the terms of this Schedule and any other term of these Terms and Conditions, the terms of this Schedule shall take precedence.

  1. PROCESSING PERSONAL DATA

  1. The parties acknowledge that, for the purposes of these Terms and Conditions, You are a Data Processor and MOGOPLUS shall be a Sub-Processor in relation to the Personal Data.

  1. Each party warrants that it shall:

  1. maintain such records in relation to the processing of the Personal Data as may be required under applicable Data Protection Laws, and, on request, make those records available to any supervisory authority or government authority;

  1. provide such information as may reasonably be required by the other party to comply with its obligations under this Schedule; and

  1. on request, co-operate with any supervisory authority or government authority in relation to the processing of Personal Data pursuant to these Terms and Conditions.

  1. MOGOPLUS WARRANTIES

  1. MOGOPLUS warrants that it shall:

  1. only process the Personal Data as required to provide the Service and in accordance with the reasonable lawful instructions of You;

  1. implement appropriate technical and organisational measures to ensure a level of security appropriate to the risks that are presented by processing Personal Data in accordance with the requirements of ISO 27001 (in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Data), taking into account the state of the art, and the nature, scope, context and purposes of the processing of Personal Data, as well as the risk of varying likelihood and severity for the rights and freedoms of the Data Subjects;

  1. provide You, on request, a written description of the technical and organisational measures implemented pursuant to paragraph 2.1.2;

  1. in the case of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Data arising from any act or omission of MOGOPLUS or any of its sub-contractors (a "Security Breach"):

  1. notify You without undue delay and, where feasible, not later than 48 hours after having become aware of the Security Breach; and

  1. provide You, on request and at MOGOPLUS’s cost, with such information and co-operation as may reasonably be required in relation to such Security Breach.

  1. promptly, and no later than 24 hours after receipt, notify You in writing if it receives:

  1. any complaint, notice or communication from any supervisory or government body which relates to the processing of the Personal Data or to either party's compliance with applicable Data Protection Laws; and

  1. any request made by a Data Subject which relates to the Personal Data, which may include any Data Subject request to know whether their Personal Data is being processed, for access to their Personal Data or for rectification, deletion or erasure of their Personal Data;

  1. subject to paragraph 2.2, provide You, on request, with such information and co-operation, as may reasonably be required in relation to any complaint, notice, communication or request which is notified to the Client pursuant to paragraph 2.1.5; and

  1. subject to paragraph 2.2, provide to You, on request, such other assistance as may reasonably be required by the Client to comply with its own obligations under applicable Data Protection Laws in relation to their use of the Service.

  1. Any assistance provided by MOGOPLUS to You pursuant to paragraphs 2.1.6 and 2.1.7 shall be at MOGOPLUS’s cost and expense (except where arising as a result of any breach or alleged breach of Data Protection Laws by You).