Customer Agreement

Effective starting 1 August, 2023

This Agreement is a legal agreement between you and Octopus Deploy which sets out the terms and conditions of our supply of, and your access to, our Products. Capitalized terms have the meaning given to them in Section 19.

By (a) clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of placing an Order; (b) using or accessing our Products; or (c) otherwise indicating your acceptance (for example, by signing and returning a copy of an Order or these terms), you agree to be bound by the terms of this Agreement. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANY OTHER PERSON OR ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO DO SO ON BEHALF OF THAT PERSON OR ENTITY, AND A REFERENCE TO “YOU” IN THIS AGREEMENT SHALL BE A REFERENCE TO THAT PERSON OR ENTITY.

1. What this Agreement covers.

1.1. Scope. This Agreement (comprising this Customer Agreement together with our Policies and Product Terms) governs all Orders that you place with us. If there are any discrepancies or inconsistencies between:

(a)           this Customer Agreement;

(b)           any applicable Product Terms;

(c)            our Policies; and

(d)           your Order,

the document higher in the above list shall prevail unless otherwise specified.

1.2. Affiliates. Your Affiliates shall be entitled to make full use of our Products to the same extent as if they were you. You remain responsible and liable for your Affiliates’ use of our Products as if their acts or omissions were your own.

1.3. End users and representatives. You may authorize end users or representatives to access or use Products on your behalf. Your authorized users may be required to accept additional terms as between us and them (for example, in relation to confidentiality or acceptable usage) in order for your authorized users to access or use the Products. You remain responsible or liable for your authorized users’ access and use of our Products as if their acts or omissions were your own.

2.  Placing and managing Orders.

2.1. Account administration. You must register an Account with us at our website in order to place and manage your Order(s). You must keep your Account information accurate, complete, and up to date. We will send notices, statements, and other information to you by email or through your Account. You are responsible for keeping the login details for your account secure and confidential and for preventing any unauthorized access to your Account. You are responsible for all actions taken through your Account, including all Order(s) made, modified, or managed, through your Account. We are not responsible for any unauthorized access or use of your Account or any acts or omissions of any persons whom you have authorized to access your Account on your behalf.

2.2. Placing Orders. An Order will be created by you through our website, or by requesting an invoice from us. Your Order will provide information including:

(a)           the name of the Product(s) you are purchasing or licensing;

(b)           the fees payable for the Product and the currency, means, and time for payment;

(c)            the scope of your permitted use; and

(d)           the Order Term. If the Order is silent as to the Order Term, the Order Term shall be as specified in the applicable Product Terms and Policies.

An Order is not binding on either of us until we accept the Order in and provide you access to the Product(s) specified in the Order. For the avoidance of doubt, your Order is subject to the version of this Agreement in effect at the time of the Order.

2.3. Payments. You must pay for your Order at the time of placing or renewing your Order unless otherwise agreed. Payments shall be in the currency specified in the Order, or, if not specified, in United States Dollars. You consent to and accept responsibility for all related charges (including, in the case of renewals, recurring charges) to your applicable payment method without further authorization from you and without further notice unless required by law.

2.4. Taxes. Unless otherwise specified by us, the fees payable under each Order or any quotation or invoice are net and do not include any taxes, duties, excises, or other payments. We may charge you an amount equal to the amount of such taxes or duties in addition to any fees owed under the Order. If your relevant tax authority requires you to withhold taxes, you remain liable to pay us the full amount listed on the Order or any invoice issued thereunder, grossed up as if the amount to be withheld was an amount payable in addition to the amount payable net to us. If you require a revised quotation or invoice recording such additional sums payable, it is your responsibility to notify us and we will provide you with the revised quotation or invoice.

2.5. Renewals. Unless otherwise specified in your Order or configured in your Account, your Order shall automatically renew for the original period specified in your Order or twelve (12) months (whichever is lesser), unless you give us notice of your intention not to renew at least thirty (30) days prior to expiry of the then-current term. The foregoing shall not apply to month-to-month Orders, which shall continue on a monthly basis until terminated. The pricing applicable to any renewal, or on your next month if month-to-month, shall be at our standard pricing as at that date and shall be on our then-current terms in accordance with Section 15. If you do not renew, your right to our Products shall immediately cease upon expiry of your then-current Order. For the avoidance of doubt, (a) each renewal Order shall constitute a separate Order from the original expired Order, and (b) your continued use of our Products following expiry of your then-current Order shall constitute your good and sufficient acceptance of any renewal Order under this Section 2.5.

2.6. Termination. Either party may terminate an Order without cause on thirty (30) days’ notice in writing (or such other period specified in any applicable Product Terms and Policies, or in the Order). You may continue to use the Products supplied under the Order for the remainder of the then-current Order Term. You remain liable for payment of any monies which are or become due and owing during the balance of the then-current Order Term. You are not entitled to any refund, pro rata or otherwise, or credit for affected Orders. If the Order included any discount or credit or right to a future discount or apply credit to a future payment, on termination you will lose any future entitlement to that discount or credit.

2.7. Survival. The following Sections will expressly survive any termination or expiration of an Order: 2.6 (Termination), 2.8 (Survival), 3 (Resellers), 4.5 (Liability of Your Data), 5 (Confidentiality), 6 (Warranty), 7 (Liability), 8 (IP Indemnification by Octopus Deploy) (solely with respect to claims arising from your use of our software during the Order Term), 16 (Entire Agreement), 18 (Law and Jurisdiction), 19 (Definitions), and 20 (Interpretation). The foregoing does not limit the survival of any Section which reasonably survives termination or expiration of an Order by implication or if necessary to give effect to any of the foregoing Sections.

3. Resellers.

This Section 3 applies if you have purchased any Products through a Reseller.

3.1. ​Your Reseller shall place your Order with us (including making any payments or receiving any refunds), and we will supply the Products in accordance with that Order. The accuracy and completeness of that Order is solely a matter between you and your Reseller. You acknowledge and agree that the Reseller's pricing for the Products may be different to our own.

3.2. You are and shall remain liable for any act or omission by your Reseller (including a failure to pay any amount as and when due or any misuse of any Products). Our performance of any obligation under this Agreement through or on request of your Reseller (including any refund we may pay to the Reseller on your behalf) shall be deemed to have been performed for you. For the purposes of Section 7.4 (Liability Cap), any payment made by your Reseller shall be deemed to be made by you.

3.3. Save as otherwise set out in this Section 3, your right to access and use, and our obligations to provide you, the Products, are solely on the terms of this Agreement. The terms of your agreement with your Reseller shall govern your relationship with them and we are not party to or have any obligation or liability under that agreement. Resellers are not authorized to make any modifications to this Agreement or to make any representation on our behalf. Any such modification or representation shall be void and of no effect.

3.4. If your agreement with your Reseller ends for any reason, and you continue to use our Products, these Products shall be supplied on the terms of this Agreement. You shall be solely and directly liable for any ongoing or future obligations previously assumed by the Reseller on your behalf including paying any renewal or other prices at our then-current pricing.

4. Your Data

4.1. Ownership of Your Data. You are responsible for the accuracy and completeness of Your Data. You will retain all right, title and interest in and to Your Data. Subject to the terms of this Agreement, you grant us a worldwide, non-exclusive, royalty-free right to collect, use, transfer and store Your Data solely for the purposes of providing any Product including responding to any support requests.

4.2. Nature of Your Data. You must ensure that Your Data is at all times compliant with our Policies and all appropriate laws and regulations. You warrant that you have the rights and permissions to provide Your Data to us, and that your transfer of Your Data to use does not violate any laws, regulations or the rights of third parties.

4.3. Personally Identifiable Information. You will not submit to us any personally identifiable information (except as necessary for your authorized users to use and access a Product). You will not submit to us any patient, medical or other protected health information regulated by any relevant laws in any country. You shall pay any damages and costs awarded against us in connection with any claim brought by a person whose personally identifiable information you submit to us (except for personal information necessary for your authorized users to use and access a Product).

4.4. Security. We implement and maintain security measures to help protect Your Data from security attacks. However, you acknowledge and agree that as a consequence of the inherent nature of electronic communications networks, Your Data will often be transported over networks that are not owned or operated by us, and that we are not responsible for any of Your Data that is lost, intercepted, altered or stored across such networks, except to the extent caused by our negligence or intentional misconduct. You acknowledge that we are unable to guarantee complete security or confidentiality of Your Data or guarantee that third parties will never be able to defeat our security measures or those of our third-party service providers.

4.5. Liability. For the avoidance of all doubt, we assume no responsibility or liability for Your Data other than described in this Section 4, and you shall be solely responsible for Your Data and the consequences of you using, storing, disclosing or transmitting it. We have no obligation to monitor any of Your Data uploaded to the service.

4.6. Deletion of Your Data. We may remove or delete Your Data 90 days after the termination or expiry of your relevant Order(s), or upon your request.

5. Confidentiality

Either party (as “Recipient”) may receive from the other party (as “Discloser”) Confidential Information of the Discloser relevant to this Agreement or the supply of products or services under this Agreement. This may happen in various ways, including, but not limited to, when these are uploaded or shared through the Products or exchanged for the purpose of supplying the Products. The Recipient agrees:

(a)           that all Confidential Information shall be and shall remain the Discloser’s exclusive property;

(b)           to only disclose the Confidential Information: (i) to the Recipient’s authorized employees, contractors, and agents, and those of its Affiliates, who have a need to know such information in the performance of their work; or (ii) as necessary to explore or consummate an investment into the Recipient, or a reorganization, merger, or acquisition involving the Recipient;

(c)            to inform all such secondary recipients engaged in handling the Discloser’s Confidential Information of the confidential character of the information;

(d)           to keep the Confidential Information confidential;

(e)           not to copy, publish, or disclose Confidential Information to others or authorize others to copy, publish, disclose Confidential Information without the Discloser’s written approval;

(f)             at the Discloser’s option, promptly return to the Discloser or destroy any copies of the Confidential Information upon request and in any event following expiry or termination of the Order(s) to which the Confidential Information pertains. However, the Recipient may keep such copies of the Confidential Information as it may be required by law, or as are saved in its ordinary business backups and archives, provided that those copies remain confidential in accordance with this Section 5;

(g)           to use such information solely for purposes of accepting fulfilling work or services performed hereunder, and for other purposes only upon such terms as may be agreed upon between us in writing; and

(h)           that, in the event any of the information is required to be produced pursuant to a subpoena, court order, valid legal or administrative process, or other operation of law, to the extent permitted by the foregoing:

(i)             the Recipient shall notify the Discloser of such potential disclosure in order that the Discloser may take appropriate action at its own expense to limit or prevent such disclosure; and

(ii)           furnish only that portion of the Confidential Information that has been legally compelled; and

(i)             the unauthorized disclosure of Confidential Information may cause harm or loss to the Recipient for which damages would be an inadequate remedy and, accordingly, the Recipient may take action for injunctive relief against any unauthorized disclosure without burden of proof of actual or anticipated monetary loss or damage.

6. Warranty

6.1. General Warranties. Each of us warrants that we have the legal power and authority to enter into and perform this Agreement. We each further represent and warrant that our performance of this Agreement shall not breach any law or other obligation owed to any third party.

6.2. Product Warranty. We warrant that, during the Order Term, the Products supplied under the Order will, when properly used, perform substantially as described in their Documentation, provided that the Product:

(a)           is properly used on the computer and with the operating system and software environment for which it was designed; and

(b)           is used in accordance with our Documentation.

We do not warrant that the Products are error free, will operate in an uninterrupted manner, will not damage or interfere with your computer operating system and will not damage or interfere with your business or the business of third parties.

6.3. Virus Warranty. We represent and warrant that we will take reasonable commercial efforts to ensure that the Products, in the form and when provided to you, will be free of any viruses, malware, trojans or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and our sole obligation, is to fix or replace the Products promptly upon written notice.

6.4. Remedies during the Order Term. If, during the Order Term, a Product fails to perform as described due to a defect or fault (that is not the result of you having modified the Product without our prior knowledge and authorization or having used it in contravention of the terms of this Agreement or outside its ordinary operating requirements as we have described), we will, at our sole option, and as your sole remedy, repair or replace the Product, provided that you:

(a)           notify us in writing of the defect or fault in the Product during the Order Term; and

(b)           make available all the information that may be necessary to assist us in resolving the defect or fault, including sufficient information to enable us to recreate the defect or fault.

6.5. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6 OR IN ANY PRODUCT TERMS (AND THEN ONLY IN RESPECT OF THE PRODUCT TO WHICH THOSE TERMS APPLY), ALL PRODUCTS ARE PROVIDED “AS-IS”, AND OCTOPUS DEPLOY AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. OCTOPUS DEPLOY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF OCTOPUS DEPLOY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER OCTOPUS DEPLOY NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.3 (VIRUS WARRANTY), THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, IN WHICH CASE: (F) THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW; (G) YOUR ENTITLEMENT TO RELIEF IS LIMITED TO THOSE FORMS OF RELIEF REQUIRED BY STATUTE; AND (H) TO THE EXTENT PERMITTED BY LAW, THE FORM OF ANY RELIEF SHALL BE AT OUR DISCRETION.

7. Liability

7.1.EXCLUSIONS TO LIABILITY. NEITHER PARTY NOR ITS SUPPLIERS OR AFFILIATES WILL HAVE ANY LIABILITY (WHETHER IN CONTRACT, TORT, STATUTE, EQUITY, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY LOSS OF PROFITS, BUSINESS, CONTRACTS, ANTICIPATED SAVINGS, GOODWILL, REVENUE, HARDWARE, SOFTWARE, DATA, OR ANY OTHER INDIRECT, SPECIAL, OR CONSEQUENTIAL LOSS WHATSOEVER, EVEN IF THE PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OR OUGHT OTHERWISE REASONABLY BE AWARE OF THE POSSIBILITY OF SUCH LOSS.

7.2.Your Representations. You acknowledge and agree that:

(a)           the Products have not been developed to meet your individual requirements;

(b)           it is your responsibility to ensure that the facilities and functions of the Products meets your requirements;

(c)            you have made your own independent enquiries and have satisfied yourself of the nature and adequacy of our Products for the purpose for which you have obtained the Products;

(d)           the existence of any minor errors shall not constitute a breach of this Agreement; and

(e)           the provisions of Sections 6 (Warranty), 7 (Liability), and 8 (IP Indemnification by Octopus Deploy) are reasonable and reflected in the price, which would be much higher without those provisions, and you accept such risk.

7.3. Restrictions. Except as otherwise permitted in this Agreement, or by us in writing, you will not:

(a)           intentionally use any Product in any way that could damage our reputation;

(b)           in any way that does not comply with the Documentation; or

(c)            rent, lease, sub-license, loan, translate, merge, adapt, vary or modify any Product, without our express written consent.

7.4. LIABILITY CAP. TO THE EXTENT PERMITTED BY LAW, OUR MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE), UNDER OR IN CONNECTION WITH ANY ORDER IS LIMITED TO THE AMOUNT PAID BY YOU AND RECEIVED BY OCTOPUS DEPLOY UNDER THAT ORDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.

8. IP Ownership; IP Indemnification by Octopus Deploy

8.1. Except as specified otherwise in an Order or Product Terms, we will retain all right, title, and interest in and to all Intellectual Property we own before the Effective Date, or which is developed during an Order Term or otherwise in connection with this Agreement. You may not use, modify, copy, distribute, reverse engineer or otherwise attempt to discover the source code or other components of, or otherwise exploit in any way any of our Intellectual Property unless permitted under this Agreement or any applicable Product Terms or Order.

8.2. If any claim is brought, or you reasonably anticipate that a claim may be brought, against you alleging that your use of the Intellectual Property associated with the Products infringes a patent right granted in the United States, United Kingdom, Australia or a member nation of the European Union or a copyright registered in such a jurisdiction (a “claim”):

(a)           you shall promptly provide us written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice);

(b)           the two of us shall consult together on an appropriate course of action and shall seek to minimize the effect of any claim on each other’s businesses;

(c)           we shall have the right, but not the obligation, to take control of all negotiations and litigation arising out of the claim;

(d)            we will pay any damages and costs awarded against you in connection with any claim, however we are not and you agree not to hold us responsible or liable for any damages, costs, or expenses suffered or incurred by or awarded against you:

(i)             prior to your providing notice of the claim of under Section 8.2(a);

(ii)           arising out of any act or omission by you or any of your Affiliates in respect of the claim without our prior and express written consent, including any admission or concession; or

(iii)         to the extent that any act or omission by you or any of your Affiliates in the course of your or their use of the Product caused or contributed to the infringement of the rights of the third party;

(e)           we shall have the right, at our sole choice, either:

(i)             to negotiate terms for continued use by you of the claimed infringing Product;

(ii)           amend the Product to make it non-infringing; or

(iii)         terminate all affected Orders with immediate effect and in such event, we shall refund to you the purchase price that you paid and any renewal fees pro rated from the date of termination of this Agreement to the date which, but for the Order’s early termination, would have been the end of the Order Term,

(f)           our indemnification obligations in this Section 8 DO NOT APPLY if:

(i)             the total aggregate fees received by Octopus Deploy from you, under any Orders, in the twelve (12) month period immediately preceding the claim, is less than USD $50,000; or

(ii)           you settle or make any admissions with respect to a claim without our prior written consent.

8.3.        THIS SECTION 8 STATES OUR SOLE LIABILITY AND OBLIGATIONS AND IS YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCTS SUPPLIED BY OCTOPUS DEPLOY UNDER THIS AGREEMENT.

9. Transfer of Rights and Obligations

9.1. You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement (including liability for past performance). Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void.

9.2. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.

10. Export

You represent and warrant that you are not in violation of and will not violate any export control laws, regulations or directives in the United States, Australia, the United Kingdom, or in your own country or region (if applicable) by entering into or in the performance of your rights or obligations under this Agreement.

11. Publicity

We may identify you as a customer in our promotional materials. We will promptly stop doing so upon your request via email sent to sales@octopus.com.

12. Notices

Any notice under this Agreement must be given in writing.

We may provide notice to you via email. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing.

You may provide notice to us:

(a)           by post to: Octopus Deploy Pty. Ltd., Level 4, 199 Grey St, South Brisbane, QLD 4101, Australia.; or

(b)           by email to: legal@octopus.com.

Notices shall be deemed given upon receipt if received on a business day in the place of receipt between the hours of 9.00am and 5.00pm. If received outside those times, notices shall be deemed received at 9.00am on the following business day.

13. Waiver

Either party’s failure to insist upon strict performance of any obligations under this Agreement, or the failure to exercise any of the rights or remedies to which either party is entitled under this Agreement, does not constitute a waiver of such rights or remedies and shall not relieve either party from compliance with such obligations.

Our waiver of any default shall not constitute a waiver of any subsequent default.

A waiver of any of these terms and conditions shall not be effective unless it is expressly stated to be a waiver and is communicated to the other party in writing.

14. Severability

If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

15. Changes to this Agreement

15.1. Notice for changes. We may modify the terms and conditions of this Agreement from time to time. Notice of any modifications may be given to you by email or other correspondence, via the Product, or on our website. Together with notice, we will specify the effective date of the modifications.

15.2. Effective Date of Changes. If we make modifications to this Agreement, the modifications will take effect upon your next Order or renewal or extension of your existing Order. In some cases – for example, to address compliance with Laws, or as necessary for new features – we may give notice that such modifications shall become effective during your then-current Order Term. In any event, for the absence of doubt, this Agreement, as modified, shall supersede and replace all prior agreements between us. If the effective date of such modifications is during your then-current Order Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we shall provide a refund pro rata for the balance of the Order Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications.

16. Entire Agreement

This Agreement constitutes the whole of the agreement between us with respect to its subject matter. You agree that you have not relied on any statement, representation, assurance or warranty made by any person (including a third party) in entering into this Agreement. This Agreement supersedes all prior or contemporaneous oral or written communications, proposals and representations between us with respect to the Products or any other subject matter covered by this Agreement.

17. Force Majeure

Neither party is responsible or liable for any omission or delay under this Agreement where the omission or delay is caused by an event beyond the reasonable control of any party, including, but not limited to, act of God, natural disaster, war or invasion, terrorism or act of a public enemy, strikes and industrial disputes, embargo, prohibition, confiscation, act of government authority, or failure of telecommunications or data networks or services.

18. Law and Jurisdiction

Where either party may have a dispute or claim against the other party, each party:

(a)           ​agrees that the Agreement shall be interpreted in accordance with the applicable laws of the Governing Law, without reference to its conflict of laws principles from time to time;

(b)           ​​submits to the exclusive jurisdiction and venue of the Governing Venue, and courts of appellate jurisdiction; and

(c)            ​consents to the enforcement of any judgment of the courts of the Governing Venue (and appellate courts) in any other jurisdiction,

In this Section 18, Governing Law and Governing Venue mean:

19. Definitions

In this Agreement, unless the context requires otherwise:

Account means your account on our website used to place Orders and manage your access to and use of the Products we have supplied you.

Agreement means this Customer Agreement including any Product Terms and Policies.

Affiliate means any body corporate, unincorporated association, or partnership, which directly or indirectly, (a) owns or controls, (b) is owned or is controlled by, or (c) is under common ownership or control with a party, where control means the power to direct the entity’s management or affairs, and ownership means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

Confidential Information means the proprietary and confidential information of a party and / or its Affiliates including, but not limited to, documents, data, technical information, methods and processes, computer programs and scripts, source code, reports, manuals, databases, and data. In your case, your Confidential Information includes Your Data. Confidential Information excludes information which:

(a)           was known to the Recipient before disclosure as evidenced by bona fide written documents;

(b)           is or becomes publicly known through no wrongful act of the Recipient;

(c)            is independently developed by the Recipient; or

(d)           is disclosed to the Recipient by a third party without breach of any obligations of confidentiality.

Discloser means a party disclosing Confidential Information.

Documentation means our Product documentation published on our website, through the Product, or otherwise supplied to you from time to time.

Intellectual Property means all copyright, patent rights and rights and inventions, trademarks, rights in databases, Confidential Information, and other intellectual property rights, however, described, anywhere in the world.

Octopus Cloud means our Octopus Cloud service.

Octopus Server means our Octopus Server application software.

Order means an order created in accordance with Section 2.2 as recorded in an order form, order submission, quote, invoice, and / or other such document recording the particulars of the transaction detailed in that Section.

Order Term means the term during which we will supply and you may use the Products specified in an Order.

Policies means our Privacy Policy, our Acceptable Use Policy, and other policies we may publish from time to time. We may update our Policies from time to time in our sole discretion.

Products means our application software, cloud services, professional services, support services, and any other goods, products, or services, that we may offer on the terms of this Agreement from time to time.

Product Terms or Terms means any terms or policies specific to our supply of a particular Product or which otherwise govern particular requirements of your or our performance of this Agreement, including the Octopus Server Terms, the Octopus Cloud Terms, TAM Services Terms, and Priority Terms.  We may update our Policies from time to time in our sole discretion, in accordance with Section 15.

Recipient means a party receiving Confidential Information.

Reseller means one of our authorized channel partners or resellers.

you means the person, corporation, partnership, or other entity, entering into this Agreement to procure Products from us.

Your Data means any data, applications, configuration settings, content, code, images or material of any type that you upload, submit or otherwise provide us (including via our Products) for any purpose.

We, our, us, or Octopus Deploy, means Octopus Deploy Pty Ltd ABN 69 160 339 186, an Australian company.

20. Interpretation

In this Agreement, unless the context otherwise requires:

20.1. A reference to the singular includes the plural and the plural includes the singular.

20.2. A reference to any contract (including this Agreement) or other instrument includes any variation or replacement of it and as it may be assigned or novated.

20.3. A reference to a law includes subordinate legislation (including regulations) and other instruments under it and any amendment or replacement of any of them.

20.4. A reference to a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority.

20.5. A reference to a person includes their legal personal representatives (including executors), administrators, successors, substitutes (including by way of novation) and permitted assigns.

20.6. A reference to a day or a month means a calendar day or calendar month.

20.7. No party enters into this Agreement as agent for any other person (or otherwise on their behalf or for their benefit).

20.8. The meaning of any general language is not restricted by any accompanying example, and the words “includes”, “including”, “such as”, “for example” or similar words are not words of limitation.

20.9. No part of this Agreement shall be construed against a party merely because the party caused or contributed to the inclusion of that part in this Agreement.

20.10. Headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation.

20.11. Where there are two or more persons in a party each are bound jointly and severally.