This Agreement outlines the terms under which the Company will provide the Customer with the services detailed in Schedule 2 (Services), including access to the Company's software (Software).
1.1 Definitions
1.2 Interpretations
2.1 Provision of Services
2.2 Technical Support
3.1 Restrictions
Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by SaaS Management Technologies Pty Ltd, the Customer must not:
3.2 Responsibilities
Any breach of the above clause constitutes a breach of this Agreement, and the Company may, at its absolute discretion, terminate or suspend access to and/or use of the Software or the Services, and/or take further actions against the Customer for breach of this Agreement.
With respect to any Services distributed or provided to the Customer for use on the Customer’s premises or devices, the Company hereby grants the Customer a non-exclusive, non-transferable, non-sublicensable licence to use such Services during the Term only in connection with the Services.
The Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with the Company’s standard published policies then in effect (Policy) and all applicable laws and regulations.
The Customer hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Customer’s use of Services. Although the Company has no obligation to monitor the Customer’s use of the Services, the Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
The Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, Equipment). The Customer shall also be responsible for maintaining the security of the Equipment, the Customer account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of the Customer account or the Equipment with or without the Customer’s knowledge or consent.
4.1 Confidentiality
Each party (Receiving Party) understands that the other party (Disclosing Party) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (Proprietary Information of the Disclosing Party).
Proprietary Information of the Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of the Customer includes non-public data provided by the Customer to the Company to enable the provision of the Services (Customer Data).
The Receiving Party agrees:
The foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document:
4.2 Proprietary Rights
The Customer shall own all right, title, and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to the Customer as part of the Services. The Company shall own and retain all right, title, and interest in and to:
Notwithstanding anything to the contrary, the Company shall have the right to collect and analyse data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Company will be free (during and after the term) to:
Both parties agree to promptly destroy any Proprietary Information of the other party that is within their possession when this Agreement is terminated.
No rights or licences are granted except as expressly set out in this Agreement.
5.1 Licence
Subject to clauses 5(a) and 5(b), the Company grants the Customer a personal, non-exclusive, non-transferable, and revocable licence to permit its authorised users to access and use the Software and the Services (including the Intellectual Property contained therein) throughout the world during the Term.
5.2 Ownership
All rights, title, or interest in and to the Software and any information or technology that may be provided to or accessed by the Customer in connection with the use of the Software or Services is owned and will remain owned by the Company or its licensors (Provider IP). Using the Software or the Services does not transfer any ownership or rights, title, or interest in and to the Provider IP.
All Intellectual Property discovered, developed, or otherwise coming into existence as a result of, for the purposes of, or in connection with the Software or the provision of any Services will automatically vest in and are assigned to the Company, including any enhancements, improvements, and modifications to the Provider IP (collectively, Developed IP).
The Customer must not represent to anyone or in any manner whatsoever that they are the proprietor of the Software and/or the Provider IP.
The Customer agrees that the Company may refer to the Customer, their business name, publish their logo and/or trademark, and make reference to the Customer as a customer of the Company in any communications or publications for the purposes of marketing or promoting the Company's business.
6.1 Fees
The Customer will pay the Company the then applicable fees described in the Subscription Plan for the Services and Implementation Services in accordance with this Agreement (Fees).
The Company reserves the right to change the Fees or applicable charges and to introduce new charges and Fees at the end of The Customer's current subscription term, with thirty (30) days' prior notice to you (which may be sent by email).
If the Customer believes that the Company has billed the Customer incorrectly, the Customer must contact the Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Company’s customer support department.
6.2 Invoicing and Payment
The Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company thirty (30) days after the mailing date of the invoice.
Unpaid amounts are subject to an interest charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
Where applicable, any goods or services tax, charge, impost, or duty payable in respect of this Agreement or the supply of any goods or service made under or in respect of this Agreement and any other taxes, duties, or levies will be paid by the Customer at the then-prevailing rate.
7.1 Term
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Subscription Plan, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, Term), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
7.2 Termination
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of non-payment), if the other party materially breaches any of the terms or conditions of this Agreement. The Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, the Company will make Customer Data available to the Customer in a form the Company deems appropriate for a period of thirty (30) days, but thereafter the Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
8.1 Warranty
The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform the Implementation Services in a professional and proper manner.
Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. However, the Company does not warrant that the Services will be uninterrupted or error-free; nor does it make any warranty as to the results that may be obtained from the use of the Services.
8.2 Disclaimer
While all due care has been taken, the Company does not warrant that the operation of the Services will be uninterrupted or error-free or that any third-party components of the Services will be accurate or error-free or that the Services will be compatible with any application, program, or software not specifically identified as compatible by the Company.
To the maximum extent permitted by law, no further warranty, condition, undertaking, or term, express or implied, statutory or otherwise as to the condition, quality, performance, or fitness for purpose of the Software provided hereunder is given or assumed by the Company other than as required at law.
The Company makes no representations, warranties, or guarantees:
8.3 Remedy
The Company’s obligation and the Customer’s exclusive remedy during the Term are limited, at the Company’s absolute discretion, to:
The Customer acknowledges and accepts that it is the Customer’s sole responsibility to ensure that:
The Company will not be liable for any failure of the Services to provide any function not described in the documentation (provided online as part of the Services) or any failure attributable to:
If, upon investigation, a problem with the Services is determined not to be the Company’s responsibility, the Company may invoice the Customer immediately for all reasonable costs and expenses incurred by the Company in the course of or in consequence of such investigation.
The Customer will at all times indemnify and hold harmless the Company and its officers, employees, and agents in respect of any third-party claim for any injury, loss, damage, or expense occasioned by or arising directly or indirectly from:
Except in the case of death or personal injury caused by the Company's negligence, the liability of the Company under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty, or otherwise must not exceed the fees paid by the Customer to the Company for the Services under this Agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not the Company has been advised of the possibility of such damages.
Neither party is liable to the other party in contract, tort, negligence, breach of statutory duty, or otherwise for any loss, damage, costs, or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business, or goodwill.
If a dispute arises out of or relates to the terms of this Agreement, neither Party may commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
A Party to this Agreement claiming a dispute (Dispute) has arisen under the terms of this Agreement must give written notice to the other Party detailing the nature of the Dispute, the desired outcome, and the action required to settle the Dispute (Dispute Notice).
On receipt of the Dispute Notice by the other Party, the Parties to this Agreement must within seven days of the Dispute Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
If for any reason whatsoever, 21 days after the date of the Dispute Notice, the Dispute has not been resolved the Parties must either agree upon the selection of a mediator or request that an appropriate mediator be appointed by SaaS Management Technologies Pty Ltd or his or her nominee and attend a mediation.
It is agreed that mediation will be held in Victoria, Australia.
The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" communications.
If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
In the event that the Dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
Data Collection and Use
The Company collects and uses personal data as described in the Company’s Privacy Policy, available at https://www.subble.com/privacy-policy. The Customer agrees to the Company’s data practices, including data collection, usage, processing, and sharing, as outlined in the Privacy Policy.
Data Security
The Company will implement reasonable administrative, technical, and physical measures to protect the confidentiality, integrity, and availability of Customer Data. The Customer acknowledges and agrees that no system is completely secure and that the Company cannot guarantee the absolute security of Customer Data.
Data Rights
The Customer retains all rights, title, and interest in and to Customer Data. The Customer grants the Company a non-exclusive, worldwide, royalty-free licence to use, copy, store, transmit, and display Customer Data to the extent necessary to provide the Services.
Compliance with Laws
The Company will comply with all applicable data protection and privacy laws in the provision of the Services.
Except as otherwise permitted by this Agreement, no variation to its terms will be effective unless in writing and signed by both the Company and the Customer.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable, or sublicensable by the Customer except with the Company’s prior written consent. The Company may transfer and assign any of its rights and obligations under this Agreement without consent.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in writing signed by both parties, except as otherwise provided in this Agreement.
No agency, partnership, joint venture, or employment is created as a result of this Agreement, and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed if transmitted by facsimile or email; the day after it is sent if sent for next day delivery by a recognised overnight delivery service; and upon receipt if sent by certified or registered mail, return receipt requested.
This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Victoria, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria.
Statement of Work The Company will provide the following services as part of this Agreement, provided the Customer has paid for a subscription:
Service Level Terms
Support Terms
