This Master Subscription Agreement governs each subscription to a Service entered into by the Licensor of that Service and the person specified as customer in the Order (Customer).

1. Service

1.1 Access and use. Licensor grants Customer a non-exclusive and non-transferable right to:

(a) access and use the Service; and

(b) permit its End Users to access and use the Service,

in each case, via the internet, solely for the Approved Purpose during the Subscription Term, subject to compliance with the terms of the Agreement.

1.2 Service Restrictions. Customer must ensure that:

(a) neither Customer nor any End User accesses, uses, uploads data to, uses the output of, or otherwise exploits the Service, except as permitted under clause 1.1;

(b) neither Customer nor any End User reverse engineers, decompiles or disassembles the Service, views or gains access to the source code to the Service, or uses the Service to provide any product or service that is an alternative, substitute or competitor to the Service;

(c) neither Customer nor any End User copies, develops any modification, enhancement, derivative work or other development of the Service or incorporates any Customer, End User or third party material into the Service (except as expressly permitted under the Approved Purpose);

(d) neither Customer nor any End User uploads or in any way incorporates into the Service any material that is unlawful, harmful, malicious, threatening, defamatory, obscene, infringing, offensive, sexually explicit, violent or discriminatory;

(e) neither Customer nor any End User removes any product identification, proprietary, trade mark, copyright or other notices applied to or contained in the Service;

(f) neither Customer nor any End User accesses or uses the Service by any unauthorised means, including using any bot, script, spider, crawler, scraper, API or automated device, except as permitted under clause 1.1;

(g) no person other than Customer, and its authorised End Users, accesses or uses the Service under Customer’s account; and

(h) it promptly notifies Licensor in writing if Customer wishes to permit a person other than Customer, or its authorised End Users, to access and use the Service.

1.3 Support Services. The Service includes the provision of the Support Services for the duration of the Subscription Term as described in the Order and Support Services Policy. Customer must provide all information and assistance reasonably required by Licensor to perform the Support Services.

1.4 Professional Services. If Customer wishes to purchase Professional Services the parties must agree a SOW. Once executed by both parties, a SOW forms part of the Agreement.

1.5 Evaluation use. If Licensor permits Customer to evaluate the Service prior to purchasing a subscription:

(a) the right in clause 1.1 is limited to access and use of the Service for the evaluation period approved by Licensor in writing (Evaluation Period) solely for Customer’s internal evaluation of the Service (without any right to use the Service for commercial, external or any other purpose);

(b) Licensor provides the Service “as is” and excludes all warranties, indemnities, obligations (including Support Services) and liabilities under the Agreement for the duration of the Evaluation Period; and

(c) upon expiry of the Evaluation Period, Customer must immediately cease using and delete any of its copies the Service unless Customer purchases a subscription to the Service, in which case all terms of the Agreement apply from commencement of the paid Subscription Term.

2. Customer responsibilities

2.1 Usage responsibilities. Customer uses the Service at its own risk and is solely responsible for:

(a) ensuring that the Service is accessed and used strictly in accordance with the Agreement. Customer is responsible for each act and omission of an End User in connection with the Agreement as though it were an act or omission of Customer;

(b) ensuring that the Approved Purpose, Customer’s and each End User’s use of the Service, and all data uploaded to the Service, complies with all applicable laws, regulations and contractual obligations;

(c) obtaining all consents, licences and approvals necessary to lawfully collect, upload, store, process and disclose all data (including that protected by Intellectual Property Rights, confidentiality, or privacy) uploaded to the Service, all output of the Service and the Approved Purpose;

(d) obtaining and maintaining all hardware, software, services and network connectivity necessary to access and use the Service;

(e) implementing all steps and controls necessary to secure and keep confidential all user credentials issued to Customer and its End Users;

(f) providing all support and maintenance required by its End Users other than the Support Services;

(g) the accuracy, truthfulness, completeness, veracity and legality of the output of the Service and the Approved Purpose; and

(h) ensuring the Customer Data is suitable for use with the Service.

2.2 Acknowledgements. Customer agrees that Licensor is the supplier of a technology service to Customer only and that Licensor and Customer are the only parties able to make Claims in connection with the Service and the Agreement.  Without limiting the foregoing, Customer:

(a) is solely responsible for any access, use, or reliance upon the output, of the Service by End Users and any Claims made by End Users; and

(b) must ensure that no End User makes any Claim against Licensor under, or in connection with, the Service or the Agreement.

3. Fees, invoicing and payment

3.1 Fees. The Fees are payable in consideration of Licensor’s supply of the Service and any Professional Services. Licensor may increase its Fees at any time, unless otherwise stated in the Order or agreed with Customer.

3.2 Invoicing and payment. Licensor must issue invoices for the Fees to Customer at the times specified in the Order or applicable SOW. Customer must pay all Fees invoiced by Licensor, without any set-off or deduction and in immediately available funds, by the method and within the period specified in the Order or SOW. All Fees invoiced by Licensor are non-cancellable and non-refundable except as expressly set out in this Agreement.

3.3 Late Payment. If Customer fails to pay any Fees (that are not disputed in good faith) by the due date for payment, Licensor may:

(a) on 30 days’ notice, suspend Customer’s right to access and use the Service, provided Customer has not rectified the failure within 14 days of the date of such notice; and

(b) charge interest at a rate of 8 percent per annum or the maximum rate permitted by applicable law,

in each case, from the due date for payment until the date that payment is made by Customer.

3.4 Verification. Licensor may on 14 days’ notice conduct an audit of Customer’s use of the Service and compliance with the Agreement from time to time during the Subscription Term. Customer must provide all access to its End Users, records, premises and personnel reasonably requested by Licensor in connection with any such audit. Licensor must bear the costs of any such audit unless the audit reveals that Customer has used, or permitted the use of, the Service in breach of the Agreement (including use in excess of any limitations set out in the Order), in which case, Customer must immediately:

(a) pay to Licensor all additional Fees payable in respect of any excess use (at Licensor’s then current list prices) in addition to Licensor’s reasonable audit costs; and

(b) take all other steps required to remedy the breach of the Agreement and prevent its recurrence at its own cost.

3.5 Taxes. The Fees are exclusive of all taxes, levies, withholdings, duties and other amounts imposed by taxing authorities. Where a supply is a taxable supply, all amounts payable must be increased by the amount of GST, VAT, sales tax, or any other consumption tax payable in relation to the supply. All such taxes must be paid at the time any payment for any supply to which it relates is payable (provided a valid tax invoice has been issued for the supply).

4. Intellectual Property Rights

4.1 Ownership. All Intellectual Property Rights in and to the Service and output of the Professional Services, including those in any copy, modification, enhancement, configuration, derivative work or other development of the Service developed by or on behalf of Customer and End Users, vests or remain vested in Licensor. If any such Intellectual Property Right vests in Customer or End Users, Customer hereby assigns, and must procure that each End User assigns, that Intellectual Property Right to Licensor with immediate effect. Customer must take all further steps (including execution of documents) necessary to give effect to this clause.

4.2 No other rights. Neither Customer nor any End User receives any right, title or interest in or to the Service other than the right to access and use it expressly granted to Customer under clause 1.1.

4.3 Notice of infringement. Customer must immediately notify Licensor in writing upon becoming aware of any:

(a) infringement or unauthorised use of the Service by any person, including any End User; or

(b) Claim by any person that use of the Service in accordance with the Agreement infringes any Intellectual Property Rights owned by that person.

4.4 Remedial actions. If the Service is the subject of a Claim described in clause 4.3, Licensor may (at its cost and option) either:

(a) procure the right for Customer to continue using the Service;

(b) modify the Service such that it no longer infringes the relevant Intellectual Property Rights; or

(c) terminate the Agreement and provide Customer with a pro-rata refund of any Fees paid in advance for use of the Service.

5. Customer Data, Usage data and Analyses

5.1 Rights. As between Licensor and Customer, all rights in and to the Customer Data vest or remain vested in Customer at all times.

5.2 Licence. Customer:

(a) grants Licensor, its sub-processors and their respective personnel the right to Process the Customer Data; and

(b) warrants that it has obtained all consents, licences and approvals, and given all notifications to individuals, End Users and other third parties necessary to enable Licensor, its sub-processors and their respective personnel to Process the Customer Data,

in each case, solely for the purpose of providing, the Service and as set out in this clause.

5.3 Usage data and analyses. Notwithstanding clause 5.2, Licensor may:

(a) use data relating to Customer’s and End User’s use of the Service for billing, capacity planning, compliance, security, integrity, availability, providing and improving the Service, including but not limited to improving the algorithms to support the Service; and

(b) freely create, use, disclose and Process analyses, materials, data, insights, works and other things derived from (wholly or partly) use of the Service and the Customer Data in anonymised and aggregated form such that neither Customer nor End Users are identifiable.

6. Privacy and data protection

6.1 Privacy. Each party must comply with all Privacy Laws applicable to that party (whether as controller or processor) in Processing any Personal Data comprised in the Customer Data. Customer acknowledges that Personal Data, other than that comprised in the Customer Data, will be Processed in accordance with Licensor’s privacy policy applicable to the Service.

6.2 Data Security. Licensor must implement reasonable technical and organisational security controls to protect the Customer Data against loss, unauthorised access, modification and disclosure (Data Breach) in accordance with applicable Privacy Laws, including:

(a) not disclosing the Customer Data except to its sub-processors and their respective personnel for the purpose of performing the Agreement; and

(b) maintaining appropriate business continuity and disaster recovery measures for the Service, provided that Customer remains responsible for regularly downloading and backing up its own Customer Data using the Service.  

6.3 Data Breaches. If either party becomes aware of any actual or suspected Data Breach affecting the Customer Data:

(a) that party must promptly notify the other party in writing, including in such notice all known details of the actual or suspected Data Breach;

(b) Licensor must provide Customer with information and assistance reasonably required by Customer to investigate and assess the actual or suspected Data Breach;

(c) Customer is solely responsible for determining whether the actual or suspected Data Breach is notifiable under Privacy Laws, subject to clause 6.3(e);

(d) Customer must not reference Licensor in any notification or communication relating to the actual or suspected Data Breach without Licensor’s prior written approval as to the form and content of the reference; and

(e) Licensor may make a notification or communication about the Data Breach if Customer fails to do so and Licensor is required to do so under applicable Privacy Laws.

7. Confidentiality

7.1 Obligation of confidence. Each party (Recipient) must ensure that it keeps confidential and does not use or disclose any Confidential Information of the other party (Discloser) except as permitted by this clause 7.

7.2 Permitted use. The Recipient may use the Confidential Information of the Discloser solely to the extent necessary to exercise its rights and obligations under the Agreement.

7.3 Permitted disclosures. The Recipient may disclose Confidential Information of the Discloser:

(a) to the Affiliates, personnel and professional advisers of the Recipient that need to know the Confidential Information for the purposes of the Agreement and that are subject to binding obligations of confidence at least as stringent as those set out in this clause;

(b) to the extent required by the rules of any stock-exchange any applicable law or any order of any court, tribunal, authority or regulatory body; and

(c) with the prior written consent of the Discloser.

To avoid doubt, either party may make public statements about the existence of the Agreement and the fact that it is a supplier or customer of the other (as applicable), including referencing the other party’s name and logo, without being in breach of this clause.

8. Warranties and indemnities

8.1 Warranties. Licensor warrants that:

(a) subject to clause 2.1, the Service will operate substantially in accordance with its published specifications during the Subscription Term; and

(b) it will provide the Service and any Professional Services with due care and skill.

Licensor must, as Customer’s sole and exclusive remedy, resupply any part of the Service or Professional Services which does not comply with the warranties in this clause within a reasonable period of confirmation of the non-compliance.

8.2 No other terms. To the extent permitted by law, Licensor excludes all conditions, warranties and guarantees other than those set out expressly in the Agreement. Without limitation, Licensor does not warrant that the Service or any Professional Service or Customer’s use of the Service or any Professional Service will:

(a) be continuous, free from errors, omissions, defects, security risks or vulnerabilities; or

(b) be fit for any purpose or meet the requirements of Customer or any End User; or

(c) generate or result in any output which is complete, accurate or fit for any purpose.

8.3 Non-excludable terms. If any condition, warranty or guarantee cannot be excluded at law, then to the extent permitted by law, Licensor’s liability for breach of such condition, warranty or guarantee is limited (at Licensor’s option) to resupply of the Service or Professional Service or payment of the cost of the same.

8.4 Licensor indemnity. Licensor must indemnify Customer against all Losses suffered or incurred by Customer arising out of or in connection with:

(a) any IP Claim;

(b) any breach of clause 5.2, 6 or 7 by Licensor,

in each case, except to the extent that the Claim or breach is caused or contributed to by Customer, End Users or any third party or their product or service.

8.5 Customer indemnity. Customer indemnifies Licensor and its Affiliates against and must pay on demand all Losses suffered or incurred by any of them arising out of or in connection with:

(a) any Claim relating to the access to, use of, uploading of data to, use or reliance on any output of the Service by Customer or End Users, including any Claim made by a third party; and

(b) any breach of clause 1.2, 2.1, 5.2, 6 or 7 by Customer,

in each case, except to the extent that the Claim or breach is caused or contributed to by Licensor.

8.6 Conduct of Claims. The indemnification obligation of a party (indemnifying party) under clause 8.4 or 8.5 in respect of any third party Claim is subject to the other party:

(a) promptly notifying the indemnifying party of the third party Claim;

(b) permitting the indemnifying party to control the defence of the third party Claim; and

(c) providing (at the indemnifying party’s cost) all information and assistance reasonably requested by the indemnifying party in connection with the defence of the third party Claim.

8.7 Sole and exclusive remedy. Without prejudice to the termination rights of each party:

(a) clause 8.4 sets out Customer’s sole and exclusive remedy in respect of the matters indemnified by Licensor; and

(b) clause 8.5 sets out Licensor’s sole and exclusive remedy in respect of the matters indemnified by Customer.

9. Liability

9.1 Exclusion of Indirect Loss. To the extent permitted by law, each party excludes any and all liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity for any Indirect Loss.

9.2 Licensor liability. The liability of Licensor for all Claims and Losses arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity, in any Subscription Year:

(a) for breach of clause 6, 7 and under the indemnities in clause 8.4 is limited in aggregate to an amount equal to the Fees; and

(b) in connection with any other part of the Agreement is limited in aggregate to an amount equal to the Fees,

in each case, paid or payable by Customer under the Agreement in that Subscription Year, subject to clause 9.4.

9.3 Customer liability. The liability of Customer for all Claims and Losses arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity, in any Subscription Year is limited to an amount equal to the Fees paid or payable by Customer under the Agreement in that Subscription Year, subject to clause 9.4.

9.4 Unlimited liability. The limitation of liability in clause 9.2 and 9.3 does not apply to the liability of:

(a) Customer under any indemnity in clause 8.5;

(b) Customer to pay Fees that are due and payable; or

(c) either party for any matter in respect of which liability may not be limited at law.

9.5 Injunctive relief. Customer acknowledges that damages are not a sufficient remedy for any breach of clause 1.1, 1.2, 1.5, 2.1, 4, 5, 6 or 7 of the Agreement and that Licensor is entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or anticipated breach of those clauses (in addition to any other remedies).

10. Term, suspension and termination

10.1 Subscription Term. The Agreement will remain in force for the Subscription Term, unless terminated earlier in accordance with this clause 10.

10.2 Suspension. Licensor may suspend the rights granted pursuant to clause 1.1:

(a) during any period in which Customer is in breach of the Agreement (subject to clause 3.3(a) in the case of late payment); or

(b) to prevent or mitigate actual or suspected illegal activity, damage to Licensor’s systems, or threat to the integrity of the Service.

10.3 Termination for cause. A party may terminate the Agreement with immediate effect on written notice if the other party:

(a) commits a material breach of the Agreement and fails to remedy that breach within 14 days of receipt of a notice specifying the breach and requiring it to be remedied. Any breach by Customer of clauses 1.1, 1.2, 2.1, 1.5, 3.2, 4, 5, or 7 is a material breach for the purposes of this clause;

(b) becomes subject or threatens to become subject to, any form of insolvency or bankruptcy proceeding, appoints a liquidator, receiver or administrator, enters into an arrangement with its creditors, ceases to trade or do business in the ordinary course or is otherwise unable to pay its debts as and when they fall due; or

(c) becomes a Sanctioned Party.

10.4 Consequences of termination or expiry. On termination or expiry of the Agreement:

(a) all rights to the Service granted under the Agreement cease immediately and Customer must immediately cease using the Service;

(b) Licensor has no further obligation to retain the Customer Data, provided that Licensor provides Customer a reasonable opportunity to retrieve the Customer Data for a period of 30 days following expiry or termination; and

(c) Customer must immediately pay Licensor all Fees due and payable as at the date of termination or expiry and, if Licensor terminates pursuant to clause 10.3, all Fees payable for the remainder of the Subscription Term.'

11. Miscellaneous

11.1 Entire agreement. This Master Subscription Agreement, the Service Schedule, the Order and any SOW applicable to a Service are the entire agreement between the parties in respect of that Service. In the event of any inconsistency between the terms of this Master Subscription Agreement, the Service Schedule, the Order and any SOW, the terms of the document listed first will prevail to the extent of the inconsistency.

11.2 Amendment. Licensor may amend this Master Subscription Agreement at any time by posting the amended version of this Master Subscription Agreement on Licensor’s website. Any amended version of this Master Subscription Agreement will only apply to Orders entered into following the date of the amendment to this Master Subscription Agreement.

11.3 Force Majeure Events. Licensor is not liable for any delay nor failure to perform its obligations under the Agreement to the extent such delay or failure is due to a Force Majeure Event.

11.4 Severance. If a provision of the Agreement is unenforceable, the provision will be read down to the extent necessary to avoid that result and if the provision cannot be read down to that extent, it will be severed without affecting the validity and enforceability of the remainder of the Agreement.

11.5 Transfer. Customer must not assign, subcontract, novate or otherwise dispose of its rights or obligations under the Agreement without the prior written consent of Licensor.  Customer consents to Licensor:

(a) assigning its rights under the Agreement to its Affiliates;

(b) assigning or novating the Agreement in connection with any solvent amalgamation, reconstruction, restructure, sale of shares, sale of assets, raise, or financing of Licensor and/or its Affiliates; and

(c) subcontracting its obligations under the Agreement to third parties, including its Affiliates.

11.6 Waiver. A party waives a right under the Agreement only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

11.7 Third party rights. No person other than Licensor and Customer has the right to enforce any term of the Agreement (whether at law or otherwise) or approve any amendment to the Agreement.

11.8 Relationship of the parties. The parties are and will remain independent contractors. Nothing contained in the Agreement will be construed to create an agency, joint venture, partnership or other relationship between the parties.

11.9 Governing Law. The Agreement is governed by the laws of Western Australia, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australia, Australia (and relevant appellate courts) and waives any objection to proceedings being brought in those courts.

11.10 Currency. Unless otherwise specified in the Order, the currency shall be in Australian dollars.

12. Definitions

In this Master Subscription Agreement, these terms have the following meanings:

Affiliate means of a party means an entity that Controls, is Controlled by, or is under common Control with that party.

Agreement means the agreement consisting of this Master Subscription Agreement, the Service Schedule, the Order and any SOW applicable to a Service.

Applicable Trade Control Laws means any sanctions, export control, or import laws, or other regulations, orders, directives, designations, licenses, or decisions relating to the trade of goods, technology, software and services which are imposed, administered or enforced from time to time by Australia, the United States, the United Kingdom, the EU, EU Member States, Switzerland, the United Nations or United Nations Security Council and also includes U.S. anti-boycott laws and regulations.

Approved Purpose means use of the Service as specified in the Service Schedule for Customer’s internal business purposes or other approved use specified in the Order.

Claim means any demand, claim, action or proceeding, however arising and whether present, unascertained, immediate, future or contingent.

Confidential Information means information that is marked, designated or by its nature confidential relating to the business or affairs of a party or its Affiliate:

(a) including the terms of the Agreement and, in the case of Licensor, all source code to, Licensor Data comprised in, and pricing for the Service; but

(b) excluding any such information that is in the public domain (other than as a result of a breach of confidence).

Control in respect of a person, includes the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities, by agreement or otherwise, and includes the following:

(a) direct or indirect ownership of more than 50% of the voting rights of such person; or

(b) the right to appoint the majority of the members of the board of directors of such person (or similar governing body) or to manage on a discretionary basis the assets of such person.

Customer Data means any data, information or material uploaded to, or Processed through, the Service by Customer or End Users, excluding Licensor Data.

End User means any person who accesses or uses the Service through Customer’s subscription.

Environment means Licensor’s computing platform or environment specified in the Service Schedule.

Evaluation Period is defined in clause 1.5(a).

Fees means the fees, costs and expenses for the supply of the Service specified in the Order and any Professional Services specified in the applicable SOW.

Force Majeure Event means any incident, event, act or omission beyond the reasonable control of that party, including any acts of God, strikes, civil strife, riots, wars, fire, explosion, storm, flood, earthquake, failure of communications networks, subsidence, pandemics or epidemics.

Indirect Loss means:

(a) loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of use, loss or corruption of data, loss of reputation, loss of goodwill, or loss of contract; and

(b) any Loss that does not arise naturally or according to the usual course of things from a breach, act or omissions relating to the Agreement.

Intellectual Property Rights means intellectual property rights, including existing and future copyright, rights in designs, patents, semiconductors and circuit layouts and rights in trade marks, trade names and service marks, in each case, whether registered or unregistered and existing in Australia or elsewhere in the world and whether created before or after the date of the Agreement.

IP Claim means any Claim that use of the Service by Customer in accordance with the Agreement infringes any copyright or patent owned by a third party in Australia.

Licensor means the entity specified as the Licensor of the Service in the Order.

Licensor Data means data, information or material comprised in the Service as provided by Licensor and any usage data or analyses created under clause 5.3.

Loss means loss, damage, liability, cost (including all legal and other professional costs on a full indemnity basis), charge, expense, outgoing, fine or payment of any nature or kind.

Order means the details of Customer’s purchased subscription to the Service specified in any:

(a) order form in respect of the Service executed by the parties; or

(b) online order form completed by Customer and logged in Licensor’s customer relationship management system (and any order verification issued to Customer),

including details of the applicable Approved Purpose, Fees and Subscription Term.

Personal Data means information about an identified individual or an individual who is reasonably identifiable, including ‘personal information’ and ‘personal data’ as defined in applicable Privacy Law.

Privacy Law means any applicable law governing the Processing of Personal Data in connection with the Agreement, including the Privacy Act 1988 (Cth).

Process means to collect, store, use, copy, disclose or perform any other set of operations on.

Professional Services means any support, implementation, training, data migration or other service not forming part of the Service.

Sanctioned Party means:

(a) any person or entity that is designated for export controls or sanctions restrictions under any Applicable Trade Controls Laws; and

(b) any entity Controlled by a person or entity referred to in paragraph (a).

Service means the Licensor’s proprietary cloud service specified in the Order and detailed in the applicable Service Schedule, including any Updates.

Service Schedule means the schedule identified in the Order setting out the service description and any additional terms and conditions applicable to the Service.

SOW means a statement of work setting out the details of the Professional Services to be provided by Licensor, including the agreed scope and fees for the Professional Services.

Subscription Term means:

(a) the initial term of Customer’s subscription to the Service specified in the Order, including any Evaluation Period; and

(b) successive renewal terms equal to the initial term or 12 months (whichever is less) thereafter, unless Customer provides notice of non-renewal at least 14 days prior to the expiry of initial term or renewal term (as applicable).

Subscription Year means a period of 12 months from the commencement of Subscription Term or an anniversary of that date.

Support Services means:

(a) online, email or telephone support for Service defects that require access or changes to the source code for the Service; and

(b) making Updates available from time to time,

in each case, in accordance with the Support Services Policy. The Support Services exclude help desk, diagnostic, onsite and other first and second line support services.

Support Services Policy means the Licensor’s maintenance and support services offering applicable to the Service.

Updates means any new versions, release, update, patch, fix, configuration or other modification of the Service made available by Licensor to its customers generally during the Subscription Term.