ONLINE SUBSCRIPTION AGREEMENT
This Agreement is entered into Between UBALANCER SOLUTIONS PTY LTD ACN 606 330 821 AND THE USER
At the request of the User, UBalancer Solutions has agreed to provide to the User a non-exclusive licence to make use of the Application in return for payment of the Charge.
THE PARTIES COVENANT AND DECLARE AS FOLLOWS:
In this Agreement, unless the context or subject matter otherwise require:
"Account Manager" means a person appointed to be the designated representative of the User responsible for overseeing the implementation and development of the Application;
"Facilitator" means a person appointed by the Account Manager to be the designated representative of the User responsible for overseeing the implementation of the application;
"Agreement" means this agreement, (including the recitals, schedules, appendices and exhibits to it), as it may later be amended or supplemented by the parties in writing;
"Application" means the Application which the User accesses through the provision of the licence;
"Charge" means the amount set out in the Charge Schedule which may be amended from time to time by UBalancer Solutions and which the User is required to remit to UBalancer Solutions in return for the use of the Application;
"Charge Schedule" means the schedule setting out UBalancer Solutions’s Charges;
"Claim" means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, Right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;
"Force Majeure" means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it including (without limitation):
"GST Law" means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
"Intellectual Property Rights" means
a) jointly and severally any Rights as they relate to the Confidential Information, the Technology, the copyright, the design Rights, the patent Rights, the eligible layout Rights, the Improvements, and the Future Rights;
b) all other Rights resulting from intellectual activity in the industrial, scientific, literary or artistic field; and
c) any application or Right to apply for registration of any of the Rights referred to in the subclause (a).
"Malicious Use" includes but is not limited to any intentional acts intentional or otherwise whether authorised or unauthorised, direct or indirect which has the effect of causing unnecessary and unwanted, malicious interference with the business operations of UBalancer Solutions or which results in damage to the Application or any computer system, loss of functionality or undesirable or negative effect or result;
"Renewal Term" means a further period to be negotiated between UBalancer Solutions and the User;
"Right" includes a legal, equitable, contractual, statutory or other Right, power, authority, benefit, privilege, remedy, discretion or cause of action;
"Term" means the agreed term of access to the UBalancer online licence commencing on the date that the terms of this Agreement are accepted by the User;
"User" means the person or person acting on behalf of an organisation, who has read, considered and accepted the terms of this Agreement;
"User Data" means any data or information the User gives to UBalancer Solutions uses in conjunction with the Application.
(a) The User acknowledges that the User shall have a non-exclusive, non-transferable licence to use the Application for the Term and any Renewal Terms.
(b) The User acknowledges that there is no transfer of title or ownership to the User of the Application.
(c) The User may not, without the prior written approval of UBalancer Solutions, assign any of its Rights or obligations pursuant to this Agreement to a third party.
(d) UBalancer Solutions reserves all rights that are not expressly granted in this Agreement to the User.
(e) Proof of the User's licence consists of this Agreement, proof of payment of the Charge, any confirmation that the User receives from UBalancer Solutions and a written agreement consenting to an assignment (if any) which has been executed by UBalancer Solutions, the User and the assignee.
(a) The User shall pay the Charge at the rates specified.
(b) The Charge is to be paid monthly (or part thereof) or as agreed between the Use rand UBalancer Solutions, commencing on the date that the terms of this Agreement are accepted. The User shall also pay the Charge upon the commencement of any Renewal Term under clause 5.2 and monthly thereafter (or part thereof). UBalancer Solutions reserves the Right to suspend its access to the Application until such time as all outstanding Charges have been paid by User.
(c) For the avoidance of doubt, the Charge is payable for the duration of the Term, despite any termination by either Party. This obligation survives termination of this Agreement.
(d) From the date of termination, the User must continue to pay the Charge until the end of the Term or Renewal Term but the Charge will not be subject to any increase, as referred to in sub-clause 3(e) below after the date of termination.
(e) UBalancer Solutions shall be entitled to revise its Charges from time to time during the currency of this Agreement on 30 days written notice to the User.
(f) Words defined in the GST Law have the same meaning in this clause unless the context makes it clear that a different meaning is intended. In addition to paying the Charge (which is exclusive of GST), the User will:
(i) pay to UBalancer Solutions an amount equal to any GST payable for any supply by UBalancer Solutions in respect of which the Charge is payable under this Agreement; and
(ii) make such payment either on the date when the Charges are due or within seven (7) days after User is issued with a tax invoice, whichever is the latter.
(g) If the User disputes the whole or any portion of a Charge then the User must pay the amount not in dispute and must notify UBalancer Solutions of the amount and reasons for the dispute. The parties must then negotiate in good faith. If no outcome can be reached then the matter must be referred to a Court or Tribunal of appropriate jurisdiction to be resolved.
4.1 Use of Application for Legal Purposes only
(a) The User acknowledges and agrees that it will not use the Application for any purpose that is illegal or unlawful.
(b) If the User breaches this term then UBalancer Solutions may at its discretion deliver such data to a relevant law enforcement officer or government department if UBalancer Solutions receives a request for such data to be provided to it.
4.2 Users use of the Application
The User acknowledges that the Application is not error or bug free and agrees that it will use the Application carefully and will not use it in any way which might result in any loss of its or any third party's property or information.
4.3 Remedying errors
UBalancer Solutions will make reasonable effort to ensure that any errors or bugs in the Application are remedied in a reasonable and timely manner.
4.4 Availability of Application not guaranteed
(a) UBalancer Solutions will make all reasonable effort to ensure the availability of the Application during normal business hours (Monday to Friday 9am-5pm) for the Term and any Renewal Term. However, as the Application may require refinement during the abovementioned hours, availability cannot be guaranteed.
(b) UBalancer Solutions will make reasonable efforts to schedule planned refinements and maintenance that will result in the Application being unavailable outside of normal business hours (Monday to Friday 9am-5pm) for the Term and any Renewal Term.
(c) If the Application will not be available during normal business hours (Monday to Friday 9am-5pm) due to the decision of UBalancer Solutions to perform maintenance to the Application during the Term or any Renewal Term, UBalancer Solutions will provide reasonable notice to the User of the unavailability of the Application.
4.5 Internet Costs
The User is responsible for all internet charges for connecting to the Application.
4.6 Backup of User Data
(a) UBalancer Solutions does not provide a backup service of the User Data. The User has the ability to do this themselves and therefore the responsibility and all liability in respect to this remains with the User.
(b) The User acknowledges that UBalancer Solutions does not provide this backup service and that in order to account for its User Data, it must put measures in place to back up the User Data.
The User is responsible for all use of its User’s account(s) and protecting the confidentiality the User's of password(s). UBalancer Solutions will suspend or change access to the User’s accounts within a reasonable time upon written notification by the User that his/her password has been lost, stolen or otherwise compromised.
4.8 Cannot Reverse Engineer
The Application may not be reverse-engineered, modified, reproduced, republished, translated into any other language or computer language, re-transmitted in any form or by any means, resold or redistributed without the prior written consent of UBalancer Solutions. The User may not make, sell, offer for sale, modify, reproduce, display, publicly perform, import, distribute, retransmit or otherwise use the content in any way, unless expressly permitted in writing to do so by UBalancer Solutions.
4.9 Change to Applications
(a) UBalancer Solutions reserves the Right to change the Application, including, but not limited to access procedures, menu structures, commands, documentation and applications offered.
(b) UBalancer Solutions may provide the User with written notice of the changes to the Application once they have been made.
4.10 Suspension and Termination
(a) UBalancer Solutions reserves the Right, in its sole discretion, to suspend or terminate the User’s access to the Application for usage that it deems to be inappropriate and usage that breaches any of the terms contained in this Agreement.
(b) Inappropriate usage includes but is not limited to, activities harmful to UBalancer Solutions or its Users, employees, vendors, business relationships or any persons directly impacted by the Application.
4.11 Retention of Records
UBalancer Solutions reserves the Right, in its sole discretion, to delete user's personal files after one or both parties terminates this Agreement. It is the sole responsibility of the User to retain records of information used in conjunction with the Application.
4.12 Use of User Data
(a) The User allows UBalancer Solutions to use the User Data in the course of UBalancer Solutions promoting the Application to other potential Users and customers.
(b) The User further allows UBalancer Solutions to use the User Date in the course of UBalancer Solutions collating and applying data gathered through the User's use of the Application.
(c) In doing this, UBalancer Solutions will take all reasonable care to ensure that any personal information and identifying features of the User are removed from the User Data before utilising the User Data in accordance with sub clauses (a) and (b) above.
4.13 Restrictions on Use of the Application
The User shall not, in respect of its use of the Application:
(a) except to the extent authorised by sections 47B(3), 47C, 47D, 47E and 47F of the Copyright Act 1968 (Cth), reproduce, disclose, decompile, disassemble, reverse engineer, modify use for any purpose other than evaluating, and/or distributing the Application, except as provided for in this Agreement or pursuant to a license from UBalancer Solutions;
(b) encumber, sell, rent, lease, sublicense, or otherwise transfer Rights to the Application;
(c) separate and use the components of the Application on 2 or more computers, upgrade or downgrade components at difference times or transfer components separately, expect as agreed to in writing with UBalancer Solutions;
(d) redistribute the Application unless the User has separately entered into a Distribution Agreement with UBalancer Solutions;
(e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Application;
(f) publish any results of benchmark or other tests run on the Application to a third party without UBalancer Solutions's prior written consent;
(g) use the Application for commercial or production purposes or in a production or live environment or to use the Application in a manner that is not purely for the Purpose.
4.14 No Reliance on Representation
(a) The User warrants that it has not relied on any representations made by UBalancer Solutions which has not been stated expressly in this Agreement or in any document provided by UBalancer Solutions.
(b) To the extent that any representations are made in this Agreement, the User acknowledges that it has been provided with sufficient time to verify the accuracy of such representations before entering into this Agreement.
The terms of this Agreement and the licence and Application envisioned by it, shall commence on the date that the User accepts the terms of this Agreement and will last for the duration of the Term and any Renewal Term.
This Agreement shall renew automatically for the Renewal Term unless either party notifies the other in writing prior to the end of the Term or the Renewal Term that this Agreement is not to be renewed.
(a) The Agreement will remain in place until it is terminated by either UBalancer Solutions or the User.
(b) UBalancer Solutions may terminate this Agreement at any time upon 30 days written notice to the other party.
(c) This Agreement will immediately and automatically terminate without notice:
(i) if the User fails to comply with any term or condition of this Agreement and such breach continues unremedied for a period of 7 days after UBalancer Solutions gives notice to the User that it is in breach of the Agreement; or
(ii) if the User gains or permits productive or commercial use of the Application in a live environment or in a production environment and such breach continues unremedied for a period of 7 days after UBalancer Solutions gives notice to the User that it is in breach of the Agreement.
The entire risk arising out of the use or performance of the Application remains with the User. Without limiting the above, UBalancer Solutions gives no warranty regarding or representation concerning the following:
(a) UBalancer Solutions does not warrant that its Application is free of inaccuracies, defects and errors;
(b) except as expressly provided by this Agreement, the Application and Rights granted pursuant to this Agreement are provided on an "as is" basis without any representation, warranty or condition, whether express or implied, statutory, out of a course of dealing or usage, trade or otherwise including any implied warranty or condition of merchantable quality or fitness of any particular purpose or use;
(c) for the avoidance of doubt, to the maximum extent permitted by applicable law, UBalancer Solutions makes no warranties or representations as to:
(i) the performance of the Application;
(ii) any services provided to the User or any other person;
(iii) access to the Application by the User;
(iv) the availability of the Application to User;
(v) the preservation of User Data whether by way of “back-up” or any other means of storage in hard or soft copy;
(vi) the protection of User Data whether by way of electronic protection or any other means; and
(vii) the prevention of corruption, destruction or disclosure of User Data.
(a) UBalancer Solutions is under no liability to the User or any other person, including but without limitation to Coaches, Participants and Account Managers, in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the Application, the use of the Application or in respect of any other service provided pursuant to this Agreement or in respect of a failure or omission of UBalancer Solutions to comply with its obligations pursuant to this Agreement.
(b) In any event, UBalancer Solutions's entire liability (if any) is limited to the total amount of the term for which Charges were paid by the User to UBalancer Solutions to access the Application at the time the damage was incurred.
The User shall report to UBalancer Solutions, as soon as practical, any perceived defect in the Application. Upon the reasonable request of UBalancer Solutions, the User shall provide to UBalancer Solutions an evaluation of the Application, including both positive and negative aspects. The User shall be available at the discretion of UBalancer Solutions and at a time convenient to the User and UBalancer Solutions, for progress reviews by telephone or person.
The User must:
(a) appoint an Account Manager should UBalancer Solutions require them to do so
(b) attend all meetings at which its attendance is reasonably requested by UBalancer Solutions to implement the Application; and
(c) attend all training meetings which are scheduled for a time that meets the reasonable requirements of the User and UBalancer Solutions.
The User, during the Term of this Agreement, must provide to UBalancer Solutions, in the development of the Application, at no charge, all analysis and programming Applications necessary to correct and resolve any errors or problems that appear in the Application as a result of its use by the User.
(c) UBalancer Solutions will take all reasonable steps to protect personal information in its possession (if any) against misuse or loss.
(d) For the purposes of this clause "personal information" means information or an opinion about an individual as defined in s6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by UBalancer Solutions for the purposes of this Agreement.
10.1 Confidential Information
"Confidential Information" means all technical and other information and know-how, including all information and know-how in an eye or machine readable form or other format, disclosed or given to a party from any source in respect of or incidental to:
(a) the Intellectual Property Rights; and
(b) any other information disclosed or given to a party which is declared by the disclosing party to be Confidential Information, other than:
(c) that information that is already in the public domain at the time of disclosure or becomes available to the public through no breach of this Agreement by the receiving party;
(d) was lawfully in the receiving party's possession before receipt from the disclosing party, without obligation of confidentiality;
(e) is received free from obligation of confidentiality from a third party lawfully permitted to disclose such information to the receiving party; or
(f) is independently developed by the receiving party, as evidenced by its business records.
Each party acknowledges and agrees that in providing and using the Application, the parties may not disclose certain Confidential Information. During this Agreement, each party agrees that it will not, without the express prior written consent of the other party, disclose any Confidential Information or any part thereof to any third party. At the termination of this Agreement, each party will return all Confidential Information to the other party.
(a) Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
(b) If a delay or failures of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party's obligations will be suspended.
(c) If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 60 days, either party may immediately terminate the Agreement on providing notice in writing to the other party.
(d) If this Agreement is terminated pursuant to sub-clause (c) above then UBalancer Solutions shall refund moneys previous paid by the User pursuant to this Agreement for services which have not been provided by UBalancer Solutions to the User from the date of termination.
Failure by either party to enforce any clause of this Agreement will not be deemed a waiver of future enforce¬ment of that or any other clause.
12.2 Intellectual Property Rights
As between the User and UBalancer Solutions, UBalancer Solutions retains all Right, title and interest in the Applications including all Intellectual Property Rights embodied within the Applications subject only to the license Rights explicitly granted to the User as set out in the Agreement.
12.3 Survival of Agreement
(a) Subject to any provision to the contrary, this Agreement shall be to the benefit of and be binding on the Parties and their successors, trustees, permitted assigns or receivers but shall not be to the benefit of any other persons.
(b) The covenants, conditions, Rights and obligations of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.
Each Party will pay its own legal and other costs incurred in relation to the preparation and execution of this Agreement.
Should any part of this Agreement be or become invalid, that part shall be severed, such invalidity will not affect the validity of the remaining provisions of the agreement
12.6 Entire Agreement
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties in relation to those acts, matters or things that are contained in this Agreement. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.
12.7 Modification of Terms
UBalancer Solutions reserves the right to modify or terminate this Agreement in any country where there is any current or future requirement or obligations (set by the government or otherwise) that will impact on UBalancer Solutions operating its business, the User accessing the Application or which presents a hardship on UBalancer Solutions to continue to operation without modification of the terms of this Agreement.
12.8 Governing Law
This Agreement shall be governed by and construed in accordance with the laws from time to time in force in the state of Queensland, and the parties submit to the exclu¬sive jurisdiction of the Courts of the state of Queensland.
The Application will evolve over time and because of this, these terms and conditions are not intended to be exhaustive. UBalancer Solutions reserves the right to change these terms at any time. The change becomes effective at the time that UBalancer Solutions posts the modified terms on its website. UBalancer Solutions will attempt to communicate the changes to these terms to the User. The User will be required to accept the modified terms. It is the User's obligation to ensure that they have read, understood and agree to the terms before accepting. Acceptance by an individual on behalf of an entity will bind the entity to these terms.