Thanks for using the Services provided by SuperFriend (referred to herein as “SuperFriend” or “Provider”). You, the user of the Services, will be referred to herein as the “Customer”.
By using the Services, you are agreeing to these terms and conditions and to be bound by them. Please read them carefully. SuperFriend’s Services are diverse, so sometimes additional terms or product requirements may apply. Additional terms will be available with the relevant Services, and those additional terms become part of your agreement with SuperFriend if you use those Services.
“Access Credentials” means any user name, identification number, password, license or security key, security token, personal identification number (PIN) or other security code, method, technology or decide used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Provider in an aggregate manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Agreement” means these service terms and the Booking Form.
“Authorised User” means Customer’s employees, consultants, contractors, agents and customers or clients (i) who are authorised by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Services has been purchased hereunder.
“Booking Form” means the booking form which is provided by the Customer to the Provider which sets out the Services requested by the Customer and other relevant details.
“Commencement Date” means the date the Booking Form is accepted by the Provider.
“Confidential Information” has the meaning set forth in Section 6.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorised User through the Services.
“Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services, provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the Services.
“Feedback” has the meaning set forth in Section 7(c).
“Fees” has the meaning set forth in Section 5(a).
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, provincial, territorial, municipal or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“MySuperFriend Account” means the Customer’s individual user account, as provided to it by Provider.
“Party” means a party to this Agreement.
“Person” means a natural person, corporation, statutory corporation, partnership, or any other organisation or legal entity;
“Provider IP” means the Services, the Documentation, and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property provided to Customer or any Authorised User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services but does not include Customer Data.
“Provider Materials” means the Services, specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor (as defined in Section 2(e)) in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include any information, data or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
“Service Suspension” has the meaning set forth in Section 2(g).
“Services” means the offerings offered by SuperFriend and purchased by Customer, excluding Provider Systems.
“Term” means the period commencing on the Commencement Date and concluding on the earlier of:
(A) [the completion of access to the Services];
(B) The date this Agreement is terminated in accordance with Section 2(g)
“Third-Party Products” means any third-party products provided with or incorporated into the Services.
2. Access and Use.
(a) Provision of Access. Subject to and conditional on Customer’s payment of Fees and compliance with all other terms and conditions of this agreement, Provider hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorised Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. The Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorised Users will not exceed the number set forth in this Agreement with the Customer, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
(b) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorised Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(c) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(d) Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the cost efficiency or performance of the Services; or (b) to comply with applicable Law.
(e) Subcontractors. Provider may, from time to time, in its discretion engage third parties to perform Services (each, a “Subcontractor”).
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
(g) Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider disabling device or any other lawful means, suspend, terminate or otherwise deny access to, or use of, all or any part of the Services or Provider Materials by Customer, any Authorised User or any other Person, without incurring any resulting obligation or liability, if: (a) Provider believes, in its sole discretion, that: (i) Customer or any Authorised User has failed to comply with, any term of this Agreement, accessed or used the Services beyond the scope of the rights granted or for a purpose not authorised under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorised User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2(j) does not limit any of Provider’s other rights or remedies, whether at Law, in equity or under this Agreement.
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorised Users, and any act or omission by an Authorised User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use all reasonable efforts to make all Authorised Users aware of this Agreement’s provisions as applicable to such Authorised User’s use of the Services and shall cause Authorised Users to comply with such provisions.
(b) Third-Party Products. Provider may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. It is Customer’s sole responsibility to read and understand such terms and conditions. Provider neither owns nor operates such Third-Party Products, has no control of them, and makes no representations or warranties with respect to them. If Customer cannot or will not abide by the terms and conditions of such Third-Party Products, they may be precluded from using the Services.
4. Fees, Payments and Refunds.
(a) Fees. Customer shall pay Provider the fees (“Fees”) as set forth in the Booking Form without set off or deduction. Customer shall make all payments using the Provider’s appointed electronic payment gateway in Australian dollars on or before the due date set forth in the Booking Form. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies the Provider may suspend Customer’s and its Authorised Users’ access to any portion or all of the Services until such amounts are paid in full.
(b) Refunds. Subject to the cancellation and rescheduling provisions in the Booking Form, refunds will not be given to Customers who cancel prior to the end of any given Term but will be permitted to continue using the Services until the end of the then-current Term.
(c) Taxes. All Fees and other amounts payable by Customer under this Agreement are quoted exclusive of any applicable goods and services tax (GST), and the Customer must pay any GST in accordance with the Provider’s tax invoice.
5. Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in writing, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is:
(a) in the public domain;
(b) known to the receiving Party at the time of disclosure;
(c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or
(d) independently developed by the receiving Party.
The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, agents or contractors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required
(i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or
(ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership; Feedback.
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Provider may not use Customer’s name and logo in Provider’s marketing and promotional materials unless express written permission is granted.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
7. LIMITATIONS OF LIABILITY.
In no event will provider be liable under or in connection with this agreement under and legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any:
(a) consequential, incidental, indirect, exemplary, special aggravated, or punitive damages;
(b) increased costs, diminution in value or lost business, production, revenues, or profits;
(c) loss of goodwill or reputation;
(d) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security; or
(e) cost of replacement goods or services, in each case regardless of whether provider was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. In no event will Provider’s aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach or contract, tort (including negligence), strict liability, and otherwise exceed one times the total amounts accrued but not yet paid to provider under this agreement in the one year period preceding the event giving rise to the claim.
8. Data Security.
(a) Information Security Obligations. Provider will employ all reasonably necessary security measures in accordance with applicable Law, and Provider’s data privacy and security policies as amended from time to time.
(b) Data Breach Procedures. In the event of a data breach that involves the personal or business information of Customer, Provider will notify the Customer about the event and disclose the relevant details pertaining to the breach including, 1) time and place of the breach 2) scope and type of the data breach including the individuals and types of information affected 3) potential risks associated with the data breach, in accordance with applicable laws.
(c) Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of all Access Credentials and protect against any unauthorised access to, or use of, the Services; and (ii) control the content and use of Customer Data.
(d) Privacy. The Provider maintains a policy of confidence concerning personal information collected in the course of the Customer’s engagement with Services and has been developed in accordance with the Australian Privacy Principles contained in the Privacy Act 1988 (Cth) (Privacy Act).
(a) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments contemplated hereunder), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemic, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (each a “Force Majeure Event”).
(b) Governing Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Australia applicable therein.
(c) Priority. The Parties agree that in the event of inconsistency between this Agreement and any other applicable contractual obligation between the Provider and Customer, this Agreement will prevail.