This Standard terms applies to any user of a service provided by SupporterHub Pty Ltd, Supporterhub US, Inc. or Supporterhub Aust Pty Ltd (“SupporterHub”).
The Customer wishes to receive, and SupporterHub wishes to provide, the Services outlined in Schedule 1 under the terms of Agreement as outlined below.
This agreement will commence on the Commencement Date and continue until the end of the Initial Term. Thereafter, unless and until terminated in accordance with the terms and conditions of this agreement, the agreement will continue for successive Renewal Terms.
Supply of Services
- supply the Implementation Services from the Commencement Date; and
- supply the SaaS Services from the SaaS Services Commencement Date.
-SupporterHub will supply the Services
- with reasonable care and skill; and
in accordance with all applicable laws directly related to its supply of the Services to the Customer.
-SupporterHub shall only be obliged to provide support to rectify any defect or fault in a Service to the extent expressly set out in this agreement.
- SupporterHub has no obligation to the Customer to rectify any defect or fault in a Service caused or contributed to by:
- the acts or omissions of the Customer or the Customer’s Personnel;
- faults or defects that arise in telecommunication services provided to the Customer by a third party supplier;
- any Force Majeure Event; or
- scheduled maintenance.
-Unless stated otherwise in this agreement, SupporterHub will endeavour to
- give the Customer at least three (3) days’ notice of any scheduled maintenance that is likely to affect any Service; and
- not carry out any scheduled maintenance during the Customer’s business hours other than in an emergency (as determined by SupporterHub) or as may otherwise be agreed with the Customer.
-SupporterHub may, by giving the Customer fourteen (14) days prior notice, replace an existing Service with another service where the charge for the new service is not greater than the charge for the Service being replaced and the functionality of the new service is overall substantially similar to, or better than, the Service being replaced, as reasonably determined by SupporterHub.
-If this agreement sets out Service Levels for a Service then SupporterHub will use reasonable endeavours to supply that Service in accordance with those Service Levels. SupporterHub’s liability to the Customer for a failure to meet a Service Level is as set out in this agreement, failing which, SupporterHub will not be liable (whether in contract, tort (including negligence), statute or otherwise) for such failure. If this agreement sets out a remedy for such failure, that is the Customer’s sole remedy for the failure to meet the Service Levels.
- does not represent, warrant or guarantee that any Service will be free of interruptions, delays, faults or errors; and
- except as expressly provided in this agreement, is not liable (whether in contract, tort (including negligence), statute or otherwise) to the Customer or any other third party for any interruptions, delays, faults or errors in connection with the supply of a Service (in part or in full) for any reason whatsoever.
-SupporterHub may temporarily suspend or restrict any Service, without any liability to the Customer for doing so:
- if SupporterHub believes it is necessary to do so to comply with any law or an order or direction of any Government Agency;
- to protect any person or attend to any emergency;
- during any scheduled maintenance;
- if the Customer breaches the terms of any applicable Acceptable Use Policy;
- if the Service is used in an excessive or unusual way (though SupporterHub is not obliged to suspend or restrict any Service in those circumstances and the Customer remains liable to pay for any Charges incurred for any excessive or unusual usage); or
- if the Customer is in material breach of this agreement (including by non-payment of any Charge) and the Customer fails to comply with a written notice requiring the Customer to remedy such breach by the date specified in that notice.
-SupporterHub is entitled to assume, acting reasonably, that any request in connection with a Service it receives from the Customer, or any of the Customer’s Personnel, or through any login or password used by the Customer, is authorised by the Customer.
- The Customer will pay the Fees to SupporterHub.
- Without limiting any other provision of this agreement and with prior written approval, SupporterHub may charge the Customer, and the Customer must pay, an additional charge to service, modify or replace any Service as a result of any defect or failure for which SupporterHub is not expressly responsible under this agreement.
- If the parties have agreed to vary the Services, the Fees will be adjusted in accordance with any agreed variation to this agreement.
- Not less than one month prior to the expiration of the Initial Term or any Renewal Term, SupporterHub may, by written advice to the Customer, adjust the Fees for the upcoming Renewal Term.
- SupporterHub may, by written advice to the Customer, increase the Fees if there is an increase in the charges imposed on SupporterHub by any of its Suppliers.
- SupporterHub may, at any time, audit the Customer’s use of the Services, and the Customer must provide access to its premises, and records and provide reasonable assistance and access to all information reasonably requested by SupporterHub. In the event that SupporterHub identifies any excess use of the Services, the Customer must pay for that excess use within 14 days of SupporterHub’s invoice for such Fees and pay the reasonable costs incurred by SupporterHub in conducting the audit.
Invoicing and payment
-The Customer must make payment of all amounts invoiced by SupporterHub within 7 days of the date of invoice.
-SupporterHub will invoice the Customer for the Fees payable to SupporterHub at the times set out in Schedule 1
-Unless approved by SupporterHub the Customer must add a credit/debit card to the system so it can perform automated payments on the due date.
-All payments of invoices by the Customer must be:
- by electronic funds transfer to SupporterHub’s nominated bank account or any other means specified on the invoice; and
- without any set-off or deduction by the Customer,
-The payment of any amount by the Customer is not made until the amount is received by SupporterHub in immediately available, clear funds.
-The Customer’s obligation to make payments of an invoice is not affected by the Customer being unable to use the whole or any part of a Service to which the invoice relates.
-If the Customer does not pay an undisputed invoice in full within 14 days of a notice from SupporterHub that the invoice is overdue, SupporterHub may charge the Customer:
- interest on the unpaid amount calculated at the Default Rate from the due date until the date of payment (including interest) is made in full; and
- an amount representing the costs and expenses of SupporterHub in seeking payment of the overdue amount (including any legal or debt recovery expenses incurred by SupporterHub and paid to third parties to obtain payment of the overdue amount).
-SupporterHub may reissue an invoice if any error in the invoice is later discovered.
-If the Customer has overpaid any Fees as a result of such an error, the Customer’s account will be credited with the overpayment.
- If the Customer has underpaid any charges as a result of the error, the Customer will be required to pay the correct amount to SupporterHub.
- The Customer may dispute any amount invoiced by SupporterHub but only if:
- the Customer requests in writing that SupporterHub investigate the amount disputed within six (6) months of the date of the relevant invoice;
- the Customer provides, at the same time, specific evidence which demonstrates that the disputed amount is incorrect; and
- the Customer pays the relevant invoice in full.
-If the Customer validly disputes any amount, SupporterHub will conduct investigations which are reasonably necessary and appropriate in the circumstances of the dispute. SupporterHub’s records are sufficient proof of the Customer’s usage of the services provided by SupporterHub under this agreement, unless the Customer otherwise provides proof, to SupporterHub’s reasonable satisfaction, that they are incorrect.
-At the end of SupporterHub’s investigations
- if the disputed amount has been shown to be, or the parties agree was, incorrectly invoiced, SupporterHub will refund the disputed amount within thirty (30) days of the amount being shown or agreed to be incorrect; or
- if the disputed amount has not been shown to be incorrectly invoiced, the Customer may invoke the dispute resolution procedure under this agreement.
-The Customer must:
- ensure that, for each Service, the Customer meets, and continues to meet all prerequisites or conditions for supply of that Service specified in this agreement for that Service;
- use each Service for its intended purpose and without being a nuisance to anyone;
- perform all tasks and provide all materials required of it, and by the dates specified, in this agreement;
- cooperate with SupporterHub to allow SupporterHub to provide each Service;
- provide SupporterHub with all information in the Customer’s possession, custody or control that SupporterHub reasonably requires to perform each Service, within a reasonable timeframe, and ensure that all information it gives to SupporterHub is correct, current and complete;
- comply with all applicable laws, regulations, codes and standards (including any technical standards of a Government Agency) and comply with all SupporterHub’s reasonable directions in relation to the use of each Service;
- comply with all documentation, user manuals and specifications provided by SupporterHub in respect of each Service;
- provide all relevant training and communication within the Customer’s organisation regarding processes for complying with this agreement, change management and use of the Service;
- conduct and retain backups of any of the Customer’s data (whether hosted on SupporterHub’s systems or provided to SupporterHub in connection with the Services) to the extent reasonable having regard to the nature of the data; and
- immediately report to SupporterHub, in writing, any unauthorised use of a Service.
-The Customer must not:
- unreasonably delay any action, approval, direction, determination or decision which is required of the Customer under this agreement or for SupporterHub to perform any Service;
- engage in, or procure, assist or allow any of its Personnel or any other person to engage in, any fraudulent or unauthorised use of any Service. If the Customer engages in any such use of the Service, the Customer must report such use to SupporterHub as soon as it becomes aware of such use;
- interfere with, or procure, assist or allow any of its Personnel or any other person to interfere with, the reasonable use of any Service by any of SupporterHub’s other customers; and
-Without limiting any of the foregoing, the Customer must notify SupporterHub of any fact, matter or thing which comes to its attention which is material to the performance by SupporterHub of any Service.
-The Customer is solely responsible for
understanding how to access and use each Service;
- each of its Personnel who have access to, or use of, a Service;
- any use of a Service, or instruction or direction given, through the Customer’s login and/or using the Customer’s passwords;
- any use of a Service which is fraudulent or not authorised by the Customer;
- changing any default password (or any other security safeguard such as a default PIN number) provided to the Customer by SupporterHub as part of a Service for the access to or use of a Service. The Customer releases SupporterHub from all liability in connection with any loss suffered or incurred by the Customer as a result of any third party accessing or using a Service as result of using the default password or other security safeguard; and
- implementing and maintaining the security of the Customer’s network and systems, The Customer is liable for all Charges resulting from any use of the Services by any person, whether or not authorised by the Customer, resulting from a virus, trojan, worm or other malicious computer code, denial of service attacks, a hacking incident (including a SIM, PABX, IP PBX or SIP Gateway device hack), or other means of exploiting a weakness in the Customer’s network, systems or security measures.
-The Customer acknowledges and agrees that:
- SupporterHub is not liable (whether in contract, tort or otherwise) whatsoever for any loss suffered or incurred by the Customer; and
- the Customer must indemnify, and keep indemnified, SupporterHub from and against, any and all Loss suffered or incurred by SupporterHub, as a result, whether directly or indirectly, of any fact, matter or circumstance that is within the responsibility of the Customer under this clause.
-The Customer must comply, and must ensure that each of its end users complies, with the Acceptable Use Policy.
-The Customer acknowledges and agrees that
- if SupporterHub acquires products or services from any Supplier including a carrier (as defined under the Telecommunications Act) in connection with the supply of a Service, the Customer will comply with all reasonable directions given by SupporterHub as are necessary for SupporterHub to comply with its obligations under any agreement with that Supplier;
- SupporterHub or its Supplier may:
- be required by law, to retain metadata, information and other content in relation to the Customer’s use of the Service, intercept the Customer’s communications and pass on details of the Customer’s use of the Services (including any retained metadata, information and content) to a Government Agency, a law enforcement authority or other authority;
- monitor the Customer’s usage of the Services including where requested, or directed, to do so by a Government Agency, a law enforcement authority or other authority; and
investigate any alleged misuse of a Service by the Customer including where requested, or directed, to do so by a Government Agency, a law enforcement authority or other authority.
- The supply of a Service may rely on:
- software, systems, networks, infrastructure and services provided by a third party (whether or not that third party has an agreement or understanding with the Customer) including a third party who provides Carriage Services; and
- the Customer’s systems, networks and infrastructure, (Third Party Facilities).
-Without limiting any other provision of this agreement, the Customer acknowledges and agrees that
-Due to reasons beyond SupporterHub’s control, a defect or failure in one or more Third Party Facilities may cause a delay, failure or interruption to a Service;
-Where sub clause i, applies, SupporterHub is not liable to the Customer in any way for any Loss (including Consequential Loss) that the Customer may incur or suffer as a result of any such delay, failure or interruption; and
-Where subclause i. applies, if the Customer requires SupporterHub to undertake any remedial work to repair a Service affected by such a delay, failure or interruption, SupporterHub may charge the Customer, and the Customer must pay, an additional charge for the remedial work that SupporterHub undertakes. An additional charge will be payable by the Customer even if SupporterHub commences such remedial work and only discovers, after commencing such remedial work, that the delay, failure or interruption to a Service was caused by a defect or failure in Third Party Facilities.
- The Customer must comply with any terms and conditions imposed by any Supplier in relation to Third Party Facilities.
- The Customer must ensure that all end users of a Service comply with clause 5 as if any reference to “the Customer” were a reference to each “end user”.
-Without limiting any other provision of this agreement, the Customer may terminate this agreement with immediate effect by notice in writing to SupporterHub if:
- SupporterHub breaches any material obligation under this agreement which:
- if capable of being remedied, is not remedied within thirty (30) days after receipt of a written notice from the Customer requiring it be so remedied; or
- is incapable of remedy; or
- an Insolvency Event occurs in respect of SupporterHub;
- In the event that a party does not wish to continue this agreement beyond the Initial Term, that party must give written notice of termination of this agreement to the other party at least 30 days’ prior to the expiration of the Initial Term, such termination to have effect at the expiry of the Initial Term.
- In the event that a party does not wish to continue this agreement beyond any Renewal Term, that party must give written notice of termination of this agreement to the other party at least 30 days’ prior to the expiration of the relevant Renewal Term, such termination to have effect at the expiry of the relevant Renewal Term.
- Without limiting any other provision of this agreement, SupporterHub may terminate this agreement with immediate effect by notice in writing to the Customer if:
- the Customer breaches any material obligation under this agreement which:
- if capable of being remedied, is not remedied within thirty (30) days after receipt of a written notice from SupporterHub requiring it be so remedied; or
- is incapable of remedy.
- it is required to do so by law; or
- if an Insolvency Event occurs in respect of the Customer.
- If this agreement expires or is terminated:
- the Customer must pay SupporterHub all amounts due under this agreement within fourteen (14) days of the date that the agreement so expires or terminates;
- each party must:
- as directed by the other party, return to the other party (or in the case of documents or data, destroy), all originals and copies of the other party’s written materials, documentation, data and Confidential Information (including all materials derived therefrom) other than electronic archival back up copies; and
- if applicable, cooperate with the other party to facilitate SupporterHub’s continued performance of its obligations in relation to any Services which are not cancelled; and
- the rights and obligations of the parties under this agreement cease except for:
- any accrued rights and obligations that have arisen prior to the date of termination; and
- any rights and obligations which are expressed, or by their nature are intended, to continue after termination
- Clauses 5(e), 5(g), 5(j), 6(e), 9-12 7 and this clause survive expiry or termination of all or any part of this agreement.
- Unless expressly stated otherwise, all Fees for supplies made, or to be made, under this agreement are exclusive of GST/Taxes.
If any supply by SupporterHub under, or in connection with this agreement constitutes a taxable supply for the purposes of the GST/Tax Law, the Customer must pay SupporterHub an amount equal to the GST/Tax payable on that supply in addition to, and at the same time as, the amount payable for that supply.
- Where the Customer is required under this agreement to pay or reimburse an expense or outgoing incurred by SupporterHub, the amount to be paid or reimbursed by the Customer will be the sum of:
- the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which SupporterHub is entitled; and
- if the payment or reimbursement is subject to GST, an amount equal to that GST.
- Each party represents and warrants to the other that, as at the date this agreement is formed:
- no Insolvency Event affects that party and that party is not aware of any circumstances likely to cause it to become subject to an Insolvency Event;
- that party’s execution, delivery and performance of this agreement has been properly authorised by it and its obligations under this agreement are valid, binding and are enforceable against it in accordance with its terms;
- the execution and delivery of this agreement or the transactions contemplated by it do not conflict with or result in any breach of that party’s constituent documents, any applicable law to that party or any obligation or undertaking to which that party is bound; and
- it does not enter into this agreement as trustee of any trust or settlement.
- The Customer represents and warrants to SupporterHub that, as at the date this agreement is formed:
- it has had the opportunity to obtain independent professional advice in relation to the legal, taxation, accounting and financial consequences of this agreement, and has not relied on SupporterHub in relation to any of those matters; and
- it does not rely on any representation, warranty or undertaking made by SupporterHub (or any other person) in connection with this agreement that is not expressly set out in this agreement and acknowledges that SupporterHub has been induced to enter into this agreement on that basis.
- The Customer represents and warrants to SupporterHub that:
- all information in this agreement is true, accurate, complete and is not misleading or deceptive or likely to mislead or deceive; and
- where the Customer has provided SupporterHub with information about any of the Customer’s Personnel, each of the Personnel has consented to the Customer disclosing the information to SupporterHub and for SupporterHub to use, or disclose, the information to provide the Services and exercise any rights and perform any obligations in respect of the Services.
- To the maximum extent permitted by law, SupporterHub makes no representation nor gives any guarantee or warranty (including of merchantability, acceptable quality, fitness for any particular purpose or fitness for disclosed result) in connection with any Service.
- Nothing in this agreement removes or limits any non-excludable statutory guarantees, implied conditions, and warranties or liabilities that SupporterHub has to the Customer under the Competition and Consumer Act and other consumer protection laws that may apply to the Services and that cannot be excluded (Non-Excludable Conditions or Liabilities).
- However, to the extent that SupporterHub’s liability can be limited under the Competition and Consumer Act 2010 (Cth) and other consumer protection laws that may apply to the Services, SupporterHub limits its liability to the Customer for any breach of or non-compliance with, any of the Non-Excludable Conditions or Liabilities, at SupporterHub’s sole discretion, to resupplying the applicable Service or payment of or reimbursement for the cost of having the applicable Service resupplied, and the Customer acknowledges that this limitation of liability is fair and reasonable in all the circumstances.
- SupporterHub excludes all liability to the Customer for any Consequential Loss suffered or incurred by the Customer under, or in connection with, this Agreement (whether based in contract, tort (including negligence), statute or otherwise).
- SupporterHub’s total aggregate liability to the Customer (whether based in contract, tort (including negligence), statute or otherwise) for any and all Loss the Customer suffers or incurs, and for which SupporterHub is liable under, or in connection with, this agreement or the Services is equal to the sum of all Fees paid or payable by the Customer under this agreement for the applicable Service in the twelve (12) month period immediately preceding the event(s) or circumstance(s) which gave rise to that liability.
- The exclusions and limitations of liability in this clause 9 do not apply to any loss arising from any fraudulent act or omission of SupporterHub or its employees, agents or contractors in connection with the supply of the Services.
- SupporterHub’s liability for any loss suffered or incurred by the Customer under, or in connection with, this agreement (whether based in contract, tort (including negligence), statute or otherwise) is reduced to the extent that:
- the acts or omissions of the Customer or the Customer’s Personnel;
- the use of any Third Party Facilities, caused or contributed to that Loss.
- SupporterHub’s liability to the Customer will be reduced to the extent that the Customer has not taken reasonable steps to mitigate or avoid the Loss flowing from the event giving rise to SupporterHub’s liability to the Customer.
- The Customer must indemnify, and keep indemnified, SupporterHub and its Personnel, from and against any loss (including reasonable legal costs) that any of those indemnified may suffer or incur arising out of or in connection with the Customer’s breach of this agreement or arising out of or in connection with wilful misconduct or unlawful, fraudulent or negligent acts or omissions by the Customer (or the Customer’s employees, agents, contractors or Personnel) and which relate to the access to, and use of, the Services.
- Any Intellectual Property Rights owned by either party prior to entry into this agreement, or developed independently of this agreement by either party, will continue to be owned by that party.
- None of SupporterHub’s Intellectual Property Rights are transferred to the Customer and, unless specifically authorised by this agreement, the Customer cannot and will not use or reproduce such Intellectual Property Rights for any purpose unconnected with this agreement.
- The rights and obligations of each party pursuant to this clause survive the expiry or termination of this agreement.
- The Customer must:
- not take any step to invalidate or prejudice SupporterHub’s Intellectual Property Rights in any way;
- comply with any terms and conditions applicable to any software owned by SupporterHub or any licensor to which the Customer has access in the course of receipt of the Services; and
- not directly or indirectly, reproduce, copy, modify or reverse engineer any software owned by SupporterHub or any licensor to which the Customer has access in the course of receipt of the Services.
Each party must:
- keep confidential the Confidential information of the other party and must ensure that it does not disclose or permit the disclosure of that Confidential Information to any person; and
- take all steps and do all things that are reasonably necessary or prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party. A party (Disclosing Party) may disclose the Confidential Information of the other party;
- to its Personnel, employees, agents, advisers or financiers (each a Recipient) if, and only if:
- the Recipient reasonably needs to know that Confidential Information for the purposes of this agreement;
- the Disclosing Party has informed the Recipient of the obligations of confidentiality under this agreement; and
- the Recipient has accepted the obligation to treat the Confidential Information as confidential in the same manner and to the same extent as required of the Disclosing Party;
- with the consent of the other party;
- in connection with legal or other proceedings relating to this agreement; or
- if compelled by law or by a Government Agency, court, tribunal or stock exchange.
-disclose the Customer’s Confidential Information to any Supplier where it is necessary to enable the Supplier to provide any service to SupporterHub in connection with a Service;
- use or disclose the Customer’s Confidential Information where expressly permitted under any other provision of this agreement;
- use or disclose the Customer’s Confidential Information to make contact with, or to deal directly with, the Customer’s end users and other Personnel in connection with the Services and the invoicing of those Services;
- refer to the Customer as a customer of SupporterHub in press releases, marketing, sales or financial material or reports; and
- transmit information about the Customer’s location in emergency situations.
- For the purposes of this clause 11, the terms of this agreement will be considered Confidential Information of SupporterHub.
- The rights and obligations of each party pursuant to this clause 11, survive the expiry or termination of this agreement.
- During the term of this agreement SupporterHub or its Suppliers may collect Personal Information from the Customer and the Customer’s end users for the purpose of performing the Services.
- The Customer agrees that SupporterHub may:
- hold the Personal Information and share it with its employees, contractors and agents, but only to the extent necessary to enable SupporterHub to perform the Services, send the Customer invoices, check that the Customer’s responsibilities are being met or otherwise to administer and enforce this agreement;
- use any information about the Customer for statistical purposes, so long as the Customer is not identified.
- Each party must comply with its obligations under the Privacy Act. If the Customer is a small business operator under the Privacy Act, the Customer must choose to be treated as an organisation under section 6EA of the Privacy Act during the Term of this agreement and otherwise comply with the obligations under the Privacy Act as if the Customer was an organisation under the Privacy Act.
- Where a dispute under, or in connection with this agreement arises between the parties (Dispute), it must be resolved in accordance with the procedure set out in this clause.
- Either party may refer, by written notice to the other party, the Dispute to each party’s Representative for resolution. If the Representatives cannot resolve the dispute within fourteen (14) days of the notice of dispute being given, either party may escalate the dispute to the respective group managers.
- If the dispute is not resolved within fourteen (14) days of such escalation, either party may refer the dispute to mediation in accordance with, and subject to, the Institute of Arbitrators and Mediators Australia Mediation and Conciliation Rules. During any such mediation, both parties may be legally represented.
- No party may commence legal proceedings in relation to any Dispute without first following the procedure set out in this clause. However, notwithstanding any other provision of this agreement, nothing in this clause prevents either party from seeking urgent interlocutory relief.
- Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this agreement.
- This agreement constitutes the entire understanding between the parties and supersedes all previous agreements, understandings, commitments, representations and warranties, whether written or verbal in relation to its subject matter.
- If, by reason of a Force Majeure Event, SupporterHub is prevented, hindered or delayed in the performance of any of its obligations under this agreement, SupporterHub will not be liable to the Customer for not performing, or for the manner of its performance of, such obligation to the extent to which, and for the period of time during which, SupporterHub is so prevented, hindered or delayed.
- Unless this agreement expressly provides otherwise, a party may conditionally or unconditionally give or withhold any consent or approval to be given under this agreement and is not obliged to give its reasons for doing so.
- If, at any time, any provision of this agreement is held to be invalid, illegal or unenforceable then, to the extent permitted by law, it must be read down to the extent necessary to be valid and, if it cannot be so read down, it will be severed. The validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired.
- The Customer must not assign any its rights or otherwise deal with, or transfer, any of its obligations under this agreement, without the prior written consent of SupporterHub.
- No failure or delay on the part of either party in exercising any power or right, and no grant of any indulgence or forbearance by that party, under this agreement will prejudice any of the rights or powers of that party under this agreement or be construed as a waiver of any warranty or obligation on the part of the other party under this agreement.
- The Customer must notify SupporterHub in writing of any change to the Customer’s details (including its ABN, its contact details and/or the details of its Representative).
- Any notice that a party (Giving Party) gives to the other party (Receiving Party) under this agreement will be effectively served if the notice is sent by hand or mail to:
- unless the Giving Party has been notified by the Receiving Party that the address no longer applies, the address listed in this agreement;
- any address notified by the Receiving Party to the Giving Party as its current address from time to time (whether or not that address is the registered address of the Receiving Party); or
- if the Receiving Party is a corporation, its registered address or principal place of business as registered with the Australian Securities and Investments Commission.
Notice is deemed to be received by a party:
- when delivered by hand;
- if sent by mail, two (2) Business Days after posting.
- However, if the notice is deemed to be received on a day which is not a Business Day or after 5.00pm at the addressee’s location, it is deemed to be received at 9.00am on the next Business Day.
- SupporterHub may pay or receive commission or rebates in connection with this agreement.
- Each party appoints its Representative as its agent to (non-exclusively) exercise powers, perform duties and carry out the overall supervision and coordination of the obligations of that party under this agreement. Each party’s Representative is entitled to act entirely in the interests of the party who appointed them. A party may at any time, by written notice to the other party, replace the person then acting as the party’s Representative. If a party’s Representative knows of a matter, that knowledge is taken to also be within the knowledge of that party.
- SupporterHub is an independent contractor to the Customer. No partnership, employment, agency or joint venture relationship is created or evidenced by this agreement.
- This agreement may consist of a number of copies, each signed by one party to this agreement. If so, the signed copies are treated as making up the one document and the date on which the last counterpart is executed will be the date of this agreement.
- This agreement is governed by and construed in accordance with the laws of New South Wales. The courts of New South Wales (to whose non-exclusive jurisdiction the parties irrevocably submit) have jurisdiction to settle any disputes that may arise out of or in connection with this agreement.
Acceptable Use Policy means SupporterHub’s policy for the acceptable use of the SupporterHub platform and services as set out at https://www.supporterhub.com/acceptable-use-policy/ and as updated from time to time. Affiliate means, in respect of a party: the party’s related bodies corporate as that term is defined in the Corporations Act 2001 (Cth)); and without limiting paragraph (i) of this definition, if the Customer is a franchisee, its franchisor and each of the franchisor’s related bodies corporate. Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Sydney or in Melbourne, Australia. Carriage Services has the meaning given to that term in the Telecommunications Act. Consequential Loss means:
- any loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss even if any of that Loss arises naturally (according to the usual course of things) from the fact, matter or circumstance giving rise to the Loss;
- any loss that is suffered or incurred by a party as a result of a fact, matter or circumstance which does not arise naturally (that is, according to the usual course of things) from the fact, matter or circumstance giving rise to the Loss.
- Commencement Date means the date set out in Schedule 1.
- Default Rate means the rate which is the sum of 2% and:
- Westpac Bank’s 90 day bank bill rate; or
- if there is no such reference rate, Westpac Bank’s rate for overdraft facilities in excess of $100,000 available to prime commercial customers, on the date of the default, expressed as a percentage per annum,
- Fees means the fees set out in Schedule 1.
- Force Majeure Event means a circumstance beyond SupporterHub’s reasonable control, including acts or omissions of third party network operators or service providers, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes or lockouts,
- Government Agency means any governmental, semi-governmental, administrative, fiscal, statutory, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity having operation or jurisdiction within Australia or anywhere else in the world.
- GST has the meaning give to that term in the GST Law.
- GST Law has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Implementation Services means the services described as such in Schedule 1.
- Initial Term means the period commencing on the SaaS Services Commencement Date and continuing for the term set out in Schedule 1.
- Insolvency Event in relation to a person, means the happening of any one or more of the following events:
- the person being unable to pay its debts as and when they fall due;
- a receiver, receiver and manager, administrator, liquidator, trustee for creditors or trustee in bankruptcy or analogous person being appointed over the person’s undertaking or assets or any of them;
- if the person is a natural person, an application and filing for bankruptcy being made in respect of the person; or
- if the person is a corporation:
- an application for winding up or other process seeking orders which, if granted, would render the person an externally-administered body corporate being filed and not being withdrawn within twenty (20) Business Days,
- the person being or becoming the subject or an order, or a resolution being passed, for the person’s winding up or dissolution; or
- the person entering into, or resolving to enter into, a deed of company arrangement, or an arrangement, composition or compromise with, or assignment for the benefit, of its creditors generally or any class of creditors, or proceedings being commenced to sanction such a deed of company arrangement, or arrangement, composition or compromise, other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation.
- Intellectual Property Rights means all industrial and intellectual property rights of any kind which may subsist in Australia or anywhere else in the world, including:
- patents, copyright, rights in circuit layouts, designs, trademarks (including goodwill in those marks) and domain names;
- any application or right to apply for registration of any of the rights referred to in paragraph i. of this definition, and
- all rights of a similar nature to any of the rights in paragraphs i. or ii. of this definition, whether or not such rights are registered or capable of being registered.
- Loss includes all loss, damage or liability (including liability to a third party) of any kind.
- Non-excludable Conditions or Liabilities has the meaning given to that term in clause 9(b). Personal Information means information or opinion about a person from which the person’s identity is apparent or can reasonably be ascertained.
- Personnel means, in respect of a party, the employees, agents, contractors of the party and the employees, agents and contractors of the party’s Affiliates and includes, in the case of the Customer, the Customer’s end users of the Services.
- Privacy Act means the Privacy Act 1988 (Cth) and all regulations made under it.
- Product Documentation means the document containing the details and specifications of the SupporterHub Platform, as relevant.
- Renewal Term means the term set out in Schedule 1.
- Representative is the person identified in the Parties section of this agreement, as updated from time to time by written notice to the other party.
- SaaS Services means the services described as such in Schedule 1.
- SaaS Services Commencement Date has the meaning given to that term in Schedule 1 and is the date SaaS Services will commence.
- Service(s) means the Implementation Services and the SaaS Services.
- Service Levels means the service levels (if any) applicable to the Services as set out in Schedule 1.
- Supplier means a third party supplier that SupporterHub uses to directly or indirectly supply the Services to the Customer and expressly includes any third party who provides Carriage Services.
- Tax means any tax, rate, levy, impost or duty (other than a tax on the net overall income of any person) and any interest, penalty, fine or expense relating to any of them.
- Telecommunications Act means the Telecommunications Act 1997 (Cth).
- Third Party Facilities has the meaning given to that term in clause 8(h).
- In this agreement, unless the context otherwise requires:
- words importing the singular include the plural and vice versa;
- words that are gender neutral or gender specific include each gender;
- if a word or phrase is defined its other grammatical forms have corresponding meanings; ‘includes’ means includes without limitation;
- no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it;
- a reference to:
- a person includes a firm, unincorporated association, corporation and a Government Agency;
- a person includes the person’s legal personal representatives, successors and assigns and persons substituted by novation;
- law’ includes:
- statutes, regulations or by-laws of the Commonwealth, a State, a territory or a Government Agency; and
- rules, proclamations, ordinances, orders, decrees, requirements or approvals (including conditions) of foreign, state, territorial or local jurisdiction or a Government Agency that have the force of law;
- a right includes a benefit, interest, remedy, discretion, authority or power;
- an obligation of more than one person binds them all jointly and severally;
- an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation;
- provisions or terms of this agreement or another document, agreement, understanding or arrangement include a reference to both express and implied provisions and terms;
- time is AEST – Australian Eastern Standard Time;
- month is a reference to a calendar month;
- ‘$’ or ‘dollars’ is a reference to Australian currency;
- ‘costs’ includes charges, expenses and legal costs (on full indemnity basis);
- writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes electronic transmissions;
- any thing (including any amount) is a reference to the whole or any part of it and a reference to a group of things or persons is a reference to any one or more of them;
- this agreement or any other document includes the document as novated, varied or replaced and despite any change in the identity of the parties;
- a clause or paragraph is a reference to a clause or paragraph, as the case may be, of this agreement; and
- if the date on or by which any act must be done under this agreement is not a Business Day,
- where time is to be calculated by reference to a day or event, that day or the day of that event is excluded; and
- a term or expression:
given a meaning in the Corporations Act that is not otherwise defined in this agreement, has the same meaning in this agreement as in the Corporations Act; and
- given a meaning in the GST Law, that is not otherwise defined in this agreement or in the Corporations Act, has the same meaning in this agreement as in the GST Law.