THIS HUB END USER AGREEMENT is made between
Hub Global Pte Ltd of 151 Chin Swee Road #7-12 Manhatten House, Singapore (“Supplier”)
You as the Party described in the Log-On Procedure (“End User”)
- The Supplier conducts a business of providing secure, cloud based, private platforms as a service.
- The Supplier has created the Designated Platform.
- The Supplier has created the Account for the Customer described in the Long On Procedure.
- The End User is an Authorised Account User and wishes to obtain the right to access and use the Designated Platform.
- The Supplier has agreed to grant the End User access to the Designated Platform on the terms and conditions set out in this Agreement.
1.DEFINITIONS AND INTERPRETATION
- “Account” means the account created and provided to the Customer to access the Designated Platform under the Customer Agreement.
- “Account Administrator” means the person or persons nominated by the Customer from time to time with rights to control access to the Account under the Customer Agreement.
- “Account Data” means the Data stored on or via the Designated Platform through the use of the Account and being the Customer Data, the Authorised Account User Data and End User Data;
- “Access Rights”, in relation to a person, means the rights granted to that person to access and use the Designated Platform via the Account, including any rights to upload, store, copy, manipulate or alter any Account Data.
- “Agreement” means this agreement and includes all Schedules and Annexures.
- “Authorised Account User” has the meaning given under the Customer Agreement and, unless the context otherwise requires, includes the End User;.
- “Authorised Account User Data” means Data belonging to any of the Authorised Account Users;
- “Associate” means in relation to a person, the employees, officers, directors, representatives, agents and contractors (including sub-contractors) of that person and of any Related Entity of that person (if any).
- “Background IP” means Intellectual Property (and subsequent enhancements) belonging to a Party prior to Commencement Date or acquired or created by a Party independently of this Agreement, which are used in the provision of the Services;
- “Business Day” means a day which is not a Saturday, Sunday or government declared public holiday in Melbourne, Victoria, Australia.
- “Commencement Date” means the date End User or agrees to the terms of this Agreement during the Log-On Procedure.
“Confidential Information” means all information of a confidential nature belonging to or in the possession of a Party, consisting of business, financial and other commercially valuable information in whatever form including know how, trade secrets, unpatented inventions, processes, business and marketing policies and strategies, employee and client details, formulae, computer software, code, graphs, drawings, designs, samples, devices, models and other materials provided that the following will constitute an exception to such information:
- information which is already in the public domain;
- information which hereafter becomes part of the public domain otherwise than as a result of an unauthorised disclosure by the recipient Party or its Associates;
- information which is or becomes available to the recipient Party from a third party lawfully in possession thereof and who has the lawful power to disclose such information to the recipient Party; and
- information which is rightfully known by the recipient Party (as shown by its written record) prior to the date of the disclosure to it or otherwise independently developed by an employee of the recipient Party who has no knowledge of the disclosure to it hereunder.
- “Corporations Act” means the Corporations Act 2001 (Cth).
- “Customer” means the person who invited the End User to access and use the Designated Platform using the Account;
- “Customer Agreement” means the agreement between the Supplier and the Customer under which the Supplier has allowed the Customer and its Authorised Account Users to access and use the Designated Platform.
- “Customer Data” means the Data belonging to or controlled by the Customer;
- “Data” means all information, images, sound, video or data whether in oral or written form (including electronic) created, used, amended, uploaded or stored in the course of using the Services and includes all information relating to the Access Rights of the Customer and Authorised Account Users and all information including email content, headers and attachments;
- “Designated Platform” means the platform hub described in the Customer Agreement.
- the operating manuals, technical specifications, user manuals, and other printed or electronic literature made available to the Customer by the Supplier to aid the use and application of the Services; and
- all materials published or otherwise made available by the Supplier that relate to the functional, operational and/or performance capabilities of the Services.
- "Downtime" means any period of time of any duration that the Services are not made available by Supplier to the Customer or an Authorised Account User (including the End User) for any reason, including scheduled maintenance or enhancements to the Licensed Software.
- “End User Data” means Data created, owned or belonging to the End User;
“Force Majeure” means any event beyond the reasonable control of the Parties which prevents or materially prejudices or renders materially more expensive, a Party performing one or more of its obligations (other than an obligation to pay money) and includes but is not limited to:
- acts of God, natural disasters, fire, flood, lightning strikes, earthquakes, storms, explosions, transport delays, telephone and data connection interruption;
- acts of war, terrorism, riot, civil disturbance, third party criminal activity; or
- industrial action including pickets, work to rule, work bans and strikes.
- “GST” has the meaning given in section 195-1 of the GST Act.
- “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- “Intellectual Property Rights” means statutory and other property rights in respect of trademarks, patents, circuit layouts, copyrights, confidential information and all other intellectual property rights as defined in Article 2 of the Convention establishing The World Intellectual Property Organisation of July 1967.
“Insolvent”, in relation to a person, means if that person:
- is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);
- is in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property;
- is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other Party to this agreement);
- is the subject of an application or order (and in the case of an application, it is not stayed, withdrawn or dismissed within twenty (20) Business Days), resolution passed, which is preparatory to or could result in any of (i), (ii) or (iii) above;
- has failed to comply with a statutory demand under section 459F(1) of the Corporations Act or has not had the statutory demand set aside pursuant to section 459G of the Corporations Act;
- is the subject of an event described in section 459C(2)(b) of the Corporations Act (or it makes a statement from which the other Party to this agreement reasonably deduces it is so subject);
- has something happen in connection with it that has a substantially similar effect to (i) to (vi) above under the law of any jurisdiction; or
- is bankrupt or commits an act of bankruptcy.
- “Liability” means any liability and includes Losses.
“Liability Cap Amount” means the lesser of:
- the amount paid to the Supplier by the Customer in relation to the Account for the Services (all commissions payable in respect of the Account to third parties) in the 12 month period prior to the event resulting in the relevant Liability.
- “Licensed Software” means the software described in the Customer Agreement and any other software agreed to be supplied by the Supplier to the Customer using the Account and relating to the Designated Platform (but does not include any Source Code).
- “Log On Procedures” means procedures including username and password protocols used by the End User or required to be used by the Supplier to access the Account or the Designated Platform obtain Access Rights to the Account or the Designated Platform.
- “Losses” means claims, losses, liabilities, damages, costs and expenses of any kind, including those which are prospective or contingent and those the amount of which is not ascertained or ascertainable.
- “Maintenance and Technical Support” means any services provided by the Supplier relating to the Designated Platform.
- “Party” means a party to this Agreement and “Parties” means both parties to this Agreement.
- “RCTI” means a recipient created tax invoice within the meaning of the GST Act or similar invoice within the meaning of any relevant VAT Act.
- “Related Entity” has the meaning given to it in the Corporations Act.
- “Remote Access” means functionality whereby the computer equipment of the Customer, the Authorised Account Users or the End User (as the case may be) has or have a permanent and secure data connection to the Supplier or its equipment enabling Support and Maintenance services to be carried out remotely;
- “Source Code” means the complete high level language computer programs in human readable alphanumeric characters, which when compiled, generate the object and executable program that constitutes a usable software product and any relevant documentation including the description of the development environment for the relevant software.
- “Statute” means any act of any parliament or other legislative body or any regulations or other subordinate instrument made under or pursuant to such an act.
- “Support or Maintenance Services” means any maintenance or support services relating to the Designated Platform or the Account.
- “Supplier” means Hub Global Pte Ltd of 151 Chin Swee Road #7-12 Manhatten House, Singapore.
- “Term” means the period from the Commencement Date and ending on the termination or expiration of this Agreement under its terms.
- “Third Party Software” means any software or Intellectual Property Rights belonging to or owned by a third party which are used by the Customer or any Authorised Account User or the End User in relation to the Services (but excluding the Software and Licensed Software).
- “VAT” means any type of consumption tax on a product or service whenever value is added at a stage of production or final sale of such product or sale and includes any tax which is similar in effect to the GST;
- “VAT Act” means any statute that imposes VAT in any jurisdiction in the world other than Australia;
- “Valid Tax Invoice” means a tax invoice that complies with:
- the GST Act; or
- the relevant legislation imposing VAT.
- “Viruses” means any viruses, time-bombs, back doors, trojan horses and any other form of malevolent or defective code or similar items.
- “Website” means the website www.hub3c.com or such other web address notified by the Supplier from time to time and includes all domains within such website.
Confidential Information includes confidential information owned by the Supplier or in relation to which the Supplier holds Intellectual Property Rights and includes the Licensed Software, Documentation and the Source Code relating to the Software.
- words importing the singular include the plural and vice versa;
- a word importing a gender includes the other genders;
- other grammatical forms of defined words or expressions have corresponding meanings;
- a reference to a clause, paragraph, Schedule or Annexure is a reference to a clause of, paragraph of, schedule of, or annexure to, this Agreement;
- a reference to this Agreement includes all schedules and annexures to it;
- a reference to dollars or $ means Australian dollars;
- a reference to a document or agreement includes a reference to that document or agreement as novated, altered or replaced from time to time;
- a reference to a Party or a person includes the Party’s or the person’s executors, legal personal representatives, successors, permitted transferees and assigns; and
- a reference to a specific time for the performance of an obligation is a reference to that time in the place, in the case of a notice, where the notice is to be received and otherwise, where the obligation is to be performed.
2.RIGHT TO ACCESS AND USE DESIGNATED PLATFORM
- the rights of the End User (as End User) under this Agreement cease; and
- the End User must cease to use the Designated Platform and the Licensed Software.
3.ACCOUNT AND ACCOUNT ADMINISTRATOR
- is entitled to invite Authorised Account Users to use the Designated Platform via the Account;
- may determine the Access Rights of Authorised Account Users (including the End User) in relation to the Account from time to time in its discretion;
- may alter or terminate the Access Rights of Authorised Account Users (including the End User) at its discretion; and
- is responsible for and agrees to monitor all Account Data.
4.SUPPLIES TO END USER
- Access Rights to the Designated Platform; and
- a licence to use of the Licensed Software in accordance with clause 5.
- during the Term;
- for the sole purpose of accessing and use the Designated Platform;
- on the terms and conditions agreed from time to time between the End User and the Supplier.
the Supplier and the End User agree that:
- the End User will be required to agree to enter into software license agreements for each relevant software program constituting the Licensed Software;
- until and unless the End User signs or accepts the terms of a software licence agreement for the use of a relevant software program constituting the Licensed Software the End User does not have a right or license to use that software program;
- the Supplier may change the terms upon which the Licensed Software is licensed to the Customer and Authorised Account Users (including the End User) (both in respect of the Licensed Software and any other software licensed during the Term);
6.THIRD PARTY SOFTWARE
- the End User will own the Intellectual Property Rights which reside solely in the End User Data (even if processed or generated in part using the Licensed Software);
- any information, reports, documents generated by the End User using the Licensed Software will not be owned by the Supplier;
the Supplier solely and exclusively owns:
- the Licensed Software;
- all Background IP incorporated into or used in association with the Licensed Software;
- the Supplier’s Confidential Information;
- all derivative works based on the Licensed Software or the Supplier’s Confidential Information;
- all derivative works, ideas, concepts, know-how, and techniques that the Supplier may use, conceive of or first reduce to practice in connection with the Licensed Software.
8.END USER OBLIGATIONS
- reproduce, disseminate or otherwise disclose the content of any Licensed Software except as expressly set out in this Agreement;
- electronically transmit any Licensed Software over a network except as necessary for the End User’s rights (if any) in relation to the Licensed Software;
- modify, disassemble, decompile, or reverse engineer any Licensed Software except to the extent permitted by law; and
- use the Licensed Software or Designated Platform in any way not expressly provided for by this Agreement.
- any unauthorised access to, or use or misuse of, the Designated Platform or the Licensed Software by the End User; or
- any unauthorised access to, or use or misuse of, the Designated Platform or the Licensed Software, by any third party if such access, use or misuse was permitted or facilitated by the End User
the End User will fully indemnify the Supplier in respect of such Loss or Liability.
9.MAINTENANCE AND TECHNICAL SUPPORT SERVICES
10.CUSTOMER DATA AND END USER DATA
- by the Customer or an Authorised Account User; or
- through the application of the Licensed Software or a result of it being stored, retrieved, used, altered or managed on the Designated Platform or through the Account.
- is defamatory, racist or sexist, threatening or menacing to any person or group of people, or otherwise illegal, or which in the Supplier's reasonable opinion is likely to cause annoyance or distress to any person;
- infringes the copyright or other Intellectual Property Rights of any other person, company or partnership, anywhere in the world;
- contains any Viruses or any other harmful or destructive files;
- constitutes or facilitates any conduct which is unlawful or criminal; or
- constitutes, directly or via the Supplier, the sending of any unsolicited e-mail.
- it is the best judge of the value and importance of the End User Data and that subject to any agreement it has with the Customer it will be solely responsible for instituting and operating all necessary back-up procedures, for its own benefit, to ensure that the integrity of the data can be maintained in the event of loss for any reason;
- the End User Data is or may be fully accessible via the Account to the Customer and the Account Administrator and it is solely the responsibility of the End User to ensure that the rights of the Customer and the Account Administrator over the End User Data (including over the access to, use of, alteration of, destruction of and retention End User Data) are complied with.
- access, amend or any data or information of any other person which it is not authorised to do under this Agreement; or
- disrupt or attempt to disrupt or damage the Website, the content of the Website, servers, platforms or networks of the Supplier.
- comply with all laws relating to privacy.
- effect and maintain at all times standard industry security measures, in order to safeguard the End User Data from unauthorised access and use, and to minimise the risk of unauthorised access to the Account and End User Data. Subject to the foregoing, the Supplier provides no warranty that End User Data will be secure from attack, Viruses, destruction, theft, alteration or sterilisation as a result of unauthorised access by third parties (including hackers) and regardless of how such access occurred;
- use appropriate and reliable storage media, the Supplier will regularly backup End User Data and retain such backup copies for a minimum of 30 days;
- retain logs associated with Customer and Authorised Account User activities relating to the Services for a period of 30 days after the Term has ended.
13.DATA TRANSFER UPON TERMINATION OR EXPIRATION
- Subject to any obligation owed by the End User to the Customer, the End User must ensure that all End User Data is transferred or exported to the Customer (or its equipment or storage devices) at its own expense within 14 days of such termination or expiration; and
- the Supplier and End User will provide all reasonable assistance to the Customer to ensure the transfer or export of all End User Data to the Customer provided however that the Supplier may charge fees for its services and the obligations of the Supplier are conditional on the Customer using and requesting a method and facilities that are compatible with the Supplier’s system and at the Supplier’s option the Supplier may provide (solely) a back-up copy of such End User Data.
- the Supplier will be entitled to retain and disclose any End User Data in order to comply with any legal or taxation obligation to do so;
- except for any rights expressly granted to the Supplier, the Agreement does not give the Supplier any rights to End User Data;
- the Supplier will only use or access End Data for the purposes of carrying out its obligations or exercising its rights under this Agreement; and
- the Supplier does not warrant that it will be technically possible to transfer or export all the End User to the Customer.
14.AVAILABILITY OF SERVICES
- to enable either party to comply with an order or request from a governmental, or other competent regulatory body or administrative authority, or
- to enable the Supplier to carry out work which is necessary in its reasonable opinion to maintain or improve the Services, or
- to carry out standard maintenance and support;
provided that the Supplier will use all reasonable endeavours to schedule such Downtime during hours of low usage of the Services in order to minimise impact on the Services, and to ensure that there is no permanent material degradation of the Services.
- that the End User will be able to access the Account, the End User Data or the Designated Platform at all times; or
- relating to the speed at which the End User will be able to access Designated Platform or Customer Data or End User Data or store, retrieve, alter such Customer Data and End User Data.
- the acts or omissions of the End User, Customer or Authorised Account Users;
- disruptions to or lack of access to the Designated Platform caused by a lack of internet connection or wi-fi connection (or disruptions thereto) regardless of cause; or
- any act or omission beyond the reasonable control of the Supplier, including any acts or omissions of suppliers of services to the Supplier.
15.WARRANTIES AND DISCLAIMERS
- use the Confidential Information only for the purposes for which it has been disclosed;
keep that Confidential Information confidential and not disclose it or allow it to be disclosed to any third party except:
- with the consent of the owner of the Confidential Information;
- to Associates to the extent that each has a need to know for the purposes contemplated by this Agreement and who are aware that the Confidential Information will be kept confidential;
- to its legal advisors and auditors and other consultants who require it for the purposes contemplated by this agreement or for the purpose of providing legal or commercial advice in relation to this agreement;
- if required to do so by law or a stock exchange; or
- if required to do so in connection with legal proceedings relating to this Agreement;
- take or cause to be taken reasonable precautions necessary to maintain the secrecy and confidentiality of the Confidential Information; and
- continue to keep confidential all Confidential Information of the other Party.
if the breach relates to goods:
- the replacement of the goods with equivalent goods or the supply of equivalent goods;
- the repair of such goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
if the breach relates to services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
18.LIMITATION OF LIABILITY
- if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
- if the breach relates to services the supplying of the services again; or the payment of the cost of having the services supplied again.
- the Customer’s computer equipment or the equipment of Authorised Account Users failing to operate in accordance with its specification or otherwise;
- any element of the Customer’s business not functioning correctly; or
- any act or omission of the End User or any person acting as the Customer’s representative or agent or Authorised Account Users.
- any fraud or wilful misconduct of the End User or its Associates under or in connection with this Agreement causing Liability;
- any infringement or alleged infringement of the Supplier’s or a third party’s Intellectual Property Rights by the End User or any of its Associates;
- personal injury, death or loss of or damage to real or tangible personal property (excluding data) caused by the End User any of its Associates;
- breach by the End User of any obligation of confidentiality owed to the Supplier;
- any claim, action or proceeding by a third party against any of the Indemnified to the extent that it relates to a breach of this Agreement by the End User; or
- a breach of the warranty in clause 18.5
if the failure relates to goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of such goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired, and
if the failure relates to services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
19.SUSPENSION AND TERMINATION
- if the Customer fails to pay any License Fee (or any other fees owing to the Supplier by the Customer whether pursuant to the Customer Agreement or otherwise) when due;
- if the Customer or any Authorised Account User breaches the Customer Agreement;
- of the End User breaches this Agreement and fails to rectify such breach within five Business Days of receipt of a notice setting out the details of such breach;
- if the End User uses any of the Licensed Software in an unauthorised manner or allows unauthorised third parties to use the Licensed Software, and after written notice from the Supplier to the End User notifying the End User of unauthorised use, the End User fails to prevent (with the reasonable assistance of the Supplier) such unauthorised use within ten (10) Business Days of receipt of such notice;
- immediately, and without notice to the Customer, if the End User becomes Insolvent; or
- if an event of Force Majeure continues for a period of more than two months.
20.GST AND TAXES
26.APPLICATION OF LAW
28.ASSIGNMENT AND SUB CONTRACTING
29.SURVIVAL OF TERMS