Zapdat Pty Ltd ACN 614 561 965 (“Zapdat”) agrees to provide the Services as described below or in an Order Form on the terms specified in this Subscription Agreement (the “Agreement”).
By ticking a box to indicate your acceptance to this Agreement on our web page or mobile application or by submitting an Order Form and electronically signing such form you are entering into a contract with Zapdat.
Availability / Service Level:
Zapdat will use reasonable efforts to ensure the Service is available twenty-four hours a day, seven days a week. However, the Client understands and acknowledges that on occasion the Services may be unavailable to permit maintenance, during scheduled downtimes, or other development activity to take place, or in the event of Force Majeure. Zapdat will use reasonable efforts to give advance notice of any scheduled downtime.
The Client understands and acknowledges that the Software interoperates with a range of third-party service features. Zapdat does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, Zapdat may cease to make available that feature to the Client. To avoid doubt, if Zapdat exercises its right to cease the availability of a third-party feature, the Client will not be entitled to any refund, discount or other compensation.
2. CLIENT OBLIGATIONS
Authorisations: The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.
Fees: The Client must pay to Zapdat the Fees in the amount and in accordance with the payment terms specified in the Order Form by credit card or EFT without any set off or deduction.
GST:The Fees exclude any applicable goods and services tax (GST), which the Client must pay on taxable supplies under this Agreement. For these purposes, the term “GST” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Overdue amounts: Zapdat may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by Zapdat’s primary trading bank as at the due date (or, if Zapdat’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
Increases: By giving at least 30 days’ written notice, Zapdat may increase the Fees once per calendar year. Fees updated under this clause are deemed to be the Fees listed in the Order Form.
If the Client does not wish to pay the increased Fees, it may terminate the Agreement on no less than 30 days’ notice, provided that the notice is received by Zapdat before the effective date of the Fee increase, and that all due and outstanding Fees are paid for by the date of the notice. If the Client does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.
Refunds and other remedies:Except as expressly provided otherwise in this Agreement, all amounts paid through this site are non-refundable. Further information on the steps that Zapdat will take to remedy any breach of any non-excludable condition or warranty/guarantee is provided under the heading “Remedies limited” below.
Security: While our third-party payment gateway and website hosting providers employ secure technology for transactions with our customers, we will not be responsible for any damages, including consequential losses (whether direct or indirect), that may be suffered by a customer whose credit or debit card or bank account information is used in a fraudulent or unauthorised manner by any person other than Zapdat.
Zapdat may request further information from you, such as a copy of your credit card and/or other identification documentation, as part of our internal validation procedures. These procedures help protect bank and credit card account holders from online fraud. Until your order has passed our internal fraud prevention checks, your order will remain on pending status. If further information is requested and you do not provide the requested information within such time as Zapdat considers appropriate at its discretion, your order will be cancelled and, if your payment has been received, it will be refunded back to you.
4. INTELLECTUAL PROPERTY
Ownership: Title to, and all Intellectual Property Rights in, the Software, the Services, the Website, and all Underlying Systems is and remains the property of Zapdat.
Data: Title to and all Intellectual Property Rights in the Data (as between the parties) remains the property of the Client. The Client grants Zapdat a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to store, make available and communicate the Data to the extent that is necessary for Zapdat to exercise its rights and to perform its obligations in accordance with the Agreement.
Know how: To the extent not owned by Zapdat, the Client grants Zapdat a royalty free, transferable, irrevocable and perpetual licence to use for Zapdat’s own business purposes any know how, techniques, ideas, methodologies, and similar Intellectual Property used by Zapdat in the provision of the Services.
Feedback: If the Client provides Zapdat with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback): (i) all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by Zapdat; and Zapdat may use or disclose the feedback for any purpose.
Security: Each party must, unless it has the prior written consent of the other party, keep confidential at all times the Confidential Information of the other party; effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of this clause 5.
Permitted Disclosure: The obligation of confidentiality in clause 5 a. does not apply to any disclosure or use of Confidential Information: (i) for the purpose of performing the Agreement or exercising a party’s rights under the Agreement; (ii) required by law (including under the rules of any stock exchange); (iii) which is publicly available through no fault of the recipient of the Confidential Information or its personnel; (iv) which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or (v) by Zapdat if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Zapdat enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 5.
Supplier access to Data: The Client acknowledges that Zapdat may require access to the Data to exercise its rights and perform its obligations under the Agreement; and to the extent that this is necessary but subject to clause 5, Zapdat may authorise a member or members of its personnel to access the Data for this purpose. The Client must arrange all consents and approvals that are necessary for Zapdat to access the Data as described in this clause 6.
Agent: The Client acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, Zapdat is acting as an agent of the Client for the purposes of the Privacy Act 1988 and any other applicable privacy law. The Client warrants that it has all necessary consents from the relevant individual to enable Zapdat to collect, hold and process that information in accordance with this Agreement.
Backups of Data: While Zapdat will take standard industry measures to back up all Data stored using the Services, the Client agrees to keep a separate back-up copy of all Data uploaded by it onto the Software.
Indemnity: The Client indemnifies Zapdat against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by Zapdat’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is objectionable, incorrect or misleading.
7. INVITED USERS
The Client acknowledges and agrees that, subject to any applicable written agreement between the Client and the Client’s Invited Users, or any other Applicable Laws:
- The Client determine who is an Invited User and what level of user role access to the Service and Platform that Invited User has;
- The Client is responsible and liable for all Invited Users’ use of the Service;
- The Client controls each Invited User’s level of access to the Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be; If there is any dispute between The Client and an Invited User regarding access to the Service, the Client shall decide what access or level of access to the Service that the Invited User shall have, if any, and Zapdat takes no responsibility for this decision.
Any breach of this Agreement by an Invited User, will be treated by Zapdat as a breach of this Agreement by the Client, and will be dealt with in accordance with the terms of this Agreement.
The Client warrants and agrees that it will disclose and obtain consent and permission from Invited Users in relation to the Services ability to track and store the information of the Invited User and indemnify Zapdat absolutely in respect of same.
To the extent permitted by law, Zapdat accepts no liability for the accuracy of any information made available using the Platform. Any reliance on the information available through the Platform is at the Invited User’s own risk.
Any consent or statement made by an Invited User through the Services is valid and binding unless and until revoked by the Invited User, and Zapdat may rely on a consent or statement made through the Services without any need to further verify the veracity of that consent;
Mutual Warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.
No Implied Warranties: To the maximum extent permitted by law Zapdat’s warranties are limited to those set out in this Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Australian Competition and Consumer Act (Cth) 2010) to the extent permitted by law are expressly excluded. Zapdat makes no representation concerning the quality of the Services and does not promise that the Services will: (i) meet the Client’s requirements or be suitable for a particular purpose; and (ii) be secure, free of viruses or other harmful code, uninterrupted or error free.
Limitation of Remedies: The liability of Zapdat for any breach of this Agreement is limited, at Zapdat’s option, to: (i) supplying the Services again; and/or (ii) paying the costs of having the Services supplied again.
Remedies limited: To the maximum extent permitted by law, Zapdat and its officers, employees, agents, consultants, licensors, partners and affiliates expressly limit their liability for breach of any non-excludable condition or warranty/guarantee implied by virtue of any legislation to the following remedies (the choice of which is to be at Zapdat’s sole discretion):
- the supply of the services again; or
- the payment of the cost of having the services supplied again.
In any event, the maximum aggregate liability of Zapdat under or in connection with this Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not in any calendar year exceed an amount equal to the Fees paid by the Client under this Agreement or any Order Form in the previous calendar year (which in the first year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability).
Unrecoverable Loss: Neither party is liable to the other under or in connection with the Agreement or the Services for any loss of profit, revenue, savings, business, use, (including Data), and/or goodwill; or for any consequential, indirect, incidental or special damage or loss of any kind.
Exceptions: Clauses 9 a. and 9 b. do not apply to limit a party’s liability in connection with the Agreement for: (i) personal injury or death; or (ii) fraud or wilful misconduct, or a breach of clauses 5 or 6.
No Liability for Other’s Failure: Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
10. TERM, TERMINATION AND SUSPENSION
Duration and Renewal: Unless terminated under this clause 10, this Agreement: starts on the Start Date and will continue in full force and effect for the duration of the Service Period, which unless expressly agreed otherwise is 12 months. Either party may terminate the Agreement on no less than 30 days’ written notice to the other party in advance of the end of a Service Period.
Termination: Either party may, by notice to the other party, immediately terminate this Agreement if the other party: (i) breaches any material provision of the Agreement and the breach is not remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or the breach is not capable of being remedied; (ii) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or charge’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or (iii) is unable to perform a material obligation under this Agreement for 30 days or more due to Force Majeure.
Consequences of termination or expiry: Termination or expiry of this Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry. On termination or expiry of the Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
Surviving Clauses: Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 4, 5, 6, 7, 8, 9 and 10, continue in force.
Suspending Access: Without limiting any other right or remedy available to Zapdat, Zapdat may restrict or suspend the Client’s access to the Services where the Client (including any of its personnel): (i) undermines, or attempts to undermine, the security or integrity of the Services or any Underlying Systems; (ii) uses, or attempts to use, the Services for improper purposes; or in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service; or (iii) has otherwise materially breached the Agreement (in Zapdat’s reasonable opinion).
Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party immediately notifies the other party and provides full information about the Force Majeure; uses best efforts to overcome the Force Majeure; and continues to perform its obligations to the extent practicable.
No Third-Party Rights: No person other than Zapdat and the Client has any right to a benefit under, or to enforce, this Agreement.
Waiver: To waive a right under this Agreement, that waiver must be in writing and signed by the waiving party.
Independent Contractor: Zapdat is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
Notices: A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Order Form or otherwise notified by the other party. If the notice is a notice of termination, a copy of that email must be immediately delivered (by registered post, hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.
Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.
Amendments: Any amendments to the Agreement made by Zapdat will be notified in writing.
Entire Agreement: The Agreement sets out the entire agreement between the parties relating to the supply of Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.
Subcontracting and assignment: The Client may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of Zapdat, that consent not to be unreasonably withheld. The Client remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing. Any change of control of the Client is deemed to be an assignment for which Zapdat’s prior written consent is required under clause 11 i. In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.
Governing Law: The Agreement is governed by, and must be interpreted in accordance with, the laws of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the Courts of New South Wales in relation to any dispute connected with the Agreement or the supply of Services.
Electronic execution: Notwithstanding the use of the words “writing,” “execution,” “signed,” “signature,” or other similar words, the Parties intend that the use of electronic signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable law including the Electronic Transactions Act 2000 (NSW), or any similar laws.
Definitions: In the Agreement, the following terms have the stated meaning:
“Agreement”, means this Subscription Agreement.
“Available” means the Services are available for access and use on the Website or via a mobile application and operating according to the Specifications.
“Confidential Information”, means the terms of this Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement. Intellectual Property owned by Zapdat (or its licensors) and the Software constitute Zapdat’s Confidential Information. The Data is the Client’s Confidential Information.
“Data”, means all data, content and information (including but not limited to Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into the Software for the provision of the Services.
“Fees”, means the Fees due under this Agreement as compensation for the provision of Services set forth on the Order Form.
“Force Majeure”, means an event that is beyond the reasonable control of a party, excluding (i) an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or (ii) an event caused by a lack of funds for any reason.
“Intellectual Property”, means any and all registered and unregistered rights granted, applied for or otherwise now or in existence in the future under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world; and includes any enhancement, modification or derivative work of the Intellectual Property.
“Intellectual Property Rights” means all copyrights, patents, trademarks and all worldwide rights granted under statute, common law or equity relating to inventions, registered and unregistered, designs, data and databases, confidential information, know how, and all other rights resulting from intellectual activity
“Payment Terms” means the payments terms for the payment of any Fees due under this Agreement established on the Order Form.
“Personal Information”, has the meaning given in the Privacy Act 1988 (Cth).
“Related Service”, means any related service described in the Order Form and any further services that Zapdat agrees to provide to the Client under this Agreement or the Order Form.
“Services”, means Zapdat web platform, a data tracking, task management and communications platform for use by firms, their staff and their customers.
“Service Period”, means the period of time during which Zapdat will provide the Services indicated in an Order Form.
“Software”, means Zapdat’s software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the same, that Supplier provides remote access to and use of as part of the Services.
“Specifications”, means the specifications for the Services set forth in an Order Form
“Start Date”, means the date specified in an order form.
“Underlying Systems”, means the Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third-party solutions, systems and networks.
“Website”, means the Internet site at the domain set out in an Order Form, or such other site notified to the Client by Zapdat.
Interpretation: In the Agreement headings are for ease of reference only and do not affect the interpretation of the Agreement. Words in the singular include the plural and vice versa. A reference to party to the Agreement includes that party’s permitted assigns; personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include Zapdat. A person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity. Including and similar words do not imply any limit; and a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them. No term of the Agreement is to be construed against a party because the term was first proposed or drafted by that party.