Funnelback (Shared Hosted/SaaS) Subscription Agreement
PLEASE READ THIS SOFTWARE SUBSCRIPTION AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SOFTWARE. BY ACCESSING, COPYING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Funnelback Pty Limited (Australian Business Number 34 116 105 296) ("Funnelback") owns the Software and together with its third party suppliers, own all Intellectual Property in the Software including the source code. The Software is provided for use via this Agreement and is not licenced nor sold.
1. Definitions & Interpretations
(a) Funnelback Authorised Representative means a party with written authorisation by Funnelback to market and sell the Software.
(b) Funnelback Order Form means the document of that title entered into between You and Funnelback from time to time, including amendments thereto.
(c) Cloud Hosting Provider means the provider of the Cloud Hosting Services on which the Software will be placed.
(d) Cloud Hosting Services means the resources that You have purchased on which the Software shall be placed.
(e) Commencement Date means the date on which You accepted the terms of this Agreement, including by clicking a box indicating your acceptance or by executing a Funnelback Order Form referencing this Agreement.
(f) Confidential Information means information of a Party that:
(i) is by its nature confidential; or
(ii) is designated by that Party as confidential; or
(iii) the other Party knows or ought to have known is confidential,
including, without limitation, information relating to:
(iv) the source code, design, specification and content of the Software; and
(v) the personnel, policies or business strategies of Funnelback; and
(vi) the terms upon which the Software is being licenced under this Agreement.
but does not include
(vii) information already known to the receiving party at the time of disclosure by the other party; or
(viii) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement;
(g) Documentation means any technical and user information relating to or provided with the Software provided by Funnelback at http://docs.funnelback.com/.
(h) Fees means the fees payable by You to Funnelback or a Funnelback Authorised Representative for the use of the Software as granted pursuant to this Agreement.
(i) Intellectual Property includes copyright, trade mark, design, patent, semiconductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights, whether created before, on or after the commencement date of this Agreement;
(j) Malicious Code includes viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
(k) Related Bodies Corporate means (i) where the Software is hosted in Australia, the United Kingdom or New Zealand, the same meaning as in corporate law in operation in the respective jurisdiction in which the Software is hosted, or (ii), where the Software is not hosted in Australia, the United Kingdom or New Zealand, the same meaning as in corporate law in operation in Australia.
(l) Services means the Funnelback products and services (including the Software) that are ordered by You pursuant to this Agreement.
(m) Shared vCPU Resources means Cloud Hosting Services containing non-discrete, non-delineated, non-dedicated virtual central processing resources for the purpose of placing and operating the Software.
(n) Software means the Funnelback software, including without limitation all files comprising that Software on which it functions as per the Documentation, including changes or updates as may be issued from time to time.
(o) Subscription Term means the period for which the Services are provided pursuant to this Agreement as denoted in the Funnelback Order Form.
(p) Third Party means any party other than You or Funnelback.
(q) You means one of either (i) the individual, (ii) an entity or (iii) similar, but does not include Related Bodies Corporate, who have purchased access to the Software pursuant to this Agreement.
1.2 Presumptions and interpretation
Unless the context otherwise requires a word which denotes:
(a) the singular denotes the plural and vice versa; and
(b) any gender denotes the other genders; and
(c) a person includes an individual, a body corporate, and a government.
Unless the context otherwise requires a reference to
(d) any legislation includes any regulation or instrument made under it and where amended, re-enacted or replaced means that amended, re-enacted or replacement legislation; and
(e) any other agreement or instrument where amended or replaced means that agreement or instrument as amended or replaced; and
(f) a group of persons includes any one or more of them; and
(g) a thing or amount is a reference to the whole and each part of it.
2.1 Funnelback shall make the Services available to You pursuant to this Agreement and the relevant Funnelback Order Forms during a Subscription Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Funnelback regarding future functionality or features.
3. Funnelback's Responsibilities
(a) provide the Services utilising Shared vCPU Resources of the Cloud Hosting Provider purchased by You for the purpose, the performance undertakings for which can be found in a valid and current Funnelback Cloud Hosting Agreement, Squiz Cloud Hosting Agreement, or Squiz Plus Agreement including Cloud Hosting Services. Terms and conditions of use including service levels, uptime guarantees and maintenance of such cloud hosting services are stated in the relevant cloud hosting agreement.
(b) upgrade the Software from time to time to allow for items including performance, security and functional enhancements.
(c) provide the Services only in accordance with applicable laws and government regulations.
4. Your Responsibilities
4.1 You shall:
(a) be responsible for Your compliance with this Agreement;
(b) ensure the Cloud Hosting Services purchased by You are sufficient for the operation of the Software in accordance with the Documentation, failure of which to do so shall invalidate Funnelback's undertakings with regard to the performance of the Software;
(c) prevent unauthorised access to or use of the Services, and notify Funnelback promptly of any such unauthorised access or use, and
(d) use the Services only in accordance with the Documentation and applicable laws and government regulations.
4.2 You shall not:
(a) sell, resell, rent or lease the Services;
(b) use the Services to store or transmit Malicious Code;
(c) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or
(d) attempt to gain unauthorised access to the Services or their related systems or networks.
5.1 This Agreement and the Subscription granted herein commences on the Commencement Date and shall continue until Termination.
6.1 You agree to pay the Fees within the terms specified on the invoice received from Funnelback or a Funnelback Authorised Representative.
6.2 All taxes, duties and government charges imposed or levied in Australia or overseas in connection with this Agreement will be borne by You.
6.3 In relation to taxable supplies made under this Agreement, Funnelback or an Authorised Funnelback Representative (as applicable) agrees to provide you with a tax invoice in accordance with tax legislation applicable in the respective jurisdiction.
7.1 You acknowledge that Funnelback retains ownership of the Software, the Documentation and the source code and all proprietary rights relating thereto.
7.2 You agree all Intellectual Property Rights in the Software and Documentation are and shall remain the exclusive property of Funnelback and its third party suppliers, as applicable.
7.3 Unless expressly permitted in this Agreement, You must not use any of Funnelback's or its third party suppliers' intellectual property without Funnelback or its third party suppliers' prior written consent.
7.4 Nothing in this Agreement should be construed as transferring any aspects of such rights mentioned in this clause to You or any Third Party. Funnelback reserves any and all rights not expressly granted herein.
8.1 Each of Funnelback and You agree not to disclose the other's Confidential Information.
8.2 A party will not be in breach of clause 8.1 in circumstances where that party is legally compelled to disclose the other party's Confidential Information.
8.3 You will take all reasonable steps to ensure that Your employees and agents, and any subcontractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information.
8.4 This clause will survive the termination of this Agreement.
9.1 This Agreement and the subscription granted herein shall terminate upon the happening of any of the following events:
(a)You fail to comply with any of the terms and conditions of this Agreement, including the non-payment of Fees described in Clause 5;
(b)You have received the Software from a party other than Funnelback or a Funnelback Authorised Representative;
(c)Funnelback provides You with another subscription, and You and Funnelback agree to be bound by its terms as a replacement for this Agreement; or
(d)You become liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily; or
(e)You and Funnelback agree, in writing, to terminate this Agreement.
9.2 On termination, You must immediately cease use of the Software and return to Funnelback all copies of the Documentation. Alternatively, You must destroy such Documentation and must certify in writing to Funnelback that they have been destroyed.
9.3 On termination, any amounts paid by You to Funnelback are non-refundable in their entirety.
10.1 Funnelback warrants that as at the Commencement Date it has the rights, power and authority to enter into this Agreement.
10.2 Funnelback warrants that the Software will operate substantially in accordance with the Documentation, as such may be amended or varied from time to time.
10.3 Except as expressly warranted above, Funnelback does not warrant or make any representations:
(a) that the Software is suitable for Your use, or is fit for any other purpose; or
(b) that operation of the Software will be-uninterrupted or that the Software is error-free; or
(c) regarding the results of any use of the whole or any part of the Software; or
(d) as to the accuracy, reliability or content of any data, information, service or goods obtained through any use of the whole or any part of the Software.
11.1 You hereby agree to indemnify, defend and hold Funnelback, its directors, officers, employees and affiliates harmless from and against any and all liability and costs, including reasonable legal fees incurred, in connection with this Agreement.
11.2 This clause 11 will survive the termination of this Agreement.
12. Exclusions and Limitation of Liability
12.1 Funnelback makes no express or implied warranties under this Agreement, except under clause 10 (Warranty).
12.2 To the extent permitted by law, Funnelback excludes:
(a) from this Agreement all conditions, warranties and terms implied by statute, general law, international convention or custom;
(b) all liability to You in contract for consequential or indirect damages arising out of or in connection with this Agreement even if:
- Funnelback knew they were possible; or
- they were otherwise foreseeable
including without limitation, damages for loss of business profits or other pecuniary loss and damages suffered as a result of claims by any Third Party.
(c) all liability to You in contract for direct or consequential or indirect damages arising out of or in connection with the use or inability to use the Software or Documentation including without limitation, damages for loss of business profits or other pecuniary loss and damages suffered as a result of claims by any Third Party; and
(d) all liability to You in negligence or other non-contractual cause of action in respect of which liability can be excluded for acts or omissions of Funnelback, its employees, agents and contractors arising out of or in connection with this Agreement.
12.3 Funnelback's liability to You for breach of
(a)any express provision of this Agreement, is limited to the amount paid by You in Fees.
(b)any implied condition or warranty where the exclusion of which would contravene any statute or cause this clause 12 to be void, is limited, at the option of Funnelback, to the repair of such Software or Documentation.
13. General Terms.
13.1 Governing law
This Agreement shall be governed by, and construed in accordance with the laws of (i) where the Software is installed in Australia, the United Kingdom or New Zealand, the corresponding country in which the Software is installed, or (ii) in all other cases, the laws of New South Wales, Australia. The parties agree to submit to the jurisdiction of the courts and tribunals as determined in this clause 13.1.
13.2 Entire agreement
This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
13.3 No reliance on other matters
Each of the parties acknowledges that in agreeing to enter into this Agreement it has not relied on any representation, warranty or other assurance except those set out in this Agreement.
13.4 New Versions of the Agreement
Notwithstanding clause 13.5 below, Funnelback reserves the right to modify this Agreement at any time by providing such revised Agreement to You. Your continued use of the Software shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.
13.5 Amendment of Agreement
No amendment to or modification of this Agreement shall be binding unless in writing and signed by both parties.
You must not assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of Funnelback.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law; that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
A waiver by either party in respect of a breach of a provision of this Agreement by the other party shall not be deemed to be a waiver in respect of any other breach and the failure of either party to enforce at any time a provision of this Agreement shall in no way be interpreted as a waiver of such provision.