These Automated Life Subscription Terms are entered into between you and Automated Life Pty Ltd ACN 647 697 809 (we, us, our).
In consideration of your access to and/or use of the Product, you agree:
• for and on behalf of the subscriber specified in the Engagement Letter, to be bound by and abide by the terms and conditions set out in these Automated Life Subscription Terms. By clicking ‘I agree’, you warrant that you are duly authorised to enter into these Automated Life Subscription Terms for and on behalf of the subscriber; and
• to be bound by and abide by the End User Terms of Service.
Automated Life subscription terms
1. Defined terms & interpretation
1.1 Defined terms
In this document:
Additional Service Proposal is defined in section 6.2.
Additional Services means services outside the then-current scope of the services provided by us under this Agreement, that you request and that we agree to provide (for example additional training services or support services required outside of Business Hours), in accordance with section 6.1.
Administrator means your nominated personnel who is (or are) authorised by you to access and use the Product for the purpose of administering, managing and monitoring Client Data, Users and the use of the Product by Users.
After Hours means any time that is not a Business Hour.
Agreement means the Engagement Letter together with these Automated Life subscription terms.
App Licence Agreement means the terms and conditions under which an End User Application is licensed for use by you and End Users, and includes the end user license terms available at https://www.apple.com/legal/internet-services/itunes/dev/stdeula/ (for iOS) and https://play.google.com/intl/en-US_us/about/play-terms/index.html (for Android) or such amended or replacement terms as may be made available by Apple or Google from time to time.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means:
(a) for receiving a notice under section 15, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
(b) for all other purposes, a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Australia.
Business Hours means any time between 9.00am and 5.00pm on a Business Day.
Client Data means data, information (including Personal Information) and other materials entered or uploaded into the Product by you or your Administrators.
Commencement Date means the date detailed on the acceptance page of the Engagement Letter, unless a later date is agreed in writing by both parties.
Confidential Information of a Disclosing Party means:
(a) the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this Agreement:
(i) information that is by its nature confidential;
(ii) information that is designated by the Disclosing Party as confidential; and
(iii) information the Receiving Party knows, or ought to know, is confidential;
(b) all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and
(c) all copies of the information, notes and other records referred to in paragraphs (a) and (b),
(d) in our case, includes the Product (including any data stored in the Product that is not Client Data); and
(e) in your case, includes the Client Data,
but in all cases excludes information that:
(f) the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
(g) is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees).
Designated Number of Users means the number of Users which must not exceed the maximum number of Users specified in the Engagement Letter without our prior written approval.
Disclosing Party is defined in section 10.2(a).
Documentation means the documentation, available on our website, which sets out a description of the Product and instructions for its access and use, and includes changes (including additions) to that documentation from time to time.
End User means any person authorised by you to access and use Client Data using the Product.
End User Application means:
(a) each Automated Life software application which can be downloaded from Apple’s App Store or the Google Play store; and
(b) any other application that we may release from time to time that enables End Users to access and use Client Data.
End User Terms of Service means the terms and conditions, available on our website, under which an End User is authorised to use the Product, and includes changes (including additions) to those terms and conditions from time to time.
Engagement Letter means the letter to which these Automated Life subscription terms are attached.
(a) the Setup Fees;
(b) the Licence Fees;
(c) the Support Fees; and
(d) the Training Fees,
and any other amounts payable by you under this Agreement, including fees for Additional Services agreed by the parties in accordance with the process set out in section 6.1 payable in the manner that we specify from time to time.
Force Majeure Event is defined in section 13.
Initial Term is two years commencing from the Commencement Date.
Initial Training means the training provided to Supported Administrators (which will be no longer than two hours).
Insolvency Event means any of the following events:
(a) a party disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
(b) a party ceases to carry on business;
(c) a party ceases to be able to pay its debts as they become due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of a party’s assets, operations or business;
(e) any step is taken to enter into any arrangement between a party and its creditors; or
(f) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of a party’s assets or business.
Intellectual Property Rights means all intellectual property rights, including the following rights:
(a) patents, copyright, rights in circuit layouts, designs, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have Confidential Information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) that may subsist anywhere in the world (including Australia),
whether or not such rights are registered or capable of being registered.
ISP Services is defined in section 5.2.
Licence Fees means the annual licence fees payable by you for the access and usage rights granted in respect of the Product, as specified by us from time to time. The Licence Fees for the first year of the Initial Term are set out in the Engagement Letter.
Licence Period means the Initial Term and all Renewal Periods.
Personal Information means information or an opinion, whether true or not, and whether recorded in a material form or not, about an identified individual or an individual who is reasonably identifiable.
Personnel means, in relation to a party, the officers, employees, contractors and agents of that party.
(a) the hosted Automated Life software application provided by us under this Agreement that enables Administrators to administer, manage and monitor Client Data, Users and the use of the Product; and
(b) the End User Applications, which enable End Users to access Client Data,
as more particularly described in the Documentation.
Receiving Party is defined in section 10.2(a).
Renewal Period means a 12 month term after the Initial Term, as set out in section 3.2(b).
Setup Fees means the fees payable by you for the Setup Services, as set out in the Engagement Letter or otherwise specified by us from time to time.
Setup Services means the configuration of the Product for you, and the Initial Training of the Supported Administrators.
Support Enquiry means any call, email or enquiry to use our Support Services.
Support Fees means the fees payable by you for the Support Services, and advised by us from time to time.
Support Services means the customer support services provided by us during Business Hours to support you in your use of the Product.
Supported Administrators means Administrators who may make use of Support Services, the number of which must not exceed the number specified in the Engagement Letter without our prior written approval.
Term means the period commencing on the Commencement Date and ending on the effective date of termination of this Agreement under section 12.
Training Fees means the fees payable by you for the Training Services, as specified in the Engagement Letter.
Training Services means the training provided to you in accordance with the Engagement Letter.
(a) the Administrators; and
(b) the End Users.
In this Agreement, unless otherwise stated, or where the context otherwise requires:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(d) a reference to A$, $A, dollar or $ is to Australian currency;
(e) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(f) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it;
(g) if a day on which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed of the event must occur on or by the next Business Day; and
(h) the meaning of general words is not limited by specific examples introduced by including, such as, for example or similar expressions.
Headings are for ease of reference only and do not affect interpretation.
2. Setup Services
We will provide the Setup Services to you as soon as practicable after the Commencement Date (or at such later date as the parties may agree in writing).
2.2 Information and assistance
(a) acknowledge that the provision of the Setup Services will require you to provide us with certain information and access to your systems, data and Personnel; and
(b) agree to promptly provide us with all such information and access at our request.
3. Use of Product
3.1 Grant of licence
Subject to your payment of the Fees in accordance with this Agreement, we grant you a non-exclusive, non-transferable, revocable licence to permit the Designated Number of Users to access and use the Product by issuing them with non-transferable user names and passwords:
(a) in the case of Administrators – within the access levels and permissions allowed by the Product from time to time as allocated to each Administrator (whether by another Administrator, or by us as part of the Setup Services); and
(b) in the case of End Users – within the access levels and permissions allowed by the Product from time to time as allocated to each End User by an Administrator.
3.2 Licence Period
The licence granted to you under section 3.1 commences on the Commencement Date and will continue:
(a) for the Initial Term; and
(b) automatically for successive 12 month periods thereafter (each, a Renewal Period),
unless this Agreement is terminated earlier in accordance with section 12.
(a) acknowledge that the Product may be used in conjunction with the End User Applications, which are licensed to you on the terms and conditions of relevant App Licence Agreement; and
(b) agree to be bound by and abide by, and acknowledge that we can enforce, the terms of the applicable App Licence Agreement in connection with your (and your Users’) use of an End User Application.
4. Usage conditions and responsibility for users
(a) comply with all reasonable directions issued by us regarding access to and use of the Product; and
(b) ensure the number of Users authorised to access the End User Applications does not exceed the Designated Number of Users; and
(c) ensure that each User who accesses or uses the Product is properly trained in the operation of the Product.
4.2 Access and usage restrictions
You must not:
(a) allow any person (other than Users) to access or use the Product for any purpose without our prior written consent;
(b) modify, add to, adapt, delete or amend any part of the Product without our prior written consent;
(c) sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan, or otherwise distribute all or part of the Product, or any adaptation, modification or derivative of all or part of the Product;
(d) reverse engineer, disassemble, or decompile any software forming part of the Product, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law;
(e) use the Product:
(i) for any unlawful purpose; or
(ii) in a manner than contravenes any applicable laws;
(f) remove, obscure or interfere with any copyright, acknowledgment, attribution, trade mark, warning, disclaimer statement, rights management information or serial numbers affixed to, incorporated in or otherwise applied in connection with the Product;
(g) (except in respect of Client Data) copy or download, in a systematic manner, any content, graphics, video, text or animation from the Product, or communicate or otherwise distribute such systematically-obtained content, graphics, video, text or animation (or allow any User to do so);
(h) directly or indirectly, introduce or permit the introduction by your Personnel (including any User) of any virus, worm, trojan or other malicious code into the Product, or in any other manner whatsoever, corrupt, degrade or disrupt the operation of the Product; or
(i) enter or upload any data, information or other materials into the Product, or otherwise use the Product:
(i) to engage in any activity which infringes a third party’s rights, or in a manner which interferes with the rights of any other person;
(ii) to infringe our intellectual property rights (including trade marks and copyright) or the intellectual property rights of any third party;
(iii) in any way that is threatening, abusive, harassing, defamatory, obscene, fraudulent, misleading or deceptive or otherwise illegal; or
(iv) in any way that constitutes misuse or resale of the Product or any associated materials,
and you must not permit any third party to do any of the things listed in this paragraph (i).
4.3 Responsibility for Users
(a) You must ensure that each User keeps his or her login credentials confidential and secure.
(i) agree that you will be responsible and liable for the acts and omissions of each User in connection with the Product and this Agreement as if they were your acts and omissions; and
(ii) accept all liability for any unauthorised use of any login credentials issued to any User (other than any unauthorised use resulting from any negligent act or omission legally attributable to us).
(c) You must ensure that each User:
(i) does not reverse engineer, disassemble, or decompile any software forming part of the Product unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law;
(ii) does not use the Product:
(A) for any unlawful purpose; or
(B) in a manner than contravenes any applicable laws; and
(iii) complies with the App Licence Agreement applicable to that User’s use of an End User Application; and
(iv) accepts and complies with the End User Terms of Service.
(d) We may suspend, restrict or terminate a User’s access to the Product in accordance with the End User Terms of Service at any time without having to give you notice.
5. Support and Training Services
5.1 Provision of Support Services
(a) Subject to your payment of the Fees in accordance with this Agreement, we will provide you with Support Services for a maximum of 10 Support Enquiries per annum without charge. Additional Support Services for Support Enquiries (including After Hours, if available) will be billed at $200 per hour or part thereof.
(b) Despite paragraph (a), additional costs will not be incurred by you for Support Enquiries relating to a genuine defect or error in the Product.
(c) Onsite attendance may attract additional costs, which will not be incurred unless authorised by you.
5.2 Provision of Training Services
Subject to your payment of the Fees in accordance with this Agreement, we will provide you with Training Services at the time(s) and for the period specified in the Engagement Letter.
5.3 Equipment, hardware and third party services
You are solely responsible for obtaining and maintaining all equipment, hardware and software, and all telecommunications services, that you and your Users require to access and use the Product and any End User Application, including access to an account for the provision of internet services (ISP Services) with an internet service provider.
6. Additional Services
6.1 Additional Services
Where you request in writing that we provide Additional Services in relation to the Product, we will consider the Additional Services requested by you and will notify you within a reasonable period of time whether it is willing to provide those Additional Services.
Where we are willing to provide those Additional Services, the parties will negotiate in good faith to agree a written proposal for the Additional Services (Additional Service Proposal). We will be under no obligation to provide the relevant Additional Services unless a duly authorised representative of each party has signed that proposal.
7. Intellectual Property Rights
7.1 Client Data
We agree that you (and/or your third party licensors) own (and will retain) all rights, title and interest (including all Intellectual Property Rights) in the Client Data. You grant to us a non-exclusive licence to store and use Client Data in the Product to enable us to:
(a) perform our obligations under this Agreement (including to make Client Data accessible to End Users on any End User Application); and
(b) improve our products and services.
7.2 Product and Documentation
You agree that we (and/or our third party licensors) own (and will retain) all rights, title and interest (including all Intellectual Property Rights) in the Product, any End User Application, and the Documentation.
8.1 Payment of Fees
You must pay the Fees as invoiced by us from time to time.
8.2 Fee increases
We may increase the Licence Fees and Support Fees annually, with effect from the first anniversary of the Commencement Date, by giving you not less than 90 days prior written notice of such increase.
8.3 Interest on late payments
If any amount payable under this Agreement is in arrears for more than 30 days, we reserve the right to charge interest on such overdue amounts, calculated daily at the Westpac Bank Indicator Rate plus 2% per annum from the due date until the outstanding amount is paid.
9.1 Defined terms
In this section 9, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
9.2 GST inclusive amounts
For the purposes of this Agreement, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under or in connection with this Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
9.3 Consideration GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as GST inclusive, does not include an amount on account of GST.
9.4 Gross up of consideration
Despite any other provision in this Agreement, if a party (Supply Maker) makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this Agreement as GST inclusive):
(a) the consideration payable or to be provided for that supply under this Agreement but for the application of this section (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supply Maker, an amount equal to the GST payable by the Supply Maker on that supply; and
(b) the amount by which the GST exclusive consideration is increased must be paid to the Supply Maker by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
9.5 Reimbursement (net down)
If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
10. Confidentiality and privacy
10.1 Use of Confidential Information
A Receiving Party may use Confidential Information of the Disclosing Party only for the purposes of this Agreement.
10.2 Disclosure of Confidential Information
(a) Subject to section 10.3, a party (Receiving Party) must keep confidential all Confidential Information of the other party (Disclosing Party) and may only disclose the Confidential Information for the purposes of this Agreement, and then only to those persons who:
(i) have a need to know for the purposes of this Agreement (and only to the extent that each has a need to know); and
(ii) before disclosure, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under this Agreement.
(b) A Receiving Party must ensure that each person to whom it discloses Confidential Information of the Disclosing Party under this section 10.2 complies with the obligations imposed on them in accordance with paragraph (a).
10.3 Disclosure required by law
If a Receiving Party is required by law to disclose any Confidential Information of a Disclosing Party to a third person (including government), the Receiving Party must:
(a) before doing so:
(i) notify the Disclosing Party; and
(ii) give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and
(b) notify the third person that the information is confidential to the Disclosing Party.
10.4 Compliance with privacy laws
Each party agrees that, to the extent that they come into possession of any Personal Information in the course of exercising their rights or performing their obligations under this Agreement, they will comply with the provisions of the Privacy Act 1988 (Cth).
10.5 Remedy for breach of confidentiality or privacy obligations
Each party acknowledges that damages may be an insufficient remedy for a breach, or suspected breach by the Receiving Party of its obligations under this section 10, and agrees that the Disclosing Party may seek such equitable relief (including injunctive relief) as is necessary to remedy or prevent such breach without having to prove or establish any special damage arising from such breach or suspected breach.
11. Exclusion, limitation of liability and indemnity
11.1 No exclusion or limitation
(a) To the extent that you acquire goods or services from us as a consumer within the meaning of the Australian Consumer Law, you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
(b) Nothing in this section 11 operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
(i) contravene that statute; or
(ii) cause any term of this Agreement to be void.
(c) To the extent permitted by law, our liability in respect of Non-excludable Obligations is limited to:
(i) the repair or, if necessary, the replacement of the Product; and
(ii) the supplying again of any services supplied under this Agreement.
11.2 Exclusion of implied obligations and limitation of liability
Except in relation to Non-excludable Obligations:
(a) all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom, under the general law or by statute are expressly excluded under this Agreement; and
(b) our liability to you arising directly or indirectly under or in any way connected with this Agreement or the performance or non-performance of this Agreement (and whether arising under any statute, in tort (for negligence or otherwise), or on any other basis in law or equity), is limited as follows:
(i) we exclude all liability for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you in relation to the Product or under or in any way connected with this Agreement; and
(ii) our total aggregate liability in respect of the Product, or under or in any way connected with this Agreement, is otherwise limited to the amounts paid by you to us under this Agreement in the 12 months immediately preceding the date on which the claim giving rise to such liability arose.
11.3 No guarantee of access
Except in relation to Non-excludable Obligations, you acknowledge and agree that we make no representations, warranties or guarantees in relation to the availability, continuity, reliability or security of the Product or End User Applications (or any services provided in connection with the Product or End User Applications). We will not be liable if the Product or End User Applications (or any services provided in connection with the Product or End User Applications) are unavailable for any reason, including directly or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious or wilful acts or omissions of third parties (including our third party service providers);
(c) maintenance or repairs carried out by us or any third party service provider in respect of any of the systems used in connection with the provision of the Product;
(d) services provided by third parties (including ISP Services) ceasing or becoming unavailable; or
(e) Force Majeure Events.
You indemnify us against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against us), that we may sustain or incur as a result, whether directly or indirectly, of any claim by any User against us in any way related to the Product or End User Applications.
11.5 Client Data
You acknowledge and agree that you are solely responsible for the accuracy, completeness and lawfulness of the Client Data.
12. Suspension and Termination
(a) suspend access to the Product at any time for any reason, including due to a breach of clause 4.2; or
(b) impose limits on certain features or restrict your access to all or part of the Product,
without having to give you notice.
12.2 Termination without cause
(a) Either party may terminate this Agreement without cause by giving not less than sixty (60) days’ notice prior to the expiry of:
(i) the Initial Term; and
(ii) any Renewal Period.
(b) To avoid doubt, if neither party gives notice of termination within the timeframe specified in paragraph (b) above and section 15, then this Agreement will automatically renew:
(i) at the expiry of the Initial Term – for the Renewal Period; and
(ii) at the expiry of any Renewal Period – for a further Renewal Period,
and you will be required to pay all applicable Fees for that Renewal Period in accordance with section 8.
12.3 Termination for cause
Either party may terminate this Agreement immediately by notice in writing if the other party:
(a) breaches any term of this Agreement that is not capable of remedy;
(b) breaches any term of this Agreement that is capable of remedy and fails to rectify that breach within 14 days of receiving a notice from the other party requiring it to do so; or
(c) suffers an Insolvency Event.
12.4 Rights and obligations on expiry or termination
On the date of expiry or effective termination of this Agreement:
(a) the licence granted under section 3.1 terminates;
(b) you must immediately cease using (and must procure that all of your Users immediately cease using) the Product and any End User Applications;
(c) you must within thirty (30) days of such termination send to us, or otherwise dispose of in accordance with our directions, all of our Confidential Information relating to the Product (including the Documentation) then in your (or your Users’) possession or control; and
(d) you acknowledge and agree that:
(i) we have no obligation to retain or return to you any Client Data; and
(ii) we will render inaccessible all of your Client Data in accordance with our then-current data policies.
13. Force majeure
(a) The non-performance or delay in performance by a party of any obligation in this Agreement is excused during the time and to the extent that such performance is prevented by a circumstance or event beyond its reasonable control (Force Majeure Event), provided that the party affected by the Force Majeure Event uses all reasonable endeavours to perform as soon as possible its obligations under this Agreement (including by the use of reasonable workarounds and interim measures).
(b) This section 13 does not apply to any obligation to pay money.
We may vary this Agreement from time to time by notice in writing to you. If the change is likely to:
(a) benefit you or have a neutral or minor detrimental impact on you – the change will be effective upon such notification; or
(b) have a significant detrimental impact on you – the change will be effective 10 days after we have notified you.
If you do not accept a change made by us to this Agreement, you may terminate this Agreement by notice in writing to us to that effect (in which case you must immediately cease using the Product).
(a) Any notice required or authorised to be given or served on a party under this Agreement must be in writing and delivered personally, by pre-paid express post, or by email, addressed to the relevant party.
(b) Notice will be deemed given:
(i) on the date of personal delivery;
(ii) if posted, within the three (3) days of mailing; and
(iii) if sent by email, one business hour after the time that the sender’s information system recorded that the email (including any attachments) left that information system, unless within 8 business hours, the sender is informed (by automatic notice or otherwise) that the email has not been received by the recipient).
(a) Each party must pay its own costs of negotiating, preparing and executing this Agreement.
(b) You may not assign this Agreement (or any right under it) or purport to novate any of its obligations under this Agreement to another person without our prior written consent.
(c) This Agreement may be executed in counterparts. All executed counterparts constitute one document.
(d) This Agreement is governed by the laws of Victoria, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.
(e) This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.