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mCaller™ Subscription Agreement
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU
ACKNOWLEDGE, AND WE WILL RELY ON YOUR ACKNOWLEDGEMENT, THAT YOU HAVE THE AUTHORITY
TO BIND THE COMPANY OR OTHER ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH
THE TERMS OF THIS AGREEMENT OR DO NOT HAVE THE RELEVANT AUTHORITY TO ENTER INTO
THIS AGREEMENT, YOU MUST NOT CONTINUE.
It Is Agreed:
1. Definitions and Interpretation
1.1 Definitions
Unless the context otherwise requires, in this Agreement: Basis means Basis Design
Pty Ltd (ACN 112 271 913), being the owner and seller of the Product; Business Day
means any day which is not a Saturday, Sunday or public holiday in New South Wales,
Australia; Claim includes any claim, damage, demand, liability, Cost, loss, proceeding,
right of action and claim for compensation; Copyright means: (a) any copyright under
the Copyright Act 1968 (Cth); (b) any copyright under the Law of a country other
than Australia; and (c) rights in the nature of or analogous to the rights in (a)
or (b) under the Law of Australia or any other country (including future copyright
and rights in the nature of or analogous to copyright); Cost includes any cost,
expense, charge, payment, outgoing or other expenditure of any nature whether direct,
indirect or consequential and whether accrued or paid; GST Act means the A New Tax
System (Goods and Services Tax) Act 1999 (Cth) and, if that Act is repealed, any
successive legislation imposing a broad based valued added or consumption tax; Intellectual
Property Rights means any and all intellectual and industrial property rights throughout
the world including rights in respect of or in connection with: (a) Copyright; (b)
inventions (including patents); (c) trade marks, service marks; and (d) designs,
circuit layouts, whether or not now existing and whether registered or registrable
and includes any right to apply for registration of such rights and includes all
renewals and extensions; Law includes any rule, statute, proclamation, regulation,
ordinance or by-law, present or future, enacted or otherwise made by any state,
federal or local government, and the requirements of any local, statutory or public
authority and any person entitled to carry out a statutory or judicial function;
Product means the mCaller™ service including all software applications and
web portals from time to time forming part of the Product; Subscription Period means
the period of time that You have subscribed to use the Product; You and Your refers
(as applicable): (a) if you are a person, to you in your capacity as buyer of the
Product; or (b) if you are entering this Agreement in your capacity as the duly
authorised representative of a company or other entity who is buying the Product,
to the company or other entity that you represent.
1.2 Interpretation
(a) Unless the context otherwise requires, reference to:
(i) one gender includes the others; (ii) the singular includes the plural
and the plural includes the singular; (iii) a person includes a partnership, body
corporate, association (whether incorporated or not), government and governmental,
semi governmental and local authority or agency; (iv) a party includes the party’s
executors, administrators, successors and permitted assigns; (v) a statute, regulation
or provision of a statute or regulation (Statutory Provision) includes:
(A) that Statutory Provision as amended or re-enacted from time to time;
and
(B) a statute, regulation or provision enacted in replacement of that
Statutory Provision;
(vi) a clause or sub-clause is to a clause or sub-clause of this Agreement. (b)
Including and similar expressions are not words of limitation. (c) Where a word
or expression is given a particular meaning, other parts of speech and grammatical
forms of that word or expression have a corresponding meaning. (d) Headings and
the table of contents are for convenience only and do not form part of this Agreement
or affect its interpretation. (e) A provision of this Agreement must not be construed
to the disadvantage of a party merely because that party was responsible for the
preparation of this Agreement or the inclusion of the provision in it. (f) If a
party consists of two or more persons, this Agreement benefits and binds them jointly
and severally. (g) A reference to a specific time for the performance of an obligation
is a reference to that time in the state, territory or other place where that obligation
is to be performed.
2. Licence to use Product
2.1 Limited licence
(a) Provided that You comply with Your obligations under this Agreement, Basis grants
You a non-exclusive, non-transferable, worldwide licence to use the Product for
the Subscription Period on the terms set out in this Agreement. All rights in relation
to the Product not expressly granted to You under this Agreement are reserved by
Basis. (b) You may only use the Product for the purpose for which it is designed
to be used in the ordinary course of Your business.
2.2 Multi-user licences
Where You have bought a multi-user Product: (a) the licence granted under clause
2.1 extends to the agreed number of users for the multi-user Product who are registered
with Basis as registered users or as holding an active user licence for the Product
provided that each registered user or a person holding an active user licence is
only entitled to use the Product on one telephone handset; and (b) You must ensure
that all registered users and persons holding an active user licence for the Product
You are acquiring comply at all times with Your obligations under this Agreement
as if they were parties to it and Basis is entitled to regard any failure to comply
by a registered user or a person holding an active user licence for the Product
you are acquiring as a breach by You of Your obligations under this Agreement.
2.3 Restrictions on licence
(a) The licence granted under clause 2.1 is automatically revoked and Basis is entitled
to revoke usage rights in respect of the Product if You: (i) are or become a competitor
of Basis who manufactures, distributes, markets, promotes or sells products of the
same or substantially similar nature as the Product unless Basis otherwise agrees
in writing; or (ii) if You provide Basis with false or misleading information on
entering into this Agreement. (b) You are expressly prohibited from developing or
being in any way involved in the development of a product that, in whole or in part:
(i) serves the same or substantially similar purposes; (ii) provides the same of
substantially similar functions; or (iii) has the same or substantially similar
features, as the Product or any significant component of the Product. (c) Your ability
to request call log reports from the Product is limited to a maximum of 100 reports
per day per registered user or per active user licence that You hold. Basis may
change this maximum quota of call log reports at any time without notice to You.
2.4 Basis may change terms of Agreement
(a) Despite any other provision in this Agreement, Basis may, without notice to
You, alter, amend or otherwise change the terms of this Agreement. Basis will provide
notice of the changes made to the terms of this Agreement on its website. You are
not permitted to terminate this Agreement as a consequence of Basis exercising its
rights under this clause. (b) Nothing in sub-clause (a) allows Basis to increase
the subscription fees for the current period of this Agreement or to impose new
fees not referred to in this Agreement.
3. Ownership of intellectual property
3.1 Ownership of Product and Intellectual Property Rights
(a) This Agreement does not constitute the sale or transfer of ownership of any
aspect of the Product to You. Nor does it transfer, grant or create any Intellectual
Property Rights in the Product to or in You. (b) You acknowledge that Basis is the
sole owner of the Product including all Intellectual Property Rights in respect
of it.
3.2 You must not infringe Intellectual Property Rights
You must not, during the Subscription Period or at any time after it, do anything
which infringes the Intellectual Property Rights of Basis in respect of the Product
including by copying, reverse engineering, decompiling, disassembling or otherwise
attempting to discover the source code for any component of the Product unless Basis
has specifically given its written consent.
4. Subscription fees
4.1 Payment of subscription fee
(a) Use of the Product is conditional upon You paying the relevant subscription
fee for use of the Product during the Subscription Period up front. (b) Basis may
prevent You from using the Product until it has received cleared funds in payment
of the entire subscription fee. (c) You must pay the subscription fee in the manner
required by Basis from time to time.
4.2 Subscription fee is non-refundable
You acknowledge that any subscription or other fee paid by You under this Agreement
is non-refundable.
4.3 Goods and Services Tax
(a) All words in this clause which are also defined in the GST Act have a corresponding
meaning. (b) Where Basis is taken to have made a supply to You, You must, in addition
to the consideration payable for the supply and when paying the consideration for
the supply also pay to Basis an amount equal to the GST payable in respect of that
supply. (c) Basis must give You a tax invoice in the form required by the GST Act
at the same time it receives payment of the consideration for that supply.
4.4 Other taxes
The subscription fee payable under this Agreement excludes any taxes, levies or
duties imposed by any Law (other than income tax) on Basis as a consequence of entering
into this Agreement with You. You must immediately pay to Basis on demand any tax,
levy or duty payable by Basis as a consequence of it entering into this Agreement.
5. Excess data storage fees
5.1 Data storage allocation
You acknowledge that: (a) a feature of the Product is that all data generated by
the Product is stored in an online database operated by Basis; (b) Your maximum
data storage limit on the online database for the Subscription Period is 5Mb per
active user licence applicable to the Product You are acquiring; (c) Basis will
use reasonable endeavours to notify You when the data storage for any of your active
user licences reaches 90% capacity; and (d) until You pay Basis the excess data
storage fee referred to in clause 5.2, data generated by the Product in respect
of the relevant active user licence may not be saved for as long as the data storage
limit is reached or exceeded.
5.2 Excess data storage fee
(a) If You wish to purchase an additional data storage allocation in respect of
any of Your active user licences, You must pay Basis its current fee for an additional
data storage allocation. (b) Basis will make available to You its current fees for
additional data storage allocations on request.
6. Renewal of subscription
6.1 Notification prior to expiry of Subscription Period
A permanent notification of the expiry date of Your Subscription Period will be
available in Your account in the web portal servicing the Product. Basis may also
send You additional notifications of the date that the Subscription Period ends.
6.2 Renewal of Subscription Period
(a) If You wish to renew Your subscription for a further Subscription Period, You
must notify: (i) the authorised distributor of Basis who procured Your subscription
for the Product; or (ii) if Your subscription was not procured by an authorised
distributor or that authorised distributor is no longer available, Basis, that You
wish to take a further subscription of the Product at any time within 30 days before
or within 30 days after the Subscription Period ends. (b) Your new subscription
will become effective on Basis receiving payment of the relevant subscription fee
for the new Subscription Period. (c) Basis may charge a re-connection fee if You
renew Your subscription after the end of the Subscription Period.
6.3 Modification of terms
You acknowledge that: (a) the Terms of this Agreement only apply for the Subscription
Period covered by this Agreement and that Basis may modify the terms of the agreement
that will apply to a new Subscription Period; and (b) the subscription fee for the
new Subscription Period will be the then current fee for the relevant Subscription
Period charged by Basis.
6.4 Usage of Product may be suspended
(a) If, by the last day of the Subscription Period, You have not agreed to take
a further subscription for a further Subscription Period or, having agreed to take
a further subscription, Basis has not received the relevant subscription fee, Basis
may suspend Your usage rights in respect of the Product between the date that the
Subscription Period ends and the date that Basis receives payment for the new Subscription
Period. (b) Basis is not required to maintain any data stored in its online database
after the end of the Subscription Period if You have not renewed Your subscription
by that date. Despite this, Basis may, at its discretion, continue to store any
of Your data in its online database for a maximum period of 30 days after Your subscription
expires after which You acknowledge that Basis is permitted to permanently delete
or otherwise destroy Your data. (c) You release Basis from liability in respect
of any Claim as a consequence of Basis exercising its rights under sub-clauses (a)
and (b).
7. Termination
7.1 Termination for failure to comply
(a) Basis may immediately terminate the licence to use the Product under this Agreement
if: (i) You fail to comply with any of Your obligations under this Agreement; or
(ii) You fail to renew your subscription for a further Subscription Period before
the last day of the Subscription Period. (b) Basis is not required to give You notice
before exercising its rights to terminate this Agreement.
7.2 Rights on termination
(a) After terminating this Agreement under clause 7.1: (i) Basis is entitled to
revoke usage rights to the Product; and (ii) Basis is not required to maintain any
data stored in its online database and may, at its discretion, permanently delete
or otherwise destroy Your data at any time. (b) You are not entitled to a refund
of any part of Your subscription fee as a consequence of Basis exercising its rights
under clause 7.1. (c) You release Basis from all Claims as a consequence of Basis
exercising its rights under this clause.
7.3 Basis may elect to revoke usage rights of registered user
In the event that this Agreement is breached by any of Your registered users or
persons holding active user licences under Your subscription for the Product, Basis
may, at its election, either: (a) terminate this Agreement under clause 7.1; or
(b) revoke the usage rights of the relevant registered users or persons holding
active user licences in respect of the Product.
8. Warranties and liability
8.1 General warranties
Each party warrants that: (a) it has the authority to enter into and perform its
obligations under this Agreement; and (b) it has the ability to perform its obligations
under this Agreement.
8.2 Warranty as to ownership of Product
Basis represents and warrants to You that: (a) it is the lawful owner of the Product
including any Intellectual Property Rights associated with the Product; and (b)
the Product will generally comply with the specifications for the Product published
by Basis from time to time.
8.3 Basis does not warrant
Despite clause 8.2 and except to the extent required or implied by Law, Basis does
not represent or warrant to You that: (a) the Product is and will remain error free
or virus free; (b) the use of the Product will be uninterrupted or reliable; (c)
the Product is suitable for Your purposes and will meet Your requirements and expectations;
(d) the Product will be compatible with the hardware on which the Product or any
part of it will be installed; (e) the Product will not cause a conflict with any
other software installed on any hardware that the Product or any part of it will
be installed on; (f) Your data stored in the online database will at all times remain
secure from unauthorised access, use, corruption or loss; (g) the Product will perform
any function not designated in any specifications for the Product published by Basis
from time to time; (h) any errors or defects in the Product will be rectified promptly
or at all.
8.4 Internet delays
(a) You acknowledge that Your use of the Product, including Your ability to access
the data held on the online database, may be subject to limitations, delays and
other problems inherent in the use of the internet and electronic communications.
(b) You release Basis from any liability for any Claim You may suffer or incur as
a consequence of Your use of the Product being affected by referred to in sub-clause
(a) that are outside the control of Basis.
8.5 Data stored in online database
(a) You acknowledge that You own any data created and stored in the online database.
You are entirely responsible for, and You release Basis from any Claim made against,
suffered or incurred by Basis in respect of, any data created by the Product and
stored in the online database including in relation to the quality, accuracy, completeness,
legality, integrity, reliability and appropriateness of the data and any Intellectual
Property Rights of any person in respect of the data. (b) While Basis will use reasonable
endeavours to maintain the security and integrity of all data stored in the online
database, You release Basis from any liability in respect of any deletion, correction,
destruction, damage, corruption, loss or failure to store of any of Your data.
8.6 Liability limited
(a) The liability of Basis for Claims in respect of any act, omission or failure
to comply with its obligations under this Agreement by Basis must not exceed the
amount of the subscription fee You paid for the Product. (b) The reference to Claims
in sub-clause (a) includes special, indirect or consequential damages, which damages
will be deemed to include loss of revenue, loss of profit and opportunity loss.
(c) The limitation in this clause does not apply to liability for personal injury
(including sickness and death).
8.7 Implied terms
(a) Subject to sub-clause (b), any condition or warranty which would otherwise be
implied into this Agreement by Law is expressly excluded. (b) Where any Law implies
any condition or warranty into this Agreement and prohibits Basis from excluding
its liability under the condition or warranty or modifying the application of the
condition or warranty to this Agreement, that condition or warranty is included
in this Agreement. However, if permitted under the Law to do so, Basis limits its
liability under that condition or warranty, at its election, to: (i) the resupply
of the Product to You; or (ii) the cost of resupplying the Product to You.
9. Privacy
9.1 Privacy policy
(a) Basis has implemented a privacy and security policy which may be viewed at www.mcaller.com/privacy.aspx
(b) Basis is entitled to modify its privacy and security policy periodically and
is not required to give You notice when it does so. Any changes to the privacy policy
may be viewed on Basis’s website.
9.2 Communications from Basis
(a) Subject to sub-clause (b), Basis has the right to send You marketing and other
non-critical service related communications from time to time. (b) You may at any
time, by giving us notice, opt out of receiving those notifications. (c) Despite
sub-clauses (a) and (b), Basis is entitled to send You notifications of important
announcements concerning the Product and Your use of it.
9.3 Basis may disclose that You are a customer
Despite clause 9.1 You irrevocably consent to us disclosing to any other person
that You have acquired and subscribed to the Product under the terms of this Agreement.
10. General
10.1 Entire Agreement
This Agreement is the entire agreement of the parties on the subject matter. The
only enforceable obligations and liabilities of the parties in relation to the subject
matter are those that arise out of the provisions contained in this Agreement. All
representations, communications and prior agreements in relation to the subject
matter are merged in and superseded by this Agreement.
10.2 Waiver
(a) The failure of a party at any time to require performance of any obligation
under this Agreement is not a waiver of that party's right: (i) to claim damages
for breach of that obligation; and (ii) at any other time to require performance
of that or any other obligation under this Agreement, unless written notice to that
effect is given. (b) Waiver of any provision of or right under this Agreement: (i)
must be in writing signed by the party entitled to the benefit of that provision
or right; and (ii) is effective only to the extent set out in any written waiver.
10.3 Notices
(a) A notice, request, demand, consent or approval (Notice) is given by a party
if it is in writing, signed by or on behalf of the party giving it (if possible)
and must be given to: (i) Basis, by: (A) sending the Notice by email to notification@mcaller.com;
(B) posting the Notice to: Basis Design Pty Ltd 70 Murduch Street TURRAMURRA NSW
2074 AUSTRALIA (C) sending the Notice by fax to: +61 2 9449 3898 (D) sending by
email, post or fax to any alternative email address, postal address or fax number
notified to You by Basis from time to time; or (ii) You, by sending the Notice to
the email address, postal address or fax number that You give us on subscribing
for the Product or to any alternative email address, postal address or fax number
You notify us of from time to time. (b) A Notice is taken to have been received
by the receiving party: (i) if it is sent by email, 12 hours after it is sent unless
it is sent on a day that is not a Business Day, in which case it is taken to have
been received on the commencement of the next Business Day; (ii) if it is sent by
post, 2 Business Days after the date the Notice was posted; and (iii) if its sent
by fax, when recorded on the sender’s transmission result report unless: (A) the
transmission result report indicates a faulty or incomplete transmission; (B) the
recipient informs the sender that the transmission was received in an incomplete
or illegible form before 5.00pm on the next Business Day; or (C) it is sent after
5.00pm or on a day that is not a Business Day, in which case it is taken to have
been received on the commencement of the next Business Day.
10.4 Assignment
(a) You may not assign Your interest under this Agreement without the prior written
consent of Basis. (b) Basis may assign its interest in this Agreement without Your
consent. If it does so, it will notify you of the identity or contact details for
the person to whom its interest is assigned by means of the web portal for the Product
or the Basis?website.
10.5 Governing law
The laws of the State of New South Wales govern this Agreement and the parties submit
to the non-exclusive jurisdiction of courts exercising jurisdiction there.
10.6 Alterations
This Agreement may be altered only in writing signed by each Party.
10.7 Severance
Any provision of this Agreement which is unenforceable in any jurisdiction will
be ineffective in that jurisdiction to the extent of the unenforceability. This
will not invalidate the remaining provisions of this Agreement nor affect the enforceability
of that provision in any other jurisdiction.
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