Terms and Condtions
USE OF SUBCRIBED PRODUCTS
a. Permitted Use. Subject to the Subscription Agreement entered into between the Subscriber and mySMB.com Pty Ltd (“mySMB.com”) and during the applicable Subscription Term, Subscriber is granted a non-exclusive, non-transferable and non-sublicensable right to use each software application/product made available under the Subscription (“Subscribed Product”) for its own use and business purposes, in accordance with the Subscription Agreement, these Terms and Conditions and the terms of the mySMB.com End User Licence Agreement.
b. Term. Usage of the Subscribed Products granted on a subscription basis expires at the end of the applicable Subscription Term, unless renewed.
c. End Users. Subscriber will control access to and use of the Subscribed Products by each authorised user (“End User”) and is responsible for any use of the Subscribed Product that does not comply with the Subscription Agreement, these Terms and Conditions and the terms of the mySMB.com End User Licence Agreement..
d. Restrictions. The terms of use of the Subscribed Products are set out in the mySMB.com End User Licence Agreement. Subscriber will ensure that all restrictions on the use of the Subscribed Products are duly observed, and any breach by Subscriber of the terms of the mySMB.com End User Licence Agreement will be deemed as a breach of this Agreement.
e. Content. mySMB.com reserves the right to remove from the Subscribed Products any content that it no longer has the right to provide or those that it deems to be unlawful, harmful, false or infringing.
f. Free Trial Subscription. Subscription on a free trial basis shall be for evaluation and testing purposes only. Subscriber will take full responsibility for any use of any of the Subscribed Product beyond these purposes. For the avoidance of doubt and to such extent applicable, all Free Trial Subscriptions are subject to these Terms and Conditions and the my.SMB.com End User Licence Agreement.
If Subscriber does not wish to subscribe after the Free Trial Term, Subscriber will comply with Clause 9(c)(4) on the immediate cessation of use and uninstallation of the Subscribed Products.
2. SERVICES
a. mySMB.com will provide the necessary services to set up and activate Subscriber’s access to the Subscribed Products which include installation support services that will be done remotely, and training or tutorial, where applicable
b. mySMB.com will use reasonable efforts to provide continuous access to the Subscribed Products with a level of service consistent with industry standards, and to restore it as soon as reasonably practicable in the event of interruption or suspension.
c. mySMB.com will use best efforts to make support services available during business hours to be rendered by mySMB.com technical support via online chat, community platform, email, or other communication means.
3. SUBSCRIBER OBLIGATIONS
a. As licensee of the Subscribed Products, Subscriber will abide by the licence terms as set out in the mySMB.com End User Licence Agreement and will comply with all the licensee’s obligations therein.
b. Subscriber warrants that it has not relied upon any representation made by mySMB.com other than as set out in the Subscription Agreement or these Terms and Conditions.
c. Subscriber acknowledges that mySMB.com gives no guarantee as to the accuracy or completeness of the Subscribed Product, and that it is Subscriber’s own volition to specifically use the Subscribed Products.
d. Subscriber is responsible for determining whether the Subscribed Products meet its requirements, and any regulatory obligations related to its intended use.
e. Subscriber is not permitted to sell, charge, mortgage or otherwise encumber the Subscribed Products in any way.
f. Subscriber acknowledges that it has no intellectual property rights in the Subscribed Products, and that it does not acquire any right arising from the use of the Subscribed Products except those expressly provided in the mySMB.com End User Licence Agreement.
g. Subscriber is responsible for the use, supervision, management and control of the Subscribed Products.
h. Subscriber will use the Subscribed Products only for purposes the Subscribed Product are intended. Subscriber will be responsible for any loss, damage or costs incurred by mySMB.com arising from any unauthorised or unlawful use of the Subscribed Products.
i. Subscriber will ensure that the Subscribed Products are at all times protected from access, use or misuse and damage and destruction by any person not authorised by Subscriber and Subscriber will notify mySMB.com immediately if Subscriber becomes aware of any unauthorised use of the Subscribed Products.
4. WARRANTIES
a. Subscribed Products available for subscription are provided “as is”.
b. No warranty is made in respect of the Subscribed Products except those expressly stated in the mySMB.com End User Licence Agreement insofar as they are applicable to mySMB.com.
c. To the maximum extent permitted by applicable law, mySMB.com expressly disclaims any and all other warranties, including, but not limited to, any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement or skill and care. Any implied warranties that cannot be disclaimed are limited to the shortest period permitted by law.
5. LIMITATION OF LIABILITY
Each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Subscriber was required to pay for the Subscription during the Subscription Term, subject to the following:
(1) mySMB.com’s maximum liability to Subscriber for any incident giving rise to a claim will not exceed the total amount Subscriber paid for the Subscription during the 12 months preceding the incident.
(2) In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.
6. CONFIDENTIALITY
The parties will take reasonable steps to protect each other’s Confidential Information and will use Confidential Information only for purposes of their business relationship. Each party will not disclose Confidential Information to third parties, except to its representatives, and only on a need-to-know basis under confidentiality obligations. Each party is responsible for the use of Confidential Information by its representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.
“Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.
7. PRIVACY AND DATA PROTECTION
The parties will comply with the Privacy Act 1988 (Cth), the Australian Privacy Principles, and all other applicable privacy laws and such other data protection laws in relevant jurisdictions, that regulate the collection, use, retention, and processing of Personal Information, and implement practices, procedures and systems to ensure compliance with these laws.
Subscriber will comply with all applicable laws and regulations and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Personal Information to mySMB.com. Before providing Personal Information to mySMB.com, Subscriber will obtain all required consents from the relevant data subjects under applicable privacy and data protection laws.
The parties agree that the processing of Personal Information subject to the European Union General Data Protection Regulation (GDPR) is governed by the GDPR Standard Contractual Clauses.
mySMB.com ensures the implementation of administrative, physical and technical safeguards for protection of Data and that all such safeguards comply with applicable data protection and privacy laws, statutes and regulations.
“Personal Information” means information that directly or indirectly identifies an individual, including, names, addresses, telephone numbers, email addresses, and other unique identifiers, employee identification numbers, or government-issued identification numbers.
“Data” means any data, data element, dataset, database, information or material created, produced, derived, transmitted, received, maintained, or stored through the Subscriber’s use of the Subscribed Products and the Services.
8. BILLING AND PAYMENT
a. Annual Subscription Fee. Subscriber shall pay the Annual Subscription Fee quarterly in advance. Upon execution of this Agreement or expiration of the Free Trial Subscription, (where applicable), mySMB.com will issue an invoice for the first quarter Subscription Fee and the upfront Set-up Fee with a payment due date of seven (7) days from date of invoice. For each succeeding quarter, mySMB.com will issue an invoice thirty (30) days before the beginning of each quarter with a payment due date on the 1st day of the said quarter.
b. Refunds. All Fees payable under this Agreement are non-refundable and non-creditable against other fees, except as otherwise specified in this Agreement.
c. Taxes. Fees are exclusive of any sales, GST, VAT, withholding or similar taxes or levies. All such taxes and charges shall be payable by Subscriber in addition to the Fees, which mySMB.com will itemize separately in the applicable invoice.
9. TERM AND TERMINATION
a. Term. Unless otherwise terminated under this clause, the Subscription Agreement commences on the Effective Date and continues until the expiration of the Subscription Term. The Subscription Term is deemed automatically renewed if mySMB.com does not receive from Subscriber a written notice of non-renewal at least 30 days before the date of expiration. In such case, mySMB.com shall accordingly proceed to issue an invoice for the Annual Subscription Fee for the succeeding Subscription Term.
b. Termination for cause. Without limiting other remedies it may have, either party may terminate the Subscription Agreement immediately on notice in case of material breach, which is not remedied by the defaulting party within 30 days after receipt of notice of the breach.
c. Termination Consequences. Upon Termination, the following will apply:
(1) All licences granted to the Subscriber will terminate immediately.
(2) All amounts due under any unpaid invoices will become due and payable immediately.
(3) If mySMB.com is in breach, Subscriber will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
(4) Subscriber shall immediately cease and discontinue the use of the Subscribed Products. Subscriber will promptly remove, delete and uninstall the Subscribed Products from the Subscriber’s systems, and will destroy or dispose of any and all copies of the materials embodying the Subscribed Products in accordance with the instructions of mySMB.com. Within ten (10) days from the date of termination or expiration of the Subscription Agreement, Subscriber will deliver to mySMB.com a statement certifying compliance with the foregoing.
d. Suspension. mySMB.com may suspend access to the Subscribed Products during any period of material breach by Subscriber, (including non-payment of the Subscription Fee by the payment due date) until said breach is remedied. mySMB.com will give Subscriber reasonable notice before the suspension, and such suspension will only be to the extent reasonably necessary.
10. MISCELLANEOUS
a. Governing Law. Place of Venue. This Agreement will be construed and governed in accordance with the laws of New South Wales, Australia, without regard to any rules of conflicts or choice of law provisions that would require the application of the laws of any other jurisdiction. The parties hereby submit to the exclusive jurisdiction and venue of the commercial courts in New South Wales, Australia for any action or legal proceeding related to or arising under this Agreement and waive any objections based on forum non conveniens; provided, however, that if for any reason said court does not have jurisdiction over the matter or a party, then mySMB.com may elect to commence any such action or proceeding in any court having jurisdiction over the Subscriber.
b. Severability. If any one or more of the provisions of these Terms and Conditions is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions or portions thereof will not be affected or impaired thereby and will nevertheless be binding between the parties. In the event any provision of these Terms and Conditions is found to be invalid, illegal, or unenforceable, the parties will modify that provision in a manner that gives effect to the intent of the parties in entering into the Subscription Agreement.
c. Waiver or Delay. No failure to exercise or delay by a party in exercising any right, power, or remedy under these Terms and Conditions operates as a waiver of such right, power, or remedy. A single or partial exercise of any right, power, or remedy does not preclude any other or further exercise of that or any other right, power, or remedy. A waiver is not valid or binding on the party granting the waiver unless made in writing.
d. Entire Agreement. The Subscription Agreement and these Terms and Conditions constitute the entire understanding and agreement between the parties with respect to the subject matter of the Subscription Agreement and supersedes all previous agreements and communications between the parties concerning such subject matter. No modifications may be made to the Subscription Agreement except in writing, signed by both parties.
e. Benefit of Agreement. The Subscription Agreement will bind and inure to the benefit of the parties and their respective permitted successors and assigns.
f. Cumulative Remedies. Except as otherwise provided in this Agreement, all remedies of the parties hereunder are non-exclusive and are in addition to all other available legal and equitable remedies.
g. Force Majeure. Neither party will be liable or deemed to be in default for any delay or failure in performance under these Terms and Conditions (except for payment obligations) resulting, directly or indirectly, from acts of God, civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes, epidemics, pandemics, public health emergencies, mandatory business, service or workplace closures, full or partial lockdowns of affected areas, quarantines, border closures or travel restrictions or any causes beyond its reasonable control; provided that the party failing to perform in any such event will promptly resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable. Upon becoming aware of such a cause, the affected party must as soon, as reasonably practicable, notify the other party in writing of the extent to which it is unable to perform its obligations due to the relevant cause, and must use its best endeavours to mitigate the effect of the cause.