This subscription agreement sets out the terms and conditions on which Core dna will provide to the Customer the Core dna Services. By:
The Customer agrees that it has read, understood and will be bound by this subscription agreement, the Proposal and will also be bound by any notices posted by Core dna on the Core dna Website from time to time pursuant to this subscription agreement (collectively, agreement). If you are entering into this agreement as an agent, officer, employee or other representatives of the Customer, you warrant to Core dna that you have full legal authority to bind the Customer to this agreement.
In this agreement, unless the context otherwise requires:
Additional Services means any services provided to the Customer by Core dna from time to time which is outside the scope of the Core dna Subscription.
Authentication Credential means the username and password or other means of authentication which the Customer and Authorised Users are required to provide in order to be able to access the Core dna Subscription and provide instructions in relation to the provision of the Core dna Subscription.
Authorised Users means the employees, agents, contractors or other representatives of the Customer or its subsidiaries or other related parties who are issued with an Authentication Credential in accordance with this agreement.
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.
Commencement Date means the earliest of the date:
Confidential Information means any information provided by a party or any of its representatives to the other party or any of its representatives or otherwise obtained by the other party or any of its representatives (whether provided before or after execution of this agreement) in connection with the Core dna Subscription, any Additional Services or this agreement and includes:
Consequential Loss means Loss beyond the normal measure of damages and includes indirect Loss, Loss of revenue, Loss of reputation, Loss of profits, Loss of actual or anticipated savings, Loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, Loss of use, cost of capital or costs of substitute goods, facilities or services.
Content includes any database record including but not limited to text, images, video, electronic files, fonts, layouts and hyperlinks.
Core dna means COREDNA PTY LTD (ACN 11 602 155 813) of 348 High Street, Prahran, Victoria, Australia 3181.
Core dna Content Management System means any content management system operated by Core dna from time to time that assists the Customer to manage Content on the Customer Website.
Core dna Infrastructure means the computer servers, other hardware, technological services or infrastructure maintained or used by Core dna in connection with its provision of the Core dna Subscription.
Core dna Subscription means the services specified in the Proposal and any other services agreed by the parties to form part of the Core dna Subscription from time to time.
Core dna Software means the website development, management and maintenance software applications developed by Core dna, comprising of the Applications.
Core dna Website means the website located at www.coredna.com or the website located at such other URL that Core dna notifies the Customer of from time to time.
Customer means the party named as the Customer in the Proposal.
Customer Content means all Content displayed on the Customer Website from time to time.
Customer Data means all information, data or communications (whether relating to the Customer or its Authorised Users or otherwise) uploaded to the Customer Website or Core dna Infrastructure by or on behalf of the Customer or its Authorised Users.
Customer Applications means the Applications of the Core dna Software used by the Customer from time to time during the Term.
Customer Website means the Customer’s website, as detailed in the Proposal.
Documentation means any manuals, guides, reference materials or other similar documents in any form made available by Core dna to the Customer in connection with the Core dna Services.
Fees means any fees or other amounts payable by the Customer to Core dna under this agreement as specified in the Proposal or as varied pursuant to clauses 7.2 or 13.5.
Force Majeure Event means any act, event or cause, other than lack of funds, affecting a party that is outside that party’s reasonable control, including, but not limited to:
Improvement means any modification, alteration, development, new use or other change to the Core dna Subscription or the Core dna Software which provides new or improved functionality for the Core dna Subscription or the Core dna Software of which makes the Core dna Subscription or the Core dna Software more accurate, useful, efficient, cost-effective or in any other way preferable.
Indirect Tax means a goods and services tax (such as the GST), a value-added tax, a consumption tax or a tax of a similar kind.
Intellectual Property includes all trademarks, copyright, patents, patentable inventions and designs, whether existing now or in the future and whether or not registered or registrable, and includes any rights subsisting in or relating to trade secrets, know how, inventions, discoveries, geographical indications of origin, semiconductor and circuit layouts, programming tools, object code, source code, microcode, mask works, methods, techniques, recipes, formulae, algorithms, applications, libraries and databases and further includes the right to apply for the registration or grant of any such intellectual property.
Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.
Applications means the existing or additional feature and function components of the Core dna Software, as developed by Core dna from time to time.
Nominee has the meaning ascribed to it under clause 13.1
Proposal means a proposal in respect of the Core dna Subscription which is submitted to Core dna by the Customer and may be accepted by Core dna or declined by Core dna pursuant to clause 3.1.
Reseller means any person appointed by Core dna to be a reseller of the Core dna Subscription.
Support Hours means the hours in which Core dna will provide any applicable support services to the Customer, as published on the Core dna Website and updated by Core dna from time to time.
Suspension Notice means a electronic notice from Core dna to the Customer which sets out the amount of any outstanding Fees or other amounts payable to Core dna under this agreement and that Core dna will have the right to suspend its provision of the Core dna Subscription if the outstanding amounts specified in the Suspension Notice are not paid in full within five days of the date of the Suspension Notice.
Taxes means any taxes, rates, levies imposts, duties or other charges assessed or payable to any government authority and includes any additional taxes, interest, penalties, charges, fees or other amounts imposed in relation to a failure to file a return or to pay the tax.
Technical Support means the technical support services in respect of the Core dna Software and Core dna Subscription, as specified in the Proposal.
Term means has the meaning given in clause 2.
Termination Date means the date this agreement is terminated or expires.
Third Party Application means any product, service, system, application or internet site integrated or interfaced with, or used as part of, the Core dna Subscription or the Customer Website that is owned or operated by a Third Party Provider, and that is used by Core dna, the Customer or any Authorised User in connection with the Core dna Subscription or the Customer Website.
Third Party Provider means any third party (including the Nominee) that provides support, technology and/or other products or services that are used by Core dna, the Customer or any Authorised User in connection with the Core dna Subscription or the Customer Website.
Unacceptable Content means any Content which, in Core dna’s reasonably held opinion, is obscene, offensive, upsetting, defamatory, illegal or inappropriate, infringes or appears to infringe the intellectual property rights of any person or contravenes or appears to contravene any applicable Laws, regulations or codes of conduct.
Updates means any update, upgrade, patch, bug fix or other development for the Core dna Software or any Application.
In this agreement, headings are inserted for convenience only and do not affect the interpretation of this agreement and, unless the context otherwise requires:
This agreement commences on the Commencement Date and will continue until terminated in accordance with clause 15.
The Customer may submit Proposals to Core dna via the Core dna Website for the Core dna Subscription the Customer wishes to receive. Each such Proposal constitutes an offer by the Customer to receive the Core dna Subscription specified in the Proposal from Core dna on the terms set out in this Subscription Agreement. Core dna may by written notice to the Customer:
From the Commencement Date and during the Term the Customer appoints Core dna to provide the Core dna Subscription to the Customer on the terms and conditions of this agreement and Core dna accepts the appointment.
The Core dna Subscription will be set out in the Proposal and may consist of any or all of the following:
Core dna may vary the features, functions and other benefits available to Customer and Authorised Users in respect of any of the Core dna Subscription or any Application by publishing a notice of the variation through the Core dna Software or on the Core dna Website. Unless Core dna determines otherwise, the variation will be effective immediately upon such notice being published.
The Customer acknowledges that Core dna retains the sole discretion regarding the features, functions and other benefits of the Core dna Subscription and the Applications and nothing in this agreement requires Core dna to provide or maintain any features, functions or other benefits in respect of the Core dna Subscription. The Customer also acknowledges and agrees that nothing in this agreement limits Core dna’s right to discontinue or alter any such features, functions or other benefits from time to time.
From completion of the development and installation of the Customer Website, Core dna will:
in accordance with any specific hosting requirements detailed in the Proposal.
The Customer will be responsible for:
The Customer acknowledges that Core dna only provides the Core dna Subscription to the Customer and Core dna will not have any relationship (legal or otherwise) with users of the Customer Website.
During the Term, if Core dna develops an Update for a Customer Application it will arrange for the Update to be installed on the Core dna Infrastructure for use by the Customer.
Nothing in this agreement will impose obligations on Core dna to develop any particular Update for a Customer Application.
Core dna will use all reasonable endeavours to minimise the occurrence and duration of any outages, downtime or other inaccessibility to the Customer Website which arises as a result of the installation of any Update for a Customer Module.
From time to time during the Term, Core dna may develop new Applications and notify the Customer of the new Applications which are available.
7.2. Fees for new or additional Applications
During the Term, the Customer may request that Core dna make any new or additional Applications available for use with the Customer Website. If the Customer makes such a request, Core dna will notify the Customer of:
If the following receipt of the notice referred to in clause 7.2, the Customer notifies Core dna that it wishes to proceed with the activation of the new or additional Module:
Resellers will provide Technical Support to the Customer in relation to the use and operation of the Core dna Software. During the Support Hours, Core dna will, upon the Resellers request, provide Technical Support in relation to the use and operation of the Core dna Subscription.
The Customer acknowledges that nothing in the agreement imposes obligations on Core dna to develop, release or install for the Customer any updates, upgrades, patches, bug fixes, new releases or new versions in respect of the Core dna Services (Updates), provided however that if Core dna does develop or release any Updates, it may require that all such Updates be used by the Customer.
The Customer acknowledges and agrees that the Core dna Services may interact with Third Party Applications or require Third Party Applications or Third Party Providers to be used to provide particular features, functionality or services. Where such Third Party Applications or Third Party Providers are used, the Customer acknowledges and agrees that:
On request from the Customer from time to time, Core dna or its Reseller will provide the Customer with Authentication Credentials in order for the Customer and the Authorised Users to access the Core dna Subscription.
The Customer must:
Core dna reserves the right at any time and from time to time to change and/or revoke Authentication Credentials by providing the Customer with written notice.
The Customer will be responsible for:
The Customer must:
Core dna will have the right, upon provision of reasonable notice to the Customer, to audit the Customer’s use of the Core dna Subscription and compliance with this agreement (by means of remote access or through entry to the Customer’s premises, at Core dna’s election), and the Customer agrees to allow Core dna or its representatives access to such systems, facilities, books and records as are reasonably required for such audits.
The Customer must use only the most recent version of the Documentation provided by Core dna, and must follow Core dna’s instructions concerning the return or destruction of any superseded versions of the Documentation
During the Term, the Customer will pay the Fees:
Fees will be invoiced by Core dna in accordance with the payment terms set out in the Proposal or as otherwise determined by Core dna.
Core dna may at any time by notice in writing to the Customer and for any reason revoke its nomination of any Nominee under clause 13.1(b) and, if Core dna makes such revocation, the Customer’s obligation to make payment under clause 13.1 will, from the date of the notice of revocation, be an obligation to make payment of the Fees to Core dna.
The Customer must pay each invoice issued by Core dna pursuant to this agreement within 7 days of the date of the invoice or such other period as specified in the Proposal.
During the Term Core dna may increase the Fees provided that:
If Core dna reasonably believes that any Unacceptable Content has been uploaded into the Core dna Content Management System, is being displayed on the Customer Website or is being stored on the Core dna Infrastructure, Core dna may request the Customer either to remove the Unacceptable Content or disable access to the Unacceptable Content.
Core dna will have the right (but not the obligation) to remove Unacceptable Content from the Core dna Content Management System, Customer Website or Core dna Infrastructure or disable access to Unacceptable Content where the Customer has not complied with a Core dna request under clause 14.1 within five Business Days of the date of the request.
Nothing in this agreement imposes obligations on Core dna to monitor the Customer Website or Core dna Infrastructure for Unacceptable Content or otherwise monitor or screen Customer Content or Customer Data for Unacceptable Content.
Either party may terminate this agreement at any time and without cause by providing the other party with no less than 30 days written notice of termination.
Without limiting clause 15.1, Core dna may, by written notice to the Customer, terminate this agreement with immediate effect if:
Upon termination of this agreement taking effect:
For the avoidance of doubt, following termination of this agreement taking effect, Core dna or any Nominee (as applicable) will be entitled to retain any Fees paid by the Customer, even if such amounts were paid in advance.
Notwithstanding clause 15.3(c), if Core dna has been hosting the Customer Website there will be a period of 14 Business Days from the Termination Date during which the Customer may require that Core dna provide reasonable assistance (at the Customer’s expense and request) to the Customer in respect of the transfer of the hosting of the Customer Website to a third party.
Clauses 1, 15, 16, 17, 21, 22 and 23 will survive the termination or expiry of this agreement.
16.1. Confidentiality obligations
Where a party (Recipient) receives Confidential Information from the other party under this agreement or otherwise in connection with the Core dna Services, the Recipient must:
Notwithstanding clause 16.1, the Recipient may use or disclose Confidential Information to:
The Recipient must ensure, to the extent possible, that its employees, subcontractors, agents and representatives, Nominee, and in the case of the Customer any Authorised Users and Third Party Providers, do not do, or omit to do anything, which if done or omitted to be done by the Recipient, would breach this clause.
The Recipient must immediately notify the Disclosing Party of any potential, suspected or actual unauthorised use, copying or disclosure of the Confidential Information.
All obligations of confidence set out in this agreement continue in full force and effect after this agreement ends.
The Customer agrees that, for the purposes of promoting and marketing Core dna and the Core dna Services, Core dna is entitled to:
The parties agree that:
To the extent necessary for Core dna to be able to provide the Core dna Subscription, the Customer grants Core dna a worldwide, non-exclusive, royalty-free, revocable licence to use and display:
Core dna will take all reasonable steps to ensure the security and safety of the Customer Data and other information stored on the Core dna Infrastructure, including by implementing and maintaining reasonable and current data protection and virus screening procedures and technologies.
Provided Core dna complies with its obligations under clause 18.1, Core dna will not be liable for any Loss suffered by the Customer which arises out of or in connection with:
The Customer acknowledges that Core dna does not provide back up or other similar services in respect of the Customer Data and the Customer is responsible for implementing its own backup and data retrieval procedures in respect of the Customer Data.
The Customer agrees and acknowledges that Core dna may subcontract the performance of any of its obligations or the exercise of any of its rights under this agreement to any sub-contractor without the Customer’s consent and on such terms and conditions as Core dna deems fit from time to time.
at the election and discretion of Core dna; or
if the breach relates to services:
at the election and discretion of Core dna.
The Customer acknowledges and warrants that as at the date of this agreement and at all times thereafter:
Any claim by the Customer against Core dna for Loss however caused (including by the negligence of Core dna) suffered by the Customer in connection with this agreement must be made within one year of the Customer becoming entitled to make the claim and any claim not made within this period is absolutely barred.
Notwithstanding clauses 21.1(b), 22.1 and 22.2, neither party limits its liability for:
The Customer must indemnify and keep Core dna indemnified against any Loss suffered or incurred by Core dna which arises directly or indirectly out of:
Unless expressly stated otherwise, all fees and other amounts payable by the Customer under or in connection with this agreement have been calculated without regard to any Indirect Tax. Notwithstanding anything to the contrary in this agreement, if Indirect Tax is imposed upon or is payable by Core dna under or in connection with this agreement, the Customer must pay to Core dna an amount equal to the Indirect Tax upon demand by Core dna.
If the Customer is required by any applicable law to make any deduction or withholding for any Taxes from any payments to Core dna under this agreement such that Core dna would not receive the full amount of the Fees or other amount payable, the Customer agrees to:
This agreement will be construed and interpreted in accordance with the laws of the state of Victoria, Australia and each party submits to the non-exclusive jurisdiction of courts of that jurisdiction including the Federal Court.
The Customer may not assign or otherwise deal with any of its rights or obligations under this agreement without the prior written consent of Core dna. Core dna may assign, novate or otherwise deal with its rights under this agreement at any time effective immediately upon Core dna notifying the Customer of the assignment or novation.
This agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
If a party is prevented, hindered or delayed from performing its obligations under this agreement by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly provided that a Force Majeure Event does not relieve or suspend any party’s obligation to pay money in accordance with the agreement. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.
Unless otherwise specified in this agreement, this agreement will not be varied except by a document in writing signed by the parties. No failure to exercise or delay in exercising any right given by or under this agreement to a party constitutes a waiver and the party may still exercise that right in the future.
If a party consists of more than one person:
If any provision of this agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
Each party must sign, execute, deliver and do and must procure that each of its officers, employees and agents signs, executes, delivers and does, all deeds, documents, instruments and acts reasonably required of it or them by notice from another party to effectively carry out and give full effect to this agreement and the rights and obligations of the parties under it.
The relationship between the parties is that of principal and independent contractor and no party is a representative or partner of any other party by virtue of this agreement.
No party has any power or authority to act for or to assume any obligation or responsibility on behalf of another party, to bind another party to any agreement, negotiate or enter into any binding relationship for or on behalf of another party or pledge the credit of another party except as specifically provided in this agreement or by express written agreement between the parties.