Master Subscription Agreement
This IXUP Master Subscription Agreement (MSA) governs each Order Form for Software and Support Services executed by IXUP Limited ABN 85 612 182 368 (IXUP) and the person specified as the Host in that Order Form.
1 Software Licence
1.1 Licence. Upon execution of an Order Form, IXUP will make the Software available to the Host and grant the Host a non-exclusive, non-transferable licence to:
(a) install and host the Software in the Environment;
(b) permit the Anchor to use the Software to initiate and conduct the Collaboration by:
(i) making the Software accessible to Tenants, Data Contributors, Logic Contributors, and Data Consumers via the internet as a cloud service;
(ii) uploading, and permitting Tenants, Data Contributors and Logic Contributors to upload, data and logic (as applicable) to the Software; and
(iii) using, and enabling the Anchor, Tenants and Data Consumers to use, the output of the Software,
in each case, solely for the purposes of the Collaboration during the Term subject to compliance with the terms of the Agreement.
1.2 Licence Restrictions. Host must ensure that:
(a) no Collaborator installs, hosts, accesses, uses, uploads data or logic to, uses the output of, or otherwise exploits the Software, except as permitted under clause 1.1;
(b) no Collaborator, reverse engineers, decompiles or disassembles the Software, views or gains access to the source code to the Software, or uses the Software to provide any product or service that is an alternative, substitute or competitor to the Software;
(c) no Collaborator copies, develops any modification, enhancement, derivative work or other development of the Software or incorporates any Collaborator or third party material into the Software (except as expressly permitted under an Order Form);
(d) no Collaborator uploads to the Software any material that is unlawful, harmful, malicious, threatening, defamatory, obscene, infringing, offensive, sexually explicit, violent or discriminatory;
(e) no Collaborator removes any product identification, proprietary, trade mark, copyright or other notices applied to or contained in the Software;
(f) it downloads, installs and uses the current version of the Software made available by IXUP at all times and takes all reasonable measures to protect the security, confidentiality and integrity of the Software;
(g) no person other than a Collaborator, or the authorised personnel of a Collaborator, accesses or uses the Software; and
(h) it promptly notifies IXUP in writing if the Host wishes to permit a person other than a Collaborator, or the authorised personnel of a Collaborator, to access and use the Software.
1.3 Support Services. IXUP must provide Support Services for the current and immediately prior version of the Software for the duration of the Term. Host must provide all information and assistance reasonably required by IXUP to perform the Support Services.
2 Host responsibilities
2.1 Licence only. IXUP grants the Host a licence to use the Software under the Agreement only.
2.2 Host responsibilities. The Host uses the Software at its own risk and is solely responsible for:
(a) ensuring that the Software is installed, hosted, accessed and used strictly in accordance with the Agreement. The Host is responsible for each act and omission of a Collaborator in connection with the Agreement as though it were an act or omission of the Host;
(b) ensuring that the Collaboration, each Collaborator’s use of the Software, and all data and logic uploaded to the Software complies with all applicable laws, regulations and contractual obligations;
(c) obtaining all consents, licences and approvals necessary to lawfully collect, upload, store, process and disclose all data and logic (including that protected by Intellectual Property Rights, confidentiality, or privacy) uploaded to the Software and all output of the Software and Collaboration;
(d) implementing all steps and controls necessary to secure the Environment, Software and data and logic uploaded to and output of the Software to the standards required under applicable laws, regulations and contractual obligations;
(e) providing all support and maintenance for the Software other than the Support Services; and
(f) the accuracy, truthfulness, completeness, veracity and legality of the output of the Software and Collaboration.
3 Fees, invoicing and payment
3.1 Fees. The Fees are payable in consideration of IXUP’s supply of the Software and Support Services. IXUP may increase the Fees on written notice to the Host as specified in an Order Form or once in every 12 months during the term of the Agreement (if no increase is specified in the Order Form).
3.2 Invoicing and payment. IXUP must issue invoices for the Fees to the Host at the times specified in the Order Form. The Host must pay all Fees invoiced by IXUP, without any set-off or deduction and in immediately available funds, by the method and within the period specified in the Order Form. All Fees invoiced by IXUP are non-cancellable and non-refundable.
3.3 Late Payment. If the Host fails to pay any Fees (that are not disputed in good faith) by the due date for payment, IXUP may:
(a) suspend the licence of the Software, provided that IXUP has given the Host notice of the failure and the Host has not rectified the failure within 14 days of the date of such notice; and
(b) charge interest at a rate of 2 percent per annum above the current published overdraft rate of the Commonwealth Bank of Australia,
in each case, from the due date for payment until the date that payment is made by the Host.
3.4 Verification. IXUP may on 14 days’ notice conduct an audit of the Host’s use of the Software and compliance with the Agreement from time to time during the Term. Host must provide all access to the Environment, Collaborators, records, premises and personnel reasonably requested by IXUP in connection with any such audit. IXUP must bear the costs of any such audit unless the audit reveals that the Host has used, or permitted the use of, the Software in breach of the Agreement (including use in excess of any limitations set out in an Order Form), in which case, the Host must immediately:
(a) pay to IXUP all additional Fees payable in respect of any excess use (at IXUP’s then current list prices) in addition to IXUP’s reasonable audit costs; and
(b) take all other steps required to remedy the breach of the Agreement and prevent its recurrence at its own cost.
3.5 Taxes. The Fees are exclusive of all taxes, levies, withholdings, duties and other amounts imposed by taxing authorities. Where a supply is a taxable supply, all amounts payable must be increased by the amount of GST payable in relation to the supply. All GST must be paid at the time any payment for any supply to which it relates is payable (provided a valid tax invoice has been issued for the supply). In this clause, GST, tax invoice and taxable supply have the meanings given to them in the A New Tax Systems (Goods and Services Tax) Act 1999 (Cth).
4 Intellectual Property Rights
4.1 Ownership. All Intellectual Property Rights in and to the Software, including those in any copy, modification, enhancement, configuration, derivative work or other development of the Software developed by or on behalf of any Collaborator, vests or remain vested in IXUP. If any such Intellectual Property Right vests in a Collaborator, the Host hereby assigns, and must procure that each other Collaborator assigns, that Intellectual Property Right to IXUP with immediate effect. The Host must take all further steps (including execution of documents) necessary to give effect to this clause.
4.2 Licence. No Collaborator receives any right, title or interest in or to the Software other than the licence expressly granted to the Host under clause 1.1.
4.3 Notice of infringement. The Host must immediately notify IXUP in writing upon becoming aware of any:
(a) infringement or unauthorised use of the Software by any person, including any other Collaborator;
(b) claim by any person that use of the Software by the Host in accordance with the Agreement infringes any copyright or patent owned by that person in Australia (IP Claim).
4.4 IP indemnity. IXUP must indemnify the Host against all loss and damage suffered or incurred by the Host as a direct result of any IP Claim, except to the extent that the loss, damage or IP Claim is caused or contributed to by any Collaborator. IXUP’s indemnification obligation under this clause is subject to the Host notifying the IP Claim pursuant to clause 4.3(b), IXUP controlling the defence of the IP Claim, and the Host providing all information and assistance requested by IXUP. If the Software is the subject of an IP Claim, IXUP may (at its cost and option) either:
(a) procure the right for the Host to continue using the Software;
(b) modify the Software such that it no longer infringes the relevant Intellectual Property Rights; or
(c) terminate the Agreement and provide the Host with a pro-rata refund of any Fees paid in advance for use of the Software.
This clause 4.4 sets out the Host’s sole and exclusive remedy in respect of any IP Claim.
5.1 Obligation of confidence. Each party (Recipient) must ensure that it keeps confidential and does not use or disclose any Confidential Information of the other party (Discloser) except as permitted by this clause 5.
5.2 Permitted use. The Recipient may use the Confidential Information of the Discloser solely to the extent necessary to exercise its rights and obligations under the Agreement.
5.3 Permitted disclosures. The Recipient may disclose Confidential Information of the Discloser:
(a) to the Related Bodies Corporate, personnel and professional advisers of the Recipient that need to know the Confidential Information for the purposes of the Agreement and that are subject to binding obligations of confidence at least as stringent as those set out in this clause;
(b) to the extent required by law or the rules of any stock-exchange; and
(c) with the prior written consent of the Discloser.
To avoid doubt, either party may make public statements about the existence of the Agreement and the fact that it is a supplier or customer of the other (as applicable) without being in breach of this clause.
6 Warranties and indemnities
6.1 Warranties. IXUP warrants that:
(a) the Software will operate substantially in accordance with its published specifications for a period of 90 days following being made available to the Host; and
(b) it will provide the Support Services with due care and skill.
6.2 No other terms. To the extent permitted by law, IXUP excludes all conditions, warranties and guarantees other than those set out expressly in the Agreement. Without limitation, IXUP does not warrant that Software or Support Services will be:
(a) free from errors, omissions, defects, security risks or vulnerabilities; or
(b) fit for any purpose or meet the requirements of any Collaborator.
6.3 Non-excludable terms. If any condition, warranty or guarantee cannot be excluded at law, then to the extent permitted by law, IXUP’s liability for breach of such condition, warranty or guarantee is limited (at IXUP’s option) in the case of:
(a) Software, to the repair or replacement of the Software, the supply of equivalent Software, or payment of the cost of the same; and
(b) Support Services, to the resupply of the Support Services or payment of the cost of the same.
6.4 Host indemnity. Host indemnifies IXUP and its Related Bodies Corporate against all loss and damage suffered or incurred by any of them arising out of or in connection with:
(a) any claim relating to the installation, access to, use of, uploading of data or logic to, use or reliance on any output of the Software or Collaboration by any Collaborator, including any claim made by a third party; and
(b) any breach of clause 1.1, 1.2, 2.2, 4 or 5,
in each case, except to the extent that the claim or breach is caused or contributed to by IXUP.
7.1 Exclusion of Indirect Loss. To the extent permitted by law, each party excludes any and all liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity for any Indirect Loss.
7.2 Limitation of liability. The liability of a party arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity, in any calendar year is limited to an amount equal to the Fees paid or payable by the Host under the Agreement in that calendar year.
7.3 Unlimited liability. The limitations and exclusions of liability in clauses 7.1 and 7.2 do not apply to the liability of a party:
(a) under any indemnity given by that party;
(b) to pay Fees that are due and payable; or
(c) for any matter in respect of which liability may not be limited at law.
7.4 Injunctive relief. The Host acknowledges that damages are not a sufficient remedy for any breach of clause 1.1, 1.2, 2.2, 4 or 5 of the Agreement and that IXUP is entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or anticipated breach of those clauses (in addition to any other remedies).
8 Term, suspension and termination
8.1 Term. The Agreement will remain in force for the Term, unless terminated earlier in accordance with this clause 8.
8.2 Suspension. IXUP may suspend the licence granted pursuant to clause 1.1 during any period in which the Host is in breach of the Agreement (subject to clause 3.3(a) in the case of late payment).
8.3 Termination for cause. A party may terminate the Agreement with immediate effect on written notice if the other party:
(a) commits a material breach of the Agreement and fails to remedy that breach within 14 days of receipt of a notice specifying the breach and requiring it to be remedied. Any breach by the Host of clauses 1.1, 1.2, 2.2, 3.2, 4 or 5 is a material breach for the purposes of this clause;
(b) becomes subject or threatens to become subject to, any form of insolvency or bankruptcy proceeding, appoints a liquidator, receiver or administrator, enters into an arrangement with its creditors, ceases to trade or do business in the ordinary course or is otherwise unable to pay its debts as and when they fall due.
8.4 Consequences of termination or expiry. On termination or expiry of the Agreement:
(a) all rights to the Software granted under the Agreement cease immediately and the Host must immediately cease using and delete all copies of the Software in its possession or control; and
(b) the Host must immediately pay IXUP all Fees due and payable as at the date of termination or expiry and, if IXUP terminates pursuant to clause 8.3, all Fees payable for the remainder of the Term.
9.1 Entire agreement. This MSA and an Order Form are the entire agreement between the parties in respect of the subject matter of that Order Form. In the event of any inconsistency between the terms of this MSA and an Order Form, the terms of the Order Form will prevail to the extent of the inconsistency.
9.2 Amendment. IXUP may amend this MSA at any time by posting the amended version of this MSA at https://ixup.com/master-subscription-agreement/ Any amended version of this MSA will only apply to Order Forms executed following the date of the amendment to this MSA.
9.3 Force Majeure Events. IXUP is not liable for any delay nor failure to perform its obligations under the Agreement to the extent such delay or failure is due to a Force Majeure Event.
9.4 Severance. If a provision of the Agreement is unenforceable, the provision will be read down to the extent necessary to avoid that result and if the provision cannot be read down to that extent, it will be severed without affecting the validity and enforceability of the remainder of the Agreement.
9.5 Transfer. The Host must not assign, subcontract, novate or otherwise dispose of its rights or obligations under the Agreement without the prior written consent of IXUP.
9.6 Waiver. A party waives a right under the Agreement only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
9.7 Relationship of the parties. The parties are and will remain independent contractors. Nothing contained in the Agreement will be construed to create an agency, joint venture, partnership or other relationship between the parties.
9.8 Governing Law. The Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia (and relevant appellate courts) and waives any objection to proceedings being brought in those courts.
In this MSA, these terms have the following meanings:
Anchor means the Host, Related Body Corporate or business unit of the Host, specified as such in an Order Form that is entitled to initiate the Collaboration specified in that Order Form.
Agreement means the agreement consisting of this MSA and an Order Form in respect of the subject matter of that Order Form.
Collaboration means a specific use of the Software specified in an Order Form for the Term.
Collaborators means all parties to a Collaboration specified in an Order Form, including the Host, Anchor, Tenants, Data Contributors, Logic Contributors and Data Consumers (as applicable).
Confidential Information means information that is marked, designated or by its nature confidential relating to the business or affairs of a party or its Related Bodies Corporate:
(a) including the terms of the Agreement and, in the case of IXUP, all source code to and pricing for the Software; but
(b) excluding any such information that is in the public domain (other than a result of a breach of confidence).
Data Consumer means a person or category of persons specified as such in an Order Form that is enabled to access and use the Software and the output of the Collaboration.
Data Contributor means a person other than the Host, Anchor and Tenants that uploads data to the Software under a licence with the Host, Anchor or Tenants and does not receive any output from the Collaboration.
Environment means the computing environment specified in an Order Form.
Fees means the fees, costs and expenses for the supply of the Software and Support Services specified in, or to be calculated in accordance with, an Order Form.
Force Majeure Event means any incident, event, act or omission beyond the reasonable control of that party, including any acts of God, strikes, civil strife, riots, wars, fire, explosion, storm, flood, earthquake, subsidence or epidemics.
Host means the person specified as such in an Order Form that is party to the Agreement and responsible for providing the Environment necessary to host the Software.
Indirect Loss means:
(a) loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of use, loss or corruption of data, loss of reputation, loss of goodwill, or loss of contract; and
(b) any loss that does not arise naturally or according to the usual course of things from a breach, act or omissions relating to the Agreement.
Intellectual Property Rights means intellectual property rights, including existing and future copyright, rights in designs, patents, semiconductors and circuit layouts and rights in trade marks, trade names and service marks, in each case, whether registered or unregistered and existing in Australia or elsewhere in the world and whether created before or after the date of the Agreement.
MSA means this IXUP Master Subscription Agreement as updated from time to time.
Logic Contributor means a person other than the Host, Anchor and Tenants that uploads an algorithm or other form of logic to the Software under a licence with the Host, Anchor or Tenants.
Order Form means an IXUP Subscription Order Form for Software and Support Services executed by IXUP and Host.
Related Body Corporate is defined in section 50 of the Corporations Act 2001 (Cth).
Software means the object code form of the IXUP software specified in an Order Form, including any Updates.
Support Services means:
(a) online, email or telephone support for Software defects that require access or changes to the source code for the current and immediately prior version of the Software; and
(b) making Updates available from time to time,
in each case, in accordance with the IXUP Support Services Policy located at https://ixup.com/support-services-policy/. The Support Services exclude help desk, diagnostic, onsite and other first and second line support services.
Tenant means a person specified as such in an Order Form that is entitled to access, use, upload data and logic to, and use the output of the Software.
Term means the subscription term for the Software specified in the Order Form.
Updates means any new version, release, update, patch, fix, configuration or other modification of the Software made available by IXUP to its customers generally during the Term.