Red Ant Subscription Agreement

Parties

Provider means Red Ant Design Pty Ltd (ABN 87 081 223 252) of PO Box 250, Vaucluse Sydney NSW 2030 Australia, contactable on ben@redant.com.au

Company Name means YourCompany Pty Ltd (ABN 12 213 123 123) of [address here], contactable on [email@here}

Consulting Background

  1. Provider provides consulting Services.
  2. Provider will provide the consulting Services to Customer on the terms and conditions of the Agreement.

1. Agreement Creation

The parties agree to the terms of the Agreement by signing this document.

2. Agreement Duration

The Agreement will apply until it is terminated.

3. Supply of Services

Provider will provide the Services described in the Service Outline to Customer in accordance with the Agreement.

4. Technology Security

  1. System access

Customer will grant Provider access to systems for the duration of the Agreement for the sole purpose of Provider fulfilling its obligations under the Agreement .

  1. Use of data

In respect of any Confidential Information that Provider has access to by way of Customer’s systems, Provider will not:

  1. use Confidential Information for any reason other than what is directly required for performing its obligations under the Agreement; or
  2. remove or transfer Confidential Information to any third party security system without obtaining written approval from Customer.
  1. Standards

Provider will:

  1. comply with the policies of Customer in relation to the use of Confidential Information unless exempted in writing by Customer;
  2. will not add Unsuitable Content to the systems of Customer; and
  3. ensure that authentication credentials are not provided to any third party without written approval from Customer.
  1. Notifications

Provider will notify Customer immediately in writing if Provider becomes aware of any grounds to suspect that:

  1. Provider has breached any obligation in this section; or
  2. there is any accidental, unlawful or unauthorised data destruction, loss, alteration, disclosure, access, or any other breach of security relating to Customer’s systems.

Insurance Obligations

  1. Insurance required

Provider will maintain any insurance it is lawfully required to maintain in connection with the Agreement.

  1. General insurance obligations

Provider will maintain insurances required by the Agreement:

  1. with a reputable insurer; and
  2. for the duration of the Agreement.

Payment Method

  1. Payment terms
  1. Provider will invoice Customer for the Services rendered for the following month.
  2. Customer authorises Provider to effect payment of invoices via credit card every month.
  1. Service suspension

Provider may suspend the provision of any part of the Services to Customer under the Agreement immediately at its discretion if Customer fails to pay any amount due under the Agreement or any other agreement between the parties.

Confidentiality

  1. Primary obligation

Provider will Keep Secret the Confidential Information of Customer and use it only for performing obligations or exercising rights under the Agreement.

  1. Confidentiality exceptions

Confidentiality obligations in this section do not apply when a party discloses information to its:

  1. subcontractors where the subcontractors are necessary to fulfil obligations under the Agreement; and
  2. insurers.

A party making disclosures to third parties under this subsection will take reasonable steps to ensure confidentiality by the third party recipient.

  1. Authorised disclosure

Customer may, by written notice, release Provider from its obligation of confidentiality under the Agreement with respect to:

  1. all of Customer's Confidential Information; or
  2. an explicit subset of Customer's Confidential Information.

Intellectual Property Ownership

  1. Ownership

If Customer obtains any interest in the New IP, Customer Transfers Intellectual Property Ownership in the New IP to Provider.

  1. Customer licence

Provider Grants A Licence to Customer to the New IP and the Background IP as described in the table below.

Topic

Condition

Parties

Provider grants to Customer

Location

Global

Period

Perpetual

Purpose

Purpose of the licensee's business

Other licence conditions

The licence is irrevocable, non-transferable, sublicensable, non-exclusive and royalty-free

Limitation of Customer's Liability

Provider is Limited To Direct Loss Claims against Customer in relation to the Agreement and Services (including for any Example Limitation Risks).

Limitation of Provider's Liability

Customer is Limited To Direct Loss Claims against Provider in relation to the Agreement and Services (including for any Example Limitation Risks).

Dispute Resolution

  1. Parties will use dispute resolution
  1. Where any dispute arises between the parties in relation to the Agreement, the parties must comply with the procedure described in this section to resolve the dispute before a party brings court proceedings.
  2. Nothing in this clause prevents any party from bringing court proceedings for urgent injunctive, interlocutory or declaratory relief.
  1. Process

The parties agree to the Dispute Resolution Discussion as the first step followed by the Mediation Process.

  1. Termination
  1. Termination for breach

Any party can terminate the Agreement immediately by written notice if the other party is in breach of the Agreement

  1. Termination for convenience

Any party may terminate the Agreement without giving reasons with 15d of written notice.

  1. Insolvency

Either party can terminate the Agreement by written notice if the other party becomes insolvent.

  1. Force Majeure

Unforeseen circumstances beyond the control of the parties suspend agreement obligations

  1. Obligation suspension
  1. No party will be in breach of its obligations under the Agreement if a delay or failure to perform the obligations results from a Force Majeure Event.
  2. In such circumstances, the affected party will be entitled to a reasonable extension of the time for performing the obligations.
  1. Notice of event

The affected party will provide written notice to any unaffected party of the delay or failure to perform their obligations, including a detailed explanation of the relevant Force Majeure Event.

  1. Termination
  1. If the period of delay or non-performance continues for 15 Business Days or more, an unaffected party may terminate the Agreement.
  2. Termination under such circumstances will include 15 Business Days written notice to the affected party by the unaffected party.
  1. Taxes
  1. Customer will be liable for all duties and taxes connected with the Agreement.
  2. Customer will be liable for taxes incurred under GST Law.
  3. Payment amounts referenced in the Agreement will be exclusive of GST Law amounts unless explicitly stated.
  1. Document Inconsistency

This document will take precedence over the Service Outline to the full extent of any inconsistency between those documents.

  1. General Provisions
  1. Governing law
  1. The governing law of the Agreement will be the law of NSW, Australia.
  2. The parties agree that this state or territory will be the exclusive jurisdiction for any proceedings under the Agreement.
  1. Notice

Parties will send notices and other written communications connected with the Agreement to the contact details listed in the "Parties" section of the Agreement in accordance with the Contractual Notice Requirements.

  1. Independence

The parties enter the Agreement intending to be completely independent of each other, and not as a party to a joint venture, partnership or agency agreement.

  1. Retrospectivity

The Agreement will apply retrospectively to anything provided by Provider to Customer within the scope of the Agreement prior to the commencement of the Agreement, unless the parties agree otherwise in writing.

  1. Agreement technicalities

The parties agree to:

  1. the Boilerplate Provisions; and
  2. the Interpretation Principles.
  1. Execution

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Witness signature

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  1. Definitions
  1. Agreement

means the agreement arising between the parties in accordance with this document and the other documents referred to by this document.

  1. Background IP

means the intellectual property rights owned by Provider:

  1. prior to the application of the Agreement; or
  2. created by Provider outside the scope of the Agreement.
  1. Boilerplate Provisions

The following sections apply to the Agreement.

  1. Further assurances

The parties agree to do everything required to give full effect to the Agreement.

  1. Entire agreement

The Agreement and any other document incorporated by reference constitute the entire legal agreement. The parties agree that they have not relied on any representation or statements outside the terms of the Agreement.

  1. Electronic signature

The Agreement may be executed or entered into electronically.

  1. Counterparts

The documents constituting the Agreement may be executed in multiple counterparts. The counterparts will be read as one legal document.

  1. Waiver

No right or obligation under the Agreement will be waived unless the waiver is explicitly made in writing.

  1. Severance

Any unenforceable or invalid term of the Agreement will only be severed to the extent of the unenforceability or invalidity without affecting any other term in the Agreement.

  1. Binding on successors

The Agreement is binding on each party's successors and permitted assigns.

  1. Agreement expenses

The parties will cover their own expenses in preparing the Agreement documents.

  1. Business Days, Business Day
  1. a Saturday or Sunday; or
  2. a public holiday, special holiday or bank holiday in the Area.
  1. Confidential Information

means all information:

  1. disclosed by a disclosing party to recipient party; or
  2. which otherwise becomes to be known by the recipient party,

that could reasonably be regarded as confidential to the disclosing party, and includes information relating to:

  1. technology, processes, products, inventions or designs used or developed by a disclosing party;
  2. trade secrets and know-how;
  3. customer lists and customer data; and
  4. commercially sensitive information.
  1. Consequential Loss

means any kind of consequential, special, incidental or indirect loss, including loss of profits, loss of revenue, expenses incurred, pure economic loss, loss of opportunity and any kind of punitive or exemplary loss or damages.

  1. Contractual Notice Requirements
  1. Postal communications
  1. in writing;
  2. in the case of domestic post, deemed effective 2 Business Days after posting; and
  3. in the case of international post, deemed effective 7 Business Days after posting.
  1. Email communications
  1. in writing;
  2. provided that no automated message is sent in response indicating non-delivery, deemed effective:
  1. when sent more than 4 hours before the end of a Business Day, 3 hours after sending;
  2. when sent less than 4 hours before the end of a Business Day, 3 hours after the beginning of the next Business Day; or
  3. when sent not during a Business Day, 3 hours after the beginning of the next Business Day.
  1. Alternate email

Where:

  1. communications sent to the alternate email address do not result in an automated message being sent in response indicating non-delivery,
  1. Contributed IP

means:

  1. the Intellectual Property Rights owned by Customer prior to the creation of the Agreement; and
  2. the Intellectual Property Rights created by Customer, or provided by Customer to Provider, in the course of Provider rendering the Services.
  1. Dispute Resolution Discussion
  1. The discussion process above will be deemed to have ended if there is no resolution within 10 Business Days of the Resolution Meeting or a written agreement between the parties to extend this deadline.
  1. Example Limitation Risks

means any liabilities arising from the risks described below.

  1. incorrect technical advice or data;
  2. failure to provide correct information; and
  3. reliance on advice or opinions in whatever form.
  4. the storage of any third party data;
  5. a third party pursuing a right conferred by privacy or data protection law;
  6. breach of privacy or data protection law;
  7. corrupted or lost data;
  8. breach of any law in connection with spam; and
  9. digital security issues like malware.
  10. failure of any software, hardware or network components provided by a third party;
  11. faulty technical data created by software;
  12. digital security issues like software vulnerabilities;
  13. the use of software for unlawful activity;
  14. software or network that's inaccessible for any reason; and
  15. software in a testing phase like (or analogous to) beta and alpha software.
  16. any third party claim or legal action for intellectual property infringement; and
  17. risks relating to infringement of third party intellectual property.
  18. any property damage; and
  19. any death or injury.
  20. breaches of the Agreement;
  21. any delay connected with the Agreement;
  22. negligence connected with the Agreement and its subject matter;
  23. the termination of the Agreement;
  24. any act or omission connected with this agreement; and
  25. third party reliance on the subject matter of the agreement.
  1. Force Majeure Event

means any occurrence which causes a failure or delay for an affected party in performing its obligations under the Agreement.

Such events include but are not limited to:

  1. an act of war, terrorism or mobilisation of armed forces;
  2. civil disorder;
  3. natural disaster;
  4. pandemic;
  5. embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage;
  6. government intervention; or
  7. material change to what is lawful based on the action of a governmental authority.
  1. Grants A Licence

means that:

  1. The licence granted above will be subject to any terms and conditions specified in the clause.
  1. Intellectual Property Rights

means, with the exception of moral rights and other inalienable rights, all right, title and interest, in each of the following in Australia and throughout the world, whether registered, unregistered or pending registration, and whether conferred by statute, common law, equity or otherwise:

  1. copyright;
  2. trade marks;
  3. trade names, brand names or indications of source, appellation or origin;
  4. inventions including patents, utility patents, patent applications, utility patent applications, and utility models;
  5. circuit layout designs;
  6. registered or unregistered designs;
  7. rights in databases;
  8. topography rights;
  9. design rights;
  10. plant variety and plant breeder rights;
  11. domain name registrations;
  12. confidential information, trade secrets, and know-how;
  13. any other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967;
  14. any application for the registration of any of the above, and any rights to make such an application;
  15. any right to take action to enforce any of the above rights; and
  16. any licence from a third party to use any of the above.
  1. Interpretation Principles

The Agreement will be interpreted as follows unless it explicitly states otherwise.

  1. Parties

For the parties to this document:

  1. a reference to a party includes that party's permitted assigns, administrators, successors, executors, legal representatives and any novated party; and
  2. any reference to a trustee includes any substituted or additional trustee.
  1. Grammatical Forms

In this document grammatical forms will be interpreted as follows:

  1. 'including', 'includes' or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
  2. where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
  3. words in the singular will be taken to include the plural and also the opposite;
  4. headings are for convenience and will not affect interpretation; and
  5. "$" means the Australian dollar.
  1. Document References

For other documents referenced by this document:

  1. a reference to a document will be to that document as updated, varied or amended;
  2. a document referenced by the Agreement will not take precedence over the referencing document;
  3. when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;
  4. where a “URL” is mentioned, the non-operation of the “URL” will not render the rights and obligations associated with it invalid; and
  5. any referenced digital resource may be replaced with another digital resource that is a “copy” of the original resource.
  1. Rights and Obligations

In this document:

  1. a reference to a section of this document refers to a part of the document encompassed by the top level numbering or the definition meaning;
  2. a reference to a party's conduct includes omissions as well as acts;
  3. if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute; and
  4. where a party is required to do 'anything necessary', this includes executing agreements and other legal instruments.
  1. Importing definitions
  1. Defined terms begin with capital letters and are not legally effective except as described below.
  2. Rights and obligations in definitions will be incorporated into the provision using the definition with the method described below.
  3. Parameters for a definition are indicated in the definition with italic text.
  4. The Provision may stipulate exceptions to the rights and obligations in the definition, which will be read as an exception to the rights and obligations in the definition.
  5. Where a definition refers to rights and obligations as "these" or "this" it refers to rights and obligations created by the use of the definition in a Provision.
  1. Keep Secret
  1. Standard of confidentiality
  1. use industry standard security techniques to prevent;
  2. use its best endeavours to mitigate the effects of,
  1. Disclosures to certain entities
  1. professional advisors like lawyers or accountants; and
  2. subsidiaries or parent entities,
  1. Disclosures for legal reasons

the disclosure is necessary in order to enforce the Agreement;

  1. Effects of Disclosure
  1. establish any relationship between the parties other than that created explicitly by the Agreement; or
  1. Limited To Direct Loss Claims
  1. contract law;
  2. tort law; or
  3. legislation,
  1. Mediation Process
  1. Failing resolution via any previous dispute resolution process, either party may refer the dispute for mediation.
  2. The mediation process above will be deemed to have ended if there is no resolution within 60 Business Days of the mediator’s appointment or a written agreement between the parties to extend this deadline.
  1. Moral Rights

means the rights commonly referred to as “moral rights”, such as the right of attribution, which are recognised in the jurisdiction of the Agreement.

  1. New IP

means the intellectual property rights created by Provider for Customer under the Agreement, and does not include Background IP or Contributed IP.

  1. Service Outline, Work Specification

Each such order becomes part of the Work Specification once it is accepted by Provider.

  1. Services, Service

means business advice on software design and development.

  1. Transfers Intellectual Property Ownership
  1. The assignment is global unless the clause specifies a particular territory for the assignment, in which case the Intellectual Property Rights are assigned in that territory only.
  1. Unsuitable Content

means any material or content that is:

  1. obscene, indecent or pornographic;
  2. seditious;
  3. offensive;
  4. defamatory;
  5. threatening;
  6. liable to incite racial hatred;
  7. menacing;
  8. blasphemous; or
  9. in breach of any third party's Intellectual Property Rights.

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