Subscriber agreement

1. Background

a. During the Term, Annature agrees to provide the Subscriber with services relating to the electronic signing of documents and associated services through the Platform using electronic envelopes and text messages (Services).

b. These terms and conditions (Terms) apply to any Services that Annature provides to a Subscriber. By accepting the Services, the Subscriber confirms that it has read, understood and agree to these Terms.

c. In these Terms, Annature, we or us means Annature Pty Ltd ACN 642 595 015 and their Personnel and you or Subscriber means the person(s) requesting the Services from time to time.

2. Services

2.1 General

You acknowledge and agree that:

• you are required to hold a valid Subscription as part of your receipt of the Services
  
• Annature may vary the scope of the Services from time to time. Any additional or varied services provided by Annature will be governed by these Terms, except where such services are governed by separate terms available on our Website
  

2.2 Standard of Services

a. Annature agrees to perform the Services

• with due care, skill and diligence in a timely manner; and
  
• in accordance with all applicable Laws relating to performance of the Services
  

b. Annature must maintain, at its cost, any licenses, accreditations, certifications or registrations required by law to perform the Services.

3. Subscriber's obligations

3.1 General

You must:

• hold a Subscription to qualify for the Services;
  
• only use the Services for a lawful and reasonable purpose and not use the Services in any way to harass, intimidate or otherwise unreasonably offend any person including a Recipient;
  
• have all resources necessary to access and use the Platform including hardware, software, telecommunication resources and internet access;
  
• co-operate with Annature in all matters relating to the Services;
  
• provide Annature with true and relevant information regarding the Recipient; and
  
• comply with all applicable Laws in relation to the Services; all of Annature's instructions and directions relating to the Services; Annature's recommendations from time to time in relation to your network and use of the Platform; the Acceptable Use Policy; and these Terms.
  

3.2 Prohibition

You must not, and must not permit your Personnel or any third party to, access or use the Services or the Platform:

• to develop, construct or operate products or services in competition with the Services or the Platform;
  
• where you, your Personnel or such third party is a direct competitor of Annature or operates products or services which are in direct competition with Annature.
  

4. Fees and invoicing

4.1 Fees

a. In consideration of Annature providing the Services, you must pay the Fees to Annature.

b. You acknowledge and agree that the Fees are payable:

• where, in Annature’s reasonable opinion, an electronic envelope or text message in connection with the Services has been Sent and for each Use of any envelope or text message; and
  
• notwithstanding any errors, delays, failure to transmit, decline of the relevant Service by the Recipient, voiding of the relevant Service by you or any other similar or analogous circumstances relating to or in connection with the Services.
  

c. The Fees are exclusive of GST and other similar taxes and surcharges and net of withholding or other similar taxes.

4.2 Invoicing and Valid Payment Method

a. Annature will invoice you for the Fees:

• on or around the end of each month during the Term; and
  
• otherwise in accordance with the process and other conditions set out in your Account.
  

b. You must pay each invoice issued under clause 4.1(b) within 14 days of receipt unless otherwise stated on your invoice.

c. Prior to receiving the Services, you must provide Annature with a Valid Payment Method. You authorise Annature to arrange funds to be debited using your Valid Payment Method to satisfy all Fees payable by you in accordance with clause 4.1(b).

4.3 Review of Fees

a. Annature may amend the Fees at any time by providing at least 14 days' notice to the Client (Review Notice).

b. If the Client does not agree to the terms of a Review Notice, the Client may terminate these Terms by giving written notice to Annature within 7 days of receiving a Review Notice (Notice Period).

c. If the Client does not terminate these Terms during a Notice Period, then the Fees set out in the Review Notice will be deemed to apply from the date that is 14 days after the Review Notice.

5. Collected Information

5.1 General

a. You acknowledge and agree that, as part of the Services, your Authorised Users may have the opportunity to view, use and receive the Collected Information.

b. Annature will implement and maintain security measures with respect to the Collected Information in accordance with Good Industry Practice.

5.2 Subscriber's obligations

Prior to any Authorised Users using or receiving any Collected Information, you must, and must ensure that the Authorised User:

• only use the Collected Information in accordance with all applicable laws, regulations, rules and other codes of conduct and for a lawful purpose consented to by the Requested Recipient;
  
• implement appropriate security measures to protect all Collected Information; and
  
• maintains the integrity and security of all Collected Information at all times.
  

6. Intellectual Property Rights

a. The Intellectual Property Rights in the Services and the Platform are, and shall remain the property of, Annature. Annature reserves the right to grant a licence to use the Services and the Platform to any third party.

b. The Subscriber must do all things that Annature reasonably requires to perfect its right, title and interest in and to the Intellectual Property Rights in the Services and/or the Platform.

c. The Subscriber shall use reasonable endeavours to prevent any infringement of Annature’s Intellectual Property Rights in the Services and/or the Platform and shall promptly report to Annature any such infringement that comes to its attention.

6.2 License

Annature grants the Subscriber a revocable, non-exclusive, non-transferable and royalty-free right to use the Platform to the extent necessary to obtain the full benefit of the Services.

6.3 Collected Information

As between the parties, all Intellectual Property Rights in the Collected Information remain the property of you or the Recipient (as relevant), and nothing in these Terms shall be construed as giving Annature any rights to such Intellectual Property Rights.

6.4 Analytics

You agree that Annature may extrapolate, analyse, adapt and otherwise interrogate any information or other data arising from or in connection with the Services on an anonymised and de-identified basis for the purpose of improving its services and product offerings and for any other purpose that it considers appropriate. Any Intellectual Property Rights arising from or in connection with this will be owned by Annature.

6.5 Subscriber's warranty and indemnity

a. You warrant that:

• you hold all necessary licences of or consents relating to all Intellectual Property Rights in the Collected Information; and
  
• by you using the Services to transmit or receive any Collected Information, Annature will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.
  

b. You indemnify Annature from and against any liability arising out of any claim by a third party (including the Requested Recipient) that the Collected Information violates or infringes any Intellectual Property Rights owned by a third party.

6.6 Annature's warranty and indemnity

a. Annature warrants that:

• it owns, or holds any necessary license of, all Intellectual Property Rights in the Services and the Platform; and
  
• in utilising the Services and the Platform, you will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.
  

b. Annature indemnifies you from and against any liability arising out of any claim by a third party that it and the Services or the Platform violates or infringes any Intellectual Property Rights owned by a third party.

6.7 Restrictions on use

You acknowledge and agree that you will:

• promptly report to Annature any errors, defects or malfunctions in relation to the Services or the Platform;
  
• not do anything which is intended or reasonably likely to damage, impair, interrupt or interfere with the provision of the Services or the Platform;
  
• not alter, modify, decompile, disassemble, reverse engineer, sublicense or change the Services or the Platform or create a derivative work from the Services or the Platform by any means; or
  
• not purport to grant to a third party any right to access or use our Services or the Platform except as Annature permits in writing.
  

7. Termination

7.1 Term

The initial term of the Subscription will commence on the date that you obtain the Subscription and continue for the period of one month (Initial Term).

After the Initial Term, the Term will automatically extend for successive one-month periods (Renewal Term) unless you notify us in writing that you do not intend to extend the Term at least 7 days prior to the end of the then current Term.

7.2 Termination for cause

Either party may at any time terminate these Terms with immediate effect by giving written notice to the other party if:

• the other party commits a material breach of these Terms and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
  
• the other party repeatedly breaches any term of these Terms in such a manner as to reasonably justify the opinion that their conduct is inconsistent with them having the intention or ability to give effect to these Terms; or
  
• the other party suffers an Insolvency Event.
  

7.3 Termination by Annature

Annature may without limitation terminate these Terms immediately:

• if you breach the Acceptable Use Policy; or
  
• at any time without cause.
  

7.4 Obligations on termination or expiry

On termination or expiry:

• Annature will cease to provide the Services to the Subscriber. You will be able to continue to access your Account to use and receive the Collected Information after termination or expiry until we give you notice that access to your Account will cease. Such notice must be at least 30 days prior to the date that the access will cease;
  
• the Subscriber will pay or otherwise authorise payment of all amounts owing on demand to Annature; and
  
• each party will, on request of the other party, return to the other party or destroy all Confidential Information, provided that a party may retain any Confidential Information that is archived or otherwise backed-up in the ordinary course of its business and the obligations in clause 8 will continue to apply to that Confidential Information until such time as it is returned or destroyed.
  

7.5 Survival

a. Clauses 4, 5, 6.1(a), 7.3, 7.4, 8 to 11 and 13 to 15 survive the expiry or earlier termination of these Terms.

Termination of these Terms will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.

8. Confidentiality

a. Each party agrees to, and shall ensure each of their Personnel:

• hold in strict confidence all Confidential Information of the other party;
  
• use the Confidential Information solely to perform or to exercise their rights under these Terms;
  
• not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party; and
  
• use their best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that all Confidential Information is secure from unauthorised use, disclosure or copying by third parties.
  

b. The obligations in clause 8 do not apply:

• where the Confidential Information has entered the public domain other than as a result of a breach by the Subscriber of these Terms;
  
• to the extent necessary to enable disclosure required by law; or
  
• to any disclosure agreed in writing between the parties.
  

9. Indemnity

You indemnify, and agree to keep indemnified, Annature from and against all Claims arising from or in connection with your use of the Services including without limitation in relation to:

• the Collected Information; and
  
• any fees or charges arising in connection with your Valid Payment Method,
  

except to the extent directly caused by Annature’s wilful misconduct or gross negligence.

10. Limited warranty and exclusion of liability

10.1 Limitation of Liability

a. This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their Personnel) to each other in respect of:

• any breach of these Terms;
  
• any use made of the Services; and
  
• any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
  

b. As far as the law permits and unless otherwise specified in these Terms:

• all liability to the Client for any injury, loss damage, cost or expense relating to or arising from these Terms, except to the extent that the injury, loss, damage, cost or expense arises from the grossly negligent act or omission of Annature, is excluded;
  
• the Subscriber shall be solely responsible, as against Annature, for any opinions, recommendations, or other conclusions made or actions taken by the Subscriber or any other third party based (wholly or in part) on the results obtained from its use of the Services;
  
• Annature shall have no liability for any loss, destruction, unauthorised access or use or other damage arising from or relating to the Collected Information including without limitation once such Collected Information is downloaded by the Subscriber from the Platform;
  
• Annature shall have no liability for any damage caused by errors or omissions in any information or instructions, including without limitation the Collected Information, that the Subscriber or the Recipient provides to it in connection with the Services; and
  
• all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from these Terms.
  

10.2 Mitigation

Each party must mitigate any loss they suffer as a result of the breach by the other party to these Terms or any warranty or indemnity provided under these Terms.

10.3 Maximum liability

To the maximum extent permitted by law, Annature’s total liability under or in connection with the provision of the Services is, at the option of Annature:

• reprovision of the Services; and
  
• refund of any amount paid by you or on your behalf for receipt of the Services.
  

10.4 Consequential Loss

Notwithstanding clause 9.3 and to the extent permitted by law, neither party, nor their Personnel, shall be liable to the other party for any Consequential Loss.

11. Privacy

a. Annature agrees to comply with its Privacy Policy and all applicable requirements of the Privacy Legislation in performing the Services.

b. You agree to comply with all applicable requirements of the Privacy Legislation in relation to any Collected Information or other information that you collects from the Requested Recipient in connection with the Services.

c. Without prejudice to the generality of clause 10(a), you agree and warrant that you have all necessary and appropriate consents and notices in place to enable lawful transfer to Annature of any personal data or information, including without limitation in connection with the Collection Information, for the duration and purposes of these Terms so that Annature may lawfully use, process and transfer the personal data in accordance with these Terms.

d. Annature shall notify you immediately if you become aware of any security incident affecting its network and information systems that could potentially affect you and shall respond without delay to all queries and requests for information from you about any security incident, whether discovered by Annature or by you.

e. Except where consent has otherwise been obtained from the Recipient, each party agrees to use the Collected Information and any personal information regarding the Recipient strictly for the purposes of fulfilling their obligations under these Terms.

12. Force Majeure

a. Neither party shall be liable for any delay or failure to perform their obligations in a timely manner pursuant to these Terms if such delay is due to a Force Majeure Event.

b. If a Force Majeure Event continues for a period of 60 consecutive days, then either party may terminate the Services affected by the Force Majeure Event by providing written notice to the other party.

13. Dispute Resolution

a. Neither party may commence court proceedings concerning any dispute between the parties arising out of or in relation to these Terms (Dispute), unless the party starting the proceedings has complied with this clause 12

b. A party claiming that a Dispute has arisen must notify the other party in writing, specifying the nature of the Dispute (Dispute Notice).

c. Following the Dispute Notice being given, a representative of both parties with authority to negotiate and settle the Dispute must endeavour in good faith to resolve the Dispute within 14 days.

d. If the Dispute is not resolved within 14 days of the Dispute Notice being given, the parties must endeavour in good faith to resolve the Dispute by mediation as follows:

• if the parties fail to agree on the appointment of a mediator within 21 days of the Dispute Notice being given, either party may apply to the President of the Law Society of Queensland or the nominee of the President to nominate a mediator (which nomination the parties must accept);
  
• if the mediator accepts the appointment, the parties must comply with the mediator’s instructions;
  
• if the Dispute is not resolved within 21 days of the appointment of a mediator, the mediation ceases;
  
• the parties will be jointly responsible for the fees of the mediation, and each party is to bear their own costs in relation to the mediation;
  
• the mediation will be held in Brisbane, Queensland;
  
• the parties may be legally represented at the mediation; and
  
• the mediation will not be bound by the rules of natural justice and may discuss the Dispute with a party in the absence of any other party and their advisers.
  

e. Nothing in this clause prevents a party from seeking urgent interlocutory relief in a court.

14. General

14.1 Variations

Where a variation to these Terms would:

• have a material adverse effect on you, we may vary these Terms at any time by notifying you at least 14 days prior to the variation coming into effect, provided that if you do not agree to the variation, you may terminate these Terms without penalty by providing us with written notice prior to the date that the variation will take effect. We will give you an additional notice 3 days before the expiration of that period; or
  
• not have a material adverse effect on you, we may vary these Terms at any time by notifying you at least 14 days prior to the variation coming into effect.
  

14.2 Entire agreement

These Terms supersedes all previous agreements about its subject matter. These Terms embodies the entire agreement between the parties.

14.3 No waiver

a. The failure of either party at any time to enforce any of the terms or provisions of these Terms or to exercise any right under these Terms does not constitute a waiver of any such right or affect the party's privilege to enforce that right.

b. A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy

c. A right under these Terms may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.

14.4 Relationship

Annature is an independent contractor of the Subscriber and these Terms does not create a relationship of employment, trust, agency, partnership, power of attorney, or of joint venture between Annature and the Subscriber.

14.5 Governing law and jurisdiction

Queensland law governs these Terms. Each party irrevocably submits to the non-exclusive jurisdiction of the Queensland courts.

14.6 Severability

a. A clause or part of a clause of these Terms that is illegal or unenforceable may be severed from these Terms and the remaining clauses or parts of the clause of these Terms continue in force.

b. If any provision of these Terms is deemed to be or is adjudicated to be unlawful or unenforceable, such provision is to be severed from these Terms and all other remaining provisions remain in force.

14.7 Assignment and subcontracting

a. The Subscriber must not assign or otherwise deal with, in whole or in part, any of its rights and obligations under these Terms without the prior written consent of Annature.

b. Annature may assign, novate or otherwise transfer, in whole or in part, any of its rights and obligations under these Terms without the prior written consent of the Subscriber. The Subscriber shall execute all documents reasonably required to give effect to this clause.

c. Annature may subcontract, in whole or in part, any of its rights and obligations under these Terms without the prior written consent of the Subscriber. You acknowledge and agree that any such subcontractors may also subcontract, in whole or in part, any of their rights and obligations, without the prior written consent of you.

14.8 Further assurances

Each party must do all things reasonably necessary to give effect to these Terms and the transactions contemplated by it.

14.9 No merger

The rights and obligations of the parties under these Terms do not merge on completion of any transaction contemplated by these Terms.

14.10 Costs

Each party bears its own costs in relation to the preparation and understanding of these Terms.

14.11 Notices

a. A notice, consent or communication under these Terms must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail or sent by email to that person's address as set out in these Terms.

b. A notice, consent or communication is given and received:

• if it is hand delivered, on the day it is given;
  
• if it is sent by post, three Business Days after posting (if within Australia) or seven Business Days after posting (if outside Australia); and
  
• if it is sent by email, that day, if the time of departure from the sender's mail server is before 5.00pm on a Business Day, or the next Business Day in any other case, unless the sender receives an automated message generated by the recipient's mail server (other than an 'out of office' message or other response generated by or at the instigation of the recipient) that the email has not been delivered within two hours.
  

a. A notice, consent or communication under these Terms must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail or sent by email to that person's address as set out in these Terms.

a. A notice, consent or communication under these Terms must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail or sent by email to that person's address as set out in these Terms.

15. Defined terms & interpretation

15.1 Defined terms

Account means your account on the Platform related to the provision of the Services.

Acceptable Use Policy means the acceptable use policy available on our Website, as amended from time to time.

Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).

Authorised Users means any persons authorised by the Subscriber to use, or who otherwise use, the Subscriber’s Account.

Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.

Claim means any claims, losses, damages, liabilities, demands, suits, expenses and costs.

Collected Information means any information provided by the Client or the Recipient (as the case may be) to Annature (whether through the Platform or otherwise) in connection with the Services including without limitation any personal information or documents.

Confidential Information means any information:

• relating to the business and affairs of a party;
  
• relating to the Recipient, Subscribers, employees, sub- suppliers or other persons doing business with a party;
  
• relating to the terms and existence of these Terms;
  
• relating to the Intellectual Property Rights of a party;
  
• which is by its nature confidential;
  
• which is designated as confidential by a party; or
  
• which the other party knows or ought to know, is confidential,
  

and includes all trade secrets, knowhow, marketing, financial and Requested Recipient information, forecasts, and strategies and any other commercially valuable information of a party.

Consequential Loss means any consequential, special, indirect or incidental loss including without limitation loss of profit, loss of revenue, business interruption, loss of business, loss of opportunity, loss of reputation or loss in connection with breach of third party contracts or arrangements.

Fee means the fees set out by Annature with respect to the Services in the Platform or otherwise on an invoice issued in connection with these Terms.

Good Industry Practice means practices followed when work is undertaken in accordance with all of the following:

• in a sound and workmanlike manner;
  
• with due care and skill;
  
• to the standard expected of an experienced and competent supplier of similar goods or services; and
  
• in accordance with all applicable laws.
  

GST means goods and services tax.

Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes but is not limited to any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.

Laws means:

• legislation including regulations, by-laws and other subordinate legislation;
  
• instruments authorised under legislation to be made by any authority, including without limitation planning instruments and local laws;
  
• any rules or codes of conduct; and
  
• common law.
  

Subscription means a subscription entitling the Subscriber to use the Platform in order to receive the Services in accordance with the relevant subscription level, as directed by Annature from time to time (including without limitation through our Website).

Personnel means a party’s directors, officers, employees, agents, contractors and subcontractors, as the context permits.

Platform means the website, app or other platform that Annature uses in connection with the Services.

Privacy Legislation means:

• the Privacy Act 1988 (Cth) (Privacy Act) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time;
  
• the Australian Privacy Principles (or APPs) contained in schedule 1 of the Privacy Act; and
  
• all other laws, regulations, registered privacy codes, privacy policies and contractual terms applicable in the jurisdiction where the Services are being provided that relate to the processing of personal information.
  

Recipient means the recipient nominated by the Subscriber to receive the Services or any part thereof, or who otherwise receives the Services at the direction of the Subscriber or any use of their Account.

Sent means:

• in respect of an electronic envelope, the direction to transmit an electronic envelope by you (or through your Account) through the Platform to a Recipient’s email address and expressly excludes any reminder electronic envelopes sent in connection with the Services; and
  
• in respect of a text message, the direction to transmit a text message by you (or through your Account) through the Platform to a Recipient’s mobile number and expressly includes any reminder text messages sent in connection with the Services.
  

Services has the meaning given to that term in clause 2(a)

Term means Initial Term and each Renewal Term, unless terminated under clauses 2.1, 4.3(b) or 7.

Use means:

• in respect of an electronic envelope, each Sent electronic envelope; and
  
• in respect of a text message, each Sent text message.
  

Valid Payment Method means payment by direct debit, credit card or debit card.

Website means our website located at www.annature.com.au, as amended from time to time.

15.2 Interpretation

In these Terms:

• a reference to a party to these Terms or any other document or agreement includes the party's successors, permitted substitutes and permitted assigns;
  
• a reference to a document or agreement (including a reference to these terms) is to that document or agreement as amended, supplemented, varied or replaced;
  
• a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
  
• if any day on or by which a person must do something under these Terms is not a Business Day, then the person must do it on or by the next Business Day; and
  
• a reference to '$' or 'dollar' is to Australian currency.