Summary
This agreement applies when you subscribe to and use Annature’s electronic signing services. It sets out what services we provide, what you must do as a Subscriber (including holding a Subscription and using the Platform lawfully), how fees and invoicing work, how Collected Information and intellectual property are handled, when and how the agreement can be terminated, and how we manage confidentiality, privacy, liability and disputes. By obtaining a Subscription or using the Services, you agree to these Terms.
Background
During the Term, Annature agrees to provide you, as the Subscriber, with services relating to the electronic signing of documents and associated services through the Platform using electronic envelopes and text messages (Services).
These terms and conditions apply to any Services that Annature provides to a Subscriber. By accepting the Services, you confirm that you have read, understood and agree to these Terms.
In these Terms, Annature, we or us means Annature Pty Ltd ACN 642 595 015 and its Personnel. You or Subscriber means the person or entity requesting the Services from time to time.
Services
You acknowledge and agree that you are required to hold a valid Subscription as part of your receipt of the Services.
You acknowledge and agree that 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 they are governed by separate terms available on our Website.
Standard of services
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.
Annature must maintain, at its cost, any licences, accreditations, certifications or registrations required by law to perform the Services.
Subscriber’s obligations
You must hold a Subscription to qualify for the Services.
You must only use the Services for a lawful and reasonable purpose and you must not use the Services in any way to harass, intimidate or otherwise unreasonably offend any person, including a Recipient.
You must have all resources necessary to access and use the Platform, including appropriate hardware, software, telecommunications resources and internet access.
You must co-operate with Annature in all matters relating to the Services and provide Annature with true and relevant information regarding each Recipient.
You must 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.
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, or 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.
Fees and invoicing
In consideration of Annature providing the Services, you must pay the Fees to Annature.
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. The Fees are payable notwithstanding any errors, delays, failures to transmit, declines 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.
The Fees are exclusive of GST and other similar taxes and surcharges and are net of withholding or other similar taxes.
Invoicing and Valid Payment Method
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 conditions set out in your Account.
You must pay each invoice within 14 days of receipt unless otherwise stated on your invoice.
Before 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 these Terms.
Review of Fees
Annature may amend the Fees at any time by providing at least 14 days’ notice to you (Review Notice).
If you do not agree to the terms of a Review Notice, you may terminate these Terms by giving written notice to Annature within 7 days of receiving the Review Notice (Notice Period).
If you do not terminate these Terms during the Notice Period, the Fees set out in the Review Notice will apply from the date that is 14 days after the Review Notice.
Collected Information
You acknowledge and agree that, as part of the Services, your Authorised Users may have the opportunity to view, use and receive Collected Information.
Annature will implement and maintain security measures with respect to Collected Information in accordance with Best Industry Practice.
Subscriber’s obligations
Before any Authorised User uses or receives any Collected Information, you must ensure that you and the Authorised User only use Collected Information in accordance with all applicable laws, regulations, rules and other codes of conduct, and only for lawful purposes consented to by the relevant Recipient.
You must implement appropriate security measures to protect all Collected Information and maintain the integrity and security of all Collected Information at all times.
Intellectual property rights
The Intellectual Property Rights in the Services and the Platform are, and remain, the property of Annature. Annature reserves the right to grant a licence to use the Services and the Platform to any third party.
You must do all things reasonably required by Annature to perfect its right, title and interest in and to the Intellectual Property Rights in the Services and the Platform.
You must use reasonable endeavours to prevent any infringement of Annature’s Intellectual Property Rights in the Services or the Platform and promptly report any infringement that comes to your attention.
Licence to use the Platform
Annature grants you 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.
Intellectual property in Collected Information
As between the parties, all Intellectual Property Rights in Collected Information remain the property of you or the relevant Recipient, and nothing in these Terms gives Annature any rights to those Intellectual Property Rights.
Analytics
You agree that Annature may extrapolate, analyse, adapt and otherwise interrogate any information or 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 it considers appropriate. Any Intellectual Property Rights arising from or in connection with this will be owned by Annature.
Subscriber’s warranty and indemnity
You warrant that you hold all necessary licences or consents relating to all Intellectual Property Rights in Collected Information and that, 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.
You indemnify Annature from and against any liability arising out of any claim by a third party (including a Recipient) that Collected Information violates or infringes any Intellectual Property Rights owned by that third party.
Annature’s warranty and indemnity
Annature warrants that it owns, or holds any necessary licence to, all Intellectual Property Rights in the Services and the Platform, and that 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.
Annature indemnifies you from and against any liability arising out of any claim by a third party that the Services or the Platform violate or infringe any Intellectual Property Rights owned by that third party.
Restrictions on use
You agree to promptly report to Annature any errors, defects or malfunctions in relation to the Services or the Platform. You must not do anything that is intended or reasonably likely to damage, impair, interrupt or interfere with the provision of the Services or the Platform. You must not alter, modify, decompile, disassemble, reverse engineer, sublicense or change the Services or the Platform or create a derivative work from them by any means. You must not purport to grant any third party a right to access or use the Services or the Platform except as Annature permits in writing.
Termination
The initial term of the Subscription will commence on the date that you obtain the Subscription and continue for a period of one month (Initial Term).
After the Initial Term, the Term will automatically extend for successive one-month periods (each a Renewal Term) unless you notify us in writing that you do not intend to extend the Term at least 7 days before the end of the then current Term.
Termination for cause
Either party may terminate these Terms with immediate effect by written notice if the other party commits a material breach and fails to remedy it within 14 days after being notified in writing to do so, repeatedly breaches these Terms in a manner that reasonably justifies the opinion that it does not intend or is not able to give effect to these Terms, or suffers an Insolvency Event.
Termination by Annature
Annature may terminate these Terms immediately if you breach the Acceptable use Ppolicy or at any time without cause.
Obligations on termination or expiry
On termination or expiry, Annature will cease to provide the Services. You will be able to continue to access your Account to use and receive Collected Information after termination or expiry until we give you notice that access to your Account will cease. That notice must be given at least 30 days before access ceases.
You must pay or authorise payment of all amounts owing on demand to Annature.
Each party must, on request of the other party, return or destroy all Confidential Information, except that a party may retain Confidential Information that is archived or backed up in the ordinary course of business. The confidentiality obligations in these Terms continue to apply to that retained Confidential Information until it is returned or destroyed.
Survival
Certain clauses, including those relating to fees, Collected Information, intellectual property, termination consequences, confidentiality, liability, privacy and general provisions, survive expiry or earlier termination of these Terms. Termination does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
Confidentiality
Each party agrees, and must ensure that its Personnel agree, to hold in strict confidence all Confidential Information of the other party, to use Confidential Information solely to perform or exercise their rights under these Terms, to not disclose any Confidential Information to third parties, and to use best endeavours (including keeping such information in a safe place and implementing adequate security measures) to ensure all Confidential Information is secure from unauthorised use, disclosure or copying.
These obligations do not apply where 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.
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 in relation to 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.
Limited warranty and exclusion of liability
This clause sets out the entire financial liability of the parties (including 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.
As far as the law permits and unless otherwise specified in these Terms, all liability to you for any injury, loss, damage, cost or expense relating to or arising from these Terms is excluded, except to the extent that such injury, loss, damage, cost or expense arises from the grossly negligent act or omission of Annature.
You are solely responsible, as against Annature, for any opinions, recommendations or other conclusions made or actions taken by you or any third party based wholly or in part on results obtained from your use of the Services.
Annature has no liability for any loss, destruction, unauthorised access or use or other damage arising from or relating to Collected Information, including once Collected Information is downloaded by you from the Platform.
Annature has no liability for any damage caused by errors or omissions in any information or instructions, including Collected Information, that you or a Recipient provide to Annature in connection with the Services.
All warranties, representations, conditions and all other terms of any kind implied by statute or common law are excluded from these Terms.
Mitigation
Each party must mitigate any loss it suffers as a result of a breach by the other party of these Terms or any warranty or indemnity provided under these Terms.
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 Annature’s option, limited to reprovision of the Services or refund of any amount paid by you or on your behalf for receipt of the Services.
Consequential loss
To the extent permitted by law, neither party nor their Personnel is liable to the other party for any Consequential Loss.
Privacy
Annature agrees to comply with its Privacy policy and all applicable requirements of the Privacy Legislation in performing the Services.
You agree to comply with all applicable requirements of the Privacy Legislation in relation to any Collected Information or other information you collect from a Recipient in connection with the Services.
Without limiting that obligation, 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 Collected 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.
Annature must notify you immediately if it becomes aware of any security incident affecting its network and information systems that could potentially affect you and must respond without delay to all queries and requests for information from you about any such security incident, whether discovered by Annature or by you.
Except where consent has otherwise been obtained from the Recipient, each party agrees to use Collected Information and any personal information regarding the Recipient strictly for the purposes of fulfilling its obligations under these Terms.
Force majeure
Neither party is liable for any delay or failure to perform its obligations in a timely manner under these Terms if the delay or failure is due to a Force Majeure Event.
If a Force Majeure Event continues for 60 consecutive days, either party may terminate the Services affected by the Force Majeure Event by written notice to the other party.
Dispute resolution
Neither party may commence court proceedings concerning any dispute arising out of or in relation to these Terms unless it has complied with this dispute resolution clause, except for urgent interlocutory relief.
A party claiming that a dispute has arisen must notify the other party in writing, specifying the nature of the dispute. Representatives of both parties with authority to negotiate and settle the dispute must endeavour in good faith to resolve it within 14 days.
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. If they fail to agree on the appointment of a mediator within 21 days of the dispute notice, either party may apply to the President of the Law Society of Queensland (or nominee) 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 mediator’s fees and each party will bear its own costs in relation to the mediation. The mediation will be held in Brisbane, Queensland. The parties may be legally represented. The mediation will not be bound by the rules of natural justice and the mediator may discuss the dispute with one party in the absence of the other party and its advisers.
Nothing in this clause prevents a party from seeking urgent interlocutory relief in a court.
Variations
If a variation to these Terms would have a material adverse effect on you, Annature may vary these Terms by notifying you at least 14 days before the variation takes effect. If you do not agree to the variation, you may terminate these Terms without penalty by giving written notice before the variation takes effect. Annature will give you an additional notice 3 days before the expiry of that period.
If a variation would not have a material adverse effect on you, Annature may vary these Terms by notifying you at least 14 days before the variation takes effect.
Entire agreement
These Terms supersede all previous agreements about their subject matter and embody the entire agreement between the parties.
No waiver
The failure of either party at any time to enforce any term or exercise any right under these Terms does not constitute a waiver of such right. A single or partial exercise or waiver of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A right under these Terms may only be waived in writing signed by the party granting the waiver.
Relationship
Annature is an independent contractor of the Subscriber. These Terms do not create a relationship of employment, trust, agency, partnership, power of attorney or joint venture between Annature and the Subscriber.
Governing law and jurisdiction
These Terms are governed by the law of Queensland. Each party irrevocably submits to the non-exclusive jurisdiction of the Queensland courts.
Severability
If any clause or part of a clause of these Terms is illegal or unenforceable, it may be severed and the remaining provisions continue in force. If any provision is adjudicated unlawful or unenforceable, that provision is severed and all remaining provisions remain in force.
Assignment and subcontracting
You must not assign or otherwise deal with any of your rights or obligations under these Terms without Annature’s prior written consent.
Annature may assign, novate or otherwise transfer any of its rights or obligations under these Terms without your prior written consent, and you must execute all documents reasonably required to give effect to such arrangements.
Annature may subcontract any of its rights or obligations under these Terms without your consent. You acknowledge and agree that such subcontractors may also subcontract their rights or obligations without your consent.
Further assurances
Each party must do all things reasonably necessary to give effect to these Terms and the transactions contemplated by them.
No merger
The rights and obligations of the parties under these Terms do not merge on completion of any transaction contemplated by these Terms.
Costs
Each party bears its own costs in relation to the preparation and understanding of these Terms.
Notices
Any notice, consent or communication under these Terms must be in writing, signed by or on behalf of the sender, addressed to the recipient, and delivered by hand, by prepaid mail or by email to the address specified in these Terms.
A notice, consent or communication is taken to be given and received on the day it is hand delivered, three Business Days after posting if sent within Australia, seven Business Days after posting if sent from outside Australia, or, if sent by email, on the day it leaves the sender’s mail server if that is before 5.00 pm on a Business Day, or on 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” or similar message) that the email has not been delivered within two hours.
Defined terms and interpretation
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 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; or relating to the Intellectual Property Rights of a party. It also includes information that is by its nature confidential, designated as confidential by a party, or which the other party knows or ought to know is confidential, and includes all trade secrets, know-how, marketing, financial and Requested Recipient information, forecasts, 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.
Best Industry Practice means practices followed when work is undertaken 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, including copyright, moral rights, patents, registered and unregistered trade marks, registered and unregistered designs, trade secrets, know-how, rights in semiconductors and circuit layouts, trade or business or company names, indications of source or appellations of origin, and any right to register such rights.
Laws means legislation including regulations, by-laws and other subordinate legislation, instruments authorised under legislation (including 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 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) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments under it, as amended from time to time; the Australian Privacy Principles in Schedule 1 to the Privacy Act; and all other laws, regulations, registered privacy codes, privacy policies and contractual terms applicable in the jurisdiction where the Services are provided that relate to the processing of personal information.
Recipient means the recipient nominated by the Subscriber to receive the Services or any part of them, or who otherwise receives the Services at the direction of the Subscriber or through any use of their Account.
Sent, in respect of an electronic envelope, means 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. In respect of a text message, it means 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 means the services described in these Terms that relate to the electronic signing of documents and associated services through the Platform using electronic envelopes and text messages.
Term means the Initial Term and each Renewal Term, unless terminated under the relevant provisions of these Terms.
Use, in respect of an electronic envelope, means 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.
Interpretation
In these Terms, a reference to a party includes that party’s successors, permitted substitutes and permitted assigns. A reference to a document or agreement (including 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. A reference to “$” or “dollar” is to Australian currency.