Master Subscription Agreement

General Terms and Conditions

• Definitions and interpretation

• Definitions

1. 
   
   1. Activation File means an electronic file that enables the Licensed Software to be accessed by the Customer, and sets limits on the use of the Licensed Software.
   2. Agreement means this Master Subscription Agreement, including the Commercial Terms Schedule, the General Terms and Conditions and any Schedules and Annexures to this Agreement.
   3. Business Day means a day on which banks are open for general banking business in Sydney, New South Wales, Australia, excluding Saturdays and Sundays.
   4. Claim means any claim, loss, liability, damage, action, order, judgment, demand, cost and expense, including incidental, special or consequential loss or damage.
   5. Commencement Date means the date specified in Item 3 of the Commercial Terms Schedule.

• Confidential Information means:

1. 1. the content of this Agreement, or any other instruments entered into under this Agreement;
   2. all information regarding a party’s business or affairs, including business concepts, processes, methods, trade secrets, systems, data, proprietary software, code, inventions, algorithms, technical information, know-how, devices, formulas, product specifications, marketing methods, prices, distributor lists, supplier lists, methods of operation, or other information, whether in oral, written, or electronic form;
   3. information obtained by a party in connection with this Agreement that, by its nature or the circumstances surrounding its disclosure, could reasonably be expected to be regarded as confidential to the other party or any third party with whose consent or approval the other party uses that information; and
   4. information developed or created by a party which is based on, derived from, which includes or refers to, any of the other party’s confidential information, whether or not provided, obtained, developed or created before or after the date of this Agreement, but does not include any information:

1. that becomes generally available to the public (other than through breach of this Agreement); 
2. that was already known to the Recipient at the time of disclosure by the Disclosing Party; or 
3. information that the Recipient acquires from a source other than the Disclosing Party (if such source is entitled to disclose it on a non-confidential basis).

Disclosing Party has the meaning given in clause 11.1.

EULA means the end user licence agreement as published on the Licensed Software and updated from time to time.

Event of Default has the meaning given in clause 9.4.

Fees means: 

1. in relation to each Statement of Work, the fees specified in that Statement of Work; or
2. if the Statement of Work does not state the applicable fees, such fees as calculated based on Hubway Connect’s then current price list for the Licensed Software and Services.

Force Majeure Event means an event, or series of related events, that is outside the reasonable control of the party affected and which was not in existence as at the date of this Agreement, including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, disasters, explosions, fires floods, riots, terrorist attacks, wars, epidemics and pandemics.

GST means:

1. the same as in the GST Law;
2. any other goods and services tax, or any tax applying to this transaction in a similar way; and
3. any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

GST Law means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.

Licences means all licences to, or in connection with, the Licensed Software which are granted to the Customer by Hubway Connect under this Agreement or a Statement of Work.

Licensed Software means the software specified in Item 4 of the Commercial Terms Schedule, consisting of a set of instructions or statements in machine readable medium and, if provided to the Customer under this Agreement, includes any Update to, or New Release of, that Licensed Software.

Moral Right means:

1. a right of attribution of authorship;
2. a right not to have authorship falsely attributed;
3. a right of integrity of authorship; and
4. a right of a similar nature, which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this Agreement.

New Release means software which has been provided primarily to provide an extension, alteration, improvement or additional functionality to the Licensed Software.

Personal Information has the meaning given in the Privacy Act 1988 (Cth).

Problem means any error or defect arising in the course of the Customer’s reasonable use of any item of Licensed Software which inhibits or otherwise degrades the performance of the Licensed Software or makes the Licensed Software inoperable or unable to comply with any requirements or specifications detailed in the Statement of Work.

Professional Services means the services specified in Item 6 of the Commercial Terms Schedule.

Receiving Party has the meaning given in clause 11.1.

Related Body Corporate has the meaning given in sections 9 and 50 of the Corporations Act 2001 (Cth).

Security Interest includes a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of any obligation, or that gives a creditor priority over unsecured creditors.

Services means all services provided to the Customer by Hubway Connect under this Agreement or a Statement of Work, including: 

1. the provision of the Support Services; and 
2. the provision of the Professional Services.

Statement of Work means a statement of work agreed in writing between Hubway Connect and the Customer in respect of the grant of Licences and/or the provision of Services, which will be in substantially the form of the template contained in Schedule 1.

SOW Term means, in relation to each Statement of Work, the term specified in that Statement of Work.

Support Services means the services specified in Item 5 of the Commercial Terms Schedule.

Third Party Software means the software specified in Item 7 of the Commercial Terms Schedule.

Update means updates for or relating to the Licensed Software which has been produced primarily to overcome defects in, enhance, or otherwise modify the Licensed Software, but does not include any New Release of the Licensed Software. 

User means any individual personnel of the Customer who will have access to the Licensed Software.

• Interpretation

In this Agreement and any Statement of Work:

1. a reference to this Agreement or another document includes any document which varies, supplements, replaces, assigns or novates this Agreement or other document;
2. a reference to a party to a document includes that party’s representatives, executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
3. including and includes are not words of limitation, and a list of examples is not limited to those items or to items of a similar kind;
4. a word that is derived from a defined word has a corresponding meaning;
5. neither this Agreement nor any part of it is to be construed against a party on the basis that the party was responsible for its drafting;
6. a reference to any legislation or provision of legislation includes all amendments, consolidations or replacements and all regulations or instruments issued under it;
7. an agreement, representation, covenant, right or obligation:

1. in favour of two or more persons is for the benefit of them jointly and severally; and
2. on the part of two or more persons binds them jointly and severally;

1. a reference to a body (including an institute, association or Authority) which ceases to exist or whose powers or functions are transferred to another body is a reference to the body which replaces it or which substantially succeeds to its power or functions; and
2. a reference to dollars or $ is to United States Dollar currency.

• Terms of Statements of Work

• Statements of Work

1. From time to time, the parties may agree a Statement of Work.
2. The terms of this Agreement apply to, and are incorporated into, each Statement of Work made under clause 2.1(a).
3. In the event of any inconsistency between this Agreement and any Statement of Work, the terms of the Statement of Work will prevail to the extent of the inconsistency.

• Supply of Services

1. Hubway Connect will use its reasonable endeavours to supply the Services specified in each Statement of Work to the Customer in accordance with this Agreement. 
2. Nothing in this Agreement requires Hubway Connect to supply any Services, or grant any Licence, to the Customer when:

1. the Customer has not paid for Services previously provided or Licences previously granted by Hubway Connect for which payment is due; or
2. there is a dispute relating to the provision of any Services and/or the grant of any Licences.

• Grant of licence to use Licensed Software

• Scope of licence

1. Subject to clauses 3.1(b) to 3.1(d) (inclusive), Hubway Connect grants the Customer a non-exclusive, non-transferable, non-sublicensable licence to use the object code version of the Licensed Software for the SOW Term solely for the purpose set out in the Statement of Work (if any) or if no purpose is specified, for the Customer’s internal business purposes.
2. The Licensed Software may be accessed by no more than the specified number of Users in a Statement of Work, and User subscriptions must not be shared or used by more than one User without Hubway Connect’s prior written consent but may be reassigned to new Users replacing persons who no longer require User access to the Service. 
3. The parties may agree to add additional User subscriptions during the SOW Term based on Hubway Connect’s then current price list, or on such other terms as agreed between the parties in writing.
4. The Customer must not, and must ensure that all Users do not:

1. use or access the Licensed Software in any manner except as expressly permitted by the Agreement or applicable Statement of Work, including but not limited to, in a manner that circumvents contractual usage restrictions set forth in the Statement of Work;
2. contravene any restrictions in the applicable Statement of Work; 
3. use the Licensed Software in any unlawful, fraudulent or malicious way;
4. infringe any Intellectual Property Rights in relation to the Licensed Software;
5. copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Software or any part of it except as permitted by law or with the express written consent of Hubway Connect; or
6. install or use the Licensed Software in a manner that circumvents or interferes with the operation of any Activation Files provided under clause 3.3 or any other technological measure that controls the access to the Licensed Software.

1. The Customer will be responsible for all Users’ compliance with this Agreement and the Statement of Work and for any other activity (whether or not authorised by the Customer) occurring under Customer’s account.

• Updates and New Releases

1. If an Update or New Release is provided to the Customer under this Agreement, the Customer will be responsible for installing such Update or New Release according to any installation instructions supplied by Hubway Connect.
2. Clause 3.2(a) does not impose any obligation on Hubway Connect to develop or provide any Update, New Release, additional software, or additional functionality.
3. Subject to clause 3.2(d), if an Update or New Release of the Licensed Software is released during a SOW Term, and if requested by the Customer, Hubway Connect will make the Update or New Release of the Licensed Software available to the Customer, in which case:

1. unless otherwise expressly agreed, the terms in this clause 3 will apply to the Customer’s use of the Update or New Release of the Licensed Software; 
2. the Customer’s right to use the previous version of the Licensed Software is terminated with effect on and from the date that the Update or New Release of the Licensed Software is first installed and/or used by the Customer; and
3. Hubway Connect reserves its right to require the certification by an officer of the Company of the destruction of the previous version of the Licensed Software.

1. Hubway Connect is not required to make any New Release of the Licensed Software available to the Customer until all Fees for the then current SOW Term have been paid.

• Activation Files

As part of delivery of the Licensed Software under a Statement of Work, Hubway Connect may provide the Customer with an Activation File that will allow it to use the Licensed Software.

• Risk

Risk of loss or damage to the Licensed Software, the media on which the Licensed Software is recorded or printed, and the Activation File will pass to the Customer upon delivery of the Licensed Software.

• Unauthorised use

The Customer will: 

1. use commercially reasonable efforts to prevent unauthorised access to, or use of, the Licensed Software; and
2. ensure that all Users: 

1. agree to the terms of the EULA as a pre-condition for using the Licensed Software; and
2. use the Licensed Software only in accordance with the terms of this Agreement, the EULA and any applicable laws and regulations; and

1. promptly notify Hubway Connect immediately on becoming aware of any unauthorised use or copying of the whole or any part of the Licensed Software.

• Return of Licensed Software

1. Immediately upon termination of this Agreement, the Customer will deliver up to Hubway Connect the Licensed Software (including all copies, authorised or otherwise) or otherwise dispose and discontinue its use of the Licensed Software in the manner directed by Hubway Connect.
2. The Customer will not create or permit to exist a Security Interest over the Licensed Software or in any modifications to, or enhancements, Updates or New Releases of, the Licensed Software.  

• Supply of Support Services

• Scope of Support Services

1. Hubway Connect agrees to perform, and the Customer agrees to engage Hubway Connect to perform, the Support Services on the terms of the relevant Statement of Work.
2. Hubway Connect will perform the Support Services with due care and skill and in a manner consistent with applicable industry standards.

• Service Requests

1. If the Customer believes that a Problem has occurred, the Customer must inform Hubway Connect of the existence and nature of the Problem as soon as reasonably practical.
2. Without limiting clause 4.2(a), the Customer must provide Hubway Connect with the following details regarding any Problem:

1. Customer name and technical representative’s contact information;
2. the details of the Licensed Software product to which the Problem relates (including details of the Version number and component);
3. any program error numbers associated with the Problem; 
4. a detailed description of the Problem; and
5. such other information as is reasonably requested by Hubway Connect in connection with the Problem.

1. If Hubway Connect determines that a Problem reported by the Customer to Hubway Connect under clause 4.2(a) is not due to a Problem with the Licensed Software:

1. Hubway Connect will notify the Customer of such determination; and
2. the Customer may either:
   1. instruct Hubway Connect to attempt to resolve the Problem (at the expense of the Customer); or
   2. instruct Hubway Connect not to pursue the Problem. 

1. The Customer agrees to pay Hubway Connect (at Hubway Connect’s then current rates) for any work performed by Hubway Connect in connection with a Problem where Hubway Connect can document that such work does not relate to a problem with the Licensed Software.

• Exclusions

1. Hubway Connect will only provide Support Services (including Updates) for: 

1. the current version of any Licensed Software;
2. the most recent previous version of the Licensed Software for a maximum period of six (6) months after the date of commercial release of the current version of the Licensed Software.

1. Hubway Connect will have no obligation to provide Support Services (including Updates) in connection with: 

1. any Problem arising out of or in connection with the Customer’s negligence, misapplication or misuse of the Licensed Software;
2. the Licensed Software being installed on hardware that is not supported by Hubway Connect; or
3. any changes required to the Customer’s hardware or other software systems or third party services that are necessary in order for the Customer to use the Licensed Software.

• Third party / reseller software support

1. The Customer acknowledges and agrees that:

1. the Licensed Software may incorporate or otherwise be dependent upon the Third Party Software;
2. Hubway Connect is a reseller of, or is otherwise permitted to distribute, any Third Party Software falling within clause 4.4(i);
3. unless otherwise expressly agreed by Hubway Connect, the Support Services do not include the provision of services or updates relating to the Third Party Software; and
4. if the Customer requires any services or updates in relation to the Third Party Software, the Customer must seek such services or updates directly from the third party provider of the Third Party Software.

1. The Customer acknowledges and agrees that to the maximum extent permitted by law: 

1. Hubway Connect does not provide any warranty or assume any liability in connection with any Third Party Software or any services provided by a third party in connection with any Third Party Software;
2. Hubway Connect is not liable for any consequential, incidental, exemplary, punitive or indirect damages arising out of or in connection with any Third Party Software or any services provided by a third party in connection with any Third Party Software.

• Supply of Professional Services

• Scope of Professional Services

1. Hubway Connect agrees to perform, and the Customer agrees to engage Hubway Connect to perform, Professional Services on the terms of the relevant Statement of Work.
2. Hubway Connect will perform the Professional Services with due care and skill and in a manner consistent with applicable industry standards.

• Intellectual Property Rights

• Ownership rights

The Customer acknowledges and agrees that Hubway Connect retains all right, title and interest in and to: 

1. all Licensed Software; 
2. all documentation provided in relation to the Licensed Software; 
3. all Activation Files; and
4. all other materials in which Intellectual Property Rights subsist, which are developed by or on behalf of Hubway Connect during the term of this Agreement, 

whether in its original form or as modified by either Hubway Connect or the Customer during the term of this Agreement, including under clause 7.2(a).

• Further assurance

The Customer agrees to take such steps as are reasonably required by Hubway Connect in order to give effect to clause 6.1, including executing and perfecting any assignment to Hubway Connect of any Intellectual Property Rights falling within clause 6.1.

• Moral Rights

Nothing in this Agreement affects the ownership of Moral Rights in the Licensed Software or any other copyright work falling within clause 6.1.

• Restrictions relating to Licensed Software

• Reverse engineering

Except as expressly permitted by part 3 division 4A of the Copyright Act 1968 (Cth), the Customer will not reverse assemble or reverse compile the Licensed Software or any part of the Licensed Software. 

• Modifications

1. The Customer must not modify the whole or any part of the Licensed Software or combine or incorporate the whole or any part of the Licensed Software in any other program or system without the prior consent in writing of Hubway Connect.
2. If the Licensed Software is modified in accordance with clause 7.2(a), the modifications must, unless Hubway Connect directs otherwise, be made in accordance with a written proposal submitted by the Customer to Hubway Connect and approved by Hubway Connect.
3. The Customer will fully indemnify and hold harmless Hubway Connect from and against any liability incurred in connection with any allegation that any modification made by the Customer (including any third party acting on behalf of the Customer) to the Licensed Software infringes the Intellectual Property Rights of a third person.

• Fees and payment terms

• GST

Unless otherwise expressly stated, all Fees are stated on a GST-exclusive basis.

• Payment

1. The Customer must pay Hubway Connect all Fees under each Statement of Work within the payment period specified in that Statement of Work or, in the absence of any specified payment period, within thirty (30) days after the date of issue of each invoice.
2. The Customer must pay all amounts due under this Agreement by way of bank transfer in Australian currency, or in such other manner as reasonably directed by Hubway Connect. 
3. Other than as expressly permitted under clause 10.3, all payments made by the Customer to Hubway Connect are non-refundable.

• Increase to Fees

1. On each anniversary of a Statement of Work, Hubway Connect may, by notice to the Customer, increase the Fees in respect of that Statement of Work by: 
2. such amount or percentage as is specified in the relevant Statement of Work; or 
3. in the absence of an amount or percentage being specified in the Statement of Work, by the annual consumer price index as most recently released by the Australian Bureau of Statistics.
4. Hubway Connect may, from time to time, by notice to the Customer, change its price list which will apply to all new Statement of Works. 

• Overdue payments

1. If the Customer does not make payment in full of any amount owing under an invoice within the timeframe in clause 8.2(a), interest is payable by the Customer on the outstanding amount at the maximum rate allowed under applicable law, accruing on and from the due date for payment on a daily basis up to and including the date on which payment is made. 
2. All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of Hubway Connect, are to be paid by the Customer as a debt due and payable under this Agreement.
3. Hubway Connect may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to Hubway Connect.

• Early cancellation for non-payment 
• The Customer acknowledges and agrees that: 

1. the Licensed Software may be made available with a temporary Activation File, which will expire thirty (30) days after the Fee for that Licensed Software becomes due;
2. upon payment of the Fee for the Licensed Software, the temporary Activation File will immediately be converted into a permanent Activation File for the remainder of the SOW Term or where the Fee is on a recurring basis, until thirty (30) days after the next Fee for that Licensed Software becomes due;
3. in the event that the Customer does not pay the applicable Fee within the period in clause 8.5(a) or 8.5(b), or as otherwise required by this Agreement or a Statement of Work, such failure to pay will constitute a material breach of the Statement of Work, and Hubway Connect:

1. may immediately suspend or terminate the Customer’s license to access and use the Licensed Software;
2. is not required to provide any further Activation File until the applicable Fee has been paid; 
3. may suspend the provision of any other Services provided to the Customer under this Agreement; and/or
4. may exercise its right to terminate the Statement of Work under clause 9.3.

• Term and Termination

• Term of Agreement

This Agreement commences on the Commencement Date and continues in full force and effect until the SOW Terms of all Statement of Works made under this Agreement have expired, unless terminated earlier in accordance with clause 9.3 or 9.5.

• SOW Term

Unless otherwise specified in the applicable Statement of Work: 

1. each SOW Term will be for an initial period of twelve (12) months, commencing on and from the date of the Statement of Work; and
2. each Statement of Work will be renewed for a further twelve (12) months upon expiration of the initial SOW Term and any subsequent renewal period, except where either party has given the other party written notice of non-renewal at least thirty (30) days prior to the end of the then current SOW Term or renewal period.

• Termination of Statement of Work

1. If a party breaches a material term of any Statement of Work, the other party may terminate that Statement of Work.  
2. Any termination under clause 9.3(a) will not provide either party with a right to terminate the entire Agreement unless the circumstances in question constitute an Event of Default.

• Events of Default

Each of the following occurrences constitutes an Event of Default in relation to a party:

1. that party breaches or is alleged to have breached a material term of this Agreement for any reason and either:

1. the breach is not capable or remedy; or 
2. if capable of remedy, fails to remedy that breach within fourteen (14) days after being given notice by the other party to do so;

1. the other party has terminated, or has been entitled to terminate, two (2) Statements of Work under clause 9.3(a);
2. that party, being a natural person, commits an act of bankruptcy;
3. that party, being a corporation, is subject to:

1. a petition being presented, an order being made or a meeting being called to consider a resolution for that party to be wound up, deregistered or dissolved;
2. a receiver, receiver and manager, or an administrator under part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of that party’s property;
3. a scheme of arrangement (other than for the purpose of restructuring); and
4. any assignment for the benefit of creditors; or

1. that party ceases or threatens to cease to conduct its business in the normal manner.

• Consequences of Event of Default

Where an Event of Default occurs, the party not at fault may immediately:

1. terminate this Agreement; and/or
2. terminate any or all Statements of Work.

• Consequences of termination

Upon termination of this Agreement or a Statement of Work:

1. all invoices issued by Hubway Connect under this Agreement or that Statement of Work (as relevant) will become immediately due and payable; 
2. by Hubway Connect, Hubway Connect may retain (where applicable) all money paid by the Customer, including all Fees paid by the Customer for the grant of the Licence, on account of Services rendered, or otherwise;
3. the Customer will immediately (at the election of Hubway Connect) either: 

1. return to Hubway Connect; or
2. destroy (and certify such destruction to Hubway Connect in writing), the Licensed Software and all copies of the Licensed Software, all revisions, enhancements and upgrades of the Licensed Software, together with all documentation relating to the Licensed Software.  

• Warranties and Indemnity

• Disclaimer of warranties

1. Hubway Connect warrants that the Licensed Software and Services will reasonably comply with the relevant Statement of Work.
2. Except as set out in clause 10.1(a), and to the maximum extent permitted by law, the Customer acknowledges and agrees that: 

1. the Services and the Licensed Software are provided on an “as is” basis;
2. Hubway Connect does not assert, and it hereby disclaims, any express or implied representation, warranty, condition, certification or agreement, whether as to the accuracy, reliability, sufficiency, suitability, quality, timeliness or completeness of the Licensed Software or the Services; and
3. Hubway Connect does not warrant that the Services or the Licensed Software will be uninterrupted, error-free, secure or without delay or free from defects, harmful components, viruses or malware.

1. The Customer has the sole responsibility for the adequate protection and backup of data and/or equipment used in connection with the Services and the Licensed Software.

• Limitation of liability – general

Hubway Connect disclaims all liability arising out of or in connection with any of the following:

1. internet or connectivity interruptions or delays;
2. the Customer’s or any third party’s data, equipment, network, servers, applications, properties, cabling, systems, or facilities;
3. scheduled maintenance to the Licensed Software;
4. any act or omission by the Customer or any third party;
5. use of the Licensed Software in a manner which is not permitted under this Agreement; or
6. modifications to the Licensed Software by any person other than Hubway Connect.

• Limitation of liability – Australian Consumer Law

The liability of Hubway Connect and each of its Related Bodies Corporate for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by sections 51 to 53 of the Australian Consumer Law) is limited:

1. in the case of goods, to any one of the following as determined by Hubway Connect:

1. the replacement of the goods or the supply of equivalent goods;
2. the repair of the goods;
3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
4. the payment of the cost of having the goods repaired; and

1. in the case of services, to any one of the following as determined by Hubway Connect:

1. the supplying of the services again; or
2. the payment of the cost of having the services supplied again.

• Limitation of liability – other claims

1. Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, and subject to any non-excludable statutory liability, the aggregate liability of Hubway Connect in respect of all acts and omissions of Hubway Connect in connection with its obligations under this Agreement will not exceed the total Fees paid to Hubway Connect in the twelve (12) months prior to the event giving rise to the claim, even if Hubway Connect has been advised by the Customer as to the possibility of such losses being incurred. 
2. The Customer acknowledges and agrees that Hubway Connect, together with each of its Related Bodies Corporate, will not be liable to the Customer for any consequential, incidental, exemplary, punitive or indirect damages arising out of or in connection with this Agreement or any of the Statement of Works, including any damages relating to loss of profits, loss of data and lost savings.

• Indemnity 

The Customer indemnifies and holds harmless Hubway Connect and its Related Bodies Corporate, and their respective shareholders, directors, officers, employees, agents and other representatives (together, the Indemnified Parties), from and against any and all Claims (including reasonable legal fees) to which the Indemnified Parties may become subject by reason of: 

1. any breach of clauses 3, 6, 7, and/or 11 of this Agreement by the Customer; and
2. any negligent act or omission or wilful act in connection with the performance of Customer’s obligations under this Agreement or any Statement of Work.

• Indemnity Cap

The aggregate amount of Claims for which the Indemnified Parties shall be entitled to indemnification will not exceed $500,000 (the “Cap”).

• Confidentiality

1. 1. Protection of Confidential Information

Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of the other party (Disclosing Party) acknowledges that the Disclosing Party’s Confidential Information is the property of and confidential to the Disclosing Party.  Subject to clause 11.2, the Receiving Party must:

1. keep the Disclosing Party’s Confidential Information confidential and not directly or indirectly disclose or communicate that Confidential Information to any other person without the prior written approval of the Disclosing Party;
2. take all reasonable steps to keep secure all the Disclosing Party’s Confidential Information coming into its possession or control;
3. only use the Confidential Information of the Receiving Party to perform its obligations under this Agreement; and
4. not memorise, modify, reverse engineer or make copies, notes or records of the Disclosing Party’s Confidential Information for any purpose other than (and to the extent required) for the performance by the Receiving Party of its obligations under this Agreement.

• Exceptions

The obligations of confidentiality under clause 11.1 do not apply to any disclosure: 

1. that is required to be made by any applicable law; or
2. to a party’s legal and other professional advisor, where such advisor is bound by an obligation of confidentiality.

• Privacy

Without limiting the parties’ obligations under clause 11.1, where a party gains access to Personal Information about any individual as a result of or in connection with performing its obligations under this Agreement, that party will process such Personal Information in compliance with applicable data protection laws.  To the extent the Customer or a User gives Hubway Connect access to Personal Information, the Customer warrants that such collection and disclosure complies with applicable data protection laws, as though the Customer was bound by those laws. 

• GST

• Definitions

Words defined in the GST Law have the same meaning in this clause 12, unless the context makes it clear that a different meaning is intended.

• Payment of GST

In addition to paying the Fees and any other amount payable or in connection with this Agreement (which is exclusive of GST), the Customer will:

1. pay to Hubway Connect an amount equal to any GST payable from any supply by Hubway Connect in respect of which the Fee or any other amount is payable under this Agreement; and
2. make such payment either on the date when the Fee or other amount is due or within seven (7) days after the Customer is issued with a tax invoice, whichever is the later.

• Tax invoices

1. Hubway Connect must, within seven (7) days of request from the Customer, issue a tax invoice (or an adjustment note) to the Customer for any supply under or in connection with this Agreement.
2. Hubway Connect will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to the Customer, any overpayment by the Customer for GST but Hubway Connect need not refund to the Customer any amount for GST paid to the Commissioner of Taxation unless Hubway Connect has received a refund or credit for that amount.

• General

• Entire agreement

1. This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Licensed Software and the Services.
2. No addition to or modification of any provision of this Agreement will be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.

• Notices

1. All notices which are required to be given under this Agreement must be in writing and must be sent to the address of the recipient set out in the Commercial Terms Schedule or such other address as the recipient may designate by written notice.
2. Any notice may be delivered by hand, prepaid post or email.
3. Any notice given in accordance with clause 13.2(b) is taken to be given and made:

1. in the case of hand delivery, when delivered;
2. in the case of delivery by post, three Business Days after the date of posting (domestic) or seven Business Days after the date of posting (international); and
3. in the case of an email, when the sender receives an email acknowledgement from the recipient’s information system showing the notice has been delivered,

provided that where a notice is given after 5pm on a Business Day, it is deemed to have been given at 9am on the next Business Day.

• Assignment

The Customer must not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations under this Agreement, without the prior written consent of Hubway Connect not to be unreasonably withheld.

• Force majeure

1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make payment of the fees and payments specified in clause 8), that obligation will be suspended for the duration of the Force Majeure Event.
2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement must:

1. promptly notify the other; and 
2. inform the other of the period for which it is estimated that such failure or delay will continue. 

1. A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

• Governing law

This Agreement will be governed by and construed in accordance with the laws for the time being in force in New South Wales, Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of that state and all courts of appeal therefrom.

• Waiver

No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.

• Variation

No variation of this Agreement will be effective unless in writing and signed by both parties.

• Severability

Should any part of this Agreement be or become invalid, that part will be severed from this Agreement.  Such invalidity will not affect the validity of the remaining provisions of the Agreement.

• Dispute resolution

If a dispute arises between the parties (Dispute) under this Agreement, the parties agree to negotiate in good faith to resolve the Dispute and will refer resolution of the Dispute to the chief executive officer of each party, or their nominees.  In the event the Dispute is not resolved by the chief executive officers of the parties, the Dispute will be referred to mediation by a mediator jointly agreed by the parties.  The costs of the mediator will be shared by the parties.  

• Survival

Despite any other provision of this Agreement, this clause 13.10 and clauses 1, 3.6, 4.4(b), 6, 7, 9.6, 10, 11, and 13 survive the termination of this Agreement.

• Counterparts

This Agreement may be executed in any number of counterparts, and all counterparts taken together constitute one instrument.