Hidden Spark (ClubSuite) Subscription Agreement
THIS SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF CLUBSUITE SERVICES. CAPITALISED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF CUSTOMER REGISTERS FOR A FREE TRIAL OF CLUBSUITE SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES
Hidden Spark means Hidden Pty Ltd.
Customer means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity which have entered into Order Forms.
Customer Data means electronic data uploaded by or for Customer or Customer’s agents, employees, or contractors, and processed in the Subscription Service.
Confidential Information means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data;
Confidential Information of ClubSuite includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional ClubSuite services.
Content has the meaning set out in the ‘Content’ section of this Agreement.
Data means any data input or maintained in the Software.
Intellectual Property means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Initial Subscription means the first Subscription / Subscription Fee paid by the Customer to Hidden Spark.
Owner(s) means any other person, persons or entities who may own any part of the Intellectual Property included in the Software.
Personal Information has the meaning given to that term in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth). [Australia]
ClubSuite means the software application of Hidden Spark Pty Ltd.
Software means ClubSuite which is provided in the form of software as a service that is hosted by
Subscription / Subscription Fee means the monthly or annual fee (excluding taxes and duties) payable by the Customer in accordance with the price list as set out on our website (which Hidden Spark may change from time to time).
Subscription Period means a period of 12 months from the date the initial subscription payment is received by Hidden Spark.
User means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorised by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Hidden Spark without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Hidden Spark at Customer’s request) has supplied a user identification and password (for Services utilising authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business
Website means any internet site running the Software.
Use of Service
- Hidden Spark does not warrant that the use of the Software will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Software, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Software. Hidden Spark is not in any way responsible for any such interference or prevention of the Customer access or use of the
- Hidden Spark is not the Customer accountant or adviser and use of the Software should not substitute professional accounting or financial
- It is the Customer responsibility to determine that the Software meets the needs of the customer’s
Subject to the terms of this Agreement, Hidden Spark authorises the Customer to access and use the Subscription Service during the Subscription Term stated in the applicable Order Form, solely for its internal business purposes in accordance with the Documentation. The Customer will not otherwise access or use the Subscription Service in a manner that exceeds the Customer authorised access and use rights as set forth in this Agreement and the applicable Order Form.
Hidden Spark grants the Customer a limited, personal, worldwide, non-sublicensable, non-transferable (without Hidden Spark’s consent), non-exclusive, royalty-free license during the Subscription Term to install and execute Ancillary Software on machines operated by or for Customer, solely to facilitate the Customer’s authorised access to and use of the Subscription Service.
Provision of Professional Services
Hidden Spark may enter into one or more SOWs or Order Forms subject to this Agreement, and which may incorporate one or more Service Descriptions for the provision of Professional Services. Hidden Spark will perform the Professional Services, subject to the fulfillment of any responsibilities and payments due from Customer, as stated in the SOW or the Order Form.
Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-ClubSuite Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorised access to or use of Services and Content, and notify Hidden Spark promptly of any such unauthorised access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-ClubSuite Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in Hidden Spark judgment threatens the security, integrity or availability of ClubSuite services, may result in Hidden Spark’s immediate suspension of the Services, however Hidden Spark will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
The Customer may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. As a condition of these Agreement, when accessing and using the Software.
The Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorised access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
In the event the Customer shall breach the Usage Restrictions, Hidden Spark will allow 3 days for the Customer to rectify the breach. If the breach is not rectified within 3 days, Hidden Spark reserves the right to cancel the Customer subscription or limit Customer access to the Software.
Term and Termination
This Agreement begins on the Effective Date and continues until terminated under its terms. Each party may terminate this Agreement in its entirety: (a) on 30 days’ prior notice to the other, if at the time of notice there are no Order Forms in effect; (b) immediately on notice if the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation, in any jurisdiction, that is not dismissed within 60 days of its commencement or an assignment for the benefit of creditors; or (c) immediately on notice if the other party materially breaches this Agreement and does not cure such breach within 30 days after the other party’s receipt of notice of the breach. Either party may terminate an Order Form or SOW on notice if the other party materially breaches this Agreement or the applicable Order Form or SOW for the affected service and does not cure the breach within 30 days after receiving notice of the breach from the nonbreaching party. Professional Services are separately ordered from the Subscription Service and are not required for use of the Subscription Service. A breach by a party of its obligations with respect to Professional Services shall not by itself constitute a breach by that party of its obligations with respect to the Subscription Service even if the services are enumerated in the same Order Form.
Effect of Termination of Subscription Service
On termination or expiration of the Subscription Service, Customer will stop accessing and using, and Hidden Spark will stop providing, the Subscription Service and all related rights granted to Customer in this Agreement will terminate immediately, automatically, and without notice. Hidden Spark will, within 30 days after the effective date of termination by Customer for Hidden Spark’s breach, refund to Customer any prepaid fees received by Hidden Spark covering that part of the Subscription Term for the affected Subscription Service, if any, remaining after the effective date of termination. Within 30 days after the effective date of termination by Hidden Spark for Customer’s breach, Customer will pay all remaining amounts, if any, payable under this Agreement for the Subscription Term applicable to the terminated Subscription Service regardless of the due dates specified in the Order Form
Return of Customer Data
After termination or expiration of this Agreement or the applicable Subscription Service, upon Customer’s written request, Hidden Spark will provide any Customer Data in the Subscription Service to Customer in Hidden Spark’s standard database export format at no additional charge. Customer must submit such request to Hidden Spark within 45 days after termination or expiration of this Agreement or the Subscription Service. Hidden Spark is not obligated to maintain or provide any Customer Data after such 45day period and will, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control, and delete Customer’s instances of the Subscription Service
Hidden Spark is not designating or adopting Content as its own and assumes no warranty or liability for Content.
Reporting of Defects
Customer shall report any deviation of the Services from safeguards for protection of the security, confidentiality and integrity of Customer Data (“Defect”) to Hidden Spark in writing without undue delay and shall submit a detailed description of the Defect or, if not possible, of the symptoms of the Defect. Customer shall forward to Hidden Spark any useful information available to Customer for rectification of the Defect.
Hidden Spark shall rectify any Defect within a reasonable period of time. If such rectification fails, Customer may terminate the respective Order Form provided that Hidden Spark had enough time for curing the Defect.
As a condition of this Agreement, use of communication tools available through the Website the Customer agree only to use such communication tools for lawful and legitimate purposes. The Customer must not use any such communication tool for posting or disseminating any material unrelated to the use of the Software, including (but not limited to) offers of goods or services for sale, files that may damage any other person’s computing devices or software, content that may be offensive to any of our users, or material in violation of any law (including material that is protected by copyright or trade secrets which the Customer do not have the right to use).
Hidden Spark is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Software. The Customer must exercise caution when using the communication tools available on the Website. However, Hidden Spark does reserve the right to remove any communication at any time.
Unless the relevant party has the prior written consent of the other or unless required to do so by law (in which case the party shall provide notice to the other as soon as reasonably practicable), each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person (other than where required to subcontractors), or use the same for its own benefit, or use the Confidential Information for any purpose other than for Hidden Spark to provide the Software to the Customer as contemplated by this Agreement. Each party’s obligations under this clause will survive termination of the Agreement.
The provisions of this clause shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential
The recipient must maintain effective security measures to protect Confidential Information from unauthorised access, use, copying or disclosure.
The recipient must immediately notify the disclosure of any suspected or actual unauthorised use, copying or disclosure of Confidential Information and cooperate with the discloser’s reasonable requests to address the issue.
If the disclosure requests the recipient destroy any documents and materials containing Confidential Information, the recipient must erase all electronic or computer data or programs containing the Confidential Information and must confirm in writing that the Confidential Information has been destroyed.
The recipient’s obligations with respect to the Confidential Information continue after expiration or termination of this Agreement.
The Customer acknowledge that any and all trademarks, trade names, copyrights, patents and other Intellectual Property rights used or embodied in or in connection with the Software shall remain the sole property of Hidden Spark or the Owner(s) of the Intellectual Property in question.
The Customer are responsible for their Content. Hidden Spark adheres to its best practice policies and procedures to prevent data loss, including regular system data back-ups, but does not make any guarantees that there will be no loss of Content. Hidden Spark also has process and procedures in place for data recovery. Hidden Spark expressly excludes liability for any loss of Content except where caused by the willful misconduct or fraudulent act or omission, negligence, or breach of this Agreement of Hidden Spark.
Hidden Spark will comply with all laws applicable to its provision under the agreement of ClubSuite products, including those applicable to privacy and security of personal information (including data breach notification requirements), but excluding laws specifically application to the Customer. Customer agrees to provide any required disclosures to and obtain any required consents for the transfer of Customer Data to ClubSuite.
Hidden Spark provides a number of Data Services. The Data for these services is provided by external data suppliers. Hidden Spark will take all reasonable steps to ensure the Data provided by external data suppliers is correctly loaded into our Software. Hidden Spark however is not responsible for the accuracy, reliability or completeness of this Data.
Non-ClubSuite Products and Services
ClubSuite or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-ClubSuite Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-ClubSuite provider, product or service is solely between Customer and the applicable Non-ClubSuite provider. Hidden Spark does not warrant or support Non-ClubSuite Applications or other Non-ClubSuite products or services, whether or not they are designated by ClubSuite as “certified” or otherwise, unless expressly provided otherwise in an Order Form. Hidden Spark is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-ClubSuite Application or its provider.
Integration with Non-ClubSuite Applications
The Services may contain features designed to interoperate with Non-ClubSuite Applications. Hidden Spark cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a NonClubSuite Application ceases to make the Non-ClubSuite Application available for interoperation with the corresponding Service features in a manner acceptable to ClubSuite.
Hidden Spark’s Data Backup and Recovery Plan mandates a copy of the Data may be maintained in a different country. This provides our clients with geographic data security. The customer shall disclose data sovereignty requirements in writing and this agreement can be subsequently updated as agreed.
All software contains errors also known as “bugs”. Hidden Spark will rectify Software errors as follows:
Critical errors, no workaround available – The entire application(s), components or business functionality will not work, and no workaround is available. The business impact of the error is critical. Users are prevented from using the system. Hidden Spark will work until the error is resolved.
Major errors, workaround available – The entire application(s), components or business functionality will not work but a business workaround is available. The business impact of the error is high. Users are hindered from being able to utilise the system and/or their productivity is lowered. Hidden Spark will rectify the error within 10 days.
Medium errors, workaround available – A minor part of the application(s) or business functionality does not work as expected. The business functionality is nominally compromised. The business impact of the error is medium. The user is partially hindered from being able to utilise the system but also has some kind of a workaround. Hidden Spark will rectify the error within 30 days.
Minor errors – The function does not perform as expected however business functionality is not compromised. The business impact of the issue is low. The error does not impair users from utilising the system. Hidden Spark will rectify the error within 90 days.
Errors and Omissions
Hidden Spark or the Owner(s) of the Software shall not be held liable for any errors or omissions in the Software and shall not be held liable for any loss either consequential, direct or indirect incurred by the Customer as a result of the use of the Software.
This Agreement shall be governed by the laws of the state of New South Wales, Australia without regard to its conflict of laws principles. The parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in New South Wales, Australia for the purposes of adjudicating any dispute arising out of this Agreement. Each party hereto expressly consents to service of process by registered mail. To the extent permitted by law, choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Notwithstanding the foregoing, either party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such party’s intellectual property rights.
Subject to compliance with its obligations under the Intellectual Property clause in this agreement, Customer indemnify Hidden Spark against all claims, costs, damage and loss actually incurred by Hidden Spark
- arising from Customer use of the Software, Website, or documentation other than in accordance with the terms of this Agreement;
- any services that the Customer provide using the Software, Website, or documentation; and
- any material breach of any Clause of this Agreement by the Customer or any obligation the Customer may have to Hidden Spark including (but not limited to) any costs relating to the recovery of Subscription Fees that have not been paid by the Customer.
Hidden Spark will take all reasonable steps to mitigate loss.
Title to, and all Intellectual Property Rights in the Software, the Website and any documentation relating to the Software remain the property of Hidden Spark (or its licensors). Hidden Spark will defend, indemnify, and hold the Customer harmless from and against any claim that the Customer’s use of the Software, Website, or documentation in accordance with this Agreement, or any data accessible by the Customer in the Software, Website or documentation infringes the Intellectual Property rights of any party.
As between the parties, Customer and its licensors will retain all right, title, and interest in and to all Intellectual Property Rights in Customer Data. Customer hereby grants to ClubSuite a royalty-free, fully-paid, non-exclusive, non-transferrable worldwide, right to use Customer Data solely to provide and support the ClubSuite Products.
Limitation of Liability
Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Neither party may assign or novate its rights or obligations under this Agreement, by operation of law or otherwise (any of the foregoing, “Assign”), without the other party’s prior written consent. Notwithstanding the foregoing, on notice and without the other’s consent: (a) either party may in connection with a merger, reorganisation, or sale of all or substantially all of such party’s assets or equity, Assign this Agreement in its entirety to such party’s successor; and (b) Hidden Spark may Assign this Agreement in its entirety to any Hidden Spark Affiliate. Any attempted or purported Assignment in violation of this Section will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
Hidden Spark gives no warranty about the Software except that it shall perform materially in accordance with any description of the Software. Without limiting the foregoing, Hidden Spark does not warrant that the Software will meet the Customer’s requirements or that it will be suitable for the Customer purposes. To avoid doubt, all implied conditions or warranties are excluded from this Agreement in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
Order of Precedence
In the event of any inconsistency between the terms of this Agreement and any order, these terms shall prevail.
Orders and Payment
Upon execution by Customer and Hidden Spark, each Order Form is non-cancellable and non-refundable, except as provided in this Agreement. Prices stated in each Order Form are final. Subscription Service fees are invoiced annually in advance. Each Subscription Term is a non-divisible, continuous commitment, regardless of the invoice schedule, and pricing is based on a purchase of the entire Subscription Term. Professional Services fees are invoiced on a time and materials basis, monthly in arrears. Customer will pay each invoice within 30 days after the invoice date. If Customer issues a purchase order, then it shall be for the full amount of the Order Form. Any such purchase order submitted by Customer is for its internal purposes only, and Hidden Spark rejects, and in the future is deemed to have rejected, any purchase order’s terms to the extent they add to or conflict in any way with this Agreement or the applicable Order Form, SOW, or Service Description, and such additional or conflicting terms will have no effect. On request, Hidden Spark will reference the purchase order number on its invoices (solely for administrative convenience), so long as Customer provides the purchase order at least 15 business days before the invoice date. Late payments will accrue interest at a rate of 1.5% per month or the legal maximum interest rate, whichever is lower. Customer will cure a delinquency in payment of any amounts owed under this Agreement within 30 days from the date of Hidden Spark’s delinquency notice. If Customer fails to cure or regain compliance Hidden Spark may suspend the Customer use of the Subscription Service or terminate this Agreement for breach, in addition to any other available rights and remedies. All terms of this Section apply except as may be expressly stated otherwise in the applicable Order Form, SOW, Service Description, or elsewhere in this Agreement.
All payments required by this Agreement are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction, and the interest and penalties on any and all of these (collectively, “Taxes”). Customer is solely liable for and will pay all Taxes associated with its purchase of, payment for, access to, or use of, any Hidden Spark Products. For the avoidance of doubt, Taxes will not be deducted from payments to Hidden Spark, except as required by Law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Hidden Spark receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Each party is solely liable for and will pay taxes imposed on its net income. If Customer is a tax-exempt entity or claims exemption from any Taxes under this Agreement, it will include its tax exemption number on, and provide a tax exemption certificate on execution of the Order Form and, after receipt of valid evidence of exemption, Hidden Spark will not charge Customer any Taxes from which it is exempt. If Hidden Spark is required to invoice or collect Taxes associated with the Customer purchase of, payment for, access to, or use of, any Hidden Spark Products, Hidden Spark will invoice Customer for those Taxes, itemised where required by Law. Customer will provide to Hidden Spark its VAT or GST identification number(s) on the Order Form for: (a) the country where Customer has established its business; and (b) any other country where Customer has a fixed establishment. Customer will use the ordered Hidden Spark Products for the Customer business use in the foregoing location(s) in accordance with the provided VAT or GST identification number(s).
Hidden Spark agrees that we must:
- ensure that any employee of ours who is required to deal with Personal Information for the purposes of this Agreement is made aware of our obligations in relation to privacy; and
- ensure privacy clauses required by the Privacy Act are included in our agreement with any subcontractor of its obligations under this
Nothing in this clause is intended to limit any obligation under the Privacy Act.
To the extent permitted by Law, neither Hidden Spark nor Customer will be liable to the other or any third party for lost profits (direct or indirect) or loss of use or data or for any incidental, other consequential, punitive, special, or exemplary damages (including damage to business, reputation, or goodwill), or indirect damages of any type however caused, whether by breach of warranty, breach of contract, in tort (including negligence), or any other legal or equitable cause of action, even if such party has been advised of such damages in advance or if such damages were foreseeable. The foregoing exclusions shall not apply to: (a) payments to a third party arising from a party’s obligations; and (b) infringement by a party of the other party’s Intellectual Property Rights.
Whilst Hidden Spark intends that the Software will be available 24 hours a day, seven days a week, 365 days a year, it is possible that on occasions the Software may be unavailable for reasons within the control of Hidden Spark (i.e. for scheduled or unscheduled Software updates) or for reasons outside the control of Hidden Spark (i.e. the data centers have power outages and all backup generators fail). Hidden Spark will use reasonable endeavors to notify the Customer in advance of any planned outages and will notify the Customer as soon as possible of any unplanned outages. Hidden Spark will use commercially reasonable efforts to make the Software available with an uptime percentage of at least 99.5%.
Hidden Spark is not, and may not be construed to be, in breach of this Agreement for any failure or delay in fulfilling or performing the Subscription Service or any Professional Services, when and to the extent such failure or delay is caused by or results from acts beyond Hidden Spark’s reasonable control, including: strikes, lock-outs, or other industrial disputes; trespass, sabotage, theft or other criminal acts export bans, sanctions, war, terrorism, riot, civil unrest, or government action; failure of Internet connectivity or backbone or other telecommunications failures, in each case outside of Hidden Spark’s local network; breakdown of plant or machinery; nuclear, chemical, or biological contamination; fire, flood, natural disaster, extreme adverse weather, or other acts of God (each a “Force Majeure Event”). Hidden Spark will use reasonable efforts to mitigate the effects of such Force Majeure Event.
High Risk Activity
ClubSuite Products are not designed for any purpose requiring fail-safe performance, including stock trading, financial transaction processing, operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems, or other management or operation of hazardous facilities or applications for which failure could result in death, personal injury, or severe physical, property, or environmental damage (each, a “High Risk Activity”). Hidden Spark, its licensors, and suppliers expressly disclaim all warranties of fitness for any such use.
If any part or provision of this Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement is binding on the parties.
Training course fees are not included in the Customer subscription. Training services are available from Hidden Spark.
Hidden Spark reserves the right to issue updates and enhancements to the Software at any time. Every effort will be made to ensure Software updates do not adversely affect the Customer.
Waiver and Amendment
Failure by a party to enforce any part of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. A waiver of any right is effective only if in a writing nsigned by an authorised representative of the waiving party. Any modification of this Agreement must be in writing and signed by authorised representatives of both parties.
Hidden Spark may review the terms of the Subscription agreement from time to time. If the revision, in our sole discretion is material Hidden Spark will notify the customer via a website update or email to the email address associated with the Customer’s account. By continuing to access or use the ClubSuite services after those revisions become effective, the Customer agrees to be bound by the revised terms of the Subscription Agreement.
Hidden Spark Contact Details
|Hidden Spark Pty Ltd
Level 1, 475 Pittwater Road
Brookvale, NSW, Australia, 2100
|Telephone: +61 (0)2 9045 1831