WHITESKY LABS SUBSCRIBER AGREEMENT

1 DEFINED TERMS

This clause 1 defines certain terms used in this agreement. Other terms are defined elsewhere in this agreement.

1.1 Participants

  1. 'Customer' means a person or entity to whom you supply goods or services via the System.
  2. 'Related Body Corporate' has the same meaning as in the Corporations Act 2001 (Cth).
  3. 'Subscriber' means any person or entity to whom we agree to supply the Service, including you.
  4. 'we' means WhiteSky Labs Pty Ltd (ACN 141 042 382) of Suite 309, 19a Boundary Street, Rushcutters Bay NSW Australia 2011, and, where it would be appropriate in the context, includes:
    • a Related Body Corporate of WhiteSky Labs Pty Ltd;
    • all officers, employees and contractors of WhiteSky Labs Pty Ltd or its Related Bodies Corporate; or
    • any reseller who administers your account.
  5. 'you' means the person or entity entering into this agreement by accepting our offer to supply the Service on the terms of this agreement. That person will be the person in whose name your account is held.

1.2 Service

  1. 'Initial Term' means the minimum term of this agreement as specified in the relevant information pages of the System's website or selected by you in the process of entering into this agreement.
  2. 'Service' means access to the System and its features for a Subscriber who already has appropriate internet access and computer equipment.
  3. 'System' means an interactive online system operated by us and in relation to which you are using the Service.

1.3 Content

  1. 'Account Data' means data generated by the System in the course of your use of the Service, including sales data.We collect only such Personal Information as we need to collect in order to supply our services.
  2. 'Brand' means any product, service or line of products or services which are marketed or traded under a single name, logo or other identifier commonly understood as being a 'brand'.
  3. 'Content' includes any written, pictorial, graphic, visual, audio, design, static or moving material, data, information or thing, taken individually or together (eg a compilation) depicted, embodied in or available at or within the System, including written works (including this agreement), artistic works, sound recordings, films, animations, data bases, logos, word marks and metadata, and copies of any of those things.
  4. 'Intellectual Property' means existing and future copyright, trademarks, designs, patents or circuit layouts, whether registered or not.
  5. 'Personal Information' is information about an individual from which the individual's identity is apparent, or can reasonably be ascertained.
  6. 'Subscriber Content' means Content supplied by a your or a Customer in the course of using or in relation to the use of the Service, including Personal Information but excluding Account Data.
  7. 'upload' includes to program, post, email, transmit, distribute or otherwise make available, publicly or privately, to or on the System.
  8. 'System Content' means Content supplied by us in the course of providing the Service or supplied to you by a reseller.

2 THE SYSTEM & SERVICE

2.1 The System

  1. Subject to this agreement, we may operate and configure the System in any manner and at or for any particular time or period of time.
  2. You acknowledge that the System is as-is at any given time.
  3. The Service may vary according to the subscription package (if any) you select for the purposes of this agreement.

2.2 Supply
While this agreement is in effect, we must supply the Service to you and must do so in accordance with the terms of this agreement.

2.3 Access & integrity

  1. We give no warranty that the Service:
    1. will be continuous, uninterrupted or secure;
    2. will not be interfered with or adversely affected by factors or circumstances outside of our control.
  2. We give no warranty that we will maintain back-up of, or disaster recovery facilities in relation to, Subscriber Content.

Note: Clause 7 also deals with warranties we give or disclaim in relation to the System and the Service.

2.4 Maintenance & changes

  1. We may:
    1. modify or upgrade the System;
    2. remove System functionality; and
    3. temporarily disable the Service for the purposes of doing the above acts.
  2. If we intend to temporarily disable the Service for more than 12 consecutive hours, we must use reasonable endeavours to give notice to you of that intention. Otherwise, we may do the acts in paragraph (a) without notice to you.

2.5 Support

  1. We must provide you with a level of basic Service support sufficient to meet the needs of reasonable subscribers.
  2. We may charge a fee for additional support at your request.

3 FEES

  1. We will charge you the following fees ('Fees'):
    1. subscription fees;
    2. specific pay-per-use or volume-based fees (eg SMS, MMS) (as applicable);
    3. transaction fees based on transactions conducted via the System (if applicable);
    4. one-off establishment, training and additional support fees (as applicable); and
    5. payment method fees (as applicable).
  2. The Fees will correspond to the subscription package you select for the purposes of this agreement and will be specified in the relevant information pages of the System’s website. Special offers, trials, services you request, payment method and plan and the like may affect Fees.
  3. Subject to clause 11.4 (variation), we may increase the Fees from time to time and, if we do so, we must use our reasonable endeavours to give you notice of the increase.
  4. You must pay all Fees we charge you and pay them in accordance with this agreement, including any terms of payment specified in the relevant webpage of the System website.
  5. When you pay Fees, you must do so in accordance with the agreed payment method, which may include direct debit of a bank account or credit card.

4 INTELLECTUAL PROPERTY & CONTENT

4.1 Ownership

  1. Except as expressly set out in this agreement, you acknowledge that, as between you and us:
    1. you do not own any Intellectual Property in System Content;
    2. you do not own, nor are entitled to exercise, any other rights in System Content.
  2. Except as expressly set out in this agreement, nothing in this agreement transfers ownership to you in, or licenses to you, any Intellectual Property or other rights in System Content.
  3. We acknowledge that, unless you transfer ownership to us under this agreement or otherwise, we do not own any Intellectual Property in Subscriber Content.
  4. Other than as expressly set out in this agreement, nothing in this agreement transfers ownership to us in, or licenses to us, any Intellectual Property or other right in Subscriber Content.

4.2 Licences

  1. To the extent that your using the Service and performing your obligations in accordance with this agreement would infringe our Intellectual Property or other rights subsisting in or relating to System Content, and only to that extent, we authorise you to do such acts in connection System Content as are reasonably necessary for the purposes of your using the Service and performing your obligations in accordance with this agreement (‘Subscriber Licence’).
  2. The Subscriber Licence:
    1. continues in effect until this agreement is lawfully terminated;
    2. is non-exclusive;
    3. is royalty-free (other than insofar as payment of Fees is a royalty); and
    4. is personal to you and otherwise not transferrable or sub-licensable.
  3. To the extent that our supplying the Service to you, exercising our rights and performing our obligations in accordance with this agreement would infringe your Intellectual Property or other rights subsisting in or relating to your Subscriber Content, and only to that extent, you authorise us to do such acts in connection with your Subscriber Content as are reasonably necessary for the purposes of operating the System, supplying the Service, exercising our rights and performing our obligations in accordance with this agreement (‘System Licence’). To be clear, subject to this paragraph (c), the System Licence entitles us to do acts including the following:
    1. making and storing copies of your Subscriber Content on our servers; and
    2. communicating your Subscriber Content to the public in response to your instructions.
  4. The System Licence:
    1. continues in effect until this agreement is lawfully terminated;
    2. is non-exclusive;
    3. is royalty-free;
    4. is in respect of only one Brand (if any);
    5. is in respect of only one Australian Business Number (if any);
    6. worldwide;
    7. perpetual;
    8. irrevocable; and
    9. is not transferable or sub-licensable to third parties – to be clear, it is granted to you alone and no other person or entity.

4.3 Infringement

  1. You acknowledge that:
    1. nothing in this agreement authorises you to do;
    2. we have not authorised, sanctioned, countenanced, approved or permitted your doing; and
    3. we have taken reasonable steps to prevent your doing,
    any act that would infringe any Intellectual Property or other rights subsisting in or relating to Subscriber Content or other subject-matter in relation to which a third party owns Intellectual Property.
  2. You warrant that your use of the Service, including uploading, publishing, communicating, and using Subscriber Content, will not infringe any Intellectual Property or other rights subsisting in or relating to Subscriber Content, nor breach any laws.
  3. You must not do any act that infringes any Intellectual Property or other rights subsisting in or relating to Subscriber Content.

Note: Clause 9 (response to breach) provides for some of the action we may take if you infringe, or are alleged or believed to infringe, Intellectual Property.

10.1 Principles of interpretation of this policy
The principles of interpretation of the WhiteSky Labs Agreement apply to this policy insofar as they are relevant.

4.4 Moral rights
You warrant that all individuals involved in the creation of Subscriber Materials have or will waive all right, title and interest they may have in any right, action or remedy against us for infringement of any moral rights they may have in relation to those materials.

5 SYSTEM SECURITY

5.1 Your obligations

  1. You must keep confidential any password, login or other information related to the integrity and security of the System, the Service and that relates to your use of the Service (‘Security Information’).
  2. If you become aware that any of your Security Information has been lost, compromised or misappropriated, you must notify us immediately.
  3. Except in the course of making bona fide use of the Service, you must not:
    1. modify or alter any part of the System;
    2. use the Service for (other) commercial purposes; or
    3. use the Service merely as a data storage facility,
    without our express written consent.
  4. You must not:
    1. reverse engineer, infiltrate, sabotage, impose excessive load upon or otherwise interfere with;
    2. engage in any form of data extraction or data mining in relation to; or
    3. use any robot, botnet, script, spider or other automatic device or manual process in or on,
    any part of the System.

5.2 Our rights
Among other things, if you operate any botnet where a hostname is used as command and control points, we may direct the relevant hostname to a honeypot, loopback address, logging facility or any other destination.

6 MISUSE OF THE SERVICE

6.1 Your obligations
Each of the obligations below is to be read on as a stand-alone obligation without limiting any other obligation. You must not use the Service for the purpose or effect of:

  1. disseminating surveys, contests, pyramid schemes, chain letters or any other form of spam;
  2. sending any electronic communication that is or relates to a ‘Mobile Premium Service’ within the meaning of the Mobile Premium Services Code (C637:2009) published by Communication Alliance Ltd;

Note: The code can be viewed at the following URL:
http://commsalliance.com.au/__data/assets/pdf_file/0003/32664/C637_2011.pdf

  1. sending any electronic communication in contravention of the Spam Act 2003 (Cth), including by failing to include a functional unsubscribe facility with every communication;
  2. infringing the Intellectual Property of any person, including the misuse of our trade marks;
  3. engaging in misleading or deceptive conduct or misrepresenting your services to Customers, including by implying that we endorse you or your services;
  4. engaging in disruptive or anti-social online behaviour, including flaming, trolling, flooding, invading, impersonating others, off-topic messaging, uploading unnecessary ASCII art files, uploading multiple identical or hard-to-read or nonsense messages;
  5. embarrassing, humiliating, defaming, compromising the privacy of, harassing or intimidating any person;
  6. creating a platform or vehicle for furthering political, religious or any other similar agendas;(h) creating a platform or vehicle for furthering political, religious or any other similar agendas;
  7. publishing or supplying Content embodying or depicting any sexually explicit, pornographic, violent or offensive subject-matter;
  8. embodying links to inappropriate websites, including websites associated with pornography, violence or gambling;
  9. mining any database or cultivating information for any purpose;
  10. soliciting clients or candidates for any purpose other than the bona fide purpose for which we entered into this agreement with you;
  11. laundering money or other things of value; or
  12. engaging in any (other) unlawful activity.

6.2 Our rights

  1. If we become aware of conduct of yours that may breach clause 6.1 (misuse of Service), we will decide whether, for the purposes of enforcing this agreement, that conduct does breach clause 6.1. However, we must not do so capriciously or without any regard to the merits the case.
  2. You acknowledge that decisions we make pursuant to paragraph (a) may involve an element of subjective judgment.

7 ADDITIONAL WARRANTIES

7.1 Additional warranties you give
In addition to and without limiting any warranty you give elsewhere in this agreement, you warrant that:

  1. you are aged 18 years or older;
  2. you have obtained all necessary consents for the purposes of sending electronic messages to any Customer or other third party in compliance with your obligations under the Spam Act 2003 (Cth);
  3. Note: The Australian Direct Marketing Association provides guidance about compliance with Australia spam law, including at the following URL: http://www.adma.com.au/regulatory/compliance-tools/spam-act

  4. all Personal Information about individual Customers and other individuals that you have collected and disclosed to us (including merely by storing the information via the System) has been collected consistently with the National Privacy Principles (Privacy Act 1988 (Cth)), regardless of whether you are obliged under statute to abide by those Principles;
  5. all Personal Information about you that you upload will be true, accurate and complete;
  6. you will maintain appropriate back-up of all your Subscriber Content, outside of the System; and
  7. you do not rely on any representation or warranty from us that is not expressly contained in this agreement or made by law.

7.2 Additional warranties we do and do not give

  1. We warrant that we will supply the Service to you with due care and skill.
  2. Subject to paragraph (a), we give no warranty that:
    1. System Content comprising advice, tips, directions or guides, is true, accurate or reliable;
    2. your use of the Service will result in any particular commercial outcome for you;
    3. Customers or other subscribers will not breach any agreement, policies or rules governing their use of the System or that we will enforce our rights in response to such breach; or
    4. links to other websites, being links embodied on the System, and those websites themselves, will be safe, appropriate or reliable.

8 INDEMNITY & LIABILITY

8.1 Your indemnity of us

  1. as a result of any breach of this agreement (including its warranties) by you;
  2. such loss including general loss, special (indirect, consequential, incidental) loss and pure economic loss (including loss of revenue or profits); and
  3. including where such loss arises from legal action brought against us by a third party or brought by us against a third party.

8.2 Our liability to yous

  1. We are not liable to you for:
    1. any special (indirect, consequential, incidental) loss or pure economic loss (including loss of revenue or profits);
    2. regardless of how such loss arises, including for interruption to or our ceasing to operate the System, misrepresentation, infringement of moral rights, breach of contract, breach of confidence, loss of chance or opportunity, or negligence; and
    3. whether suffered by you or a third party,
    4. except to the extent that the loss arises from our breach of a consumer guarantee that we will supply the Service with due care and skill or other consumer guarantee. To be clear, this clause applies whether or not you have advised us of the likelihood or possibility of your suffering such loss.

  2. Notwithstanding paragraph (a), if the Service is not of a kind ordinarily acquired for personal, domestic or household use or consumption, then we limit our liability, at our election, to:
    1. Supplying the Service again; or
    2. paying the cost of having the Service supplied again.
  3. To be clear, this clause 8 is subject to clause 11.5 (consumer rights).

9 RESPONSE TO BREACH

9.1 Response to breach
Despite any other provision of this agreement, if:

  1. we believe that you are infringing or are likely to infringe Intellectual Property or other rights;
  2. we receive a complaint or, pursuant to any statutory regime, an apparently bona fide notice, from a third party alleging that you are infringing Intellectual Property or other rights;
  3. we are requested or directed to do so by any law enforcement, governmental or regulatory authority; or
  4. you otherwise breach this agreement,

we may do any or all of the following, with immediate effect and without notice to you:

  1. investigate the matter;
  2. modify, disable or delete Subscriber Content;
  3. modify, limit, disable or suspend your account, including pending the outcome of the investigation;
  4. supply such information (including, subject to our Privacy Policy, Personal Information) to third parties (including private claimants, law enforcement, government or regulatory authorities) as appropriate, requested, directed or otherwise required by law; and
  5. take any other action we deem appropriate and that is not unlawful.

Note: We may take further action pursuant to clause 10 (termination of agreement).

9.2 Consequences of suspension
For so long as your account is disabled or suspended, our supply to you of the Service will cease. When our supply to you of the Service ceases, you will be unable to access your account, Account Data or any Subscriber Content.

10 TERM & TERMINATION OF AGREEMENT

10.1 Term

  1. The initial term of this agreement is the Initial Term, taken from the date that we commence supplying the Service to you.
  2. At the end of the Initial Term, this agreement renews automatically and indefinitely for successive terms of 6 months each.

10.2 Your rights

  1. You may terminate this agreement by giving us notice in writing or by using any other termination method notified to you by us from time to time.
  2. The termination will take effect from the end of the current term (whether the Initial Term or a renewing term).

10.3 Our rights

  1. We may terminate this agreement at any time, with immediate effect and without notice if:
    1. we receive, pursuant to any statutory regime, an apparently bona fide notice from a third party alleging that you are infringing Intellectual Property or other rights;
    2. requested or directed to do so by any law enforcement, governmental or regulatory authority;
    3. you breach clauses 5.1 (System security), 6.1 (misuse of the Service) or 7.1 (additional warranties) of this agreement; or
    4. you fail to pay any of the Fees when they are due.
  2. We may terminate this agreement at any time by giving 14 days written notice if you have not paid all the Fees on time or otherwise in accordance with this agreement.
  3. We may terminate this agreement at any time by giving 30 days’ written notice.
  4. This agreement terminates automatically with immediate effect if we cease supplying the Service for a period of 14 consecutive days and we do not, during that time, notify you in writing explaining why the Service has ceased and stating that the Service will be resumed within 30 days of the first day that the Service ceased.
  5. You hereby relinquish your common law rights to terminate this agreement outside of the express terms of this agreement.

10.4 Consequences of termination

  1. When this agreement terminates, our supply to you of the Service will cease. When our supply to you of the Service ceases, you will no longer be able to access your account or any Subscriber Content or Account Data.
  2. If we terminate this agreement pursuant to clause 10.3(c), we must refund you the amount of Fees you have already paid but that relate to a period of time occurring after the termination of this agreement. Otherwise, we are not obliged to refund or credit any Fees unless failing to do so would be contrary to law.
  3. We will reactivate your account if, within 30 days of termination, we accept an application from you to rejoin as a subscriber and you request that we reactivate your account.

11 THIS AGREEMENT

11.1 Formation
By creating an account with us, you accept our offer to supply the Service to you on the terms of this agreement and thereby enter into this agreement.

11.2 Scope

  1. This agreement includes all other agreements, policies and rules relating to the System:
    1. referred to in this document; or
    2. referring to this agreement in the documents embodying those other agreements, policies and rules (‘Other Agreements’), being documents copies of which are made reasonably available to you,
    3. and this agreement hereby incorporates the terms of all Other Agreements. To be clear, the following are Other Agreements, whether going by the names below or similar names:

    4. Privacy Policy;
    5. Direct Debit Request Services Agreement (if applicable to your account).
  2. To the extent there is any irreconcilable inconsistency between this agreement and any Other Agreement, the terms and conditions of this agreement prevail.
  3. Subject to clause 11.4 (variation), this agreement:
    1. governs all aspects of our supply and your use of the Service;
    2. is the only agreement between us and you in relation to the System and the Service; and
    3. as a document, embodies all the express terms of the agreement.
    4. To be clear, this agreement supersedes or excludes all other agreements, arrangements, understandings and representations, written or oral, in relation to the Service.

  4. Insofar as they apply to you, you must comply with the terms of all Other Agreements.

11.3 Principles of interpretation of agreement
In this agreement, unless expressly to the contrary and as appropriate in the context:

  1. an expression in the plural may be read in the singular, and vice versa;
  2. headings are for convenience only and do not affect the interpretation of this agreement;
  3. all references to currency or amounts of money are in Australian Dollars;
  4. in relation to an expression reflecting a present state of affairs, if the existence of an obligation is conditional on the existence of that state of affairs, the obligation survives only to the extent that that state of affairs exists during the term of this agreement;
  5. a reference to a thing or things includes a reference to any, some or all, or part or whole, of the thing or things; however, nothing in this paragraph means that partial performance of an obligation constitutes complete performance of the obligation;
  6. a reference to an act includes an omission and to the causing to be done of that act or omission;
  7. a reference to a person doing an act includes a reference to the doing of the act on behalf of the person;
  8. a reference to one alternative does not, of itself, exclude any other alternative;
  9. an expression of the exercise of right means the exercise of that right at the sole and absolute discretion of the relevant party;
  10. an expression prohibiting the doing of an act includes the prohibiting of:
    1. offering, attempting or purporting to do the act; or
    2. aiding, abetting, authorising, approving, contributing to, directing or materially being involved with the doing of the act;
  11. an expression of ownership includes the legal or beneficial ownership;
  12. a list of rights is not to be read as an exhaustive list of rights;
  13. a reference to a ‘copy’ of a thing includes the original embodiment in material form of the thing;
  14. a reference to ‘loss’ includes any loss, damage, cost, expense or liability, including legal costs;
  15. a reference to ‘this agreement’ includes a reference to the terms and conditions of this agreement, or this document, regardless of whether the terms and conditions of this agreement, or this document, are sometimes expressly referred to in this agreement;
  16. a reference to an assignment or transfer of proprietary rights is a reference to the absolute and irrevocable assignment or transfer; and
  17. a reference to a provision, clause or paragraph is a reference to a provision, clause or paragraph of this agreement, and a reference to a paragraph is a reference to a paragraph of that same clause or provision.

11.4 Variation

  1. We may vary this agreement:
    1. at any time by amending the version of this document (ie this agreement) accessible by you via the System, but only if the amendment would not materially adversely affect your rights; or
    2. otherwise by using reasonable endeavours to give you sufficient notice such that if you exercise your right to terminate this agreement as a result of the variation, the termination will take effect before the notice period ends.
  2. You cannot vary this agreement.

11.5 Consumer rights & severability

  1. We acknowledge that:
    1. there is a guarantee that the Service will be supplied with due care and skill and that certain agreements may contain certain terms, conditions, warranties or liabilities (whether by implication or otherwise) or may be subject to certain laws (‘Consumer Rights’);
    2. by operation of law, Consumer Rights cannot or must not be excluded, modified or limited; and
    3. to the extent that an agreement includes provisions that exclude, modify or limit Consumer Rights (or purports to do so) or that are unfair, then by operation of law (including the Australia Consumer Law 2010 (Cth)) those provisions may be unlawful, unenforceable or void.
  2. Notwithstanding anything else in this agreement, this agreement does not, nor purports to, exclude, modify or limit any Consumer Right.
  3. To the extent that any provision of this agreement would be unlawful, void or unenforceable for any reason (including by reason of the matters acknowledged in clause paragraph (a)), the other provisions of this agreement are valid and enforceable.

11.6 Additional waiver & release

  1. You unconditionally waive all right, title and interest you may have in any right, action or remedy against us arising from our exercise of any lawful discretion expressly provided in this agreement.
  2. Subject to this agreement, no relinquishing of rights, actions or remedies is effective unless it is in writing. To be clear, the failure of any party to exercise or enforce a right, action or remedy under this agreement, or otherwise, does not mean that they have relinquished that right, action or remedy.

11.7 Assignment and novation

  1. We may assign our rights under this agreement.
  2. On condition that that assignment will not materially adversely affect your interests, you:
    1. acknowledge that we have given you notice in advance of any such assignment; and
    2. waive any right or remedy in relation to the giving of notice in relation to the assignment.
  3. We may novate our rights and obligations under this agreement.
  4. On condition that that novation will not materially adversely affect your interests, you:
    1. acknowledge that we have given you notice in advance of any such novation;
    2. consent to the novation; and
    3. waive any right or remedy in relation to the giving of notice or consent in relation to the novation.
  5. If a proposed assignment or novation will materially adversely affect your interests, then you must not unreasonably disapprove of or delay the assignment or withhold or delay your consent to the novation.
  6. Subject to the express terms of this agreement, you cannot assign, novate or otherwise transfer any of your rights or obligations under this agreement.

11.8 Notices
If we are required to give written notice to you under this agreement, we may do so by any reasonable means, including by email or by posting a notice on your account homepage that you will only see next time you log into your account.

11.9 Governing law and jurisdiction

  1. The laws of the state of New South Wales, Australia, govern this agreement.
  2. You acknowledge that the courts of NSW are an appropriate forum for the settlement of disputes.
  3. To the extent they come before any court, all disputes will be determined in the courts of NSW.