This agreement (the “Agreement”) forms a contract between Subi Trading Pty Ltd ACN 672 142 175 (“Subi”, “we”, or “us”), Subi Credit Pty Ltd ACN 672 142 157 (“Subi Credit”), and the user of the Subi Platform (defined below) (“you” or “User”). By using the Subi Platform, you agree to the terms and conditions set out in this Agreement.  If you do not accept this Agreement, you must refrain from accessing or using the Subi Platform.  This Agreement comprises this LicenceAgreement and: (a) in the case of Employers (defined below), also incorporates the Employer T&Cs (defined below); and (b) in the case of Employees (defined below), also incorporates the Employee T&Cs (defined below).  If you are accepting this Agreement or using the Subi Platform on behalf of a company, organisation, association, or agency, or you are purporting to do so, then you represent and warrant to us that you have the legal power and authority to bind such company, organisation, association, or agency to this Agreement and to transact on the Subi Platform on its behalf.

1.             Definitions and interpretation

1.1           Definitions

In this Agreement, unless the context indicates the contrary:

Annual Leave has the same meaning attributed to the term ‘paid annual leave’ within section 12 of the Fair WorkAct.

Business Day means a day, other than a Saturday or a Sunday or a NSW public holiday, on which banks are open for business in Sydney, Australia.

Confidential Information means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:

(a)        information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and

(b)        information developed independently by a party.

Corporations Act means the Corporations Act 2001 (Cth).

Documentation means any and all proprietary documentation made available to the User by Subi for use with the Subi Platform, including any documentation available online.

Employee means a user of the Subi Platform who is an employee of an Employer entitled to Annual Leave. For the avoidance of doubt, this excludes casual employees, volunteers or any other employee that is not employed on a permanent basis.

Employee T&Cs means the terms and conditions specific to Users that are Employees, as agreed to / accepted by the relevant Employee User and set out on the Subi Platform.

Employer means a user of the Subi Platform which employs employees who are also users of the Subi Platform.

Employer T&Cs means the terms and conditions specific to Users that are Employers, as agreed to / accepted by the relevant Employer User and set out on the Subi Platform.

Fair Work Act means the Fair Work Act 2009 (Cth), as amended from time to time.

Force Majeure Event means any event beyond the control of the relevant party.

GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth),or any other similar tax.

Insolvency Event means, in relation to a person, any of the following events: (a) the person, being an individual, commits an act of bankruptcy; (b) the person becomes insolvent; (c) a receiver, receiver and manager, administrator, controller, provisional liquidator or liquidator is appointed to the person or any of its property or the person enters into a scheme of arrangement with its creditors or is wound up; (d) any corporate action, legal proceedings or other procedure or step is taken that may lead to an appointment, scheme or arrangement or winding up as specified in paragraph(c); (e) the person is taken (under section 459F of the Corporations Act) to have failed to comply with statutory demand; (f) the person is the subject of an event described in section 459C(2)(b) or section 585 of the CorporationsAct; (g) the person assigns any of its property for the benefit of creditors or any class of them; (h) any person holding a security interest in any property of the relevant person takes any step towards taking possession or takes possession of the asset or exercises any power of sale; or (i) the person has a judgment or order given against it in an amount exceeding $10,000 (or the equivalent in another currency) and that judgment or order is not satisfied, quashed or stayed within 5 business days after being given.

Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.

Related body corporate has the meaning given in the Corporations Act.

Subi Platform means the software, application, and website owned and operated by Subi and made available to users via the ‘Subi’ app for electronic devices and the Subi website (www.subi.au). The Subi Platform provided will comprise either or both of Subi’s core “Health” application and Subi's core “Safety Net” application, as requested by the Employer user in its agreement with Subi.  

Term means the period commencing on the date the User first accesses the Subi Platform and expiring on the date this Agreement is terminated in accordance with clause 10.

1.2           Interpretation

Unless the context requires otherwise:

(a)        a reference to a person includes a corporationor any other legal entity;

(b)        the singular includes the plural and vice versa;

(c)        headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;

(d)        the term "includes" (or any similar term) means "includes without limitation"; and

(e)        a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.

2.              Employers and Employees

(a)        The Subi Platform is designed to be used by both Employers and Employees and is intended to include functionality which, among other things, allows Employees to request that their Employer cash some of the Employee’s accrued Annual Leave (an “Annual Leave Payout Request”) and for Employers to grant and fund that Annual Leave Payout Request. The Subi Platform is a single platform, but the functionality and access rights provided by Subi to Employees and Employers are different.

(b)        If you are an Employee:

(i)          the Employee T&Cs form part of your agreement with Subi;

(ii)         whether your Subi app contains only ‘Health’ functionality, only ‘Safety Net’ functionality, or both, will be determined bythe agreement that your Employer has with Subi; and

(iii)       if your Employer has entered into an agreement with Subi and agreed to pay subscription fees for your access to the Subi ‘Health’ functionality in the Subi Platform, you are not required to pay any fees for your use of the ‘Health’ functionality of the Subi Platform; and

(iv)       the Employer T&Cs do not form part of yourAgreement with Subi.  

(c)        If you are an Employer:

(i)          the Employer T&Cs apply and form part ofyour agreement with Subi; and

(ii)         your will be required to select whether the Subi app provided to your Employees contains only ‘Health’ functionality, only ‘Safety Net’ functionality, or both.  

3.              Grant of licence

(a)        Subi grants to You a non-exclusive, world-wide, non-transferable licence to use the Subi Platform and the Documentation during the Term, subject to and in accordance with the terms and conditions set out in this Agreement.

(b)        You must not:

(i)          use the Subi Platform for any purpose or in any manner other than as set out in clause 3(a);

(ii)         use the Subi Platform in any way that could damage the reputation of Subi (or its related bodies corporate) or the goodwill or other rights associated with the Subi Platform;

(iii)       permit any third party to use the Subi Platform;

(iv)       permit any person to link to any page containing any part of the Subi Platform (including via a hyperlink or RSS feed) without Subi’s written consent;

(v)        except as expressly permitted by this Agreement, and except to the extent that applicable laws, including the Copyright Act 1968(Cth), prevent Subi restraining the User from doing so:

(A)        reproduce, make error corrections to or otherwise modify or adapt the Subi Platform or the Documentation or create any derivative works based upon the Subi Platform or the Documentation;

(B)        de-compile, disassemble or otherwise reverse engineer the Subi Platform or permit any third party to do so; or

(C)        modify or remove any copyright or proprietarynotices on the Subi Platform or the Documentation.

4.              Delivery and installation

Users are responsible for ensuring that their computer equipment and devices on which the Subi Platform is to be installed and/or used is in good, up to date working order and operating condition and has sufficient technical capabilities to efficiently run the Subi Platform.  Users are responsible for their own internet connectivity.  

5.              Intellectual Property Rights

(a)        Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.

(b)        The User:

(i)          acknowledges that Subi owns all Intellectual Property Rights in the Subi Platform; and

(ii)         will not directly or indirectly do anything that would or might invalidate or put in dispute Subi's title in the Subi Platform.

(c)        If any person makes any claim alleging that any of the Subi Platform (or use of any of the Subi Platform) infringes any Intellectual Property Rights of any person, the User must:

(i)          promptly notify Subi in writing;

(ii)         not make any admissions or take any action in relation to the claim without Subi's written consent;

(iii)       permit Subi control over any and all investigations, negotiations, settlement and dispute resolution proceedingsrelating to the claim; and

(iv)       cooperate with, assist and act at all times in accordance with the reasonable instructions of Subi in relation to the claimand any consequent investigations, negotiations, settlement and dispute resolution proceedings.

6.              Payment

(a)        If you are an Employer, you must pay fees as set out in the Employer T&Cs.  

(b)        If you are an Employee:

(i)          you must pay fees for use of the ‘Safety Net’ functionality of the Subi Platform as set out in the Employee T&Cs; and.

(ii)         unless clause 2(b)(iii) applies, you must pay fees for use of the ‘Health’ functionality of the Subi Platform as set out in the Employee T&Cs.  

7.              Audit

If you are an Employer, you must permit Subi (or its nominated auditor) to audit your records and premises at any time during the Term and for 3 years following the end of the Term, on at least 5 days written notice, for the purpose of confirming your compliance with this Agreement.

8.              Warranties

(a)        Each party warrants to the other that it has the right and ability to enter into this Agreement and that this Agreement will be legally binding on it.

(b)        We cannot promise or guarantee any specific outcomes from the use of the Subi Platform. To the maximum extent permitted bylaw, we do not make any representations or guarantees about the user experience, quality, or outcomes of any use of the Subi Platform. You acknowledge that the Subi Platform is provided on an “as is” and “as available” basis and that, to the fullest extent allowed by law, we expressly disclaim all express and implied warranties including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.  

(c)        Subi shall use reasonable efforts consistent with prevailing industry standards to maintain the Subi Platform in a manner which minimises errors and interruptions. The Subi Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Subi or by third-party providers, or because of other causes beyond Subi’s reasonable control, but Subi shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. However, Subi does not warrant that the Subi Platform will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Subi Platform or that the Subi Platform will be compatible with any application, program or software not specifically identified as compatible by Subi.

(d)       The User acknowledges and accepts that it is the User’s sole responsibility to ensure that:

(i)         the facilities and functions of the Subi Platform meet the User’s requirements;

(ii)        the Subi Platform is appropriate for the specific circumstance of the User and are within the laws and regulations of the User’s jurisdiction.

(e)       Subi does not purport to provide any legal, taxation or accountancy advice by providing the Subi Platform under this Agreement.

(f)        Subi will not be liable for any failure of the Subi Platform to provide any function not described in the Documentation or any failure attributable to:

(i)         any modification to the Subi Platform other than by Subi;

(ii)        accident, abuse or misapplication of the Subi Platform by any user;

(iii)      use of the Subi Platform with other software or equipment without Subi’s written consent;

(iv)      use of other than the latest, unaltered current release of the Subi Platform; or

(v)       use other than in accordance with thisAgreement.

9.              Liability

(a)        To the full extent permitted by law, Subi excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.

(b)        To the full extent permitted by law, Subi excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.

(c)        Subi’s total aggregate liability to a User for all claims relating to this Agreement is limited to the fees payable by that User under this Agreement in the period of 12 months prior to act that gave rise to the liability.

(d)        A party's liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.

(e)        This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations.If such legislation applies, to the extent possible, Subi limits its liability in respect of any claim to, at Subi’s option:

(i)          the supply of the relevant services again; or

(ii)         the payment of the cost of having the services supplied again.

(f)         In using the Subi Platform, you may come across links or references to external service providers, merchants or suppliers.  We do not endorse, warrant, guarantee or make any promises about any information, products or services they may supply to you.  Any transaction you have with these service providers are between you and them, and we do not get involved.  By accessing external website links to third party service providers and other sites through the Subi Platform, We do not promise that they are appropriate, that they work or that they are virus free.  We accept no responsibility for any loss or damage that may arise from your use of, or engagement or transaction with, any third party service providers.

(g)        The User will at all times indemnify and hold harmless Subi and its officers, employees and agents in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or arising directly or indirectly from:

(i)          a breach by the User of its obligations under this Agreement; and

(ii)         any wilful, unlawful or negligent act or omission of the User.

10.           Termination

(a)        Subi may suspend access to the Subi Platform at any time.

(b)        Subi or a User that is an Employer may terminate this Agreement at any time by providing one month’s written notice to the other party.

(c)        In relation to all Users:

(i)          you may terminate this Agreement at any time by cancelling your registration on the Subi Platform; and

(ii)         if you are a User that is an Employee, Subi may terminate this Agreement at any time and, in particular, Subi may do so if Subi’s licence agreement with your Employer expires or is terminated.

(d)        Subi may terminate this Agreement by written notice to the other if any of the following events has occurred in respect of the User:

(i)          a material breach of this Agreement by the User which:

(A)        is not remediable; or

(B)        if capable of remedy, is not remedied by the other party within 14 days of written notice;

(ii)         an Insolvency Event occurs in relation to the User.

(e)        If Subi terminates this Agreement, or suspends your use of the Subi Platform, in either case for any reason other than a breach of this Agreement by you, Subi will provide you with a pro rata refund of any subscription fees that have already been paid by in relation to the period during the suspension or after the termination, as relevant.

11.           Consequences of termination

If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:

(a)        the parties are immediately released from their obligations under the Agreement except:

(i)          those obligations in clauses 5, 6, 7, 8, 9, 12,13, 14, 15, 16 and any other obligations that, by their nature, survive termination; and

(ii)         for Employees, the Employee T&Cs; and

(iii)       for Employers, the Employer T&Cs;  

(b)        each party retains the claims it has against the other;

(c)        the User’s right to use the Subi Platform immediately ceases and the licences granted under this Agreement terminate;

(d)        the User must immediately remove the Subi Platform from its devices and computer equipment; and

(e)        the User must immediately pay all outstanding fees.

12.           Confidentiality

(a)        A party must not, without the prior written consent of the other, use or disclose the other party's Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.

(b)        A party may:

(i)          use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and

(ii)         disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.

(c)        Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party's Confidential Information while it is in the receiving party's possession or control.

(d)        Each party must return, or at the other party's option destroy, all Confidential Information of the disclosing party in the receiving party's possession or control, on the earlier of Subi’s request or on termination of this Agreement for any reason.

13.           Notices

(a)        The parties' contact details for notices under this Agreement are as follows, or as otherwise notified by one party to the other from time to time:

(i)          Subi and Subi Credit:

(A)        Address: 135-153 New South Head Road, Edgecliff, NSW, 2027

(B)        Email: hello@subi.au

(ii)         User: as notified to Subi under the SubiPlatform.

(b)        All notices must be in writing and can be givenby email, via the Subi Platform, or by any other method permitted by law.

14.           General

(a)        The User must not assign, sublicence or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of Subi.

(b)        Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.

(c)        If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

(d)        Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.

(e)        This Agreement (and any documents executed in connection with it) is the entire agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.

(f)         A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.

(g)        This Agreement may be executed in counterparts which will be taken together to constitute one document.

(h)        A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.

(i)         Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party's performance under this Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Agreement by written notice.

(j)         Subi and Subi Credit may subcontract the performance of any of its obligations under this Agreement to third-parties, provided however that this does not relieve Subi of any obligation.

(k)        All stamp duties and other government charges in relation to this Agreement must be paid by the User.

(l)         This Agreement is governed by the laws of and each party submits to the jurisdiction of the courts of the State of New South Wales.

15.           Information you provide to us

When you use the Subi Platform, you may send personal information to Subi. We will use, store and handle this information in accordance with the requirements of the Privacy Act 1988 (Cth) that apply to us and our privacy policy which may be accessed at www.subi.au/privacypolicy  Our privacy policy applies to you and your use of the Subi Platform at all times.  We do not claim ownership of the information or data that you provide to us in using the Subi Platform.  You (or your licensors, as applicable) will continue to own any and all intellectual property in such information. However, you agree to grant Us a perpetual, non-exclusive, assignable, worldwide and royalty free licence (with a right to sub-licence) to use, store, reproduce, adapt, communicate, publish, display and/or distribute such information, and to exploit it in connection with our business and/or for other commercial purposes. This right continues even if you no longer use the Subi Platform.  

16.           Your Account

In order to use the Sub Platform, you are required to register and create an account with Subi. To do so, you must complete our registration process.  By registering and creating an account with Subi, you agree that all information you provide to us is accurate, up to date and not misleading and does not infringe any person’s rights. You also agree to update your details if any of them change.  Your account is personal to you and non-transferable.  You are responsible for, and bound by, all of the activities that occur under your account. You should carefully choose your password and username and protect them from unauthorised use. Please let us know immediately of any unauthorised use of your account or any other breach of security. We are not liable for any loss if someone else uses your password or account, and you will be bound by any transaction processed on the Subi Platform through your account. You are responsible for making all arrangements necessary for you to have access to the Subi Platform. You are also responsible for ensuring that all persons who access or view the Subi Platform through your internet connection are aware of this Agreement, and that they comply with it.

17.           Amendments

We may update the terms of this Agreement (including theEmployer T&Cs or Employee T&Cs, as relevant) at any time, with such updates taking effect when You next use the Subi Platform or after 30 days, whichever is sooner.  No other amendment to Agreement will be effective unless made in writing, signed by You (including a signature or acceptance made on the Subi Platform) and by Us.  We will use reasonable endeavours to give You notice of any update to this Agreement (which notice may be through the Subi Platform) before the change comes into effect, although this may not always be possible.  If You continue using the Subi Platform after an update takes effect, You are deemed to have agreed to the update and will be bound by this Agreement as amended.

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