Migration Manager Subscription Agreement
Welcome to Migration Manager. We’re excited to have you here but before you start using MM, we do need you to review and accept this agreement and the following terms. These are your legal rights and obligations, so please do read everything carefully. If you can’t agree to our terms, then you can’t use our services.
By subscribing to our services, you agree to be bound the terms of this Agreement as published on the Commencement Date
- This Migration Manager Subscription Agreement is between the entity you represent, or, if you do not designate an entity in connection with a Subscription purchase or renewal, you individually (“you” or “your”), and MM Software Developments Pty Ltd trading as Migration Manager (“Migration Manager”, “we”, “us”, or “our”).
- This agreement consists of the terms and conditions below, as well as the End User Agreement, and the Order for your Subscription or Renewal (together, the “Agreement”).
- The Agreement is legally binding and You represent to us that You are lawfully able to enter into contracts. If You are entering into this contract for an entity or organisation, You represent to us that You have legal authority to do so and to bind that entity or organisation.
- By entering into this Agreement you agree:
- to pay the Fees in accordance with the terms of this Agreement;
- that you are liable for all unpaid Fees;
- that all amounts payable under this Agreement must be paid even if you do not use the Services and will be made without setoff or counterclaim, and without any deduction or withholding;
- that all amounts paid are non-refundable;
- to only use the Services in accordance with the terms and conditions of this agreement; and
- that all previous agreements, licences, rights and Subscriptions held by you for any part of the System are terminated immediately and replaced by this Agreement.
- This Agreement commences on the Effective Date (“the Commencement Date”) and continues until all Subscriptions Terms have expired or this Agreement has been terminated. In consideration for payment of Fees by you, we agree to supply to you the Services you have ordered in accordance with the terms and conditions of this Agreement.
2. Services and Fees
- The Fees payable by you are specified in the Order and are calculated based on the type and number of Services subscribed to (or purchased), the term of any Subscription and the applicable Rate. By ordering or renewing a Service you agree to pay (and are liable for payment of) the Fees in accordance with the terms of this Agreement.
- The types of Services we may offer include:
- Software Service: The Migration Manager Software Service means any software or service provided by Migration Manager including but not limited to the Migration Manager software, any of the Migration Manager websites, portals, manuals, FAQs, Support articles, publicly released updates and all related collateral materials, logos, user interface, taglines, and goodwill, all of which are exclusively the property of Migration Manager and collectively referred to as the “Software Service”.
- Template Service: The Migration Manager Templates Services means any documents, forms or other types of precedents published or made available by Us for the purpose of being used as a template for the generation of documents, applications, forms or other related purposes.
- Onboarding Service: The Onboarding service means the installation and setup for you of the Software (and Templates if applicable) and the provision of an agreed amount of training.
- Our Software Service and Template Service are provided in the format of Software as a Service (SAAS). In order to access and make use of these Services and any data stored within them, You must hold and have paid for a current Subscription for that Service.
- For access and use of the Software Service, you must purchase a Migration Manager Software Subscription for the number of licences required by paying the Software Licence Fee.
- For access and use of the Templates Service, you must purchase a Template Subscription by paying the Template Subscription Fee.
- Our Onboarding Service is provided as a one-time event that requires pre-payment of a non-refundable Onboarding & Setup Fee.
3. Agreement Term and Licence Numbers
- If your Order:
- includes a Migration Manager Software Subscription, we grant You the number of Software Licences as specified in the Order. Each Software Licence grants you a non-exclusive, limited and non-transferable licence to install, use and/or access the Software Service in accordance with and for the Term of this Agreement only;
- includes a subscription to the Templates Service, We grant You a Template Licences as specified in the Order. A Template Licence grants you a limited, revocable licence to access and use the Migration Manager Templates (“the Templates”) in accordance with and for the Term of this Agreement only.
- The term of your Subscription (“Subscription Term”) is specified in the Order and can be categorized as one of the following types (“Subscription Types”):
- Monthly. A monthly subscription is for 1 calendar month from the Commencement Date. Holders of a monthly subscription will be charged in advance each month.
- Annual. An annual prepaid subscription is for is for 12 calendar months from the Commencement Date, expiring on the same day in 12 months’ time. Once an annual prepaid subscription has commenced, it cannot be cancelled or refunded, except in accordance with the terms of this Agreement. The annual subscription is charged in advance upon commencement of the subscription.
- Agreed Term. If your order is for an Agreed Term You are committing in advance to purchase a specific quantity of the Services for use during the Term at the Agreed Term Rate and payment frequency specified in your Order. From the Commencement Date, Agreed Term subscribers will be charged their Subscription Fees in advance at the commencement of each month (or other period as agreed in the Order) at the rate specified in the Order. Once an Agreed Term subscription has commenced, it cannot be modified or cancelled, except in accordance with the terms of this Agreement.
- The term of this Agreement is equal to your Subscription Term. If you hold multiple Subscriptions, the term of this Agreement is equal to the longest Subscription Term you hold.
- If your Subscription Type is an Agreed Term type, you agree that the number of Licences specified in the Order will not be reduced for the Term of the Agreement without written agreement between the parties. You further agree and understand that:
- the Fees agreed in the Agreement were based on you entering into a contract for a specified number of licences for an agreed period of time and that by seeking to reduce the number of licences you are in fact seeking to have the licences retrospectively treated as a Monthly subscription.
- that We are under no obligation to reduce the agreed number of licences or the fees payable, but that if we agree to a reduction in the number of licences, that we may at our discretion charge, and you will be liable to pay, either:
- a fee equal to the difference between the Monthly Fee that would have been paid and the amount that was paid, had the original subscription been a Monthly subscription from the commencement date; or
- the Early Termination Fee for the number of licences reduced.
- You agree that additional Licences can be purchased during the term of the Agreement, at Your option, either:
- on a Monthly subscription which automatically renews for the remainder of the Term of this Agreement unless terminated by either party at any time during the Term after the initial thirty (30) day period; or
- on the terms and conditions applicable to the pre-existing Subscriptions for the remainder of the Term of the Agreement, provided that you agree not to reduce the number of Additional licences for the duration of the Agreement.
- The rights granted to You in this Agreement are a licence to access and use only. We reserve all other rights and nothing contained in this Agreement or otherwise grants to You any rights of ownership in all or any part of the System.
- If your Subscription Type is Monthly, upon completion of your Subscription Term your Subscription will automatically renew as a new Monthly subscription, for the same number of licences as at the end of the previous Subscription and at the then-current Monthly Rate. Your Subscription will automatically renew each month without notice until either party cancels the renewal or terminates the Agreement.
- If your Subscription Type is Annual:
- we will notify you at least 21 days prior to the end of your Subscription Term that your Subscription is due for renewal;
- unless the renewal is cancelled or the Agreement terminated prior, to ensure continuity of service, upon completion of your Subscription Term your Subscription will automatically renew as a new Annual subscription, for the same number of licences as at the end of the previous Subscription and at the then-current Annual Rate.
- If your Subscription Type is an Agreed Term:
- we will notify you at least 21 days prior to the end of your Subscription Term that your Subscription is due for renewal;
- the Parties may agree in writing to enter into a new agreement for an Agreed Term Subscription;
- if the Parties do not enter into a new Agreement for an Agreed Term, and unless the renewal is cancelled or the Agreement terminated prior, upon completion of your Subscription Term your Subscription will automatically renew as a Monthly Subscription Type, for the same number of licences as at the end of the previous Subscription and at the then-current Monthly Rate.
- Prior to a renewal taking place either party may cancel the upcoming renewal for any reason, provided at least seven (7) days written notice has been provided to the other party (unless otherwise agreed between the parties).
- Nothing in this Agreement prevents the Parties from agreeing to renew a Subscription for a different time period or a different rate to that of a previous Subscription. Any agreement must be in writing.
- Upon renewal of your Subscription, this Agreement will terminate and a new agreement is entered into by the parties governed by the terms and conditions set forth in the Migration Manager Subscription Agreement on the date on which your subscription is renewed. If you do not agree to any renewal terms, you may decline to renew your Subscription by informing us in writing at least seven (7) days prior to the renewal date.
- Except as otherwise specified herein or in an Order Form:
- all fees are based on services purchased and not actual usage,
- payment obligations are non-cancellable and fees paid are non-refundable, and
- the number of Licences purchased cannot be decreased during the relevant Subscription Term.
- We reserve the right to change prices and Fees at any time, and do not provide price protection or refunds in the event of a price drop or promotional offering.
- We will not change the agreed Fees you pay during the term of this agreement. However, we reserve the right to change our Prices and Fees that we charge you as part of any renewal, new Agreement or modification to an existing agreement.
- Any discounts described in the Order are for the initial term of the Order only unless otherwise stated in the Order.
- If there is a pricing or price calculation error on the order form, we reserve the right to cancel the Agreement
6. Direct Debit Authority
- You must pay Us in advance the amount specified in your Order on or before the due dates. Payment is to be by Direct Debit of your credit card or such other method We nominate from time to time.
- During the term of an Agreement, the Due date for the Initial Payment is upon commencement of the Agreement. Thereafter, the due date:
- for holders of a monthly subscription will be every month from the Initial Payment date;
- for holders of an annual subscription will be on the commencement of the Agreement or renewal of their Agreement;
- for holders of an Agreed Term subscription will be every month for or during the Term, from the Initial Payment date.
- You authorise us to deduct the periodic instalments and any other Fees payable to us in respect of your Subscription(s) on (or about) the due date. You give us this authority by providing us with your credit card or other payment details. The authority continues for the Term of the Agreement until the Agreement is terminated in accordance with these Terms.
- You authorise us to use a billing and revenue management service, and merchant facility of our choosing to process your payment.
- It is your responsibility to ensure that you have sufficient funds available to cover your payments and that your credit card details are correct. You must advise us if your credit card details change. If your direct debit is declined we will attempt to re-draw 3 times over the next three (3) days. If these attempts fail, we will advise you and you will be allowed seven (7) days to respond. If we do not receive payment from you within this time period we may (without limiting our other rights):
- list your payment default with Veda Advantage (CRAA). Defaults are listed for a period of five (5) years and may have an adverse effect on your credit rating;
- proceed to recover the outstanding amount using a debt collection service. We may hand such amounts, including All Outstanding Amounts, to a third party and You will be liable to Us and/or the third party for any associated costs, including collection, legal and mercantile agents costs, until such time as such amounts are paid in full to such third party;
- suspend your access to the System;
- terminate this Agreement;
- pass on to you any dishonour fee issued by our financial institution or payment service provider.
- This direct debit authority permits us to:
- change the amount debited from your credit card, by providing you with least 7 days’ notice, to reflect any change to prices for the products and/or services that relate to your direct debit authority.
- change the amount debited or charged to cover any increases in amounts payable arising from renewals or the purchase of additional products/services/subscriptions by you from time to time.
- We will make available to you upon request tax invoices for amounts that need to be paid.
7. Goods and Services Tax (GST) and Duties
- All fees quoted are GST Exclusive. All payments due to us (eg. Fees, reimbursement by you to us of any amounts or payments under indemnities), unless already stated to be GST inclusive, are to be increased by the amount of any GST liability we have in relation to supplies we make to which those payments relate.
- You must pay all duties (eg. stamp duty, other government charges or financial institution account fees, if applicable) payable in relation to your use of our Services. If we have paid them, they must be reimbursed by you on our request.
8. Use of the System
- Access and use of the System must be done in accordance with this Agreement and the End User Agreement. You may not use the System, Software or the Templates for any purpose other than that permitted under this Agreement and the End User Agreement. Any licence or subscription provided to You is conditional on all Users’ continued compliance with this Agreement and the End User Agreement.
- To access the System, the Software must be installed on computer and network hardware that meets (and continues to meet throughout the Term) the Minimum System Requirements as published on our Website and updated from time to time. If your hardware and infrastructure do not meet the Minimum System Requirements, we reserve the right - at our sole discretion - to not supply or install the System, and/or to terminate this Agreement.
- You are solely responsible for:
- purchasing, installing, setting up and maintaining any necessary computer hardware, network infrastructure or internet connections including any associated costs.
- ensuring that any computer used to access or operate the System meets, and continues to meet, the Minimum System Requirements as published on our Website and updated from time to time.
- that you update the Software in a timely fashion after receiving notification from us of the public release of an update.
- any costs associated with uploading Your Data onto the System and migrating Your Data off the System.
- taking Your own steps to maintain appropriate security, protection and backup of Your Data, which may include the use of encryption technology to protect Your Data from unauthorized access and routine archiving of Your Data. You acknowledge that it is Your responsibility to keep backup copies of Your Data and protect Your passwords, limiting access to Your computers and devices, and signing out of the Services when You are not using them.
- using reasonable efforts to prevent unauthorised access to or use of the Services via your copy of the Software or your infrastructure. If you become aware of any possible or actual unauthorised access or use of the Services you must notify Us promptly.
- ensuring that Users’ use of the System is in accordance with all relevant laws and regulations.
- ensuring that You (and anyone You authorise to use the System) are adequately trained and possess the necessary skills to use the System.
- You agree that we may at any time:
- Modify, update or change, temporarily or permanently, the System (or any part thereof) with or without notice. If during the Term of the Agreement, we notify You of a mandatory upgrade to the System you will be required to implement this upgrade in order to continue using the System. If You do not implement a mandatory upgrade within thirty (30) days of us notifying you of this requirement, we may, at our sole discretion, terminate this Agreement by providing you notice of such termination.
- Temporarily suspend access to the System for operational purposes, including maintenance, repairs or installation of upgrades. We will provide no less than two business days’ notice prior to any such suspension. Such notice may include posting a message on our Website. We shall have the right to temporarily suspend access to the System without notice in circumstances where urgent action is required to protect the System if the delay caused by giving notice could cause material harm. We shall use all reasonable endeavours to minimise operational suspensions in order to minimise disruption to the System.
- Monitor the performance and use of the Services by Users, combine this data (the “Usage Data”) with other data (including Your Data), and use such combined data in an aggregate and anonymous manner. You hereby agree that We may collect, use, and publish all such aggregate data and results arising out of or in connection with the Service in an aggregated and anonymous form in the ordinary course of Our business.
- Remove any of Your Data (or third-party information) from our Services which we reasonably believe breaches any laws or regulations or any third party’s rights or this Agreement and/or is deemed Inappropriate Content. We will notify You if we intend to remove any of Your Data (or third-party information) in accordance with this section. We disclaim all liability of any kind in respect of Your Data, third party information and any other material which can be accessed using the Services and for any fraud committed in connection with the Services.
- We may, at Our sole discretion, refer any suspected fraudulent, abusive, or illegal activity to law enforcement authorities.
- By entering into this Agreement You agree that:
- You will not use or rely upon the System for any purpose or in any manner for which the System is not warranted;
- You shall own and retain full ownership of Your Data and shall have sole responsibility for the legality, appropriateness, completeness, reliability, integrity, accuracy and quality of Your Data.
- Your Data may be hosted using third party Hosting Providers of our choice (such as Microsoft Azure) and that we have no liability or responsibility for Your Data. You further acknowledge and agree that We have no obligation to monitor any information on the Services and we are not responsible for the accuracy, completeness, appropriateness, safety or legality of Your Data or any other information or content You may be able to access using the Services. You acknowledge and agree that (i) You are responsible for all Your Data and (ii) any communication with others while using the Services is Your sole and exclusive responsibility and (iii) we will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person’s rights or the violation of any laws arising from or relating to Your Data. We are further not responsible for any disclosure, modification or deletion of Your Data resulting from access by a third-party application.
- Your purchase is not contingent on the delivery of any future functionality or features, nor is it dependent on any oral or written public comments made by Us regarding future functionality or features.
- A subscription does not grant You the right to receive special versions of the System created for certain customers or market segments (if applicable), even though they may contain similar features or functions. Versions of the System which may from time to time be offered in retail or other channels in different configurations as special promotions are not included as part of the subscription.
- Upgrades and/or updates will be developed and released by us in our sole discretion, and we do not warrant or represent that We will develop or release any upgrades and/or updates during the term of the subscription period. Furthermore, We do not warrant that the upgrades and/or updates will be provided to You or made available within any specified time period following the commercial release of such Upgrades and/or Updates.
- If You install or enable Non-Migration Manager Applications for use with Services, You acknowledge that such providers of those Non-Migration Manager Applications will have access to Your Data as required for the interoperation and support of such Non-Migration Manager Applications with the Services as applicable. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-Migration Manager Application providers.
- You may permit the Users to access and use the System, subject to You ensuring that each User who accesses or uses the System complies with the applicable terms, conditions and obligations of this Agreement and that the Services are not:
- accessed by more Users than the number of licences held;
- transferred from You to any other entity or the access rights to the Services otherwise shared or transferred between different individuals; and
- used on not more than one Device per User at any one time even though the Services may be accessed on multiple Devices at separate times by the same User.
- In relation to the Services You will:
- ensure that any logins or passwords that are used by You or the Users to access the Software will be kept in a secure and safe manner;
- notify Us immediately in writing if You become aware that there may have been an unauthorised use of the Services or any other security breach relating to Your or a Users' account; and
- be solely responsible and liable for the use of the Software by You, any User or any other person who gains access to the Software as a result of You or a Users' failure to use reasonable security precautions.
- You agree to comply with, and use reasonable efforts to ensure that the Users comply with, our End User Agreement and Our policies in respect of accesses to the Services as notified by Us to You or as published on our website and updated from time to time. You acknowledge that if a User breaches such policies or this Agreement, in Our sole discretion, We may suspend access to the Services for that User.
- As part of your Order, You may be entitled to have one of our Technicians install the System on your computer hardware. The number of computers on which the System will be installed is limited to what is specified in your Order.
- While every effort is made to schedule the installation on or near the preferred installation date, all scheduling is subject to the availability of resources and we give no undertaking or guarantee regarding the installation date.
- It is your responsibility to ensure that installation has taken place on the correct computers and that those computers meet and continue to meet the Minimum System Requirements.
- Any installation in addition to what is provided for in your Order may incur an additional Consultancy Fee (to be charged at our sole discretion).
- As part of your Order, You may be entitled to receive training from a Migration Manager Training consultant. The amount of training available to You is limited to what is specified in your Order and any entitlement to receive training expires 6 months after the Commencement Date.
- We do not guarantee that training will be available at a specified time or date.
- It is your responsibility to ensure that all Users source and obtain any necessary training to enable You to use the System.
- Any training in addition to what is provided for in your Order may incur an additional Consultancy Fee (to be charged at our sole discretion).
12. Software Technical Support
- Holders of a current Software Subscription may receive upgrades of the Software and have access to technical support.
- Technical support is available during Queensland Standard Business Hours and includes support provided by one of our Technicians for technical issues relating to the Software.
- Technical support does not include providing support for:
- 3rd party software and operating systems;
- network, hardware and infrastructure issues;
- issues arising from viruses, Trojans or other malicious programs;
- the Templates;
- training and user operation issues.
- If it is necessary for us to rectify hardware, operating system, network problems or problems relating to third party software in order to solve a technical problem affecting your use of the System, then we are entitled to charge You a Consultancy Fee.
- Your right and entitlement to receive support and upgrades for the Software, concludes at the end of the term of the Subscription.
13. Migration Manager Templates & Third Party Authors
- Holders of a current Templates Subscription will receive access to the Templates.
- Template Subscription holders are authorised to access, use, modify, merge, view, distribute, communicate and deal with the Templates for the following specific purposes:
- the giving of information and advice to your clients;
- the purposes of your own professional development; and
- inclusion in professional advices, papers, submissions, communications to and for your clients and potential clients, the preparation of tenders, reports, submissions and other like documents.
- Other than provided in this Agreement, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any content, information, software, products or services obtained from the Templates.
- Any exporting, merging or distribution capabilities provided by the System are solely an accommodation to you and shall not constitute a grant or waiver (or other limitation or implication) of any rights of the copyright owners in any of the Templates.
- Access, merging and using the Templates requires the Software, an ongoing and current Software Subscription and an ongoing and current Template Subscription.
- The Templates are provided by third party authors (“Third Party Author”) which are not employed by Us. We do not warrant or represent the quality of these Third-Party Authors or their fitness to prepare the Templates.
- The Templates are provided ‘As Is’. Your use of the Templates is entirely at your own risk and You must satisfy yourself that the Templates are appropriate for the particular case or circumstances for your intended use. The Templates could include technical inaccuracies or typographical errors. The accuracy, completeness, adequacy, fitness for any specific purpose or currency of the Templates is not warranted or guaranteed and We accept no responsibility or liability for the content provided by the Third-Party Authors.
- We and/or the Third-Party Authors may make changes to the Templates at any time and at our/their sole discretion without notice or liability.
- Any and all comments, suggestions, requests, notifications, support requests etc. relating to the Templates received by Us will be directed to the “Third Party Author” and We do not accept any responsibility for nor do We warrant that the Third Party Authors will reply, respond or act on any communications received.
- We, and the Third-Party Authors, recommend that you be familiar with the applicable laws and legal procedures relating to the use of the Templates, or otherwise You should seek legal advice, before using the Templates.
14. The Portal
- You acknowledge that many of the features of the Software require the use by your clients of the Portal.
- Your Data will be hosted and stored using an online Hosting Provider of our choosing and accessed through the Software (by You) and through a webpage interface (by Your Client). You authorise us to use any sub-processor as is necessary to process any personal data entered by You or Your Client.
- By accessing or using the Portal you agree and understand that:
- its purpose is for the temporary storage and transfer of documentation and Data between You and Your Client. To achieve these purposes the Data is stored by us temporarily on a server of our choosing;
- you are responsible for controlling and monitoring who has access to the Portal linked to your Services;
- you are responsible for advising Your Client about privacy and security and for providing them with instructions and support on how to use the Portal;
- you are responsible for controlling any data entered. Our role is that of the data processor;
- there is a risk that you or your Client may not be able to access information or documents stored or uploaded to the Portal at any given time. We will not be liable to You or Your Client for any loss, damage, cost or expense resulting from or consequential to the use of the Portal by you or your client;
- if this Agreement is suspended or terminated, you and your clients will cease to be able to access the Portal
15. Business Use Only and No Legal, Migration and Accounting Advice
- You acknowledge and agree that the System, Software and the Templates are intended to be used by professionals and their staff in the course of their business and are not consumer products or services or goods or services of a kind ordinarily acquired for personal, domestic or household user consumption.
- Migration Manager, its suppliers, and the Third Party Authors are not providing legal, accounting or migration advice and the System, Software and the Templates do not constitute legal, accounting or migration advice.
- We may make one or more Services available to You on a trial basis free of charge from the date You register for the trial of the Service until the earlier of (a) the end of the free trial period for which You registered or are registering to use the applicable Service as identified at the time of registering or (b) the start date of any Services ordered by You (“Trial Period”). Additional trial terms and conditions may appear on the trial registration web page, such as the restrictions on the number of users/subscribers of the Services authorized by You to use the Services on a trial basis for the Trial Period. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
- Notwithstanding anything to the contrary in this Agreement, during any trial the services are provided “as-is”, “as available” and without any warranty or support whatsoever.
- If You elect to use the Services for a Trial Period and do not purchase a subscription for the Services before the end of that Trial Period, this Agreement will terminate at the end of such Trial Period.
17. Intellectual and Property Rights
- You agree that the System, the Software and the Templates are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
- Subject to the limited rights expressly granted hereunder, We, Our suppliers and/or licensors reserve all rights, title and interest in and to the Services and all underlying Software and applications, User Guides and all modifications and improvements thereto and any suggestions, enhancement requests, recommendations or other feedback provided by You and/or Users relating to the operation of the Services, including all related intellectual property rights. There are no implied licenses under the terms set forth in this Agreement and no rights are granted to You hereunder other than as expressly set forth herein.
- You must not at any time (either before or after termination of this Agreement) do any act or permit the doing of any act which infringes Our Intellectual Property Rights.
- You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for its own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
- We may, without limiting Our other rights and remedies, suspend your access to and/or use of the Service if:
- any charge owing by You is fourteen (14) days or more overdue, until such undisputed amounts are paid in full;
- you are in breach of this Agreement.
- If your access to the Service is suspended, you will not be able to use the Software or Templates, or access your Data using the Software. You are solely responsible for ensuring you meet any obligations to your client or any data access and retention obligations you may have. Migration Manager accepts no liability arising from your inability to use the Service or access your Data due to a suspension of your access to a Service.
- Migration Manager will lift the suspension upon:
- receiving written notification from you of successful remedy of the breach or payment of an outstanding amount; and
- our confirmation that of the successful remedy or payment.
19. Cancellation and Termination
- The parties may terminate this Agreement by mutual signed agreement.
- We may terminate this Agreement if:
- you fail to pay a Fee by the required due date;
- we reasonably believe you are, have or will breach our Intellectual Property rights
- If you are on a Monthly or Annual Subscription, you may choose to terminate this Agreement at any time by providing seven (7) days written notice in advance of the termination. You must still pay all relevant fees up to and including the day of termination and there are no refunds for amounts paid, even if you do not make use of the Service(s) for the remainder of the subscription term.
- If you are on an Agreed Term Subscription:
- either party may choose to terminate this Agreement for any reason within 30 days of the date of commencement. If You cancel, no refunds will be provided for amounts already paid, even if You have not made use of the Service(s).
- you may choose to terminate this Agreement at any time during the Term of the Agreement upon giving 14 days’ written notice and making payment of the Early Termination Fee. You acknowledge that we have expended significant time and effort to provide you with access to the Services including provisioning your database resources, onboarding and training your Users and administrators, setting up accounts, providing support and updates and other services. You further acknowledge that we discount the standard monthly fee for your commitment to a longer term and you agree that the payment of the Early Termination Fee is in accordance with this Agreement and does not constitute a penalty, as it is a genuine pre-estimate of the losses suffered or incurred by us as a consequence of the early termination of this Agreement, and is in addition and without limitation to any of our other rights or entitlements. No refunds will be provided for amounts already paid.
- Either party may terminate this Agreement for cause with immediate effect by providing written notice to the other party if the other party:
- commits a material breach of this Agreement that is capable of remedy and fails to remedy that breach within twenty-eight (28) days after receiving written notice identifying the breach and requiring the breach to be remedied;
- commits a material breach of this Agreement that is not capable of remedy; or
- is the subject of an Insolvency Event.
- If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
- No refund is due to you for any amount already paid;
- Unless otherwise stated in this Agreement, any provision of this Agreement which, by its nature, would reasonably be expected to be performed after the termination of this Agreement, shall survive and be enforceable after such termination and termination of this Agreement does not affect any of Your or Our accrued rights or remedies under this Agreement;
- Your licence, right and ability to use or access the Services, immediately ceases and any licence(s) granted under this Agreement terminate;
- Your Data ceases to be accessible. Thirty (30) days after the termination of the Agreement any data held by Migration Manager will be deleted. You are responsible for extracting Your Data from the Software (at your cost and risk) prior to termination. We may, during the 30 days time period after termination, grant You access to and use of the Software in order for You to migrate Your Data back to You or an alternative service provider. For clarity, We are not obliged to provide You any assistance with migrating or transferring such data;
- You must fully remove the Software from your computer(s) and network within thirty (30) days of termination;
- You remain responsible for all Fees and charges You have incurred through to the date of termination, including Fees and charges for in-process tasks completed after the date of termination.
- Both parties warrant that they have the capacity, power and authority to enter into and perform this Agreement and have obtained all necessary approvals, consents and authorisations to enable it to do so.
- Subject to this clause 20, to the extent permitted by law, We provide the Services to You on an "as is" basis and We do not make or give any express or implied representations, conditions or warranties in relation to the Services, including We do not warrant that the Services will operate uninterrupted, be free from defects or viruses or meet Your requirements.
- Without limiting clause 20.2, You acknowledge that:
- We do not warrant that the Services will meet your requirements;
- Computer and telecommunications systems are not fault-free and occasional periods of downtime occur. We do not guarantee that the availability of the System, Software or access to Your Data will be uninterrupted, timely, secure, or error-free or that content loss will not occur. You acknowledge and agree that it is technologically impossible to achieve and guarantee a 100% availability of the System;
- We are not responsible for any delays, delivery failures, or any other loss or damage resulting from Your access to and use of the Services through and/or in connection with Non-Migration Manager Applications or the transfer of data over communications networks and facilities, including the internet, and You acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
- We do not provide any legal advice or legal services, migration, accounting or bookkeeping advice by providing You and the Users access to the Services (including the Templates);
- We do not warrant or represent the accuracy, currency or quality of any legal, migration or accounting information, Your Data, user guides, legal forms, precedents, letters, Templates or documents which are provided as examples only and on the basis that You and any Users are suitably qualified (or working under the direction of suitably qualified personnel) and will not rely on such documents;
- We do not warrant or represent that the Service can be accessed or operate without defects, data corruptions, software failures or performance degradation caused by viruses or by other software or components on Your, the Users' or third-party hardware that may interfere with the Service (including any third party internet networks); and
- We do not warrant or represent that any of Your Data or any other data supplied by You to Us and hosted on Our servers is secure, can be accessed uninterrupted or will be free from defects and viruses or will be stored, hosted or accessed without any loss or damage, data corruption, software failures or degradation.
- Except as expressly provided herein, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including without limitation any warranties of merchantability, accuracy, satisfactory quality non-infringement or fitness for a particular purpose, to the maximum extent permitted by applicable law.
21. Limitation of Liability
- Subject to section 21.4, in no event shall either party have any liability to the other party for any indirect, special, incidental, consequential or punitive damages however caused or for loss of profits, anticipated savings, business opportunity, goodwill or data (including corruption of or damage to data), whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
- Subject to section 21.4, Your sole and exclusive remedy for Our breach of any statutorily implied warranties, conditions or guarantees which cannot lawfully be excluded is, to the extent legally permitted, limited to, at Our option, either providing those Services again or paying the cost of providing those Services again in respect of which the breach occurred.
- Subject to section 21.4, in no event shall either party’s total liability arising out of or related to this Agreement, whether in contract or tort or under any other theory of liability, exceed the amount paid by you hereunder in the twelve months immediately preceding the events giving rise to the liability. The foregoing limit shall not apply to your payment obligations for Fees or breach of your confidentiality obligations or breach your obligations under the proprietary rights sections of this agreement.
- The exclusions in this Limitation of Liability section shall apply to the fullest extent permissible at law but neither party excludes liability for death or personal injury caused by its negligence or that of its officers, employees, contractors or agents; fraud or fraudulent misrepresentation; breach by you of the Proprietary Rights restrictions listed in this Agreement; or any other liability which cannot be excluded by law.
- In addition to the other exclusions set out in this section 21 and subject to section 21.2, we shall have no liability:
- for non-Migration Manager applications or for any acts or omissions of the non-Migration Manager application providers, including without limitation where such acts or omissions cause a breach of this Agreement, or
- where any failure to provide the Services is caused by:
- a network, hardware or software fault in equipment which is not under our direct control;
- any act or omission by You and/or Your users;
- use of the services contrary to this Agreement;
- any non- Migration Manager applications or such non-Migration Manager application providers;
- any unauthorised access to the services including a malicious security breach; or
- a force majeure event.
- These Terms do not seek to exclude, restrict or modify:
- the application of any provision of the Australian Consumer Law (whether applied as a law of the Commonwealth or any State or Territory of Australia) (ACL);
- the exercise of any right or remedy conferred by the ACL; or
- our liability for a failure to comply with any applicable consumer guarantees where to do so would contravene the ACL; or cause any part of these Terms to be void.
- You indemnify us, our affiliates, officers, directors, employees, members, managers, consultants, agents, and suppliers and will keep us indemnified on demand from and against all actions, claims, demands, losses, damages and expenses of whatever form or nature (including third party claims), including legal fees or other costs and disbursements that we or our affiliates sustains or incurs as a direct or indirect result of:
- any infringement of our or any third party's Intellectual Property Rights arising from your use of the Software;
- your use of the Software;
- your breach of this Agreement or any applicable law, policy, rule or regulation by You or Your Data stored using the Software; and
- Your Data or the combination of Your Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Data or by the use, development, design, production, advertising or marketing of Your Data.
- Where a Third Party Intellectual Property Claim is made against You in relation to your use of the Services, You must promptly notify Us and comply with Our reasonable directions in relation to the Third Party Intellectual Property Claim. You must not settle such Third Party Intellectual Property Claim, make any admissions or consent to any judgment being entered without Our prior written consent
23. Entire Agreement and Modifications to this Agreement
- The Parties agree that this Agreement constitutes the entire understanding between the Parties and supersedes all other prior or contemporaneous negotiations, agreements or understandings whether written or oral between the Parties or otherwise published by Us relating to this Agreement.
- This Agreement may only be modified, varied, amended or added to by agreement between all Parties recorded in writing and signed by all Parties.
24. Assignment or other Transfer
- You can only assign or transfer this Agreement if You obtain our prior consent in writing from us (which we may grant or withhold in our absolute discretion).
- We may subcontract the whole or any part of Our obligations under this Agreement without obtaining Your prior written consent.
25. Governing Law
- This Agreement is governed by and construed in accordance with the laws in force in Queensland and the Commonwealth of Australia. Any dispute under these terms shall be subject to the exclusive jurisdiction of the courts of Queensland and the Commonwealth of Australia and the parties submit to the jurisdiction of such courts for such purposes and waive any and all objections to jurisdiction or venue in such courts.
- For any Dispute with between You and Us, You agree to first contact Us at [email protected] and attempt to resolve such Dispute with Us informally;
- Subject to clause 25.2, we each agree to attempt to resolve the Dispute through the use of alternative dispute resolution procedures, such as mediation or arbitration. To the extent permitted at law, we each agree to not commence any court proceedings relating to a Dispute unless a party is seeking urgent injunctive relief or equitable relief.
- Subject to clause 26.2, if a provision of this Agreement is illegal or unenforceable in any relevant jurisdiction, it may be severed for the purposes of that jurisdiction without affecting the enforceability of the other provisions of this Agreement.
- If a provision of this Agreement or a right or remedy of a party under this Agreement is invalid or unenforceable it is read down or severed only to the extent of the invalidity or unenforceability.
- If there is any inconsistency between the documents incorporated in this Agreement then, unless otherwise expressed, the documents will be given the following order of priority (with paragraph (i) being the first in the order of priority) such that the conflicting provision in the document lower in the order of priority will be read down to the extent necessary to resolve the conflict:
- any executed Order form;
- these Terms and Conditions;
- End User Agreement; and
- any other document executed by the parties.
- The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
- We and You are independent entities, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
- You do not have a contractual right to audit the functioning of the System for any purpose.
29. Privacy and Confidentiality
- As used herein, “Confidential Information” means all confidential 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. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall 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.
- The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, accountants and legal advisors without the other party’s prior written consent.
- The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
- Each party must ensure that when it collects, uses, discloses, transfers or otherwise handles Personal Information in relation to its obligations under this Agreement, it at all times complies with applicable Privacy Laws and cooperates with applicable regulatory bodies as required.
- In the event of an actual or suspected data or privacy breach, You agree to Us informing our insurer and/or our legal representatives.
- Affiliate means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise
- Agreed Term Rate means the rate specified in the Order for an Agreed Term Subscription. If there is no rate specified in the Order then the rate is the Monthly Rate.
- Agreement means these terms and conditions as well as the End User Agreement, and the Order for your Subscription or Renewal.
- Annual Rate means the rate specified in the Order for a monthly subscription. If no rate is specified in the Order, then it is the rate published on our website for an Annual subscription for the Software or for the Software plus Templates (as applicable to the subscription). If no rate is published on our website, then the Annual Rate is $2148.00 AUD for each Software licence and $420.00 AUD for the Templates.
- Business Daymeans any day from Monday to Friday on which banks are open for business in Gold Coast, Queensland, Australia.
- Consultancy Fee means a consultancy fee plus any disbursements that is charged by Us for providing consultancy services. A list of current consultancy fees can be obtained from us on request (As at June 2020 the base consultancy fee was $300 plus GST).
- Early Termination Fee means an amount calculated as being equal to 60% of the value of the applicable Fees payable by you for the number of licences or subscriptions being cancelled, multiplied by the number of remaining months in your then current agreement for those Licences or Subscriptions.
- Effective Date means the date of Your acceptance of the terms and conditions of this Agreement through either clicking a box indicating Your acceptance or by executing an Order Form (manually or submitting electronically the Order Form) as applicable..
- End User Agreement means the Migration Manager End User Agreement as published in the Software and on our Website containing the minimum terms and provisions of use of the Software by the User.
- Force Majeure Event means any event caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Our employees), Internet service provider failures or delays and denial of service attacks.
- GST has the meaning given to the term in the A New Tax System (Goods and Services Tax) Act1999 or similar legislation.
- Hosting Provider means any third-party server provider such as Microsoft Azure, Google, Amazon AWS, Wasabi etc.
Insolvency Eventin relation to a party means the occurrence of any of the following:
- a receiver, receiver and manager, liquidator, provisional liquidator, administrator or trustee is appointed in respect of that party or any of its assets;
- an application is made to court or a resolution is passed or an order is made for the winding up or dissolution of that party;
- that party proposes or takes any steps to implement a scheme of arrangement or other compromise or arrangement with its creditors or any class of them; or
- that party is declared or taken under any applicable law to be insolvent or that party's board of directors resolves that it is, or is likely to become at some future time, insolvent.
- Intellectual Property Rights means the rights comprised in any patent, copyright, design or trademark whether at common law or by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets, goodwill or confidential information.
- Fees means fees and expenses payable by You to use or access the Services including the Subscription Fee and any setup, onboarding or initial fee as set out in the Order.
- Migration Manager, MM means MM Software Developments trading as Migration Manager (ABN: 95 117 139 125) and includes our related entities, affiliates, officers, directors, employees, members, managers, consultants, agents, and suppliers.
- The Templates means any documents, forms or other types of precedents published or made available by Us.
- Minimum System Requirements means the Migration Manager System Requirements published on our Website which are subject to change from time to time without notice.
- Monthly Rate means the rate specified in the Order for a monthly subscription. If no rate is specified in the Order, then it is the rate published on our website for a monthly subscription for the Software or for the Software plus Templates (as applicable to the subscription). If no rate is published on our website, then the Monthly Rate is $260.00 AUD per licence for the Software and $35.00 AUD for the Templates.
- Onboarding and Setup Fee means any initial, setup or onboarding fee as specified in of the Order.
- Order means the order form executed by You and includes a Renewal.
- Portal means a cloud based service provided by Us that enables You to interact, communicate and transfer documents and Data between and with Your Client.
- Renewal means the renewal of this agreement whether by function of this Agreement or via an Order.
- Service means any service listed in Clause 2 and Migration Manager or Law Manager branded applications, professional services and Our software as a services offerings made available by Us including associated online and offline components, including (but not limited to) the Software, the Portal and the Templates. Our “Services” exclude Non-Migration Manager Applications
- The Softwaremeans the software Migration Manager (and its various versions), and any additional offering (if any).
- The Software Licence Fee means fees and expenses payable by You to Us for the Software Subscription as specified in the Order.
- Subscription means a non-exclusive, non-transferable, limited right to access and use the subscribed to Service in accordance with this Agreement.
- System means the Software, its related services including the Portal, related documentation, and the Templates. It also means updates, upgrades, supplements, add-on components, beta code or other components of the System that we may make available to You from time to time.
- Template Licence Fees means fees and expenses payable by You to Us for the Template Subscription and including any applicable initial or setup fee as specified in the Order.
- Taxable Supplyhas the meaning given to the term in theA New Tax System (Goods and Services Tax) Act1999 or similar legislation.
- User(s) means You and anyone accessing or using the System.
- Website means a website operated by us and made publicly available including (but not limited to) migrationmanager.com.au, mmcpd.com, manual.mmcpd.com, lawmanager.com.au, lawmanager.com, lawmanager.net, lawmanager.link, mmportal.com.au, mmportal.cloud, mmcpddemo.com, mmcpd.link
- You means you, or the entity or organization you represent, or any third party authorised by you to access the Software.
- Your Datameans the data or content you enter, upload, access, using the System or transfer, process, use or store in connection with the System.