The following definitions apply unless the context requires otherwise.
Application Form means the form You completed to apply to become a partner of Sumday.
Claim means any allegation, claim, notice, demand, action, proceeding, litigation, investigation or judgment however arising and whether present or future, fixed or unascertained, actual or contingent.
Commencement Date means the date You accept these Terms.
Confidential Information of a party means all confidential data and information (including trade secrets and confidential know how, as well as business, technical and financial information, and pricing information) relating to that party, to its suppliers or Clients, or to a Related Entity, of which the other party becomes aware, either before or after the agreement to these Terms. Specifically Sumday's Confidential Information includes:
Sumday's personnel information, operational and other policies, project documentation, proposals, or other development documentation including any specifications or business strategies;
(a) these Terms; and
(b) the design, specification and content in the Product.
Control means when a person, organisation, or entity:
(a) owns more than 50% of the outstanding voting stock or other ownership interest of the other organisation or entity; or
(b) possesses, directly or indirectly, the power to elect or appoint more than 50% of the members of the governing body of the other organisation or entity.
Clientmeans each business to whom You have subscribed or otherwise provided access to a Subscription in accordance with this Agreement (including where You access the Subscription as an advisor user for the benefit of the Client).
Data means any data, information or Personal Information accessible to Sumday (or any third parties who have access to such data through Sumday) under or in connection with these Terms and which relates in any way to a Client, you or your Related Entities (including their operatives, suppliers, Clients and Personnel).
Developed Intellectual Propertymeans any Intellectual Property Rights arising from any work done by or for Sumday on behalf of you or a Client in connection with the Product or the Subscription.
EU GDPRmeans the General Data Protection Regulation (2016/679) (EU).
Fees means the fees payable by You in respect of the Subscription based on the subscription type.
Force Majeure Event affecting a party means a circumstance beyond the reasonable control of that party causing that party to be unable to observe or perform on time an obligation under this Agreement, including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, epidemics and pandemics, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution, war and acts of war, general strikes (other than of its own staff), embargo, or power, water or other utility shortage.
Intellectual Property Rights means:
(a) all rights conferred by statute, common law or in equity and subsisting anywhere in the world in relation to:
(i) registered and unregistered copyright;
(ii) inventions (including patents, innovation patents and utility models);
(iii) confidential information (including the right to enforce an obligation to keep information confidential), trade secrets, technical data and know-how;
(iv) registered and unregistered designs;
(v) registered and unregistered trade marks; and
(vi) circuit layout designs, topography rights and rights in databases, whether or not any of these are registered, registrable or patentable;
(b) any other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may hereafter subsist;
(c) any business name registration;
(d) any domain name registration;
(e) any social media account;
(f) any licence or other similar right from a third party to use any of the above;
(g) any applications and the right to apply for registration of any of the above and all renewals and extensions; and
(h) any rights of action against any third party in connection with the rights included in paragraphs (a) to (g) above, including any right to claim (and retain) any damages and other remedies (including an account of profits) for infringement.
Laws means all applicable laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments.
Loss means any claim, loss, liability, cost or expense.
Personal Information has the meaning given to that term in the Privacy Act and includes any other personal data relating to individuals that is subject to the operation of the Privacy Laws that either party has collected, received or otherwise has access to in connection with this Agreement.
Personnel means in respect of a person any employee, officer, contractor, consultant, servant, agent, or other person under the person's direct or indirect control and includes any subcontractors.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means the following legislation to the extent applicable from time to time:
(a) the EU GDPR
(b) the UK GDPR;
(c) the Data Protection Act 2018 (UK);
(d) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (UK);
(e) the Privacy Act;
(f) the Spam Act 2003 (Cth);
(g) the Do Not Call Register Act 2006 (Cth);
(h) to the extent applicable, any legislation in force from time to time in any:
(i) Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia); and/or
(ii) non-Australian jurisdiction (to the extent that either party is subject to the laws of that jurisdiction),
affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of data; and
(i) any ancillary rules, binding guidelines, orders, directions, directives, codes of conduct or other instruments made or issued by a Government Agency under an instrument identified in paragraphs (a) to (g),
as amended from time to time.
Product means the accounting software owned and licensable by Sumday, including any related code, framework or other methodology, services, capability and/or development which enables the software to be used, as updated or modified from time to time.
Related Entitymeans any entity that Controls, is Controlled by, or is under common Control with the first entity.
Subscription means Your subscription with Sumday to the Product.
Sumday Marks means the trademarks and names owned, registered or used by Sumday.
Sumday Materials means any training manuals, documentation, publications or marketing materials provided by Sumday, in its absolute discretion, to you from time to time.
Sumday Partner Requirements means Sumday's requirements for its partners as communicated to Partners on its website or in writing and which may be changed by Sumday from time to time.
Terms means these terms between you and Sumday (as defined in the preamble).
Territory means the territory set out in the Application Form.
Third Party Content means any information, data or other content that Sumday sources and/or supplies from any third party for use in connection with the Subscription.
Third Party Licence means any licence, registration or other authorisation that is required by you to enable you to properly access and use the Subscription, including any licence, registration or other authorisation as notified by Sumday to you.
UK GDPR means the General Data Protection Regulation (2016/679) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
1. Term and trial period
(a) These Terms bind you and Sumday from the Commencement Date.
(b) You are eligible for a free 14 day trial period in respect of access to the Product before your Subscription commences (Trial Period).
(c) These Terms will continue to apply for so long as you satisfy the Sumday Partner Requirements and, following the Trial Period, pay the Fees, unless the Subscription or these Terms are terminated earlier in accordance with these Terms.
2. Partner services
2.1 Relationship of the Parties
(a) It is agreed and understood that you are not the agent or representative of Sumday and that you have no rights to bind Sumday, to contract in the name of Sumday or to create liability against Sumday in any way or for any purpose. Accordingly, you will in all correspondence and other dealings relating directly or indirectly to the sale or other disposition of the Subscription clearly indicate that you are acting as a principal on your own account. In addition, you must not:
(i) hold yourself out as being an agent of Sumday or as having authority to represent or act for or on behalf of Sumday in any capacity whatsoever;
(ii) give any warranties or make any representations which are binding upon Sumday in any way;
(iii) purchase or sell on any account of Sumday whatsoever; or
(iv) incur any liability on behalf of Sumday or in any way pledge or purport to pledge Sumday's credit or accept any order or make any contract binding upon Sumday.
2.2 Managing Client Subscriptions
If your Client does not wish to manage and pay for a Subscription themselves, you may manage and pay for that Subscription on their behalf. You will then be able to utilise the Subscription to perform accounting services for the Client.
2.3 No Delegation by Partner
You must not sub-contract the performance of any of your obligations, sub-license any of your rights (other than to a Client in accordance with these Terms), or appoint a third party to exercise any of your rights, under these Terms without Sumday's prior written consent.
(a) You may from time to time organise advertising of the Subscription. The content of such advertising shall be in keeping with the look and feel of the Sumday branding and must be approved by Sumday in writing prior to release.
(b) No copy layout, advertising, merchandising displays, advertising or promotional matter of any type shall be published or otherwise used without the prior written approval of Sumday.
(c) You shall be solely responsible to ensure that all advertising and promotional material referred to under this clause 4 complies in all respects with all applicable Laws in the country and the part of the country in which it is to be published or distributed.
(d) You indemnify and agree to hold Sumday harmless from and against any Loss arising out of the publication of any such advertising or promotional material to the extent that such advertising or promotional material fails to comply in all respects with all Laws in the country and the part of the country in which it is to be published or distributed.
(e) You shall ensure that all such advertising and promotional material will be consistent in content and nature with the general standards and social norms of any community in which it is to be published.
4. Sumday's Responsibilities
(a) Sumday may, in its absolute discretion, provide you with Sumday Materials for your use in promoting and marketing the Subscription, unless otherwise agreed with you.
(b) Despite anything else in these Terms, Sumday may decline to provide pre-sales support assistance to you in relation to any prospective Client, where Sumday or its other partners or distributors are already in an active sales process with that prospective Client (or, in the case of a procurement process that has just commenced, Sumday intends to respond to that procurement process itself or to assist another partner to do so).
(c) The parties may agree from time to time that Sumday will provide implementation and/or customisation services for a particular Client. Where the parties so agree, they must agree a statement of work setting out the scope of such services, any fees that will apply and any other relevant rights and obligations.
(a) Sumday’s Accounting Support Team is online between 8:30am and 6:30pm Australian Eastern Standard Time Monday to Friday (excluding public holidays in Australia) to provide Support Services.
(b) Sumday will use best endeavours to respond within your business hours on the day any request is received.
(c) For Partners outside of Australia, the Accounting Support Team and Product Support Team are available to schedule Support Services calls outside of their standard operating hours on reasonable notice.
6. Upgrades and enhancements
From time to time Sumday may introduce adaptations, developments or enhancements to the Product, or may make changes to the tools and features of any part of the Product including the availability of tools and features; how much or how often any given tool or feature may be used; and feature dependencies upon other services or software. Sumday will provide you with reasonable prior notice before removing any material feature of the Product unless security, legal, system performance or Third Party Licence considerations or obligations require an expedited modification or removal.
7. Payment of Fees
(a) If you have a Subscription, you must pay Sumday the Fees.
(b) If you fail to make payment to Sumday in respect of any Fees when due, you acknowledge that Sumday will suspend or cancel the Subscription.
You must pay for all other external fees and taxes associated with your Subscription wherever levied, including any GST or withholding tax if applicable.
9. Intellectual Property
(a) You acknowledge and agree that, as between you and Sumday, Sumday owns or licenses from its licensors:
(i) all Intellectual Property Rights in the Subscription (including all upgrades and enhancements, and all copies made by or behalf of you); and
(ii) any Developed Intellectual Property,
(c) You must notify Sumday immediately if you becomes aware of any:
(i) unauthorised access to or use of the Subscription; or
(ii) other infringement or planned or attempted infringement of any Intellectual Property Rights of Sumday or its licensors,
(iii) and provide all assistance and co-operation reasonably requested by Sumday to enable Sumday to enforce its Intellectual Property Rights against any Client.
(e) Subject to your compliance with these Terms, Sumday grants to you a non-transferable and non-exclusive licence inside the Territory for the Term to use the Sumday Marks and Sumday Materials solely to the extent required for you to perform your obligations under these Terms.
(i) you notify Sumday in writing immediately after becoming aware of any actual or threatened Claim;
(ii) you provide Sumday with sole control over defence of the Claim and any negotiations to settle the Claim;
(iii) you provide Sumday all other cooperation and assistance reasonably requested (and paid for) by Sumday to defend or settle the Claim;
(iv) you do not make any admissions in relation to the Claim without Sumday's prior written consent; and
(v) you use your best endeavours to mitigate any damages you suffer as a result of the Claim.
(g) Notwithstanding paragraph (f) above, Sumday will not be liable to indemnify you in respect of any Loss under paragraph (f) to the extent that the relevant Claim arises from:
(i) any access to or use of the Subscription by you or any of the Clients:
(A) attributable to a violation of Law by you or your Related Entities or any of the Clients, including any binding order of a court with jurisdiction over the relevant entities;
(B) after termination of these Terms in accordance with clause 10(h)(iii);
(C) as modified by anyone other than Sumday or its contractors unless expressly authorised by Sumday in writing; or
(D) combined with anything not provided by Sumday.
(h) If a Claim relating to intellectual property as described in paragraph (f) is made, Sumday may:
(i) procure for you or any Client the right to continue using the Subscription free of the Claim;
(ii) replace or modify the Subscription to remove any infringing (or allegedly infringing) component; or
(iii) if Sumday reasonably believes that none of the alternatives in paragraphs (i) or (ii) are commercially reasonable or practicable, terminate these Terms with immediate effect by notifying you accordingly.
10. Confidential Information
(a) Each party:
(i) may use Confidential Information of the other party solely for the purposes of exercising its rights and performing its obligations under these Terms;
(ii) except as permitted under paragraph (a), must keep confidential all Confidential Information of the other party;
(iii) may disclose Confidential Information of the other party only as required by law or stock exchange regulation; and
(iv) will take all reasonable steps to ensure that its employees and agents, and any subcontractors who have access to any Confidential Information, do not make public or disclose the other party's Confidential Information.
(b) Even though information is the Confidential Information of a party, the other party is not obliged to comply with clause 11(a) in relation to that Confidential Information:
(i) if the Confidential Information becomes public knowledge without breach of these Terms; or
(ii) if the other party becomes aware of that Confidential Information from a third person free of any obligation of confidence.
(c) This clause is to be read subject to clause 20.
11. Privacy and Security
(i) grant Sumday a licence to use, copy, transmit, store, analyse, and back up all data you submit to Sumday to:
(A) enable you and your Clients to use the Subscription; and
(B) allow Sumday to:
improve, develop and protect the Product and create new services;
communicate with you about the Subscription;
send you information Sumday considers may be of interest to you based on your marketing preferences; and
disclose to third party service providers and partners to enable and support such purposes;
(ii) acknowledge that Sumday may create anonymised statistical data from your data and usage of the Product, including through aggregation. Once anonymised, Sumday may use it for its own purposes, such as to provide and improve its services, to develop new services or product offerings, to identify business trends, and for other uses that it communicates to you; and
12. Data Breach Notification
If Sumday becomes aware of any unauthorised access to, use or disclosure of, or breaches of security in relation to, any Data, Sumday will notify You upon becoming aware of the act or breach, and provide You with all relevant details of the act or breach.
13. Sumday Warranties
Sumday warrants that:
(a) it has the authority to enter into these Terms and that these Terms have been duly executed and are a legal, valid and binding agreement;
(b) it will comply at all times with applicable Laws; and
(c) it will not do anything or make any statement that could be reasonably expected to harm your reputation.
14. Third Party Content
(a) You acknowledge that the Product may incorporate Third Party Content including open source software and that Sumday is not responsible for the accuracy, quality, integrity or reliability of the same.
(b) To the extent permitted by Law, Sumday does not give any representation or warranty as to the reliability, accuracy or completeness of any Third Party Content, including open source software, and Sumday will have no responsibility or liability to you or any other person arising from or in connection with any error, defect or inaccuracy in any Third Party Content.
(a)To the extent permitted by Law, neither Sumday nor any of its third party suppliers makes any representation, warranty or guarantee that:
(i) the Product will operate in combination with any other hardware, software or platform;
(ii) the Product (or any products, services, information, or other material purchased or obtained by you through the Product) will meet your or any Client's requirements or expectations;
(iii) the Product will be of satisfactory quality; or
(iv) the Product will be 100% accurate.
(b) Sumday uses reasonable endeavours to ensure that the Product (or any server(s) that make a hosted service available) are free of viruses or other harmful components, but cannot guarantee that such systems will be free from unknown viruses and other harmful components.
(d) If any guarantee, warranty, term or condition is implied or imposed by any Law and cannot be excluded (a Non-Excludable Provision), and Sumday is able to limit your remedy for a breach of the Non-Excludable Provision, then Sumday's liability for breach of the non-excludable provision is limited exclusively (so far as applicable laws do not prohibit) to the total amount You paid Sumday for your subscription in the 12 months immediately preceding the date on which the claim giving rise to the liability arose.
(e) Sumday will not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other platforms outside the reasonable control of Sumday.
(f) You also acknowledge and agree that the Sumday Materials, Support Services and any other information we provide you does not constitute financial, accounting, tax, legal or any other professional services advice, and you must make your own assessment (or take your own advice) on such matters. Any advice provided by Sumday is general only, and has been prepared without taking into account the objectives, financial situation and needs of you, your Clients or individuals. Before making a financial, accounting, tax or legal decision, you and your Clients should consider the appropriateness of the information provided by us having regard to your own objectives, financial situation and needs and seek appropriate advice, including financial, legal and taxation advice. Sumday will not be liable for your use of information in any way.
17. Limitation of Liability
(a) You indemnify Sumday against all Losses that Sumday incurs arising out of, or in connection with, a third party Claim against Sumday relating to your use of the Product (including any use by you of the Product on behalf of a Client) or any third party product (except as far as Sumday is at fault).
(b) Other than liability that Sumday cannot exclude or limit by law, Sumday's liability to you and any Client in connection with the Product, Subscription or these terms, in contract, tort (including negligence) or otherwise, is limited as follows:
(i) Sumday has no liability arising from your or your Client's use of the Product for any loss of revenue or profit, loss of goodwill, loss of Clients, loss of capital, loss of anticipated savings, legal, tax or accounting compliance issues, damage to reputation, loss in connection with any other contract, or indirect, consequential, incidental, punitive, exemplary or special loss, damage or expense.
(ii) For loss or corruption of your or any Client's Data, Sumday's liability will be limited to taking reasonable steps to use reasonable endeavours to recover that Data from Sumday's available backups.
(iii) Sumday's total aggregate liability to you and any Client in any circumstances is limited to the total amount of the Fees the Partner paid to Sumday for its subscription in the 12 months immediately preceding the date on which the claim giving rise to the liability arose.
(a) You may choose to terminate the Subscription at any time by providing 30 days written notice in advance. You must pay all relevant Fees up to and including the date of termination.
(b) Sumday may choose to terminate your Subscription at any time by providing you with one month’s written notice in advance. Sumday may also terminate or suspend the Subscription or access to all or any Data immediately if:
(iii) you or a Client fail to pay the Fees; or
(iv) you or your business becomes insolvent, the business goes into liquidation or has a receiver or manager appointed over any of its assets, you make any arrangement with creditors or become subject to any similar insolvency event in any jurisdiction.
(d) Once the Subscription is terminated by either party, it is archived and the Data submitted or created by you or a Client is no longer available to you. Sumday will retain the Data for a period of time consistent with its data retention policy, during which time you may reactivate the Subscription and access the Data by paying the Fees.
(a) You acknowledge and agree that Sumday may:
(i) disclose to third parties the fact that you have entered into the Subscription or these Terms with Sumday, including by way of the use of your company logo;
(ii) disclose the identity of Clients who have a Subscription; and
(iii) use de-identified information about you,
in any marketing or other material used by Sumday, including case studies regarding your involvement with Sumday, and in white papers.
(b) You grant to Sumday a royalty-free, non-exclusive licence to use and display your logo on the Sumday website and/or in Sumday marketing materials for the purpose of Sumday listing or publicising its partners and/or Clients. The licence granted in this clause 20(b) survives termination of the Subscription or these Terms for whatever reason.
(c) Sumday acknowledges and agrees that you may disclose to third parties the fact that Sumday has entered into the Subscription or these Terms with you, including by way of the use of Sumday's company logo in any marketing or other material used by you, including case studies regarding the Sumday's involvement with you, and in white papers.
Any notice, demand, consent or other communication (a Notice) given or made under these Terms:
(b) by Sumday, will be sent to the email address you provided to Sumday in the Application Form.
21. Dispute Resolution
(a) If a concern or complaint arises out of or in relation to these Terms, you may contact Sumday's support team at firstname.lastname@example.org.
(b) In the event that the parties are unable to resolve the complaint to your satisfaction, or Sumday is unable to resolve a dispute it has with you after attempting to do so informally, the parties agree to resolve the dispute through binding arbitration or small claims court and not in a court of general jurisdiction.
(c) The parties agree that any dispute under paragraph (b) must be brought in the parties' individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
(d) For the avoidance of doubt, you are responsible for any disputes or disagreements that arise between you and your Clients, including in relation to accessing the Subscription and any fees payable by the Client to you in respect of the Subscription.
(a) Neither party may assign or novate, or attempt to or assign or novate, any of its rights or obligations under these Terms, or these Terms, without the other party's prior written approval, which may not be unreasonably withheld.
(b) If Sumday is partially or wholly precluded from complying with its obligations under these Terms by a Force Majeure Event that is beyond its reasonable control, then Sumday's obligation to perform will be suspended for the duration of the delay arising out of the Force Majeure Event. This includes but is not limited to failure by Sumday to meet any of its obligations, deliverables or timelines for the same with respect to development.
(c) Except where expressly stated otherwise, any express statement of a right of a party under these Terms is without prejudice to any other rights of that party expressly stated in these Terms or existing at Law.
(d) Nothing in these Terms gives a party any right to bind the other party in contract or otherwise at Law, or hold itself out as a representative of the other party.
(e) Each party must take all steps as may be reasonably required by the other party to give effect to these Terms and transactions contemplated by these Terms.
(g) You acknowledge that in entering into these Terms you have not relied on any representation or warranties about its subject matter except as provided in these Terms.
(h) No delay, neglect or forbearance on the part of any party in enforcing against any other party any obligation under these Terms will operate as a waiver or in any way prejudice any right under these Terms.
(i) If any part of these Terms are held to be invalid, void, illegal or unenforceable, these Terms will continue otherwise in full force and effect apart from such part which will be taken to be deleted.
(j) These Terms are governed by the laws of Tasmania, Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.
(k) A variation to these Terms will only be effective if it is in writing and signed by each party.
(l) The rights and remedies of a party under these Terms do not exclude any other right or remedy provided by Law.
(m) Clauses 7 (to the extent there are any unpaid Fees remaining), 8, 9, 10, 11, 12, 15, 16, 17, 18(b), 19(b), 20, 21 and 22, together with any other provisions which by their nature survive termination or expiry of these Terms or the Subscription, will survive termination or expiry of these Terms or the Subscription for whatever reason.