Effective Starting: 1st September 2014
This Services Agreement (the "Agreement") is between you and Hinstant Pty Ltd (referred to as "Hinstant", "we", "us", or "our"). If you are agreeing to this Agreement not as an individual but on behalf of your company, then "Customer" or "you" means your company, and you are binding your company to this Agreement. Hinstant may periodically modify this Agreement from time to time.
This Agreement does not have to be signed in order to be binding. You indicate your consent to the terms by clicking on "I accept" that is presented to you at the time of your order or using or accessing Hinstant products.
Data means data, text, emails, files, names, artwork, graphics, video, audio, reports, policies, or other information or materials uploaded, sent or communicated by you to us;
Fee means any fees that are applicable to the Services, including but not limited to Subscription Fees, and/or Software Fees, and/or Commission Fees to be provided to you under this Agreement;
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing;
Orders means Product ordering documentation, or purchase or renewal, or Product support and maintenance renewal or purchases you make to increase or upgrade your scope of use;
Personal Information means any information or opinion about a natural person (whether or not true), as defined in the Privacy Act, which either party deals with in connection with performing its obligations under the Agreement;
Privacy Act means the Privacy Act 1988 (Cth);
Privacy Law means the Privacy Act (including the National Privacy Principles under the Privacy Act), and any other privacy or general legislation which binds the parties and which relates to the protection of Personal Information;
Start Date means the date specified in the Order when Hinstant will start to provide the Services;
Service Levels where applicable means the service levels specified;
Services means the related services including but not limited to Software, Cloud Services or Optional Services to be provided to you under this Agreement;
Tax means value added taxes (VAT), goods and services taxes (GST) and other similar municipal, state and federal indirect or other withholding and personal or corporate income taxes;
2. Hinstant Products.
This Agreement governs (a) Hinstant's commercially available downloadable software products ("Software"), (b) Hinstant's cloud-based solutions ("Cloud Services"), and (c) any related support or maintenance services provided by Hinstant. Software and Cloud Services together are referred to as "Products".
3. Account Registration.
You may need to register for a Hinstant account in order to place orders or access or receive any Products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.
4. Hinstant Orders.
Product ordering or purchase ("Order") will specify your authorised scope of use for the Products, which may include: (a) number of rooms at your property, (b) features or modules, (c) numbers of licenses, or copies (for Software), or (d) other restrictions or billable units. The term "Order" also includes any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your scope of use.
5. Authorised Users.
Only the specific individuals for whom you designate through the applicable Product ("Authorised Users") may access and use. Authorised Users may be your employees, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You are responsible for compliance with this Agreement by all Authorised Users. All use of Products by you and your Authorised Users must be within the scope of use and solely for the benefit of you or your Subsidiaries. "Subsidiaries" means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party,
6. Allowed Rooms.
Only the specified rooms per Agreement are permitted per Agreement for which the applicable Product ("Allowed Rooms") may access and use. You are responsible for compliance with this Agreement by Allowed Rooms. All use of Products by you and your Authorised Users must be within the scope of use and solely for the benefit of you or your Subsidiaries.
7. Optional Services.
Only the specified optional services are permitted per Agreement for which the applicable Product ("Optional Services") may access and use. You are responsible for compliance with this Agreement by Optional Services. All use of Products by you and your Authorised Users must be within the scope of use and solely for the benefit of you or your Subsidiaries.
8. Software Terms
8.1 Your License Rights. Subject to the terms and conditions of this Agreement, Hinstant grants you a non-exclusive, non-sublicensable and non-transferable license to install and use the Software during the applicable License Term in accordance with this Agreement, and your applicable Scope of use. The term of each Software license ("License Term") will be specified in your Order. Your License Term will end upon any termination of this Agreement, even if it is identified as "perpetual" or if no expiration date is specified in your Order.
8.2 License Instances. Unless otherwise specified in your Order, for each Software license that you purchase, you may install one instance of the Software on systems owned or operated by you (or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement).
8.3 Attribution. In any use of the Software, you must include the following attribution to Hinstant on all interfaces in the following format: "Powered by Hinstant," which must in every case include a hyperlink to http://www.hinstant.com and which must be in the same format as delivered in the Software.
9. Cloud Services Terms
9.1 Access to Cloud Services. Subject to the terms and conditions of this Agreement, Hinstant grants you a non-exclusive right to access and use the Cloud Services during the applicable Subscription Term (as defined below) in accordance with this Agreement, your applicable Scope of use and the Documentation. The mobile application software for any Cloud Service, you may use such software solely with the Cloud Service, subject to the terms and conditions of this Agreement. You acknowledge that our Cloud Services are online, subscription-based products and that we may make changes to the Cloud Services from time to time.
9.2 Subscription Terms. Cloud Services are provided on a subscription basis for a set term specified in your Order ("Subscription Term"). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be invoiced at the current subscription fee) unless you cancel your subscription. If you cancel, your subscription will terminate at the end of then current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to termination.
9.3 Your Data. "Your Data" means any data, content, images or other materials of any type that you upload, submit or otherwise transmit to or through Cloud Services. You will retain all right, title and interest in and to Your Data in the form provided to Hinstant. Subject to the terms of this Agreement, you hereby grant to Hinstant a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Cloud Services to you and (b) for Cloud Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you direct or enable through the Cloud Service. Hinstant may also access your account or instance in order to respond to your support requests.
9.4 Security. Hinstant implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Cloud Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
9.5 Responsibility for Your Data. You must ensure that your use of Cloud Services and all Your Data is at all times compliant with our Acceptable Use Policy and all applicable local, state, federal and international laws and regulations ("Laws"). You represent and warrant that: (a) you have obtained all necessary rights, releases and permissions to provide all Your Data to Hinstant and to grant the rights granted to Hinstant in this Agreement and (b) Your Data and its transfer to and use by Hinstant as authorised by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 8.4 (Security), Hinstant assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it. Whilst Hinstant will undertake all reasonable security measures, you acknowledge that you bear sole responsibility for adequate security, protection and back up of your data in the Cloud Services. We do not guarantee or warrant that any data you may store or access through the Services will not be subject to inadvertent damage, corruption or loss. You will, at your own expense, provide all necessary Your Data that we require to provide the Services. Further you warrant that all Your Data complies with all Laws including all occupational health and safety regulations and laws and does not breach any third party's Intellectual Property Rights.
9.6 Indemnity for Your Data. You will defend, indemnify and hold harmless Hinstant from and against any loss, cost, liability or damage, including attorneys' fees, for which Hinstant becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Cloud Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) all reasonable necessary cooperation of Hinstant at your expense.
9.7 Delete and Suspension. Hinstant has no obligation to monitor any content uploaded to the Cloud Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement, we may (1) delete Your Data from the Cloud Services or (2) suspend your access to the Cloud Services. We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions risk the operation of the Cloud Service, we may suspend your access immediately without notice. You will continue to be charged for the Cloud Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access.
10. Support and Maintenance.
Hinstant will provide support and maintenance for the Products described during the period for which you have paid the applicable fee. The product support is subject to the terms of the Hinstant product support terms and will be provided at the support level and during the support term specified in your Order. The Hinstant support terms may be modified by Hinstant from time to time to reflect process improvements or changing practices. Support for Software includes access to New Releases, if and when available. You may use any New Releases that we provide to you during a valid support term in the same way that you use Software, and New Releases are included in the definition of Software in that case. "New Releases" are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we make generally commercially available.
11. Technical and Training Services.
We will provide technical and training services purchased in an Order in accordance with the descriptions and conditions for those services set forth in the Order and the accompanying service descriptions. Hinstant shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide. Any training materials provided to you may be used only in connection with the Products subject to the same use restrictions for the Products. If applicable, you will reimburse Hinstant for reasonable travel and lodging expenses as incurred.
12. Payment Terms
12.1 Payment. You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars or in equivalent local currency at the time. All amounts are non-refundable, non-cancellable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current Subscription Term or License Term or Optional Services or any Product upgrades or feature enhancements. If you increase Allowed Rooms during your Subscription Term or License Term, we will invoice you for the increased number of Allowed Rooms or Optional Services in accordance with the current subscription fees in your next billing cycle. You agree that we may bill your credit card or invoice you for renewals, additional rooms, and unpaid fees, as applicable. Hinstant will invoice you on a quarterly basis for all recurring and as required for one-time fees, including but not limited to late payment fees, invoice processing fees and returned check fees. Unless otherwise specified in the Order, payment of any fees and expenses will need to be paid within fourteen (14) calendar days from the date of the invoice.
12.2 Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Hinstant, you must pay to Hinstant the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Hinstant any such exemption information, and Hinstant will use reasonable efforts to provide such documentation as may enable you to obtain a refund or credit for the amount from relevant revenue authority.
12.3 Delivery. We will deliver the applicable login instructions (in the case of Cloud Services) or license keys (in the case of Software) to the email addresses specified in your Order when we have received payment of the applicable fees. All product deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of Software, and you acknowledge that Hinstant has no further delivery obligation with respect to the Software after delivery of the license keys.
12.4 Return. As part of our commitment to customer satisfaction, it is our business practice to allow customers to return a Product within 30 days of payment for any reason or no reason and to receive a refund of the amount paid for the returned Product. In the context of Software, a return means that we will disable the license key that allowed the Software to operate. In the context of Cloud Services, a return means that we will disable access to the Cloud Service. We will not accept returns after the 30-day return period.
12.5 Discontinue. In the event that you fail to make timely payment in accordance with this Agreement for any reason by the fourteenth (14th) calendar day of the month for which the payment is due, we may discontinue a Product effective immediately. After fourteen (14) days of non-payment from the date payment is due, Hinstant shall have the right to immediately terminate this Agreement. In the context of Software, a discontinue means that we will disable the license key that allowed the Software to operate. In the context of Cloud Services, a cease means that we will disable access to the Cloud Services.
12.6 Late Payment. In the event that we do not receive payment by the fourteenth (14th) calendar day of the month for which the payment is due, Hinstant shall have the right to assess a late payment fee, equal to the greater of the amount of (a) interest calculated at the lesser of 10% or (b) maximum rate permitted by law, or (c) US $20.00 (twenty dollars).
12.7 Fee Modification. We may increase the Software License, Subscription or Commission Fees on an annual basis. During the Term, we may increase the Fees on written notice to you following any increase in the costs of providing the Services as result of any change or increase in costs passed on to us by any third party service providers.
13. Trial Products
We may offer certain Products to you at no charge for a limited time, including free accounts, free trials, and free access. Your use of Trial Product is subject to additional terms that we specify and is only permitted for the period defined by us. You may not use Trial Products for competitive analysis or similar purposes. We may terminate your right to use Trial Products at any time and for any reason in our sole discretion, without liability to you.
Except as otherwise expressly permitted in this Agreement, you will not: (i) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (ii) use the Products for the benefit of any third party, (iii) incorporate any Products into a product or service you provide to a third party, (iv) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
15. Intellectual Property Rights
Products are made available on a limited license or access basis, and no ownership is conveyed to you, irrespective of the use of terms such as "purchase" or "sale". Hinstant retains all right, title and interest, including all intellectual property rights, in and to the Products (including all Trial Products), their "look and feel", any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Hinstant.
16. Availability of Services
16.1 Service Levels Whilst we will make reasonable endeavors to meet any applicable Service Levels we will not be required to meet a Service Level if: (a) a Force Majeure event has occurred in accordance with clause 19; (b) you or a third party contributed to the failure to provide a Service or to meet a Service Level; or (c) elements of the affected Services provided are dependent on infrastructure or facilities outside the direct control of Hinstant.
16.2 Service Disruption: In the event that you consider that there is a problem with the Services and you are complying with your obligations to us under this Agreement, you may contact us via our help facilities relevant to your Services to receive assistance from our technical engineers and administrators to assist you to resolve the problem. Where applicable we may direct you to our third party service providers to resolve the problem.
16.3 Service Performance: You acknowledge that if the performance of any or all of the Services are delayed as a result of the following: (a) if we are required to perform the Services in circumstances other than those expressly or reasonably anticipated in this Agreement; (b) if there is a change in the time or complexity of the provision of the Services outside the terms agreed; or (c) as a result of any act or omission by you, your agents, contractors or suppliers, then the dates for commencing and completing the Services or any part of them as set out in the Order or otherwise agreed in writing, will be modified accordingly, including any Fee changes required.
16.4 Service Maintenance: We and/or our third party service providers may perform scheduled or unscheduled maintenance on the Cloud Service and other equipment from time to time. Where possible to do so we will notify you in advance of any such maintenance and will use reasonable endeavours to minimise any disruption to the Services as a result. Notwithstanding this, we do not warrant continuing availability of the Services and will not be liable for any interruption to the Services.
17. Confidential Information:
Each party agrees that all code, inventions, processes, business, technical and financial information disclosed to such party ("Receiving Party") by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party, provided that it is identified as confidential at the time of disclosure. Any Hinstant Technology and any performance information relating to the Products shall be deemed Confidential Information of Hinstant without any marking or further designation. Except as expressly authorised herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's non-disclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). Notwithstanding any provision of this Agreement, we may during and after the Term of this Agreement communicate in any media (including press releases, general announcements, annual reports and print and online marketing materials), the following information: (i) your name; and (ii) a description of the Products provided to you under this Agreement.
18. Term and Termination
This Agreement is in effect for as long as you have a valid License Term or Subscription Term (the "Term"), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within 30 days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Hinstant, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Cloud Services subscriptions, or Support and Maintenance. Once the Agreement terminates, you (and your Authorised Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Hinstant Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request.
19. Warranty Disclaimer
All products are provided "as is," and Hinstant and its suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality, or merchantability, whether express, implied, or statutory. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law. Hinstant shall not be liable for delays, interruptions, service failures and other problems inherent in use of the Internet and electronic communications or other systems outside the reasonable control of Hinstant. To the maximum extent permitted by law, neither Hinstant nor any of its third party suppliers makes any representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any products or any content therein or generated therewith, or that: (i) the use of any products will be secure, timely, uninterrupted or error-free; (ii) the products will operate in combination with any other hardware, software, system, or data; (iii) the products (or any products, services, information, or other material purchased or obtained by you through the products) will meet your requirements or expectations); (iv) any stored data will be accurate or reliable or that any stored data will not be lost or corrupted; (v) errors or defects will be corrected; or (vi) the products (or any server(s) that make a hosted service available) are free of viruses or other harmful components.
20. Limitations of Liability
Neither party (nor its suppliers) shall be liable for any loss of use, lost or inaccurate data, failure of security mechanisms, interruption of business, costs of delay or any indirect, special, incidental, reliance or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance. Neither party's aggregate liability to the other shall exceed the amount actually paid by you to us for products and support and maintenance in the 12 months immediately preceding the claim. Notwithstanding anything else in this agreement, our aggregate liability to you in respect of no-charge products shall be US $10. This section (Limitation of Liability) shall not apply to (i) amounts owed by you under any orders, (ii) either party's express indemnification obligations in this agreement, or (iii) your breach of section 13 (Restrictions).
To the maximum extent permitted by law, no suppliers of any third party components included in the products will be liable to you for any damages whatsoever. The parties agree that the limitations specified in this Section (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
22. Force Majeure
Neither party will be liable to the other party for any delays or errors in its performance, or for non-performance, due to any circumstances beyond its reasonable control including (without limitation) natural events, fire, lightning, earthquake, flood, storm, explosion, industrial dispute or acts of terrorism.
If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest remains in force.
24. Governing Law
Your Agreement with us will be governed by the laws of Victoria, Australia and each party submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.
25. Entire Agreement
This Agreement constitutes the entire agreement between you and us.
26. Surviving Provisions
The provisions of this Agreement which are intended or capable of having effect after the expiration or termination of your agreement with us (including provisions relating to warranties, indemnities, liability, license, subscription, Intellectual Property Rights and those with respect to payments that are accrued but unpaid at the time of termination) will remain in full force and effect following any suspension, expiration or termination of the Products.