These terms and conditions (Terms) govern your membership with the Submarine platform, a product described on our Website at https://getsubmarine.com/ (Subscription).
By clicking the tick box below, downloading or installing the Software, paying for your Subscription or otherwise accepting the benefit of any part of the Solution, you agree to be bound by these Terms which form a binding contractual agreement between you or the company you represent (the ‘Client’, or ‘you’) and Disco Developments Pty Ltd ABN 33 615 639 631 (‘our’, ‘we’ or ‘us’). You represent and warrant that you have valid authority to enter into these Terms on behalf of any entity you may represent.
Please note that your Subscription will continue to renew indefinitely, and you will continue to incur Fees, unless you notify us that you want to cancel your Subscription in accordance with clause 10. Please ensure you contact us if you want to cancel your Subscription.
We may change these Terms at any time by notifying you, and your continued use of the Solution following such an update will represent an agreement by you to be bound by the Terms as amended.
In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.
Please read these terms and conditions carefully before agreeing to proceed with your Subscription.
YOUR SUBSCRIPTION AND THE SOLUTION
- (The Solution) The Solution includes, to the extent described in your Subscription, the Software, the Hosted Services and the Support Services.
- (Scope of Subscription) Your Subscription includes the benefits and limitations set out on our Website for your Subscription, or as otherwise communicated to you when you subscribe for your Subscription (as amended from time to time by notice to you).
- (Provide Information) As part of registering for, and your continued use of, your Subscription, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, photos and video, audio files, profile information, payment details, ratings and reviews, verified identifications, verified certifications and authentication, and other information as determined by us from time to time. You warrant that any information you give to us in the course of completing the Subscription registration process is accurate, honest, correct and up to date.
- During the Subscription Period, we grant to you a non-exclusive, non-transferable licence to use the Software and Documentation for the Number of Solution Users. If your Subscription on the Website does not specify a Number of Solution Users, your licence to use the Solution under this clause will be limited to one (1) use (i.e. the Number of Solution Users will be one (1)).
- We may from time to time in our absolute discretion release enhancements to the Software, where enhancements means any upgraded, improved, modified or new versions of the Software. Any enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime.
- We will provide the Software in accordance with all applicable laws and industry standards.
- Unless otherwise agreed in writing, we may not provide access, or suspend access, to any part of the Solution until you have paid the relevant instalment of Fees.
We will store User Data you upload to the Software using a third party hosting service selected by us (Hosting Service), subject to the following terms:
- (hosting location) You acknowledge and agree that we may use storage servers to host the Software through cloud-based services, and potentially other locations outside Australia.
- (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Service will be free from errors or defects or that User Data will be accessible or available at all times.
- (security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
- (backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.
If the Solution includes services to provide you with support where necessary to resolve technical issues with the Software (Support Services), the following terms apply unless otherwise specifically agreed in writing:
- We will take reasonable steps to provide Support Services where necessary. You must first endeavour to resolve any issues with the Software internally and we will not assist with issues that are beyond our reasonable control.
- You are responsible for all internal administration and managing access, including storing back-up passwords and assisting your Personnel to access and use the Software.
- You will not have any claim for delay to your access to the Software due to any failure or delay in Support Services.
- THIRD PARTY SOFTWARE, TERMS & CONDITIONS
- You acknowledge and agree that third party terms & conditions (Third Party Terms) may apply to your use of the Solution, including Shopify’s terms and conditions currently located at https://www.shopify.com/legal/terms, as updated from time to time.
- You agree to any Third Party Terms applicable to any third party goods and services that are used in providing the Solution, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
- Without limiting clause 1.5(b), we will take reasonable steps to notify you of Third Party Terms.
- You acknowledge and agree that issues can arise with transferring data to software and between software, and when integrating software with other software. We cannot guarantee the integration processes to other software will be free from errors, defects or delay. You agree that we will not be liable for the functionality of any third party goods or services, including any software.
This clause 2 applies if you are granted access to a staging version of the Software for testing or development purposes.
In this clause 2:
- “Commercial Readiness” means the point in time at which the Software is ready for live use as a tokenised payment platform.
- “Staging Period” means the period starting on the date that you are granted access to a staging version of the Software and ending on the date that is the earlier of:
- 1 month; and
- the date that the parties mutually agree that Software has achieved Commercial Readiness.
- We will not charge you the Fees during the Staging Period.
- At the end of the Staging Period, unless you notify us that you do not wish to continue using the Platform within 60 days of the start of the Staging Period:
- you will be deemed to have accepted the Software for Commercial Readiness;
- we will convert the Software for live use and you will provide us with any reasonable assistance in connection with the conversion; and
- the Subscription Period will commence and you must pay us the Fees in accordance with clause 3.
FEES AND PAYMENT
- At the commencement of the Subscription Period, you must pay fees to us on a monthly basis, calculated in accordance with the below table, or as otherwise specified in the pricing section of the Website for your Subscription (Fees):
In this clause 3.1, “Monthly Transaction Volume” means the total value of net transactions (revenue less refunds), including any applicable taxes (such as VAT and GST), you process each month through or in connection with your use of the Software which includes, but is not limited to:
- initial checkouts for subscription orders;
- orders placed using payment methods stored in the Software;
- payment receipts for recurring subscription payments processed via the Software;
- orders containing pre-sale items; and
- post-checkout upsell orders processed using the Software.
- Where a transaction is in a currency other than $USD, the Monthly Transaction Volume will be determined by converting such currency to $USD using the daily exchange rate quoted by Open Exchange Rates.
TIME FOR PAYMENT
- All Fees are non-refundable for change of mind.
- Unless otherwise agreed in writing, the Fees are due and payable on:
- a monthly basis for the duration of the Subscription Period, with the first payment being due on the first day of the calendar month immediately following the commencement of the Subscription Period; or
- if we issue an invoice to you, payment must be made by the time(s) specified in such invoice.
AUTOMATIC RECURRING BILLING
- Your Subscription will continue to renew on a monthly basis indefinitely, and you must pay Fees in respect of each monthly period, unless you notify us prior to 14 days of the expiry of the then current month that you want to cancel your Subscription. Otherwise, we will continue to debit the Fees from your account each month. We will not pay any charge back amount if you fail to cancel your Subscription in accordance with this clause.
- By choosing a recurring payment plan, you acknowledge that your Subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to your cancellation of your Subscription.
- We may submit periodic charges for the Fees without further authorization from you, until you provide prior written notice (receipt of which is confirmed by us) that you have terminated this authorization or wish to change your payment method. Such notice will not affect charges submitted before we could reasonably act on such notice. To terminate your authorization or change your payment method, please contact us via our Website.
Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.
CREDIT CARD SURCHARGES
We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
We reserve the right, from time to time, to change the Fees. We will notify you in advance with a minimum of 30 days’ notice if we do this.
- You must, and must ensure that all Users, comply with these Terms at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.
- You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:
- upload sensitive information or commercial secrets using the Software;
- upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Software;
- upload any material that is owned or copyrighted by a third party;
- make copies of the Documentation or the Software;
- adapt, modify or tamper in any way with the Software;
- remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation;
- create derivative works from or translate the Software or Documentation;
- publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties;
- sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party;
- decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
- attempt to circumvent any technological protection mechanism or other security feature of the Software; or
- permit any use of the Solution in addition to the Number of Solution Users.
- If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Website.
You agree, and you must ensure that all Users agree:
- to comply with each of your obligations in these Terms;
- not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Solution;
- to not share your Solution account information with any other person and that any use of your account by any other person is strictly prohibited. You must immediately notify us of any unauthorised use of your account, password or email, or any other breach or potential breach of the Solution’s security;
- to not use the Solution for any purpose other than for the purpose for which it was designed, including you must not use the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);
- not to act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Solution;
- you must not make any automated use of the Solution and you must not copy, reproduce, translate, adapt, vary or modify the Solution without our express written consent;
- that we may change any features of the Solution at any time on notice to you;
- that information given to you through the Software, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
- that we may cancel your account at any time if we consider, in our absolute discretion, that you are in breach or are likely to breach this clause 5.
By providing or posting any information, materials or other content in connection with the Software (Posted Material), you represent and warrant that, and must ensure that all Users make equivalent representations and warranties:
- you are authorised to provide the Posted Material (including by being authorised to provide any services that you represent you provide);
- the Posted Material is accurate and true at the time it is provided;
- any Posted Material which is in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;
- the Posted Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
- the Posted Material is not “passing off” of any product or service and does not constitute unfair competition;
- the Posted Material does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, confidential information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
- the Posted Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Solution or any network or system; and
- the Posted Material does not breach or infringe any applicable laws.
- You grant, and must ensure that all Users grant, to us a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Posted Material in order for us to use, exploit or otherwise enjoy the benefit of such Posted Material.
- If it is determined that you retain moral rights (including rights of attribution or integrity) in any Posted Material, you forever release us from any and all claims that you could assert against us by virtue of any such moral rights, and you must ensure that all Users grant an equivalent release.
- You indemnify us against all damages, losses, costs and expenses incurred by us arising in connection with any third party claim that Posted Material infringes any third party’s Intellectual Property Rights.
INTELLECTUAL PROPERTY AND DATA
SOFTWARE CONTENT INTELLECTUAL PROPERTY
- (Our ownership) We retain ownership of all materials provided to you throughout the course of your Subscription (including source code, text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Software Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us not expressly granted to you.
- (Licence to you) You are granted a licence to the Software Content, for the Number of Solution Uses, and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Software. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Software Content without prior written consent from us or as otherwise permitted by law.
Our Rights and Obligations
- You grant to us (and our Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use Client Data to the extent reasonably required to provide the Solution.
- We will:
- establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of Client Data;
- not make any undocumented, unreported or authorised configuration changes to our systems or to the information security controls that secure Client Data, if those changes would materially decrease the protections afforded to Client Data; and
- notify and keep you notified at all times of our current safety and security procedures and safeguards that are made from time to time.
- We reserve the right to remove any Client Data, including where we deem Client Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.
Your Obligations and Grant of Licence to Us
- You are responsible for ensuring that:
- you share Client Data only with intended recipients; and
- all Client Data is appropriate and not offensive.
- warrant that our use of Client Data will not infringe any third-party Intellectual Property Rights; and
- indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
CONFIDENTIALITY AND PRIVACY
- Except as contemplated by these Terms, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.
- Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information (Security Breaches).
- The notifying party will investigate each potential, actual or suspected Security Breach and assist the other party in connection with any related investigation.
WARRANTIES AND LIMITATIONS
- (Warranties) We warrant that:
- during the Subscription Period, the Software will perform substantially in accordance with the Documentation;
- the Hosted Services and Support Services will be provided by Personnel who have expertise in the provision of those services;
- during the Subscription Period, the Solution will be provided as described to you in, and subject to, these Terms; and
- to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.
- (Errors) We will correct any errors, bugs or defects in the Software which arise during the Subscription Period and which are notified to us by you unless the errors, bugs or defects:
- result from the interaction of the Software with any other solution or any computer hardware, software or services not approved in writing by us;
- result from any misuse of the Software; or
- result from the use of the Software by you other than in accordance with these Terms or the Documentation.
- (Service Limitations) The Solution is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that we cannot guarantee that:
- the Solution will be free from errors or defects;
- the Solution will be accessible at all times;
- messages sent through the Solution will be delivered promptly, or delivered at all;
- information you receive or supply through the Solution will be secure or confidential; or
- any information provided through the Solution is accurate or true.
- (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these Terms are excluded.
- (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
LIMITATION OF LIABILITY
To the maximum extent permitted by law, our liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with these Terms, the Solution or a Subscription:
- is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
- is limited, insofar as concerns other liability, to the total money paid to us under these Terms as at the date the event giving rise to the relevant liability occurs (or, where there are multiple events, the date of the first such event).
You indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise in connection with:
- any breach of these Terms by you, your Personnel or a User; or
- any act or omission of you, a User or your Personnel.
CANCELLATION OF YOUR SUBSCRIPTION
- You may cancel your Subscription by notice to us. Your Subscription will end in the then current billing cycle, and you will be charged the Fees for that billing cycle.
- Your licence to the Solution under these Terms will last for the remainder of the then current billing cycle to ensure you have an opportunity to retrieve all data you may need from the Software. Once the then current billing cycles ends, we will have no responsibility to store or otherwise retain any data, including User Data, and you release us in respect of any loss or damage which may arise out of us not retaining any such data beyond that point.
- Despite clause 10(b), we may store your User Data for up to 60 days from the conclusion of the Subscription Period (Storage Period).
- Your access to the Solution will be revoked at the end of the relevant billing cycle in which you cancel your Subscription by notice to us.
DISPUTES AND TERMINATION
- A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
- A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
- Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
TERMINATION BY US
- We may terminate these Terms or any Subscription in whole or in part immediately by written notice to you if:
- you, a member of your Personnel, or a User, are in breach of any term of these Terms or any part of a Subscription; or
- you become subject to any form of insolvency or bankruptcy administration.
- Upon termination of these Terms by us, the Fees already paid will be non-refundable, and you must promptly pay:
- the remainder of the Fees applicable for the Subscription Period as if the agreement had not been terminated;
- our expenses to date; and
- any payments required by our suppliers to discontinue their work.
TERMINATION BY CLIENT
You may terminate these Terms if:
- we have committed a material breach of these Terms or a Subscription and have failed to remedy the breach within 30 days’ written notice by you; or
- we become subject to any form of insolvency or bankruptcy administration.
If you validly terminate in accordance with this clause, no further fees will be payable by you (unless later found that such termination was invalid).
- A notice or other communication to a party under this agreement must be:
- in writing and in English; and
- delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
- Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
- 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
- when replied to by the other party,
whichever is earlier.
- We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event.
- If a Force Majeure Event occurs, we must use reasonable endeavours to notify the Customer of:
- reasonable details of the Force Majeure Event; and
- so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement.
- Subject to compliance with clause 13(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
- For the purposes of this agreement, a ‘Force Majeure Event’ means any:
- act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
- strikes or other industrial action outside of the control of us; or
- war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
- any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.
GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in Victoria. Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
- (singular and plural) words in the singular includes the plural (and vice versa);
- (currency) a reference to $; or “dollar” is to currency of the United States of America ($USD) unless otherwise specified in writing;
- (gender) words indicating a gender includes the corresponding words of any other gender;
- (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
- (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
- (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
- (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
- (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
- (headings) headings and words in bold type are for convenience only and do not affect interpretation;
- (includes) the word “includes” and similar words in any form is not a word of limitation; and
- (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.