This is a legal agreement between the person or entity named in the Booking Form (you, the Customer) and SuperFriend – Industry Funds’ Mental Health Initiative (SuperFriend, us, we, our) and governs the e-learning program (Software) and other services (together, Services) made available to you on this site (Agreement). By using the Services, you agree to the terms and conditions of this Agreement.
Please read the Terms carefully and in full prior to using the Services. If you do not agree with these terms and conditions please do not use the MySuperFriend e-learning platform or courses.
Access Credentials means any user name, identification number, password, licence or security key, security token, personal identification number (PIN) or other security code, method, technology or decide used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
Aggregated Statistics means data and information related to Customer’s use of the Services that is used by SuperFriend in an aggregate manner, including to compile statistical and performance information related to the provision and operation of the Services.
Agreement means these service terms and the Booking Form.
Authorised User means Customer’s employees, consultants, contractors, agents and customers or clients (i) who are authorised by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Services has been purchased by the Customer. The Customer is permitted to enrol a number of users equal to the number of enrolments set out in the Booking Form and paid for by the Customer.
Booking Form means the purchase page of the MySuperFriend website or alternative booking form provided by SuperFriend to the Customer which sets out the Customer name, Fees, Services requested by the Customer and other relevant details.
Commencement Date means the date the Booking Form is accepted by SuperFriend.
Confidential Information has the meaning set out in Section 6.
Customer Data means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorised User through the Services.
Documentation means SuperFriend’s user manuals, handbooks, and guides relating to the Services, provided by SuperFriend to Customer either electronically or in hard copy form/end user documentation relating to the Services.
Feedback has the meaning set out in Section 7(c).
Fees has the meaning set out in Section 5(a) and is based on the number of enrolments set out in the Booking Form and any discount applied. The service fee may be paid via credit card, on the eWay payment gateway. Additional service fees will apply for additional enrolments or for users to access to the Software for a period in excess of 12 months.
Law means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, provincial, territorial, municipal or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
MySuperFriend Account means the Customer’s individual user account, as provided to it by SuperFriend.
Party means a party to this Agreement.
Person means a natural person, corporation, statutory corporation, partnership, or any other organisation or legal entity.
Service Suspension has the meaning set out in Section 2(g).
Services means the Software and other offerings offered by SuperFriend and purchased by Customer (but does not include that part of any SuperFriend Systems which are provided by third parties).
Software means e-learning courses developed with the aim of developing mental health and wellbeing literacy in users hosted on the MySuperFriend platform via mysuperfriend.com.au.
SuperFriend IP means the Services, the Documentation, and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property provided to Customer or any Authorised User in connection with the foregoing. For the avoidance of doubt, SuperFriend IP includes Aggregated Statistics and any information, data, or other content derived from SuperFriend’s monitoring of Customer’s access to or use of the Services but does not include Customer Data.
SuperFriend Materials means the Services, specifications, Documentation and SuperFriend Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by SuperFriend or any Subcontractor (as defined in Section 2(e)) in connection with the Services or otherwise comprise or relate to the Services or SuperFriend Systems. For the avoidance of doubt, SuperFriend Materials include any information, data or other content derived from SuperFriend’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
SuperFriend Systems means the information technology infrastructure used by or on behalf of SuperFriend in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by SuperFriend or through the use of third-party services.
Term means the period commencing on the Commencement Date and concluding on the earlier of:
a) a period of 12 months from the Commencement Date; and
b) the date this Agreement is terminated in accordance with Section 2(g) or otherwise for breach by the Customer.
Third-Party Products means any third-party products provided with or incorporated into the Services.
- Access and Use.
(a) Provision of Access. Subject to and conditional on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, SuperFriend hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorised Users in accordance with the terms and conditions set out. Such use is limited to Customer’s internal use. SuperFriend will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorised Users will not exceed the number set out in this Agreement with the Customer, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable.
(b) Use Restrictions. Customer will not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer will not at any time, directly or indirectly, and will not permit any Authorised Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(c) Reservation of Rights. SuperFriend reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to SuperFriend IP.
(d) Changes. SuperFriend reserves the right, in its sole discretion, to make any changes to the Services and SuperFriend Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of SuperFriend’s services to its customers; (ii) the competitive strength of or market for SuperFriend’s services; or (iii) the cost efficiency or performance of the Services; or (b) to comply with applicable Law.
(e) Subcontractors. SuperFriend may, from time to time, in its discretion engage third parties to perform Services (each, a “Subcontractor”).
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, SuperFriend may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between SuperFriend and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by SuperFriend. Customer acknowledges that SuperFriend may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that SuperFriend may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
(g) Suspension or Termination of Services. SuperFriend may, directly or indirectly, and by use of a SuperFriend disabling device or any other lawful means, suspend, terminate or otherwise deny access to, or use of, all or any part of the Services or SuperFriend Materials by Customer, any Authorised User or any other Person, without incurring any resulting obligation or liability, if SuperFriend believes, in its sole discretion, that: (i) Customer or any Authorised User has failed to comply with, any term of this Agreement, accessed or used the Services beyond the scope of the rights granted or for a purpose not authorised under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorised User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2(g) does not limit any of SuperFriend’s other rights or remedies, whether at Law, in equity or under this Agreement.
- Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorised Users, and any act or omission by an Authorised User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will use all reasonable efforts to make all Authorised Users aware of this Agreement’s provisions as applicable to such Authorised User’s use of the Services and will cause Authorised Users to comply with such provisions.
(d) Third-Party Products. SuperFriend may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. It is Customer’s sole responsibility to read and understand such terms and conditions. SuperFriend neither owns nor operates such Third-Party Products, has no control of them, and makes no representations or warranties with respect to them. If Customer cannot or will not abide by the terms and conditions of such Third-Party Products, they may be precluded from using the Services.
- Fees, Payments and Refunds.
(a) Fees. Customer will pay SuperFriend the fees (Fees) as set out in the Booking Form without setoff or deduction. Customer will make all payments using SuperFriend’s appointed electronic payment gateway in Australian dollars on or before the due date set out in the Booking Form. If Customer fails to make any payment when due, without limiting SuperFriend’s other rights and remedies SuperFriend may suspend Customer’s and its Authorised Users’ access to any portion or all of the Services until such amounts are paid in full.
(b) Refunds. Subject to the cancellation and rescheduling provisions in the Booking Form, and subject to your rights under Law, refunds are not permitted for change of mind and will not be given to Customers who cancel prior to the end of any given Term but the Customer will be permitted to continue using the Services until the end of the then-current Term.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are quoted exclusive of any applicable goods and services tax (GST), and the Customer must pay any GST in accordance with SuperFriend’s tax invoice.
- Confidential Information.
(a) Confidential information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in writing, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, Confidential Information). Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party.
(b) Non-disclosure. The receiving Party will not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, (and in the case of SuperFriend, third parties which are providing any part of SuperFriend System) who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party will promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date of disclosure and will survive the termination or expiration of this Agreement for as long as such Confidential Information remains confidential.
- Intellectual Property Ownership; Feedback.
(a) SuperFriend IP. Customer acknowledges that, as between Customer and SuperFriend, SuperFriend owns all right, title, and interest, including all intellectual property rights, in and to SuperFriend IP and, with respect to Third-Party Products, the applicable third-party SuperFriends own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer Data. SuperFriend acknowledges that, as between SuperFriend and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to SuperFriend a non-exclusive, royalty-free, worldwide licence to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for SuperFriend to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Customer also grants to SuperFriend permission to use Customer’s name and logo in SuperFriend’s marketing and promotional materials.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to SuperFriend by mail, email, telephone, or otherwise, suggesting or recommending changes, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (Feedback), SuperFriend is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to SuperFriend on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and SuperFriend is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although SuperFriend is not required to use any Feedback.
- LIMITATIONS OF LIABILITY.
To the extent permitted by Law, in no event will SuperFriend be liable under or in connection with this Agreement or under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any:
(a) consequential, incidental, indirect, exemplary, special aggravated, or punitive damages;
(b) increased costs, diminution in value or lost business, production, revenues, or profits;
(c) loss of goodwill or reputation;
(d) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security; or
(e) cost of replacement goods or services, in each case regardless of whether SuperFriend was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable.
In no event will SuperFriend’s aggregate liability arising out of or related to this Agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise, exceed the Fees paid to SuperFriend under this Agreement. SuperFriend will also not be liable for any failure of any Third Party Products, including but not limited to products provided by National Australia Bank and Absorb Software Australia Pty Ltd.
- Data Security.
(b) Data Breach Procedures. In the event of a data breach that involves the personal information of Customer, SuperFriend will notify the Customer about the event and disclose the relevant available details pertaining to the breach in accordance with applicable Laws.
(c) Access and Security. Customer will employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of all Access Credentials and protect against any unauthorised access to, or use of, the Services; and (ii) control the content and use of Customer Data.
(a) Force Majeure. In no event will either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments contemplated under this Agreement), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemic, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (each a “Force Majeure Event”).
(b) Governing Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of Victoria, Australia.
(c) Priority. The Parties agree that in the event of inconsistency between this Agreement and any other terms put forward by the Customer, this Agreement will prevail.