Terms of Use

THIS AGREEMENT IS BETWEEN MEMBER BENEFITS AUSTRALIA PTY LTD ABN 12 151 525 272 AND THE CUSTOMER CONTAINED IN ANY ORDER FORM, AND CONTAINS THE TERMS ON WHICH MBA OFFERS, AND THE CUSTOMER AGREES TO ACCEPT AND USE, THE LMS AND SERVICES.

BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY DOWNLOADING, INSTALLING AND/OR USING THE LMS OR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPTED ALL OF THESE TERMS OF USE.

These terms set out your legal rights and responsibilities when using the LMS and receiving the Services and will form part of the agreement between you and us.

In this document:

you or your means you or the business or company you are authorised to represent; and
MBA, we, our or us means Member Benefits Australia Pty Ltd ABN 12 151 525 272

You can obtain a Subscription to use the LMS and Services via our Online Subscription Portal or by signing an Order Form and returning it to us.

These terms are included in any Subscription for the LMS you obtain.

Licence

Subject to payment of all Fees, MBA grants you a non-exclusive, nontransferable, non-assignable limited licence to use the LMS and Services solely in accordance with these terms.

You may only use the LMS:

for the business which is licenced to use it;
for the number End Users licenced; and
if the subscription is designated to a number of devices or virtual environments, for that number of devices or virtual environments.

If you wish to use the LMS for any other business, additional End Users, devices or virtual environments, you must purchase additional Subscriptions for them.

You acknowledge that the LMS is licenced and the licence does not constitute a sale of, transfer of title of all or a portion of the LMS or the underlying Intellectual Property Rights.

You agree not to, or permit others to:

seek to determine or obtain the source code, including by reverse engineering or decompiling the software or services.
make any modifications to the software or services;
commercialise the software or services, including by selling, lending or renting them;
transfer the software or services to anyone else, including by sub-licensing or assigning them;
using a pirated version of the software or services;
create a product or service based on the software or services;
use the software or services to do anything illegal;
publish or make copies of the software (other than for backups);
interfere with anyone else’s use of the software or services;
circumvent any technical protection mechanisms in the software or services;
install the software or services on more devices than you are permitted to (including failing to delete the software or services from a device); or
continue to use the software or services after your rights to use the software or services have expired or been terminated.

If you access or use the LMS outside of Australia, you do so at your own risk and are responsible for complying with local laws.

End Users

You are responsible for all acts and omissions of your End Users in relation to the LMS regardless of whether you authorised those acts or omissions.

You are also responsible for maintaining the confidentiality of Your and Your End Users’ login credentials.

If you or an End User violates these terms of use or uses the software or Services in a manner that we reasonably believe will cause a liability, we may request that you suspend or terminate the conduct and/or the End User’s account involved. We reserve the right, in our sole discretion, to suspend or terminate the End User’s account or your Subscription if any such request is not promptly complied with.

Acceptable use and usage limits

You must and must ensure all End Users comply with the usage limits, in relation to your use of the LMS.

Unless otherwise specified or agreed in writing by us:

the Services may not be accessed by more than the number of End User licences specified in an Order Form;
an End User identification and password must not be shared with any other persons; and
an End User identification may be reassigned to a new person replacing one who no longer requires ongoing use of the Service.

Any failure to comply with MBA’s usage limits will entitle MBA to charge additional fees in accordance with the ‘Fees and Payment Terms’ clause below, at MBA’s prevailing standard rates.

Order form

If there are any inconsistencies between these terms of use and the Order Form countersigned by you and us, then the terms of that Order Form will prevail to the extent of any inconsistency.

Fees and Payment Terms

You must pay the Fees as specified in your Subscription.

Fees are based on your Subscription and the Services you purchase, not the actual usage.

Payment obligations are non-cancelable and Fees paid are non-refundable.

Quantities, including quantity of licences purchased in respect of End Users cannot be decreased during the relevant Subscription term.

Failure to pay the Fees on time may result in your Subscription being suspended or terminated.

The Fees specified in your Subscription are exclusive of any applicable goods and services tax, value added tax or similar government tax or charge and you must pay the amount of such tax in addition to the Fees.

Customer Support

If your Subscription qualifies for integration services, technical support or training services you will receive the level of support specified in your Subscription.

Customer administrator

You may designate selected End Users as “Administrators” of your Subscription. Administrators may have enhanced access to the software and services, including the ability to access, disclose, restrict or remove Customer Data from the software and services. Administrators may also have the ability to monitor, restrict, or terminate access to End User accounts. You are responsible for all actions and omissions of any Administrator appointed by you, including ensuring that they comply with these terms, applicable laws and regulations.

Updates and Maintenance

The LMS will require maintenance and be upgraded from time to time. You should plan for both scheduled and unscheduled downtime of the LMS. MBA will use reasonable endeavours to limit any interruption to its customers but we cannot guarantee it will be able to do that in all circumstances.

We regularly release upgrades, enhancements and modifications to our software and Services (updates). Once an update becomes available, we may stop supporting previous versions of the software and Services. To make sure you can use new features we develop, you agree to let us install updates in the background.

We may also be required to make changes to our software and Services if required by third party platforms and software that are outside of our control.

Data

You retain ownership of all Customer Data. You grant MBA and its Related Bodies Corporate a non-exclusive, fully paid, royalty free. perpetual, worldwide licence to host, copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data in connection with and limited to providing you the software and Services. You also grant us the right to sub-licence these rights to our hosting, connectivity and telecommunications service providers to the extent required for the performance of our obligations and the exercise of our rights under these terms.

You represent and warrant that:

you own all rights to your Customer Data or have the rights granted to MBA as described in the paragraph above; and
the Customer Data does not infringe the Intellectual Property Rights, privacy rights or other legal rights of any third party.

You acknowledge that we may transfer, store and process Customer Data in locations other than your principal place of business, including on third party platforms and services.

Notwithstanding the foregoing, MBA may aggregate, anonymize and de-identify Customer Data (collectively, “Anonymous Data”) with other data in its possession and may use such Anonymous Data for its internal business purposes.

Intellectual Property Rights

MBA, its Related Bodies Corporate or licensors own all Intellectual Property Rights in and related to the LMS and other Services provided under or in connection with these terms of use, including related knowledge and processes and any derivative works of them. All rights not expressly granted to you are reserved for MBA, its Related Bodies Corporate or licensors.

You covenant, on behalf of yourself, your successors and assigns and End Users, not to assert against MBA, its Related Bodies Corporate or licensors, any rights or any claims of any rights in the LMS and other Services provided under or in connection with these terms of use.

Privacy

We may use your information, including personal information, and any technical information about your use of the LMS, in accordance with our privacy policy as amended from time to time. Our privacy policy is available at https://www.mbabenefits.com.au/privacy-policy.

Termination

Either party may terminate this agreement at any time if the other party:

fails, neglects or refuses to comply with its obligations under this agreement in any material manner and, after receiving notice in writing specifying the default, fails to take all reasonable steps to remedy the default within ten business days of the date of receipt of the notice; or
breaches any of its material obligations under this agreement and such breach is incapable of being remedied; or
suffers an Insolvency Event.

If this agreement is terminated by you pursuant to the above, we will refund all Fees paid in advance by you in respect of the period after the effective date of termination. If this agreement is terminated by us pursuant to the above, you will pay any unpaid Fees covering the remainder of the Subscription term under any Order Form.

Confidential information

We and you must (i) use Confidential Information only for the purposes of providing or obtaining software and Services pursuant to these terms; (ii) put in place industry-standard measures aimed at protecting Confidential Information from unauthorised access or disclosure; and (iii) not disclose Confidential Information except as reasonably necessary to provide or obtain the software and Services or as required by law.

Third Party Requests

You agree that you are solely responsible for responding to any Third Party Request and will only contact MBA for assistance if You cannot obtain the requested information after exhausting commercially reasonable efforts to obtain it.

We will make commercially reasonable efforts to assist You with any Third Party Request, provided that you pay for our reasonable costs in providing such assistance.

Security, facilities and data processing

You acknowledge that MBA implements technical and organisational measures designed to secure Customer Data from accidental loss and from unauthorised access, use, alteration, and disclosure. You also acknowledge that no data transmission over the internet and other networks is 100% secure. You acknowledge we cannot guarantee that unauthorised third parties will never be able to defeat those measures or use your data for improper purposes and that you provide Customer Data at your own risk.

You must immediately notify us of any unauthorised use or access to software or Services.

Security Emergencies

If there is a Security Emergency, we may, without prior notice suspend the use of the software and Services (in whole or part) until the Security Emergency has passed. We will make commercially reasonable efforts to minimise any suspension so as to mitigate any impact on you and other customers.

Acknowledgements

The LMS is provided on an ‘as is’ and ‘as available’ basis. We do not warrant that it will meet your specific requirements, will be correct, accurate, appropriate, reliable, timely, secure, uninterrupted or error-free or will be of any particular quality or meet your particular expectations.

MBA does not guarantee that the LMS will be continuously available or continuously operational. Without limitation, the functionality of the LMS is dependent on numerous third-party software, services and platforms and you confirm that MBA has no liability at all for any failures or circumstances arising from any failures of those third-party software, services and platforms.

We do not guarantee that the LMS or any other sites or communications we make available are free from errors, bugs, Malicious Code or other conditions which could damage or interfere with software, data, hardware or systems with which it might be used or interface with.

To the extent permitted by law, the LMS is provided without any warranties or guarantees of any kind. MBA disclaims all other warranties, whether express or implied, including any warranty, condition or other terms of satisfactory quality, merchantability, fitness for particular purpose and non-infringement. MBA makes no warranties about the accuracy, reliability, completeness or timeliness of the software and Services provided pursuant to these terms of use.

Indemnity

Each party agrees to indemnify, defend and hold harmless the other party, each other party’s Related Body Corporate and their respective officers, directors, employees, agents, successors and assigns from and against all losses suffered or incurred with respect to any claim, action, suit or other proceeding by a third party alleging that:

in your case, the Customer Data, or your use of the LMS or any Service; and
in our case, the Subscription, the LMS or the Services,

infringes or misappropriates such third party Intellectual Property rights or Moral Rights.

The Customer agrees to indemnify, defend and hold harmless MBA, its Related Body Corporate and their respective officers, directors, employees, agents, successors and assigns from and against all losses arising out of or in connection with wilful misconduct by the Customer.

Limitation of Liability

The aggregate liability of MBA and all its Related Bodies Corporate to you and your End Users, arising directly or indirectly under or in connection with your Subscription and Services or the performance or non-performance of your Subscription and Services, and whether in contract, tort (including negligence), for breach of statutory duty or otherwise, arising under or in connection with this Agreement will not exceed the amounts paid or payable by you under this agreement in the 12 months preceding the event giving rise to a claim.

MBA will have no liability whatsoever to you for any loss, harm, damage, cost or expense (including legal fees) in the nature of special, indirect or consequential loss or damage (including, without limitation, economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of production, production stoppage or loss of data).

You must take all action reasonably practicable to mitigate any loss sustained or incurred by you in respect of any matter which results in or is likely to result a claim brought by you in relation to your Subscription.

We will not be liable for any failures or circumstances which arise by reason of strikes, riots, fire, explosions, acts of God, war, government action, failure of third party services, epidemic or pandemic, environmental circumstances or any other cause which is beyond our reasonable control.

Disputes

If any dispute, question or difference of opinion between MBA and you arises out of, or in connection with, this agreement (Dispute), a party may give to the other party a notice (Dispute Notice) specifying the Dispute and requiring its resolution under this clause.

If the Dispute is not resolved within 7 days after a Dispute Notice is given to the other party, each party must nominate one senior representative to resolve the Dispute (each, a Dispute Representative).

If the Dispute is not resolved within 30 days of the Dispute being referred to the respective Dispute Representatives, either party may commence legal proceedings in an appropriate court to resolve the matter.

During the existence of any dispute, the parties must continue to perform all their obligations under this agreement without prejudice to their position in respect of such Dispute, unless the parties otherwise agree.

Nothing in this provision prevents a party from seeking any urgent interlocutory or other equitable relief.

Legal technicalities

These terms of use, combined with the Subscription, contain the entire understanding between the parties concerning the LMS and other Services provided under or in connection with these terms of use and supersede all prior communications.

You are not entitled to transfer the benefit of, or your obligations under these terms of use and any Subscription without our prior written consent, which we may not unreasonably withhold. We may assign our rights and benefits under these terms of use and any Subscription at any time without consent.

If any term or provision of these terms of use, or any Subscription, is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from these terms of use and/or Subscription and the remaining terms will be unaffected.

Interpretation of these terms of use and any Subscription shall not be affected by who prepared or benefits from them, and headings are for ease of reference only and do not affect interpretation.

These terms of use and any Subscription are to be governed by and construed with the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria.

Definitions

Account Data means the account and contact information about you and End Users.

Confidential Information means, in relation to your or our obligations respectively, non-public information concerning the other party that is commercially sensitive for that other party, but not any information that has become publicly available without any fault of the party subject to the confidentiality obligations.

Customer Data means Stored Data and Account Data.

End Users means any person who interacts with the software or Services in connection with your Subscription, and to whom you (or we at your request) have supplied a user identification and password. End Users include your employees, consultants, contractors, agents and each of their employees and third parties with which you transact with, including your customers.

Fees means the fees specified in your Subscription.

Insolvency Event means any insolvency-related event that is suffered by a party, including without limitation where: (a) the party ceases to carry on business; (b) the party ceases to be able to pay its debts as they become due; (c) the party disposes of the whole or any substantial part of its assets, operations or business (other than in the case of a solvent reconstruction or reorganisation); (d) any step is taken by a mortgagee to take possession or dispose of the whole or part of the party's assets, operations or business; (e) any step is taken to enter into any arrangement between the party and its creditors (other than in the case of a solvent reconstruction or reorganisation); or (f) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator, or other like person of the whole or part of the party's assets, operation or business.

Intellectual Property Rights means all present and future rights in or to any copyright, database, patent, design, utility model, trade mark (including any rights in get up or trade dress), brand name, service mark, trade name, domain name, business name, eligible layout right, chip topography right, plant breeder's right, know-how, trade secret, confidential information and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registered, registrable, patentable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights.

LMS means the learning management system provided by MBA as specified in your Subscription including learning management system software, hardware, system maintenance and upgrade services, policies and procedures, training and reward services, as updated and amended by MBA from time to time.

Malicious Code means any code in any part of a software system or script that is intended to or that does cause undesired effects, security breaches, degradation to system speed or functionality to or damage to a system; including attack scripts, viruses, malware, worms, Trojan horses, backdoors, time bombs, and malicious active content.

Moral Rights means the moral rights conferred on individuals by Part IX of the Copyright Act 1968 (Cth).

Online Subscription Portal means any webpage or other online facility we make available for the purpose of customers procuring a Subscription and obtaining Services.

Order Form means an order form for a Subscription which is entered into between MBA and you.

Personal Information has the meaning given to it by the Privacy Act 1988 (Cth).

Related Body Corporate has the meaning given to it by the Corporations Act 2001 (Cth).

Security Emergency means use of the software or Services that could disrupt other customers use of the software or Services or the infrastructure used to provide them, or any unauthorised access to the software or Services.

Services means the products and services that are ordered by you under an Order Form and made available by us, including in respect the LMS.

Stored Data means files, information and structured data submitted to the LMS by you or End Users.

Subscription means the agreement between you and us in relation to Services, as recorded via the Online Subscription Portal or in an Order Form.

Third Party Request means a request from a third party for records relating to your, and End Users use of the Services, including information in or from Your account or Subscription, including search warrants, court orders, subpoenas, other demands or requests of governmental authorities or private litigants.