Effective date : December 31st 2015
Welcome to Subscribility. We invite you to access our web sites, use the Subscribility Service and add-ons, but please note that your invitation is subject to your review and agreement with these Terms of Service. This document describes in detail your rights and our rights, so please review these Terms carefully.
What are the Terms of Service ?
The Terms of Service constitutes a contract between us. The Terms include the provisions set forth in this document and other terms or conditions that may be presented by us and accepted by you from time to time in connection with specific Service offerings (all of which we collectively refer to as the “Terms of Service” or “Terms”). If you do not agree to these Terms, you do not have the right to access or use our Service or purchase any products or services from Subscribility. If you do register for or otherwise use our Service, you shall be deemed to confirm your acceptance of the Terms and your agreement to be a party to this binding contract.
What is the Subscribility Service
The Subscribility Service consists of Subscribility Software (as defined below), and other products, services and web sites hosted or made available by Subscribility, which enable you to do many wonderful things linked to direct to consumer, consumer marketing, membership fulfilment system and sales (collectively, the “Service”). In exchange for being enabled to use the Service, you agree to abide by these Terms.
If This Is A Contract, Who Are The Parties?
You are one party to this contract. Subscribility, an Australian company headquartered in Sydney, New South Wales is the other party (Subscribility may be referred to in these Terms of Services as “Subscribility”, “we” and sometimes “us”).
Will These Terms Of Service Ever Change?
Changes in these Terms are almost certain to happen, due to changes in our Service and the laws that apply to us and you. If we make a change, we’ll do our best to provide you with advance notice, although in some situations, such as where a change is required to satisfy applicable legal requirements, an update to these Terms may need to be effective immediately. We’ll announce changes here at our site, and we also may elect to notify you of changes by sending an email to the address you have provided to us. We will also try to explain the reasons for the change.
If we do update these Terms, you are free to decide whether to accept the updated terms or to stop using our Service (see “How is My Account Closed” below); your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. Except for changes made by us as described here, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement expressly amending these Terms and bearing a written signature by you and us. For clarity, email or other communications will not constitute an effective written agreement for this purpose.
What Do I Have To Do To Use the Subscribility Service?
First, you need to create a Subscribility Service account. You create an account by providing us with an email address and creating a password. We refer to this as your “Account Information.” We encourage you to use a distinct and non-obvious password that is different from passwords you use for any other service. You are responsible for maintaining the accuracy, completeness and confidentiality of your Account Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure. If you discover any unauthorized use of your Account Information or suspect that anyone may be able to access your private Content without authorization, you should immediately change your password and notify our Customer Support team.
Second, you will need to access your account through a web browser or by installing our client software on your computers, tablets and phones. Sorry, but obtaining those devices and paying for their connectivity and data plans is your responsibility. Subscribility also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.
Can I Share My Account With Someone Else?
Subscribility Service accounts should not be shared. If you share your Account Information with anyone, that other person may be able to take control of the account, and we may not be able to determine who is the proper account holder. We will not have any liability to you (or anyone you share your Account Information with) as a result of your or their actions under those circumstances.
Once I Have An Account, What Are My Rights In The Subscribility Service?
Once your account is created and you accept these Terms, we grant you a limited, non-exclusive license to use the Service subject to these Terms, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account voluntarily or until we close your account pursuant to these Terms. In addition, we grant you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Subscribility Software provided to you by or on behalf of Subscribility, for the sole purpose of enabling you to use the Subscribility Software and enjoy the benefit of the Service, subject to any applicable license terms provided with the Subscribility Software and these Terms, until your rights are terminated in accordance with such license and/or these Terms. You do not obtain any other right or interest in Subscribility or the Service.
Your Data Belongs To You – What Does That Mean?
You retain copyright and any other rights you already held in your Content before you submitted, posted or displayed it on or through the Service. But you do have to grant Subscribility a limited license, as described below, so we can make your data accessible and usable on the Service. Other than this limited license and other rights you grant in these Terms, Subscribility acknowledges and agrees that we do not obtain any right, title or interest from you under these Terms in any of your Content.
What Is The License I Have To Grant To Subscribility?
In order to enable Subscribility to operate the Service, we must obtain from you certain limited license rights to process your Content so that technical actions we take in operating the Service are not considered legal violations. For example, copyright laws could prevent us from processing, maintaining, storing, backing-up and distributing your Content, unless you give us these rights. Accordingly, by using the Service and uploading Content, you are granting Subscribility a license to display, perform and distribute your Content and to modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) and reproduce such Content to enable Subscribility to operate the Service. You also agree that Subscribility has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.
You agree that these rights and licenses are royalty free, worldwide and irrevocable (for so long as you use the Service plus six month after the termination of the agreement), and include a right for Subscribility to make such Content available to, and pass these rights along to, others with whom Subscribility has contractual relationships related to the provision of the Subscribility Service, solely for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if Subscribility determines such access is necessary to comply with its legal obligations.
If you elect to use any third party service or application that is integrated with Subscribility, you also agree that the licenses granted to Subscribility in the preceding paragraph shall apply to Content that is submitted or uploaded through such third party service or application. If the third party service or application you elect to use would access or extract Content, you grant Subscribility the right and license to enable third party access to and extraction of your Content. Subscribility does not assume any responsibility for, or liability on account of, the actions or omissions of such third party applications or service providers.
Inasmuch as we rely upon your rights to upload and distribute your Content, you represent and warrant to Subscribility that you have the unfettered legal rights and authority to submit your Content to Subscribility, to make any other user, publication or other distribution of that Content in your use of the Service, and to grant the rights granted to Subscribility under these Terms.
Finally, you understand and agree that Subscribility, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.
What Other Assurances Do I Have to Grant to Subscribility?
When you use the Subscribility Service to send messages to an email address, to a telephone number via SMS, or through a social media account (e.g., Facebook or LinkedIn), Subscribility sends such messages on your behalf, and we are relying on your representation to us that you have a direct relationship with the recipient(s) and that you are respecting the legal rights of the recipient(s) not to receive certain kinds of messages (such as harassing messages, unsolicited commercial messages, and unwanted SMS messages). Whenever you send any kind of message to a third party, you represent and warrant to Subscribility that you are acting within the law and that you have prior consent from the recipient to send them such a message.
Are There Rules About What I Can Do On The Subscribility Service?
Yes. Your use of the Service must be in accordance with these Terms. When it comes to your use of the Service, you agree that you are responsible for your own conduct and all conduct under your account. This means all Content – such as text, images, software, videos and anything else you can think of, no matter what the form or technical structure (collectively, “Content”) – created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third party application or services integrated with the Subscribility Service. If we find that any shared Content in your account violates our Terms of Service (including by violating another person’s intellectual property rights), we reserve the right to unshare or take down such content.
I’m Guessing Subscribility Has Some Rights Relating To The Service?
We do. They’re described here:
While you own the Content you store with the Subscribility Service (subject to third party rights), you acknowledge and agree that Subscribility (and our licensors) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is hosted on Subscribility’s servers and all software deployed by you or a third party to include software available in the Subscribility marketplace or any application, website deployed by Subscribility (the “Subscribility Software”).
Intellectual Property Rights.
In agreeing to these Terms, you also agree that the rights in the Service and Subscribility Software, including all intellectual property rights, such as trademarks, patents, industrial designs and copyrights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement. In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any Subscribility Software, unless you are expressly permitted to do so under an open source license, we give you express written permission or you are otherwise legally permitted to do so notwithstanding this prohibition.
Right to Modify the Service.
We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service and any Subscribility Software, including changes that may affect the previous mode of operation of the Service or Subscribility Software. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions and email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice.
You also acknowledge that a variety of Subscribility actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Subscribility has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. However, if you have a credit card on file and has each Subscribility invoice paid in full (using a “Paid Service”) and find that any such modifications or interruption of the Paid Service adversely affects you, you may notify our Customer Support team, explain the adverse impact the modification has created and, if you desire, request a termination of your Paid Service. Upon receipt of any such request, we will endeavor to promptly remedy the adverse impact caused by the modification, extend the duration of your Paid Service subscription for a period of time equal to the interruption and/or refund a portion of your Paid Service subscription fee equal to the remaining unused term of the Paid Service subscription, as we determine appropriate.
Right to Engage Third Parties.
Subscribility may from time to time engage certain affiliates or other third parties to provide technical or other services relating to all or part of the Service, or perform certain functions associated with the operation of the Subscribility MarketPlace, and you hereby agree that such third party involvement is acceptable. In addition, Subscribility may contract with third party resellers of the Subscribility Service, integrators of the Subscribility Service, and payment processors to enable payments in your local currency and payment systems.
Right to Use Third-Party Software.
Subscribility may from time to time include as part of the Service and Subscribility Software computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. Subscribility expressly disclaims any warranty or other assurance to you regarding such third party software.
Right to Update Our Software.
In connection with any modification of the Service, Subscribility may automatically download software updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. Subscriblity will endeavor to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks), Subscribility may require you to install the update to continue accessing the Service. In all cases, you agree to permit Subscribility to deliver these updates to you (and you to receive them) as part of your use of the Service.
Where Does My Data Go?
The Subscribility Service is available worldwide, but our data processing operations take place in the United States. If you use the Service, you acknowledge that you may be sending electronic communications (including your personal account information and Content), through computer networks owned by Subscribility and third parties located in California and other locations in the United States and other countries. As a result, your use of the Service will likely result in interstate and possibly international data transmissions, and your use of the Service shall constitute your consent to permit such transmissions.
How Is My Account Closed?
You may deactivate your account with our Service at any time, for any reason (or no reason), and you don’t even have to give us notice. However, if you desire to deactivate your account you need to take certain specific steps, which are described in the Subscribility application.
Subscribility may take action to temporarily limit your use of the Service, suspend access to your account, or close your account, with or without notice according to these Terms. Reasons for Subscribility suspending or closing your account may include, without limitation: (i) breach or violation of these Terms (including the User Guidelines) or any Separate Agreement, (ii) an extended period of inactivity (determined in Subscribility’s sole discretion), (iii) your nonpayment of any fees or other sums due to Subscribility or any other party related to your use of the Service, (iv) the discontinuance or material modification of the Service (or any part thereof) or (v) unexpected technical or security issues or problems or extensive Unsupported Use.
In most cases, in the event we elect to close your account, we will provide at least 30 days advance notice to you at the email address you have provided to us, so you have a chance to retrieve any Content stored on the Service servers (unless we determine that we are legally prohibited from providing such notice or enabling you to do so). After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Service through that account.
If I Have A Great Idea To Share With Subscribility, What Are My Rights?
When you submit any ideas, suggestions, documents and/or proposals relating to the Service (or other products or services) to Subscribility through our Service, the “Contact Us,” User Forum or Support interfaces or through any other channel or mechanism (collectively, “Contributions”), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) Subscribility is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) Subscribility shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) Subscribility may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of Subscribility without any obligation of Subscribility to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from Subscribility under any circumstances.
Does Subscribility Serve Ads?
Our business model is to make the Service so valuable that our users subscribes for a Paid Service. However, we may display advertisements and promotions on or in connection with the Service, some of which may be paid for by third parties. We also provide announcements within the Subscribility Software. These messages may promote other Subscribility products and services (including the Subscribility MarketPlace), events, demonstrate various uses of our Service and promote certain third party applications and services that work with Subscriblitty.
Inasmuch as some advertising or other messaging content we provide will be based upon information provided by third parties, we shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of any advertisements or other messages. Furthermore, your interactions with advertisers found on or through the Service, including, without limitation, all reliance upon advertising, all commercial transactions and legal obligations associated therewith, are solely between you and such advertisers.
What Else Do I Need To Know?
Third-Party Links, Content and Programming.
We may include or recommend third party resources, materials and developers and/or links to third party websites, content and applications as part of, or in connection with, the Service. We may have little or no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites, content or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications.
You agree to indemnify and hold Subscribility, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will endeavor to provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
Limitation of Liability.
To the maximum extent permitted by law, the Service Is Available “As Is.”
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE AND THE PURCHASE AND USE OF ANY PRODUCTS ARE ALL AT YOUR SOLE RISK. THE SERVICE IS PROVIDED AND PRODUCTS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SUBSCRIBILITY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) SUBSCRIBILITY DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED, PRODUCTS PURCHASED FROM THE SUBSCRIBILITY MARKETPLACE OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SUBSCRIBILITY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SUBSCRIBILITY, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF SUBSCRIBILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, PRODUCTS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE, OR PROVIDING ANY SERVICES RELATED TO THE OPERATION OF THE SERVICE OR RELATED TO THE SUBSCRIBILITY MARKETPLACE; (v) SUBSCRIBILITY’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE OR OFFERING PRODUCTS IN THE SUBSCRIBILITY MARKETPLACE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED OR OTHER THIRD-PARTY PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE.
Exclusions and Limitations.
NOTHING IN THESE TERMS OF SERVICE (INCLUDING THE LIMITATION OF LIABILITY PROVISIONS) IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
If Subscribility Has To Send Me Notice Of Something, How Will That Happen?
This is another reason why it’s important for you to make sure your Account Information is accurate, complete and up to date. We may provide you with notices by email (to the email address associated with your account), regular mail or postings on the web site(s) related to the affected Service.
How Can I Send A Notice to Subscribility?
Except where these Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to Subscribility must be delivered by email to compliance AT subscribility DOT com. This email address may be updated as part of any update to these Terms of Service. If you are unable to deliver notice via email, you may send a notice to us at the following address (as applicable to your Service provider):
3 / 55 Pyrmont Bridge Rd, Pyrmont 2009
GPO Box 2598, Sydney, NSW 2001
What Law Applies To My Use Of Subscribility?
This Agreement shall be governed by and interpreted in accordance with the laws of New South Wales, Australia.
If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
A couple of final, but important, points. First, these Terms constitute the entire agreement between you and Subscribility and govern your use of the Service, except for, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and Subscribility for the use of the Service as of the Effective Date indicated at the top of these Terms. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.
Second, you acknowledge and agree that each affiliate of Subscribility shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms.
Finally, the section headings in these Terms of Service are for convenience only and have no legal or contractual effect.