Terms for Service
Upon signature by Customer and submission to Active Invoice Pty Ltd (ActiveInvoice), this Order Form shall become legally binding unless this Order Form is rejected by ActiveInvoice for any of the following reasons: (1) the signatory below does not have the authority to bind Customer to this Order Form, (2) changes have been made to this Order Form, or (3) the requested purchase order information or signature is incomplete or does not match our records or the rest of this Order Form. Subscriptions are non-cancellable before their Order End Date.
By signing this agreement, you agree to the following Terms and Conditions (The “Agreement”) governing your use of the services offered by ActiveInvoice and acknowledge that you have read and understand this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the power and authority to bind such entity to these terms and conditions, in which case the terms “You’ or “Your” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you are not obliged to sign this agreement. This agreement is effective upon signing (“Effective Date”).
The Service
This Agreement governs Your use of the software solutions owned by Active Invoice Pty Ltd identified in this Order Form (collectively the “Service “). You agree that Your subscription to the Service is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by ActiveInvoice regarding future functionality or features.
1. License Grant & Restrictions
1.1 Subscription to the Service. Subject to the terms of this Agreement, ActiveInvoice hereby grants to You a non-sublicensable, non-transferable, non-exclusive subscription for Your use of the Service by Your Company (“One Registered Entity”) only (and/or up to the applicable volume of Service Events) as specified in an associated Order Form, in accordance with the Documentation and solely for Your internal business purposes. Company Subscriptions are for Company Users Only and cannot be shared or used by other Companies, or their Employees. ActiveInvoice reserve all rights not expressly granted to You in this Agreement. You may allow Your Affiliates access and use of the Service. You are solely liable and responsible for Your Affiliates’ access and use of the Service and compliance with the terms and conditions of this Agreement.
1.2 Restrictions. You shall not (i) license, sublicense, sell, resell, use as a service bureau, or otherwise use the Service for a third party’s benefit unless such use has been authorized by ActiveInvoice; (ii) transfer, assign, distribute or otherwise commercially exploit or make the Service, ActiveInvoice’s System or Content available to any third party not authorized by ActiveInvoice; (iii) modify or make derivative works based upon the Service or the Content; (iv) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (v) reverse engineer or decompile the Service or ActiveInvoice System; (vi) interfere with or make use of the Service in any manner not consistent with the Documentation, or (vii) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
1.3 Salesforce and Xero API Limits. ActiveInvoice’s Salesforce Connector for Xero operates within the Salesforce and Xero API call limits, Salesforce click here and Xero click here for more information.
2 Intellectual Property Ownership
2.1 ActiveInvoice own all rights, title and interest, including all related Intellectual Property Rights, in and to the ActiveInvoice System, the Content and the Service, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. The ActiveInvoice and the ActiveInvoice name, the ActiveInvoice and the ActiveInvoice logo, and the product names associated with the Service are trademarks of ActiveInvoice.
2.2 Customer. You retain all right, title and interest in and to the Customer Data. You grant to ActiveInvoice all necessary licenses and rights in and to Customer Data solely as necessary for ActiveInvoice to provide the Service to You or as required by law. ActiveInvoice will not knowingly use or access any Customer Data except as necessary to provide the Service or Support Services.
3 Fees, Billing, Renewal
3.1 Fees. Fees for the initial term of the Service are described in this Order Form. Any renewal charge will be based on the then-current fees. ActiveInvoice can modify the prices by providing You at least 45 days’ prior notice before the next renewal term of the Agreement. All fees due are payable in AUD Dollars. ActiveInvoice’s fees are exclusive of all taxes (unless otherwise stated), levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only Australia’s (federal or state) taxes based solely on ActiveInvoice’s income.
3.2 Billing; Payment. ActiveInvoice will issue an invoice to You on or about the Effective Date and at least 30 days before the subsequent anniversary of the Effective Date for renewal terms as specified in this Order Form. Such fees shall be paid Quarterly in advance. ActiveInvoice will invoice You in advance or otherwise in accordance with the Order Form. Unless otherwise stated, fees are due net 7 days from the invoice date. You are responsible for providing complete and accurate billing and contact information and notifying ActiveInvoice of any changes to such information. All payment obligations are non-cancellable and all amounts paid are non-refundable, except as expressly set forth in the Agreement to the contrary.
3.3 Non-Payment. In addition to any other rights granted to ActiveInvoice herein, ActiveInvoice reserves the right to suspend Your access to and use of the Service if You fail to pay any undisputed amount owed on or before its due date. Overdue amounts are subject to a late charge of 1.0% per month, or the maximum permitted by law, whichever is less, plus all expenses of collection. If You or ActiveInvoice initiates termination of this Agreement, You will be obligated to pay the balance due on Your account.
4 Term
This Agreement commences on the Effective Date and will continue for an initial term of 3 years (“Initial Term”) from the Subscription Start Date specified in this Order Form unless terminated earlier as allowed in this Agreement. Upon the expiration of the Initial Term, the term of this Agreement will automatically extend for successive terms of 1 year at ActiveInvoice’s then- current fees, provided that either party may terminate this Agreement, effective upon the expiration of the Initial Term or the then-current extension period, by notifying the other party in writing at least 30 business days prior to the expiration of the Initial Term or then-current extension term, as applicable. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. ActiveInvoice reserves the right to terminate any trial period, at any time without notice.
5 Suspension & Termination
If You are in breach of this Agreement, ActiveInvoice may suspend Your access to and use of the Service until You have cured the breach. Additionally, either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach within 30 days after written notice of such breach. Upon the expiration or termination of this Agreement for any reason: (a) any amounts owed to ActiveInvoice by You under this Agreement before such termination will become immediately due and payable, and (b) ActiveInvoice will terminate Your access to or use of the Service. The rights and duties of the parties under Sections 2, 3, 5-10 and 11 will survive the termination or expiration of this Agreement. If this Agreement is terminated by You in accordance with this paragraph due to ActiveInvoice’s uncured breach, ActiveInvoice will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event will termination relieve You of Your obligation to pay any fees payable to ActiveInvoice for the period prior to the effective date of termination.
5 Representations & Warranties
5.1 Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
5.2 Data Warranty. You represent and warrant that You own or have obtained all rights, consents, permissions, or licenses necessary to allow the Service access to, or possession, manipulation, processing, or use of the Customer Data and User Details.
6 Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN AN APPLICABLE EXHIBIT, ACTIVEINVOICE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT, AND THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS, AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ACTIVEINVOICE.
7 Mutual Indemnification
7.1 Your Indemnity. You shall indemnify and hold ActiveInvoice, and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of, or in connection with a claim arising from or related to ActiveInvoice (ActiveInvoice) System’s access to, or possession, manipulation, processing, or use of the Customer Data or User Details as is necessary to provide the Service.
7.2 ActiveInvoice’s Indemnity. If any action is instituted by a third party against You based upon a claim that the Service, as provided and excluding any Third-Party Service, infringes an Australian patent, copyright or trademark, then ActiveInvoice will defend such action at its own expense on behalf of You and will pay all damages attributable to such claim which are finally awarded against You or paid in settlement of such claim. ActiveInvoice may, at its option and expense, and in addition to defending You as set forth in the previous sentence, as Your exclusive remedy hereunder: (a) procure for You the right to continue using the Service; (b) replace or modify the Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Your access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. ActiveInvoice will have no liability to You for any infringement action that arises out of a breach of the terms and conditions of this Agreement by You or of the use of the Service (i) after it has been modified by You or a third party without ActiveInvoice’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by ActiveInvoice where the combination is the basis for the infringing activity. This section sets forth the entire obligation of ActiveInvoice and you exclusive remedy against ActiveInvoice for any infringement claim.
7.3 Procedure. A party seeking indemnification under this Section 11 will (a) give written notice of the claim promptly to the other party; (b) give the other party sole control of the defence and settlement of the claim; and (c) provide to the other party all available information and assistance.
8 Insurance; Limitations of Liability
8.1 During the term of the Agreement, ActiveInvoice will, at its cost, maintain (a) industry standard insurance coverages, including, without limitation general commercial liability and worker’s compensation, and (b) and any other insurance required by law in any state where ActiveInvoice provides services under this Agreement. All policies will be written by reputable national insurance carriers.
8.2 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR BREACH OF ITS OBLIGATIONS IN SECTION 9, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S OR ITS LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 24 MONTHS PRECEDING THE FIRST INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 3.
8.3 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR BREACH OF ITS OBLIGATIONS IN SECTION 9, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, OR THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9 Confidentiality
9.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business, products, or services of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, including information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”).
9.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than exercising its rights or exercising its obligations under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty under this Section 9.2. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
9.3 Exceptions. The Receiving Party’s obligations under Section 9.2 with respect to any Confidential Information of the Disclosing Party will not apply if such information: (a) was already known to the Receiving Party without restriction at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. Disclosure pursuant to Section 9.3(iii) shall not render Confidential Information as non-confidential or remove such Confidential Information from the obligations of the confidentiality obligations set forth in this Section 9.
9.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or use reasonable efforts to destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party upon the expiration or termination of the Agreement. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 9.4.
10 Assignment; Change in Control
This Agreement may not be assigned by either party without the prior written approval of the other party, (such approval not to be unreasonably withheld) except in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party, (ii) a sale or other disposition of all substantially all of the assets of a party, or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void.
11 General
This Agreement shall be governed by NSW law without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Sydney, NSW, Australia. No text or information set forth on any other purchase order, pre-printed form or document (other than an associated ActiveInvoice Order Form) shall modify the terms and conditions of this Agreement. In the event of a conflict between the terms in the main body of this Agreement and the terms in any ActiveInvoice Order Form, the Order Form will prevail and control. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between You and ActiveInvoice. The failure of ActiveInvoice to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by ActiveInvoice in writing. This Agreement, together with any associated ActiveInvoice Order Form, comprises the entire agreement between You and ActiveInvoice and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein, including any previously executed electronic version of a ActiveInvoice subscription agreement. All notices, required or permitted under this Agreement must be delivered in writing by courier, facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in this Agreement. Notice hereunder will be effective (a) upon receipt or 3 days after being deposited in the mail as required above with the postal authority of the receiving party’s country, whichever occurs sooner, or (b) if delivered by email, upon receipt of email if delivered by email with a fax confirmation sent on the same day. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any Force Majeure. This Agreement may be signed by facsimile or electronic signature, and/or in counterparts, each of which will constitute an original, but all of which together will constitute the same instrument.
12 Definitions
As used in this Agreement the following terms have these meanings:
“Affiliate” means any entity (now existing or hereafter formed or acquired), which, directly or through one or more intermediaries, controls, is controlled by, or is under common control with, another entity. Ownership of fifty percent (50%) or more of the voting stock, membership interests, partnership interests, or other equity of an entity shall be deemed to be in control over such entity.
“Appropriate Security Measures” means commercially reasonable technical, physical and procedural controls to (i) protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties, and unauthorized access by employees or contractors employed by ActiveInvoice, and (ii) prevent the introduction of Malicious Code into the Service and Content.
“ActiveInvoice, or ActiveInvoice System” means the hardware, software, network equipment, and other technology used by ActiveInvoice to deliver the Service, and any other of ActiveInvoice’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by ActiveInvoice in providing the Service.
“Customer Data” means any information (including without limitation personally identifiable information and Customer Templates) provided, made available, or submitted by You to the Service or retrieved by the Service from Your salesforce.com account other than User Details.
“Customer Template” means, with regard to the Composer services, a Customer-created template uploaded to the salesforce.com Service by You and intended for use with the Service.
“Documentation” means ActiveInvoice’s published documentation, knowledge base articles and other content, and technotes that are generally made available by ActiveInvoice to all customers
“Excluded Downtime” means any time the Service is not available because of a Force Majeure or Planned Downtime.
“Force Majeure” means events or circumstances beyond a party’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving ActiveInvoice’s employees), telecommunications or network failures or delays, service or computer failures involving services, hardware, or software not within ActiveInvoice’s possession or reasonable control, and acts of vandalism (including network intrusions and denial of service attacks).
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means a ActiveInvoice order form signed by authorised representatives of each party describing the services purchased, associated fees, and other terms agreed to by the parties.
“Planned Downtime” means any period of time during which the Service is unavailable due to ActiveInvoice’s planned maintenance and support of the Service or ActiveInvoice System for which ActiveInvoice gives You at least 24 hours prior notice. Except for urgent circumstances (e.g., a system failure or security threat), Planned Downtime may occur from 10:00 p.m. Friday through 4:00 a.m. Monday, AEST.
“salesforce.com Service” means the service provided by salesforce.com to which You must be a subscriber in order to obtain the Service.
“Service Event” means the execution of a single ActiveInvoice URL triggered via link or button, or any programmatic means.
“Support Incident” means (i) a basic question related to the use or configuration of the Service where the use or configuration is consistent with guidance in the Documentation, (ii) a reproducible non-conformity in the Service causing the Service not to operate in substantial conformance with the applicable Documentation. Support Incidents do not include issues or support related to or arising from the programmatic execution of the Service using Apex, Visualforce, JavaScript or other programming tools.
“Support Services” means technical assistance provided by ActiveInvoice personnel only to Your salesforce.com Administrator(s) relating to Support Incidents.
“Total Minutes” means the total number of minutes in the calendar quarter at issue.
“Unplanned Downtime” means any time the Service is not available because of an event or circumstance other than Planned Downtime.
“User(s)” means Your named employees, representatives, consultants, contractors, partners, or agents who are authorized to use the Service by You through the Salesforce LMA (License Management Application) or the “User Management” facility of the Service.
“User Details” means basic information collected by ActiveInvoice about Your Salesforce.com users’ authorized by You to use the Service which is used for subscription management, activity logging, and technical support purposes.
Exhibit A
1. Support Services and Problem Resolution
Support Services: If You have paid ActiveInvoice all applicable fees due, ActiveInvoice will provide Support Services in cases limited to ActiveInvoice service during Business Hours in the English language. To receive Support Services, You may email support@ActiveInvoice.com.au. Support Services will be subject to the specified allowance stated in an associated Order Form for the current subscription term, if any.
Problem Response and Resolution: ActiveInvoice will use commercially reasonable efforts to address Support Incidents in accordance with the schedule below.
Level 1:
The Service is not available for use, including the failure of any documented feature that is required to complete the generation of an output file.
ActiveInvoice will respond to and commence efforts to address Level 1 problems within one (2) hours after Your report of such problem is received by ActiveInvoice or ActiveInvoice’s detection of such problem, whichever is earlier.
ActiveInvoice will use commercially reasonable efforts, twenty-four (24) hours per day, seven (7) days per week, to resolve or provide You with an acceptable work-around for the applicable Level 1 problem.
Level 2:
A documented feature is not available but does not prevent the generation of an output file.
ActiveInvoice will respond to and commence efforts to address Level 2 problems within eight (8) business hours after You report such problem during Business Hours or ActiveInvoice’s detection of such problem, whichever is earlier.
ActiveInvoice will use commercially reasonable efforts, during normal Business Hours, to resolve or provide You with an acceptable solution for the Level 2 problem within five (5) business days after You report such problem or ActiveInvoice’s detection of such problem, whichever is earlier.
Level 3:
A documented feature is impaired but does not prevent the generation of an output file.
ActiveInvoice will respond to and commence efforts to address Level 3 problems within seventy- two (72) hours after You report such problem during Business Hours or ActiveInvoice’s detection of such problem, whichever is earlier.
ActiveInvoice will use commercially reasonable efforts, during normal Business Hours, to resolve or provide You with an acceptable solution for the Level 3 problem within sixty (60) calendar days after You report such problem or ActiveInvoice’s detection of such problem, whichever is earlier.
You acknowledge that the Service is dependent on Your implementation and configuration of the Service and the availability and performance of technology from third-party software and hardware vendors including but not limited to salesforce.com, Salesforce AppExchange products and custom applications, Microsoft, Google, the providers of Internet browsers, providers of connectivity, and other third party providers. ActiveInvoice has no control over and is not liable for performance issues or downtime of the Service to the extent caused by such factors.
Encryption Gateways and Associated Third Party Technologies Encryption Gateways and associated third party technology that require any re-direction of ActiveInvoice-to-Salesforce connections are not subject to this Service Level Agreement. You may utilize such encryption solutions solely at your own risk.
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