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SBDB Software Pty Ltd Subscription Terms and Conditions


 



Product User Terms and Conditions


SongbookDB Requests Network SUBSCRIPTION AGREEMENT


THE PRODUCTS ARE PROVIDED ONLY ON THE CONDITION THAT THE SUBSCRIBER AGREES TO THE TERMS AND CONDITIONS IN THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) BETWEEN SUBSCRIBER AND SBDB Software Pty Ltd ("SBDB"). BY ACCEPTING THIS AGREEMENT OR BY USING THE PRODUCTS, SUBSCRIBER ACKNOWLEDGES IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT.


1. Definitions.


"Affiliate" means any sales agent in an active joint venture with SBDB.


“Databases” means any data storage system that SBDB creates to manage and facilitate the Subscription.


“Database Updates” means certain modifications or revisions to the Software as SBSB may make from time to time.


“Documentation” means the Product installation instructions, user manuals, release notes, and operating instructions prepared by SBDB, in any form or medium, as may be updated from time to time by SBDB and made generally available to Subscriber.


"Extra Features" means any extra features the Subscriber will have access to after finishing their Trial, and includes, but is not limited to, the ability to send a User an electronic reminder through the Product that their song request is ready.


“Malware” means code inserted by the Subscriber into the Productions, designed to extract information from the Products, or other Subscribers, or to alter the Products or other Subscriber’s data in a way not permitted by SBDB.


"Multi Venue Connection" means the Subscriber can receive requests from up to eight (8) venues at any one time.


“Order” means a purchase commitment mutually agreed upon between (1) SBDB and Subscriber, or (2) a SBDB authorized reseller and Subscriber.


“Products” means Software, Databases, Database Updates, Software Upgrades, together with applicable Documentation and media, and if purchased pursuant to an Order.


“SBDB” means SBDB Software Pty Ltd, an Australian corporation with its principal place of business at 2/39 The Boulevarde, Oak Flats, NSW 2529, Australia; together with any corporation or entity controlling, controlled by or under the common control of SBDB Software Pty Ltd.


"Single Venue Connection" means the Subscriber can receive requests from one venue at any one time.


“Software” means SBDB’s proprietary software applications.


“Software Upgrades” means certain modifications or revisions to the Software as SBSB may make from time to time.


“Songbook Account” means an account that a Subscriber or non-Subscriber has registered for at https://www.songbookdb.com/account/register/songbook.


“Spam” means a large number of unsolicited email messages (typically over 500 per month) with similar content sent or received in a single operation or a series of related operations.


“Subscriber” means the individual, company, Affiliates, or other legal entity that has placed an Order, and if enrolling in the Songbook Account, has registered its details on the SBDB portal at: https://www.songbookdb.com/account/register/songbook.


“Subscription” means a non-exclusive, nontransferable right to use the Products in accordance with this Agreement and the Order.


“Subscription Fees” means the agreed upon fees in an Order.


“Subscription Term” means the agreed upon time period in an Order.


“Trial” means the one time only maximum 30 consecutive days where the User can use their Songbook Account free of charge from the date the Songbook Account is commenced.


"User" means any member of the public using the Products


“Virus” or “Malware” means computer software or program code that is designed to damage or reduce the performance or security of a computer program or data.


“Web Content” means any data and requests for data processed by SBDB including but not restricted to that accessed using the Internet protocols HTTP and FTP.



2. Subscription and Grant of Right to Use.


2.1 Subject to the terms and conditions of this Agreement, SBDB will provide Subscriber the Subscription at the Permitted Capacity set forth in the Order for the Subscription Term. Subscriber may use the Products solely for Subscriber’s own internal business operations (not for the benefit of any other person or entity) during the Subscription Term, provided Subscriber has paid and continues to pay the Subscription Fees. This Agreement expires at the end of the Subscription Term unless the Subscriber continues to pay Subscription Fees for the Products, in which case the terms of this Agreement will continue to apply until such time as either party terminates this Agreement by notice in writing to the other party. Subscription Fees paid monthly are nonrefundable. Should the Subscriber give notice to SBDB that it wishes to terminate its monthly Subscription, this Agreement will not terminate until the end of the Subscription Term. Subscription Fees paid annually in advance are refundable in the circumstances set out in clause 10. SBDB may audit its systems to confirm Subscriber’s authorized use of the Products at any time or, upon reasonable notice, at Subscriber’s site. Subscriber may not rent, lease or timeshare the Products or provide subscription services for the Products or permit others to do so. Subject to the terms of this Agreement, Subscriber may allow the public to use the Products solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement. Any other use of the Products by any other entity is forbidden and a violation of this Agreement. Any source code provided to Subscriber by SBDB is subject to the terms of this Agreement.


2.2 Subscription fees are based on the type of Subscription the Subscriber agrees to and the payment terms agreed to at the time of the Order. The payment fees for accounts are set out in item 2.21 and 2.22. SBDB reserves the right, in accordance with any agreement made between SBDB and all SBDB Affiliates, to change these fees with at least 60 days notice to the Subscriber, where notice shall be deemed as an email sent by SBDB to the email address supplied by the Subscriber at the time of the Order. Should Subscriber wish to terminate this Agreement as a result of such notice, then it must do so in accordance with clause 15 of this Agreement. The fees may have sales tax or GST applied to them at the time of the Order depending on the residence of the Subscriber, and a portion or all of the fees may be paid by SBDB to any SBDB Affiliate.

2.21 Accounts commenced prior December 16 2013: Single Venue Connection Subscriptions are $7US paid monthly or $60US paid annually. The payment terms for a Multi Venue Connection Subscription are $14US paid monthly or $120US paid annually.

2.22 Accounts commenced on and after December 16 2013: Non-Requests Subscriptions are $7US paid monthly or $59.88US paid annually. Requests Subscriptions are $14US paid monthly or $119.88US paid annually.


2.3 When the Subscriber ends their trial to a Requests Subscription, they will be granted the use of Extra Features for the Subscription Term.



3. Provision of the Songbook Account.


3.1 SBDB will use commercially reasonable efforts to provide the Songbook Account for the Subscription Term.


3.2 If SBDB determines that the security or proper function of the Songbook Account would be compromised due to, hacking, denial of service attacks or other activities originating from or directed at Subscriber’s network, SBDB may immediately suspend the Songbook Account until the problem is resolved. SBDB will promptly notify and work with Subscriber to resolve the issues.


3.3 If the Songbook Account is suspended or terminated, SBDB may reverse all configuration changes made during the Songbook Account enrollment. It is Subscriber’s responsibility to make the server configuration changes necessary to return the Songbook Account prior to these configuration changes.


3.4 SBDB may modify, enhance, replace, or make additions to the Products. SBDB may use information passing through the Products for the purposes of developing, analyzing, maintaining, reporting on, and enhancing the SBDB Products and services.


3.5 SBDB may make available, only for the purpose of reporting, the details of the Subscriber to any Affiliate related to the sale of Products or a subscription to an SBDB Subscriber. SBDB Affiliates cannot use this information supplied by SBDB to contact any Subscriber without first gaining the permission of the Subscriber, granted either directly or implied by the Subscriber contacting the Affiliate first. SBDB shall not be liable for any breach of this clause.


3.6 If Subscriber is using the Products to distribute Spam or Malware, SBDB may suspend the Songbook Account until the problem is resolved.



4. Subscriber Obligations.


4.1 Subscriber will (a) comply with all applicable laws, statutes, regulations and ordinances, (b) only use the Products for legitimate business purposes, and (c) not use the Products to transmit Spam or Malware.


4.2 Subscriber will defend, indemnify and hold SBDB harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with any claims, demands, suits, or proceedings (“Claims”) made or brought against SBDB by a third party alleging or related to Subscriber’s (i) violation of its obligations in this Section 4; (ii) infringement of intellectual property rights; (iii) civil or criminal offenses; (iv) transmission or posting of obscene, indecent, or pornographic materials; (v) transmission or posting of any material which is slanderous, defamatory, offensive, abusive, or menacing or which causes annoyance or needless anxiety to any other person; or (vi) transmission of information through the Products.



5. Technical Support.


Standard technical support includes online website and portal access, and Software Upgrades for the Products during the Subscription Term upon payment of the Subscription Fees. SBDB may require Subscriber to install Software Upgrades up to and including the latest release. Enhanced support offerings and services (including installation, deployment, and consulting services) are only available for additional cost and are also subject to the terms of this Agreement.



6. Intellectual Property Rights.


The Products and all related intellectual property rights are the exclusive property of SBDB or its licensors. All right, title and interest in and to the Products, any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the Products remain exclusively with SBDB or its licensors. The Products are valuable, proprietary, and unique, and Subscriber agrees to be bound by and observe the proprietary nature of the Products. The Products contain material that is protected by copyright and trade secret law, and by international treaty provisions. The Products include software products licensed from third parties. Such third parties have no obligations or liability to Subscriber under this Agreement but are third party beneficiaries of this Agreement. All rights not granted to Subscriber in this Agreement are reserved to SBDB. No ownership of the Products passes to Subscriber. SBDB may make changes to the Products at any time without notice. Except as otherwise expressly provided, SBDB grants no express or implied right under SBDB, copyrights, trademarks, or other intellectual property rights.



7. Protection and Restrictions.


7.1 Subscriber will take all reasonable steps to safeguard the Products to ensure that no unauthorized person has access and that no unauthorized copy, publication, disclosure or distribution, in any form is made. The Products contain valuable, confidential information and trade secrets and unauthorized use or copying is harmful to SBDB. Subscriber may not directly or indirectly transfer, assign, publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on the Products or any part thereof. Subscriber may not reverse engineer (except as required by law in order to assure interoperability), decompile, translate, adapt, or disassemble the Products, nor shall Subscriber attempt to create the source code from the object code for the Software. Any third party software included in the Products may only be used in conjunction with the Products, and not independently from the Products.



8. Limited Warranty.


8.1 For the Subscription Term, SBDB warrants that the Products will operate in substantial conformance with the Documentation under normal use. SBDB does not warrant that: (A) the Products will (i) be free of defects, (ii) satisfy Subscriber’s requirements, (iii) operate without interruption or error; or (B) data contained in the Databases will be (i) appropriately categorized or (ii) that the code used in the Products will be complete or accurate.


8.2 SBDB will use reasonable efforts to remedy any significant non-conformance in the Products which is reported to SBDB and that SBDB can reasonably identify and confirm. SBDB at its discretion will repair or replace any such non-conforming or defective Products, or refund a pro-rata portion of the unused Subscription Fees paid for the remainder of the then-current Subscription Term. This paragraph sets forth Subscriber’s sole and exclusive remedy and SBDB's entire liability for any breach of warranty or other duty related to the Products. Any unauthorized modification of the Products, tampering with the Products, use of the Products inconsistent with the accompanying Documentation, or related breach of this Agreement voids the warranty. EXCEPT AS EXPLICITLY STATED AND TO THE EXTENT ALLOWED BY LAW, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS.



9. Limitation of Liability.


SBDB, ITS AFFILIATES, ITS LICENSORS OR RESELLERS WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO CLAIMS FOR LOSS OF DATA, GOODWILL, OPPORTUNITY, REVENUE, PROFITS, OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, PRIVACY, ACCESS TO OR USE OF ANY ADDRESSES, EXECUTABLES OR FILES THAT SHOULD HAVE BEEN LOCATED OR BLOCKED, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF SBDB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SBDB’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY SUBSCRIBER TO SBDB FOR THE APPLICABLE PRODUCTS OVER THE ONE YEAR PERIOD PRIOR TO THE EVENT OUT OF WHICH THE CLAIM AROSE FOR THE PRODUCTS THAT DIRECTLY CAUSED THE LIABILITY.



10. Term and Termination.


This Agreement is effective until the end of the Subscription Term, or until terminated by either party. The free trial portion of the Songbook Account is available for a period of up to thirty (30) consecutive days from the date the Subscriber registers and activates the Songbook Account and is subject to the terms and conditions of this Agreement. The free trial portion of the Songbook Account may only be used to evaluate and facilitate Subscriber’s decision to purchase a Subscription to Products. At the end of the evaluation period, Subscriber must either pay the applicable Subscription Fees or this Agreement terminates as related to the evaluation. Subscriber’s continued use of the Products after an evaluation period is subject to this Agreement. Subscriber may terminate this Agreement at any time upon notice to SBDB however, Subscriber is not entitled to a refund of any prepaid or other fees other than a pro rata refund for Subscription Fees paid annually in advance, in which instance the Subscriber is refunded an amount calculated by the daily cost of their Subscription multiplied by the number of whole days remaining of the original Subscription Term agreed between the parties. SBDB may immediately terminate this Agreement if SBDB finds that Subscriber has breached the terms of this Agreement. Upon notification of termination by either party, Subscriber must uninstall any Software, cease using and destroy or return all copies of the Products to SBDB, and to certify in writing that all known copies thereof, including backup copies, have been destroyed. Sections 1, 6-11, 14 and 15 shall survive the termination or expiry of this Agreement.



11. Compliance with Laws.


Each party will comply with all applicable laws and regulations, including those of other jurisdictions that may apply concerning the protection of personal data, and anti-bribery. Neither party will use any data obtained via the Products for any unlawful purpose.



12. Government Restricted Rights.


The Products are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR 52.227-14 and DFAR 252.227-7013 et seq. or its successor. Use of the Products by the U.S. Government constitutes acknowledgment of SBDB's proprietary rights therein. Contractor or Manufacturer is SBDB.



13. Advertising network.


SBDB reserves the right to offer an advertising network to third parties, with advertising to appear within the Products. The Subscriber shall not have claim to any part of any fees paid by such third parties, unless SBDB says so in a written agreement between SBDB and the Subscriber. The subscriber shall not have any control over what advertising appears in the Products. SBDB agrees to not allow such third party advertisers to display obscene, indecent, or pornographic materials, and will have control over the display of any third party advertising. The Subscriber shall not have any claim to damages or loss of income arising from the display of third party advertising in the products that may present any conflict of interest to the Subscriber.



14. General.


For the purposes of customer service, technical support, and as a means of facilitating interactions with its end-users, SBDB may periodically send Subscriber messages of an informational or advertising nature via email, and provide account information to related third-parties (e.g. Subscriber’s reseller). Subscriber may choose to “opt-out” of receiving these messages or information sharing by sending an email to support@songbookdb.com requesting the opt-out. Subscriber acknowledges and agrees that by sending such email and “opting out” it will not receive emails containing messages concerning advertising. However, SBDB may still send emails of a technical nature. SBDB owns any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Subscriber relating to the Products. Subscriber may not transfer any of Subscriber’s rights to use the Products or assign this Agreement to another person or entity, without first obtaining prior written approval from SBDB. Notices sent to SBDB shall be sent to the attention of the Direct at 2/39 The Boulevarde, Oak Flats, NSW 2529, Australia. Any dispute arising out of or relating to this Agreement or the breach thereof shall be governed by the federal laws of Australia and the laws of the State of New South Wales, Australia for all claims arising in or related to this subscription agreement, without regard to or application of choice of laws, rules or principles. Both parties hereby consent to the exclusive jurisdiction of: the state and federal courts in Wollongong, NSW, Australia, for all claims arising in or related to this subscription agreement. Both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, disturbances to the Internet, and inability to secure materials or transportation facilities. This Agreement constitutes the entire agreement between the parties regarding the subject matter herein and the parties have not relied on any promise, representation, or warranty, express or implied, that is not in this Agreement. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as reasonably to affect the intention of the parties. SBDB is not obligated under any other agreements unless they are in writing and signed by an authorized representative of SBDB.



15. Variation.


SBDB reserves the right to amend or modify this Agreement, or any portion of this Agreement (including the Subscription Fees). In the event of an amendment or modification, Subscriber will be notified of such updated version of the Agreement by the email that Subscriber uses to sign up to a Subscription. If Subscriber does not wish to agree to the updated version, Subscriber will have the right to terminate this Agreement by giving SBDB notice of its desire to terminate provided Subscriber provides SBDB with its notice of termination within thirty (30) calendar days of the date of such notice of an updated version of the Agreement from SBDB. In this instance, Subscriber is not entitled to a refund of any prepaid or other fees other than a pro rata refund for Subscription Fees paid annually in advance, in which instance the Subscriber is refunded an amount calculated by the daily cost of their Subscription multiplied by the number of whole days remaining of the original Subscription Term agreed between the parties. If Subscriber does not terminate the agreement within the thirty (30) calendar day period, Subscriber will be deemed to have accepted the updated version of this Agreement between the parties effective as of the end of that thirty (30) calendar day period, and the prior version of this Agreement will be superseded by the updated version.



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