Creately Master Subscription Agreement

Enterprise software-as-a-service terms

This Master Subscription Agreement (MSA) is between Cinergix Pty Ltd (ABN 69 130 459 906, ACN 130 459 906), trading as Creately, of Unit 1, 20 Collins Street, Mentone, Victoria 3194, Australia (Creately), and the customer identified in an Order Form (Customer). It takes effect on the effective date of the first Order Form that references it.

1. Definitions

Affiliate. an entity that directly or indirectly controls, is controlled by, or is under common control with a party.

Agreement. this MSA, each Order Form, each applicable Product Schedule, the DPA, the Security & Support Schedule, and any Professional Services SOW.

Authorised User. a person the Customer permits to use a Service under the Customer’s account, subject to the applicable usage limits.

Customer Data. data, records, files and content submitted to, stored in, generated through, or made accessible to the Service by or for the Customer, excluding Usage Data.

Documentation. Creately’s then-current user and administrator documentation for the applicable Service.

DPA. the Creately Data Processing Addendum identified in the Order Form.

Fees. the fees and charges stated in an Order Form or SOW.

Order Form. an ordering document executed by the parties that identifies Services, usage limits, Fees and the Subscription Term.

Product Schedule. product-specific terms identified in an Order Form.

Professional Services. implementation, configuration, migration, training, consulting or other services described in an SOW.

Service. the Creately hosted service identified in an Order Form.

Subscription Term. the initial and any renewal subscription periods stated in an Order Form.

Usage Data. technical, diagnostic and usage information about operation and use of the Service that does not identify the Customer or an individual when used for analytics or benchmarking.

2. Orders and precedence

2.1 Each Order Form is a separate order under this MSA. An Affiliate may enter its own Order Form and will be treated as the Customer for that Order Form.

2.2 An Order Form becomes binding when signed by authorised representatives of both parties, unless it states that the Customer’s signature alone constitutes acceptance by Creately.

2.3 If documents conflict, the following order applies only to the conflicting subject: (a) the DPA for processing of Personal Data; (b) the Order Form, including Special Terms; (c) the relevant SOW; (d) the relevant Product Schedule; (e) the Security & Support Schedule; and (f) this MSA.

2.4 A purchase order, procurement portal term or similar Customer document is for administrative convenience only and does not modify the Agreement unless Creately expressly agrees in a signed writing.

3. Subscription and access

3.1 Subject to payment of Fees and compliance with the Agreement, Creately grants the Customer a non-exclusive, non-transferable right during the Subscription Term for its Authorised Users to access and use the Service for the Customer’s internal business purposes.

3.2 The Customer may permit its Affiliates and contractors to use the Service only for the Customer’s benefit and remains responsible for their acts and omissions.

3.3 The Customer must not, and must not permit another person to: (a) resell, lease or provide the Service as a bureau service except as expressly permitted by a Product Schedule; (b) reverse engineer or attempt to derive source code except to the extent the restriction is prohibited by law; (c) bypass technical or usage limits; (d) use the Service to develop or benchmark a competing product for publication; (e) upload malicious code; or (f) use the Service unlawfully.

3.4 Creately may update the Service and Documentation. During a current Subscription Term, Creately will not materially reduce the core functionality of the subscribed Service as a whole.

3.5 Third-party products and connectors are governed by their own terms. Creately is not responsible for a third party’s service, but remains responsible for its own integration code and obligations under the Agreement.

4. Customer responsibilities

4.1 The Customer is responsible for its Authorised Users, account administration, role and permission configuration, the legality and accuracy of Customer Data, and its use of outputs from the Service.

4.2 The Customer warrants that it has all rights, notices, consents and lawful bases needed for Creately and its subprocessors to process Customer Data in accordance with the Agreement and the Customer’s documented instructions.

4.3 The Customer must use reasonable measures to protect credentials and promptly notify Creately of suspected unauthorised access.

4.4 The Service supports planning and analysis. The Customer remains responsible for employment, workforce, legal, regulatory and other decisions, including review of data, assumptions and outputs before acting on them.

5. Fees, taxes and payment

5.1 The Customer will pay the Fees in the currency and on the schedule stated in the Order Form. Except as expressly provided in the Agreement, subscriptions are non-cancellable and Fees are non-refundable.

5.2 Unless the Order Form states otherwise, invoices are due 30 days from invoice date. The Customer must notify Creately of a good-faith invoice dispute within 15 days and pay undisputed amounts when due.

5.3 Fees exclude GST and other transaction taxes. The Customer will pay applicable taxes other than taxes based on Creately’s net income. If withholding is required, the Customer will provide evidence and cooperate to obtain available relief.

5.4 Overdue undisputed amounts may accrue interest at the lesser of 1.0% per month and the maximum lawful rate. After at least 10 days’ written notice, Creately may suspend the affected Service for material overdue payment.

5.5 Fees are fixed for the initial Subscription Term. Creately may change renewal pricing by giving at least 60 days’ notice before the renewal date, subject to any pricing protection in the Order Form.

6. Customer Data and privacy

6.1 As between the parties, the Customer retains all right, title and interest in Customer Data. The Customer grants Creately a limited, worldwide right to host, copy, transmit, display and otherwise process Customer Data only as necessary to provide, secure, support and improve the Service in accordance with the Agreement.

6.2 Creately will process Personal Data contained in Customer Data in accordance with the DPA.

6.3 Creately will not sell Customer Data, use Customer Data for third-party advertising, or use Customer Data to train a general-purpose or shared machine-learning model without the Customer’s express written authorisation.

6.4 Creately may create and use Usage Data and aggregated or de-identified data to operate, secure and improve its services, provided it does not identify the Customer or an individual.

6.5 During the Subscription Term, the Customer may export Customer Data using available export features. After expiry or termination, Creately will make Customer Data available for export for 30 days and then delete it in accordance with the DPA and its documented backup lifecycle, unless law requires retention.

7. Security and support

7.1 Creately will maintain an information security program designed to protect Customer Data against unauthorised access, use, alteration or disclosure, as described in the Security & Support Schedule.

7.2 Support, availability commitments, maintenance and any service credits are governed by the Security & Support Schedule and the applicable Order Form.

8. Intellectual property

8.1 Creately and its licensors retain all right, title and interest in the Service, Documentation, Professional Services tools, templates, methods, know-how, Usage Data and related intellectual property. No rights are granted except those expressly stated.

8.2 If the Customer provides feedback, Creately may use it without restriction or payment, but will not identify the Customer as the source without permission.

8.3 Deliverables created through Professional Services are governed by the applicable SOW. Unless that SOW expressly states otherwise, Creately retains its pre-existing materials, reusable components, tools, methods and know-how.

9. Confidentiality

9.1 Confidential Information means non-public information disclosed by or for a party that is marked confidential or should reasonably be understood as confidential, including Customer Data, security information, pricing, product roadmaps and source code.

9.2 The receiving party will use Confidential Information only to perform or exercise rights under the Agreement; protect it using at least reasonable care; and disclose it only to personnel, Affiliates, advisers and contractors who need it and are bound by confidentiality obligations.

9.3 Confidential Information excludes information the receiving party can demonstrate: (a) is public without breach; (b) was lawfully known without restriction; (c) was lawfully received from another source without restriction; or (d) was independently developed without use of the disclosing party’s information.

9.4 A party may disclose Confidential Information when legally required if, where lawful, it gives prompt notice and reasonable assistance to seek protection.

9.5 These obligations continue for five years after disclosure, except that obligations for Customer Data and trade secrets continue while they remain confidential.

10. Warranties and disclaimers

10.1 Each party warrants that it has authority to enter the Agreement.

10.2 Creately warrants that during the Subscription Term the Service will perform materially in accordance with the Documentation. If the Customer reports a reproducible material non-conformity, Creately will use commercially reasonable efforts to correct it. If Creately cannot do so within a reasonable period, the Customer may terminate the affected Service and receive a pro-rata refund of prepaid unused Fees for it.

10.3 Except for express warranties and rights that cannot lawfully be excluded, the Service and Professional Services are provided without other warranties, including implied warranties of merchantability, fitness for a particular purpose and non-infringement.

10.4 Nothing in the Agreement excludes, restricts or modifies a guarantee, right or remedy under the Australian Consumer Law or other law that cannot lawfully be excluded. Where permitted, Creately’s liability for breach of a non-excludable guarantee is limited, at Creately’s option, to resupplying the services or paying the cost of having them resupplied.

11. Indemnities

11.1 Creately will defend the Customer against a third-party claim alleging that the paid Service, as provided by Creately and used in accordance with the Agreement, infringes an Australian patent, copyright or trade mark, and will pay damages finally awarded or agreed in settlement.

11.2 Creately has no obligation for a claim arising from: Customer Data; use with items not supplied or approved by Creately where the combination causes the claim; modification not made by Creately; use contrary to the Agreement or Documentation; or continued use after Creately offers a non-infringing replacement or instructs the Customer to stop.

11.3 If an infringement claim is likely, Creately may obtain the right to continue use, modify or replace the affected Service, or terminate it and refund prepaid unused Fees for the affected remainder of the Subscription Term.

11.4 The Customer will defend Creately against a third-party claim arising from Customer Data, the Customer’s unlawful use of the Service, or the Customer’s breach of clause 4.2, and will pay damages finally awarded or agreed in settlement.

11.5 The indemnified party must promptly notify the indemnifying party, allow it sole control of the defence and settlement, and provide reasonable cooperation. A settlement must not admit fault or impose a non-monetary obligation on the indemnified party without its consent.

12. Liability

12.1 To the maximum extent permitted by law, neither party is liable for indirect, consequential, special, exemplary or punitive loss, or for loss of profit, revenue, goodwill or anticipated savings. This exclusion does not apply to amounts payable to a third party under an indemnity.

12.2 Subject to clauses 12.3 and 12.4, each party’s aggregate liability arising from an Order Form will not exceed the Fees paid or payable under that Order Form in the 12 months before the event giving rise to liability.

12.3 Each party’s aggregate liability for breach of confidentiality, breach of the DPA or Security & Support Schedule, and its indemnity obligations will not exceed two times the amount in clause 12.2.

12.4 The limitations do not apply to fraud, wilful misconduct, liability that cannot lawfully be limited, the Customer’s payment obligations, or unauthorised use or infringement of the other party’s intellectual property.

12.5 The caps apply in aggregate across contract, tort, statute and otherwise. A party must take reasonable steps to mitigate loss.

13. Term, renewal and termination

13.1 This MSA starts when the first Order Form takes effect and continues while an Order Form remains active.

13.2 Each Order Form has the term and renewal arrangement stated in it. Unless the Order Form states otherwise, it renews for successive periods equal to the initial term unless either party gives at least 30 days’ notice before the current term ends.

13.3 Either party may terminate an affected Order Form for material breach not cured within 30 days after written notice. If a breach cannot reasonably be cured within 30 days, the breaching party must begin cure within that period and diligently complete it.

13.4 Either party may terminate immediately if the other enters liquidation or administration, ceases business, or becomes insolvent, except where prohibited by applicable insolvency law.

13.5 Creately may suspend access only to the extent reasonably necessary to address: an imminent security risk; unlawful use; material breach that threatens the Service or another customer; or overdue undisputed Fees after the notice in clause 5.4. Where practicable, Creately will give notice and limit the suspension.

13.6 Termination does not relieve payment obligations accrued before termination. If the Customer terminates for Creately’s uncured material breach, Creately will refund prepaid unused Fees for the terminated remainder. If Creately terminates for the Customer’s uncured breach, outstanding committed Fees become due to the extent permitted by law.

13.7 Clauses intended by nature to survive will survive, including payment, confidentiality, intellectual property, data return/deletion, indemnities, liability and governing law.

14. Publicity

14.1 Neither party may use the other’s name, logo or marks in public marketing without prior written consent. The Customer may revoke consent for future use on reasonable notice.

15. General

15.1 Notices of breach, termination, indemnity claims or legal proceedings must be in writing and sent to the addresses in the Order Form, with a copy to legal@creately.com for notices to Creately. Routine operational notices may be sent by email.

15.2 Neither party may assign the Agreement without consent, not to be unreasonably withheld, except to an Affiliate or in connection with a merger, internal reorganisation, financing, sale of substantially all relevant assets, or change of control, provided the assignee can perform the obligations.

15.3 Neither party is liable for delay caused by events beyond reasonable control, excluding payment obligations. The affected party will notify the other and use reasonable efforts to mitigate.

15.4 The parties are independent contractors. The Agreement does not create a partnership, agency, fiduciary or employment relationship.

15.5 A waiver must be in writing. If a provision is unenforceable, it will be modified to the minimum extent needed and the remainder continues.

15.6 The Agreement is the entire agreement about its subject and supersedes prior proposals and discussions. Amendments must be in a signed writing, except operational updates expressly permitted by the Agreement.

15.7 The Agreement may be executed electronically and in counterparts.

15.8 The Agreement is governed by the laws of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of Victoria and courts competent to hear appeals from them.

15.9 Before commencing court proceedings, a party will give senior representatives at least 15 business days to attempt good-faith resolution, except for urgent injunctive relief or debt recovery.