Last updated: September 26, 2023
If a person is agreeing to these Terms and Conditions on behalf of the User, the person agreeing on behalf of the User warrants that it has the irrevocable authority and agreement of the User to be bound by these Terms and Conditions.
These Terms and Conditions may be updated by the Provider from time to time, and the updated Terms and Conditions will apply from the date they are published on the Platform. Each time the User uses the Platform they should revisit these Terms and Conditions.
1. DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
In these Terms and Conditions unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) Account: an account established on the Platform which enables the User to access and use various features of the Platform.
(b) ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(c) Applicable Law: any laws governing or affecting the arrangements contemplated by these Terms and Conditions.
(d) Business Day: means a day that is not a Saturday, Sunday or a public or bank holiday in the State.
(e) User Data: all data, files, works and materials uploaded to or stored on the Platform by the User, transmitted to the Platform at the instigation of the User, or supplied by the User to the Provider for uploading to, transmission by or storage on the Platform.
(f) Commencement Date: the date that the User subscribes to the Platform in accordance with these Terms and Conditions.
(g) Confidential Information: of a party means all information (in any form):
(i) relating to or arising from the Services (including the User Data for the User);
(ii) that concerns a party’s business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, client lists, pricing, and other business processes); and
(iii) includes these Terms and Conditions;
but does not include information that:
(iv) is or becomes independently developed or known by the other party through no breach of these Terms and Conditions by that party; or
(v) becomes publicly available without breach of these Terms and Conditions.
(h) Corporations Act: the Corporations Act 2001 (Cth).
(i) Fee: any fees payable by the User to the Provider to use the Services in accordance with clause 4, including the Subscription Fee and any other fees and charges payable by the User to the Provider under these Terms and Conditions.
(j) Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
(i) strikes, lock-outs or other industrial action;
(ii) civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or other natural disaster;
(iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(v) interruption or failure of utility services (including the inability to use public or private telecommunications networks);
(vi) interruption of networks or third party services (including telecommunication or web services); and
(vii) the acts, decrees, legislation, regulations or restrictions of any Government Agency,
however does not include a lack of funds.
(k) Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
(l) GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
(m) Insolvency Event:
(i) a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
(ii) a liquidator or provisional liquidator is appointed in respect of a person;
(iii) any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (i) or (ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
(iv) any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
(v) any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or
(vi) a person is or admits in writing that it is, or is declared to be, or is taken under any Applicable Law to be (for any purpose), insolvent or unable to pay its debts.
(n) Intellectual Property Rights: all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
These rights include without limitation:
(i) all rights in all applications to register those rights;
(ii) all renewals and extensions of those rights; and
(iii) all rights in the nature of those rights, such as Moral Rights.
(o) Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(p) Materials: all materials, documentation and information (whether reduced to written form or otherwise) provided to the User by the Provider at any time.
(q) Moral Rights: rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed, and rights of a similar nature that exist, or may come to exist, anywhere in the world.
(r) Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.
(s) Policy: means any policy of the Provider in place from time to time.
(t) Privacy Legislation: means the Privacy Act 1988 (Cth), including Australian Privacy Principles, and the guidance and codes of practice issued by the Office of the Australian Information Commissioner from time to time.
(u) Privacy Policy: means the privacy policy of the Provider as accessible on the Website from time to time.
(v) Related Entity: has the meaning given in section 9 of the Corporations Act.
(w) Services: means any services that the Provider provides to the User, including without limitation the Platform.
(x) State: New South Wales, Australia.
(y) Subscription Fee: the subscription fees payable by the User for access to the Platform.
(z) Term: means the term of these Terms and Conditions, commencing on the Commencement Date and ending on the date that they are terminated.
(aa) Terms and Conditions: these SaaS Terms and Conditions as amended from time to time.
(bb) Website: the Provider’s website accessible at dripflow.io.
1.2 Interpretation
In these Terms and Conditions the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a) Headings and subheadings are for convenience only and do not affect the interpretation of these Terms and Conditions.
(b) References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, these Terms and Conditions.
(c) References to parties are references to the parties to these Terms and Conditions.
(d) References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
(e) Words denoting the singular include the plural and words denoting the plural include the singular.
(f) Words denoting any gender include all genders.
(g) The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
(h) A reference to a body (other than a party to these Terms and Conditions), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(i) A reference to any agreement or document (including these Terms and Conditions) includes any amendments to or replacements of that document.
(j) A reference to a law includes:
(i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
(ii) any constitutional provision, treaty or decree;
(iii) any judgment;
(iv) any rule or principle of common law or equity,
and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
(k) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
(l) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
(m) No provision of these Terms and Conditions will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms and Conditions.
(n) If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
(o) A reference to time is a reference to time in the capital city of the State.
(p) A reference to a day is a reference to a day in the capital city of the State.
(q) A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
(r) If any act is required to be performed under these Terms and Conditions by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
(s) If any act is required to be performed under these Terms and Conditions on or by a specified day and that day is not a Business Day, the act must be performed on or by the next Business Day.
(t) A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
(u) Specifying anything in these Terms and Conditions after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(v) A reference to writing or written includes email.
(w) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
2. THE PLATFORM
2.1 The Platform is an all-in-one social media marketing and automation tool.
2.2 The Platform enables Users to connect the Platform with their CRM and social media platforms to automatically create and distribute content and ads, as well a number of other features as set out on the Platform.
2.3 Although the Platform facilitates marketing and automation, the User acknowledges and agrees that:
(a) a number of features rely on third party services (such as connection to CRM, social media platforms and ad platforms) that the Provider does not directly control. Although the Provider will use reasonable endeavours to make these features accessible, the Provider is unable to guarantee that they will remain accessible at all times and that they will be without fault (for example if the Facebook API is having connection issues the User’s posts may not automatically post at the requested time);
(b) a number of features include image and video creation based on images and/or templates owned by third parties. The Provider (or the relevant third party) will retain ownership of those images.
2.4 In inputting User Data on the Platform, the User acknowledges and agrees that they are authorised to disclose such information and that the Provider, without the Provider taking any further steps required by any Applicable Law or under any Privacy Legislation, is able to collect, use and disclose such User Data for the purposes described in the Provider’s Privacy Policy and these Terms and Conditions.
2.5 The Platform is available only to, and may only be used by, persons who are able to form legally binding contracts under Applicable Laws. If the User does not qualify, they must not use the Platform.
3. SUBSCRIPTION TO THE PLATFORM
(a) These Terms and Conditions shall commence on the Commencement Date and continue until terminated in accordance with their terms.
(b) Subscription to the Platform will be handled on the Provider’s Website, or by other means as approved by the Provider. These Terms and Conditions will apply whether the User subscribes to the Platform via the Website or another method.
(c) To access and use the Platform the User will need to register and set up an Account with their email address and password or similar (including connecting with third party services such as Facebook). The Provider offers access to the Platform through a free Account which provides standard access to the Platform, and may offer a number of different paid subscription plans which give access to additional services/functions on the Platform (such as access to additional property credits each month to activate property listings). The full details of the plans, including the subscription term, renewal date and associated Fees will be as published on the Website at the time the User subscribes.
(d) The User’s subscription to the Platform will commence on the Commencement Date and continue for the initial subscription term set out on the Website, following which it will automatically continue to renew for equivalent periods unless the User cancels their subscription prior to the renewal date. The Platform operates on a self-service basis, which enables the User to manage their subscription (including the ability to cancel it) by following the prompts on the Platform. The Provider does not manage this for the User. For paid Accounts the User authorises the Provider to store the User’s payment method details and to automatically charge the Subscription Fee for each renewed term. The subscription will automatically renew in order to avoid interruption to the Services and the User acknowledges and agrees that this is fair and reasonable.
(e) The User may upgrade or downgrade their subscription plan by following the prompts on the Platform. If the User downgrades from a paid subscription to a free Account, then the downgrade will take effect from the next billing cycle date, and there will be no pro-rata refund. On expiry of a paid subscription plan the User acknowledges that it will no longer have access to any features that are accessible to paid subscribers of the Platform. If the User chooses to go from a free Account to a paid subscription the billing cycle will start on the date the User makes the change.
3.2 Subscription access & limitations
(a) During the term of the User’s subscription to the Platform and subject to the User’s compliance with these Terms and Conditions, the Provider hereby grants to the User the non-exclusive, non-transferable, revocable right to use the Platform in accordance with these Terms and Conditions.
(b) In registering for an Account on the Platform:
(i) the User must not use false or misleading information and must update their details should they have changed from the last time they used the Platform;
(ii) the User must follow any password policies made available by the Provider from time to time (and as are stated on the Platform from time to time);
(iii) the User is responsible for the security of its username and password and the Provider will assume that anyone using the User’s Account is authorised to do so by the User and the User is responsible for their actions. Under no circumstances will unauthorised access and use of the User’s Account reduce the User’s liability to the Provider; and
(iv) the User must notify the Provider immediately if it becomes aware of any unauthorised use of its Account or other security breach.
(c) The User’s subscription is subject to the restrictions and limitations as stated on the Website at the time the User subscribes.
3.3 Access restrictions
(a) Except to the extent expressly permitted in these Terms and Conditions, the right granted by the Provider to the User under clause 3.2 is subject to the following prohibitions:
(i) the User must only use the Platform for its intended purpose;
(ii) the User must not directly or indirectly copy, reproduce, share, republish, frame, download, transmit, distribute, sell, reverse engineer, decompile, translate, alter, modify, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Services (except to the extent expressly permitted by the Provider or authorised within the Platform);
(iii) the User must not create derivative works based on the Platform; and
(iv) the User must not make any alteration to the Platform.
4.1 Fees & Payment terms
(a) The Provider reserves the right, in its sole discretion, to charge Users on paid subscriptions a Subscription Fee, and to modify, increase or terminate any fees, services, or charges on the Platform at any time and without prior notice. Any increase in fees will take effect from the end of the User’s current cycle (for example for monthly subscriptions, any increase will take effect from the start of the following month).
(b) Users on paid subscriptions must pay the Subscription Fee in advance during the term of the subscription (with the first payment due on or before the Commencement Date, subject to any free trial periods, and renewal payments due on the renewal date).
(c) The Subscription Fee payable by the User for their subscription to the Platform and any other charges the User may incur in connection with their use of the Platform will be as stated on the Website at the time the User subscribes to the Platform. In the event that any user is found to be circumventing payment of Fees unlawfully or without proper basis, then the Provider reserves the right to charge such users full Fees.
(d) The User may elect to participate in certain add-ons or functionality of the Platform which must be paid for in accordance with these Terms and Conditions.
(e) If the User wishes to cancel their subscription the User must do so (and ensure such cancellation is processed by the Platform) prior to the date of renewal otherwise the User’s subscription will renew and the User authorises the Provider to charge the User’s payment method for the renewed subscription term. The Provider will not manage subscription cancellations or downgrades on behalf of the User.
(f) In the Provider’s sole discretion, the Provider may offer free or discounted pricing for various Services accessible on the Platform. The terms of such use and any limitations will be as specified on the Platform at the time the Service is accessed. If the Provider offers the User a trial program, once the terms of that trial program have expired the User agrees that the Provider’s normal billing rates shall apply. The User agrees to comply with any restrictions or limitations placed on their Account during any free or discounted pricing term.
4.2 Payment method
(a) Payment of the Fees is to be made via the payment method specified by the Provider on the Website.
(b) Subscription Fees (and any other auto-recurring fees) will be paid via a direct debit arrangement. The User irrevocably authorises the Provider to debit such Fees during the term from the User’s bank account/credit card/debit card as nominated in their Account (Debit Account), on or about the due date for payment without notice to the User. The User is solely responsible for ensuring that its Debit Account details are up to date at all times. The User also irrevocably authorises the Provider to deduct all other fees and charges payable by the User to the Provider under these Terms and Conditions from the User’s nominated Debit Account. The User warrants that the User is the owner or has the right to use any Debit Account details provided. Default charges will apply in the event that the User stops the authority to charge the Debit Account without acceptance by the Provider. Insufficient funds in the Debit Account will also attract a fee (see below).
(c) In the event that the Provider is unable to direct debit or charge the User’s Debit Account or other payment method, then the User must pay a dishonour fee equal to $25 + GST.
4.3 Overdue Payments
(a) Where any part of the Fees or other monies payable by the User under or in connection with these Terms and Conditions are not paid by its due date, the Provider reserves the right to:
(i) charge the User a late fee equal to $50 + GST;
(ii) suspend the User’s access to the Platform until all overdue amounts are received by the Provider in cleared funds; and
(iii) suspend the User’s access to any User Data stored on the Platform (to the extent permitted by law) until all overdue amounts are received by the Provider in cleared funds in accordance with clause 9.
(b) The User acknowledges that the Provider may not grant the User access to the Platform until they have received payment of all required Fees payable in cleared funds.
4.4 General
(a) The User must pay all Fees and other amounts without set-off or claim under any circumstance including if a dispute exists.
(b) All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of GST, which will be added to those amounts and payable by the User to the Provider.
(c) Depending on the method of payment the User uses to pay the Fees, additional charges may be incurred (such as a small credit card processing charge).
(d) All amounts paid by the User are non-refundable to the extent permitted by law.
5. FEATURES AND USING THE PLATFORM
5.1 Once the User has registered an Account on the Platform, their profile will be automatically created based on the information provided at the registration stage. Please note that free Accounts may have certain restrictions and limitations on access to features.
5.2 Without limitation to the other terms contained here, if the User registers for an Account or otherwise uses the Platform to create User Data the User represents and warrants that:
(a) all information provided in the Account and the User Data is true and correct in all respects, and the User has not engaged in misleading or fraudulent conduct;
(b) the User Data does not contain deceptive conduct including:
(i) where the User has a free Account, incorrectly categorising information to manipulate property listings;
(ii) any other conduct to take advantage of the Platform;
(c) the User Data will not contain any discriminatory, offensive or illegal content;
(d) the User Data and the Account is not an attempt to impersonate others or otherwise mispresent the User’s affiliation with a person or entity;
(e) the User Data does not contain other people’s Personal Information without their consent;
(f) the User owns or has the necessary licenses to transmit such User Data through the Platform and that any User Data provided will not infringe any third party rights (including intellectual property or confidentiality rights) nor give rise to a liability to make royalty or other payments to a third party; and
(g) the upload of the User Data to the Platform and use of the User Data will not:
(i) breach the provisions of any law, statute or regulation; or
(ii) give rise to any cause of action against the Provider,
in each case in any jurisdiction and under any Applicable Law.
5.3 The User is solely responsible for any User Data. The User assumes all risks associated with the use of the User Data, including any reliance on its accuracy, completeness or usefulness by others, and its compliance with applicable laws (including ensuring that it does not contain any misleading, false or deceptive information or claims). The Provider may, in its absolute discretion, refuse to accept the upload of User Data to the Platform. The User agrees that the Provider shall not be liable to the User for any Loss or damage the User may suffer as a result of this.
5.4 The User acknowledges that the Platform merely facilitates the design, creation and configuration of advertisements for various platforms using automation. The Provider does not guarantee the accuracy, legality, or appropriateness of any settings, information, or composition of the advertisement. It is the User’s sole responsibility to review, verify, and ensure the correctness and compliance of the advertisements using their own methods, tools, or through other related advertising administrative tools (such as Facebook Business Manager).
5.5 The User acknowledges that although an advertisement budget may be set on a third party advertising platform (such as Google Adwords), the Provider will not be liable for any underspend or overspend of that budget that ultimately occurs and the User is solely liable for such payments in this regard. This is due to third party advertising platforms often only permitting an estimated budget to be inputted.
5.6 The User acknowledges that the Provider will not be liable for any incorrect payments charged by a third party advertising platform. The User agrees to communicate directly with the advertising platform should any incorrect charges be made on the User’s nominated account by a third party advertising platform.
6. USER OBLIGATIONS – PLATFORM
6.1 The User acknowledges and agrees that it will:
(a) only use the Platform in accordance with these Terms and Conditions and any Policy; and
(b) not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform.
6.2 The User’s use of the Platform and the Services, including the information submitted on the Platform and the Services, must not:
(a) be false, inaccurate, misleading, fraudulent, deceptive or unlawful;
(b) be in any manner which could damage, disable, overburden, or impair the Platform or interfere with any other party’s use and enjoyment of this Platform;
(c) be in any manner to phish or deceptively obtain information of other users of the Platform;
(d) impersonate or otherwise misrepresent the User’s identity or affiliation with any other person or entity;
(e) be for purposes of junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) or to attract, lure or illegally obtain information from other users of the Platform;
(f) infringe any third party’s rights or violate any Applicable Law;
(g) contain any viruses or similar which could affect the integrity, operation or security of the Platform;
(h) create liability for the Provider or cause the Provider to lose (in whole or in part) the services or custom of the Provider’s internet service provider, other clients, users or other suppliers;
(i) damage the credibility or integrity of the Platform or the Provider, or dilute, tarnish, or otherwise harm the Provider’s brand in any way; or
(j) interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the Platform.
6.3 Whilst using the Platform and the Services, the User must not:
(a) attempt to gain unauthorised access to the Platform or computer systems or networks connected to the Platform through any means;
(b) commit fraud or forgery (or attempted forgery), harass or abuse any individual, or harm minors in any way;
(c) collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses
(d) breach or violate any of the Provider’s Policies;
(e) falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Platform;
(f) copy, store or otherwise access or use any information contained on the Platform for purposes not expressly permitted by these Terms and Conditions;
(g) use the Platform for any purposes that are not permitted by these Terms and Conditions or in any way that is inconsistent with the purpose of the Platform, or in a manner that falsely implies the Provider’s endorsement, partnership or otherwise misleads others as to the User’s affiliation with the Provider;
(h) attempt to circumvent payment of any Fees in anyway;
(i) tamper with, hinder the operation of or make unauthorised modifications to the Platform or any part thereof;
(j) damage or modify the Platform or the Website or any part thereof; or
(k) circumvent, disable or otherwise attempt to interfere with any security related features.
7. PLATFORM
7.1 Maintenance
(a) The Provider reserves the right to provide general maintenance services to the Platform including updating and upgrading the Platform during the Term as the Provider considers necessary from time to time. The User acknowledges and agrees that the Platform may occasionally be unavailable during periods of planned or unscheduled critical and urgent maintenance or updates or upgrading.
(b) The Provider will provide the User with the following notice in the event any maintenance services will or are likely to result in any downtime to the Platform:
(i) if the maintenance services are critical, urgent and it is not reasonably practicable for the Provider to provide any notice – no notice will be provided; and
(ii) otherwise – the Provider will endeavour to provide at least 5 Business Days’ notice.
7.2 Availability & no service levels
The Provider shall use commercially reasonable efforts to maintain the availability of the Platform to the User but provides no guarantee as to the availability and/or the uptime of the Platform. The Provider will not be in breach of these Terms and Conditions if it fails to provide any level of availability, nor will it be liable for any Loss suffered by the User or any other person in this regard.
7.3 Third Party Integrations
(a) The Platform may support integrations with third party services to enable the Platform to provide a number of features. In order for the Platform to integrate with such third party services:
(i) the User may be required to have an account set up with that third party service; and
(ii) the User authorises and directs the Provider to disclose the User Data as required to such third party service in order for the Provider to provide the Services.
(b) The User acknowledges that such third party services are beyond the Provider’s direct control and the User provides no guarantee or warranty with respect to the quality, suitability, reliability, availability, accuracy, legality or otherwise of third party services and their ability to be integrated with the Platform. In the event that:
(i) a third party service is experiencing issues or downtime; or
(ii) the User is required to maintain an account with that third party service and fails to do so,
this may also cause functionality of the Platform to become unavailable and the Provider accepts no responsibility for any Losses or notification in this regard.
(c) Where information is transferred to a third party service, the Provider will not be liable for any Loss arising from the use of that information by that third party service.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Platform and Materials
(a) The Provider shall at all times retain all title, rights and interest in and to the Platform and Materials including:
(i) the Intellectual Property Rights subsisting in each;
(ii) any customisations of, and modifications to, the Platform and Materials;
(iii) graphics, videos, templates and designs available on the Platform;
(iv) microsites created on the Platform;
(v) information or data, source codes and other information technology relating to or connected with the Services or Materials;
(vi) marketing information relating to or connected with the Platform or Materials; and
(vii) technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Platform,
however, excludes the User Data.
(b) No right, title and interest in any of the Platform and Materials is transferred or granted to the User except so far as expressly stated in these Terms and Conditions. The User must not use the Platform in any way that is inconsistent with the Provider’s ownership.
(c) The User must not infringe, reduce the value of or otherwise damage or misappropriate the Intellectual Property Rights of the Provider in the Platform and Materials.
(d) For the avoidance of doubt, the User has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
8.2 Acknowledgement
(a) The User acknowledges and agrees that:
(i) the Provider may use templates, other third party intellectual property and open source assets in providing the Platform, and the owner of such other property retains all copyright and ownership in that property. In that case, the Provider grants the User a non-exclusive licence to use the other property to obtain the full benefit of the Platform;
(ii) the Provider may incorporate images into the Platform which are the property of third parties and which are subject to licence terms, which may include the payment on ongoing licence fees. The User agrees to be bound by and comply with all such licence terms and will be solely liable for all obligations thereunder.
8.3 User Data
(a) Subject to the limitations of the Platform as described in clause 9, the User (or its appropriate licensors) shall at all times retain ownership of the User Data including the Intellectual Property Rights subsisting in it.
(b) The User hereby grants to the Provider an irrevocable, worldwide, perpetual, transferable, non-exclusive license to use, communicate, display, copy, reproduce, store, distribute, publish, export, adapt, edit and translate the User Data to the extent reasonably required for the performance of the Provider’s obligations (including to provide the Services) and the exercise of the Provider’s rights under these Terms and Conditions, together with the right to sub-license these rights to:
(i) its hosting, connectivity and telecommunications service providers; and
(ii) third party services that are integrated with the Services,
to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under these Terms and Conditions.
(c) The User also grants the Provider an irrevocable, non-exclusive licence to use the User Data as non-personally identifiable data in aggregated and blinded formats where the data provides no identifying, referencing or implication of an association with the User, only for the purposes of display on the Platform, improving the Platform, bench marking, research and marketing analysis, surveys, reports and studies, and to measure any metrics associated with the User’s use of the Platform.
(d) The Provider warrants that:
(i) it will only use the User Data as set out in these Terms and Conditions and the Provider’s Privacy Policy in place from time to time; and
(ii) it will not sell, rent or lease the User Data to any third party.
9. RESTRICTION OF ACCESS TO USER DATA
9.1 Subject to the other terms of this clause and any Applicable Law, in the event that:
(a) the User fails to pay any part of the Fees or other monies payable by the User under or in connection with these Terms and Conditions by its due date; or
(b) these Terms and Conditions and/or the User’s access to the Platform is suspended, restricted or terminated; or
(c) the User closes their Account or terminates their subscription or these Terms and Conditions,
the User’s access to the User Data will be immediately revoked and the User’s Account will become inactive. For the avoidance of doubt the User will have no access to the User Data (including access to download any User Data that is available for them to download) while the User’s Account is inactive.
9.2 Prior to termination of these Terms and Conditions or the User’s Account otherwise becoming inactive, the User is solely responsible for downloading any User Data that is available for download from the Platform. Only the User Data that is made available in the format as specified on the Platform may be downloaded. The Provider does not guarantee, represent or warrant that all of the User Data will be able to be downloaded as not all User Data is made available for download. The Provider will not be providing a download of the User Data once the User’s Account becomes inactive.
9.3 Following termination of these Terms and Conditions the Provider reserves the right to delete all User Data from the Platform and is under no obligation to provide any notice or copies of such User Data to the User prior to its deletion.
10. WARRANTIES
10.1 The User warrants:
(a) that it has the legal right and authority to enter into these Terms and Conditions and to perform its obligations under these Terms and Conditions; and
(b) that it has not relied upon any representations, warranties or conditions offered or made by or on behalf of the Provider except to the extent expressly set out in these Terms and Conditions.
10.2 All of the parties’ warranties and representations in respect of the subject matter of these Terms and Conditions are expressly set out in these Terms and Conditions. To the maximum extent permitted by Applicable Law, no other warranties or representations concerning the subject matter of these Terms and Conditions will be implied into these Terms and Conditions or any related contract.
11.1 The Provider provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The User relies on the Services at its own risk and is solely responsible and liable for how they use the Services.
11.2 Without limiting clause 11.1, the User acknowledges and agrees that:
(a) the Provider does not guarantee continuous, uninterrupted or secure access to its Platform;
(b) the Provider does not warrant that the use of the Platform will result in the User achieving any specific result;
(c) the User is solely responsible for complying with any obligations under any Applicable Laws;
(d) the Provider makes no representations about the suitability of the Platform for any purpose. Without limiting the generality of the other terms of this clause, the Provider does not represent or warrant that the Platform is, or will remain suitable or lawful for the User’s use, the User must make their own enquiries as to whether the Platform is suitable for its intended use;
(e) the Provider makes no guarantees that there will be no loss or corruption of User Data at any time, or that the data backups (if available) will be readable, or that any User Data is able to be backed up or recovered. Unfortunately, data loss happens and the Provider will not be liable for any Loss the User suffers in the event that User Data is lost, for example if a webhost database is corrupt and User Data is corrupt;
(f) the information provided on and in the Platform is general information and is not in the nature of financial, legal or any form of advice. The User should obtain advice before making any decision based on the Platform;
(g) the Provider reserves the right to withdraw, or amend, update or change the functionality or content of the Platform at any time, without notice;
(h) the Provider may remove or delete the User Data after the termination of these Terms and Conditions. It is solely the responsibility of the User to download any User Data that is able to be downloaded before the expiry or termination of these Terms and Conditions;
(i) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from defects, errors and bugs; and
(j) the Provider will maintain appropriate technical and organisational measures to protect the security of the User Data. However, the Provider does not guarantee that unauthorised third parties will never be able to defeat those measures to access the User Data for improper purposes. The User acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and User Data. Accordingly, any User Data that is transmitted by the User is transmitted solely at the User’s risk. The User is solely liable for their User Data.
12.1 Subject to the other terms of this clause, the Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.
12.2 Without limitation to clause 12.1, to the extent permitted by law, the Provider excludes all liability to the User and/or anyone else for Losses arising in any way in connection with the Platform or its use and/or the Services and/or these Terms and Conditions, including but not limited to Losses suffered as a result of:
(a) any planned or foreshadowed system downtime of the Platform;
(b) non-performance of the Platform;
(c) any reliance on the Platform (or any information provided from the Platform);
(d) any incorrect data entry or information made by the User on the Platform;
(e) any incorrect data or content, errors, mistakes or inaccuracies on the Platform;
(f) any loss or corruption of User Data at any time;
(g) any defects, errors and bugs in the Platform;
(h) any unauthorised access to or use of the Platform;
(i) any interruption or cessation of transmission to or from the Platform (including any downtime to features caused by third party services);
(j) use of the Platform which is contrary to law, these Terms and Conditions or any other agreement between the User and the Provider;
(k) unauthorised third party access to the Platform or the Services;
(l) any viruses, trojan horses or other harmful code or communications which may be transmitted to or through the Platform by any third party; and/or
(m) loss of privacy and confidential information.
12.3 Without limiting the other terms of this clause 12, the User releases the Provider from any Loss arising in connection with the User being unable to access the Platform for any reason, including without limitation in circumstances where the User’s access is suspended, restricted or terminated for reasons set out in these Terms and Conditions.
12.4 Subject to the other terms of this clause, the Provider’s maximum aggregate liability to the User for any Loss or damage or injury arising out of or in connection with these Terms and Conditions, including any breach by the Provider of these Terms and Conditions however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual Fees paid by the User to the Provider under these Terms and Conditions in the one-month period preceding the matter or event giving rise to the claim.
12.5 Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services, to the extent that the ACL applies to the Services.
12.6 If the Provider is liable to the User in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Provider’s total liability to the User for that failure is limited to, at the option of the Provider the resupply of the Services or the payment of the cost of resupply.
12.7 The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
12.8 Without limitation to the other terms of this clause, the Provider excludes any liability to the User, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms and Conditions.
12.9 Notwithstanding anything else in this clause, the Provider’s liability will be reduced to the extent the Loss or damage is caused by or contributed to by the User or the User’s Personnel.
13.1 Except to the extent caused by the breach of these Terms and Conditions by the Provider, the User indemnifies and releases the Provider, and its Related Entities and Personnel from and against any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Provider arising out of or in connection with:
(a) the User’s use of the Services;
(b) the supply, suspension, restriction or cancellation of the User’s access to the Platform;
(c) the User’s breach or negligent performance or non-performance of these Terms and Conditions;
(d) from the User’s violation of any Applicable Law;
(e) any claim made against the Provider and/or the User by a third party arising out of or in connection with these Terms and Conditions, to the extent that such claim arises from the act or omission of the User or out of the breach, negligent performance or failure or delay in performance of these Terms and Conditions by the User;
(f) the User’s actual or alleged infringement of the Provider’s Intellectual Property Rights;
(g) any reduction in value or damage to the Intellectual Property Rights of the Provider caused by or contributed to by the User’s acts and/or omissions;
(h) any claim made against the Provider for actual or alleged infringement of a third party’s rights arising out of or in connection with the User Data; and/or
(i) the enforcement of these Terms and Conditions by the Provider.
13.2 The User must make payments under this clause:
(a) in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
13.3 It is not necessary for the Provider to incur expense or make payment before enforcing a right of indemnity under this clause.
13.4 The indemnities in this clause:
(a) are continuing obligations of the User, independent from its other obligations under these Terms and Conditions and survive termination or expiry of these Terms and Conditions; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the User.
13.5 The Provider’s liability under this indemnity is limited under clause 12.
14. FORCE MAJEURE EVENT
14.1 The Provider will not be in breach of these Terms and Conditions or liable to the User for any Loss incurred by that other party as a direct result of the Provider failing or being prevented, hindered or delayed in the performance of its obligations under these Terms and Conditions where such prevention, hindrance or delay results from a Force Majeure Event.
14.2 If a Force Majeure Event occurs, the Provider must notify the User in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
14.3 On providing the notice in clause 14.2, the Provider will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Provider must continue to use all reasonable endeavours to perform those obligations.
14.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
15. TERMINATION AND SUSPENSION
15.1 Termination by the User
(a) The User may terminate these Terms and Conditions at any time without cause by following the prompts on the Platform to delete their Account. Except as set out under clause 15.1(b) termination takes effect at the end of the current subscription plan. There is no pro-rata refund offered if the User terminates during a paid subscription plan under this clause without reason.
(b) The User may terminate these Terms and Conditions with immediate effect, where the Provider breaches any term of these Terms and Conditions and fails to rectify that breach within a reason time (being no less than 14 days) from being given notice by the User.
(c) Where termination occurs by clause 15.1(b) the Provider will offer a pro-rata refund to the User for the remainder of the subscription term during which termination took place. This is the sole remedy available to the User.
(d) If the User requires assistance in terminating or requires further information regarding renewal dates or the duration of a subscription term it should contact the Provider.
15.2 Provider’s right to terminate, suspend or restrict
(a) The Provider may terminate these Terms and Conditions at any time without cause by giving written notice to the User. Except as set out under clause 15.2(b) termination takes effect at the end of the current subscription term, and the User will continue to have access to the Platform for the remainder of the subscription term.
(b) The Provider may immediately suspend, restrict or terminate these Terms and Conditions and/or the User’s access to all or part of the Services, including access to the User Data on the Platform immediately where:
(i) it is reasonably necessary for security, technical, copyright or operational reasons;
(ii) the User breaches any term of these Terms and Conditions;
(iii) the User violates the rights of any third party or the Provider;
(iv) the Provider reasonably believes that the User is engaged in illegal or fraudulent use of the Services;
(v) the Provider reasonably believes that the User Data is inappropriate or unlawful;
(vi) the Provider reasonably believes that the User is using the Services in a way that would cause Loss or damage to or otherwise cause legal liability to the Provider, other users, third parties or disrupt others’ use of the Services; or
(vii) the User suffers an Insolvency Event.
(c) The Provider may only offer a pro-rata refund if the Provider terminates during a subscription term under clause 15.2(b)(i) at no fault of the User. Otherwise no pro-rata refund will be provided.
On termination of these Terms and Conditions:
(a) the User’s right to use the Platform is revoked and the User’s access will be terminated;
(b) the User must cease using the Platform;
(c) all amounts payable by the User to the Provider (including amounts that are not yet due) shall become immediately due and payable and must be paid within 7 days of termination; and
(d) except where otherwise specified under these Terms and Conditions, the User acknowledges that they are not entitled to any pro-rata refund of any Fees paid to the Provider which relate to the period following termination.
17. CONFIDENTIALITY AND PRIVACY
(a) The parties undertake that they and their respective Personnel will not, without the prior written consent of the other party:
(i) disclose the Confidential Information of the other party to any person; or
(ii) use the Confidential Information of the other party for their own or a third party’s benefit.
(b) Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to such of its Personnel as require that information in order to enable the performance of these Terms and Conditions.
(c) If requested by either party the other party must return all Confidential Information and any copies of the Confidential Information to the other party.
(d) In the event that either party is requested or becomes legally compelled to disclose any of the other party’s Confidential Information, that party will (subject to any regulatory restrictions) provide the other party with prompt notice so that the other party may seek such protective order or other appropriate remedy as it thinks appropriate.
(e) In the event of a breach or threatened breach of the terms of this clause by either party (Breaching Party), the other party will, as between the parties, be entitled to an injunction restraining the Breaching Party from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by the party.
(a) In respect of any Personal Information (as defined in the Privacy Legislation) that is included in User Data or otherwise provided to, collected or received by either party in connection with the Platform, the User must comply with:
(i) the Privacy Legislation and Applicable Law; and
(ii) the applicable Policies and guidelines of the Provider as made known from time to time.
(b) The User acknowledges that it will be a joint controller of such Personal Information, and where applicable the Provider acts on the instructions of the User.
(c) The User warrants and represents that:
(i) it has the right to use the User Data, and that the User Data and the use of the User Data by the Provider/Platform is not in violation of any Privacy Legislation and Applicable Law; and
(ii) all Personal Information that it provides to the Provider complies with this clause and these Terms and Conditions at all times. Immediately upon the User becoming aware of any breach by it of any Privacy Legislation in respect of Personal Information provided to the Provider, the User must inform the Provider of this.
(d) If either party receives a request for access to or correction of any Personal Information from any person (including the Office of the Australian Information Commissioner) prior to providing such access to or correcting the information it must notify the other party.
18. TESTIMONIAL AND PUBLICITY RIGHTS
18.1 In consideration of the Provider providing the Services, the User agrees that it may be identified as a client on the Website or other marketing materials of the Provider, and that the Provider may request and use the User’s logo for this purpose., The User also agrees that the Provider may develop a case study featuring the User’s use of the Platform and that this may be used for publicity purposes.
19. GENERAL PROVISIONS
(a) No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms and Conditions unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
(b) Words or conduct referred to in clause 19.1(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
19.2 Assignment, Novation and Other Dealings
(a) The Provider may assign or novate any rights that arise out of or under these Terms and Conditions without the consent of the User.
(b) Any rights of the User that arise out of or under these Terms and Conditions are not assignable or capable of novation by the User without the prior written consent of the Provider, whose consent must not be unreasonably withheld.
19.3 Costs
The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms and Conditions.
19.4 Severability
(a) If the whole or any part of a provision of these Terms and Conditions is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
(b) Clause 19.4(a) does not apply if the severance of a provision of these Terms and Conditions in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms and Conditions.
19.5 No Merger
On termination of these Terms and Conditions, the rights and obligations of the parties set out in these Terms and Conditions will not merge and any provision that has not been fulfilled remains in force.
19.6 Survival
Clauses 1, 4, 8, 11, 12, 13, 16 and 17 will survive termination or expiry of these Terms and Conditions together with any other clause which by its nature is intended to survive termination or expiry of these Terms and Conditions.
19.7 Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms and Conditions and the transactions contemplated by these Terms and Conditions.
19.8 Time of the Essence
Time is of the essence in these Terms and Conditions in respect of any date or time period and any obligation to pay money.
19.9 Relationship of the Parties
(a) Nothing in these Terms and Conditions gives a party authority to bind any other party in any way.
(b) Nothing in these Terms and Conditions imposes any fiduciary duties on a party in relation to any other party.
19.10 Remedies Cumulative
Except as provided in these Terms and Conditions and permitted by law, the rights, powers and remedies provided in these Terms and Conditions are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms and Conditions.
19.11 Entire agreement
These Terms and Conditions state all the express terms agreed by the parties about its subject matter. They supersede all prior agreements, understandings, negotiations and discussions in respect of their subject matter.
19.12 No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms and Conditions.
19.13 Governing Law and Jurisdiction
(a) These Terms and Conditions are governed by the law in force in the State.
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms and Conditions.
(c) Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 19.13(b) on the basis that:
(i) any proceeding arising out of or in connection with these Terms and Conditions has been brought in an inconvenient forum; or
(ii) the courts described in clause 19.13(b) do not have jurisdiction.
