Agreement of use
Welcome to Hartley Knows.
We confirm that You wish to access Hartley Knows (the “Service”). Before You start please read the following Agreement and click on the “AGREE” button below if You wish to proceed with the use of this Service. Your access to and use of the Service is conditional upon Your acceptance and compliance with the terms, conditions, notices and disclaimers contained herein and within the screens of the Service. Your use of the Service will mean You accept these Terms and Agree to be bound by them.
Software and Site Licence Agreement
This Software and Site Licence Agreement (“Agreement”) governs Your Limited Trial use of Hartley Knows (the “Service”). If You have purchased Our Service, this Agreement will also govern Your purchase and ongoing use of the Service. By accepting this Agreement, either by clicking a box indicating Your acceptance or by executing an Order Form (“Order”) that references this Agreement, You Agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “You”, “Your” and “Yourselves” shall refer to such entity and its Affiliates. If You do not have such authority, or if You do not Agree with these terms and conditions, You must not accept this Agreement and may not use the Service. You may not access the Service if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Service for purposes of monitoring the Service’s availability, performance or functionality, or for any other benchmarking or competitive purposes.
1.1 “Affiliate” means any person or entity which directly or indirectly controls, is controlled by, is under common control of, is an agent of/to, employed by, subcontracted by/to, or commissioned by the subject entity, including in a voluntary capacity. “Control,” for purposes of this definition, means direct or indirect i).employment, ii). remunerated by, iii). commissioned by or iv). ownership control of more than 50% of the voting interests of the subject entity.
1.2 “Client” means the end User of the Service being the administrator, teacher, therapist, student, individual, (which may be You) and their staff , Affiliates or agents.
1.3 “Linked Files” means Your, Users or Third-Party files such as, Documents, Pictures, Images, HTML files, Links to Web pages; that are i). linked to a Site’s Licence within the Service and ii). are not embedded Data within the Service, but iii). are Link Directories to Your, Users’ or Third-Parties’ source files and iv). are as such hereby Agreed to be Solely under Your responsibility.
1.4 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful data entry or malicious code, files, scripts, agents or programs.
1.5 “Notification” means notice to be given under this Agreement in writing and either delivered by hand or sent by facsimile, e-mail or by mail.
1.6 “Off Line Ap” means the off-line Service application and Service user interface transferred from Your online licence via PC, to an off-line PC, PDA, Phone or other Windows, Apple or Linus enabled device used for data collection and/or data review or revision on site without active internet connection to the Service.
1.7 “Order” means the Ordering and/or purchasing documents, educational resources, training program or other products for purchases that are entered into between You and Us from time to time.
1.8 “Purchased Service” means the Site Licence/s, Annual Subscription, Educational Resource Materials, Training and Service that You or Your Affiliates purchase under an Order, as distinguished from those provided pursuant to a Limited Trial.
1.9 “Resell’ “Resale” or “Reseller” “Resell”/”Resale” means where You elect to on-sell Site Licence/s to Your Clients. “Reseller” means You where You perform the act of Resale.
1.10 “Service” means the online, Hartley Knows application, training and educational resource materials provided by Us and/or other designated agents, that are Ordered by You as part of a Limited Trial or under an Order, including associated Offline Ap and Site Licence/s but excluding Third-Party Products.
1.11 “Site Licence” or “Site Class Code” “Site Licence” means the data sets and Purchased Service associated with one property, one school site or a subset of one school, which are owned or managed by the Client and are accessed by Users within the Service. “Site Class Code” means the unique set of identifying alphanumeric characters that together with alphanumeric Username and Password provide Users access to an individual Site Licence within the Service for the subscribed class or student group.
1.12 “Trainer” or “Teacher” means the service provider who performs teaching work actions including use of the Hartley Knows application and use of Hartley Knows educational resource materials who may be You or Your staff, staff of the Client or a Third Party company.
1.13 “Third-Party Products” means imagery, documents, resource materials and software products that are provided by Third-Parties, and may be procured on Your behalf by Us for Your use within the Service, and are identified as Third-Party Products by copyright declaration within the Service screens or on items, and may include, but may not be limited to, images, maps, web links, software, documents, reports, educational resource materials and/or tools.
1.14 “Users” means individuals who are authorized by You to use the Service and who have been supplied Usernames, Passwords and Site Class Codes by You (or by Ourselves or Agents at Your request). Users may include but are not limited to You, Your employees, Teachers, Consulting Teachers, Therapists, Students, your child, Support Staff, Volunteers, Clients and Agents or Third-Parties who own intellectual property procured on Your behalf for use within the Service.
1.15 “We,” “Us” or “Our” means Us and our Agents being of Hartley Knows Pty Ltd ACN 615 802 492 whose registered office is 6 108-120 Young Street Frankston 3199 Australia.
1.16 “You” or “Your” means the individual, sole-trader, company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity.
1.17 “Your Data” or “Customer Data” means all electronic data or information submitted by You or Your assigned Users to view or access within the Service, but do not include Linked Files as outlined in 1.4.
- LIMITED TRIAL
2.1 Limited Trial or Demo Site Access. 2.1.1 We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) Our Notification of withdrawal of Your access to the Trial after Your acceptance of this Agreement or (b) the start date of any Purchased Service Ordered by You. 2.1.2 Additional trial terms and conditions may appear on the trial pages of the Service. Any such additional terms and conditions are incorporated into this Agreement and are legally binding.
2.2 Trial or Demo Data. 2.2.1 Any data You enter into the Service, and any Linked Files to the Service by or for You, during Your Limited Trial will be permanently lost at conclusion of the Trial. 2.2.2 You cannot transfer data entered or customizations made during the Limited Trial or Demo Site Access to the Service. 2.2.3 During the Limited Trial the Service is provided “as-is” without any Warranty.
- PURCHASED SERVICE
3.1. Provision of Service. 3.1.1 We shall make the Service available to You pursuant to this Agreement and the relevant Order/s during a Licence term. 3.1.2 You Agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. 3.1.3 We provide the Service to You as a non-exclusive, non-sublicensable and non-assignable right to use the Service. 3.1.4 Additional terms and conditions may appear on pages of the Service. Any such additional terms and conditions are incorporated into this Agreement and are legally binding. 3.1.5 When Notification of this Agreement has been provided to You, Payment of and acceptance of the relevant Order/s during a Licence term include and imply acceptance of this Agreement.
3.2. The Service and Site Licences. 3.2.1 Unless otherwise specified in the applicable Order, the Service is purchased as access to the Service with a specified, and limited number, of Site Licences for the use of specified limit of 30 students maximum per classroom subscribed per Site Licence. 3.2.2 Additional Site Licences and additional class subscriptions may be Purchased and added during the term of this Agreement at prices nominated by Us that may vary from time to time at Our sole discretion. 3.2.3 Site Licences are for designated property sites and cannot be split or shared by more than one Site. 3.2.4 Site Licences are capped at 30 students per class maximum but may be adjusted to a greater number within the one Site Licence upon Our approval and payment of any adjustments to the Order as We see fit. 3.2.5 You may Resell or charge Clients for their Site’s Licence but You must not claim or infer that You possess or transfer, in part or whole, any exclusive, or sublicensable and/or assigned rights to the Service as part of any Site Licence fee or Resale made by You. 3.2.6 You will make clear to Clients the terms and conditions of this Agreement and their requirement to be bound by them.
- USE OF THE SERVICE
4.1. You and Your Assigned Users. 4.1.1. User access codes provided by You to individual Users cannot be shared or used by more than one individual User. User access codes may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. 4.1.2 You accept full responsibility for access or withdrawal of access of Your assigned Users and their activity during any period of access to the Service.
4.2 Additional Responsibilities. 4.2.1 The Service to be supplied under this Agreement is at the sole discretion of Us and all or any individual elements of the Service may vary from time to time. 4.2.2 We will be responsible for the prompt replacement or correction of the Service so that the Service conforms to requirements of the Agreement. 4.2.3 From time to time upgrades to the Service and systems will be required, such upgrades will be performed by Us at a time solely of Our choosing. 4.2.4 We shall in no way be responsible or liable for the content, correction, deletion, destruction, damage, loss or failure to comply with laws or storage of any Customer Data. 4.2.6 In the event this Agreement is terminated for any reason, We will not be required to make available to You or the Client any files, data, attachments, links or images placed within the Service by You and Your assigned Users. 4.2.7 We reserve the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, non-payment. 4.2.8 We, at Our sole discretion, and without recourse by You or the Client, may terminate any User’s passwords, accounts or use of the Service if they are suspected to have breached or otherwise fail to comply with this Agreement. 4.2.9 You Acknowledge the Service including all associated programme code, user interface and all aspects of the Service’s System remains the sole property of Us and is not editable or configurable (beyond provisions provided within the Service’s interface) by You without written authorisation from Us. 4.2.10 You accept responsibility for Your assigned Users and hereby Agree to disseminate information on the requirements of this Agreement them. 4.2.11 You or any of Your assigned Users must notify Us promptly if they become aware of any services that do not conform to the requirements set out in this Agreement. 4.2.12 You Agree to take sole responsibility for all data placed on the Service and any actions or inactions that may flow from any actions relating to the data content, input, adjustment or deletion by You and Your Users of the Service and Agree all Users and Clients associated with Site Licences must use the Service only for their internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks. 4.2.13 You and Your assigned Users shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with their use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. 4.2.14 You and Your assigned Users shall: (i) notify Us immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Us immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by any Client or User; and (iii) not impersonate another Service User or provide false identity information to gain access to or use the Service. 4.2.15 You and Your assigned Users shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and/or rights to use of all Customer Data, Third-Party Products, Linked Files or any other data, attachments, links and images, and We shall not be responsible or liable for the content, accuracy, correction, deletion, destruction, damage, loss, failure to comply with laws or storage of any Customer Data. 4.2.16 Any breach of the Your payment obligations or suspected unauthorized use of the Service will be deemed a material breach of this Agreement. 4.2.17 You Agree and Acknowledge that We have no obligation to retain the Customer Data, and may delete such Customer Data, if You have materially breached this Agreement, including, but not limited to, failure to pay outstanding fees, and such breach has not been cured within 7 days of notice of such breach. 4.2.18 You may Re-sell Site Licences at a price of Your discretion. 4.2.19 You Agree that You do not have the rights to, and therefore may not, on-sell the Service’s Software CD or Licence or any related item such as the Off-Line Ap or other elements of the systems of the Service other than specific Site Licences as defined in 1.12.
4.3. Usage Limitations. 4.3.1 Service may be subject to other limitations, such as: We deliver the Services to You and Your Users via internet connection to You and Your Users’ PC or WEB enabled device/s and Off Line Ap devices. 4.3.2 We are not responsible for performance of the Service on Your, the Clients’ or any of Your assigned Users’ PCs or access devices, nor are We responsible for the performance or integrity of the Service connection and/or transfer or loss of any data to and from the Service. 4.3.3 We, in Our sole discretion, may restrict access to the Service or delivery at any time based on these limitations or other User hardware, platform or connection limitations governed by You, Your Users, Clients or Your Third-Party Providers that We deem may inhibit the Service.
- THIRD-PARTY PRODUCTS
5.1. Third-Party Products and Providers. 5.1.1 We may act as Your agent to procure Third-Party educational resource materials on Your behalf for Your Clients’ Site Licence/s as part of Your Order. 5.1.2 Therefore You hereby authorize Us to act as Your agent on behalf of Your Clients’ Site Licences and We have full power and authority to bind You and Your assigned Users to Third-Party Property Owners Agreements. 5.1.3 And if You subsequently dispute such power or authority, You shall be bound and liable for any failure to comply with the terms of any Third-Party Agreement. 5.1.4 Nothing shall serve to excuse Your obligation to make payment of any Third-Party License Fees not paid by Us on Your behalf as part of Your Order. 5.1.5 You and Your assigned Users Agree not to resell or reuse any Third-Party Products for commercial purposes beyond use within the Service and/or the Terms and copyright restrictions of the Third-Party Provider. 5.1.6 Unless otherwise specified in the Rights and Restrictions provided by Third-Party Property Owners, You and Your assigned Users may not, directly or indirectly, reproduce the Third-Party Products for any additional purposes or uses beyond the Service; such as Your web site, image compilations, screen shots, advertising or promotional material or on public access, industry, file-sharing or social networking websites. 5.1.7 You and Your assigned Users Agree that Third-Party Products shall not be used contrary to the Third-Party’s Property Rights and Restrictions and to abide by all the terms of Third-Party Products procured by Us for Your use within the Service. 5.1.8 We Agree to provide You details of any Third-Party’s Property Rights, Restrictions and Terms upon request for items We have procured on Your behalf. 5.1.9 No ownership or copyright in any Licensed Material shall pass to You under any circumstances of Your Order. 5.1.10 You and Your assigned Users must immediately notify Us if any person becomes aware or suspects that any unauthorized party that has gained access to Third-Party Products or if You or Your Assigned Users are wrongfully using any Third-Party Products, in whole or in part, or is violating any of the copyright or intellectual property rights of Us or Third-Party Product Providers, including, but not limited to, images, tools, marks and documents. 5.1.11 We do not make any other Warranties, express or implied, regarding Third-Party Products, licensed material or delivery systems, including, without limitation, any implied Warranties of merchantability or fitness for a particular purpose. We shall not be liable to You or any other person or entity for any punitive, special, indirect, consequential, incidental or other similar damages, costs or losses arising out of this Agreement, even if We have been advised of the possibility of such damages, costs or losses. No action, regardless of form or nature, arising out of this Agreement may be brought by or on behalf of You or Your assigned Users for more than two (2) years after the cause of action first arose. We Acknowledge some jurisdictions do not permit the exclusion or limitation of implied Warranties or liability for certain categories of damages.
5.2. Usage of Third-Party components. 5.2.1 “Agreed Usage” means for Your and/or Your Client’s own personal use for internal business purposes only. 5.2.2 The Client can use the Site Image and navigation tools provided by Third-Party Providers for internal Site use and navigation only. 5.2.3 You and/or the Client are not allowed to give access to or make reproductions of Site Image or navigation tools for external uses. 5.2.4 You and/or the Client has a non-exclusive, non-transferable licence to use the Site Image and navigation tools for the Agreed Usage. For the avoidance of doubt, the Service, Site Licence, Site Image and navigation tools shall not be resold beyond the end use Client, and You, the Client and Your assigned Users shall not: copy, mirror, broadcast, reproduce, frame, republish, download, store (in any medium), up-load to a third party, transmit, post, broadcast, distribute, show or play in public, adapt or change in any way the content of, or create a derivative work from any element of the Service or this Site Licence’s content including but not limited to content from Third-Party Providers. Please contact Us if alternative licensing is required. 5.2.5 You acknowledge that We, and any Third-Party Provider as noted on copyright notices within the Service, are the owners of all the intellectual property rights within the Service and Site Licence and agree not to do anything that is inconsistent with those rights. 5.2.6 You shall ensure that Site Image’s and navigation tool’s copyright notices stating that the copyrights of Third-Party Providers are not to altered, distorted or erased by You, Your Client and assigned Users. 5.2.7 You, Your Client and Your assigned Users must not i). display Our, or a Third-Party Provider’s, brand devices, images, marks or logos in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Ourselves or Third-Party Providers, other than your use of the Service, or that can be reasonably interpreted to suggest a Sites data content has been authored by or represents the views, assessment, opinions of, Us or Third-Party Provider’s. ii) use Our, or a Third-Party Providers, brand devices, images, marks or logos to disparage them, their products, Services. iii) display Our, or a Third-Party Provider’s, brand devices, images, marks or logos in a manner that is misleading, defamatory, infringing, libellous, disparaging, obscene or otherwise objectionable to them. iv) display Our, or a Third-Party Provider’s, brand devices, images, marks or logos in Your Site that violates any law or regulation. v) You or Your assigned Users may not delete or in any manner alter these trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. vi) delete, obscure, or in any manner alter any warning, notice (including but not limited to any copyright or other proprietary rights notice), or link that appears in the Service or the Content Or vii) remove, distort or alter any element of Our, or a Third-Party Provider’s, brand devices, images, marks or logos (this includes squeezing, stretching, inverting, discolouring, etc.).
5.3. Third-Party Access to the Service. 5.3.1 If You require us to enable Third-Party Products for use with Service, You Acknowledge that We may allow providers of those Third-Party Products access to Your Sites as required under their Terms and Conditions. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by a Third-Party Product Provider.
5.4. Third-Party Product Interoperation. 5.4.1 Any Service features that interoperates with Third-Party Products depend on the continuing effective functionality and availability of those Products for use within the Service and Your adherence to the Third-Party’s terms and conditions of use. 5.4.2 If any Third-Party Product lacks functionality, compatibility and/or ceases to be available on reasonable terms for the Service, We will in good faith endeavour to find a suitable replacement for such interoperation with the Service. However We may dramatically change or cease providing such Service features without entitling You to any refund, credit, or other compensation.
- FEES AND PAYMENT
6.1. Prices and Terms of Payment. 6.1.1 Prices and terms of payment for the Service are specified at the time of sale by Us. 6.1.2 You Agree that Your Order will correspond to Prices and Terms Agreed with Us at the time of sale. 6.1.3 You Agree that We should be allowed to directly contact any Client to seek payment of individual annual subscription fees to maintain provision of the Service beyond the first year if they are a separate entity and You fail to pay subscription fees on their behalf. 6.1.4 Prices may be subject to adjustment by Us without notice prior to Order or at the commencement of any new Agreement or at subscription renewal. 6.1.5 Without affecting its other rights under this Agreement, We will be entitled to interest on any payment, which is not made by the due date. Interest will be calculated at the rate of 12% per annum calculated from the due date until the date that payment is received by Us. 6.1.6 We will be entitled to suspend delivery of the Service if any payment for the Service is outstanding after the date upon which it became due. 6.1.7 We shall not exercise Our rights under Section 6.1.5/6 if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
- PROPRIETARY RIGHTS
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to You, Your Clients or Your assigned Users hereunder other than as expressly set forth herein.
7.2. Restrictions. 7.2.1 You and Your assigned Users shall not permit any third party to access the Service except as permitted herein, in an Order or by written authorization from Us. 7.2.2 You and Your assigned Users shall not copy any content provided by Us or Third-Party Providers, features, functions or graphics of the Service or create derivate works based on the Service or its content. 7.2.3 You, Your Clients and Your assigned Users shall not copy or mirror any part or content of the Service, other than copying Site Licence data to Your or Your assigned User’s Off Line Ap for interaction on off line User platforms. 7.2.4 You, Your Clients and Your assigned Users shall not reverse engineer the Service, or access the Service in order to build a competitive product or Service, or copy any content, features, functions or graphics of the Service.
7.3. Ownership of Your Data. 7.3.1 We Acknowledge that We do not own rights or title to Your Customer Data including any Linked Files. 7.3.2 All Customer Data, or Linked Files that the You and Your assigned Users, including Us on Your behalf, submit to the Service in the course of using the Service remains as the intellectual property of the party holding those rights upon input or Linking to the Service.
7.4. User Feedback. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by You, Your Clients and Your assigned Users, relating to the operation of the Service.
8.1. Definition of Confidential Information. 8.1.1 As used herein, “Confidential Information” means all confidential information disclosed by You, Your Clients or Your Assigned Users (“Disclosing Party”) to Us (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. 8.1.2 Your Confidential Information shall not include Your school or class Data or Assessment on the Service 8.1.3 Your Confidential Information may only take the form of Linked Files unless otherwise mutually Agreed. 8.1.4 This Confidential Information may include Linked Files as defined in clause 1.4. 8.1.5 In addition to exclusions in 8.1.2, Confidential Information shall not include any information that (i) is or becomes generally known to the public, (ii) was known by Us prior to its disclosure by the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by Us.
8.2. Protection of Confidential Information. 8.2.1 As Your Confidential Information may only take the form of Linked Files unless otherwise mutually Agreed, You may apply Your own Data security protocols to these Linked Files to restrict access to the information contained within them to a level and degree that You deem fit. 8.2.2 You hereby Agree that storage and management of all Your, Your Clients’ and Your Assigned Users’ Linked Files as well as access, functionality, integrity and confidentiality is entirely Your responsibility or that of Your Clients and Assigned Users. 8.2.3 Therefore You hereby Agree that We are to be held in no way responsible for the management, functionality, integrity and confidentiality of any of Your Linked Files or the information and data contained within them.
8.3. Compelled Disclosure by Law. 8.3.1 We may disclose Confidential Information of the Disclosing Party if We are compelled by law to do so, provided We give the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If We are compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse Us for Our reasonable cost of compiling and providing secure access to such Confidential Information.
- WARRANTIES AND LIABILITIES
9.1. Warranties and Liabilities. 9.1.1 By selecting “AGREE” You represent and Warrant that You have the legal power and authority to enter into this Agreement. 9.1.2 We represent and Warrant that We will act in accordance with this Agreement. 9.1.3 You Warrant that You, Your Clients and Your assigned Users will abide by this Agreement and Our Proprietary Rights, and those of Third-Party Products and Providers outlined in clause 5 of this Agreement. 9.1.4 You accept responsibility for the content and actions of each individual User You assign access to the Service and hereby Warrants and Indemnifies Us against any claim or action that may arise from You or Your assigned Users, staff or agents access or usage of the Service. 9.1.5 We make no representation, Warranty, or Guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service or any content within the Service or materials, staff or agents promoting it. We do not represent or Warrant that (a) the use of the Service will be secure, timely, uninterrupted or error-free or operate in combination with any hardware, software, system, data or communications network, (b) the Service will meet the User’s requirements or expectations, (c) any stored data will be retrievable, accurate or reliable, (d) the quality of any products, Services, information, or other material purchased or obtained by Us as Your agent or by You, Your Clients or any of Your assigned Users through the Service will meet their requirements or expectations, (e) errors or defects will be corrected, or (f) the Service or the server(s) that make the Service available are free of viruses or other harmful components. The Service and all content is provided to You, Your Clients or any of Your assigned Users strictly on an “as is” basis. All conditions, representations and Warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied Warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Ourselves. No advice or information, whether oral or written, obtained by You, Your Clients or any of Your assigned Users from Us or any agent or Third-Party or through the Service shall create any Warranty not expressly stated in this Agreement. 9.1.6 In no event shall any aggregate liability exceed the amounts actually paid to Us by You or the Client in the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall We be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including injury, damages, fines, third party claims, legal actions, loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with Customer Data or any aspect of the Service, including but not limited to the use or inability to use the Service, or for any data, or File Links, or content obtained from or through the Service, any interruption, inaccuracy, error or omission, regardless of cause/s in the content, even if We have been previously advised of their presence and possibility of such damages.
9.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW
- PRICE, TERMS AND TERMINATION
10.1. Price of the Service. 10.1.1 Prices and terms of payment for the Service are specified at the time of sale by Us and also as contained in Clause 6. 10.1.2 Service Prices and/or Annual subscription fees may be subject to adjustment, at Our sole discretion upon renewal of subscription fees or at the commencement of any new Agreement.
10.2. Term of Agreement. This Agreement commences on the date You accept it and continues until all User access granted in accordance with this Agreement have expired or been terminated. If You elect to use the Service for a Limited Trial period and do not purchase a Licence before the end of that period, this Agreement will terminate at the end of the Limited Trial period.
10.3. Termination for Cause. 10.3.1 We may terminate the Service and this Agreement by notice to You or the Client if You or the Client are overdue in making any payment, or if You, any of Your Clients or Your assigned Users are suspected of or commit any material breach of this Agreement and (in the case of a breach capable of remedy) fails to remedy the breach within 30 days of being requested to do so in writing. 10.3.2 You, Your Clients or Your assigned User/s may terminate this Agreement if We fail to perform Our obligations or commit a material breach of this Agreement and (in the case of a breach capable to remedy) fail to remedy the breach within 30 days of being requested to do so in writing. 10.3.3 Either You, Your Client or Us may terminate this Agreement by notice if the other party becomes insolvent or has a receiver or liquidator appointed or enters into an arrangement with its creditors or the ownership of the property associated with an individual Site’s Licence is transferred to another party. 10.3.4 We may terminate this Agreement in the circumstances contemplated by Clause 6.1.5/6.
10.4 Force Majeure. 10.4.1 We shall not be liable to You, Your Clients or any of Your assigned Users for failure to deliver nor shall You or any of Your Clients or assigned Users be liable to Us to take Services Ordered under this Agreement where: (a) The failure is due to a cause outside that party’s control including, but not limited to, acts of nature, war, terrorism, sabotage, fire, explosion, flood, action of any governmental authority, embargo, failure of raw materials supply, strike or labour dispute (except of the workforce of the party claiming force majeure), and (b) It gives notice of the event as soon as practicable to the other party. A party claiming force majeure must use all reasonable efforts to avoid or mitigate the effect of the force majeure event. 10.4.2 If a force majeure event continues for more than 180 days either party may give notice to the other to terminate this Agreement.
10.5. Refund or Payment upon Termination. Upon any termination for cause by You, or Your Client/s We shall not be liable to refund to You or Your Client/s any fees covering the Service or any unused Site Licence Fees at or prior to the time of termination or after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering Your Orders after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
10.6. Return of Your Data or Customer Data. 10.6.1 In the event this Agreement is terminated for any reason, We will not be required to make available to any party any data files (“Your Data” or “Customer Data”) from within the Service entered by You, Your Clients and Your assigned Users. 10.6.2 We reserve the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, non-payment. 10.6.3 Upon termination, You, Your Clients’ and Your assigned Users’ right to access or use of Customer Data immediately ceases. 10.6.4 Prior to termination, upon request by You or Your Client, We may make available to You or Your Client a file of Customer Data in comma separated value (“.csv”) format. Any such request will be subject to additional fees for the production of these files and will be based on the Agreement and full payment of these fees prior to creation or delivery of any/all .csv file/s. 10.6.5 Upon termination, We shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, have the rights to delete all Customer Data in Our systems.
10.7. Surviving Provisions. Section 1, 4.2, 5, 6, 7, 8 , 9, 10, 11 and 12 shall survive any termination or expiration of this Agreement.
- WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
11.1. General. This Agreement shall be governed by and construed in accordance with the laws of Victoria and the parties submit to the exclusive jurisdiction of the courts of the state of Victoria, Australia.
11.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email. Notices to You shall be addressed to the Admin User designated by You within the Service for Your account administration.
11.3. Agreement to Governing Law and Jurisdiction. Each party Agrees to the applicable governing law nominated in Clause 11.1 above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable court above. Other jurisdictions may be Agreed to prior to Acceptance of this Agreement by mutual consent.
11.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
- GENERAL PROVISIONS
12.1. Compliance. You, Your Clients and Your assigned Users shall comply with the applicable laws and regulations that may relate to the Service or Mobile Communications of the country and applicable jurisdictions of the location where the Service is accessed and/or used.
12.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties.
12.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.5. Legal Fees. You shall pay on demand all of Our reasonable legal fees and other costs incurred by Us to collect any fees or charges due to Us under this Agreement following Your breach of Section 6.
12.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7. Failure to Enforce. Any failure by Us to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
12.8. Entire Agreement. This Agreement, including i). all exhibits, ii). additional rights and restrictions for content provided by Us or Third-Party Providers on or within the Service’s pages, iii). addenda hereto and iv). all Orders, constitutes the entire Agreement between the parties and supersedes all prior and contemporaneous Agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order, the terms of such exhibit, addendum or Order shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your Order or other Order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.