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TERMS AND CONDITIONS


 

1.              ACCEPTANCE

1.1          These Terms and Conditions (Terms) form the agreement (Agreement) between Daniel Webster trading as Serendesk (ABN  43 015 808 836) (referred to as “Serendesk, we or “us”) and the user (referred to as “User” or “you”), collectively referred to as the Parties or each a Party.

1.2          Serendesk owns the web based software (Software) which is accessible at www.serendesk.com.au (Website).

1.3          The User wishes to use the Software.

1.4          This Agreement sets out the Terms upon which Serendesk has agreed to grant the User a right to use the Software.  These Terms are binding on any use of the Software and apply to the User from the time that Serendesk provides the User with an account to access and use the Software (Account).

1.5          By using our Software and subscribing on our Website, you acknowledge that you have read, understood, and accepted these Terms and you have the authority to act on behalf of any person or entity for whom you are using the Software, and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Software.

1.6          Serendesk reserves the right to make changes to these Terms at any time, effective upon the posting of modified Terms. Serendesk will make every effort to communicate these changes to the User via email. It is the User’s obligation to ensure that the User has read, understood and agreed to the most recent Terms available on our Website.

1.7          These Terms incorporate the Privacy Policy, Acceptable Use Policy and Website Terms and Conditions, in each case, as amended from time to time, which are available on the Website.

2.              SOFTWARE AND SERVICES

2.1          The Software is a web based platform that includes the following services:

(a)           converting emailed customer support requests into tasks;

(b)          converting user’s customer support messages into email;

(c)           storing the user’s customers details;

(d)           storing user’s file attachments and uploaded files;

(e)          providing the user with tracking, searching, reporting and notification capabilities for the tasks; and

(f)          providing a web based user interface,

collectively, the platform (referred to as the "Platform" or the "Services").

2.2          The Software is provided to the User via the Website. 

2.3          The User will only be able to access the Software by completing an online subscription.

3.              ONLINE SUBSCRIPTION AND ACCOUNT

3.1          When you subscribe online, the Website will request that you provide personal information for subscription purposes. This personal information that we collect, and how we deal with it, is set out in the Privacy Policy available on our Website.

3.2          Information that is created when you subscribe, such as log in details and passwords (User Information) are stored in servers in Australia. We will take steps to ensure that User Information is kept secure and confidential, by a host of security measures.

3.3          After the 1 month free trial period, if you wish to continue using our Software, you will be required to pay a fee for your subscription (Subscription Fee) as set out on our Website. You will be given an Account to access and use the Software once you have signed up for the 1 month free trial.

3.4          Upon subscription, the User obtains a valid Account to use the Software, and Serendesk agrees to grant to the User a royalty free, worldwide, revocable, non-exclusive, transferable right in the form of a license to use the Software (License) which cannot be sub-licensed to third parties.

3.5          The Licence granted by us to you is subject to the following limitations:

(a)           an individual’s log-in details cannot be  used by more than one individual simultaneously; and

(b)          you are responsible to ensure that the Software is used in a manner agreed upon within this Agreement by all parties that you provide with Serendesk log on details, and you are responsible for any breach of these Terms and Conditions by any such party.

4.              PAYMENT

4.1          If you wish to continue using the Software after the 1 month free trial period you agree to pay the Subscription Fee required to enable you further access and use of the Software.

4.2          You will be required to make payment by way of Paypal and you must make the payment within the timeframe set out on the invoice.

4.3          Customers can authorise automatic payments or manual payments via their Pay Pal account.

4.4          If payment is not made within 30 days of due date, we may lock your Account without notice to you, in which case you will not be able to access your Account or use our Software. Any of the User’s data on the Account will be deleted and not recoverable after 60 days, from the date that the Service is suspended or terminated.

5.              TERM AND TERMINATION

5.1          Your Account will continue for the minimum term which you subscribed for.

5.2          Following the end of the minimum term for which you subscribed, your contract will automatically continue for the same duration, and at the current applicable charges, stated on your invoice,  unless you have provided notice requesting service cancellation. You will be notified with a reminder notice of the renewal date and we will provide you the ability to cancel your Service.

5.3          To terminate an Account, the User must log into their account area https://accounts.serendesk.com.au, and under the service they wish to terminate click on the ‘Manage’ option then click on the ‘Cancel’ menu for options.

5.4          The User will have the option to choose to terminate their account immediately or at the end of the billing cycle. Automatic payments will cease at the end of the billing period that Serendesk is notified of the User’s intention to terminate.

5.5          Subject to the "14 Day Money Back Guarantee", monthly, annual or bi-annual fees are not refundable if your Service is terminated part way through a payment period.

5.6          It is the User’s responsibility to retrieve all necessary data from their Account prior to termination.

5.7          We may terminate the Terms immediately, in our sole discretion, if:

(a)           you breach any of these Terms and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;

(b)          you breach any of these Terms and the breach is not capable of being remedied;

(c)           we reasonably suspect that you are attempting to reverse engineer the Software that is provided to you;

(d)          we consider that a request for a License is inappropriate, improper or unlawful;

(e)          you fail to provide us with clear or timely instructions to enable us to provide you with a License;

(f)            we consider that our working relationship has broken down including a loss of confidence and trust;

(g)           where the User becomes liable to any bankruptcy, insolvency or external administration;

(h)          Serendesk is made aware that a court order, judgement, decree, determination or otherwise has been made to the effect that the User's data is illegal, offensive, objectionable or in breach of a third party’s rights; or

(i)            for any other reason outside our control which has the effect of compromising our ability to provide you with the required Software or License within a required timeframe.

5.8          On termination or completion of the Services, we may retain your documents (including copies) as required by law or regularity requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.

6.              14 Day No Questions Asked Money Back Guarantee

6.1          Users who have purchased the Software are eligible to claim a "14 Day No Questions Asked Money Back Guarantee".

6.2          In order to claim a refund:

(a)           you must send an email to accounts@serendesk.com.au within 14 days from the date that the Service was provisioned (as defined by the invoice creation date). You will then be provided with an acknowledgment receipt with a unique identification number. If you do not receive the acknowledgement receipt, your request has not reached our system and you should either resend your email or call us immediately;

(b)          upon receipt, the request will be checked for eligibility. If the request is determined to be ineligible (meaning it was received after the 14 days from the invoice creation date), the request will be treated as a standard cancellation; and

(c)           if the request is deemed eligible a refund of the Subscription Fee will be issued to you.

7.              USER OBLIGATONS

7.1          The User warrants that all information provided to Serendesk is true, accurate and complete.

7.2          You acknowledge and agree that:

(a)           you are authorised to use the Software and to access any information or data that you input (Data) into the Software, including any Data which has been inputted into the Software by any person you have authorised to do so;

(b)          the Software must only be used for your own lawful internal business purposes, in accordance with these Terms;

(c)           all usernames and passwords required to access the Software are kept secure and confidential;

(d)          if there is any unauthorised use of your passwords or any other breach of security, you will immediately notify Serendesk of such activity;

(e)          the Software operates within the User’s computing or smart device system (End User System);

(f)            the reliability of the Software is dependent upon the User’s configuration and implementation of the Software; and

(g)           it is the responsibility of the User to determine that the Software meets the needs of the User and their business, and is suitable for the purposes for which the Software is used.

7.3          You may use the Software on behalf of others, but if you do so you must ensure that you are authorised to do so and that all persons comply with and accept all terms of this Agreement that apply to you.

7.4          Serendesk has no responsibility to any person or entity other than you and nothing in this Agreement confers, or purports to confer, a benefit on any person or entity other than you.

7.5          If you provide Serendesk log on details to any party other than yourself, or if you use the Software on behalf of or for the benefit of anyone other than yourself, you agree that:

(a)           you are responsible for ensuring that you have the right to do so;

(b)          Serendesk does not warrant the fitness for purpose or suitability of the Software for such third party’s purposes and third parties may not rely on Serendesk for any purpose;

(c)           you are responsible for authorising any person who is given access to your Data, and you agree that Serendesk has no obligation to provide any person or entity with access to such Data without authorisation from you and may refer any requests for access to the Data to you to address;

(d)          you are responsible for any breach of these Terms and Conditions by any such party; and

(e)          you will indemnify Serendesk, on first demand, against any and all claims, expenses, liabilities or losses arising out of in connection with Serendesk’s refusal to provide any persons with access to your Data in accordance with these Terms and Serendesk making Data available to any person with authorisation from you.

7.6          The use of the Software is at the User’s own risk.

7.7          You remain solely responsible for complying with all applicable laws. It is your responsibility to ensure that the storage of and access to your Data via the Software and the Website comply with laws which are applicable to you, including any laws requiring you to retain records of your Data.

7.8          Serendesk performs daily backups, if the User requires additional levels and forms of safeguards or back-ups it is the responsibility of the User to have their own safeguards and back up processes in place

7.9          We do not warrant or represent that the Software will be compatible with any application, program or software not specifically identified as compatible as displayed on the Website at www.serendesk.com.au .

8.              PROHIBITED USE

8.1          You acknowledge and agree that you will not:

(a)           attempt to circumvent or disable the Software or any technology features or measures in the Software by any means or in any manner;

(b)          attempt to modify, copy, adapt or reproduce the Software except as necessary to use it for normal operation;

(c)           attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;

(d)          distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Software to any third party (except as permitted under this Agreement);

(e)          remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or used in connection with the Software;

(f)            use the Software in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;

(g)           take any action that interferes, in any manner, with Serendesk’s rights with respect to the Software;

(h)          attempt to undermine the security or integrity of Serendesk’s computing systems or where the Software is hosted by a third party, that third party’s computing systems and networks;

(i)            use, or misuse, the Software in any way which may impair the functionality of the Software, Website, or other systems used to deliver the Software or impair the ability of any other user to use the Software or Website;

(j)            attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the License for the Software is executed; or

(k)           transmit, or input into the Platform or Website, any files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).

8.2          In addition, title, ownership rights and Intellectual Property rights in and to any content displayed on the Website, or in the Software, or accessed through the Website, or the Software, are the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such content.

8.3          You acknowledge that any breaches of this clause may lead to termination of this Agreement.

9.              CONFIDENTIAL INFORMATION

9.1          Subject to sub-clause 9.2, the User agrees:

(a)           not to disclose the Confidential Information to any third party at any time;

(b)          to use its best endeavours to protect the Confidential Information from any unauthorised disclosure;

(c)           only to use the Confidential Information for the purpose for which it was disclosed by Serendesk and not for any other purpose; and

(d)          to be responsible for and assume liability in relation to each of its employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out in this Agreement.

9.2          The User’s obligations set out in sub-clause 9.1 do not apply to Confidential Information:

(a)    that is already in the public domain, except as a result of the actions of the User in breach of any of the Terms of this Agreement;

(b)    received from a third party, except where there has been a breach of confidence leading to its disclosure; or

(c)     that must be disclosed by law, provided that the Users reveals only so much of the Confidential Information as the User is required by law to disclose and gives sufficient notice to Serendesk in order to allow Serendesk to object to, or otherwise prevent, the Confidential Information being disclosed.

9.3          This clause will survive termination of this Agreement.

10.          PRIVACY POLICY

10.1       We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines, as set out in our privacy policy which is available on our Website.

10.2       You will be taken to have read the terms of the Privacy Policy when you accept these Terms.

11.          INTELLECTUAL PROPERTY

11.1       Title to, and all Intellectual Property rights in the Software, the Website, and any documentation relating to the Software, remain the property of Serendesk and its successors and permitted assigns. Your right to use such Intellectual Property is subject to the terms of this Agreement.

11.2       You grant Serendesk a non-exclusive, worldwide, royalty free license to use any Intellectual Property which subsists in the Data you provide in connection with the use of your Account and the provision of the Services, including copyright in any third party logos or other materials.

11.3       Title to and all Intellectual Property rights in any data you input into the Software remain your property. However, your access to the data and continued use of the Software is contingent on timely payments of your Subscription Fee.

11.4       You grant Serendesk a licence to use, copy, transmit, store, and back-up your User Information and data for the purposes of enabling you to access and use the Software and for any other purpose related to provision of Services to you and the performance of our obligations under this Agreement.

11.5        Serendesk will endeavour to prevent data loss, however, as the Software operates as a web-based service, with some functionality provided through third parties, Serendesk does not make any guarantees that there will be no loss of data and does not represent or warrant that access to the Software, the Data or an Account will be available without interruption. It is advisable that the User  maintain copies of all data which is inputted into the Software.

12.          UPDATES

12.1       You acknowledge that from time to time we may apply upgrades or updates to the Software (Updates).  Any such Updates are provided to you free of charge. These Updates may result in changes to the appearance and/or functionality of the Software.

12.2       We will endeavour to give you reasonable prior electronic notice of the installation of any significant update to the Software.  Such notice shall include details of any specific changes to the functionality of the Software resulting from the installation of the Update.

12.3       If you wish you can Upgrade your service in order to access additional functionality with payment of an additional charge. Please see the Website for details.  

12.4       The Software may contain automatic communications features which relay certain non-personally identifiable information to Serendesk in connection with the operation of the Software.  This information may include your Software settings and what version of the Software you are using. Serendesk may use this information for research purposes including statistical analysis of aggregate customer behaviour.

13.          AVAILABILITY OF PLATFORM AND WEBSITE

13.1       Serendesk intends that access to the Platform and the Website should be available 24 hours a day. Outside of the hours 8am to 8pm (time in NSW, Australia), it is possible that the Platform or the Website will be unavailable to due to maintenance or other development activity.

13.2       Where possible, Serendesk will provide notice to its Users of any maintenance or development activity in advance by email. 

13.3       Serendesk warrants that your uptime availability will be at least 98% each month except where failure results from:

(a)           failure or malfunction in relation to any device or equipment, any software or power supply outside our control, unless caused by our wrongful act or omission;

(b)          your act or omission or that of a person under your direction or control;

(c)           general scheduled maintenance completed within the notified maintenance window;

(d)          a requirement, direction or any other order issued by an authority with jurisdiction over the service; or

(e)          unauthorised or illegal access by any third party to the systems being used to provide the services including virus dissemination, hacking, cracking, and denial of service attacks.

13.4       The uptime service level within a specific month is not met if the Software cannot be reached, in excess of 28.8 minutes x the days within any given month (e.g. April 28.8 x 30 = 864 minutes, or 14.4 hours).

 

 

 

 

13.5       As your sole remedy for failure to meet the uptime service level within a given month, we will credit your account with a percentage of the monthly service fees as set up below:

Outage (in percentage)          Service Credit (percentage of monthly fee)

2 – 10 %                               10% credit

11 - 20%                                   20% credit

21 – 30 %                                 40% credit

>31%                                         50% credit

13.6       Processing of your claim will occur upon the formal request from the User via written correspondence through Serendesk support channels. This request will only be accepted if it is made within the same calendar month or the following month as the relevant incident.

13.7       At your request, Serendesk will investigate any report of downtime, and attempt to remedy any downtime expeditiously. If Serendesk reasonably determines that all facilities, systems and equipment are functioning properly, and that downtime arose from some other cause, we may at our discretion continue to investigate the downtime at your request and expense.

14.          TECHNICAL SUPPORT SEVERITY LEVELS

14.1        Problem Severity Level 1 problems are associated with:

(a)           services, as a whole, are non-functional or are not accessible and it is not related to issues relating to the User’s internet, network or other related service;

(b)          unauthorised exposure of all of or part of the User's Data; or

(c)           loss or corruption of all or part of a User's Data.

14.2       The initial response time for Problem Severity Level 1 is 2 hours.  We will work to resolve the request or the parties will mutually agree upon a schedule within which to resolve the request.

14.3       Problem Severity Level 2 problems are associated with significant and/or ongoing interruption of a User’s use of a critical function of the Services and for which no acceptable work-around is available.

14.4       The initial response time for Problem Severity Level 2 is 4 hours.  We will work to resolve the request or the Parties will mutually agree upon a schedule within which to resolve the request.

14.5       Problem Severity Level 3 is associated with a problem that is:

(a)           minor and/or a limited interruption of a User's use of a non-critical function of the Services; or

(b)          any other problems which are not considered by us a general enquiry and does not fall into Problem Severity Levels 1 or 2.

14.6       The response time for a Problem Severity Level 3 is 72 hours. The Parties will mutually agree upon a schedule within which to resolve the request.

14.7       General enquiries are associated with inquires or questions pertaining to the Service.  We will do the best we can to follow up general enquiries, however there is no specific response time.

15.          TECHNICAL SUPPORT

15.1       For general non-urgent support (for use when requiring non-urgent support Level 3 Problem Severity) please contact Serendesk either via email Support@serendesk.com.au or via phone on 1300 72 888 3.

15.2       Serendesk offers Users 24 hour priority urgent support (available outside of NSW business hours, during weekends, and NSW Public Holidays) for use only in urgent instances of Level 1 and 2 Severity. Urgent 24 hour contact details can be found via the Website or by calling the Serendesk Support phone number (1300 72 888 3) and listening for instructions on the after hour’s phone message. Prior to logging the issue, please check that your local internet connection is turned on and functioning.

15.3       Non-urgent support will be available within Australian business hours, 5 days per week (Monday to Friday, excluding NSW public holidays) and urgent support (Level 1 Problem Severity) will be available 24 hours/7 days per week. 

15.4       We do not offer trouble shotting services for Users where:

(a)           the issue relates to your computer software (other than the Software), hardware, internet network, or internal network; or

(b)          you choose to use a legacy program which Serendesk no longer offers.  Serendesk may discontinue support or negotiate a mutually agreed fee with you to continue to provide support.

16.           DATA EXPORTING AND IMPORTING

16.1       Raw data can be requested and provided to you in an excel or CSV format.

16.2       Upon email request from you, we will provide you with your raw data within the first instant free of charge. On second and subsequent requests for raw data a nominated fee is applicable. Please see the Website for the current fee.

16.3       Individual arrangements with you regarding method of delivering raw data will be required and the delivery time frame may vary depending on size of the data file.

16.4       Serendesk currently does not offer a data importing service for Users.

17.          BACK UP AND RESTORATION

17.1       Point in time back-ups are taken every 24 hours for the purpose of recovery in the event of application failure. Backups are encrypted and stored within a location separate from the Data Centre.  If requested, your service's database can be rolled back to a time within the previous 7 day period for an applicable fee; please see  our Website for current fee. Backups are stored for 7 days before being deleted.

17.2       As a courtesy User Data is stored within the database for 60 days after account deactivation. After this time data will be deleted and once deletion has occurred this data cannot be recovered.

18.          FEEDBACK AND DISPUTE RESOLUTION

18.1       Your feedback is important to us.  We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact us.

18.2       If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:

(a)           The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute.  The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).

(b)          If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of NSW to appoint a mediator.  The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.

18.3       Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.

19.          LIMITATION OF LIABILITY AND DISCLAIMERS

19.1       Serendesk and the User agree that Serendesk’s liability for the Services provided via the Platform and the Website is governed solely by the Australian Consumer Law to the extent applicable, and this Agreement.

19.2       You acknowledge that whilst Serendesk will take reasonable steps to ensure that the Software will be fit for the purposes as advertised, Serendesk gives no guarantees that:

(a)           the Software will meet your requirements as the functionality of the Software is dependent upon configuration with the End User System and other components;

(b)          the Software will work in each of your desired use case scenarios; and

(c)           the Software can be executed on every operating system, as it is impossible to test each variant.

19.3       The Software uses third party hosting services which are provided without any sort of warranties, and Serendesk cannot ensure that these third party hosting services are provided free of defect or without interruption.

19.4       Serendesk does not warrant that use of the Platform will be uninterrupted or error free. The operation of the Platform is dependent on public telephone services, computer networks, the Internet, which can be unpredictable and may from time to time interfere with the use of the Service. Serendesk accepts no responsibility for any such interference or prevention of your use of the Platform.

19.5       Serendesk Software is complex, and all complex software may never be wholly free from defects, errors or bugs, and as such Serendesk does not warrant that the Software will be wholly free from defects, errors or bugs and unexpected interruptions may occur. 

19.6       All risk arising out of the use or performance of the Software remains with you. You understand and agree that the use of the Software, material or data downloaded or otherwise obtained through the use of the Software, is at your own discretion and risk and that you will be solely responsible for any infections, contaminations or damage to your computer, system or network. Serendesk is not responsible or liable for delays, inaccuracies, errors or omissions arising out of your use of the Software, any third party software or operating system.

19.7        Serendesk has implemented and will maintain security systems for the transmission of information, consisting of encryption and "firewall" technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. Serendesk does not guarantee the security of the Services and Serendesk will not be responsible in the event of any infiltration of its security systems, provided that Serendesk has used commercially reasonable efforts to prevent any such infiltration. You acknowledge and agree that you, and not Serendesk is responsible for the security of data or any other information stored on your computers, devices or servers, and that Serendesk is not responsible for any other party's computers, devices or servers.

19.8       To the maximum extent permitted by applicable law, Serendesk and its licensors disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party intellectual property rights or lack of viruses, for the Software. In no event will Serendesk or its licensors be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever arising out of this Agreement, the use of or inability to use the Software, even if Serendesk has been advised of the possibility of such damages.

19.9       The Software is not intended for use in the operation of medical instruments, water craft, military installations, warfare equipment, industrial control systems and or SCADA systems and or robotic systems, surgical/medical application or equipment, artificial intelligence application or system, gambling/wagering system, and prototype, experimental or single product items, nuclear facilities, aircraft navigation or communications systems or air traffic control machines or any other machines in which case the failure of the Software could lead to death, personal injury or severe physical or environmental damage.

19.10   The User acknowledges that Serendesk may pursue any available equitable or other remedy against you as a result of a breach by the User of any provision of this Agreement.

19.11   Serendesk or its licensors’ liability for breach of any of its obligations under this Agreement for the Software, or breach of any warranty implied by law, will be limited, to the extent permitted by law, to the total price paid for the License to execute the Software or any related Services. Serendesk’s total liability to you for all damages in connection with the Software will not exceed the price paid by you under this Agreement for the Software. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

19.12   The User acknowledges and agrees that Serendesk will not be liable for any non-compensatory damages including punitive, aggravated, multiple, exemplary, liquated or any other non-compensatory damages or the consequences of non-payment.

20.          AUSTRALIAN CONSUMER LAW

20.1       Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).  

20.2       Nothing in these Terms removes your Statutory Rights as a consumer under the ACL. You agree that our liability for Services provided to consumers is governed solely by the ACL and these Terms.  We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.

20.3       Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied; and we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.

20.4       If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the services for or for a result which you have told us you wish the services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our services is limited to us re-supplying the services to you, or, at our option, us refunding to you the amount you have paid us for the services to which your claim relates.

21.          INDEMNITY

21.1       You will be liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from: (i) any information that is not accurate, up to date or complete or is misleading or a misrepresentation; (ii) any breach of these Terms; (iii) and any misuse of the Software and/or License; from or by you, your employees, contractors or agents.

21.2       You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our Software and License including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us. 

21.3       The obligations under this clause will survive termination of these Terms.

22.          NOTICE

22.1       Any notice required or permitted to be given to the User under these Terms will be addressed to the User at the email address provided by the User when requesting a License. 

23.          RELATIONSHIP OF PARTIES

23.1       Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party.

23.2       The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.

24.          RIGHTS OF THIRD PARTIES

24.1       Any person or entity who is not a party to these Terms has no right to benefit under or to enforce any of these Terms.

25.          ASSIGNMENT

25.1       This Agreement is personal to the Parties.  A Party must not assign or deal with the whole or any part of its rights and/or obligations under this Agreement without the prior written consent of the other Parties.

25.2       Any purported dealing in breach of this clause is of no effect.

26.          WAIVER OR VARIATION OF RIGHTS

26.1       Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.

26.2       A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.

27.          POWERS, RIGHTS AND REMEDIES

27.1       Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party.  Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.

28.          FORCE MAJEURE

28.1       Neither Party will be liable for any delay in performing any of its obligations under this Agreement if such delay is caused by circumstances beyond the reasonable control of the party so delaying, and such party will be entitled to a reasonable extension of time for the performance of such obligations.

29.          CONSENTS AND APPROVALS

29.1       Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.

30.          FURTHER ASSURANCE

30.1       Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to this Agreement.

31.          ENFORCEABILITY

31.1       If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provisions in question will not be affected.

32.          COUNTERPARTS

32.1       This Agreement may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Agreement.

33.          ENTIRE AGREEMENT AND UNDERSTANDING         

33.1       The date of this Agreement is the date that these Terms are accepted by the User.

33.2       In respect of the subject matter of this Agreement:

(a)           this Agreement contains the entire understanding between the Parties; and

(b)          all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement.

34.          GOVERNING LAW AND JURISDICTION

34.1       This Agreement is governed by the laws of NSW and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in NSW.

35.          DEFINITIONS

Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential".

Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.

 

Last update: 20 February 2015