(1) sets out the terms and conditions upon which we agree to grant you a right to use the Software as a service, as described on the Site ( SaaS Services) and provide any other services as set out in this Agreement (together with the SaaS Services, the Services); and
(2) are binding on you from the date (Effective Date) on which we provide you with an account to enable you to access and use the Services (Account) until the date on which your Account is terminated in accordance with this Agreement (Term).
(1) warrant to us that you have reviewed this Agreement including our Website Terms of Use and Privacy Policy, available on the Site, (with your parent or legal guardian if you are under 18 years of age), and you understand them;
(2) warrant to us that you have the legal capacity to enter into a legally binding agreement or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access and use the Services and they have agreed to this Agreement on your behalf;
(3) warrant to us that you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services;
(4) warrant to us that you have all hardware, software and services which are necessary to access and use the Services; and
(5) agree to use the Services in accordance with this Agreement.
(1) use the SaaS Services in any way which is in breach of any applicable Laws, including Laws for running competitions, or which infringes any person's rights, including Intellectual Property rights;
(2) use the SaaS Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
(3) use the SaaS Services in any way that damages, interferes with or interrupts the supply of the SaaS Services;
(4) introduce malicious programs into our hardware and software or Systems, including viruses, worms, trojan horses and e-mail bombs;
(5) reveal your Account’s password to others or allow others to use your Account (other than Active Users);
(6) use the SaaS Services to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
(7) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the SaaS Services;
(8) to send any form of harassment via email, or any other form of messaging, whether through inappropriate or offensive wording, language, frequency, or size of messages or use the SaaS Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
(9) use the SaaS Services to circumvent user authentication or security of any of your networks, accounts or hosts or those of your customers or suppliers.
(1) the provision of the Services may be contingent on, or impacted by, third parties, other customers’ use of our services, suppliers, other subcontractors (Third Party Inputs); and
(2) despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any default or breach of this Agreement or law, if such default or breach was caused or contributed to by any Third Party Inputs.
(3) the SaaS Services include certain optional functionality that may interface or interoperate with third party software or services. To the extent that you choose to use such functionality, you are responsible for: (i) the purchase of, (ii) the ancillary requirements related to, and (iii) the licensing obligations related to the applicable third party software and services. It is your reasonability to ensure the requirements are met in order for you to benefit from the specific functionality made available to you.
(1) notify your Active Users, Personnel, or other natural persons from whom Personal Information is collected about any matter prescribed by the Privacy Act in relation to the collection, use and storage of their Personal Information;
(2) ensure that any Personal Information transferred to us is complete, accurate and up to date; and
(3) notify us immediately upon becoming aware of any breach of the Privacy Act that may be related to the use of the Personal Information under this Agreement.
(1) you are authorised by the Privacy Act to collect the Personal Information and to use or disclose it in the manner required by this Agreement; and
(2) you have informed the individual to whom the Personal Information relates, that it might be necessary for you to disclose their Personal Information to third parties and you have obtained their consent to do so.
(1) we are properly constituted and have the right and authority to enter into this Agreement;
(2) we will provide the Services in accordance with all applicable Laws;
(3) we will use reasonable effort to ensure all of our obligations under this Agreement will be carried out:
(A) by suitably competent and trained Personnel;
(B) in an efficient and professional manner; and
(C) with the standard of diligence and care normally employed by duly qualified persons performing obligations similar to our obligations under this Agreement.
(1) there are no legal restrictions preventing you from agreeing to this Agreement;
(2) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Services, and as otherwise requested by us, from time to time, and in a timely manner;
(3) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and you acknowledge and agree that we will rely on such information and documentation in order to provide the Services;
(4) you will inform us if you have reasonable concerns relating to our provision of Services under this Agreement, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
(5) you are responsible for obtaining any consents, licences, authorities and permissions from other parties necessary for the Services to be provided in accordance with this Agreement, at your cost, and for providing us with the necessary consents, licences, authorities and permissions;
(6) if applicable, you hold a valid ABN which has been advised to us; and
(7) if applicable, you are registered for GST purposes.
(1) copy or use, in whole or in part, any of our Intellectual Property;
(2) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
(3) reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services;
(4) breach any Intellectual Property Rights connected with the Software or the Services, including altering or modifying any of our Intellectual Property;
(5) cause any of any of our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of our Intellectual Property;
(6) resell, assign, transfer, distribute or make available the SaaS Services to third parties;
(7) “frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network; and
(8) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the SaaS Services or Software.
(1) does not contain identifying information; and
(2) is not compiled using a sample size small enough to make the underlying data identifiable.
(1) supply the Services to you (including to enable you and your Personnel to access and use the Services);
(2) diagnose problems with the SaaS Services;
(3) enhance and otherwise modify the Services;
(4) develop other services, provided we de-identify the Data; and
(5) as reasonably required to perform our obligations under this Agreement.
(1) where permitted by this Agreement;
(2) with the prior written consent of the Discloser;
(3) where the Confidential Information is received from a third party, except where there has been a breach of confidence
(4) on a confidential, “needs to know” basis to the Recipient’s Personnel, auditors, insurers, agents and professional advisors; or
(5) where the Recipient is compelled to do so by Law, provided that it gives the other party written notice prior to disclosure.
(1) our maximum aggregate Liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and must not exceed in the aggregate for all claims the total amount of Fees you paid to us in the 12 month period directly preceding the date on which such Liability a; and
(2) we will not be liable to you for any Consequential Loss, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
(1) loss of, or damage to, any property or any injury to or loss to any person;
(2) failure or delay in providing the Services;
(3) breach of this Agreement or any Laws; or
(4) unavailability, outage or interruption of the Computing Environment, where caused or contributed to by any: Force Majeure Event; fault, defect, error or omission in your Computing Environment or Data; or act or omission of you, your related parties, Active Users, Personnel or any third party (including customers, end users, suppliers, providers or subcontractors), and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services.
(1) you are responsible for all users using the Services, including your Personnel and any Active Users;
(2) you are responsible for your use of the Services, including receiving the appropriate permits to run a contest in your jurisdiction, and the creation and running of contests;
(3) while we supply standard contest terms and conditions, we are not responsible for the accuracy of these standard contest terms and conditions, and you are responsible for receiving legal advice on your regulatory obligations for running a competition and supplying terms and conditions that are appropriate for your contest;
(4) you use the Services and any associated programs and files at your own risk;
(5) we do not warrant that the Services are error-free or will be uninterrupted;
(6) we do not warrant that contest results will be accurate and we take no responsibility if results are inaccurate or unavailable;
(7) any information, recommendations, guidance or reports generated by the Services (Content) is general in nature and that the Content does not take into account your specific needs or circumstances. It is not advice, it does not constitute an express or implied warranty and you must not rely on it. We do not assume any liability for the accuracy, completeness, usefulness of any Content, or your reliance on any Content.
(8) the technical processing and transmission of the Services, including your Data, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices;
(9) we may use third party service providers to host the Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;
(10) the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;
(11) we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with Data, hardware or software with which it might be used;
(12) we are not responsible for the integrity or existence of any Data on the Computing Environment, network or any device controlled by you or your Active Users; and
(13) we may pursue any available equitable or other remedy against you if you breach any provision of this Agreement.
(1) has breached a material term of this Agreement and has failed to remedy such breach within 20 Business Days of receiving notice to do so, subject to any other express right of termination;
(2) is unable to pay its debts as they fall due.
(1) Taxable supply: If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
(2) Adjustment events: If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
(3) Payments: If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
(4) GST terminology: The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Unless defined on the Site, the following words will mean:
ACL has the meaning given in clause 16(d);
Account has the meaning given in clause 3(a);
Active User means a participant (whether your employee or your client) who has signed up to your contest and is permitted to use the SaaS Services and is showing an Active status on the site at any time during a given plan period;
Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales.
Business Hours means 9am to 5pm on a Business Day;
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;
Confidential Information includes confidential information about a Party’s 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" but does not include any information which is in the public domain other than through a breach of confidence. Our Confidential Information includes our Intellectual Property including the Software. Your Confidential Information includes the Data;
Consequential Loss includes any indirect, incidental or consequential loss, loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any remote, abnormal or unforeseeable loss, loss of use and/or loss or corruption of data or any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with this Agreement (whether involving a third party or a Party to this Agreement or otherwise);
Contest means "Contest" or "Tipping Competition" or "Competition"
Data means the information, documents and other data inputted by you, your Personnel or Active Users into the Software or stored by the SaaS Services or generated by the SaaS Services as a result of your use of the SaaS Services;
Fees means the fees set out on the Site, including any Website Design Fees;
Force Majeure Event means an event which is beyond a Party's reasonable control including a fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, and strike by employees of a third person;
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, customer names or internet domain names. Our Intellectual Property includes the Software;
Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory and includes the Privacy Act and the Spam Act 2003 (Cth);
Liability means any loss, liability, cost, payment, damages, debt or expense (including reasonable legal fees);
Party means either party to this Agreement;
Personal Information has the meaning given in the Privacy Act;
Personnel means, in relation to a Party, the officers, employees, contractors, sub-contractors and agents of that Party;
Plan means your plan, as outlined on the Site.
Privacy Act means the Privacy Act 1988 (Cth);
SaaS Licence has the meaning given in clause 5(a);
SaaS Service means our Software as a service as described on the Site as amended by any Website Design Services;
Services mean the services, functions and responsibilities provided by us to you as specified on the Site;
Set Up Service means the services as described on the Site to set up your chosen SaaS Service;
Software means the software used to provide any of the Services, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered into by the Parties;
Statutory Rights has the meaning given in clause 16(d); and
System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network.
Website Design Fee has the meaning given in clause 8(a); and
Website Design Services has the meaning given in clause 8(a);
(1) the singular includes the plural and vice versa;
(2) headings are for convenience only and do not affect interpretation;
(3) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time; if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
(4) the word "month" means calendar month and the word "year" means 12 months;
(5) the words "in writing" include any communication sent by letter or email or any other form of communication capable of being read by the recipient;
(6) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(7) includes and similar words mean includes without limitation;
(8) a reference to $ or dollars refers to the currency of Australia from time to time;
(9) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body; and
(10) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it.
