TERMS AND CONDITIONS
- The BJJ App (we, us or our), provides the Services which are accessible at https://thebjjapp.com and https://app.thebjjapp.com and may be available through other addresses and channels (Site).
- These terms and conditions (Terms):
- are between us and you, together the Parties and each a Party;
- set out the terms and conditions upon which we agree to grant you a right to use the Services; and
- are binding on you on and from the date on which you accept these Terms (Effective Date) until the date on which your Account and these Terms are terminated in accordance with the terms (Term).
- You accept these Terms by clicking a box indicating your acceptance.
- If you create an Account and are agreeing to these Terms on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means the Entity, and you are binding that Entity to these Terms.
- If you are accepting these Terms on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so.
- In consideration of payment of the Fees (as set out in the Plan), we will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.
- You agree that we may amend the Services (including any features) or the Fees at any time, by providing written notice to you. If you do not agree to any amendment made to the Services or the Fees, you may terminate these Terms in accordance with clause 3.
- We warrant and agree that, we will use reasonable efforts to ensure all of our obligations under these Terms will be carried out:
- by suitably competent and trained Personnel;
- in an efficient and professional manner; and
- in accordance with any Service Level as set out in the Plan (if applicable).
- You may create an Account on our Site, in order for you and, where applicable, your Authorised Users to access and use the Services. Your account will allow you to set up Authorised User accounts in accordance with the permitted Authorised User numbers set out in your Plan, and to access and use the Services. If you create the Account, you will be the Account’s Administrator.
- You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and that you are authorised to provide this information to us.
- The Administrator is responsible for the Account regardless. If you wish to change the Administrator, you must provide us with a written request to transfer the ownership of the Account to the incoming Administrator, which must also include the incoming Administrator’s written consent to take over full responsibility for the Account, in a form acceptable to us.
- It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, including activity by any Authorised Users, and for ensuring that that any activities on your Account comply with these Terms.
- We are not responsible for the management or administration of your Account or your Authorised Users.
- Permission and Restrictions on Use
- Subject to the payment of any applicable Fees and your and your Authorised Users compliance with these Terms, we grant you the right to access and use the Services for the Term in accordance any Authorised User limits, for your use and enjoyment of the Services, as contemplated by these Terms (Permitted Use).
- We, or our licensors own all right, title, and interest in and to the Services, and all related technology and intellectual property rights. Subject to these Terms, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Services solely in accordance with the Terms;
- Except as provided in this clause 4, you obtain no rights under these Terms from us, our affiliates or our licensors to the Services or any part of the Services, including any related intellectual property rights.
- Some Third-Party Input may be provided to you under a separate license, such as the GNU General Public License, which is available at https://www.gnu.org/licenses/gpl-3.0.html, or other open source license. In the event of a conflict between these Terms and any separate license, the separate license will prevail with respect to the Third-Party Input that is the subject of such separate license.
- You must not and must ensure your Authorised Users do not access or use the Services except as permitted by these Terms and you must not (and must not permit any other person to) use the Services in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property Rights, including to;
- use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
- use the Services in any way that damages, interferes with or interrupts the supply of the Services;
- introduce malicious programs into our hardware and software or Systems, including viruses, ransomware, malware, trojan horses and e-mail bombs;
- reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details (other than Authorised Users);
- carry out security breaches or disruptions of a network, including 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);
- 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 Services;
- if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
- circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users.
- Authorised Users
- You agree that the Permitted Use allows you to access and use the Services in accordance with the number of Authorised Users, as set out in your Plan (if applicable).
- You may, at any time, adjust your Plan to increase or decrease in the number of Authorised Users (Plan Variation) by changing the Plan that you have selected in your Account.
- Where your Plan Variation involves a decrease in the number of Authorised Users, this Plan Variation will be effective at the start of the next billing period, provided that you give us at least 14 days notice before the commencement of the next billing period.
- Where your Plan Variation involves an increase to the number of Authorised Users:
- you agree that this Plan Variation will be effective immediately and you will pay the relevant amount of the Fee Variation on a pro-rata basis for the then current billing period; and
- we will apply the Fee Variation to any subsequent billing periods in the Term, which will be considered the new Fee for the purpose of these Terms.
- Third Party Inputs
- You agree that the provision of the Services may be contingent on, or impacted by, Third Party Inputs.
- You agree that the Services may include Third Party Inputs that may interface, or interoperate with, the Services, including third party software or services which are set out on our Site.
- To the extent that you use such Third Party Inputs as part of the Services, you are responsible for:
- the purchase of, where not included as part of the Services;
- the requirements relating to; and
- the licensing obligations in respect of,
the applicable Third Party Input, including third party software and services.
- You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Services, is subject to your compliance with clause 3.
7.1 During the Term, we will provide you with:
- technical support services as set out in your Plan (if appliable), provided that, where required, you assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you or your Personnel have done in relation to the fault); and
- any additional support you may request in excess of the support provided under your Plan, which will be provided to you at the rates set out on the Site.
- You agree to pay us the Fees as set out in your Plan, and any other amounts payable to us under these Terms, without set-off or delay, via credit card or any other payment method set out on the Site.
- The Fee is payable in advance of the next billing cycle for your Plan and any additional charges will be billed at the time of purchase of any additional Services (unless otherwise agreed between the Parties).
- You are responsible for reviewing the pricing schedule, features and limits associated with your Plan, which are available on the Site.
- You must ensure your chosen payment method has, at all times, sufficient funds to pay the Fees as and when due.
- If any payment has not been made or is not successful in accordance with these Terms, we may (at our absolute discretion):
- immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so;
- charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with these Terms; and
- engage debt collection services and/or commence legal proceedings in relation to any such amounts.
- If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.
- The Fees are non-refundable. To the maximum extent permitted by law, there will be no refunds or credits for any unused Services (or part thereof).
- Privacy and Communication
- You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.
- You must, and must ensure that your Personnel and your Authorised Users, comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) or any other privacy or anti-spam Laws applicable to you in your jurisdiction in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms.
- We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under these Terms and in accordance with any applicable Laws.
- We may contact you via the Platform for the Services, using in-Account notifications or via-off Platform communication channels, such as text messages or email with functional notifications.
- We may also send marketing and promotional material which may be of interest to you, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the Services.
- Data Breach
- To the extent the notifiable data breaches scheme under Part IIIC of the Privacy Act 1988 (Cth) (Notifiable Data Breaches Scheme) applies to us, if we become aware of a Customer Data incident (Customer Data Incident) we will:
- retain system logs and other information that may be relevant to the Customer Data Incident, or to assessing the cause or impact of the Customer Data Incident; and
- within 30 days, prepare an assessment to determine whether there are reasonable grounds to believe that a Customer Data Incident has occurred.
- Where you suspect that a Customer Data Incident has occurred, we will, within 30 days of receiving notice from you that you suspect that a Customer Data Incident has occurred, prepare an assessment to determine whether there are reasonable grounds to believe that a Customer Data Incident has occurred, and the costs of such assessment must be paid by you.
- If, as a result of our assessments as set out in clauses 1(b) or 10.2, we believe a Customer Data Incident has occurred that we consider to be notifiable under the Notifiable Data Breaches Scheme, we will notify you of the Customer Data Incident by telephone or email and provide notice to the Office of the Australian Information Commissioner of such Customer Data Incident in accordance with the Notifiable Data Breaches Scheme and we will be the sole Party to notify the individuals who are likely to be at risk of serious harm arising from the Customer Data Incident. Alternatively, where we do not have the contact details of affected individuals, we will provide you with a statement to provide to affected individuals.
- Confidential Information
- Subject to clause 2, you must (and must ensure that your Personnel):
- keep confidential; and
- not use or permit any unauthorised use of,
all Confidential Information.
- Clause 2 does not apply where:
- the disclosure is required by Law; or
- the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with these Terms and provided that you ensure the adviser complies with the terms of clause 1.
- To the maximum extent permitted by law, you indemnify, and continue to indemnify, us against all Liability we suffer or incur arising from or as a consequence of a breach of this clause 11.
- This clause 11 will survive the termination or expiry of these Terms.
- Intellectual Property Rights
- You agree that all Intellectual Property Rights:
- in the Services;
- in the Intellectual Property developed, adapted, modified or created by us, or our Personnel (including in connection with these Terms, the Services and any machine learning algorithms output from the Services); and
will at all times vest, or remain vested, in us (or, if applicable, our third party service providers). To the extent that ownership of the Intellectual Property Rights do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
- You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.
- You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under these Terms, as contemplated by these Terms.
- You must not whether directly or indirectly, without our prior written consent:
- copy or use, in whole or in part, any of our Intellectual Property;
- reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
- reverse assemble, reverse engineer, reverse compile or enhance the Services;
- breach any Intellectual Property Rights connected with the Services, including altering or modifying any of our Intellectual Property;
- cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;
- resell, assign, lease, hire, sub-license, transfer, distribute or make available the Services to third parties;
- “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; and
- 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 Services.
- This clause 12 will survive the termination or expiry of these Terms.
- Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
- does not contain identifying information; and
- is not compiled using a sample size small enough to make the underlying Customer Data identifiable.
- We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
- Customer Data
- You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term and for a reasonable period after the Term to:
- supply the Services (including for back-ups) to you (including to enable you, your Authorised Users and your Personnel to benefit from the Services);
- diagnose problems with the Services;
- develop other services, provided we de-identify the Customer Data;
- enhance and otherwise modify the Services, and
- as reasonably required to perform our obligations under these Terms.
- You must, at all times, ensure the integrity of the Customer Data and that your provision of, and use of the Customer Data is compliant with all Laws.
- You represent and warrant that:
- you have obtained all necessary rights, releases and permissions to provide all your Customer Data to us and to grant the rights granted to us in these Terms;
- the Customer Data is accurate and complete;
- the Customer Data (and its transfer to and use by us as authorised by you) under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
- any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.
- We assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up the Customer Data.
- You acknowledge and accept that any Third Party Input which is provided as part of the Services is provided as is and, to the full extent permitted by law, comes without any warranty of any kind, either express or implied, including, but not limited to any warranties in respect of merchantability or fitness for a particular purpose.
- You warrant and agree that:
- there are no legal restrictions preventing you from entering into these Terms;
- you are not and have not been the subject of an Insolvency Event;
- 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;
- all information and documentation that you provide to us in connection with these Terms is true, correct and complete and that we can rely on such information and documentation in order to provide the Services;
- you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms
- you will inform us if you have reasonable concerns relating to our provision of the Services under these Terms, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
- you are responsible for obtaining, and providing to us in a timely manner, any consents, licences, authorities and permissions from third parties necessary for the Services to be provided in accordance with these Terms, at your cost;
- the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without prior written consent;
- you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights) or in any way that damages, interferes with or interrupts the supply of the Services;
- you have reviewed these Terms and you understand them and will use the Services in accordance with them;
- 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 these Terms on behalf of any entity for whom you use the Services; and
- you have all the hardware, software and services which are necessary to access and use the Services, including any required operating systems as set out on the Site.
- Australian Consumer Law
- Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights).
- If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
- Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or any other basis.
- This clause 16 will survive termination or expiry of these Terms.
- Except to the extent that the Liability arose from our negligent acts or omissions or any of our Personnel, you indemnify us and our Personnel against all Liability that we or any of our Personnel may sustain or incur as a result, whether directly or indirectly, of:
- your or your Personnel’s breach of clauses 4, 6, 9, 11, 12, 14 and 15;
- your or your Personnel’s negligent, unlawful or wilful acts or omissions in connection with these Terms.
- Limitations on Liability
- Despite anything to the contrary (except for clause 17) and to the maximum extent permitted by law:
- We will not be liable for any Consequential Loss;
- our liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you (or any of your Personnel); and
- our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services in the 12 months immediately preceding the event to which the Liability relates.
- This clause 18 will survive termination or expiry of these Terms.
- Exclusions to Liability
- Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:
- loss of, or damage to, any property or any injury to or loss to any person;
- the Computing Environment;
- your or your Personnel’s acts or omissions;
- any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
- any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;
- any Third Party Inputs;
- the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or
- any event outside of our reasonable control.
- You acknowledge and agree that:
- you are responsible for all users using the Services, including your Personnel and your Authorised Users;
- you use the Services and any associated programs and files at your own risk;
- the technical processing and transmission of the Services, including Customer Data, may be transferred unencrypted and involves:
- transmissions over various networks; and
- changes to conform and adapt to technical requirements of connecting networks or devices;
- we may use third party service providers to integrate with the Services or 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;
- the Services may use Third Party Inputs. We do not make any warranty or representation in respect of the Third Party Inputs;
- 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;
- we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, and your Authorised Users or your Personnel; and
- we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
- This clause 19 will survive termination or expiry of these Terms.
- You may terminate these Terms at any time by cancelling your Plan in the “Account Details” section of your Account. Provided you cancel at least 14 days’ prior to the next billing period. your cancellation will be effective from the following billing period. If you cancel less than 14 days prior to the next billing period, you will be charged the Fee at the next billing period (Final Fee), and your cancellation will be effective following the end of the billing period for which the Final Fee is charged.
- These Terms will terminate immediately upon written notice by:
- if you (or any of your Personnel) breach any provision of these Terms and that breach has not been remedied within 10 Business Days of being notified by us;
- if you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
- for any other reason outside our control which has the effect of compromising our ability to provide the Services; or
- if you are unable to pay your debts as they fall due; and
- you, if we:
- are in breach of a material term of these Terms, and that breach has not been remedied within 10 Business Days of being notified by you; or
- are unable to pay our debts as they fall due.
- Upon expiry or termination of these Terms:
- we will immediately cease providing the Services;
- we will be entitled to permanently delete all Customer Data within 1 month from expiry or termination of these Terms;
- we may provide any further disengagement services requested by you at our then current rates, and such further disengagement support services must be agreed in writing by the Parties;
- you agree that any payments made under this Agreement are not refundable;
- you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms; and
- immediately return (where possible) or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information and Intellectual Property).
- Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
- This clause 20 will survive the termination or expiry of these Terms.
- If GST is payable on any supply made under these Terms, 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 these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, 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.
- If an adjustment event arises in respect of any supply made under these Terms, 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.
- If the recipient is required under these Terms 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.
- The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Access: The Services may be accessed in Australia and overseas. We make no representation that the Services comply with the Laws (including Intellectual Property Laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services.
- Amendment: We may update these Terms at any time. Where we update these Terms we will notify you via an in-Account notification or via email. If you do not agree with any amendment you may terminate these Terms in accordance with clause 1.
- Assignment: A Party must not assign or deal with the whole or any of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
- Dispute: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
- Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
- Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
- Exclusivity: The Services will be provided to you on a non-exclusive basis.
- Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into these Terms) (Force Majeure Event).
- Further assurance: Each Party agrees to promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.
- Governing law: These Terms are governed by the laws of Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
- Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of transmission by email.
- Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material, with your prior written consent.
- Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
- Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and:
Account means an account accessible to you and your Authorised Users to use the Services;
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;
Additional Services means any Services not set out in the Services description in the Plan which we agree to provide to you;
Agent means an Authorised User with ‘agent’ status under your Account.
Authorised User, if applicable, means a user permitted to access and use the Services under your Account, as further particularised in your Plan, and includes the Administrator, Manager and Agent;
Business Day means a day on which banks are open for general bank business in Victoria, excluding Saturdays, Sundays and public holidays;
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;
Confidential Information includes information which:
- is disclosed to you in connection with these Terms at any time;
- is prepared or produced under or in connection with these Terms at any time;
- relates to our business, assets or affairs; or
- relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information;
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel or your Authorised Users into the Services or stored by the Services or generated by the Services as a result of your use of the Services;
Fee or Fees means those fees due and payable by you for the Services, as set out in your relevant Plan;
Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel or your Authorised Users, whether made verbally, in writing, directly or indirectly, in connection with the Services;
Insolvency Event means any of the following events or any analogous event:
- a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
- a Party ceases, or threatens to cease, carrying on business;
- a Party is unable to pay the Party’s debts as the debts fall due;
- any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
- any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
- any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business;
Intellectual Property means any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;
Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you;
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents;
Plan means the plan you choose on our Site, including the Fees, billing cycle, features and number of Authorised Users, as set out on the Site and post purchase, as set out within your Account;
Platform means the Teknocrat customer relationship management application;
Services means the Site, System, Platform and all content, services or products available on the Platform and any technical support services as further particularised in the Plan or requested throughout the Term;
Service Level means any service level relevant to your Plan, as set out on the Site;
Software means our cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software as described in your Plan and on the Site;
System the integrated cloud computing solution for providing the Services, including any applications, software, data bases, interfaces, associated media, documentation, updates, new releases and other components or materials provided at part of the Services;
Third Party Inputs means third parties or any goods, services or inputs provided by third parties, including customers, end users, suppliers, licensors, or subcontractors which the provision of the Services may be contingent on, impacted by or integrated with and which are set out on our Site;
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Effective Date and/or developed by or on behalf of you or your Personnel independently of these Terms.
In these Terms, unless the context otherwise requires:
(a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g) a reference to time is to local time in Victoria, Australia; and
(h) a reference to $ or dollars refers to the currency of the United States from time to time.
- For any questions and notices, please contact us at:
- Email: firstname.lastname@example.org
- Last update: 1st October 2021