MY DOORMAN – PRIVACY POLICY

We understand that protecting your personal information is important. This Privacy Policy sets out our commitment to protecting the privacy of personal information provided to us, or otherwise collected by us, offline or online, including through our services, our website and mobile application (Services). In this Privacy Policy we, us or our means My Doorman Pty Ltd ABN 15 635 437 133.

Personal information

Personal information: The types of personal information we may collect about you include:

• your name;
• images of you;
• your contact details, including email address, mailing address, street address and/or telephone number;
• your credit card or payment details;
• your preferences and/or opinions;
• information you provide to us through customer surveys;
• details of products and services we have provided to you and/or that you have enquired about, and our response to you;
• your browser session and geo-location data, device and network information, statistics on page views and sessions, acquisition sources, search queries and/or browsing behaviour;
• information about your access and use of our Services, including through the use of Internet cookies, your communications with our online Services, the type of browser you are using, the type of operating system you are using and the domain name of your Internet service provider;
• additional personal information that you provide to us, directly or indirectly, through your use of our Services, associated applications , associated social media platforms and/or accounts from which you permit us to collect information; and; and
• any other personal information requested by us and/or provided by you or a third party.

We may collect these types of personal information directly from you or from third parties.

Collection and use of personal information

We may collect, hold, use and disclose personal information for the following purposes:

• to enable you to access and use our Services, our associated applications and associated social media platforms;
• to contact and communicate with you;
• for internal record keeping, administrative purposes, invoicing and billing purposes;
• for analytics, market research and business development, including to operate and improve our , associated applications and associated social media platforms Services, associated applications and associated social media platforms;
• offer additional benefits to you;
• for advertising and marketing, including to send you promotional information about our products and services and information that we consider may be of interest to you;
• to comply with our legal obligations and resolve any disputes that we may have; and
• if you have applied for employment with us; to consider your employment application.

Disclosure of personal information to third parties

We may disclose personal information to:

• third party service providers for the purpose of enabling them to provide their services, including (without limitation) IT service providers, data storage, web-hosting and server providers, debt collectors, maintenance or problem-solving providers, marketing or advertising providers, professional advisors and payment systems operators;
• our employees, contractors and/or related entities;
• our existing or potential agents or business partners;
• sponsors or promoters of any promotions or competition we run;
• anyone to whom our business or assets (or any part of them) are, or may (in good faith) be, transferred;
• credit reporting agencies, courts, tribunals and regulatory authorities, in the event you fail to pay for goods or services we have provided to you;
• courts, tribunals, regulatory authorities and law enforcement officers, as required by law, in connection with any actual or prospective legal proceedings, or in order to establish, exercise or defend our legal rights;
• third parties, including agents or sub-contractors, who assist us in providing information, products, services or direct marketing to you. This may include parties located or that store data outside of Australia; and
• third parties to collect and process data, such as Google Analytics This may include parties located or that store data outside of Australia.

By providing us with personal information, you consent to the disclosure of your information outside of Australia and acknowledge that we are not required to ensure that overseas recipients handle that personal information in compliance with Australian Privacy law. You acknowledge that some overseas third parties may not be regulated by the Privacy Act and the Australian Privacy Principles in the Privacy Act and if any third party engages in any act or practice that contravenes the Australian Privacy Principles, it would not be accountable under the Privacy Act and you will not be able to seek redress under the Privacy Act.

How we treat personal information that is also sensitive information

Sensitive information is a sub-set of personal information that is given a higher level of protection under the Australian Privacy Principles. Sensitive information means information relating to your racial or ethnic origin, political opinions, religion, trade union or other professional associations or memberships, philosophical beliefs, sexual orientation, sexual practices or sex life, criminal records, health information or biometric information.

We do not currently collect sensitive information. If we do collect sensitive information, provided you consent, your sensitive information may only be used and disclosed for purposes relating to the primary purpose for which the sensitive information was collected.

Sensitive information may also be used or disclosed if required or authorised by law.

Your rights and controlling your personal information

Your choice: Please read this Privacy Policy carefully. If you provide personal information to us, you understand we will collect, hold, use and disclose your personal information in accordance with this Privacy Policy. You do not have to provide personal information to us, however, if you do not, it may affect your use of our Services.

Information from third parties: If we receive personal information about you from a third party, we will protect it as set out in this Privacy Policy. If you are a third party providing personal information about somebody else, you represent and warrant that you have such person’s consent to provide the personal information to us.

Restrict and unsubscribe: To object to processing for direct marketing/unsubscribe from our email database or opt-out of communications (including marketing communications), please contact us using the details below or opt-out using the opt-out facilities provided in the communication.

Correction: If you believe that any information we hold about you is inaccurate, out of date, incomplete, irrelevant or misleading, please contact us using the details below. We will take reasonable steps to promptly correct any information found to be inaccurate, incomplete, misleading or out of date.

Complaints: If you wish to make a complaint, please contact us using the details below and provide us with full details of the complaint. We will promptly investigate your complaint and respond to you, in writing, setting out the outcome of our investigation and the steps we will take in response to your complaint. You also have the right to contact the relevant authority in the country in which you are based.

Storage and security

We are committed to ensuring that the personal information we collect is secure. In order to prevent unauthorised access or disclosure, we have put in place suitable physical, electronic and managerial procedures, to safeguard and secure personal information and protect it from misuse, interference, loss and unauthorised access, modification and disclosure.

We cannot guarantee the security of any information that is transmitted to or by us over the Internet. The transmission and exchange of information is carried out at your own risk. Although we take measures to safeguard against unauthorised disclosures of information, we cannot assure you that the personal information we collect will not be disclosed in a manner that is inconsistent with this Privacy Policy.

Cookies and web beacons

We may use cookies on our online Services from time to time. Cookies are text files placed in your computer’s browser to store your preferences. Cookies, by themselves, do not tell us your email address or other personally identifiable information. However, they do allow third parties, such as Google and Facebook, to cause our advertisements to appear on your social media and online media feeds as part of our retargeting campaigns. If and when you choose to provide our online Services with personal information, this information may be linked to the data stored in the cookie.

We use the following cookies:

• Strictly necessary cookies. These are cookies that are required for the operation of our online Services. They include, for example, cookies that enable you to log into secure areas of our online Services, use a shopping cart or make use of e-billing services.
• Analytical/performance cookies. These are cookies that allow us to recognise and count the number of visitors to our online Services and to see how visitors move around our online Services when they are using them. This helps us to improve the way our online Services work, for example, by ensuring that users find what they are looking for easily.
• Functionality cookies. These are used to recognise you when you return to our online Services. These cookies enable us to personalise our content for you and remember your preferences (for example, your choice of language or region).

You can block cookies by activating the setting on your browser that allows you to refuse the setting of all or some cookies. However, if you use your browser settings to block all cookies (including essential cookies) you may not be able to access all or parts of our online Services.

We may use web beacons on our online Services from time to time. Web beacons (also known as Clear GIFs) are small pieces of code placed on a web page to monitor the visitor’s behaviour and collect data about the visitor’s viewing of a web page. For example, web beacons can be used to count the users who visit a web page or to deliver a cookie to the browser of a visitor viewing that page.

We may use Google Analytics to collect and process data. To find out how Google uses data when you use third party websites or applications, please see www.google.com/policies/privacy/partners/ or any other URL Google may use from time to time.

Links to other websites

Our Services may contain links to other websites. We do not have any control over those websites and we are not responsible for the protection and privacy of any personal information which you provide whilst visiting those websites. Those websites are not governed by this Privacy Policy.

Amendments

We may, at any time and at our discretion, vary this Privacy Policy by publishing the amended Privacy Policy on our website. We recommend you check our website regularly to ensure you are aware of our current Privacy Policy.

For any questions or notices, please contact our Privacy Officer at:

My Doorman Pty Ltd ABN 15 635 437 133

Email: legal@mydoorman.com.au

Last update: 11/11/2019

My Doorman Pty Ltd – End User licence Agreement (this EULA)

1 Acceptance of these terms and conditions
1.1 My Doorman Pty Ltd ABN: 15 635 437 133 (us, we or our) license the cloud-based SaaS services, including all instructions in hard copy or electronic form and any update, modification or release of any part of the SaaS services (Software) which is accessible at www.mydoorman.com.au (Site).
1.2 This EULA applies to:
(a) the primary account (Primary Account) holder of the Software (Account Holder);
(b) you, where you are invited by the Account Holder to create a user account as an end user (User Account) in accordance with the terms of your Account Holder’s chosen subscription package (Subscription); and
(c) any other person or entity using or accessing the Software,
(jointly and severally known as you and your).
1.3 If applicable, the terms of this EULA are deemed incorporated into our agreement with you, for the supply of the Software by reference. You accept this EULA by clicking a box indicating acceptance via the Site or by using or accessing the Software.
1.4 This EULA will commence on the date on which you accept this EULA and will continue until the date this EULA is terminated in accordance with clause 10 (the Term).
1.5 By accepting this EULA, creating a User Account or Primary Account and/or accessing and/or using the Software, you 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 Software and they have agreed to this EULA on your behalf.
2 Licence to use
In consideration for your compliance with this EULA and if applicable, subject to the terms of your Subscription, we grant you a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable and revocable licence to access, display and use the Software for business purposes for the Term and only on as many computers, devices and in such configurations as is expressly permitted by us (Licence).
3 Restrictions
3.1 You must not access or use the Software except as permitted by the Licence and you must not and must not permit any other person to:
(a) use the Software in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property rights;
(b) use the Software to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
(c) use the Software in any way that damages, interferes with or interrupts the supply of the Software;
(d) introduce malicious programs into our hardware and software or Systems, including viruses, malware, worms, trojan horses and e-mail bombs;
(e) use the Software 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);
(f) 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 Software; or
(g) use the Software to circumvent user authentication or security of any of your networks, accounts or hosts or those of any other third party.
4 Third Parties
4.1 You acknowledge and agree that:
(a) the provision of the Software may be contingent on, or impacted by, third parties, other customers’ use of our services, suppliers, other subcontractors (Third Party Inputs); and
(b) 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 EULA or law, if such default or breach was caused or contributed to by any Third Party Inputs.
4.2 You acknowledge that the Software includes certain optional functionality that may interface or interoperate with third party software, hardware 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, hardware and services. It is your responsibility to ensure the requirements are met in order for you to benefit from the specific functionality made available to you.
5 Support services
5.1 During the Term, where you lodge a support ticket with us, we will provide you with technical support services in accordance with the specifications of the Account Holder’s Subscription.
5.2 You agree, where we provide any support services to you, to 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 have done in relation to the fault).
6 Your warranties
6.1 You warrant and agree that:
(a) you have reviewed this EULA available on the Site, (with your parent or legal guardian if you are under 18 years of age);
(b) you have all hardware, software and services which are necessary to access and use the Software;
(c) you will use the Software in accordance with this EULA;
(d) all information and documentation that you provide to us in connection with this EULA is true, correct and complete and you acknowledge and agree that we will rely on such information and documentation in order to provide the Software;
(e) you are responsible for obtaining any consents, licences, authorities and permissions from other parties necessary for the Software to be provided in accordance with this EULA, at your cost, and for providing us with the necessary consents, licences, authorities and permissions; and
(f) if applicable, you will maintain the confidentiality and security of any of your Primary Account and/or User Account details and passwords.
7 Intellectual Property rights
7.1 All Intellectual Property in the Software and that Intellectual Property developed, adapted, modified or created by us or our officers, employees, contractors, sub-contractors or agents including in connection with this EULA and the Software and any machine learning algorithms output from the Software is and will remain owned exclusively by us or our third party service providers.
7.2 You must not, without our prior written consent:
(a) copy or use, in whole or in part, any of our Intellectual Property;
(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
(c) reverse assemble, reverse engineer, reverse compile or enhance the Software;
(d) breach any Intellectual Property rights connected with the Software, including altering or modifying any of our Intellectual Property;
(e) cause any of our Intellectual Property to be framed or embedded in another website;
(f) create derivative works from any of our Intellectual Property;
(g) resell, assign, transfer, distribute or make available the Software to third parties;
(h) “frame”, “mirror” or serve any of the Software on any web server or other computer server over the Internet or any other network; or
(i) 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 Software.
7.3 As between you and us:
(a) all Data is and remains your property or the property of the Account Holder (as applicable);
(b) you grant us a limited licence to copy, transmit, store and back-up or otherwise access the Data during the Term solely to:
(i) supply the Software to you (including to enable you to access and use the Software);
(ii) diagnose problems with the Software;
(iii) enhance and otherwise modify the Software;
(iv) develop other services, provided we de-identify the Data; and
(v) as reasonably required to perform our obligations under this EULA.
7.4 You must, at all times, ensure the integrity of any Data you input and that your use of the Data is compliant with all Laws. You represent and warrant that you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in this EULA.
7.5 We assume no responsibility or Liability for the Data. You are solely responsible for the Data and the consequences of using, disclosing, storing or transmitting it.
7.6 We have no obligation to monitor any content uploaded to the Software. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove your Data from the Software. We have no liability to you for removing your Data from the Software.
8 ACL
8.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
8.2 Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled:
(a) to cancel this EULA with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the services rectified in a reasonable time and, if this is not done, to cancel this EULA and obtain a refund for the unused portion of this EULA.
8.3 If the ACL applies to you as a consumer, nothing in this EULA 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 this EULA.
8.4 Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.
9 Our Liability
9.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) our maximum aggregate Liability arising from or in connection with this EULA (including the Software or the subject matter of this EULA) will be limited to, and must not exceed in the aggregate for all claims $10; and
(b) we will not be liable to you for any Consequential Loss,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
9.2 Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you waive and release us from and against, all Liability (whether under statute, contract, negligence or other tort, indemnity, or otherwise) arising from or in connection with any:
(a) loss of, or damage to, any property or any injury to or loss to any person;
(b) failure or delay in providing the Software;
(c) breach of this EULA or any Laws; or
(d) unavailability, outage or interruption of the Computing Environment,
where caused or contributed to by any:
(i) Force Majeure Event;
(ii) fault, defect, error or omission in your Computing Environment or Data; or
(iii) your act or omission,
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 Software.
9.3 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 clause 7 (Intellectual Property), your use of the Software contrary to this EULA, including from any claim relating to the Data.
9.4 You acknowledge and agree that:
(a) you are responsible for your use of the Software;
(b) you use the Software and any associated programs and files at your own risk;
(c) we do not warrant that the Software is error-free or will be uninterrupted;
(d) any information, recommendations, guidance or reports generated by the Software (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;
(e) the technical processing and transmission of the Software, 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;
(f) we may use third party service providers to host the Software. 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;
(g) the Software 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;
(h) we do not guarantee that any file or program available for download and/or execution from or via the Software is free from viruses or other conditions which could damage or interfere with Data, hardware or software with which it might be used;
(i) we are not responsible for the integrity or existence of any Data on the Computing Environment, network or any device controlled by you;
(j) from time to time, we may make certain services and/or features available to you for use which are still in their beta stage. These beta stage services have not been fully tested and are provided on an ‘as is’ basis; and, to the fullest extent permitted by Law, we make no representations, warranties or guarantees in relation to such beta stage services; and
(k) we may pursue any available equitable or other remedy against you if you breach any provision of this EULA.
10 Termination of your User Account and this EULA
10.1 You may only terminate your User Account and/or this EULA via your User Account management dashboard or via email to us. You are solely responsible for properly terminating your User Account and/or this EULA.
10.2 If you are an Account Holder, you may only terminate this EULA but providing us with written notice of termination.
10.3 Your Account Holder may terminate your User Account, your access and this EULA at any time in their sole discretion.
10.4 If your Account Holder’s Subscription is suspended or terminated we will also suspend your User Account, your access or terminate your User Account and this EULA (as applicable).
10.5 If we believe you are misusing or otherwise in breach of this EULA, the Software we may immediately terminate your Primary Account and/or User Account and/or this EULA with notice to you.
11 General
11.1 We reserve the right at any time and from time to time to change or remove features of the Software.
11.2 If we are delayed from performing our obligations due to such a circumstance for a period of at least two months, we may terminate the Primary Account, your User Account and/or this EULA with notice to you.
11.3 Neither Party may commence court proceedings relating to any dispute arising from, or in connection with, this EULA without first meeting with a senior representative of the other Party to seek (in good faith) to resolve that dispute (unless that Party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).
11.4 Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to us at the contact details below and to you on the contact details included in your User Account or Primary Account. A Party may change its notice details by written notice to the other Parties. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 4 business days in the case of post, or at the time of transmission in the case of transmission.
11.5 Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to this EULA does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.
11.6 If a provision of this EULA are 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 this EULA without affecting the validity or enforceability of the remainder of that provision or the other provisions.
11.7 We may assign, transfer, novate or otherwise deal with all or any of our rights or obligations under this EULA without your prior written consent. You may not assign, transfer or otherwise deal with all or any of your rights or obligations under this EULA without our prior written consent. Any purported dealing in breach of this clause by you is of no force or effect.
11.8 We may vary this EULA with notice to you via email or via a notification within your Primary Account and/or User Account.
11.9 This EULA is governed by the laws of New South Wales. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts. The Software may be accessed in Australia and overseas. We make no representation that the Software comply with the laws (including Intellectual Property laws), other than the General Data Protection Regulation 2016/679 where applicable, of any country outside of Australia. If you access the Software from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Software.
11.10 Clauses 2, 6, 7, 8, 10 and 11 will survive termination or expiry of this EULA.
12 Definitions
The following words will mean:
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.
Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales.
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;
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 EULA (whether involving a third party or a Party to this EULA or otherwise);
Data means the information, documents and other data inputted by you, into the Software or stored by the Software or, subject to clause 7, generated by the Software as a result of your use of the Software;
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. 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 1988 (Cth), General Data Protection Regulation (EU) 2016/679 and the Spam Act 2003 (Cth);
Liability means any loss, liability, cost, payment, damages, debt or expense (including reasonable legal fees);
Party means a party to this EULA; and
System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network.
Subscription is defined clause 1.2(b).

My Doorman Pty Ltd ABN: 15 635 437 133
Email: legal@mydoorman.com.au

Last update: 27.11.19

My Doorman Pty Ltd
Hardware and Software as a Service Agreement
Core Legal Terms:
1 Acceptance
1.1 My Doorman Pty Ltd (ABN: 15 635 437 133) (we, us or our) own the software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software (Software) which is accessible at www.mydoorman.com.au (Site). If applicable, we also own the associated hardware as well as any physical marketing items to be used with the Software (Hardware).
1.2 This agreement set out the terms and conditions upon which we agree to:
(a) grant you a right to use the Software as described on the Site (SaaS Services);
(b) provide you with the right to use on your Premises (as defined below) the Hardware; and
(c) provide any other services as set out in this agreement,
(together the Services).
1.3 This agreement is 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).
1.4 This agreement consists of (in the order of priority):
(a) this document;
(b) the Commercial Details Schedule;
(c) any other terms and conditions as set out on an URL provided by us,
(the agreement).
1.5 By:
(a) logging into an Account; or
(b) accessing or using the Services,
you, each person, entity or organisation using our Services (referred to as you or a user):
(c) warrant to us that you have reviewed this agreement including our Privacy Policy, available on the Site, and you understand them;
(d) warrant to us that you have the legal capacity to enter into a legally binding agreement;
(e) warrant to us that you have all hardware, software and services which are necessary to access and use the Services (apart from the Software, Services and Hardware we will supply to you); and
(f) agree to use the Services in accordance with this agreement,
(your Acceptance).
1.6 If you are agreeing to this agreement not as an individual but on behalf of a company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” means you as the individual user and the Represented Entity and you are binding yourself and the Represented Entity to this agreement. If you are accepting this agreement and using our Services on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.
2 Premises eligibility
2.1 You agree to meet the following minimum eligibility requirements, if applicable, in order to access the Services:
(a) you agree that the Services are location specific. You must reside or otherwise legally occupy the premises you wish to connect the Services to (Premises) and/or pay any relocation fees if required;
(b) if applicable to you, your Premises must have the Minimum Technical Requirements (as defined and set out on the Site) to use the Services. The Hardware will not function and we will not be able to provide you with the Services if you do not meet the Minimum Technical Requirements. You are responsible for any costs associated with providing this; and
(c) you have all rights, permissions, consents and authorisations to connect the Services (including, for the avoidance of doubt, the right to authorise the installation of the Hardware on the Premises,
(together, Premises Eligibility Requirements).
2.2 It is your responsibility to ensure that you meet the Premises Eligibility Requirements when assessing whether the Services are appropriate for you before your Acceptance. You must notify us at any time during the Term if you fail to meet any of the Premises Eligibility Requirements.
2.3 We will notify you if at any stage you do not meet out requirements set out in clause 2.1.
2.4 If, during the Term you fail to meet any of the Premises Eligibility Requirements and it cannot be remedied, we may terminate this agreement in accordance with the termination clause below. We may, at our absolute discretion, instead of terminating this agreement, choose to provide you with limited Services.
3 Registration and account
3.1 You will be required to create an Account with us in order to access and use the Services. You must ensure that any personal information you give us when creating an Account is accurate and up-to-date. All personal information that you give to us will be treated in accordance with our Privacy Policy.
3.2 When you create an Account, you will choose your plan based on the features, including if applicable, number of authorised users and Hardware made available for use described (Plan).
3.3 If applicable, as part of each Plan, we will provide you with a number of authorised user log-ins and passwords, and any Hardware as set out in your Plan.
3.4 You may be offered additional services as set out on the Site.
3.5 It is your responsibility to keep your Account details confidential. You are liable for all content posted and all activity on your Account and content posted by others who have logins or accounts associated with your Account, and you must immediately notify us of any unauthorised use of your Account.
3.6 You must ensure you have consent under all applicable Laws (defined below) when sharing the personal information of any other users including authorised users and your personnel. At our sole discretion, we may refuse to allow any person to create an Account.
4 Collection notice
4.1 We collect personal information about you in order to enable you and your authorised users to access and use the Site, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.
4.2 We may disclose that information to third party service providers who help us deliver our services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law. If you do not provide this information, we may not be able to provide the Services to you. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.
4.3 Our Privacy Policy contains further information about: (i) how we store and use your personal information; (ii) how you can access and seek correction of your personal information; (iii) how you can make a privacy-related complaint; and (iv) our complaint handling process. By providing personal information to us, you consent to us collecting, holding, using and disclosing your personal information in accordance with our Privacy Policy.
5 SaaS licence
5.1 In consideration for payment of the fees, as set out on the Site (Fees), we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under this agreement and any Laws) and revocable licence to access and use the SaaS Services for internal business purposes for the Term (SaaS Licence).
5.2 You agree that provided you have paid any Fees due:
(a) the SaaS Licence will start on the date the Account was created;
(b) if applicable, the SaaS Licence permits you to access and use the SaaS Services in accordance with the number and type of authorised users, as set out in your Account and/or the Commercial Details or otherwise agreed by us;
(c) if the number of authorised users is exceeded we may charge a fee for each additional authorised user as set out on the Site; and
(d) we reserve the right at any time and from time to time to change or remove features of the SaaS Services provided that, where there is any material alteration to the SaaS Services in accordance with this clause, we will provide you with 20 business days’ notice.
6 Fees
6.1 You must pay us:
(a) the Fees; and
(b) any other amount payable to us under this agreement,
without set off or delay via the payment method as set out on the Site.
6.2 You may be required to pay an establishment fee as set out on the Site to cover the costs of set up and installation of Hardware (Establishment Fee). The Establishment Fee is in addition to the Fees.
6.3 You must pay the Fees for the Services where the Services are unavailable or you are unable to access the Services due to you not meeting the Premises Eligibility Requirements including, for the avoidance of doubt, where your internet connection is unavailable.
7 Plan Fees
7.1 If applicable, the first Plan Fee and Establishment Fee will be payable upon creation of your Account.
7.2 Depending on which Plan you choose, your Plan may automatically renew on the date following the expiry of your Plan for consecutive billing periods until you terminate your Account in accordance with the termination clause below. If this is the case, we will provide you with notification 30 days before the renewal date. If you wish to terminate your Plan, you must notify us in accordance with the termination clause below by giving at least one complete billing cycles’ notice prior to the end of the current billing cycle.
7.3 Fees are payable in advance of each Plan billing cycle, unless otherwise agreed with us.
7.4 You will be issued an invoice or receipt, as applicable, when your payment is processed for each billing cycle.
7.5 You must pay any Fees due within 7 days otherwise we may suspend or terminate your Account in accordance with the termination clause below.
8 Fixed Plan
8.1 Where you have chosen to sign up to a Plan for a specified amount of time (Fixed Term Plan) and you choose to terminate your Plan before the end of the Fixed Term Plan, you will be liable to pay a fee to terminate this agreement early which may, at our absolute discretion, be the sum of all Fees for the remaining billing cycles in your Fixed Term Plan.
8.2 The Fee is non-refundable. To the maximum extent permitted by law, there will be no refunds or credits for any unused Plan (or part thereof), Plan downgrade or unused Accounts. Downgrading your Plan may result in the loss of content, features or capacity of your Account. We do not accept any liability for any losses or damages that may arise in such cases.
9 Free Trial
9.1 We may offer you a free or trial Account with limited features designed to allow you to evaluate the Services and make sure they are right for you before signing up for a paid Plan. Any trial period can change at any time without notice. We have the right to terminate any trial Account if you are found to be misusing the Services. Any services that are offered on a free or introductory basis without annuity charge (irrespective of whether a setup charge may be payable) are provided on an as-is, where is basis without warranty.
10 Changes to Plans
10.1 If you upgrade or downgrade your Plan, the payment method linked to your Account will automatically be charged the Fee for your new Plan in advance of your next Plan billing cycle. Please ensure that this payment method has sufficient funds to pay the Fee. If your payment method expires and you do not cancel this agreement, you will remain responsible for paying the Fee for the Plan, which will accrue to your Account until we receive a cancellation notice.
10.2 If you accept any “in app” or web based offers made in conjunction with the Services they will be binding at the time we receive full and final payment unless the offer expressly states otherwise.
11 Payment Terms
11.1 All Fees exclude GST. If you are located outside Australia you will not be charged GST. You are responsible for all taxes, levies or duties imposed by taxing authorities in your own country, and you will be responsible for payment of them. We have no responsibility to them on your behalf.
11.2 The Fee is subject to change upon 45 days’ notice from us to you and will apply to the next Plan billing cycle. Such notice may be provided at any time by posting the changes on our Site, via email or via a notification to your Account. If you do not agree to the Fee change, you may cancel your Account in accordance with the termination clause below.
11.3 If any payment is not made in accordance with our payment terms, including if applicable, where an invoice is issued, we may (at our absolute discretion):
(a) immediately after providing you 7 days written notice, cease providing the Services and recover as a debt due and immediately payable from you our additional costs of doing so;
(b) 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 amounts unpaid after the due date of payment;
(c) engage debt collection services and/or commence legal proceedings in relation to any unpaid amounts; and/or
(d) report you to independent credit data agencies.
12 Restrictions
12.1 You acknowledge and agree that this agreement incorporate by reference the terms of any acceptable use policy, privacy policy and website terms and conditions as set out on the Site or as provided to you from time to time.
12.2 You must not (and must ensure the authorised users do not) access or use the Services except as permitted by this agreement and you must not do, omit to do, or authorise any act that would or might invalidate or be inconsistent with our intellectual property rights in the Services, Hardware or Software. Without limiting the foregoing provisions, you must not and must not permit any other person to:
(a) resell, assign, transfer, distribute or provide others with access to the Services or Hardware;
(b) “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network;
(c) copy, alter, modify, create derivative works from, reproduce to a third party, reverse assemble, reverse engineer, reverse compile or enhance the Services, Hardware or Software;
(d) 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, Software or Hardware;
(e) use the Services in any way which is in breach of any applicable local, state, federal and international laws and regulations including workplace health and safety and workplace surveillance laws (Laws) or which infringes any person’s rights, including intellectual property rights and privacy rights;
(f) use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
(g) use the Services in any way that damages, interferes with or interrupts the supply of the Services;
(h) introduce malicious programs into our Hardware and Software or our Hardware, Software and Services which are integrated and operate together, including our networks, including malware, viruses, worms, trojan horses and e-mail bombs;
(i) reveal your Account password to others or allow others to use your Account (other than authorised users);
(j) use the 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);
(k) 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;
(l) send any unsolicited email messages through or to users of the Services in breach of the Spam Act 2003 (Cth) or to 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
(m) use the Services to circumvent user authentication or security of any of your networks, accounts or hosts or those of your customers or suppliers.
13 Relocation
13.1 If at any time during the Term you relocate your Premises you must notify us in writing as soon as possible.
13.2 In discussion with you, we will determine whether relocation of the Services is possible at your new location. There may be times where relocation is not possible at your new Premises. Any relocation is subject to the Premises Eligibility Requirements. If you do not meet the Premises Eligibility Requirements then we may at our absolute discretion terminate your Account.
13.3 Where we are able to relocate your services you may need to pay relocation fees as set out on the Site and at our discretion we will determine whether your Plan will continue at the new location or whether you may need to enter into a new Plan and pay any further fees associated.
14 Hardware
14.1 Where your chosen Plan includes Hardware and you do not purchase it from us, in consideration of your payment of the Fees, we will provide to you the Hardware chosen in your Plan from the date of delivery until the date your Account is terminated in accordance with this agreement (Hardware Period).
14.2 We own the Hardware and you take the Hardware as bailee only. We may use a third party manufacturer to manufacture the Hardware (Manufacturer).
14.3 During the Hardware Period, despite any provision to the contrary, to the maximum extent permitted by law, you acknowledge and agree:
(a) to ensure that you have any necessary permissions or consent to install and use the Hardware (including from any strata or building management) and to the fullest extent possible do not allow anyone to interfere or otherwise tamper with the functioning of the Hardware;
(b) to protect and maintain the Hardware and keep it in good order and condition;
(c) that you are responsible for any loss, cost, theft, damage, vandalism or destruction of or to the Hardware; and
(d) that no such loss, cost, theft, damage or destruction of or to the Hardware will impair or frustrate any of your obligations under this agreement (including, without limitation, as to the payment of the Fee).
14.4 Unless otherwise advised by us, you are not permitted to otherwise conduct any support, maintenance and/or otherwise tamper with the Hardware or permit any third party not authorised by us to do so. Any such actions may void any remedies and/or rights you may have under this agreement
14.5 Upon termination of this agreement or cancellation of the Services, you are responsible for returning all Hardware to us at your cost in the same condition that we provided it to you (fair wear and tear excepted).
15 Access to premises
15.1 If applicable, you agree to grant us (including our employees and contractors) the right to enter and remain on the Site and all other lands necessary for us to perform our obligations under this agreement, for us to inspect, install, maintain or retrieve the Hardware or any part of them, or do to anything else incidental to those purposes (Land).
15.2 If you do not own any part of the Land, you warrant that you have obtained written permission from the relevant owners of the Land for us to enter and remain on the Land to enable us to perform our obligations under this agreement at all relevant times.
15.3 You must ensure that we (including our employees and contractors) have convenient and safe access to all parts of the Land and to all plant, equipment, machinery, utilities and services as required to enable us to perform our obligations under this agreement.
15.4 Without limiting any other clause under this agreement, you are responsible for obtaining any access, consents, licences and permissions from other parties necessary for the Hardware and Services to be supplied, at your cost, and for providing us (and our employees, agents and contractors) with the necessary access, consents, licences and permissions.
16 Hardware delivery
16.1 We deliver the Hardware Australia wide. We normally dispatch Hardware within 5 days of receiving the Fees, unless otherwise noted as set out on the Site or during the purchase process. Any delivery periods as set out on the Site are estimates only, based on the information provided by any delivery company we may use to dispatch the Hardware.
16.2 We may deliver the Hardware using a range of delivery methods. All deliveries must be signed for. If neither you nor your authorised representative is at the delivery address to accept delivery, the delivery company will generally deliver the Hardware to your nearest post office.
16.3 If payment is declined for any reason, we reserve the right to reclaim the Hardware from your possession, custody or control even if the Hardware has been delivered to you or moved from the delivery address. We reserve the right to keep or sell the Hardware. Risk of loss, damage or deterioration to any Hardware will pass to you on delivery.
17 Hardware defects
17.1 If during the Hardware Period, you consider that the Hardware contains any fault, defect or error which is caused by a breach of this agreement by us (Defect), you must immediately notify us in writing. If we inform you that it is necessary you must arrange for the return of the Hardware to us for our inspection (or the inspection of our Manufacturer, if applicable) to the details set out at the end of this agreement. You agree to provide us with all information we reasonably request concerning the Defect.
17.2 If requested, you must make available or return all the relevant Hardware, together with all packaging, parts, accessories, and documentation provided with the Hardware.
17.3 If, on our inspection of the Hardware, (or the inspection of our Manufacturer, if applicable) we (or our Manufacturer, if applicable) consider the Hardware to be defective, and such Defect was not caused or contributed to by anything that you or a third party did, then:
(a) we may, either repair or replace the relevant Hardware, refund that portion of the Fee to which the relevant Hardware relates, or provide you with compensation in the way of an extension of the use of the Hardware and your Plan; and
(b) we will refund you any costs associated with the return of the Hardware to us.
17.4 Where any Hardware is manufactured by a Manufacturer it may be covered by a separate hardware manufacturer’s warranty which will be set out on the Site and incorporated into this agreement. Where any hardware manufacturer’s warranty applies we may be required to send any Defects to our Manufacturer for inspection, repair and/or replacement under this clause.
17.5 Where any Hardware is damaged, or otherwise contains any fault, defect or error, caused or contributed to by you or any third party, you may obtain replacement Hardware, at your cost, by contacting us.
18 Personal Property Securities Act 2009 (Cth)
18.1 In this clause, PPSA means Personal Property Securities Act 2009 (Cth). Terms defined in the PPSA have the same meaning when used in this clause.
18.2 We will retain full legal and equitable ownership of and title to, all Hardware.
18.3 You acknowledge that our interest in the Hardware under this agreement and all proceeds from the sale of such Hardware by you to a third party is a security interest (although any such sale would be a breach of this agreement).
18.4 You consent to us registering our security interest on the PPSR and agree to provide all assistance we reasonably require: (i) to facilitate registration; (ii) to ensure that our security interest is enforceable against you and third parties, perfected and otherwise effective, and has the priority we require; and/or (iii) to enable us to exercise our rights in connection with the security interest.
18.5 You undertake to give us not less than 14 days written notice of any proposed change in your name and/or any other changes in your details (including but not limited to changes in your address, telephone numbers, email address, trading name or business practice).
18.6 Pursuant to section 275(6) of the PPSA, you agree that you will not disclose to an interested person information pertaining to our security interest without our prior approval.
18.7 You will pay on demand any losses arising from, and any costs and expenses incurred in connection with registration of a security interest and/or any action taken by us to protect our security interest described above.
18.8 You waive the right to receive any notice, copies of documents or information under the PPSA (including notice of a verification statement) unless the notice, document or information is required by the PPSA and cannot be excluded (including under sections 95, 117, 118, 121(4), 125, 127, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 136(5), 137(3), 142 and 143 of the PPSA which will not apply).
19 Support
19.1 During the Term, we will endeavour to provide you with the support and maintenance services as set out on the Site (Support Services), provided that: (i) you notify us in accordance with any applicable systems and processes as set out on the Site; and (ii) 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).
19.2 We have no obligation to provide Support Services for, and provide no warranties in respect to, the Software and/or Hardware, or any part of the Software and/or Hardware, which has been modified by a person other than us.
20 Your data
20.1 You grant us and our sub-processors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to: (i) use, copy, back-up, process, transmit, store, edit, modify, aggregate, combine, reproduce, distribute, display, and prepare derivative works of the information, documents and other data you, your personnel or any authorised users provide to us, is created by the use of the SaaS Services including sensor data metrics or report classification data or upload to the SaaS Services or which we otherwise access in providing the Services (Data); and (ii) otherwise access, use or make reference to the Data or any intellectual property rights in the Data:
(a) to supply the Services (including enabling you, your personnel and authorised users to access and use the SaaS Services);
(b) for diagnostic purposes;
(c) to test, enhance and otherwise modify the Services whether requested by you or not;
(d) to develop other services; and
(e) as reasonably required for the performance of our obligations under this agreement.
20.2 Notwithstanding anything to the contrary in this agreement or elsewhere, 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 anonymized format (Analytics). You agree that we may make such Analytics publicly available, provided that it: (i) does not contain identifying information; and (ii) is not compiled using a sample size small enough to make the underlying data identifiable. We and/or our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all intellectual property rights in the foregoing.
20.3 If you or any of your personnel have any moral rights (as defined in the Copyright Act 1968 (Cth)) (Moral Rights) in any Data, you (and you will ensure that your personnel) consent to the infringement of those Moral Rights by us or our personnel.
20.4 You must, at all times, and where applicable, ensure your Data is virus free, accessible and useable and that your use of your Data is compliant with all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in this agreement; and (ii) your Data and its transfer to and use by us as authorised by you under this agreement do 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 this agreement is not inconsistent with the terms of any applicable privacy policies. We assume no responsibility or liability for your Data, and you shall be solely responsible for your Data and the consequences of using, disclosing, storing or transmitting it.
20.5 We have no obligation to monitor any content uploaded to the SaaS Services. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove your Data from the SaaS Services. We have no liability to you for removing your Data from the SaaS Services.
21 Intellectual property rights
21.1 All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with this agreement, the Software, the Hardware, the SaaS Services and the Services) will at all times vest, or remain vested, in us.
21.2 You must not, without our prior written consent:
(a) copy or use, in whole or in part, any of our intellectual property;
(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our intellectual property to any third party; or
(c) breach any intellectual property rights connected with the Site, the Software, the Hardware, the SaaS Services or the Services, including (without limitation) altering or modifying any of our intellectual property; causing 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.
21.3 You acknowledge and agree that we will own any suggestions, enhancement requests, recommendations or other feedback provided by you, your personnel or customers, relating to the Services.
21.4 This clause 21 will survive termination of your Account.
22 Your responsibilities and obligations
22.1 You must, at your expense:
(a) provide us with all materials and all reasonable assistance and cooperation in order for us to supply the Services in an efficient and timely manner, including obtaining from authorised users any consents necessary to allow you and your personnel to engage in the activities described in this agreement and to allow us to provide the Services;
(b) provide us and our personnel with reasonable access to your environment and Premises, including all systems, information technology and telecommunications services (Environment), if necessary for us to supply the Services;
(c) ensure that only your personnel and authorised users access and use the Services and such use and access is in accordance with this agreement;
(d) ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked; and
(e) make any changes to your Environment, such as system upgrades, that may be required to support the delivery and operation of any Services or Hardware.
23 Indemnity and liability
23.1 Despite anything to the contrary, to the maximum extent permitted by the law:
(a) our maximum aggregate liability arising from or in connection with this agreement (including the Services, Software, Hardware or the subject matter of this agreement) will be limited to, and must not exceed the total amount of Fees you paid to us in the year in which the liability arose; and
(b) we will not be liable to you for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated 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.
23.2 Despite anything to the contrary, to the maximum extent permitted by the law, we have no liability, and you release and discharge us from all liability, arising from or in connection with any:
(a) any damage, injury or loss to any person or property;
(b) failure or delay in providing the Services;
(c) unavailability, outage or interruption to the Services or your systems;
(d) guarantee or warranty if you choose to not follow any of our recommendations provided through the Services;
(e) the Hardware, including the functionality, use or installation of the Hardware;
(f) any act or omission of third parties (including, without limitation, any third parties engaged by you to install the Hardware at your Premises);
(g) breach of this agreement or any Laws; (specifically workplace health and safety and workplace surveillance laws if applicable); or
(h) breach of any person’s privacy or other rights when using the Hardware,
where caused or contributed to by any:
(i) event or circumstance beyond our reasonable control;
(j) a fault, defect, error or omission in your Environment or Data; or
(k) act or omission of you, your related parties, personnel or a third-party service provider,
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.
24 Australian Consumer Law
24.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the goods and services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
24.2 Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled:
(a) to cancel this agreement with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
24.3 You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the services and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or services.
24.4 If the ACL applies to you as a consumer, nothing in this agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for the goods and services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this agreement.
24.5 Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the goods and services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.
24.6 This clause 24 will survive the termination or expiry of this agreement.
25 Acknowledgment
25.1 You acknowledge and agree that:
(a) you are responsible for all users using the Services, including your personnel, customers and any authorised users;
(b) you use the Services and any associated programs and files at your own risk;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) any collation, conversion and analysis of Data performed as part of the Services (whether by the Services or otherwise) is likely to be subject to human input and machine errors, omissions, delays and losses, including any loss of Data. We are not liable for any such errors, omissions, delays or losses; and you are responsible for adopting reasonable measures to limit the impact of such omissions, delays, losses and errors;
(h) we are not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by you, your personnel, your related bodies corporate or any authorised users;
(i) we are not responsible for the integrity or existence of any Data on the in the Environment, network or any device controlled by you or your personnel; and
(j) we may pursue any available equitable or other remedy against you if you breach any provision of this agreement.
25.2 Despite anything to the contrary, to the maximum extent permitted by law, you must indemnify us and hold us harmless from and against any loss, cost, liability or damage, howsoever arising, suffered or incurred by us and arising from or in connection with any claim relating to your Data, your use of the Services or any breach of this agreement by you.
25.3 This clause 25 will survive termination of the Account.
26 Termination
26.1 This agreement will terminate immediately upon written notice by:
(a) us, if:
(i) you (or any of your Personnel) breach a material provision of this agreement and that breach has not been remedied within 10 business days of being notified by us;
(ii) you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
(iii) for any other reason outside our control which has the effect of compromising our ability to provide the Services; or
(iv) you are unable to pay your debts as they fall due; and
(b) you, if we:
(i) are in breach of a material term of this agreement, and that breach has not been remedied within 10 business days of being notified by you; or
(ii) are unable to pay our debts as they fall due.
26.2 Upon expiry or termination of this agreement:
(a) we will immediately cease providing the Services;
(b) you agree that any payments made by you to us are not refundable to you, and 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 this agreement; and
(c) you agree to grant us such rights of access to any premises where the Hardware is located to allow us (or our Personnel) to immediately recover or repossess Hardware belonging to us.
26.3 We will retain your documents (including copies) as required by Law or regulatory requirements. Your express or implied agreement to this agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this agreement.
26.4 Termination of this agreement will not affect any rights or liabilities that a Party has accrued under it.
26.5 This clause 26 will survive the termination or expiry of this agreement.
27 General
27.1 Non-exclusive: Our Services are performed on a non-exclusive basis.
27.2 Illegal Requests: We reserve the right to refuse any request for or in relation to any Services that we deem inappropriate, unreasonable, illegal or otherwise non-compliant with this agreement.
27.3 Subcontracting: We may engage subcontractors to perform the Services on our behalf.
27.4 Force Majeure: If a party (Affected Party) is unable to perform any of its obligations under this agreement due to an event or circumstance beyond its reasonable control (Force Majeure) and it gives the other party prompt written notice of such, the Affected Party’s obligations will be suspended to the extent necessary. The Affected Party must use reasonable efforts to limit the impact of the event on its performance and must continue to perform its obligations in full as soon as the Force Majeure ceases.
27.5 Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, this agreement without first meeting with a senior representative of the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).
27.6 Notices: Any notice given under this agreement must be in writing and addressed to us at the details set out below or to you at the details provided when setting up your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 4 business days in the case of post, or at the time of transmission in the case of email.
27.7 Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to this agreement does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.
27.8 Relationship of parties: This agreement is not intended to create a partnership, joint venture or agency relationship between the parties.
27.9 Severance: If a provision of this agreement 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 this agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions.
27.10 Assignment: You must not assign any rights or obligations under this agreement, whether in whole or in part, without our prior written consent.
27.11 Entire agreement: This agreement contains the entire understanding and agreement between you and us in respect of their subject matter.
27.12 Amendment: We may, at any time and at our discretion, vary this agreement by publishing varied terms on the Site. Such variation will take effect at the commencement of your next Plan billing cycle. Prior to the commencement of each Plan billing cycle, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them.
27.13 Governing law: This agreement is governed by the laws of New South Wales. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts. The Services may be accessed in Australia and overseas. We make no representation that the Services complies 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 are responsible for complying with the laws in the place you access the Services.

For any questions, please contact us at:

Email: legal@mydoorman.com.au

Last update: 01/11/2019