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 [PlatformURL] (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.
1 Premises eligibility
1.7 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).
1.8 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.
1.9 We will notify you if at any stage you do not meet out requirements set out in clause 2.1.
1.10 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.
2 Registration and account
1.11 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.
1.12 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).
1.13 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.
1.14 You may be offered additional services as set out on the Site.
1.15 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.
1.16 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.
3 Collection notice
1.17 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.
1.18 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.
1.19 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.
4 SaaS licence
1.20 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).
1.21 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.
5 Fees
1.22 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.
1.23 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.
1.24 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.
6 Plan Fees
1.25 If applicable, the first Plan Fee and Establishment Fee will be payable upon creation of your Account.
1.26 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.
1.27 Fees are payable in advance of each Plan billing cycle, unless otherwise agreed with us.
1.28 You will be issued an invoice or receipt, as applicable, when your payment is processed for each billing cycle.
1.29 You must pay any Fees due within 7 days otherwise we may suspend or terminate your Account in accordance with the termination clause below.
7 Fixed Plan
1.30 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.
1.31 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.
8 Free Trial
1.32 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.
9 Changes to Plans
1.33 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.
1.34 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.
10 Payment Terms
1.35 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.
1.36 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.
1.37 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.
11 Restrictions
1.38 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.
1.39 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.
12 Relocation
1.40 If at any time during the Term you relocate your Premises you must notify us in writing as soon as possible.
1.41 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.
1.42 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.
13 Hardware
1.43 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).
1.44 We own the Hardware and you take the Hardware as bailee only. We may use a third party manufacturer to manufacture the Hardware (Manufacturer).
1.45 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).
1.46 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
1.47 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).
14 Access to premises
1.48 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).
1.49 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.
1.50 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.
1.51 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.
15 Hardware delivery
1.52 We deliver the Hardware Australia wide. We normally dispatch Hardware within [X] hours/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.
1.53 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.
1.54 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.
16 Hardware defects
1.55 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.
1.56 If requested, you must make available or return all the relevant Hardware, together with all packaging, parts, accessories, and documentation provided with the Hardware.
1.57 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.
1.58 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.
1.59 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.
17 Personal Property Securities Act 2009 (Cth)
1.60 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.
1.61 We will retain full legal and equitable ownership of and title to, all Hardware.
1.62 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).
1.63 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.
1.64 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).
1.65 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.
1.66 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.
1.67 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).
18 Support
1.68 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).
1.69 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.
19 Your data
1.70 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.
1.71 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.
1.72 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.
1.73 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.
1.74 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.
20 Intellectual property rights
1.75 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.
1.76 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.
1.77 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.
1.78 This clause 21 will survive termination of your Account.
21 Your responsibilities and obligations
1.79 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.
22 Indemnity and liability
1.80 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.
1.81 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.
23 Australian Consumer Law
1.82 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).
1.83 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.
1.84 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.
1.85 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.
1.86 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.
1.87 This clause 24 will survive the termination or expiry of this agreement.
24 Acknowledgment
1.88 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.
1.89 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.
1.90 This clause 25 will survive termination of the Account.
25 Termination
1.91 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.
1.92 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.
1.93 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.
1.94 Termination of this agreement will not affect any rights or liabilities that a Party has accrued under it.
1.95 This clause 26 will survive the termination or expiry of this agreement.
26 General
1.96 Non-exclusive: Our Services are performed on a non-exclusive basis.
1.97 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.
1.98 Subcontracting: We may engage subcontractors to perform the Services on our behalf.
1.99 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.
1.100 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).
1.101 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.
1.102 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.
1.103 Relationship of parties: This agreement is not intended to create a partnership, joint venture or agency relationship between the parties.
1.104 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.
1.105 Assignment: You must not assign any rights or obligations under this agreement, whether in whole or in part, without our prior written consent.
1.106 Entire agreement: This agreement contains the entire understanding and agreement between you and us in respect of their subject matter.
1.107 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.
1.108 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: 2019.11.01