Software Licence Terms and Conditions – ZionExtras

The Software is owned and operated by WPLIT Pty Ltd ACN 651 372 244 trading as ZionExtras (Provider). The terms contained in these Software Licence Terms and Conditions (the Terms) govern access to and use of the Software (as defined below) by you, the individual using the Software, and any legal entity on whose behalf you are acting (Client). 

By clicking “I agree” (or a similar button) that is presented to you in relation to these Terms, or by placing an order for the Software, or by using or accessing the Software, you indicate your assent to be bound by these Terms. 

If a person is agreeing to these Terms on behalf of the Client, the person agreeing on behalf of the Client warrants that it is the Client’s agent and has the irrevocable authority and agreement of the Client to be bound by these Terms. 

The Provider may, at its sole discretion, vary or modify these Terms and any Services by posting such amended Terms and Conditions and Services on the Provider’s website Zionextras.com (Website). The Provider will notify the Client of any material changes directly to the email address linked to the Client’s Account. Unless otherwise stated, all amended terms will automatically be effective from the date they are posted on the Website. Any subsequent access to, or use by the Client of the Software and the Services will constitute an acceptance of those changes. If the Client does not agree to these new terms, they must stop using the Software and the Services. Each time the Client accesses or uses the Software they should revisit these Terms.

  1. Definitions and Interpretations
    1. Definitions

In these Terms unless inconsistent with the context or subject matter the following terms have the corresponding definitions:

  1. Account: an account enabling the Client and an Authorised User to access and use the Software.
  2. ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
  3. Applicable Laws: any laws governing or affecting the arrangements contemplated by these Terms. 
  4. Authorised User: such persons authorised to use the Software in accordance with these Terms.
  5. Client Data: all data, files, works and materials uploaded to or stored within the Software (or a connected database) by the Client (or Authorised Users), transmitted by the Software at the instigation of the Client (or Authorised Users), or supplied by the Client (or Authorised Users) to the Provider for transmission by or storage within the Software.
  6. Commencement Date: the date that these Terms become binding on the Client.  
  7. Confidential Information: of a party means all information (in any form): 
    1. that concerns a party’s business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, client lists, pricing, and other business processes), including:
      1. the Client Data (this is the Client’s Confidential Information);
      2. the information regarding the Services and the Software including (including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Software and Materials) (this is the Provider’s Confidential Information); and
    2. includes these Terms (as far as they are not publicly available),

but does not include information that becomes publicly available without breach of these Terms.

  1. Corporations Act: the Corporations Act 2001 (Cth).
  2. Fee: any fees payable by the Client to the Provider to use the Services in accordance with clause 4, including the Licence Fee and any other fees otherwise payable by the Client to the Provider under these Terms.
  3. Force Majeure Event: events, circumstances or causes beyond a party’s reasonable controlincluding (but not limited to):
    1. strikes, lock-outs or other industrial action;
    2. civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
    3. fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic (including COVID-19), health emergencies, disease, or other natural disaster;
    4. impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
    5. interruption or failure of utility services (including the inability to use public or private telecommunications networks); 
    6. interruption of networks or third party services (including telecommunication or web services); and
    7. the acts, decrees, legislation, regulations or restrictions of any Government Agency, 

however does not include a lack of funds.

  1. Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
  2. GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
  3. Insolvency Event:
    1. a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
    2. a liquidator or provisional liquidator is appointed in respect of a person;
    3. any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (i) or (ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
    4. any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
    5. any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or
    6. a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.
  4. Intellectual Property Rights: all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.
  5. Licence: means the licence to use the Software granted by the Provider to the Client in accordance with clause 2.2(a).
  6. Licence Fee: the licence fees payable by the Client for the Licence in accordance with clause 4.1.
  7. Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
  8. Materials: all materials, documentation and information (whether reduced to written form or otherwise) provided to the Client by the Provider at any time.
  9. Personnel: the directors, officers, employees, contractors, suppliers, Authorised Users, advisers or agents of a party.  
  10. Policy: means any policy of the Provider in place from time to time.
  11. Privacy Legislation: means the Privacy Act 1988 (Cth), including Australian Privacy Principles, and the guidance and codes of practice issued by the Office of the Australian Information Commissioner from time to time.
  12. Privacy Policy: means the privacy policy of the Provider as made available on the Provider’s website.
  13. Related Entity: has the meaning given in section 9 of the Corporations Act.
  14. Services: means any services that the Provider provides to the Client, including without limitation the Licence to the Software.
  15. Software: means the ZionExtras premium Ziongen addon provided by the Provider.
  16. State: New South Wales. 
  17. System: means the Client’s system and IT infrastructure that will host the Software (including servers and web hosting).
  18. Term: means the term of these Terms, commencing on the Commencement Date and ending on the date that they are terminated in accordance with these Terms. 
  19. Terms: these Software Licence Terms and Conditions and any amendments to these terms from time to time.
  20. Interpretation

In these Terms the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

  1. Headings and subheadings are for convenience only and do not affect the interpretation of these Terms.
  2. References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, these Terms.
  3. References to parties are references to the parties to these Terms.
  4. References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
  5. Words denoting the singular include the plural and words denoting the plural include the singular.
  6. Words denoting any gender include all genders.
  7. The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
  8. A reference to a body (other than a party to these Terms), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
  9. A reference to any agreement or document (including these Terms) includes any amendments to or replacements of that document.
  10. A reference to a law includes:
    1. legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
    2. any constitutional provision, treaty or decree;
    3. any judgment;
    4. any rule or principle of common law or equity,

and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.

  1. Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
  2. Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
  3. No provision of these Terms will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms. 
  4. If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
  5. A reference to time is a reference to time in the capital city of the State.
  6. A reference to a day is a reference to a day in the capital city of the State.
  7. A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
  8. If any act is required to be performed under these Terms by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
  9. If any act is required to be performed under these Terms on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
  10. A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
  11. Specifying anything in these Terms after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
  12. Where these Terms is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
  13. These Terms includes all schedules, annexures, appendices, attachments and exhibits to it.
  14. A reference to writing or written includes email. 
  15. Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
  1. Licence
    1. Term of Licence
      1. These Terms shall commence on the Commencement Date and continue until terminated in accordance with its terms. The Licence granted under clause 2.2 will start from the date the payment of the Licence Fee is made, and is granted for lifetime access to the Software, subject to these Terms.
    2. Grant of Licence
      1. In consideration of the Fees paid by the Client to the Provider in accordance with clause 4, the Provider grants the Client a Licence to use the Software on the terms set out in the GNU General Public License accessible from https://www.gnu.org/licenses/gpl-3.0.en.html (GNU), in accordance with these Terms.
      2. The Licence granted provides the Client with access to download, install and use the Software and is subject to any restrictions and limitations as stated on the Website at the time of purchase of the Licence and as set out in the GNU. Access to the Licence is granted to the Client and its Authorised Users (being its Personnel). The Client is solely responsible for all acts and omissions of Authorised Users. 
      3. The Client acknowledges and agrees that the Provider has the right to audit the Client’s use of the Software. In the event that an audit reveals that the Client has exceeded any Licence limitations specified in these Terms, the Provider has the right to revoke the Licence granted.
    3. Access restrictions
      1. Except to the extent expressly permitted in these Terms, the Licence granted by the Provider to the Client under clause 2.2 is subject to the following restrictions:
        1. such restrictions as set out in the GNU;
        2. the Client must not sublicence, assign or novate the benefit or burden of this Licence in whole or in part to any third party (except that it is permitted to under the terms of the Licence in accordance with these Terms);
      2. Except to the extent permitted under the GNU, the Client acknowledges that the Licence granted does not grant the Client any right to discover, or request information relating to the operation, structure or underlying source and object code of the Software. 
      3. Any act or omission by any of the Client’s Authorised Users will be deemed to be an act or omission of the Client for the purposes of these Terms. 
    4. Use of the Licence for end clients
      1. Where the Client uses the Software in the provision of services to its end clients (End Clients) such as by integrating it in an End Client’s website and/or Systems, the Client acknowledges and agrees that:
        1. any arrangement entered into with an End Client is between the Client and End Client only, and the Provider is not a party to it. The Provider’s responsibility is limited to the supply of the Licence to the Client to use the Software, and the Provider will not be liable and has no obligation to deal with End Clients including without limitation any issues with the integration of the Software with an End Client’s website and/or Systems or any use by End Clients of the Software; and
        2. it must not sublicence, assign or novate the benefit or burden of this Licence in whole or in part to its End Clients (except that it is permitted to under the terms of the Licence in accordance with these Terms).
      2. Because of the foregoing, in the event that the Client has a dispute with one or more End Clients, the Client releases and holds the Provider (and its Related Parties) harmless from actions, claims, demands and Losses of every kind arising out of or in any way connected with such disputes. This includes without limitation, if the Software has a bug, or the Client’s integration of the Software is hacked.
      3. For the avoidance of doubt, the Provider will not be liable for any Loss as a result of an integration of the Software with an End Client’s System.
  2. Account
    1. In order to download, install and use the Software, the Client will be given access to an Account which will include a download link and profile settings. The Account will be created using information provided by the Client at the order checkout page for the Software. In using the Account, the Client:
      1. must not use false or misleading information and must update their details should they have changed from the last time they used the Software;
      2. must follow any password policies specified by the Provider;
      3. is responsible for the security of its username and password and the Provider will assume that anyone using the Client’s Account is authorised to do so by the Client and the Client is responsible for their actions. Under no circumstances will unauthorised access and use of the Client’s Account reduce the Client’s liability to the Provider; 
      4. must notify the Provider immediately if it becomes aware of any unauthorised use of its Account or other security breach; and
      5. must ensure that each Authorised User complies with the above obligations. 
    2. The Client is strictly prohibited from sharing its Account with others (except for Authorised Users).
  3. Fees
    1. Licence Fee
      1. The Client must pay the Provider the Licence Fee in advance prior to being granted the Licence to access and use the Software. The Licence Fee payable by the Client for their Licence to the Software and any other charges the Client may incur in connection with their use of the Software will be as stated on the Website at the time the Software is ordered. 
      2. The Client may elect to participate in certain add-ons or functionality of the Software which must be paid for in accordance with the terms of these Terms.
      3. In the Provider’s sole discretion, the Provider may offer free or discounted pricing for various Services accessible on the Software and/or Website. The terms of such use and any limitations will be as specified on the Website at the time the Service is accessed. If the Provider offers the Client a trial program, once the terms of that trial program have expired the Client agrees that the Provider’s normal billing rates shall apply. The Client agrees to comply with any restrictions or limitations placed on their Account during any free or discounted pricing term.
    2. Payment method
      1. Payment of the Fees is to be made via a payment method as permitted on the Website.
      2. The Provider will provide the Client with an invoice for all Fees payable by the Client.
      3. The Client acknowledges that the Provider may not grant the Client access to the Software until they have received payment of all required Fees payable in cleared funds.
    3. General
      1. The Client must pay all Fees and other amounts without set-off or claim under any circumstance including if a dispute exists.
      2. The Provider may impose or deduct foreign currency processing costs on or from any payments or payouts made in currencies other than Australian dollars. 
      3. All amounts stated in or in relation to these Terms are, unless otherwise stated, exclusive of GST and VAT, which will be added to those amounts and payable by the Client to the Provider if applicable.
      4. Depending on the method of payment the Client uses to pay the Fees, additional charges may be incurred (such as a credit card processing charge).
      5. Subject to the refund policy contained in clause 8, all amounts paid by the Client are non-refundable to the extent permitted by law. 
  4. Client obligations 
    1. Use of Software
      1. The Client acknowledges and agrees that it will only use the Software in accordance with these Terms and any Policy.
      2. The acts and omissions of any Authorised User are deemed to be the acts and omissions of the Client and the Client is liable for its Authorised Users and must ensure that they comply with the Client’s obligations in respect of the use of the Software. 
      3. Except to the extent that it is permitted to under the terms of the Licence in accordance with these Terms, the Client’s use of the Software and the Services, including the information submitted on the Software and the Services, must not (and they must ensure that its Authorised Users use and information must not):
  1. be false, inaccurate, misleading, fraudulent, deceptive or unlawful; 
  2. be in any manner which could damage, disable, overburden, or impair the Software or interfere with any other party’s use and enjoyment of this Software;
  3. be in any manner to phish or deceptively obtain information of other users on the Software;
  4. impersonate or otherwise misrepresent the Client’s identity or affiliation with any other person or entity;
  5. be for purposes of junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) or to attract, lure or illegally obtain information from other users of the Software;
  6. infringe any third party’s rights or violate any Applicable Laws;
  7. contain any viruses or similar which could affect the integrity, operation or security of the Software; 
  8. create liability for the Provider or cause the Provider to lose (in whole or in part) the services or custom of our internet service provider, other clients, users or other suppliers;
  9. damage the credibility or integrity of the Software or the Provider, or dilute, tarnish, or otherwise harm the Provider’s brand in any way; or
  10. interfere with or disrupt the Software or servers or networks connected to the Software, or disobey any requirements, procedures, policies, or regulations of networks connected to the Software.
  11. Whilst using the Software and the Services, the Client must not, and must ensure that its Authorised Users do not (except to the extent that it is permitted to under the terms of the Licence in accordance with these Terms):
    1. attempt to gain unauthorised access to the Software or computer systems or networks connected to the Software through any means, this includes attempting to gain access to view or decompile the source code of the Software; 
    2. commit forgery (or attempted forgery), harass any individual, or harm minors in any way; 
    3. collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses;
    4. breach or violate any of the Provider’s policies and this Licence granted; 
    5. copy, store or otherwise access or use any information contained on the Software for purposes not expressly permitted by these Terms;
    6. use the Software for any purposes that are not permitted by these Terms, or in a manner that falsely implies the Provider’s endorsement, partnership or otherwise misleads others as to the Client’s affiliation with the Provider;
    7. attempt to circumvent payment of any fees in anyway; 
    8. modify or damage the Software in any manner that is not permitted by these Terms; and/or
    9. circumvent, disable or otherwise attempt to interfere with any security related features.
  12. Software
    1. Software Updates
      1. The Licence granted to the Client pursuant to these Terms includes access to any new features or modules that are created in future releases and updates of the Software. 
      2. Notwithstanding clause 6.1(a), the Client acknowledges and agrees that:
        1. the Provider is under no obligation to provide updates or new releases of the Software to the Client at any time; and
        2. the Provider does not warrant that the Software will be updated by the Provider during the Term.
    2. Software Maintenance
      1. The Software will at all times be installed and run from the Client’s System. The Provider is not obliged to provide the Client with the source code for the Software or any other information in connection with the Software that is not strictly required to enable the Client’s use of the Software for its intended purpose (as specified by the Provider). 
      2. The Client acknowledges and agrees that the Software may occasionally be unavailable during periods of planned or unscheduled critical and urgent maintenance.
    3. End of Life

Versions of the Software may be deemed “end of life” at the sole discretion of the Provider. Versions of Software that are deemed “end of life” by the Provider do not include any maintenance or support services. If the Client continues to use “end of life” Software, the Client accepts all liability for any Loss that may occur in connection with their use of the “end of life” Software and uses it solely at their own risk. For the avoidance of doubt, the Provider will not be liable for any Loss as a result of the Client’s use of “end of life” Software.

  1. Support & Service Levels

The Provider provides no guarantee as to the availability and/or uptime of the Software. The Provider will not be in breach of these Terms if it fails to achieve any minimum level of uptime, nor will it be liable for any Loss suffered by the Client or any other person in this regard.  

  1. Variations and amendments
    1. The Provider is not required to perform any customisations or amendments to the Software unless otherwise agreed between the parties in accordance with this clause.
    2. Should the Client require customisations and/or amendments to the Software, then the Client may request the Provider provide such amendments, and the Provider may accept or reject such request at its sole discretion. If the Provider accepts such requests then it will provide an additional quote (with additional fees if required to be paid as advised by the Provider at the time of request) and if accepted by the Client, an invoice will be issued to accommodate these changes.
    3. The Provider reserves the right to make changes to the Software which are necessary to comply with Applicable Laws, Government Agency requests or safety requirements.
  2. WordPress & Third Party Integrations
    1. The Client acknowledges that the Software will be integrated into a WordPress installation which will be running on the Client’s Systems and that such Systems are beyond the Provider’s reasonable control. 
    2. In the event that:
      1. the Client’s System is run in an environment which is not supported by the Software;
      2. the Client’s System is experiencing issues or downtime; or
      3. the Client is required to maintain an account with that third party service and fails to do so,

this may also cause the Software to become unavailable and the Provider accepts no responsibility for any Losses or notification in this regard. 

  1. Where information is transferred to a third party service, the Provider will not be liable for any Loss arising from the use of that information by that third party service.
  2. Where information stored in the Software is provided by or transferred from a third party service, the Provider will not be liable for any Loss arising from the errors or omissions from the data provided by third party, or from the unavailability of the third party’s service.
  3. For the avoidance of doubt, the Provider has no obligations with regards to the Software or the Services to assist or provide any services to any third party. Any requests to or from third parties are outside of the scope of the Licence granted under these Terms.
  4. Intellectual Property Rights
    1. The Software and Materials
      1. The Provider shall at all times retain all title, rights and interest in and to the Software and Materials including:
        1. the Intellectual Property Rights subsisting in each;
        2. any customisations of, modifications to, and additions to, the Software and Materials to suit the Client’s individual needs; 
        3. information or data, source codes and other information technology relating to or connected with the Services or Materials; 
        4. marketing information relating to or connected with the Software or Materials; and
        5. technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Software,

however, excludes the Client Data. 

  1. No right, title and interest in any of the Software and Materials is transferred or granted to the Client except so far as expressly stated in these Terms. The Client must not use the Software in any way that is in contravention of these Terms. 
  2. Client Data
    1. The Client (or its appropriate licensors) shall at all times retain ownership of the Client Data including the Intellectual Property Rights subsisting in it. 
    2. The Client is solely responsible for inputting any Client Data. The Provider may, in its absolute discretion, refuse to accept the input of Client Data to the Software. The Client agrees that the Provider shall not be liable to the Client for any Loss or damage the Client may suffer as a result of this.
    3. The Client hereby grants to the Provider an irrevocable, worldwide, perpetual, transferable, non-exclusive license to use, communicate, display, copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of the Provider’s obligations, for technical reasons for the Client and for the exercise of the Provider’s rights under these Terms, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under these Terms.
    4. The Client also grants the Provider an irrevocable, non-exclusive licence to use the Client Data as non-personally identifiable data in aggregated and blinded formats where the data provides no identifying, referencing or implication of an association with the Client, only for the purposes of display on the Software, improving the Software, bench marking, research and marketing analysis, surveys, reports and studies, and to measure any metrics associated with the Client’s use of the Software.  
    5. The Provider warrants that:
      1. it will only use the Client Data as set out in these Terms and the Provider’s Privacy Policy in place from time to time; and
      2. it will not sell, rent or lease the Client Data to any third party.
    6. The Client warrants to the Provider that:
      1. the Client owns or has the necessary licenses to transmit such Client Data through the Software and that any Client Data provided will not infringe any third party rights (including intellectual property or confidentiality obligations) nor give rise to a liability to make royalty or other payments to a third party;
      2. the Client Data will not:
        1. breach the provisions of any law, statute or regulation; or
        2. give rise to any cause of action against the Provider,

in each case in any jurisdiction and under any applicable law.

  1. Publicity Rights

Each party grants the other party a royalty free, non-exclusive licence to use that party’s logo and business name in marketing solely as follows:

  1. to be identified as a client of the Provider; and
  2. to be identified as a user of the Software.
  1. Refund Policy
    1. Subject to the other terms of this clause, if the Client finds that the Software it not working as it is supposed to and the Client has contacted the Provider’s support and is unable to fix the issue to its satisfaction (using reasonable efforts), the Provider will refund any Fees paid for the Software provided that the Client notifies the Provider within 15 days of the date of purchase.
    2. Please note that refunding the Software in accordance with this clause will automatically deactivate the Client’s Account and the Client will be required to uninstall the Software from any active locations.
  2. Warranties
    1. The Client warrants:
      1. that it has the legal right and authority to enter into these Terms and to perform its obligations under these Terms;
      2. that it has not relied upon any representations, warranties or conditions offered or made by or on behalf of the Provider except to the extent expressly set out in these Terms.
    2. All of the parties’ warranties and representations in respect of the subject matter of these Terms are expressly set out in these Terms. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of these Terms will be implied into these Terms or any related contract.
  3. Disclaimer 
    1. The Provider provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Client relies on the Services at its own risk and is solely responsible and liable for how they use the Services.
    2. Without limiting clause 10.1, the Client acknowledges and agrees that:
      1. the Provider does not guarantee continuous, uninterrupted or secure access to its Software or that any information provided by the Provider is up to date and accurate;
      2. the Provider does not warrant that the use of the Software will result in the Client or its Authorised Users achieving any specific result;
      3. the Provider makes no representations about the suitability of the Software for any purpose;
      4. the Provider makes no guarantees that there will be no loss or corruption of Client Data at any time;
      5. whilst best endeavours will be made to ensure the accuracy of the Software and any output provided by the Software, the Provider cannot guarantee the accuracy, currency, suitability, reliability and availability of the Software and any content gained within;
      6. the information provided on and in the Software is general information and is not in the nature of financial, legal or any form of advice. The Client should obtain advice before making any decision based on the Software;
      7. the Provider reserves the right to withdraw, or amend, update or change the functionality or content of the Software at any time, without notice;
      8. complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Software will be wholly free from defects, errors and bugs; and
      9. the Provider will maintain appropriate technical and organisational measures to protect the security of the Client Data. However, the Provider does not guarantee that unauthorised third parties will never be able to defeat those measures to access the Client Data for improper purposes. The Client acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and Client Data. Accordingly, any Client Data that is transmitted by the Client is transmitted solely at the Client’s risk. The Client is solely liable for their Client Data. 
  4. Technical disclaimers
    1. Data Backup

The Provider is not responsible for providing any data backup services and the Provider makes no guarantees that there will be no loss or corruption of Client Data at any time. Unfortunately, data loss happens and the Client holds harmless and releases the Provider for any Loss the Client suffers in the event that the Client Data is lost. 

  1. IT Infrastructure

The Provider is only responsible for the Software that it supplies to the Client. The Provider is not responsible for the Client’s Systems or any external components.

  1. Data Security

The Provider will maintain appropriate technical and organisational measures to protect the security of the Client Data. The Provider does not guarantee that unauthorised third parties will never be able to defeat those measures to access the Client Data for improper purposes. The Client acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and Client Data. Accordingly, any Client Data that is transmitted by the Client is transmitted solely at the Client’s risk.

  1. Limitation of Liability
    1. Subject to the other terms of this clause, the Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms to the maximum extent permitted by law. 
    2. Without limitation to clause 12.1, to the extent permitted by law, the Provider excludes all liability to the Client and Authorised Users and/or anyone else for Losses arising in any way in connection with the Software or its use and/or the Services and/or these Terms, including but not limited to Losses suffered as a result of:
      1. any planned or foreshadowed system downtime of the Software;
      2. non-performance of the Software;
      3. any reliance on the Software (or any information provided from the Software);
      4. any incorrect data entry or information made by the Client or Authorised Users on the Software, including any incorrect integration by the Client;
      5. any incorrect data or content, errors, mistakes or inaccuracies on the Software;
      6. any loss or corruption of Client Data at any time;
      7. any defects, errors and bugs in the Software;
      8. any unauthorised access to or use of the Software;
      9. any misuse, abuse or alterations to the Software by the Client;
      10. any interruption or cessation of transmission to or from the Software;
      11. the Client’s acts or omissions, including the Client’s wilful damage, negligence or abnormal working conditions;
      12. an event outside of the Provider’s reasonable control;
      13. any actions or inactions of a third party (except for the Provider);
      14. the Client’s System, applications, equipment, software or other third party equipment and software;
      15. any viruses, trojan horses or other harmful code or communications which may be transmitted to or through the Software by any third party; and/or
      16. loss of privacy and confidential information. 
    3. Subject to the other terms of this clause, the Provider’s maximum aggregate liability to the Client for any Loss or damage or injury arising out of or in connection with these Terms, including any breach by the Provider of these Terms however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual Fees paid by the Client to the Provider under these Terms preceding the matter or event giving rise to the claim.
    4. Nothing in these Terms is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services, to the extent that the ACL applies to the Services. 
    5. If the Provider is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Provider’s total liability to the Client for that failure is limited to, at the option of the Provider the resupply of the Services or the payment of the cost of resupply.
    6. The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
    7. Without limitation to the other terms of this clause, the Provider excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms.
    8. Notwithstanding anything else in this clause, the Provider’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Client, the Client’s Authorised Users or the Client’s Personnel.
    9. Where the Client is or may be entitled to recover from a third party any sum in respect of any matter or event that could give rise to a claim under these Terms, the Client must:
      1. use its best endeavours to recover that sum before making the claim;
      2. keep the Provider at all times fully and promptly informed of the conduct of such recovery; and
      3. reduce the amount of the claim to the extent that sums are recovered.
  2. Indemnity
    1. Except to the extent caused by the breach of these Terms by the Provider, the Client indemnifies and releases the Provider, and its officers, directors, shareholders, employees, consultants, agents, and related bodies corporate from and against any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Provider arising out of or in connection with:
      1. the Client, the Client’s Authorised User’s and the End Client’s use of the Services; 
      2. the supply, suspension, restriction or cancellation of the Client or the Client’s Authorised User’s access to the Software in accordance with these Terms; 
      3. the Client or the Client’s Authorised User’s breach or negligent performance or non-performance of these Terms; 
      4. the Client or the Client’s Authorised User’s violation of any applicable law; 
      5. any claim made against the Provider and/or the Client and/or its Authorised Users by a third party arising out of or in connection with these Terms, to the extent that such claim arises from the act or omission of the Client and/or its Authorised Users or out of the breach, negligent performance or failure or delay in performance of these Terms by the Client; 
      6. any claim made against the Provider for actual or alleged infringement of a third party’s rights arising out of or in connection with the Client Data; and/or
      7. the enforcement of these Terms by the Provider.
    2. The Client must make payments under this clause: 
      1. in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
      2. in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
    3. It is not necessary for the Provider to incur expense or make payment before enforcing a right of indemnity under this clause.
    4. The indemnities in this clause:
      1. are continuing obligations of the Client, independent from its other obligations under these Terms and survive termination or expiry of these Terms; and
      2. are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Client.
    5. The Provider’s liability under this indemnity is limited under clause 12.
  3. Force Majeure Event
    1. The Provider will not be in breach of these Terms or liable to the Client for any Loss incurred by the Client as a direct result of the Provider failing or being prevented, hindered or delayed in the performance of its obligations under these Terms where such prevention, hindrance or delay results from a Force Majeure Event.
    2. If a Force Majeure Event occurs, the Provider must notify the Client in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
    3. On providing the notice in clause 14.2, the Provider will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Provider must continue to use all reasonable endeavours to perform those obligations.
    4. The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
  4. Termination and Suspension
    1. Provider’s right to terminate, suspend or restrict
      1. The Provider may immediately suspend, restrict or terminate these Terms and/or the Client’s (and the Client’s Authorised Users’) access to all or part of the Services, including access to the Client Data immediately where: 
        1. it is reasonably necessary for security, technical, copyright, legal or operational reasons;
        2. the Client breaches any term of these Terms (including sharing the Client’s Account with others and/or engaging in group buys);
        3. the Client violates the rights of any third party or the Provider;
        4. the Client fails to pay any fees when due to the Provider in cleared funds in accordance with these Terms;
        5. the Provider reasonably believes that the Client is engaged in illegal or fraudulent use of the Services;
        6. the Provider reasonably believes that the Client Data is inappropriate or unlawful;
        7. the Provider reasonably believes that the Client has acted in a way that is abusive, threatening or violent towards the Provider and its Personnel;
        8. the Provider reasonably believes that the Client is using the Services in a way that would cause Loss or damage to or otherwise cause legal liability to the Provider, other users, third parties or disrupt others’ use of the Services; or
        9. the Client suffers an Insolvency Event.
  5. Effects of termination
    1. On termination of these Terms:
      1. the Licence is immediately revoked and the Client and its Authorised Users must cease using the Software and uninstall and deliver up to the Provider any copies of the Software (including all source code, databases and libraries connected with the Software) promptly in accordance with the Provider’s directions; and
      2. all amounts payable by the Client to the Provider (including amounts that are not yet due) shall become immediately due and payable and must be paid within 7 days of termination without set-off or counter claim. 
    2. Any clause of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 
  6. Confidentiality and Privacy
    1. Confidential Information
      1. The parties undertake that they and their respective personnel will not, without the prior written consent of the other party:
        1. disclose the Confidential Information of the other party to any person; or 
        2. use the Confidential Information of the other party for their own or a third party’s benefit.
      2. Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to such of its personnel as require that information in order to enable the performance of these Terms.
      3. If requested by either party the other party must return all Confidential Information and any copies of the Confidential Information to the other party.
      4. In the event that either party is requested or becomes legally compelled to disclose any of the other party’s Confidential Information, that party will (subject to any regulatory restrictions) provide the other party with prompt notice so that the other party may seek such protective order or other appropriate remedy as it thinks appropriate.
      5. In the event of a breach or threatened breach of the terms of this clause by either party (Breaching Party), the other party will, as between the parties, be entitled to an injunction restraining the Breaching Party from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by the party.
    2. Privacy
      1. In respect of any Personal Information (as defined in the Privacy Legislation) that is included in Client Data or otherwise provided to, collected or received by either party in connection with the Software, the Client must comply with:
        1. the Privacy Legislation, and Personal Information in accordance with the Privacy Legislation (as it applies to that party); and
        2. the applicable Policies and guidelines of the Provider as made known from time to time.
      2. The Client warrants and represents that all Personal Information that it provides to the Provider complies with this clause and these Terms at all times. Immediately upon the Client becoming aware of any breach by it of any Privacy Legislation in respect of Personal Information provided to the Provider, the Client must inform the Provider of this. 
      3. If either party receives a request for access to or correction of any Personal Information from any person (including the Office of the Australian Information Commissioner) prior to providing such access to or correcting the information it must notify the other party.
      4. Where the Provider reasonably believes there has been unauthorised access to the Client Data and there is a notifiable data breach under the terms of the NDB scheme (as contained in Part IIIC of the Privacy Act 1988 (Cth)), the Provider will advise the Client as soon as practicable and no later than 7 days.
  7. Notices
    1. All notices authorised or required under these Terms to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party’s address as a party may from time to time notify to the other (in the case of the Client this will be the email address associated with their Account).
    2. The following shall constitute proof of receipt:
      1. proof by posting by registered post; or
      2. proof of dispatch by email.
    3. Receipt of a notice given under these Terms will be deemed to occur:
      1. in the case of a communication sent by pre-paid registered post, on the third business day after posting;
      2. in the case of an email, on the business day immediately following the day of dispatch.
    4. If a notice is sent via post, it must also be sent via email. 
  8. General Provisions
    1. No Waiver
      1. No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
      2. Words or conduct referred to in clause 19.1(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
    2. Assignment, Novation and Other Dealings  
      1. The Provider may assign or novate any rights that arise out of or under these Terms without the consent of the Client.
      2. Any rights of the Client that arise out of or under these Terms are not assignable or capable of novation by the Client without the prior written consent of the Provider, whose consent may be unreasonably withheld.
    3. Counterparts

These Terms may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute these Terms by signing any counterpart. The date on which the last counterpart is executed is the date of these Terms. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.

  1. Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms. 

  1. Severability 
    1. If the whole or any part of a provision of these Terms is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
    2. Clause 19.5(a) does not apply if the severance of a provision of these Terms in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms.
  2. No Merger

On completion or termination of these Terms, the rights and obligations of the parties set out in these Terms will not merge and any provision that has not been fulfilled remains in force.

  1. Further Action

Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms and the transactions contemplated by these Terms.

  1. Time of the Essence

Time is of the essence in these Terms in respect of any date or time period and any obligation to pay money.

  1. Relationship of the Parties  
    1. Nothing in these Terms gives a party authority to bind any other party in any way.
    2. Nothing in these Terms imposes any fiduciary duties on a party in relation to any other party.
  2. Remedies Cumulative  

Except as provided in these Terms and permitted by law, the rights, powers and remedies provided in these Terms are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms.

  1. Entire agreement  

These Terms states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

  1. No Reliance  

No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms.

  1. Governing Law and Jurisdiction  
    1. These Terms is governed by the law in force in the State.
    2. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms.
    3. Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 19.13(b) on the basis that:
      1. any proceeding arising out of or in connection with these Terms has been brought in an inconvenient forum; or
      2. the courts described in clause 19.13(b) do not have jurisdiction.

Contact Us

If you have any questions about these Terms, please contact us.

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