In this agreement, terms used in the Schedule have the meaning given to them in the Schedule and, unless the context otherwise requires:
Australian Consumer Law means the provisions of Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied under Part XI or under a law of a State or Territory.
Authorised User means the employees, agents and independent contractors of you who are authorised by you to be supplied Authorised User Logins and access and use Platform.
Authorised User Logins means the unique username and password issued or otherwise assigned by us to you or your Authorised Users for access to and use of the Platform.
Confidential Information of a party means the confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) of that party (disclosingparty) which his disclosed to, or learnt by or accessed by the other party (receiving party), including information which:
but does not include information:
Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.
Dispute Notice means a notice issued by a party claiming a dispute has arisen, which is issued to the other party setting out the nature of the dispute and all other information relevant to the dispute.
Fees means (where applicable) the Subscription Fees and/or the Support add-on and/or One-off add-one fees.
Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightning, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:
Further Term has the meaning given to that term in clause 4.
GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Initial Term has the meaning given to that term in clause 4.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.
Loss means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.
One-off add-ons means the one-off add-ons selected by you and set out in the Schedule.
Our IP has the meaning given to that term in clause 15.1
Pre-Existing IP means any Intellectual Property Rights in any materials existing at the date of this agreement, including Intellectual Property Rights in software, hardware or documentation and materials used in our or your business.
Privacy Act means the Privacy Act 1998 (Cth).
Schedule means the schedule attached to these agreed terms, setting out the commercial details, including your Subscription type, any add-ons, and your fees.
Start Date means the date this agreement is signed by both parties.
Subscription means either your Annual or Monthly Subscription to access and use the Platform in the Plan selected by you, including your Support add-ons if selected in the Schedule, in accordance with these agreed terms.
Support add-ons means the support add-ons selected by you and set out in the Schedule.
Taxable Supply has the meaning given to that term in A New Tax System (Goods and Services Tax) Act1999 (Cth).
Term means the Trial Term, Initial Term and/or any Further Term, as applicable.
Trial has the meaning given to that term in clause 3.
Trial Term has the meaning given to that term in clause 3.
Third Party Product has the meaning given to that term in clause 14.
Third Party Supplier means a supplier who supplies Third Party Products (other than us).
Update has the meaning given to that term in clause 11.
Your Content means all any content, including text, data, logos, documents, imagery, videos or other files entered, uploaded or created by you or your Authorised Users while using the Platform.
In this agreement unless the context otherwise requires:
When you complete either:
an agreement is formed between you and HowToo Pty Limited ACN 623 119 522 of Level 6, 201 Kent Street Sydney 2000 (we, us, our) consisting of the Schedule and these agreed terms (agreement).
The agreement will be ongoing, until or unless your Subscription is cancelled or terminated in accordance with these agreed terms.
To the extent of any inconsistency between the Schedule and these agreed terms, these agreed terms will prevail over the Schedule.
Some Plans may offer new customers access to the Platform for a trial at no charge (Trial).
Your Trial will commence on the Start Date and will continue for a period of 7 days (Trial Term). You may cancel your Trial at any time during the Trial Term on notice to us. Unless you cancel your Trial, at the end of the Trial Term this agreement will auto-renew in accordance with clause 4.2.
Your Subscription and this agreement will commence on the Start Date and will continue for either:
If you have:
(each additional 12-month period and/or monthly period (as applicable), a Further Term).
You are agreeing to having a Subscription on an auto-renewing basis for an indefinite period until cancelled by you or us as set out in this clause 5.
You may cancel:
by giving us at least 7 days’ notice prior to your next Payment Cycle (Cancellation Cut-Off).
If your cancellation request is for:
If your cancellation request is for:
We reserve the right to:
Upon the cancellation of your Subscription in accordance with clauses 5.2(a),5.3(a),5.4(a), and/or 5.5(a):
Upon cancellation of your Support add-ons only in accordance with clauses 5.2(b), 5.3(b), 5.4(b), and/or 5.5(b):
Subject to clause 13.3, cancellation or refunds are not available for the One-off add-ons.
If you, or any of your Authorised Users, fails to abide by these agreed terms, or your Fees are not paid on time, we reserve the right to suspend your access to the Platform and/or permanently cancel your Subscription.
If we cancel your Subscription and withdraw access to the Platform because these agreed terms have been breached, in accordance with clause 5.9, your access to the Platform will be withdrawn immediately, no refund will be payable by us, and you must pay to us all outstanding fees owed to us as at the date of cancellation immediately.
If applicable, provision of access to any of Your Content that you have not downloaded off the Platform as at the date of any cancellation or termination will be at our sole discretion.
You will pay your Fees each Payment Cycle in accordance the Payment Method selected in your Schedule and this clause 6.
If you have:
If you purchase One-off add-ons, the One-off add-on Fees will be payable using your selected Payment Method as follows:
Where your Payment Method is Direct Debit:
it is your responsibility to ensure your that:
it is your responsibility to ensure your that:
Where your Payment Method is Invoice:
On 30 days’ notice to you, we may increase the Fees for any reason during the Term, including as a result of an increase in fees charged by Third Party Suppliers. The increase will take effect on your next applicable Payment Cycle.
Without limiting clause 6.6, the Fees may be increased each year by a percentage equal to the percentage increase in CPI for the same period. The increase will take effect on your next applicable Payment Cycle.
Unless otherwise expressly stated, all fees, prices or other sums payable or consideration to be provided under this agreement are exclusive of GST. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this agreement plus GST.
You may request to upgrade or downgrade your Plan at any time by providing one month’s notice prior to the end of the Term.
Your upgrade will take effect on the date mutually agreed by the parties and your Fees will be prorated to account for the upgrade at your next Payment Cycle.
Your downgrade will take effect at the commencement of your next applicable Payment Cycle and your fees will be adjusted according to the new Plan.
We grant to you a non-transferrable, non-exclusive right and license to access and use the Platform for the duration of the Term in accordance with this agreement and the applicable Schedule.
We will provide you with:
To access and use the Platform, your Authorised Users must set up an account using their allocated Authorised User Login.
You are solely responsible for:
You must comply with, and ensure all Authorised Users comply with, all applicable laws, these agreed terms, and our reasonable directions.
In order for us to provide you with access to the Platform, you must promptly provide us with (as reasonably requested by us) relevant, accurate, complete and current information.
You must not:
You must not submit, post or display any of Your Content that:
You warrant that you have the rights to use Your Content and you take full responsibility for Your Content. You indemnify us against any claims relating to a breach of any third-party rights and/or a breach of any law or regulation arising out of or in connection with Your Content.
We may remove Your Content from the Platform if Your Content violates these agreed terms, including if Your Content or is offensive or otherwise unacceptable to us in our sole discretion and/or including in the event any claims, threatened, alleged or issued in relation to Your Content, and/or for any other reasonable cause.
Where selected, we will provide the Support add-ons and/or One-off add-ons in accordance with the Schedule and as agreed with you from time to time.
We will provide, configure, install and maintain any and all updates, upgrades, enhancements, releases, corrections, bug fixes, patches and modifications to the Platform as we deem necessary (Updates).
We may suspend access to, or functionality on, the Platform from time to time to implement such Updates. We will use reasonable efforts to notify you of any Update that may interrupt the Platform
You must accept all Updates necessary for the proper function and security of the Platform if and when such Updates are released by us.
Whilst we reserve the right to undertake back-ups of the Platform, however we are not obligated to do so and you are solely responsible for backing up Your Content.
Each party represents and warrants to the other that, to the best of its knowledge, each of the following statements is true, accurate and not misleading as at the date of this agreement and will be true and accurate on each day during the Term:
You are solely responsible for determining whether the Platform is suitable for your needs.
Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by law, we exclude all warranties, conditions and representations in whatever form, relating to the Platform, including any warranties or representations relating to quality, accuracy, integration, merchantability, conformity with specifications, reliability, functionality, performance, fitness for use or the security and operation of the Platform.
If any supply by us pursuant to this agreement comprises a supply to a ‘consumer’ as defined in the Australian Consumer Law, then nothing contained in this agreement restricts or modifies guarantee, right or remedy which pursuant to the Australian Consumer Law applies to this agreement or is conferred on you, provided that to the extent that the Australian Consumer Law permits the us to limit our liability for breach of guarantee imposed by the Australian Consumer Law, then to the extent permitted by the Australian Consumer Law, our liability for such breach is limited to:
in the case of goods, any one or more of the following acts as determined by us:
in the case of services any cost of the following as determined by us:
Notwithstanding any other provision of this agreement and to the fullest extent permitted by law:
We may use third party products and services in supplying you with access to the Platform (including incorporating such products and services into the Platform) (Third Party Product). You acknowledge that:
You acknowledge that the Intellectual Property Rights in the Platform (including any source code, translations, compilations, partial copies and derivative works) (Our IP) contain confidential and proprietary information belonging exclusively to us (or the Third Party Product supplier).
Nothing in this agreement transfers ownership of any Pre-Existing IP to the other party or any other person.
You own all Intellectual Property Rights in Your Content. You grant us a royalty-free, non-exclusive, licence to use Your Content to the extent necessary to perform our obligations under this agreement.
You consent to us naming you as a client and reproducing your business name and logos for marketing and publicity purposes.
We grant you a non-exclusive and non-transferable licence to use Our IP solely to the extent necessary to obtain the benefit of the Platform for the Term
You agree we may use, for our own business purposes, use and incorporate any ideas, suggestions, concepts, know-how or techniques contained in information received from you that directly relates to your products or business, including any suggested changes or modification to the Platform.
Each party must comply with the Privacy Act in connection with the collection, use, handling, disclosure, quality, security of and access to personal information that the party holds.
Both parties must keep all Confidential Information confidential and use such information for the sole purpose of performing the obligations under this agreement.
Neither party may use or disclose the Confidential Information except:
We do not represent or warrant that the Platform is entirely secure, uninterrupted or error-free. You acknowledge that the public internet is an inherently insecure environment and that we have no control over the privacy of any communications or the security of any data outside of our internal systems
If a Force Majeure Event occurs, the affected party must notify the other party and the obligations of the party will be suspended to the extent that they are affected by the relevant Force Majeure Event until that Force Majeure Event has ceased.
Any party who claims to have a dispute against another party must issue a Dispute Notice.
Within 7 days after receiving the Dispute Notice, the parties must meet to resolve the dispute. Each party will be represented by a person having authority to agree to such resolution or methods. All aspects of the meetings will be confidential and without prejudice to the parties’ rights, obligations and liabilities.
If the parties do not resolve the dispute within 30 days (or such longer period the parties may agree in writing) after the Dispute Notice, then either party may initiate court proceedings in relation to the dispute.
Despite the existence of a dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the dispute.
A notice or other communication under this agreement is only effective if it is in writing and it is received in full and legible form at the addressee’s email address.
You must send any notices or other communication to us under this agreement to email@example.com
A notice will be deemed to be received the earlier of when the sender receives an automated message confirming delivery or within 24 hours after the message has been sent (as recorded on the device from which the sender sent the message), unless the sender receives an automated message that the email has not been delivered.
Nothing in this agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.
We may sub-contract the performance of any part of our obligations and/or services to any third party.
This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.
If any term or provision of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.
This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.=
This agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
This agreement may not be amended or varied unless the amendment or variation is in writing and signed by all parties.
Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of the other party, which must not be unreasonably withheld.
Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.