| IMPORTANT INFORMATION |
| Is any liability excluded under these Terms? Yes. If Barringtons is liable, its liability will be: • except where the Australian Consumer Law provides for other remedies, limited to supplying the Offering again or paying the cost of having the Offering supplied again; and • capped at the lesser of fees paid by You for the Offering under the applicable Order in the 12 months preceding the event giving rise to liability or insurance proceeds from insurance held by Barrington’s. These limitations of liability are subject to any applicable laws, including the Australian Consumer Law. Will my subscription renew automatically? Yes. Your subscription will automatically renew for a further twelve (12) month term unless you cancel at least thirty (30) days before the anniversary of your subscription. If you do not cancel in time, you will be charged for the next subscription term. The subscription term is defined as a twelve (12) month period commencing on the date your Order is accepted in accordance with clause 2.1.4. This term applies regardless of whether you select monthly or annual payment. Will any additional fees be payable? If You delay access to or use of the Offering after the Subscription Term has commenced, Barringtons may charge fees for the unused period as specified in the Order. 4Credit Card Transaction Fees If you elect to pay any fees or charges for the Offering by credit card, you acknowledge and agree that Barringtons may charge you an additional processing fee to cover the costs incurred in connection with credit card payments. The amount of any such processing fee will be specified at the time of payment and may vary depending on the payment processor’s rates. All credit card transaction fees are payable at the same time as the underlying fees for the Offering. You will also be subject to any additional terms and conditions imposed by our third-party credit card payment processor, who will be the merchant of record for such transactions. |
READ THE BELOW PARAGRAPH CAREFULLY:
BY CLICKING “I ACCEPT” OR A SIMILAR BUTTON OR CHECK BOX PRESENTED TO YOU AS PART OF THE SIGN-UP PROCESS YOU AGREE TO BE BOUND BY THESE TERMS OF USE (“TERMS OF USE”) AND BY THE OFFERING DOCUMENTATION, WHICH TOGETHER CONSTITUTE THE “AGREEMENT”. IF YOU DO NOT AGREE TO ANY PORTION OF THE AGREEMENT, YOU MUST NOT USE THE OFFERING. You will have a reasonable opportunity to review these Terms before accepting them. THIS AGREEMENT WILL BE EFFECTIVE ON THE DATE YOU CLICK “I ACCEPT” OR COMPLETE THE SIGN-UP PROCESS. THIS AGREEMENT SHALL REMAIN IN EFFECT DURING THE RELEVANT SUBSCRIPTION TERM OR UNTIL TERMINATED AS SPECIFIED IN THE AGREEMENT. NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY CONSUMER GUARANTEE, RIGHT OR REMEDY CONFERRED ON YOU BY THE AUSTRALIAN CONSUMER LAW OR ANY OTHER APPLICABLE LAW THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT.
1. THE OFFERING.
1.1 Access and Usages of Offerings.
1.2 Restrictions.
1.2.1 You must not use the Offering (a) in a way prohibited by law or that would cause You or Us to be out of compliance with applicable law, (b) to violate the rights of others, (c) to try to gain unauthorized access to, test the vulnerability of, or disrupt the Offering or any other service, device, data, account, or network, (d) to distribute spam or malware, (e) in a way that could harm the Offering or impair anyone else’s use of it, (f) in a way intended to work around the Offering’s technical limitations, recurring fees calculation, or usage limits, or (g) for High Risk Activities.
1.2.2 You must not upload into the Offering any content that: (a) may create a risk of harm or loss or damage to any person or property; (b) may constitute or contribute to a crime or a tort; (c) includes any data that is illegal, unlawful, harmful, pornographic, defamatory, infringing, or invasive of personal privacy or publicity rights; (d) contains any data that you do not have a right to upload into the Offering; or (e) is otherwise prohibited as specified in the Agreement.
2. ORDERS, PAYMENT, AND TAXES.
2.1 Orders. 2.1.1 You must (a) set up an authorised account, (b) provide us with all information We need to process your Order and provision the Offering for you, and (c) keep your registration information accurate and complete during the term of the Agreement.
2.1.2 You must pay all charges you incur for your use of the Offering, which may include a committed amount, charges for add-on features, and charges you incur based on actual usage of the Offering. We may not require a purchase order to invoice you for any charges.
Subject to the availability of your active credit balance, you may access the Offerings through your authorized account by entering your Login Credentials. You may use the Offering only for your own benefit. You may not resell or sublicense your entitlement to the Offering.
2.1.3 You may purchase prepaid credits from your account and such credits will be utilized against your usage of the Offerings. The unused credits’ balance, if any, shall expire within twelve (12) months and be forfeited by Us.
2.1.4 All Orders are subject to the Agreement and are not binding until We accept them. An Order will be deemed accepted when We deliver your Login Credentials to the email address associated with your account. All Orders are non-refundable and non-cancellable except as expressly provided in the Agreement. Any refunds to which you are entitled under the Agreement will be remitted to you or to the applicable channel partner.
2.1.5 If a physical object is shipped in connection with the Offering, shipping and delivery terms are Ex Works or as We or channel partner may otherwise specify.
2.1.6 If you pay for an Offering through a credit card, you will be subject to any additional terms presented to you by our third-party credit card payment processor, which will be the merchant of record for that transaction.
2.1.7 If you purchase an Offering on a subscription basis, you may select either:
(a) an annual subscription fee payable in twelve (12) equal monthly instalments, or
(b) a one-off annual subscription fee payable at the commencement of the subscription term.
The subscription term is defined as a twelve (12) month period commencing on the date your Order is accepted in accordance with clause 2.1.4. This term applies regardless of whether you select monthly or annual payment.
2.1.8 By placing an Order, you authorise Us to debit the applicable subscription charges from your nominated credit card or direct debit account in accordance with your selected payment option.
2.1.9 We may amend the subscription charges for annual subscriptions, at the anniversary of the subscription term with at least sixty (60) days’ prior notice.
Any price increase exceeding 10% of the then-current charges will entitle You to terminate the Agreement without penalty by providing written notice within thirty (30) days of receiving notice of the increase.
Notice of any fee amendments will be sent to the email address or mailing address associated with your authorised account. Continued use of the Offering after the notice period constitutes acceptance of the amended charges.
2.1.10 To avoid automatic renewal of your subscription, you must cancel your subscription no later than thirty (30) days prior to the anniversary of the subscription term. We will send you a reminder notice at least sixty (60) days before each renewal date to the email address associated with your account. This requirement applies to both monthly and annual payment options, as defined in clause 2.1.7. The subscription term is a twelve (12) month period commencing on the date your Order is accepted in accordance with clause 2.1.4.
Cancellations may be submitted through any of the following methods: (a) through a simple online cancellation process accessible through your account portal or the Offering portal; (b) by email to the address specified in clause 13.2; (c) by first class mail or recognised courier to the physical address set out in clause 13.2; or (d) by telephone to our customer service line during business hours. We will provide immediate confirmation of receipt of your cancellation request.
2.2 Direct Orders.
2.2.1 This Section 2.2 applies only to Orders directly with Us. If you purchase an entitlement to the Offering through a channel partner, different terms regarding invoicing, payment, and taxes may apply.
2.2.2 Unless You and We agree otherwise in an Order, (a) charges you incur for using the Offering will be governed by the applicable price list at the time of invoicing, and (b) you must pay all undisputed charges no later than 30 days after the date of invoice. If you, in good faith, dispute any charges from Us, you must provide Us with written notice of that dispute within 30 days of the date of the applicable invoice. The notice must specify the basis of your dispute. We will negotiate with you in good faith to resolve the dispute as soon as reasonably practicable. We will not suspend or terminate your access to the Offering because of any unpaid disputed charges while you and We are negotiating in good faith to resolve that dispute.
2.2.3 Offering fees are exclusive of GST and other applicable Taxes. You must pay GST and other Taxes arising out of the transactions contemplated by the Agreement in accordance with applicable Australian tax law. If you are required by law to withhold any Tax from your payment to us, You must provide us with notice and appropriate tax documentation. We will issue tax invoices in accordance with Australian tax law requirements. Your contact information provided for the Offering or your payment method will be deemed the place of supply for GST purposes, subject to applicable Australian tax law.
3. SECURITY MEASURES.
3.1 We are responsible for taking and maintaining steps to protect the confidentiality, integrity, and security of the Offering. We will implement and maintain appropriate technical and organisational security measures designed to protect against unauthorised access to, or destruction, loss, unavailability, or alteration of Your Content. We will process Your Content in accordance with Our Privacy Policy. We will not access or disclose Your Content except as necessary to provide the Offering. We will not disclose Your Content to, or permit access to Your Content by, an unauthorised third party. You acknowledge that uploading your Content to the Offering does not constitute a disclosure of Your Content to us.
3.2 You are responsible for: (a) ensuring that the Offering and its security is appropriate for Your Content and your intended use; (b) taking and maintaining appropriate steps to protect the confidentiality, integrity, and security of Your Content; (c) any use of the Offering that occurs under Your Login Credentials; (d) Your Content; (e) Your Users’ compliance with the Agreement; and (f) providing any necessary notices to Your Users and obtaining any legally required consents from Your Users regarding their use of the Offering.
3.3 If you become aware that Your Content or any use by a User violates the Agreement, You must promptly remove or suspend use of that content, or suspend the User’s access to the Offering. If You believe Your account has been compromised, You must notify Us as soon as possible by submitting a Service Request. If We reasonably believe a problem with the Offering may be attributable to Your Content or to Your use of the Offering, You must reasonably cooperate with Us to resolve the problem.
4. WARRANTIES.
4.1 Limited Warranty.
We warrant that, during the Subscription Term, the Offering will perform in accordance with the applicable Documentation, provided that the Offering has, at all times, been used in accordance with the Agreement.
Our services also come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: (a) to cancel your service contract with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage subject to the paragraph below. If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
To the extent permitted by law, our liability for breach of any condition or warranty which cannot be excluded is limited, at our option, to: (i) the re-supply of the services; or (ii) payment of the cost of having the services supplied again.
4.2 Disclaimer.
OTHER THAN THE LIMITED WARRANTY SET FORTH IN SECTION 4.1, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE, FOR OURSELVES AND ON BEHALF OF OUR SUPPLIERS, DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, RELATING TO THE OFFERING AND TO ALL MATERIALS OR SERVICES PROVIDED TO YOU UNDER THE AGREEMENT, INCLUDING ANY THIRD-PARTY CONTENT. WE AND OUR SUPPLIERS DO NOT WARRANT THAT THE OFFERING WILL BE UNINTERRUPTED OR FREE FROM DEFECTS OR ERRORS, OR THAT THE OFFERING WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS. NOTHING IN THIS SECTION 4.2 EXCLUDES, RESTRICTS OR MODIFIES THE APPLICATION OF ANY PROVISION, THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH) OR ANY OTHER APPLICABLE LAW WHERE TO DO SO WOULD CONTRAVENE THAT LAW OR CAUSE ANY PART OF THIS SECTION TO BE VOID.
5. INDEMNIFICATION.
5.1 Indemnification by Us.
5.1.1 We will: (a) defend You against any Infringement Claim; and (b) indemnify You from all fines, damages, and costs finally awarded against You by a court of competent jurisdiction or a government agency, or agreed to in a settlement, regarding any Infringement Claim.
5.1.2 If the Offering becomes or in Our opinion is likely to become the subject of an Infringement Claim We will, at Our option and expense, either (a) procure the rights necessary for You to keep using the Offering, or (b) modify or replace the Offering to make it non-infringing without materially reducing its functionality. If (a) or (b) are not commercially feasible, We may terminate your entitlement to the Offering and refund any prepaid fees prorated for the remaining portion of the then-current Subscription Term.
5.1.3 We will have no obligation to You with respect to any Infringement Claim based on: (a) combination of the Offering with non-Barringtons product or content, including any of Your Content and/or any Third-Party Content; (b) use of the Offering for a purpose or in a manner in violation of the Agreement; (c) any modification to the Offering not authorised by Us; (d) any claim that relates to open source software or freeware technology or any derivative or other adaptation thereof that is not part of the Offering; or (e) any Offering provided on a no-charge basis.
5.1.4 This Section 5.1 states your sole and exclusive remedy and our entire liability for any Infringement Claims.
5.2 Indemnification by You.
5.2.1 You will (a) defend Us against any Third-Party Claim, and (b) indemnify Us from all fines, damages, and other costs finally awarded against Us by a court of competent jurisdiction or a government agency, or agreed to in a settlement, with respect to a Third-Party Claim.
5.2.2 You will (a) defend Us against any Third-Party Claim, and (b) indemnify and hold harmless Us from all fines, damages, and other costs finally awarded against Us by a court of competent jurisdiction or a government agency, or agreed to in a settlement, with respect to any claim arising out of any information or content (falsified information and forged document etc.) provided by You. We are not in any way responsible for falsified information or content (falsified information and forged document etc.) which is uploaded by You, Your client, or contractors to the system.
5.3 Requirements for Indemnification.
The obligations in Sections 5.1 and 5.2 are applicable only if the indemnified party: (a) provides the indemnifying party with notice of any Third-Party Claim or Infringement Claim, as applicable, within a reasonable period after learning of the claim (provided that any delay in providing the notice will relieve the indemnifying party of its indemnification obligations only to the extent that the delay prejudices the indemnifying party); (b) allows the indemnifying party sole control over the defense of the claim; and (c) reasonably cooperates in response to the indemnifying party’s requests for assistance with regard to the claim. The indemnifying party will not, without the indemnified party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed, enter into any settlement of any claim that obligates the indemnified party to admit any liability, to pay any unreimbursed amounts to the claimant or, with respect to a Third-Party Claim, that would affect any Offering or our business practices or policies.
6. LIMITATION OF LIABILITY.
6.1 Disclaimer.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE OF THE OFFERING FOR ANY REASON INCLUDING POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS, LOSS OF YOUR CONTENT, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE.. THIS LIMITATION WILL APPLY REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NOTHING IN THIS SECTION LIMITS OR EXCLUDES LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW OR OTHER APPLICABLE LAW, INCLUDING LIABILITY FOR BREACH OF CONSUMER GUARANTEES UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH).
6.2 Cap on Monetary Liability.
SUBJECT TO SECTION 6.3, OUR LIABILITY FOR ANY CLAIM UNDER THE AGREEMENT WILL NOT EXCEED THE LESSER OF: (A) THE TOTAL FEES PAID BY YOU FOR THE OFFERING IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) THE VALUE OF INSURANCE HELD BY BARRINGTONS IN RESPECT OF THE RELEVANT CLAIM.
6.3 Exclusions.
THE LIMITATIONS OF LIABILITY IN SECTIONS 6.1 AND 6.2 WILL NOT APPLY TO (a) OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 5.1 OF THESE TERMS OF USE OR (b) ANY LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.
6.4 Further Limitations.
6.4.1 Our suppliers have no liability of any kind under the Agreement. You may not bring a claim directly against any of them under the Agreement. Our liability with respect to any Third-Party Content used or made available as part of an Offering is subject to this Section 6.
6.4.2 Neither party may bring a claim under the Agreement more than eighteen (18) months after the cause of action arises.
7. TERM.
7.1 You have the right to use the Offering during the Subscription Term.
7.2 You are not obligated to use the Offering, and You may stop using the Offering at any time, but You will remain liable for all fees and charges otherwise due during the Subscription Term, whether or not You use the Offering.
8. SUSPENSION.
We may suspend Your use of any Offering if We believe that Your use of the Offering poses a security risk to the Offering or to other users of the Offering, or if We suspect fraud or abuse related to the Offering. We will give You notice before suspending Your use of the Offering if permitted by law or unless We reasonably determine that providing notice presents a risk of harm to the Offering, to other users of the Offering, or to any person or property, in which case We will notify You as soon as reasonably practicable. We will promptly reinstate Your access to the Offering once the issue causing the suspension has been resolved. If You dispute the suspension, You may request a review by providing written notice to Us within 5 business days of the suspension, and We will review and respond to Your dispute within 10 business days.
9. TERMINATION.
9.1 Either Party may terminate the Agreement with respect to the applicable Offering effective immediately upon written notice to the other party if that party (a) commits a breach of the Agreement and fails to cure within 30 days of notice of the breach, (b) commits a material breach of the Agreement that cannot be cured, or (c) to comply with applicable law. If You terminate the Agreement pursuant to this Section 9.3.1, We will refund any applicable prepaid Offering fees prorated as of the effective termination date. If We terminate pursuant to this Section 9.3.1, You will be liable for all fees due with respect to the applicable Offering for the remainder of the then-current Subscription Term.
9.2 Either Party may terminate the Agreement effective immediately upon sending the other party notice if that party: (a) becomes insolvent, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or (b) becomes subject to control of a trustee, receiver, or similar authority, or to any bankruptcy or insolvency proceeding; or (c) terminates or suspends its business.
9.3 Effect of Termination.
9.3.1 Upon termination of Your entitlement to the Offering for any reason You must stop using the Offering. Deletion of any of Your Content remaining in the Offering will occur as specified in the applicable Service Description. You are responsible for ensuring that You have necessary copies of all Your Content prior to the effective termination date.
9.3.2 Any provision that, by its nature and context is intended to survive termination of the Agreement, will survive. The Data Processing Addendum (to the extent We continue to process Personal Data, as defined in the Data Processing Addendum, following termination of the Agreement) will also survive any termination of the Agreement.
9.3.3 Except as expressly provided in Sections 9.1, and 11.4.3, termination of Your entitlement to the Offering will not entitle You to any refunds or credits, and You will be liable for all fees and charges incurred as of the effective termination date.
10. IP OWNERSHIP.
10.1 Ownership of Offering.
Both Parties agree, We retain all right, title, and interest in and to the Offering, including any On-Premises Software, all improvements, enhancements, modifications, and derivative works thereof, and all related Intellectual Property Rights. If you provide any comments or suggestions, We may use that feedback without restriction, and you irrevocably assign to us all right, title, and interest in and to that feedback. Your rights to use the Offering are limited to those expressly granted in the Agreement. No other rights are implied with respect to the Offering, any On-Premises Software, or any related Intellectual Property Rights.
10.2 Ownership of Your Content.
Both Parties agree, You retain all right, title and interest in and to Your Content and all Intellectual Property Rights in Your Content.
10.3 Notification of Infringement.
If You believe that Your copyrighted work has been copied and is accessible on the Offering in a way that constitutes copyright infringement You may send a notice to Our copyright agent, providing the following information: (a) a description of the copyrighted work that You claim has been infringed and a description of the infringing activity; (b) the location of the material that You claim is infringing, such as the URL where it is posted; (c) Your name, address, telephone number, and email address; (d) a statement by You that You have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law; (e) Your statement under penalty of perjury that the information in your notice of infringement concern is accurate, and that You are the copyright owner or are authorized to act on the copyright owner’s behalf; and (f) Your electronic or physical signature, as the copyright owner or as the person authorized to act on the copyright owner’s behalf.
11. OPERATION OF THE OFFERING.
11.1 Support.
We will provide support to You for the Offering in accordance with the Support Policy and the Agreement. You must purchase the same level of support for all seats for the Offering in each environment. For purposes of this section, “seats” means the applicable metric of the Service Description (e.g., named users, concurrent users, devices, etc.). In connection with providing support, We may access Your instance of the Offering to respond to Your support request. You are responsible for taking steps necessary to protect any sensitive information or Personal Data that You provide to Us to receive support. Those steps may include obfuscating or removing that information or otherwise working with us at the time of submission to limit disclosure of that information. We will not provide support for Your Content to Your Users.
11.2 On-Premises Software.
If you install any On-Premises Software, the same shall be subject to Our End User License Agreement.
11.3 Open Source Software.
11.3.1 The Offering may use open source software, which is not considered Third-Party Content. That open source software is made available under the applicable open source licenses. You can obtain a copy of these licenses and any source code (and modifications) that We are required to make available under these licenses (“Source Files”) by sending a written request, with your name and address, to our notice address. All requests must clearly specify: “Open Source Files Request”. This offer to obtain a copy of the Source Files is valid for three years from the date you last used that open source software or interacted with the open source software when using the Offering.
11.3.2 All provisions in these Terms of Service applicable to Your use of the Offering govern Your use of the open source software that is part of the Offering, and control as between You and We over any conflicting terms set forth in any open source software license otherwise applicable to that open source software.
11.4 Modifications; End of Availability.
11.4.1 We may from time to time make commercially reasonable modifications to the Offering and/or any part of the Offering Documentation. Any changes will become effective on the date published or as We may notify you. We may also elect to cease providing an Offering, in which case We will provide notice pursuant to applicable Our policies.
11.4.2 If We deprecate any material feature or functionality of an Offering or make a change that has a material, detrimental impact on Your use of the Offering, We will notify You prior to the effective date of that change. If You elect to terminate Your entitlement to the Offering because of the material, detrimental change, You must notify us no later than 30 days after Our notice date. Your notice must state the effective termination date, which must not be more than 90 days after the date of your notice, unless You and We agree to a longer period.
11.4.3 You will be responsible for all fees incurred prior to the effective termination date or end of availability. We will refund any prepaid fees prorated as of the effective termination date, as Your sole and exclusive remedy under this Section 11.4.
11.5 Required Disclosures.
If We are required by a subpoena, court order, agency action, or any other legal or regulatory requirement to disclose any of Your Content (a “demand”), unless legally prohibited from doing so, We will (i) provide You with notice and a copy of the demand as soon as practicable, (ii) inform the relevant government authority that We are a service provider acting on Your behalf and all requests for access to Your Content should be directed in writing to the contact person You identify to us (or if no contact is timely provided, We will direct the relevant governmental authority generally to Your legal department), and (iii) only provide access to Your Content with Your authorization. If You request, We will, at Your expense, take reasonable steps to contest any demand. In the event We are legally prohibited from notifying You, We will evaluate the demand for disclosure to determine whether it is legally valid and binding, and will challenge the demand unless We reasonably believe the demand complies with applicable law. We will limit the scope of any disclosure to only the information We are required to disclose and will disclose the information in accordance with applicable law.
12. CONFIDENTIAL INFORMATION.
12.1 Protection.
Either party (the “recipient”) may use Confidential Information of the other party (the “discloser”) disclosed to it in connection with the Agreement solely to exercise its rights and perform its obligations under the Agreement or as otherwise permitted by the Agreement. You and We will each use reasonable care to protect that Confidential Information in the same manner as We each protect our own Confidential Information of a similar nature, with no less than reasonable care. The recipient may disclose the discloser’s Confidential Information only to the recipient’s employees or third parties who have a need to know the Confidential Information for purposes of the Agreement, and who are under a duty of confidentiality no less restrictive than as specified in this Section 12. Either party may disclose the other party’s Confidential Information in response to a demand in accordance with the procedures set forth in Section 11.5. Upon the discloser’s written request, or upon termination of your entitlement to the Offering, the recipient will promptly return or destroy (and upon request certify such destruction) any of the discloser’s Confidential Information in its possession or under its control (other than information that must be retained pursuant to applicable law.)
12.2 Exceptions.
The recipient’s obligations under Section 12.1 will terminate if the recipient can show by written records that the information: (a) was, at the time of disclosure by the discloser, already rightfully known to the recipient without any obligation of confidentiality; (b) was disclosed to the recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (c) at the time of disclosure is, or through no fault of the recipient has become, generally available to the public; or (d) was independently developed by the recipient without access to or use of the discloser’s Confidential Information.
12.3 Injunctive Relief.
Nothing in the Agreement limits a party’s ability to seek equitable relief for breaches of this Section 12.
13. GENERAL.
13.1 Assignment.
You may not assign, subcontract or transfer your entitlement to the Offering, or the Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement to any of our affiliates or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of our assets, provided that the assignee agrees to be bound by the terms of this Agreement.
13.2 Notices.
We will give You notice: (a) by email to the email address associated with Your account, or (b) via first class mail, postage prepaid, or by recognised commercial courier to the physical address You have provided to Us. For material changes to the Agreement, including price increases, service modifications, or changes to liability terms, we will provide notice by both email and, posting on the Offering portal at least 60 days in advance. You must direct legal notices or other correspondence to below address:
Name: Barrington Group Australia Pty Limited
Address: Suite B1, 4 Columbia Circuit
Norwest NSW 2153
Email: contractsupport@smartek.net.au
Attention of: Director of Risk & Compliance
13.3 Waiver.
Waiver of a breach of any provision of the Agreement will not constitute a waiver of any later breach of that provision, or waiver of a breach of any other provision.
13.4 Severability.
If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in force to the extent feasible, and the invalid or unenforceable provision shall be deemed modified to the minimum extent necessary to make it valid and enforceable while preserving the parties’ original intent. Nothing in this clause shall operate to preserve any term that is unfair under the Australian Consumer Law or otherwise contrary to law.
13.5 Compliance with Laws.
Each party must each comply with all laws applicable to the actions contemplated by the Agreement.
13.6 Force Majeure.
Neither party will be liable for any delay or failure to perform its obligations under the Agreement, due to any cause beyond the party’s reasonable control, which may include labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other acts of nature, global pandemic, embargoes, riots, acts or orders of government, acts of terrorism, or war. However, payment obligations shall remain subject to force majeure only to the extent the customer’s ability to pay is directly prevented by the force majeure event. If a force majeure event continues for more than 60 days, either party may terminate the affected portion of the Agreement upon written notice.
13.7 Construction.
The section headings in these Terms of Service are for convenience and are not for use in interpreting these Terms of Service. As used in these Terms of Service, the word “including” means “including but not limited to”.
13.8 Language.
The Agreement is in English, and the English language version governs any conflict with a translation into any other language.
13.9 Governing Law.
The Agreement is governed by the laws of New South Wales. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
13.10 Third Party Rights.
Other than as expressly provided in the Agreement, the Agreement does not create any rights for any person who is not a party to it, and only persons who are parties to the Agreement may enforce any of its terms or rely on any exclusion or limitation contained in the Agreement. This clause does not limit any rights that third parties may have under statute, including but not limited to the Australian Consumer Law.
13.11 Independent Parties.
Both Parties acknowledge they are independent contracting parties, and the Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship between us. Neither you nor We, nor any of our respective affiliates, officers, directors, or employees, is an agent of the other for any purpose, nor has the authority to bind the other.
13.12 Order of Precedence.
The terms of the Agreement will supersede any conflicting or additional terms and conditions of any purchase order or other purchasing-related document issued by you relating to any Order for the Offering. If there is a conflict between these Terms of Service and the Offering Documentation, then the Offering Documentation will controltake precedence. , provided that nothing in the Offering Documentation shall reduce or limit your rights under the Australian Consumer Law or other applicable consumer protection legislation.
13.13 Entire Agreement.
The Agreement including Exhibits and Schedules, if any is the entire agreement between You and Us regarding its subject matter. The Agreement supersedes all prior or contemporaneous communications, understandings, and agreements, whether written or oral, between You and Us regarding its subject matter.
14. DEFINITIONS.
“Account Information” means information about You that You provide to Us in connection with creation or administration of Your account, including names, usernames, phone numbers, email addresses, and billing information associated with your account.
“Confidential Information” means Your Login Credentials, and any non-public technical, business, or other information or materials disclosed by either party to the other party regarding the Agreement or the Offering, that are in tangible form and labelled “confidential” or the like, or are provided under circumstances reasonably indicating confidentiality.
“High Risk Activities” means workloads or applications used to control or operate activities with a likelihood of injury or death, which may include controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, Weaponry systems, or any similar scenario where failure could lead to personal injury, death, or environmental damage.
“Infringement Claim” means any claim by a third party that the Offering infringes any patent, trademark, or copyright of that third party, or misappropriates a trade secret of that third party (but only to the extent that the misappropriation is not a result of your actions), to the extent that your instance of the Offering is provisioned in a data center located in the applicable country.
“Intellectual Property Rights” means all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, and all other proprietary rights, whether registered or unregistered.
“Login Credentials” means any passwords, authentication keys, or security credentials that enable your access to and management of the Offering.
“On-Premises Software” means the Our software included with the Offering (if any) which is installed in a customer’s on-premises environment and is necessary to use or access the Offering.
“Order” means the ordering document that evidences your purchase of an entitlement to the Offering. If you use the Offering on an on-demand basis, “Order” means the applicable web page(s) describing the Offering.
“Party” means either you or We, and “parties” refers collectively to both You and We.
“Privacy Policy” means the then-current version of Our Privacy Policy.
“Offering” means the services to be provided to the Customer on Smartek cloud platform or our offering specified in your Order, and any evaluation service.
“Offering Documentation” means: (a) Our Data Processing Addendum, which is applicable to all Offerings, (b) the specific Service Description, and (c) the Support Policy.
“Software” means the software products listed in Our commercial price list.
“Support Terms” means the support services terms and conditions attached as Schedule 4 of the System Agreement.
“Subscription Term” means the initial term of your authorized use of the Offering, as set forth in the applicable Order, together with any renewal terms (if applicable). The initial term begins on the earlier of (a) the date on which you start using the Offering or (b) the date you complete the registration process; or as otherwise specified in the Order or in the applicable Service Description. For any Offering you use on an on-demand basis, “Subscription Term” means the period during which you are using the Offering, for which you will be billed, as specified in the applicable Service Description.
“Support Policy” means the then-current version of the support policies or the applicable Support Terms.
“System Agreement” means the Smartek System Agreement between “Barringtons” and Customer.
“Taxes” or “Tax” means any sales, value-added tax, goods and services tax, use, gross receipts, business and occupation, and other taxes other than taxes on our income, export and import fees, customs duties, and similar charges imposed by any government or other authority.
“Third-Party Claim” means any third-party claim or demand arising from or relating to (a) Your Content, or (b) Your use of any Offering, including an evaluation service, in violation of the Agreement.
“Third-Party Content” means content (including open source software) provided by a third party that interoperates with the Offering, but that is not part of the Offering. Third-Party Content is used at your option, and is subject to the third-party terms accompanying the Third-Party Content. Third-Party Content is not licensed by us. We and our suppliers may provide links to Third-Party Content through the Offering, a marketplace, or otherwise. As an example, Third-Party Content may include an application that is listed on a marketplace or in a catalogue.
“User” means any person who is authorized to access or use the Offering or Your Content directly under your Login Credentials, and may include your employees, contractors, service providers, and affiliates.
“You” means You individually or the entity that You represent (and, as applicable, Your Users). If you are entering into the Agreement for an entity, you represent that you have the authority to bind that entity.
“Your Content” means content uploaded by You or any User into the Offering for processing, storage, or hosting or provided to us as part of a support request, but does not include (a) Third-Party Content, or (b) Account Information. For purposes of this definition, “content” means any data, including all text, sound, video, or image files, and software (including machine images).
“We”, “Our”, “Us” or “Barringtons” means Barrington Group Australia Pty Limited.