These terms and conditions (Terms) govern your membership with Loopit, a product used to manage and track vehicles used as part of a vehicle subscription service, and described on our Website at https://www.loopit.co/pricing. Your Subscription is for the tiered package as selected by you and agreed between us by means of the Website (Subscription Tier).
By paying for your Subscription or otherwise accepting the benefit of any part of the Solution, you agree to be bound by these Terms which form a binding contractual agreement between you or the company you represent (the ‘Client’, or ‘you’) and Blinker Subscription Pty Ltd (ABN 94 636 030 370) trading as Loopit Subscription (‘Loopit, ‘our’, ‘we’ or ‘us’). You represent and warrant that you have valid authority to enter into these Terms on behalf of any entity you may represent.
Please note that your Subscription will continue to renew for a 12 month period at the end of every Subscription Period, and you will continue to incur Subscription Fees, unless you notify us that you want to cancel your Subscription in accordance with clause 9.2. Please ensure you contact us if you want to cancel your Subscription.
We may change these Terms at any time by notifying you, and your continued use of the Solution following such an update will represent an agreement by you to be bound by the Terms as amended.
In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.
Please read these terms and conditions carefully before agreeing to proceed with your Subscription.
1. THE SOLUTION
1.1 YOUR SUBSCRIPTION AND THE SOLUTION
(a) (The Solution) The Solution includes, to the extent described in your Subscription Tier, the Software, the Hosted Services and the Support Services.
(b) (Scope of Subscription) Your Subscription includes the benefits and limitations set out on our Website for your Subscription Tier, or as otherwise communicated to you when you subscribe for your Subscription (as amended from time to time by notice to you).
(c) (Provide Information) As part of registering for, and your continued use of, your Subscription, you may be required to provide personal information and details, such
as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, photos and video, audio files, profile information, payment details, ratings and reviews, verified identifications, verified certifications and authentication, and other information as determined by us from time to time. You warrant that any information you give to us in the course of completing the Subscription registration process is accurate, honest, correct and up to date.
1.2 THE SOFTWARE
(a) During the Subscription Period, we grant to you a non-exclusive, non-transferable licence to use the Software and Documentation for the Number of Solution Users. If your Subscription Tier on the Website does not specify a Number of Solution Users, your licence to use the Solution under this clause will be limited to one (1) use (i.e. the Number of Solution Users will be one (1)).
(b) We may from time to time in our absolute discretion release enhancements to the Software, where enhancements means any upgraded, improved, modified or new versions of the Software. Any enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime.
(c) We will provide the Software in accordance with all applicable laws and industry standards.
(d) Unless otherwise agreed in writing, we may not provide access, or suspend access, to any part of the Solution until you have paid the relevant instalment of Subscription Fees.
1.3 HOSTED SERVICES
We will store User Data you upload to the Software using a third party hosting service selected by us (Hosting Service), subject to the following terms:
(a) (hosting location) You acknowledge and agree that we may use storage servers to host the Software through cloud-based services, and potentially other locations outside Australia.
(b) (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Service will be free from errors or defects or that User Data will be accessible or available at all times.
(c) (security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(d) (backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.
If the Solution includes services to provide you with support where necessary to resolve technical issues with the Software (Support Services), the following terms apply unless otherwise specifically agreed in writing:
(a) We will take reasonable steps to provide Support Services where necessary. You must first endeavour to resolve any issues with the Software internally and we will not assist with issues that are beyond our reasonable control.
(b) You are responsible for all internal administration and managing access, including storing back-up passwords and assisting your Personnel to access and use the Software.
(c) You will not have any claim for delay to your access to the Software due to any failure or delay in Support Services.
(d) Loopit must provide the Support Services in accordance with your Subscription Tier to you during the Subscription. If your Subscription Tier includes service levels, Loopit will use its best endeavours to provide the Support Services in accordance with the Service Levels in Table 1 (Service Levels).
Table 1: Service Levels
4 business hours
8 business hours
12 business hours
24 business hours
(e) The severity and priority of calls are classified as follows:
(i) Critical – business critical issues only, which prevent the majority of users from accessing the Services or where the module functionality is materially restricted with no feasible workaround
(ii) High –Solution issues affecting multiple users and issues affecting business operation, which prevents a small group of users from accessing the Services or where the module functionality is restricted but a feasible workaround exists
(iii) Medium – notification of image/data capture issues/trends; non-critical general, operation and technical enquiries
(iv) Low – feedback; non-essential system set-up changes, no compliance or cash flow impact.
(f) You must report any failure of Loopit to meet a Service Level within two working days of becoming aware of the issue by providing via email to Loopit:
(i) the support ticket number; and
(ii) evidence that the Service Level was not met.
(g) If Loopit, acting reasonably, agrees that a Service Level was not met, you will be entitled to Fee Credits in accordance with Table 2.
Table 2: Credit for Failure to Meet Service Level
Number of Failures per Month
Less than 5
5 - 10
2% of Fees
10 – 20
5% of Fees
20+ / Month
10% of Fees
(h) Loopit will use its best endeavours to provide you with 8 hours’ prior notice of any downtime that may affect the Solution.
(i) For the avoidance of doubt, no fees or any other amounts or compensation will be payable to you by Loopit in respect of downtime.
1.5 THIRD PARTY SOFTWARE, TERMS & CONDITIONS
(a) You acknowledge and agree that third party terms & conditions (Third Party Terms) may apply to your use of the Solution, including AWS, who’s terms can be found here, as updated from time to time.
(b) You agree to any Third Party Terms applicable to any third party goods and services that are used in providing the Solution, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
(c) Without limiting clause 1.5(b), we will take reasonable steps to notify you of Third Party Terms.
(d) You acknowledge and agree that issues can arise with transferring data to software and between software, and when integrating software with other software. We cannot guarantee the integration processes to other software will be free from errors, defects or delay. You agree that we will not be liable for the functionality of any third party goods or services, including any software.
2. SUBSCRIPTION FEES AND PAYMENT
(a) You must pay fees to us in the amounts and at the times specified in the pricing section of the Website for your Subscription Tier, or as otherwise agreed in writing, including the cost of any additional fees required for that Subscription Tier for each monthly period, such as transaction fees, ID checks, TruPass Biometric fees, credit check fees, and telematics fees (Subscription Fees).
(b) All Subscription Fees must be paid in advance and are non-refundable for change of mind.
(c) Unless otherwise agreed in writing, the Subscription Fees are due and payable on a monthly basis for the duration of the Subscription Period, with the first payment being due on the first day of the Subscription Period.
(d) (Automatic Recurring Billing) Your Subscription will continue to renew on a monthly basis indefinitely, and you must pay Subscription Fees in respect of each monthly period, unless you cancel your Subscription in accordance with clause 9.2. Otherwise, we will continue to debit the Subscription Fees from your account each month. We will not pay any charge back amount if you fail to cancel your Subscription in accordance with this clause. By choosing a recurring payment plan, you acknowledge that your Subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to your cancellation of your Subscription. We may submit periodic charges for the Subscription Fees without further authorization from you, until you provide prior written notice (receipt of which is confirmed by us) that you have terminated this authorization or wish to change your payment method. Such notice will not affect charges submitted before we could reasonably act on such notice. To terminate your authorization or change your payment method, please contact us via our Website.
(e) Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.
(f) We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
(g) We reserve the right, from time to time, to change the Subscription Fees. We will notify you in advance if we do this.
3. GPS DEVICES
(a) In order to track the location and usage of any vehicle using the Solution, a vehicle must be fitted with a telematic GPS device (GPS Device).
(b) You acknowledge and agree that it is your sole responsibility to purchase and install a GPS Device, and that you will not be provided with GPS Devices as part of your Subscription, unless otherwise agreed in writing.
(c) If you purchase a GPS Device from us (Order), the following terms will apply:
(i) your Order must be paid in advance and is non-refundable for change of mind.
(ii) once we confirm receipt of payment of your Order, your Order is binding and cannot be changed by you.
(iii) we may charge you delivery costs which will be advised to you prior to placing your Order.
(iv) we will endeavour to ensure that the GPS Devices provided will be substantially the same as the GPS Devices displayed on our Website or as otherwise agreed with you in writing prior to placing your Order. Due to screen display, colour and brightness, and image quality, GPS Devices may not exactly match an image provided by us or shown on our Website.
(v) we reserve the right to charge you a storage fee (at a rate to be determined by Loopit in its sole discretion) on GPS Devices not delivered within 7 days of us notifying you of its availability to be delivered.
(vi) risk and title in the GPS Device will be passed to you upon payment of the Order for that GPS Device.
(i) a GPS Device is damaged, lost, stolen, or is otherwise rendered unusable; or
(ii) you wish to install a new GPS Device into an existing or additional vehicle,
it is your sole responsibility to purchase and install a new GPS Device.
(e) You acknowledge and agree that if you choose to not install a GPS Device in a vehicle, you will be unable to track the use of the vehicle and will not be able to track some aspects of a vehicle subscription service that the Solution is designed to manage, such as distance travelled.
(f) We will provide you with the required specifications for the GPS Devices to work with the Solution. It is your responsibility however to ensure that the GPS Device meets the required specifications, so it is compatible with the Solution. Loopit will not be liable for any loss or damage the Client may suffer as a result of purchasing a GPS Device that is not compatible with the Solution.
4. YOUR OBLIGATIONS
(a) You must, and must ensure that all Users, comply with these Terms at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.
(b) You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:
(i) make copies of the Documentation or the Software;
(ii) adapt, modify or tamper in any way with the Software;
(iii) remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation;
(iv) create derivative works from or translate the Software or Documentation;
(v) publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties;
(vi) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party;
(vii) decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
(viii) attempt to circumvent any technological protection mechanism or other security feature of the Software;
(ix) upload sensitive information or commercial secrets using the Software;
(x) upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Software;
(xi) upload any material that is owned or copyrighted by a third party; or
(xii) permit any use of the Solution in addition to the Number of Solution Users.
(c) If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Website.
(d) You acknowledge and agree that Loopit has no part of and that it is solely your responsibility to:
(i) provide the vehicles for which the Solution will be used to manage;
(ii) install the GPS Devices into the vehicles (in accordance with our reasonable instructions);
(iii) enter into commercial agreements with your Users for the subscription of vehicles;
(iv) enforce the collection of outstanding payments from your Users in respect of the vehicles;
(v) communicate with your Users for the collection of overdue payments and repossession of vehicles; and
(vi) otherwise manage all aspects of the relationship with your Users.
(e) For each User that engages you for a vehicle subscription using the Solution, you must perform a DVS Customer ID Check and Credit Check and will be charged the associated fees as part of your Subscription Fees.
(f) You agree to display our logo and branding at the point of sale on your website in the manner directed by us to you, and in accordance with our reasonable instructions. This includes, without limitation, providing an active link to loopit.co.
(g) For clarity, you agree not to represent that the Solution and/or the GPS Decide are a service or product provided by you, or to hide, obscure or otherwise alter our logo and branding in any way when presenting the Solution to Users.
(h) You agree to comply with National Consumer Credit Protection Act 2009 (NCCP) legislation and ensure that the total cost attributed to the vehicle a customer takes out over its lifetime does not exceed the cash price of the vehicle.
5. USER’S OBLIGATIONS
You agree, and you must ensure that all Users agree:
(a) to comply with each of your obligations in these Terms;
(b) not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Solution;
(c) to not share your Solution account information with any other person and that any use of your account by any other person is strictly prohibited. You must immediately notify us of any unauthorised use of your account, password or email, or any other breach or potential breach of the Solution’s security;
(d) to not use the Solution for any purpose other than for the purpose for which it was designed, including you must not use the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);
(e) not to act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Solution;
(f) you must not make any automated use of the Solution and you must not copy, reproduce, translate, adapt, vary or modify the Solution without our express written consent;
(g) that we may change any features of the Solution at any time on notice to you;
(h) that information given to you through the Software, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
(i) that we may cancel your account at any time if we consider, in our absolute discretion, that you are in breach or are likely to breach this clause 5.
6. INTELLECTUAL PROPERTY AND DATA
6.1 SOFTWARE CONTENT INTELLECTUAL PROPERTY
(a) (Our ownership) We retain ownership of all materials provided to you throughout the course of your Subscription (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Software Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us not expressly granted to you.
(b) (Licence to you) You are granted a licence to the Software Content, for the Number of Solution Uses, and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Software. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Software Content without prior written consent from us or as otherwise permitted by law.
Our Rights and Obligations
(a) You grant to us (and our Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use Client Data to the extent reasonably required to provide the Solution.
(b) We will establish, maintain, enforce and continuously improve reasonable safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of Client Data.
(c) We reserve the right to remove any Client Data, including where we deem Client Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.
Your Obligations and Grant of Licence to Us
(d) You are responsible for ensuring that:
(i) you share Client Data only with intended recipients; and
(ii) all Client Data is appropriate and not offensive.
(i) warrant that our use of Client Data will not infringe any third-party Intellectual Property Rights; and
(ii) indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
7. CONFIDENTIALITY AND PRIVACY
(a) Except as contemplated by these Terms, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.
(c) Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information (Security Breaches).
(d) The notifying party will investigate each potential, actual or suspected Security Breach and assist the other party in connection with any related investigation.
8.1 WARRANTIES AND LIMITATIONS
(a) (Warranties) We warrant that:
(i) during the Subscription Period, the Software will perform substantially in accordance with the Documentation;
(ii) during the Subscription Period, the Solution will be provided as described to you in, and subject to, these Terms; and
(iii) to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.
(b) (Errors) We will correct any errors, bugs or defects in the Software which arise during the Subscription Period and which are notified to us by you unless the errors, bugs or defects:
(i) result from the interaction of the Software with any other solution or any computer hardware, software or services not approved in writing by us;
(ii) result from any misuse of the Software; or
(iii) result from the use of the Software by you other than in accordance with these Terms or the Documentation.
(c) (Service Limitations) The Solution is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that we cannot guarantee that:
(i) the Solution will be free from errors or defects;\
(ii) the Solution will be accessible at all times;
(iii) messages sent through the Solution will be delivered promptly, or delivered at all;
(iv) information you receive or supply through the Solution will be secure or confidential; or
(v) any information provided through the Solution is accurate or true.
(d) (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these Terms are excluded.
(e) (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
8.2 LIMITATION OF LIABILITY
To the maximum extent permitted by law, our liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with these Terms, the Solution or a Subscription:
(a) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
(b) is limited, insofar as concerns other liability, to the total money paid to us under these Terms as at the date the event giving rise to the relevant liability occurs (or, where there are multiple events, the date of the first such event).
You indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise in connection with:
(a) any breach of these Terms by you, your Personnel or a User; or
(b) any act or omission of you, a User or your Personnel.
9. UPGRADES, DOWNGRADES AND CANCELLATION OF YOUR SUBSCRIPTION
9.1 UPGRADE AND DOWNGRADES
(a) You may notify us that you would like to upgrade or downgrade your Subscription Tier at any time. If you do, we will:
(i) take reasonable steps to promptly provide you with access to the new Subscription Tier; and
(ii) upon providing such access, apply the new, relevant Subscription Fees, in the monthly billing cycle immediately following the month in which your access to the new Subscription Tier was provided, and you will be charged at the new Subscription Fee in that subsequent month (subject to clause 9.1(b))
(b) For the avoidance of doubt, if you choose to downgrade your Subscription, the new Subscription Fees will kick in at the start of the next billing cycle, unless we notify you otherwise. We generally don’t pro-rate downgrades in between billing cycles, however we reserve the right to do so from time to time.
(c) These Terms will be taken to be amended in accordance with any changes agreed in accordance with clause 9.1(a).
(d) If you choose to downgrade your Subscription, you acknowledge and agree that we are not liable for, and you release us for all claims arising in connection with, any loss of content, features, or capacity, including any Client Data in relation to a downgrade in your Subscription.
(a) You may cancel your Subscription by providing 30 days’ notice to us. Your Subscription will end in the billing cycle which occurs 30 days after you provide notice to us, and you will be charged for that billing cycle.
(b) Your licence to the Solution under these Terms will last for the remainder of the then current billing cycle to ensure you have an opportunity to retrieve all data you may need from the Software. Once the then current billing cycles ends, we will have no responsibility to store or otherwise retain any data, and you release us in respect of any loss or damage which may arise out of us not retaining any data beyond that point.
(c) Your access to the Solution will be revoked at the end of the relevant billing cycle in which you cancel your Subscription by notice to us.
10 DISPUTES AND TERMINATION
10.1 DISPUTE RESOLUTION
(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
10.2 TERMINATION BY US
(a) We may terminate these Terms or any Subscription in whole or in part immediately by written notice to you if:
(i) you, a member of your Personnel, or a User, are in breach of any term of these Terms or any part of a Subscription; or
(ii) you become subject to any form of insolvency or bankruptcy administration.
(b) Upon termination of these Terms by us, the Subscription Fees already paid will be non-refundable, and you must promptly pay:
(i) the remainder of the Subscription Fees applicable for the Subscription Period as if the agreement had not been terminated;
(ii) our expenses to date; and
(iii) any payments required by our suppliers to discontinue their work.
10.3 TERMINATION BY CLIENT
You may terminate these Terms if:
(a) we have committed a material breach of these Terms or a Subscription and have failed to remedy the breach within 30 days’ written notice by you; or
(b) we become subject to any form of insolvency or bankruptcy administration.
If you validly terminate in accordance with this clause, no further fees will be payable by you (unless later found that such termination was invalid).
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
(ii) when replied to by the other party, 10
whichever is earlier.
12 FORCE MAJEURE
(a) We will not be liable for any delay or failure to perform our obligations under this agreement if such delay or failure arises out of a Force Majeure Event.
(b) If a Force Majeure Event occurs, we must use reasonable endeavours to notify the Customer of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement.
(c) Subject to compliance with clause 12(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of us; or
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.
13.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
13.4 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
13.6 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to American currency, unless another currency is clearly specified;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
|Client Data||means any documents or materials supplied by you to us under or in connection with these Terms or a Subscription, including any Intellectual Property Rights attaching to those materials.|
|Confidential Information||means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge.|
|Documentation||means all manuals, help files and other documents supplied by us to you relating to the Software, whether in electronic or hardcopy form.|
|Hosted Services||has the meaning given in clause 1.3.|
|Intellectual Property Rights||means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.|
|Number of Solution Users||means the number of Users that you may make the Solution available to, in accordance with your Subscription.|
|Personnel||means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.|
|Software||means the software as described on our Website, and which is licenced to you in accordance with clauses 1.2 and 6.1(b).|
|Software Content||means all materials owned or licensed by us in connection with the Software and any Intellectual Property Rights attaching to those materials.|
|Solution||includes the Software, Hosted Services, and Support Services (and any other services to be provided to you under these Terms).|
|Subscription||has meaning given in the first paragraph of these Terms, and includes the limitations set out in clause 1.1(b) and on the Website.|
|Subscription Fees||has the meaning set out in clause 2(a) of these Terms.|
|Subscription Period||means the period of your Subscription to the Solution as agreed on the Website.|
|Subscription Tier||has the meaning given in the first paragraph of these Terms.|
|Support Services||has the meaning given in clause 1.4.|
|User||means end users of the Solution, on your website or any other platform, and any other third party granted access to the Software by you.|
|User Data||means files, data, materials or any other information, which is uploaded to the Software by you or a User, including any Intellectual Property Rights attaching to those materials.|
|Website||means the website at the URL set out in the first paragraph of these Terms, and any other site operated by us in connection with the Solution.|