1.
Definitions
and interpretation
In this Agreement
the following expressions have the following meanings:
Business
Day means a day that is not
a Saturday, Sunday or any other day which is a public holiday in
Service means:
(a)
The .php file that enables You to access the Software via the
Website;
(b)
Any
upgrades or new versions of the Service available for use via the Website.
Software means
the computer software program known as "Formbay"
accessible via the Service and for the avoidance of doubt, Software does not include any third party software.
Territory means
Website means any URL via which the hosted Software is being served by Konceive to You.
(a)
A
reference to a person includes any other entity recognised by law and vice
versa.
(b)
Headings, underlinings, marginal notes and indexes are only
included for ease of reference and do not affect interpretation.
(c)
A
reference to any legislation or legislative provision includes any modifying,
consolidating or replacing legislation or legislative provisions from time to
time, and includes all regulations, rules and other statutory instruments
issued under the legislation.
(d)
A
reference to a document (including these Terms of Use) is to that document as
varied, novated, ratified or replaced from time to
time.
(e)
References
to parties, clauses, schedules, annexures or exhibits
are references to parties, clauses, schedules, annexures or exhibits to these Terms of Use unless otherwise stated.
(f)
References
to months and years mean calendar months and years.
(g)
Words
denoting the singular number include the plural, and vice versa.
(h)
Where
any word or phrase is given a defined meaning any other grammatical form of
that word or phrase has a corresponding meaning.
(i)
No rule
of construction or interpretation applies to the disadvantage of a party
because that party prepared these Terms of Use.
1.3
Severing
any void term
If
any part of these Terms of Use is void or unenforceable in any jurisdiction,
then for the purposes of that jurisdiction if possible,
that part is to be read down so as to be valid and enforceable. If this is not possible, and that part does
not go to the essence of these Terms of Use, that part will be severed from
these Terms of Use and the rest of these Terms of Use continues to have full
force and effect so as to give effect to the intention of the parties.
2.
Licence
to use the Service
2.2
Any documents or reports
generated by Your use of the Service must only be used
for the purpose outlined in clause
2.1
.
2.3
The Service must only be used in
accordance with these Terms of Use.
3.
Your
obligations
3.1
You must:
(a)
ensure
that any data entered onto the Service by You is accurate and reliable;
(b)
keep
up-to-date with the operation and any updates to the Service;
(c)
be
aware of, agree to and abide by terms and conditions of the Service and all
variations as notified from time to time;
(d)
maintain
the confidentiality of the Service;
(e)
act
professionally, and not do anything that will or that is likely to bring Konceive
into disrepute;
(f)
promptly
notify Konceive if You believe or suspect that the Service has been compromised
or is being used in a manner that breaches these Terms of Use;
(g)
maintain the confidentiality of Your Service username and
password, and accept full responsibility for all activities that occur under
Your username. Where the correct
username and password are provided, Konceive is entitled to assume that the
access is by You, or authorised by You, and You indemnify Konceive completely
against any claim of loss or damage that results from wrongful, fraudulent or
other access (using the correct username or password) to the Service;
(h)
make
Your own enquiries into the laws applying in each jurisdiction in which You use
the Service to ensure Your use of the Service is lawful; and
(i)
prevent other people from accessing or using the Service.
3.2
You must not do, and You must not
authorise or encourage any third party to do, any of the following:
(a)
copy,
redistribute or resell any element of the Service, or any object, item or
material created by Your use of the Service, or permit or purport to permit any
person to copy, redistribute or resell any element of the Service;
(b)
use the
Service for any illegal, fraudulent or inappropriate purpose;
(c)
use the
Service in any other way that violates any of the items as described in the
list of ‘Prohibited Actions’ and ‘Spam’ as outlined in the Schedule;
(d)
alter,
remove or otherwise interfere with any permissions applied by another user;
(e)
interfere
with or construct Your own system to access the information on the Service; or
(f)
act in any way that violates this Agreement.
3.3
You acknowledge and agree to each
of the following:
(a)
the
Service is only provided to You for so long as you abide by the Terms of Use;
(b)
Konceive
has the right to copy, use, manipulate or otherwise deal with any and all data
provided to it by You as part of Your use of the Service, and You warrant that Konceive's use of the data pursuant to this clause does not
infringe the rights of any third party;
(c)
the
Service may be subject to technical limitations such as network coverage and
third party service availability;
(d)
the
Service is provided on an AS IS and AS AVAILABLE basis and Konceive makes no
warranties or guarantees in respect of uptime for Your data, content or the
Service;
(e)
Konceive
expressly assumes no responsibility for, without limitation, backing up Your data, damage to Your data. You are responsible for
ensuring that you have any necessary back up documentation;
(f)
due to
the nature of the Service, Konceive does not promise that it will be
continuous, accessible at all times or fault-free;
(g)
Konceive
reserves the right to modify, suspend or discontinue any part of the Service
with or without notice at any time and without any liability to You; and
(h)
You are
solely responsible for the content of any documents that You upload to the Service and Konceive takes no responsibility for the accuracy of
that content of these uploaded documents.
4.1
You must promptly notify Konceive
of any actual or suspected breach of security related to the Services,
including, but not limited to, unauthorised use of Your password or account.
4.2
You are responsible for the
security of Your password, log-in or access details or
other security measures. You are
responsible for all electronic communications and other information entered
through or under user IDs, passwords, access numbers or account numbers. You must not disclose any security measures
to any other person and must keep those details confidential.
4.3
To help ensure the security of Your password or account, You must sign out from Your
account at the end of each session.
5.
Intellectual
Property Rights
5.1
You acknowledge that Konceive
owns all right, title and interest in and to the Service, including without
limitation all intellectual property rights (the Konceive Rights), and the
Konceive Rights are protected by intellectual property laws. Accordingly, You must not copy, reproduce, alter, modify, reverse
engineer or create derivative works from the Service. You must not use any
robot, spider, other automated device, or manual process to monitor any content
from, hosted by or that is otherwise available using the Service. The Konceive
Rights include rights to the Service developed and provided by Konceive, all
software associated with the Service and the Brand Features (see below). The
Konceive Rights do not include third-party content (such as Your data) used as part of Service.
5.2
Any use of Konceive’s trade names, trade marks, service marks, logos, domain names, and other
distinctive brand features (Brand
Features) by You must be only in
connection with the Service and in compliance with the Agreement. You must not alter any Brand Features or
copyright notices that are posted by Konceive in connection with the Service.
6.
Disclosure
of information
If disclosure of any information provided by You to Konceive, or by Konceive to You, is or
may be required by law or regulatory authority, the party under the obligation
must immediately notify the other party of that fact. If the other party objects to the disclosure
on the basis that it is not required by law, the party must act in accordance
with any reasonable written legal opinion provided to it by the other party, or
the other party’s legal advisors.
7.
Suspension
of the Website
Konceive
may from time to time without notice suspend the Website or disconnect or deny
you access to the Website during any technical
failure, modification or maintenance involved in the Website. Konceive will use its reasonable endeavours to procure the
resumption of the Website as soon as reasonably practicable.
8.
Warranties
and indemnity
8.1
You warrant to the best of Your
knowledge that the materials and information provided to Konceive for the purposes of providing the Services:
(a)
are
true, correct and current;
(b)
are
able to be disclosed by You;
(c)
does
not infringe the rights of any third party;
(d)
is able
to be legally provided to Konceive and its disclosure does not breach any law
or any obligation (whether of confidence or otherwise) owed to any person;
(e)
You
have all necessary right, power and authority to enter into these Terms of Use
and to perform the acts required of You under these
Terms of Use.
8.2
You acknowledge that You have not
relied upon or been induced by any representation by Konceive and Konceive
makes no warranty or representation as to:
(a)
the
results that may be obtained through the Service;
(b)
the
accuracy, reliability or otherwise of any information obtained through the
Service; or
(c)
the Service or network being uninterrupted,
timely or error free.
8.3
You indemnify and keep indemnified
Konceive and its officers, employees, agents, subsidiaries and affiliates
against all claims (including third party claims), demands, damages, costs
(including legal costs), penalties or suits arising out of or consequential
upon Your use of the Service and any breach of any warranty or other term of
these Terms of Use.
9.
Limitation
of Liability
9.1
To the extent permissible by law
Konceive excludes any liability:
(a)
for any
failure of performance, error, omission, interruption, deletion, defect or
delay in transmission or operation, or
(b)
for any
injury, loss or damage arising out of provision of the Services,
provided that Konceive does not exclude any such liability if it
arises as a result of Konceive's failure to take reasonable steps to guard
against and use its best endeavours to immediately rectify any of the matters
referred to in this clause
9.1
of which Konceive is aware.
9.2
To the fullest extent permissible
at law, Konceive is not liable for any direct, indirect, punitive, incidental,
special, consequential damages or any damages whatsoever including, without
limitation, damages for loss of use, data or profits, arising out of or in
anyway connected with the provision of or failure to provide the Service or
otherwise arising out of the Service, whether based on contract, negligence,
strict liability or otherwise, even if Konceive has been advised of the
possibility of damages.
9.3
You expressly agree that use of
the Service at Your own risk. To the extent allowed by law, Konceive's liability for breach of a term implied into these Terms of Use by any law is
excluded.
9.4
Konceive gives no warranty in
relation to the Service provided or supplied. Under no circumstances is Konceive or any of its carriers or suppliers
liable or responsible in any way to You or any other person for any loss,
damages, costs, expenses or other claims (including consequential damages and
loss of profits or loss of revenues), as a result, direct or indirect of any
defect, deficiency or discrepancy in the Service including its form, content
and timeliness of delivery, including, without limitation, for and in relation
to any of the following:
(a)
any
Service supplied to You;
(b)
any
delay in supply of the Service;
(c)
any
failure to supply the Service;
(d)
any
technical or non-technical failure; or
(e)
any content or information accessed via the Service with or without Your
authorisation.
9.5
The Australian Competition and Consumer Act 2010 may
imply certain conditions, guarantees and warranties into these Terms of Use. To
the extent permitted by law those conditions or warranties are expressly
excluded. Where they cannot be excluded
and where liability can be limited, Konceive’s liability (if any) arising from the breach of those conditions, guarantees and
warranties is limited, in Konceive’s sole discretion,
to the supply of the Service again or cost of re-supplying the Service again.
A failure or delay by Konceive to exercise a power or right under these
Terms of Use does not operate as a waiver of that power or right, and the
exercise of a power or right by Konceive does not preclude its future exercise or the exercise of any other
power or right.
11.
Notices
11.1
A notice or other communication
connected with these Terms of Use (Notice) has no legal effect unless in writing.
11.2
In
addition to any other method of service provided by law, the Notice may be:
(a)
sent by
prepaid ordinary mail to the address for services of the addressee in the
Contract Details, if the address is in
(b)
sent by
email to the address stated in the Contract Details;
(c)
sent by
facsimile to the facsimile number of the addressee in the Contract Details;
(d)
delivered
to the address for service of the addressee in the Contract Details; or
(e)
posted at the Website.
11.3
If the Notice is sent or
delivered in a manner provided by clause 11.2
it must be treated as given to and received by the
party to which it is addressed:
(a)
if
mailed from within
(b)
if sent
by email before 5.00pm on a Business Day at the place of receipt, on the day it
is sent and otherwise on the next Business Day at the place of receipt;
(c)
if sent
by facsimile before 5.00pm on a Business Day at the place of receipt, on the
day it is sent and otherwise on the next Business Day at the place of receipt;
or
(d)
if otherwise delivered before 5.00pm on a
Business Day at the place of delivery, upon delivery, and otherwise on the next
Business Day at the place of delivery.
11.4
Despite clause 11.3
(a)
a
facsimile is not treated as given or received unless at the end of the
transmission the sender’s facsimile machine issues a report confirming the
transmission of the number of pages in the Notice; and
(b)
a
facsimile is not treated as given or received if it is not received in full and
in legible form and the addressee notifies the sender of that fact within 3
hours after the transmission ends or by 12 noon on the Business Day on
which it would otherwise be treated as given and received, whichever is later.
11.5
If a Notice is served by a method
which is provided by law but is not provided by clause 11.2
, and the service takes place
after 5.00pm on a Business Day, or on a day that is not a Business Day, it must
be treated as taking place on the next Business Day.
11.6
A Notice sent or delivered in a
manner provided by clause 11.2
must be treated as validly given
to and received by the party to which it is addressed even if:
(a)
the addressee has been liquidated or deregistered
or is absent from the place at which the Notice is delivered or to which it is
sent; or
(b)
the Notice is
returned unclaimed.
11.7
A party may change its address
for service or facsimile number by giving Notice of that change to each other
party.
All questions or disputes relating to the
Service including these terms should be submitted to Konceive in writing. Konceive will endeavour to resolve any disputes
expeditiously. All interpretations of these Terms of Use of Service shall be at Konceive's sole discretion. Konceive's error is not a breach of these terms of Service.
13.1
Konceive
may vary these terms at any time by general notice on a page of the internet
referred to on the home page of the Website.
13.2
These
terms constitute the Agreement in its entirety and supersede prior agreements.
14.
Governing Law
The law in
SCHEDULE
Prohibited
Acts
In addition to those acts listed in these Terms of Use, the following
acts are prohibited in using or in connection with the Service:-
·
Send,
upload, distribute or disseminate or offer to do the same with respect to any
unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or
otherwise objectionable content.
·
Intentionally
distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or
any other items of a destructive or deceptive nature.
·
Transmit
content or use the Service that in the opinion of Konceive acting reasonably
may be considered harmful to or inappropriate for minors.
·
Impersonate
another person (via the use of an email address or account) or otherwise
misrepresent Yourself or the source of any email or
communication.
·
Use
Konceive to violate the legal rights (such as rights of privacy and publicity)
of others.
·
Promote,
encourage or participate in illegal or unlawful activity.
·
Interfere
without cause in the reasonable enjoyment by other Konceive Users of the Service.
·
Create
multiple user accounts, create user accounts by automated means or otherwise
engage in false, fraudulent, deceptive or misleading conduct in respect of user
identity.
·
Sell,
trade, resell, transfer or otherwise attempt to dispose of, or otherwise
exploit any content on the Service for any unauthorised commercial purpose.
·
Modify,
adapt, translate, or reverse engineer any portion of the Service
·
Remove
any copyright, trade mark or other proprietary rights notices contained in or
on the Service.
·
Reformat
or frame any portion of any web page that is part of the Service.
·
Create
third party software without the permission of Konceive.
·
Communicate
with the Service through other users other than the Konceive approved users.
·
Misrepresent
Konceive or the Service as being associated with content with another website,
web service, software service, software or other service without Konceive’s prior permission.
Spam
You are prohibited from generating or facilitating
unsolicited commercial communication ("spam"). Such activity
includes, but is not limited to
·
sending
communication in violation of
·
imitating
or impersonating another person or email address or Konceive's account, or creating false accounts for the purpose of sending spam;
·
data
mining any web property (including Konceive) to find email addresses or
accounts;
·
sending
unauthorised mail or communication via open, third-party servers;
·
sending
emails or communication to users who have requested to be removed from a
mailing list or Your contact list;
·
selling,
exchanging or distributing to a third party the email addresses of any person
without such person's knowing and continued consent to such disclosure;
·
sending unsolicited emails or communications to significant numbers of email
addresses or accounts belonging to individuals and/or entities with whom You
have no pre-existing relationship.