Software-aS-a-service TERMS
AND CONDITIONS
Welcome to Sumtl,
These terms and
conditions (Terms) govern your
membership with Sumtl, a product described on our Website accessible at sumtl.com.au
(Subscription). Your Subscription is
for the tiered package as selected by you and agreed between us by means of the
Website (Subscription Tier).
By clicking the tick box below, 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
Cyrus Pay Pty Ltd, an Australian business with the ABN 16 644 414 362 (‘Cyrus Pay’, ‘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 indefinitely,
and you will continue to incur Subscription Fees, unless you notify us that you
want to cancel your Subscription in accordance with clause 5. 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.
(a)
By submitting an order for the purchase of a
Subscription on the Website, or by responding to a quote from us, indicating
that you would like us to provide any goods, software or services to you,
including Additional Services (Order),
you represent and warrant that:
(i)
you have the legal capacity and are of
sufficient age to enter into a binding contract with us; and
(ii)
you are authorised to use the debit or credit
card you provide with your Order.
(b)
Submitting or agreeing to an Order constitutes
your intention and offer to enter into these Terms.
1.2
YOUR
SUBSCRIPTION AND THE SOLUTION
(a)
(The
Solution) The Solution includes the Software, the Hosted Services, the
Support Services and any agreed Additional Services, to the extent described in
your Subscription Tier.
(b)
(Scope of
Subscription) Your Subscription includes the benefits and limitations of
your Subscription Tier as set out on our Website and in your Order (as may be
amended from time to time by notice to you).
1.3
ACCOUNTS
(a)
(Accounts) To submit an Order or to use
the Solution, you may be required to sign-up, register and receive an account
through the Website (an Account).
(b)
(Provide Information) As part of the
Account registration process and as part of your continued use of the Website,
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.
(c)
(Warranty) You warrant that any
information you give to us in the course of completing the Account registration
process will always be accurate, honest, correct and up-to-date.
(d)
(Acceptance) Once you complete the
Account registration process, we may, in our absolute discretion, choose to
accept you as a registered user within the Website and provide you with an
Account.
(e)
(Cancellation) We may, in our absolute
discretion, suspend or cancel your Account for any reason, including for any
failure by you to comply with these Terms.
(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 Uses. If your Subscription Tier on the Website does
not specify a Number of Solution Uses, your licence to use the Solution under
this clause will be limited to one use (the Number of Solution Uses will be
one).
(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.
2.1
SERVICES
We
will provide you with:
(a)
Hosted Services and Support Services, as set out
in the Order for your Subscription, or as agreed by us in writing from time to
time; and
(b)
additional services from time to time, as set
out in any Order accepted by us (Additional Services).
2.2
CLIENT
OBLIGATIONS
You
agree to:
(a)
provide us with all documentation, information
and assistance reasonably required by us to perform the Services; and
(b)
provide us with access to any third party or
other accounts used by you (including log-in details and passwords), as is
reasonably required by us to perform the Services.
2.3
CLIENT
MATERIAL
(a)
You warrant that all information, documentation
and other Material you provide to us for the purpose of receiving the Services
is complete, accurate and up-to-date.
(b)
You release us from all liability in relation to
any loss or damage arising out of or in connection with the Services, to the
extent such loss or damage is caused or contributed to by information,
documentation or any other Material provided by you being incomplete,
inaccurate or out-of-date.
2.4
REVIEW OF SERVICES
If
you review and approve of a Service, then that will constitute acceptance of
responsibility for any errors and omissions within that Service (for example,
in any copywriting we prepare for you). We will use our best efforts to ensure
there are no such errors or omissions.
2.5
DELIVERY
TIMES
(a)
Delivery times set out in an Order in relation
to Services are indicative only and are included as a guide for when the
Services are expected to be performed, unless otherwise agreed in writing.
(b)
We may, due to various reasons beyond our
control, need to make reasonable adjustments to delivery times.
2.6
DISCLAIMER
You
acknowledge and agree that:
(a)
any information provided to you as part of or in
connection with the Solution or the Services is general in nature, may not be
suitable for your circumstances and does not constitute financial, legal or any
other kind of professional advice; and
(b)
it is your responsibility to comply with
applicable Laws relevant to your business, including industrial relations Laws
and privacy Laws.
2.7
COLLECTION NOTICE AND PRIVACY
(a)
We collect personal information about you in the
course of providing you with the Solution, to contact and communicate with you,
to respond to your enquiries and for other purposes set out in our Privacy
Policy.
(b)
Our Privacy Policy contains more information
about how we use, disclose and store your information and details how you can
access and correct your personal information.
(c)
By agreeing to these Terms, you agree to be
bound by our Privacy Policy.
3
SPECIFIC
SERVICES
(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 us providing 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.
4.1
FEES
You agree to pay the Fees in the amounts, and at
the times, set out in the relevant Order.
4.2
SUBSCRIPTION FEES
After your free trial period (which will extend for the
free trial period set out in your Order (Free Trial Period)), you must
pay subscription fees to us in the amounts and at the times specified in your
Order, or as otherwise agreed in writing (Subscription
Fees). No payments will be due during your Free Trial Period and your
first payment will be due immediately after the expiry of the Free Trial
Period.
4.3
AUTOMATIC RECURRING BILLING
(a)
Your Subscription will continue for the
Subscription Period you selected when subscribing to Sumtl.
(b)
Your Subscription will continue to renew on an
indefinite basis, unless you notify us within the then-current billing period
that you want to cancel your Subscription from the commencement of the next
billing period. Otherwise, we will continue to debit the Subscription Fees from
your account for the next billing period.
(c)
We will not be required to pay any charge back
amount if you fail to cancel your Subscription in accordance with this clause.
(d)
By signing up for a recurring Subscription, you
acknowledge and agree 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 authorisation from you, until you provide
prior written notice that you have terminated this authorisation or wish to
change your payment method (and receipt of this is confirmed by us). Such
notice will not affect charges submitted before we could reasonably act on such
notice. To terminate your authorisation or change your payment method, please
contact us via our Website.
4.4
LATE
PAYMENTS
We
reserve the right to suspend all or part of the Solution indefinitely if you
fail to pay any Fees in accordance with this clause 4.
4.5
NO
CHANGE OF MIND REFUNDS
Our
Fees are non-refundable for change of mind.
4.6
GST
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.
4.7
CARD
SURCHARGES
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).
5
CANCELLATION OF YOUR SUBSCRIPTION
(a)
You may cancel your Subscription by notice to
us. Your Subscription will end in the next 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 User Data, and you release us in respect of any loss or
damage which may arise out of us not retaining any User Data or other Material
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.
(d)
We may cancel your Subscription immediately at
any time. If we cancel your Subscription under this clause 5(d), in circumstances where you have not breached any of
these Terms, we will issue you with a refund of a pro rata amount of the
Subscription Fee, in proportion to the remainder of the period in which you
will not have access to your Subscription due to our cancellation.
6
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 billing cycle immediately following the
cycle in which your access to the new Subscription Tier was provided, and you
will be charged at the new Subscription Fee in that subsequent cycle.
(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 from time to time.
(c)
If you choose to downgrade your Subscription,
you acknowledge and agree we are not liable, and you release us from all claims
in relation to, any loss of content, features, or capacity, including any
Client Data.
7.1
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)
upload sensitive information or commercial
secrets using the Software;
(ii)
upload any inappropriate, offensive, illicit,
illegal, pornographic, sexist, homophobic or racist material using the
Software;
(iii)
upload any material that is owned or copyrighted
by a third party;
(iv)
make copies of the
Documentation or the Software;
(v)
adapt, modify or
tamper in any way with the Software;
(vi)
remove or alter any
copyright, trade mark or other notice on or forming part of the Software or
Documentation;
(vii)
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;
(viii)
use the Software in a
way which infringes the Intellectual Property Rights of any third party;
(ix)
create derivative
works from or translate the Software or Documentation;
(x)
publish or otherwise
communicate the Software or Documentation to the public, including by making it
available online or sharing it with third parties;
(xi)
sell, loan, transfer,
sub-licence, hire or otherwise dispose of the Software or Documentation to any
third party;
(xii)
decompile or reverse
engineer the Software or any part of it, or otherwise attempt to derive its
source code;
(xiii)
attempt to circumvent
any technological protection mechanism or other security feature of the
Software; or
(xiv)
permit any use of the
Solution in addition to the Number of Solution Uses.
(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.
7.2
USER 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)
not to upload any inappropriate, offensive,
illicit, illegal, pornographic, sexist, homophobic or racist material using the
Solution
(d)
to sign up for a new Solution account (User
Account) in order to use the Solution;
(e)
to not share your User Account with any other
person;
(f)
not to use the Software for any purposes other
than the purpose of the Software, which is to design and generate decision
trees, to be used by Users, for your marketing purposes (Purpose);
(g)
not to integrate the Software with third party
data or Software, or make additions or changes to the Software, (including by
incorporating APIs into the Software) other than for the Purpose;
(h)
to not share your User Account information
(including your Account information), including log in details or passwords,
with any other person and that any use of your User Account or Account by any
person who is not the account holder is strictly prohibited You must
immediately notify us of any unauthorised use of your User Account, Account,
password or email, or any other breach or potential breach of the Solution’s
security;
(i)
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);
(j)
not to use the Solution in a way which infringes
the Intellectual Property Rights of any third party;
(k)
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;
(l)
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;
(m)
that we may change any features of the Solution
at any time on notice to you;
(n)
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
(o)
that we may cancel your, or any User’s, Account
at any time if we consider, in our absolute discretion, that you or they are in
breach of, or are likely to breach, this clause 7.
8
POSTED
MATERIAL
8.1
WARRANTIES
By
providing or posting any information, Material or other content in connection
with the Software (Posted Material),
you represent and warrant that, and must ensure that all Users make equivalent
representations and warranties:
(a)
you are authorised to provide the Posted
Material (including by being authorised to provide any services that you
represent you provide);
(b)
the Posted Material is accurate and true at the
time it is provided;
(c)
any Posted Material which is in the form of a
review or feedback is honest, accurate and presents a fair view of the relevant
person and/or your experience;
(d)
the Posted Material is free from any harmful,
discriminatory, defamatory or maliciously false implications and does not
contain any offensive or explicit material;
(e)
the Posted Material is free from any material
that may harm our reputation or that of associated or interested parties;
(f)
the Posted Material is not “passing off” of any
product or service and does not constitute unfair competition;
(g)
the Posted Material does not infringe any
Intellectual Property Rights, including copyright, trademarks, business names,
patents, Confidential Information or any other similar proprietary rights,
whether registered or unregistered, anywhere in the world;
(h)
the Posted Material does not contain any viruses
or other harmful code, or otherwise compromise the security or integrity of the
Solution or any network or system; and
(i)
the Posted Material does not breach or infringe
any applicable Laws.
8.2
LICENCE
(a)
You grant, and must ensure that all Users grant,
to us a perpetual, irrevocable, transferable, worldwide and royalty-free
licence (including the right to sublicense) to use, copy, modify, reproduce and
adapt any Intellectual Property Rights in any Posted Material in order for us
to use, exploit or otherwise enjoy the benefit of such Posted Material.
(b)
If it is determined that you retain moral rights
(including rights of attribution or integrity) in any Posted Material, you
forever release us from any and all claims that you could assert against us by
virtue of any such moral rights, and you must ensure that all Users grant an
equivalent release.
(c)
You indemnify us against all damages, losses,
costs and expenses incurred by us arising in connection with any third party
claim that Posted Material infringes any third party’s Intellectual Property
Rights.
8.3
REMOVAL
(a)
The Software acts as a passive conduit for the
online distribution of Posted Material and has no obligation to screen Posted
Material. However, we may, in our absolute discretion, review and remove any
Posted Material from the Solution at any time without giving any explanation or
justification for removing the Posted Material, including if we determine that
the Posted Material infringes a third party’s Intellectual Property Rights, or
is reasonably likely to.
(b)
You agree that you are responsible for keeping
and maintaining records of Posted Material.
9
INTELLECTUAL
PROPERTY AND DATA
9.1
INFRINGING
CONTENT ON THE SOFTWARE
(a) If you become aware of Posted Material, or other Material, on the Software that infringes the Intellectual Property Rights of any person, or is reasonably likely to, please contact us immediately on the ‘Copyright’ section of our Website, accessible here: cyruspay.com.au
(b)
If you submit a complaint on our Website under
clause 9.1(a):
(i)
you warrant that the substance of the complaint
is accurate, true and involves infringement of copyright;
(ii)
you acknowledge and agree that groundless
threats of legal proceedings in relation to copyright infringement may be
prohibited under applicable law (for example, Australia’s Copyright Act
1968, or equivalent laws wherever you are located); and
(iii)
you agree to indemnify Leads Hook in relation to
any loss or damage that may arise in relation to your complaint, including
in relation to any third party claim that the complaint contains a groundless
threat.
9.2
SOFTWARE
CONTENT INTELLECTUAL PROPERTY
(a)
(Our ownership) We retain ownership of
all materials provided to you throughout the course of your Subscription in
connection with the Software (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 the Software
Content for the sole purpose of viewing it and using it for the purposes of the
Software, being the generation of decision trees for marketing purposes. You
must not otherwise reproduce, transmit, adapt, distribute, sell, modify or
publish any Software Content without prior written consent from us or as
otherwise permitted by Law.
9.3
CLIENT
DATA
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, and for our internal business purposes, including to improve the
Solution and our other products and services, and including to apply machine
learning and other analytics processes to the Client Data, to gain commercial
insights and other associated learnings, and to improve the Solution, our
business and our other products and services.
(b)
We will:
(i)
establish, maintain, enforce and continuously
improve safety and security procedures and safeguards against the unauthorised
use, destruction, loss or alteration of Client Data;
(ii)
not make any undocumented, unreported or
authorised configuration changes to our systems or to the information security
controls that secure Client Data, if those changes would materially decrease
the protections afforded to Client Data; and
(iii)
notify and keep you notified at all times of our
current safety and security procedures and safeguards that are made from time
to time.
(c)
We reserve the right to remove any Client Data
at any time, for any reason, 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.
(e)
You:
(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.
10
THIRD PARTY SOFTWARE, TERMS & CONDITIONS
10.1
THIRD
PARTY TERMS
(a)
You acknowledge and agree that the terms &
conditions of third party suppliers of goods or services (Third Party Terms) may apply to your use of the Solution from time
to time (including to any Additional Services).
(c)
We will endeavour to notify you of Third Party
Terms that apply to the Solution or any Services, in which case:
(i)
you must immediately notify us if you do not
agree to such Third Party Terms; and
(ii)
if we do not receive a notice in accordance with
clause 10.1(c)(i),
you will be taken to have accepted those Third Party Terms, and we will not be
liable for any loss or damage suffered by you in connection with such Third
Party Terms.
(d)
You acknowledge and agree that if you do not
agree to any Third Party Terms, this may affect our ability to meet any agreed
schedules for Service delivery.
10.2
THIRD
PARTY SOFTWARE
(a)
You acknowledge and agree that issues can arise
when data is uploaded to software, when data is transferred between different
software programs, and when different software programs are integrated
together. We cannot guarantee that integration processes between the Software
and other software programs will be free from errors, defects or delay.
(b)
You agree that we will not be liable for the
functionality of any third party goods or services, including any third party
software, or for the functionality of the Software if you integrate it with
third party software, or change or augment the Software, including by making
additions or changes to the Software code, and including by incorporating APIs
into the Software.
(c)
If you add third party software or software code
to the Software, integrate the Software with third party software, or make any
other changes to the Software, including the Software code (User Software
Changes), then:
(i)
you acknowledge and agree that User Software
Changes can have adverse effects on the Solution, including the Software;
(ii)
you will indemnify us in relation to any loss or
damage that arises in connection with the User Software Changes;
(iii)
we will not be liable for any failure in the
Solution, to the extent such failure is caused or contributed to by a User
Software Change;
(iv)
we may require you to change or remove User
Software Changes, at our discretion, and if we do so, you must act promptly;
(v)
we may suspend your access to the Solution until
you have changed or removed User Software Change; and/or
(vi)
we may change or remove any User Software
Change, in our absolute discretion. We will not be liable for loss of data or
any other loss or damage you may suffer in relation to our amendment to, or
removal of, any User Software Change.
11
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 disclose to any person any
Confidential Information disclosed to it by the other party without the
disclosing party’s prior written consent.
(b)
You agree to our Privacy Policy, located on our
Website, which is incorporated into these Terms by reference. Please read the
Privacy Policy carefully as it governs our collection, use, and disclosure of
personal information.
(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.
(d)
The notifying party will investigate each
potential, actual or suspected Security Breach and assist the other party in
connection with any related investigation.
12.1
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 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.
(a)
(Limitation
of liability) To the maximum extent permitted by applicable law, our
maximum aggregate liability to you in respect of loss or damage sustained by
you under or in connection with these Terms or the Solution is limited to the
total Fees paid to us by you in the 6 months preceding the first event giving
rise to the relevant liability.
(b)
(Indemnity)
You agree at all times to indemnify and hold harmless Leads Hook and its
officers, employees and agents (“those
indemnified”) from and against any loss (including reasonable legal costs)
or liability incurred or suffered by any of those indemnified where such loss
or liability was caused or contributed to by you or you officers’, employees’
or agents’:
(i)
breach of any of these Terms; or
(ii)
negligent, fraudulent or criminal act or
omission.
(c)
(Consequential
loss) We will not be liable for any incidental, special or consequential
loss or damages, or damages for loss of data, business or business opportunity,
goodwill, anticipated savings, profits or revenue arising under or in
connection with these Terms or any goods or services provided by us, except to
the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable
law.
13
CANCELLATION, DISPUTES AND TERMINATION
(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.
13.2
TERMINATION BY US
(a)
We may terminate these Terms or any Subscription
in whole or in part immediately by written notice to you, at any time for any
reason, including if:
(i)
you, a member of your Personnel, or a User, are
in breach of any term of these Terms; or
(ii)
you become subject to any form of insolvency or
bankruptcy administration.
(b)
If we terminate these Terms under this clause 13,
in circumstances where you have not breached any of these Terms, we will issue
you with a refund of a pro rata amount of the current 30 day period’s
Subscription Fee, in proportion to the remainder of the 30 day period in which
you will not have access to your Subscription.
13.3
TERMINATION
BY CLIENT
You
may terminate these Terms if:
(a)
we have committed a material breach of these
Terms and have failed to remedy the breach within 30 days’ of receipt of
written notice from you; or
(b)
we become subject to any form of insolvency or
bankruptcy administration.
If you validly terminate in accordance with this
clause 13,
no further fees will be payable by you (unless later found that such
termination was invalid).
14
FORCE
MAJEURE
(a)
We will not be liable for any delay or failure
to perform its 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 you
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 14(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;
(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.
15
NOTICES
(a)
A notice or other communication to a party under
these Terms must be:
(i)
in writing and in English; and
(ii)
delivered via email to the other party, to the
email address specified in the Order, or if no email address is specified in
the Order, 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,
whichever is earlier.
16
GENERAL
16.1
GOVERNING
LAW AND JURISDICTION
This
agreement is governed by the law applying in Victoria, Australia. Each party
irrevocably submits to the exclusive jurisdiction of the courts of Victoria,
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.
16.2
WAIVER
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.
16.3
SEVERANCE
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.
16.4
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.
16.5
ASSIGNMENT
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.
16.6
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.
16.7
INTERPRETATION
(a)
(singular
and plural) words in the singular includes the plural (and vice versa);
(b)
(currency)
a reference to $; or “dollar” is to Australian currency;
(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.
DEFINITIONS
|
Term |
Definition |
|
Client Data |
means any data, document or other Material
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. |
|
Fees |
means the Subscription Fees, fees for
Additional Services and any other fees the Client must pay in accordance with
an Order. |
|
Hosted Services |
has the meaning given in clause 3.1. |
|
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. |
|
Material |
means tangible and intangible information,
documents, reports, software (including source and object code), inventions,
data and other materials in any media whatsoever. |
|
Number of Solution Uses |
means the number of websites, or any other
platform or use, that you may use the Solution in respect to, in accordance
with your Subscription Tier. |
|
Personnel |
means, in respect of a party, its officers,
employees, contractors (including subcontractors) and agents. |
|
Services |
means the Hosted Services, the Support
Services, the Additional Services, and any other services we agree in writing
to provide. |
|
Software |
means the software as described on our
Website, and which is licenced to you in accordance with clauses 1.4
and 9.2. |
|
Software Content |
has the meaning set out in clause 9.2(a). |
|
Solution |
includes the Software and the 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 on the Website. |
|
Subscription Fees |
has the meaning set out in clause 4
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 3.2. |
|
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 any other User,
including any Intellectual Property Rights attaching to those files, data,
materials or any other information. |
|
Website |
means the website at the URL set out in the
first paragraph of these Terms, and any other website operated by us in
connection with the Solution. |
WEBSITE TERMS AND CONDITIONS
17 INTRODUCTION
(a) These terms and conditions (Terms) apply when you use this website, cyruspay.com.au (Website).
(b) You agree to be bound by these Terms which form a binding contractual agreement between you and us, Cyrus Pay Pty Ltd, an Australian business with the ABN 16 644 414 362 (referred to in this privacy policy as ‘we’, ‘us’, or ‘our’)
(c) If you don’t agree to these Terms, you must refrain from using the Website.
(d) We may change these Terms at any time by updating this page of the Website, and your continued use of the Website following such an update will represent an agreement by you to be bound by the Terms as amended.
18 ACCESS AND USE OF THE WEBSITE
You must only use the Website in accordance with these Terms and any applicable laws, and must ensure that your employees, sub-contractors and any other agents who use or access the Website comply with the Terms and any applicable laws.
You must not:
(a) copy, mirror, reproduce, translate, adapt, vary, modify, sell, decipher or decompile any part or aspect of the Website without the express consent of the Company;
(b) use the Website for any purpose other than the purposes of browsing, selecting or purchasing goods;
(c) use, or attempt to use, the Website in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
(d) use, or attempt to use, the Website in a manner that may interfere with, disrupt or create undue burden on the Website or the servers or networks that host the Website;
(e) use the Website with the assistance of any automated scripting tool or software;
(f) act in a way that may diminish or adversely impact the reputation of the Company, including by linking to the Website on any other website; and
(g) attempt to breach the security of the Website, or otherwise interfere with the normal functions of the Website, including by:
(i) gaining unauthorised access to Website accounts or data;
(ii) scanning, probing or testing the Website for security vulnerabilities;
(iii) overloading, flooding, mailbombing, crashing or submitting a virus to the Website; or
(iv) instigate or participate in a denial-of-service attack against the Website.
While we make every effort to ensure that the information on the Website is as up-to-date and accurate as possible, you acknowledge and agree that we do not (to the maximum extent permitted by law) guarantee that:
(a) the Website will be free from errors or defects;
(b) the Website will be accessible at all times;
(c) messages sent through the Website will be delivered promptly, or delivered at all;
(d) information you receive or supply through the Website will be secure or confidential; or
(e) any information provided through the Website is accurate or true.
We reserve the right to change any information or functionality on the Website by updating the Website at any time without notice, including product descriptions, prices and other Website Content.
(a) The Company retains ownership of the Website and all materials on the Website (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Website Content) and reserves all rights in any intellectual property rights owned or licensed by it not expressly granted to you.
(b) You may make a temporary electronic copy of all or part of the Website for the sole purpose of viewing it. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish the Website or any Website Content without prior written consent from the Company or as permitted by law.
(a) The Website may contain links to other websites that are not our responsibility. We have no control over the content of the linked websites and we are not responsible for it.
(b) Inclusion of any linked website on the Website does not imply our approval or endorsement of the linked website.
The Company does not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with use of the Website. You should take your own precautions to ensure that the process that you employ for accessing the Website does not expose you to risk of viruses, malicious computer code or other forms of interference.
If you become aware of misuse of the Website by any person, any errors in the material on the Website or any difficulty in accessing or using the Website, please contact us immediately using the contact details or form provided on our Website.
You agree to be bound by our Privacy Policy below.
We make no warranties or representations about this Website or any of its content and will not be responsible to you or any third party for any direct or consequential loss suffered in connection with the use of this Website. To the maximum extent permitted by law, we exclude any liability that may arise due to your use of our Website and/or the information or materials contained on it. You agree to indemnify us for any loss or liability arising out of your use of this Website.
27 GENERAL
27.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, 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.
27.2 WAIVER
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.
27.3 SEVERANCE
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.
27.4 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.
27.5 ASSIGNMENT
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.
27.6 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.
27.7 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (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;
(d) (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;
(e) (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;
(f) (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;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word “includes” and similar words in any form is not a word of limitation;
(j) (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; and
(k) (currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.
PRIVACY POLICY
28
INTRODUCTION
This
document sets out the privacy policy of Cyrus Pay Pty Ltd, an Australian
business with the ABN 16 644 414 362 (referred to in this privacy policy as ‘we’,
‘us’, or ‘our’).
We
take our privacy obligations seriously and we’ve created this privacy policy to
explain how we store, maintain, use and disclose personal information.
By
providing personal information to us, you consent to our storage, maintenance,
use and disclosing of personal information in accordance with this privacy
policy.
We
may change this privacy policy from time to time by posting an updated copy on
our website and we encourage you to check our website regularly to ensure that
you are aware of our most current privacy policy.
29
TYPES OF PERSONAL INFORMATION WE COLLECT
The
personal information we collect may include the following:
(a)
name;
(b)
mailing or street address;
(c)
email address;
(d)
social media information;
(e)
telephone number and other contact details;
(f)
age;
(g)
date of birth;
(h)
credit card or other payment information;
(i)
information about your employees that you
provide to us with their consent, including, but not limited to, their
Australian Tax File Numbers, Australian Business Numbers, and superannuation
fund details;
(j)
information about your business or personal
circumstances;
(k)
information in connection with client surveys,
questionnaires and promotions;
(l)
your device identity and type, I.P. address,
geo-location information, page view statistics, advertising data and standard
web log information;
(m)
information about third parties; and
(n)
any other information provided by you to us via
our website or our online presence, or otherwise required by us or provided by
you.
30
HOW WE COLLECT PERSONAL INFORMATION
We
may collect personal information either directly from you, or from third
parties, including where you:
(a)
contact us through our website;
(b)
receive goods or services from us;
(c)
submit any of our online sign up forms;
(d)
communicate with us via email, telephone, SMS,
social applications (such as LinkedIn, Facebook or Twitter) or otherwise;
(e)
interact with our website, social applications,
services, content and advertising; and
(f)
invest in our business or enquire as to a
potential purchase in our business.
We
may also collect personal information from you when you use or access our
website or our social media pages. This may be done through use of web
analytics tools, ‘cookies’ or other similar tracking technologies that allow us
to track and analyse your website usage. Cookies are small files that store
information on your computer, mobile phone or other device and enable and allow
the creator of the cookie to identify when you visit different websites. If you
do not wish information to be stored as a cookie, you can disable cookies in
your web browser.
We
may use Google Analytics to collect and process data, including when you use
third party websites or apps. To find out more see How Google uses data
when you use our partners’ sites or apps.
31
USE OF YOUR PERSONAL INFORMATION
We
collect and use personal information for the following purposes:
(a)
to provide goods, services or information to
you;
(b)
for record keeping and administrative purposes;
(c)
to provide information about you to our
contractors, employees, consultants, agents or other third parties for the
purpose of providing goods or services to you;
(d)
to improve and optimise our service offering and
customer experience;
(e)
to comply with our legal obligations, resolve
disputes or enforce our agreements with third parties;
(f)
to send you marketing and promotional messages
and other information that may be of interest to you and for the purpose of
direct marketing (in accordance with the Spam Act). In this regard, we may use
email, SMS, social media or mail to send you direct marketing communications.
You can opt out of receiving marketing materials from us by using the opt-out
facility provided (e.g. an unsubscribe link);
(g)
to send you administrative messages, reminders,
notices, updates, security alerts, and other information requested by you; and
(h)
to consider an application of employment from
you.
We
may disclose your personal information to cloud-providers, contractors and
other third parties located inside or outside of Australia. If we do so, we
will take reasonable steps to ensure that any overseas recipient deals with
such personal information in a manner consistent with how we deal with it.
We
take reasonable steps to ensure your personal information is secure and
protected from misuse or unauthorised access. Our information technology
systems are password protected, and we use a range of administrative and
technical measures to protect these systems. However, we cannot guarantee the
security of your personal information.
Our
website may contain links to other websites. Those links are provided for
convenience and may not remain current or be maintained. We are not responsible
for the privacy practices of those linked websites and we suggest you review
the privacy policies of those websites before using them.
34
REQUESTING ACCESS OR CORRECTING YOUR PERSONAL
INFORMATION
If
you wish to request access to the personal information we hold about you,
please contact us using the contact details set out below including your name
and contact details. We may need to verify your identity before providing you
with your personal information. In some cases, we may be unable to provide you
with access to all your personal information and where this occurs, we will
explain why. We will deal with all requests for access to personal information
within a reasonable timeframe.
If
you think that any personal information we hold about you is inaccurate, please
contact us using the contact details set out below and we will take reasonable
steps to ensure that it is corrected.
If
you wish to complain about how we handle your personal information held by us,
please contact us using the details set out below including your name and
contact details. We will investigate your complaint promptly and respond to you
within a reasonable timeframe.
For
further information about our privacy policy or practices, or to access or
correct your personal information, or make a complaint, please contact us using
the details set out below:
Name: Support
Email: info@cyruspay.com.au
Our
privacy policy was last updated on 19 April 2024.