1. This agreement
1.1 Establishment of agreement
Thank you for choosing the Siteflex program. The terms and conditions that are set out below are the conditions under which the Siteflex program (Siteflex) must be used by you. It is important that you read these terms before you begin using Siteflex because when you log into the program for the first time:
- you are confirming that you not only have read these terms but that you agree to be bound by them when using Siteflex; and
- a legally binding agreement is formed between us (that is Siteflex Australia Pty Limited) and you as an individual, or as an authorised employee or agent of the company which you represent and which purchased the right to use Siteflex.
- once you have accepted the terms of this agreement by logging into Siteflex you agree to waive any right you may have to assert that the fact that you indicated your acceptance of this agreement electronically does not constitute actual acceptance.
1.2 Acceptance of other terms
As well as the terms set out in this agreement you agree to be bound by the following policies in place with respect to Siteflex from time to time:
- any specific terms and conditions agreed in writing with us from time to time;
- Siteflex's Acceptable Use Policy;
1.3 Amendment to terms
It may become necessary for us to changes the terms of this agreement from time to time. If so we will provide you with written notice of those changes (either electronically or by snail mail). For example we will either send you an e-mail which either sets out the new terms or which notifies you of the new terms as posted on our website. If we send such an e-mail to you then you will be deemed to have read the new terms upon receipt of that e-mail. Another way we may provide you with notice of the new terms is to provide you with a notification when you login to Siteflex of the last date the terms were updated so you can read the new terms on the first occasion you login after they were issued. Upon receipt of notice of the new terms of this agreement you will be deemed to have accepted the new terms unless we receive written (either electronically or by snail mail) notice within 14 days that you do not wish to accept the changes, in which case the original terms will stand as current and correct until such time as both parties agree to a specific set of variations to the terms of this agreement (in writing).
1.4 Contact details
You will see from the terms of this agreement that there are some important things we will need to provide you notice of. It is therefore essential that you ensure that the contact details you provide to us are correct. If the details we have are not correct and we send you a notice using those details:
- you will be deemed to have received the relevant notice; and
- we will not be liable in any way for any loss you suffer as a result of not having received the notice.
To make this agreement easier to read we have used terms that have specific definitions. These terms appear in this agreement with a capital letter as their first letter and when they are used they have the meaning set out at the end of this agreement.
2 The rights you have to use Siteflex
Siteflex is, and will at all times unless we specifically agree, owned by us. Entering into this agreement or using Sitefex does not give you any right to ownership of Siteflex or any part of it.
2.2 Licence to use
We have agreed to allow you to use Siteflex under licence only subject to the terms of this agreement. You acknowledge that the right to use Siteflex under licence is not exclusive to you and we can allow any other person or corporate entity to use Siteflex on any terms we see fit.
2.3 No transfer
You are not allowed to transfer the Licence to any other person or company, nor are you allowed to let anyone else use Siteflex under your Licence without obtaining our permission in writing first.
Your right to use Siteflex is subject to you complying with the terms of this agreement. If you do not comply with those terms then we may suspend your right to use Siteflex until we are satisfied that you will comply with these terms in full. If we suspend your right to use Siteflex on that basis we will try, but are not obliged, to provide you with prior notice. We are not liable to you for any Claim that arises as a result of the suspension of your right to use Siteflex under this clause 2.4
2.5 External links
We are happy for you to place links to external sites from your Website, provided the material on those sites would not breach this agreement if it was placed on your Website. If those sites do contain any such material then we can remove the link from your Website.
3 Subscription fees
3.1 Basis of fees
Before we allowed you to use Siteflex we will have provided you with written details of the fees you need to pay to continue with that use. Those fees need to be paid by you in order to allow you to continue to use Siteflex. If we ask you to pay those fees to a third party then payment to that third party will be as good as payment being made to us. You must also pay us any GST imposed on the fees you are required to pay under this agreement at the same time as you pay the relevant fee. In return we will provide you with a valid tax invoice for that payment.
3.2 Change in fees
Unfortunately, it is necessary for us to review our fees and to increase them from time to time. If we need to increase our fees for any reason we will provide you with written notice (either electronically or by way of snail mail) of the change in your fees. We understand that an increase in fees impacts on your operation and because of this we will not ask you to pay any increased amount until twenty eight (28) days after we advise you of the proposed increase. After that period the new fees will apply to your use of Siteflex.
3.3 Failure to pay
We do not ask much of you to use Siteflex except pay for that use. If you do not pay fees we ask you to pay to use Siteflex by the time we ask you to pay them then we will issue with a reminder notice and give you a further seven (7) days to pay. If we issue you a reminder notice we can also require that you pay to use a late payment fee equal to two (2%) of the amount outstanding for each reminder that we send to you.. If you still do not pay the full amount owing, including any late payment fees we ask you to pay, we can suspend your right to use Siteflex until all of those fees are paid. If we suspend your right to use Siteflex we can require you to pay a further fee to meet the additional costs incurred by us in having to do so.
3.4 No claim for suspended service
If we suspend your service under clause 3.3 it is because you have not paid the fees you agreed to pay us and because of this you agree not to make any Claim against us for any loss or damage you as a result of that suspension.
3.5 Payment by credit
It is an essential term of this agreement that you consent to us obtaining a credit reporting agency report in relation to you which may contain some of your personal information. It is important that we do this as we need to ensure that we can rely on you to pay any amounts owing to us under this agreement.
4 What you can't do
4.1 Protecting Siteflex
We have put a lot of time into developing Siteflex and as such we need to impose some restrictions on you as a condition of allowing you to use it. As well as observing these restrictions yourself, it is a condition of your use of Siteflex that you not allow any other person to breach these restrictions.
4.2 Specific restrictions
When using Siteflex you must not do any of the things that are listed below.
- Reverse engineer, de-compile, disassemble or alter Siteflex, or otherwise attempt to discover its source code.
- Transfer, sub-license, sell, rent, lease, lend, duplicate, or otherwise translate Siteflex.
- Copy any ideas, functions, features or graphics from Siteflex for any purpose, including but not limited to development of a similar program.
- Provide commercial hosting using Siteflex, including charging for access to it.
- Remove or obscure any trademarks, notices, source code or similar components, including the Siteflex icon and web-link, that appear on your web site.
- Use Siteflex for a purpose where the failure of all or part of it could lead to personal injury, death or severe physical or environmental damage.
- Tamper with or attempt to bypass functionality that operates to enforce this agreement, including the prevention of software piracy, unauthorised use, or to enforce the subscription level and subscription period of Siteflex.
- Use, post, transmit or introduce any software, routine or device that interferes or attempts to interfere with the operation, integrity or performance of Siteflex, or attempts to gain unauthorised access to Siteflex.
- Use Siteflex to track, collect, or otherwise use personally identifiable information of visitors or users of your Website if that action breaches privacy laws relating that apply in your Jurisdiction or otherwise to your use of Siteflex.
- Store material that:
- would breach any Law;
- would infringe the legal rights of another person (such as copyright); or
- is obscene, threatening or libellous (including material that is harmful to children or violates third party privacy rights).
Send or store material containing Malicious Code.
5 What you must do
As well as the things you can't do that are listed in clause 4, you must do the following things as a condition of your use of Siteflex (in addition to anything else you are required to do under this agreement).
- Operate Siteflex in accordance with the terms of this agreement and any operational instructions provided to you from time to time.
- Comply with any Laws that apply in your Jurisdiction or otherwise to your use of Siteflex.
- Protect any passwords, security devices or security codes provided to you for use with Siteflex.
- Tell us immediately of any unauthorised access to Siteflex or your website.
- Conduct any virus scanning and tests that are necessary to ensure that your Website remains free of Malicious Code and ensure that any material uploaded by you to any server provided by us does not contain any Malicious Code.
- Remove any material from your Website that we ask you to on the basis of a breach of clause 4.
- Obtain our written consent before you use the name Siteflex in any marketing you undertake and only undertake that marketing in accordance with the terms of our consent.
- Indemnify us against any Claim that is made against us as a result of your breach of this agreement.
6.1 Storage of data
We continuously backup and store any data within Siteflex that has been placed there by you or your customers. Even though we backup and store your data it is important and best practice that you back up your own data. We will assist you in any system recovery if possible however we are not liable for any loss suffered by you as a result of:
- your failure to back up your own data; or
- us providing you with the copy of your data stored by us (for example if that data is not the most current version of your data).
6.1.1 Confidentiality of Data
We know that your confidentiality of your data is important to you. If you provide us with any data, or if you place any data on the Siteflex system, we will not disclose this information to anyone and we will maintain the confidentiality of your data even when this agreement ends and we will take reasonable steps to maintain the confidentiality of this data provided to us. When this agreement ends , your data will be removed from the live Siteflex system after 90 days. Your data will remain within any previously archived backups, however, this data will remain confidential and be treated as if the agreement has not ended.
We use our own servers and those of third parties to provide us with server space for users of Siteflex. If you decide to store your data and have your Website hosted on one of these servers then in doing so you acknowledge the matters set out in this clause.
While we attempt to ensure that we only deal with safe and secure servers we are not liable to you for any Claim that arises as a result of the use of these servers. It is important that you make your own enquiries in relation to the servers we use and that you satisfy yourself that they are safe and secure and that they are appropriate for use by you.
It is also an essential term of this agreement that you comply with any rules or directions imposed by us or the owners of those servers, ( either issued directly to you or through us). If you do not do so then you must indemnify us against any Claim that arises from that non-compliance.
7 What we can do
You agree that we can do the following things in relation to your use of Siteflex without informing you that we are doing them on each occasion.
- Access of Siteflex or your Website by our staff for the purpose of maintaining, improving or providing assistance with Siteflex.
- Store your contact information with our records.
- Send marketing information, notifications, instructional and other service related items to you. If you later choose not to receive this material you can simply notify us in writing and we will stop sending it to you, except for information that we believe is important to allow you to properly use Siteflex.
- Disclose your business names and subscription level.
- Publish publicly available summary information in marketing material concerning Siteflex that may include information concerning you, your Website and your business.
- Remove any material from your Website or from the Siteflex system which you are not allowed to store using Siteflex under this agreement.
If we do any of the things set out above we must not disrupt or damage your Website in any way, or do anything with respect to your Website that would be a breach of this agreement if it was done by you with respect to Siteflex. From time to time we may run promotions involving, or make one off offers to, you concerning your use of Siteflex. If we do so they will be run on any terms we see fit and can be stopped at any time at our discretion. We are also not obliged to include all our customers in those promotions or offers and as such we can, at our discretion, exclude you from them. During the course of such offers, the terms on which they are conducted will override these terms to the extent of any inconsistency.
7.2 Siteflex marks
- Siteflex includes certain identification marks in its that identify the ownership of Siteflex.
- You agree to allow us to display a mark on at least the home page of your Website (and more pages if we choose to do so) which states something to the effect of “Powered by Siteflex" as well as any then current Siteflex logos and a link to the Siteflex website.
- In return we agree to ensure that the marks, logos and links placed by us are in a discrete position on your Website which do not distract from the actual content of your Website.
- You must not move, remove or obscure any Siteflex identification marks that form part of Siteflex or appear on your Website without our prior written permission.
7.3 Continual improvement
We are continually working on making Siteflex better for our customers. When we improve Siteflex we may, but are not obliged, to provide you with the benefits of those improvements at no cost.
In general terms if we improve Siteflex in a manner that does not require any specific changes to your Website we will provide you with the benefit of those improvements as part of your use of Siteflex. If however, you wish to obtain the benefits of improvements, or if you specifically request improvements, that require us to do specific work for you to allow you to have the benefit of those improvements then we will require you to pay for that specific work.
If we provide you with the benefits of those improvements we will provide you with sufficient information and advice to allow you to take advantage of those improvements with respect to your Website. While we will try to provide those improvements to you without an increase in your fees, this is not always possible. If we need to charge a fee to you for the provisions of those improvements we will advise you of the cost beforehand and will not provide you with the improvements unless you agree to pay that fee. If we make any improvements to Siteflex that are based on, or utilise, any suggestion or information provided by you, you do not have any right to those improvements to Siteflex, or to any payment (by way of royalty or otherwise).
It is sometimes important for us to perform maintenance to our system. This may mean that your use of Siteflex is interrupted or disrupted from time to time. We will provide you with reasonable notice of the conduct of any regular system maintenance so you are able to take the possible interruptions into account when managing your business. Unfortunately there will be times when we will not be able to provide you with that notice because the maintenance is required to fix an urgent problem or for some other similar reason. If this occurs we are not liable to you for any Claim that arises out of any resulting interruption to you use of Siteflex.
8 Warranties and representations
8.1 Our warranty
While we warrant (Warranty) that Siteflex will perform in accordance with the specifications provided for your subscription level, that warranty does not apply if the relevant breach of the Warranty was the result of:
- you breaching this agreement;
- any action by a third party;
- you not following the directions we provide to you concerning Siteflex; or
- you using Siteflex when you are not authorised to do so.
8.2 What you can claim
If we breach our Warranty:
- you must notify us as soon as possible; and
- we must do whichever of the following we choose:
- repair the problem with Siteflex that caused the breach;
- refund the price paid by you for the use of Siteflex during the period the breach persisted.
As far as the law will allow, these are the only remedies that are available to you in the event that we breach our Warranty.
8.3 Your warranty
You warrant to us that you:
- have made your own enquiries in relation to Siteflex, how it can be used by you and the system and hardware requirements you need in order to ensure that Siteflex operates effectively;
- you have not relied on any representation made by us, either verbally or in writing, when deciding whether to enter into this agreement; and
- are authorised and have the legal power to enter into this agreement.
This warranty is important because we have relied on it when deciding to enter into this agreement with you.
8.4 What we do not warrant
We do not warrant that:
- Siteflex may be used for any particular purpose, including any particular purpose for which you intend to use Siteflex;
- Siteflex will be error free or uninterrupted;
- any defects in Siteflex will be rectified;
- Siteflex will be free of Malicious Code;
- when this agreement ends you will be able to transfer any data utilised by Siteflex to an alternative system;
- Siteflex will continue to operate during any event that is out of our control such as power failures, system failure, any act of god or war; or
- Siteflex will immune from unauthorised access or the alteration of any data stored on your Website.
9 Intellectual Property ownership
9.1 Ownership of the Siteflex IP
Siteflex will, at all times, retain ownership of the Siteflex IP and you will not have any rights to use or profit from the use of the Siteflex IP other than in accordance with this agreement.
9.2 Restricted conduct
It is an essential term of this agreement that you must not:
- disclose the Siteflex IP (or any part of it) to any person (whether governmental, corporate or individual) except as permitted by this agreement;
- launch or attempt to launch a product or arrangement that is the same or similar to Siteflex, or which uses the Siteflex IP; or
- do any thing that:
- is inconsistent with our interest in the Siteflex IP; or
- which leads to the value of the Siteflex IP being diminished or otherwise adversely affected.
You agree to indemnify us against any Claims made against us which arise solely from your use of the Siteflex IP other than in accordance with this agreement.
9.4 Other Intellectual Property
You warrant us that any Intellectual Property contained on your Website:
- is your property; or
- is Intellectual Property that you are permitted to publish on your Website.
We do not gain any right to own or use any Intellectual Property stored on your Website, or within Siteflex, other than the Siteflex IP.
10 Limitation of liability
10.1 Subject to the law
Any matter set out in this clause 10 are subject at all times to the law and while the limitations contained in this clause apply to the fullest extent possible, they do not apply if the law prevents them from doing so.
10.2 Direct damages
If we are liable to you for direct damages then the amount of our liability is limited to the amount paid by you under this agreement other than damages caused by:
- any successful Claim made by a third party on account of an infringement of their intellectual property rights; or
- our negligence, dishonesty or fraud.
10.3 Indirect damages
Under no circumstances will we be liable for any Indirect Damages suffered by you which arise from your use of Siteflex or under this agreement.
10.4 Claims by third parties
The purpose of Siteflex is to facilitate you making arrangements with and exchanging or making available information to, third parties. Because Siteflex does not have any control over those matters we are not liable under any circumstances for any Claim made against you by a third party that arises as a result of them. We are also not liable under any circumstances for any Claim that arises as a result of any material or information published on your Website.
10.5 Your indemnity
It is an essential term of this agreement that you indemnify us against any Claim for which we are not liable under this clause 10.
11 End of this agreement
11.1 Termination by us
We can terminate this agreement immediately if:
- you do not pay any money owed to us for more than thirty (30) days after it was originally due to be paid;
- you breach any essential term of this agreement; or
- you breach any other term of this agreement and do not remedy that breach to our satisfaction, acting reasonably, within thirty (30) days of us asking you to do so.
- We can also terminate this agreement for any reason as long as we:
- provide you with at least ninety (90) days notice in writing of our intention to do so; and
- provide you with a single copy of any data recorded within Siteflex at the time this agreement is terminated.
While we will provide you with any reasonable assistance necessary to allow you to transfer to an alternative service in the event that we terminate this agreement, we are not obliged to do so.
11.2 Termination by you
You can terminate this agreement at any time by providing us with thirty (30) days written notice to that effect. If you terminate this agreement you are not entitled to a refund of any fees paid by you prior to the date of termination, even if those fees are for the use of Siteflex after that date. You must also pay us:
- any reasonable costs incurred by us in terminating your use of Siteflex;
- the balance of the fees owing for the subscription period within which you terminated this agreement.
11.3 Roll over of agreement
While your subscription has an end date, unless you advise us in writing at least thirty (30) days before the end of your subscription that you do not want to continue to use Siteflex:
- your subscription will be automatically extended on a month to month basis until you advise us that you no longer wish to use Siteflex; and
- the terms of this agreement will continue to apply to your use of Siteflex.
11.4 Effect of end
When this agreement ends you must immediately stop using Siteflex and not use it again unless we permit you to do so in writing.
12 Confidential Information
12.1 General Non-disclosure
One of the most important elements of the success of Siteflex is our ability to ensure that the information contained in Siteflex and which we provide to you in relation to its use remains confidential. It is therefore an essential term of this agreement that you agree not to disclose any Confidential Information without our prior written consent except in the circumstances allowed in this agreement. It is also an essential term of this agreement that you take all reasonable steps necessary to ensure that any person who gains knowledge of the Confidential Information from you complies with this agreement in relation to that information.
12.2 Exceptions to non-disclosure
You may disclose Confidential Information:
- where such disclosure is made to those of your employees, advisers, related bodies corporate and shareholders who have a need to know (and only to the extent each has a need to know) and who are aware and agree that the information must be kept confidential;
- which, at the time of disclosure, is within the public domain (and by this we mean available to people other than those who we authorise to use Siteflex) or after disclosure comes into the public domain other than by a breach or breaches by you of any obligation owed to us; or
- if required by law or any order of any court, tribunal, authority, regulatory body or the rules of any securities exchange (whether in Australia or elsewhere) to be disclosed and you ensure that information is disclosed only to the extent required.
12.3 Return of Confidential Information
On expiry of this agreement you must:
- return to us all hard copy documents (whether in original or copied form) comprising or containing Confidential Information that is in your possession, custody or control; and
- except where to do so would contravene any legal obligation destroy all electronic files containing Confidential Information including all cache, back-up or archive copies of electronic files containing Confidential Information.
12.4 Duration of confidentiality obligations
The obligation of confidentiality set out in this agreement operates indefinitely unless we agree to the contrary.
13 Miscellaneous matters
You may not Assign any or all of your rights or obligations under this agreement without our prior written consent. We are able to Assign this agreement to a third party in which case:
- we will provide you with notice of that Assignment as soon as is reasonably practicable; and
- you will be bound to comply with this agreement in favour of the relevant Assignee as if they were the original party to it.
If any term of this agreement needs to operate after this agreement ends then that term survives termination of this agreement (i.e. that term continues to apply even though the agreement has ended).
|Assign||means any assignment, sale, transfer, disposition, declaration of trust over or other assignment of a legal and/or beneficial interest.|
|Authority||means (as appropriate) any: (1)federal, state or local government; (2)department of any federal, state or local government; (3)any court or administrative tribunal; or (4)statutory corporation or regulatory body.|
|Claim||against any person any allegation, action, demand, cause of action, suit, proceeding, judgement, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.|
|Confidential Information||means: (1)intellectual property: any and all Intellectual Property; and (2)financial information: information regarding costs, profits, markets, sales and other financial information; and (3)business information: information regarding business relationships and strategies, development plans, marketing, product concepts, trade secrets and other business information the business of the disclosing party and the disclosing party's clients or third party suppliers; and (4)personal information: any personal information relating to the officers (as defined in s9 of the Corporations Act 2001 (Cth)), partners, employees, agents, contractors or clients of the disclosing party; and (5)information obtained through performance: all information which becomes known to a party as a consequence of it performing the obligations under this agreement including (without limitation) all records, documents, accounts, plans, specifications, price lists, customer lists, correspondence, photos and papers of every description relating to the disclosing party; and (6)technical information: information regarding designs, development processes and tools, hardware specifications, know-how, production, research, software specifications, data bases and software developed or used by a party whether as owner or under licence from any person and other technical information; and (7)disclosed information: any other information disclosed by a disclosing party that: (a)is identified as being confidential; or (b)would be apparent to a reasonable person that such information was disclosed in confidence by the disclosing party.|
|GST||means goods and services tax payable in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all incidental and ancillary legislation and regulations..|
|Intellectual Property||means all intellectual property rights conferred by law including (without limitation): (1)patents, designs, formulas, plans, specifications or other documents; (2)copyright, trademark, trade business, company names, business names, websites, URLs or email addresses; and (3)all other proprietary rights and all other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation (July 1967).|
|Jurisdiction||means the legal jurisdiction whose Laws apply to you and your use of Siteflex.|
|Law||means all legislation, regulations, by-laws, common law and other binding order made by any Authority.|
|Malicious Code||means and software virus, worm, or other harmful computer code, file, script, agent or program.|
|Siteflex IP||means any Intellectual Property provided by us for use with, or associated with, Siteflex.|
|Website||means any website published by you using Siteflex.|