Terms & Conditions

Definitions

“Agreement” means this agreement between the Owner and the Licensee.
“Commencement Date” means the date of this Agreement. This will be the date on which the Owner provides the Licensee with a user name and password.
“Confidential Information” means all information contained in this Agreement exchanged between the parties pursuant to this Agreement but does not include information that:-

is already known to the receiving party at the time of disclosure by the other party; or
is in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.

“Expiration Date” means the date on which this document terminates as specified upon registration on the Site.
“Intellectual Property” means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary, or artistic fields.
“Licensee” means the user as specified upon registration on the Site.
“Licensee’s Business or Personal Use” means use by the Licensee in the course of carrying on its business or for its personal use.
“Owner” means the owner as specified upon registration on the Site.
“Payment Date” means the date, if any, that is specified by the Owner.
“Price” means the price, if any, that is specified by the Owner on the Commencement Date.
“Site” means the Owner’s website.
“Software” means any software which is required by, relevant to, or used in conjunction with the Site including but not limited to all object and source codes, copyright, inventions, discoveries, novel designs whether or not registrable as designs or patents, including any invention of or development or improvements to equipment, technology, methods or techniques relating to the software.
“Term” means the period from the Commencement Date until the Expiration Date unless the Agreement is terminated earlier than or extended beyond the Expiration Date in accordance with the terms of this Agreement.

Grant of Licence

The Owner hereby grants to the Licensee a non-exclusive licence to use the Software and the Site, as the case may be, for the Licensee’s Business or Personal Use only, strictly in accordance with this Agreement for the Term.
The Licensee acknowledges and agrees with the Owner that it will not, as a result of entering into this Agreement, acquire any rights (including without limitation Intellectual Property) in the Software or the Site other than the non-exclusive rights granted in accordance with the terms of this Agreement.
The Licensee acknowledges and agrees with the Owner that in acquiring the rights under this Agreement, it is doing so as an independent contractor and that neither this Agreement nor the provision of the Software or the Site will create any relationship of employer and employee or partnership between the Owner and the Licensee.
The Owner may undertake or enter into agreements similar to this Agreement for the Software or the Site, or supplies of the Software and/or the Site to other parties, and the Licensee will not be entitled to make any objection.
The Licensee will not commit or permit any act which may interfere with the performance of work by any other user to which the Owner grants rights to use the Software and/or the Site.

Term

This Agreement will commence on the Commencement Date and will expire on the Expiration Date, unless determined earlier in accordance with the provisions of clause 15.

PAYMENT

In consideration of the grant of the rights in clause 2.1, the Licensee shall pay the Owner the Price on the Payment Date.
Without limitation to any of the Owner's other rights, if the Licensee breaches any of it's payment obligations to the Owner under this Agreement, the Owner may, at it's discretion:-

charge and debit to the Licensee interest and the legal and administrative costs incurred by the Owner arising from such breach; or
retake possession of the Software and Site, which under clause 5 of this Agreement, remains the Owner's property and by it's servants and/or agents, enter upon the business premises of the Licensee for such purpose.

RIGHTS AND OWNERSHIP

The Licensee acknowledges and agrees that the Owner owns the Intellectual Property in the Software and Site and no right, title or interest in any of the Intellectual Property in the Software and Site is transferred or granted to the Licensee, other than the rights granted expressly by this Agreement.
The Licensee agrees that:-

any Intellectual Property created, formulated or discovered by the Licensee through the use or access to the Software and Site will be the sole and exclusive property of the Owner;
the Licensee will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in the Intellectual Property created under Clause 5.2(a) to the Owner.

LINKING

Subject to Clause 6.5, the Licensee may link to third party sites through use of the Software and the Site.
The Licensee acknowledges and agrees that the third party sites are not under the control of the Owner.
The Owner is not liable or responsible for:

the contents of any third party site, any links contained in third party sites or any changes or updates to third party sites;
web casting or any other form of transmission received from any third party site.
The Owner, in allowing links to third party sites, does so only upon the request of the Licensee and as a convenience, and the inclusion of any link does not imply an endorsement by the Owner of the third party site.

The Licensee must not link the Site from any other website not owned and operated by the Owner without the prior written consent of the Owner.

UPGRADEs

The Licensee acknowledges and agrees that the terms and conditions of this Agreement apply to updates, supplements, add on components, or internet based services components of the Software and the Site together with any other terms along with the update, supplement, add on component or internet based services components which the Owner provides.
The Owner reserves the right to discontinue any internet based services provided to the Licensee or made available to the Licensee through the use of the Software and the Site.

use

The Owner will provide the Licensee with access through the user password issued to Licensee, to the Software and the Site for the purpose of the Licensee’s Business or Personal Use. The Licensee agrees not to make any access details available to any unauthorised third party.
The Licensee will be solely responsible for the use, access and maintenance of users, including granting or cancelling access, based on the level of access provided to the Licensee by the Owner pursuant to clause 8.1.
The Licensee agrees not to transmit on or through the Software and the Site any material that is, inappropriate, unlawful, obscene, threatening, abusive, defamatory, encourages behaviour that may give rise to criminal activity, is considered adult content, is a breach of any Intellectual Property or may give rise to civil liability.
The Owner reserves the full and exclusive right to remove any offending or inappropriate material from the Site without notice or consent of the Licensee or any other party.

LIMITATIONS

The Licensee acknowledges and agrees that it may not:-

reverse engineer, decompile or disassemble the Software, except and only to the extent that such activity is expressly required by applicable law;
copy, republish, frame, download, transmit, rent, lease, loan, sell, distribute, licence or sublicense the Software or any content within the Site; or
modify, alter, adapt, disassemble, reverse engineer, decompile or amend the Software or any content within the Site in any way.

The Licensee will not without prior written consent of the Owner, which shall be given or withheld at the Owner's absolute discretion:-

affix or otherwise display the Licensee's name or logo on the content of the Site in a way that suggests a direct or indirect association with the Owner and/or any content provider to the Software or the Site;
use another user's account, access, password, service or system.

WARRANTIES

The Licensee warrants to the Owner that at the time of entering into this Agreement, the Licensee was not relying on any representation made by the Owner.
Except as expressly provided to the contrary in this Agreement, and to the extent permitted by law, the Owner makes no representations or warranties of any kind, express or implied as to the operation of, the Licensee's access to or the results of the Licensee's access to the Software or the Site (including any related or linked websites) or the correctness, accuracy, timeliness, or completeness or reliability of the information, content, materials or products included on the Site.
The Owner does not warrant to the Licensee that the Software or the Site, will provide any function for which it is not specifically designed.
The Owner does not warrant to the Licensee that the Software or the Site will provide any minimal level of performance, result in increased business activity or profitability.
The Owner does not warrant to the Licensee that the Software or the Site will be virus free, or free of performance anomalies or be operational without interruption.

LIMITATION OF LIABILITY

The Owner will not be liable for any loss or damage (including indirect, special or consequential loss or damage) arising from the use of, or reliance on, the Software or the Site, whether or not caused by any negligent act or omission including but not limited to:-

loss of use, data or profits on any theory of liability arising out of or in connection with the use of or the inability to use the Software or the Site;
the statements or actions of any employee or agent of the Owner;
any unauthorised access to or alteration of the Licensee's transmissions or data;
any information that is sent or received or not sent or received;
any failure to store or loss of data or files or other content;
the Licensee's fraudulent, negligent or otherwise unlawful behaviour;
information, data or other material provided to the Owner by the Licensee or on the Licensee's behalf;
any delay or interruption of the Software or the Site;
any loss incurred as a result of a third party obtaining the Licensee's access details, either with or without the Licensee's knowledge;
any loss or damages in relation to the supply of services on or in relation to this Site and any advertisement placed on the Site or information made available on the Site.

Any rights or remedies in respect of which liability cannot lawfully be modified or excluded by this Agreement then to the extent permitted by law, the Owner's liability is limited, at the Owner's option, to:-

repairing or replacing the Software or Site; or
paying the Licensee the cost of such repair or replacement.

CONFIDENTIALITY

Other than where:

the Confidential Information is in the public domain, except as a consequence of a breach of this clause;
expressly agreed by all parties in writing; or
required by law;

the Licensee must at all times:

treat and keep the Confidential Information confidential;
not use, or allow the use, of the Confidential Information by any third party;
not disclose or allow the disclosure, of the Confidential Information or the fact of the disclosure of the Confidential Information to any third party.

The Licensee must ensure that its officers, employees, advisers and agents also observe the covenants in clause 12.1 of this clause. The Licensee must keep a list of all persons to whom the Confidential Information is disclosed and must produce such list to the Owner on request.
If requested by the Owner, the Licensee must immediately return all Confidential Information, and any copies of the Confidential Information, to the Owner.
Without limiting the generality of clause 12.1, the Licensee must not:

manufacture any product or use any process based on the Confidential Information; and
use or disclose to a third party any aspect of the Confidential Information for any purpose whatsoever;

without the prior written consent of all the Owner.

BREACH OF CONFIDENTIALITY

In the event of a breach or threatened breach of the terms of this Agreement by the Licensee, the Owner will, as between the parties, be entitled to an injunction restraining the Licensee from committing any breach of this Agreement without showing or proving actual damage sustained or likely to be sustained by the Owner.
The Licensee:

acknowledges that the Owner will suffer loss and damage if the Licensee breaches any of the covenants in this Agreement; and
must compensate the Owner for any such loss or damage, including any loss of reputation or embarrassment to the Owner.

The Owner will not have any liability whatsoever to the Licensee or any other person, directly or indirectly, arising out of the provision of the Confidential Information.

ASSIGNMENT

The Licensee shall not without the prior written consent of the Owner assign or attempt to assign its interest in this Agreement.
The Owner may assign its rights and obligations under this Agreement. To avoid doubt the Owner is not required to obtain any consents or approval to or give notice to the Licensee of its interest in this Agreement from the Licensee.

TERMINATION

Notwithstanding anything contained in this Agreement, the Owner may, by written notice to the Licensee, immediately terminate this Agreement if:-

if the Owner serves a notice on the Licensee to rectify a breach of any term of this Agreement and the Licensee does not rectify the breach within fourteen (14) days of the notice;
in the event that, in the opinion of the Owner, there is a breach or threatened breach of clause 12 or clause 13;
in the event that the Licensee goes into liquidation either compulsorily or voluntarily or if a receiver, administrator, liquidator or trustee in bankruptcy is appointed for the whole or any part of the Licensee's assets or if the Licensee makes an assignment for the benefit or the composition with it's creditors generally, or threatens to do any of these things;
in the event that the Licensee engages in any conduct prejudicial to the Software, the Owner or the Site;
in the event that the Owner receives three (3) or more complaints against the Licensee or the Licensee’s Business or Personal Use;
in the event that the Licensee no longer holds any licence or authority that it may require to carry on it's obligations under this Agreement; or
if payment of the Price, and any interest, is not made within 14 days after the applicable Payment Date.

The rights and remedies of the Owner contained in this clause 15 are in addition to any other rights or remedies by law or under this Agreement.

CONSEQUENCES OF TERMINATION

In the event of the termination of this Agreement:-

the Licensee must pay all amounts due and owing to the Owner as at the date of termination within fourteen (14) days of the date of termination; and
the Licensee must return to the Owner, the Software, the Site, any Confidential Information or Intellectual Property associated with the Software or the Site.

INDEMNITY

The Licensee will at all times indemnify and keep indemnified the Owner, it's officers, employees, agents, content providers and sub-contractors against all losses, damages, expenses and costs (on a full indemnity and solicitor and own client basis) arising from any claim, demand, suit, action or proceeding by any person against any of those indemnified where such loss or liability arose out of:-

the use of the Software or the Site by the Licensee;
any other breach of this Agreement by the Licensee;
use by the Licensee of the Confidential Information and Intellectual Property for the Software and the Site;
any loss incurred as a result of a third party obtaining the Licensee's username or password, either with or without the Licensee's knowledge.

EMPLOYEES AND CONSULTANTS

The Licensee agrees to assume responsibility for the actions of its consultants, employees, agents, officers and advisers who have access to the Software and the Site.
The Licensee must ensure that its consultants, employees, agents, officers and advisers will be similarly bound by the obligations created under this Agreement.

General

Where possible, the obligations of the parties under this Agreement will indefinitely survive the finalisation or discontinuance of this Agreement.

This Agreement shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
This Agreement is governed by the laws of Queensland and the Commonwealth of Australia which are in force in Queensland.
The parties submit to the jurisdiction of the Courts of Queensland, relevant Federal Courts and Courts competent to hear appeals from them.
The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under this Agreement.
This Agreement contains the entire understanding and agreement between the parties as to the subject matter of this Agreement.
All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect.
No oral explanation or information provided by a party to another affects the meaning or interpretation of this Agreement or constitutes any collateral agreement, warranty or understanding.
No waiver by a party of a provision of this Agreement is binding unless made in writing.
If a provision of this Agreement is void or unenforceable it must be severed from this Agreement and the provisions that are not void or unenforceable are unaffected by the severance.
The rights and remedies of a party to this Agreement are in addition to the rights or remedies conferred on the party at law or in equity.
The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.
Time is in all cases and in every respect of the essence of this Agreement.

NOTICES
Any notice or demand in writing required to be given by the Owner to the Licensee shall be sufficiently served if:-
Served personally or by pre-paid mail to the Licensee’s address;
Sent by facsimile machine to the Licensee’s facsimile machine;
Sent in electronic form by email to the Licensee’s email address; or
Published by notice on the Site.