Effective date: 20th May 2021
Welcome to DigitalMaas
Thanks for choosing DigitalMaas! DigitalMaas is a cloud-based software solution that allows you to manage your locations at scale. It integrates with your business’ and provides access to features like Posts, the ability to respond to reviews, menus, photos and more.
The terms and conditions below describe your rights and responsibilities as a DigitalMaas customer. Please let us know if you have any questions.
- About these Terms
- We, us and our: Digital Maas Pty Ltd ABN 41 167 387 724 (“we”, “us” or “our”), provide the Services which are accessible at https://www.digitalmaas.com and may also be available through other addresses and channels (together, the Site).
- Key terms: These terms and conditions (including Annexure 1) (“Terms”): (a) are between us and you, together the “Parties” and each a “Party”; (b) set out the terms and conditions upon which we agree to grant you a right to use the Services; and (c) are binding on you on and from the date on which you accept these Terms in accordance with clause 2.1 (“Effective Date”) until the date on which your Account and these Terms are terminated in accordance with clause 18 (“Term”).
- Accepting these Terms
- Your acceptance: These Terms do not have to be signed. You accept these Terms by clicking ‘I agree’ (or a similar button or checkbox) indicating your acceptance of these Terms.
- Your authorisation: If you are agreeing to these Terms on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means that Entity and you are binding that Entity to these Terms. If you are accepting these Terms on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so.
- The Services
- Key terms: Key terms used in this clause 3, include: (a) “Go-Live Date” means the date, following completion of the Set-up Process, on which the SaaS Services are ready to be accessed by you; (b) “SaaS Services” means our Software as a service as further described on our Site; (c) “Services” means the: (1) Set-up Process; (2) SaaS Services; (3) any support services (as described in clause 7); (4) any additional services added by us throughout the Term; and (5) any Additional Services requested by you throughout the Term and agreed to by us (as described in clause 8); and (d) “Set-up Process” means, prior to the Go-Live Date, the set-up of the SaaS Services’ integrations with Third Party Products.
- Our service promise: In consideration of payment of the Fees, we: (a) will provide the Services in accordance with these Terms, whether ourselves or through our Personnel; and (b) agree to use reasonable commercial efforts to supply the SaaS Services free from defects and viruses. We further agree to, where this is commercially feasible, use reasonable commercial endeavours to remediate any defects or viruses within a reasonable time of becoming aware of them. The remediation in this clause 3.2 will not apply to Third Party Inputs (for example, to issues in relation to our data hosting provider) or Third Party Products (for example, to issues in relation to your Google account). If you become aware of any issues during the Term, please notify us.
- Set-up Process: Where you specify Third Party Products for integration during your Account and/or Plan set up, we will carry out the Set-up Process to assist you with the integration of the SaaS Services with such Third Party Products via existing application programming interfaces and agreements. Please note that we can only integrate with Third Party Products we have an existing arrangement with and that the scope of any integration (i.e. what data can be imported and exported) will be subject to the terms of our agreement with the applicable Third Party Product and your agreement with the applicable Third Party Product.
- Additional set-up assistance: If you require set-up assistance beyond the integration of the SaaS Services with the Third Party Products specified during your Account and/or Plan set up, you must submit an Additional Services request in accordance with clause 8. We are under no obligation to provide additional set-up assistance.
- Availability SLA: If you are signed-up for a paid Plan, the SaaS Services are subject to the availability and service credit terms set out in Annexure 1 to these Terms (the “Service Level Agreement”). The Service Level Agreement will apply from the Go-Live Date until the termination of these Terms. The Parties agree that the service credits in the Service Level Agreement are your sole and exclusive remedy for any failure to meet the availability terms.
- Changes to the Services: You agree that we may amend the Services (including any features) at any time, by providing notice to you. provided those changes do not substantially and adversely affect your use and enjoyment of the Services. By way of example, a change that would substantially or adversely affect your use and enjoyment of the Services: (a) would include a fundamental change to the Services, such as us removing the respond to Google reviews feature; and (b) would not include changing minor features or the look or feel of the web platform, like a change to a menu. In relation to changes to the Services that would substantially and adversely affect your (or an Authorised User’s) use and enjoyment of the Services, we agree to provide you with notice of any such change at least 30 days prior to the change taking place. On receiving such notice, you may choose to terminate this Agreement by providing us notice of termination within 30 days of the date of our notice, in accordance with clause 18.4(b).
- Your Account
- Account creation: After you accept these Terms, the Site will create an Account for you, in order for you and your Authorised Users to access and use the Services.
- Your Account obligations: When an Account is created: (a) you must enter details about yourself, your Third Party Products, the number of Authorised Users you have, basic Personal Information about those Authorised Users (i.e. name and email) and any other information reasonably requested by us; (b) you must ensure that any information you provide to us or we request from you for your Account (including Personal Information), is complete and accurate and you are authorised to provide this information to us; and (c) it is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, including activity by Authorised Users and for ensuring that any activities on your account comply with these Terms.
- Account ownership: You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account, as set out in these Terms. If you wish to change the Account Owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account, in a form acceptable to us.
- Our role: You acknowledge and agree that we are a SaaS Services provider and accordingly we are not responsible for the management or administration of your Account or your Authorised Users. If applicable, you must ensure that if an employee or contractor is an Authorised User and they end their relationship with you, you remove their access to the Account within 5 Business Days.
- Plans + Payment
- Account options: When you create an account you can choose a free account or a paid Account. At any time you can choose to upgrade a free Account to a paid account. Free Accounts have limited Service features and may not permit you to add Authorised Users.
- Plans: When you sign up for a paid account you will be asked to choose a plan from a selection of plans, including Fees, billing cycle, and included features (“Plan”). The Plans are set out on our Site and post-purchase, are set out within your Account. If you choose: (a) a monthly billing cycle, the Fees will be charged and payable monthly in advance, starting from the date you sign up; or (b) an annual billing cycle, the Fees will be charged annually and payable annually in advance, starting on the date you sign up, (each a “Payment Date”).
- Upgrades and downgrades: You can upgrade or downgrade your plan at any time. An upgrade request will be effective immediately and you will be charged the Fees for the upgraded Plan on a pro-rata basis for the remaining period before your next Payment Date. On your next and future Payment Dates, you will be charged the Fees for the upgraded Plan in full. A downgrade will be effective on and from your next Payment Date and on your next and future Payment Dates you will be charged the Fees for the downgraded Plan.
- Your Plan obligations: When you sign-up for a Plan: (a) you agree to pay us the Fees as set out in your Plan, and any other amounts payable to us under these Terms, without set-off or delay, via an automatic and recurring credit card charge set up via our third party payment processor (and authorised by you) or via any other payment method set out on our Site or agreed with you in writing; (b) the Fees exclude GST (unless expressly stated otherwise) and are payable on the Payment Date for your Plan and any additional charges will be billed in arrears at the end of the relevant Plan billing cycle (unless otherwise agreed between the Parties); (c) you are responsible for reviewing the pricing schedule, features and limits associated with your Plan, which are available on our Site; (d) you must ensure your chosen payment method has sufficient funds to pay the Fees on your Payment Date; (e) if any payment has not been made or is not successful in accordance with these Terms, we may (at our absolute discretion) provide you with notice of the overdue amount and 14 days after the date of such notice any amount remains overdue, we may immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so. If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable; and (f) the Fees are non-refundable. Subject to your Statutory Rights and to the maximum extent permitted by law, there will be no refunds or credits for any unused Licence (or part thereof).
- Licence + Acceptable Use
- The Licence: From the Go-Live Date, subject to your and your Authorised Users’ compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the SaaS Services during the Term solely for your internal business purposes as contemplated by these Terms (“Licence”).
- Acceptable Use: You must not and must ensure your Authorised Users do not access or use the SaaS Services except as permitted by the Licence and you must not (and must not permit any other person to) use the Services in any way which is in breach of any applicable Laws, which infringes any person’s rights, including Intellectual Property Rights, or interferes with any person’s privacy, including to: (a) use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; (b) use the Services in any way that damages, interferes with or interrupts the supply of the Services; (c) introduce malicious programs into our hardware and software or Systems, including viruses, ransomware, malware, trojan horses and e-mail bombs; (d) reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details (other than Authorised Users); (e) carry out security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes); (f) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services; (g) if applicable, send any form of spam or harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy; (h) circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users; (i) copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the SaaS Services (or any part of the Services) or otherwise attempt to discover any part of the source code of the SaaS Services; (j) use any unauthorised, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the SaaS Services; (k) publish, post, upload or otherwise transmit data that contains any viruses, trojan horses, worms, time bombs, malware, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with information or property of any person; (m) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services; (m) unless authorised under these Terms, use the Services in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method; (n) make any representations or warranties to any third parties that could be construed as being representations or warranties from us in relation to the Services or any other matter; (o) use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing; or (p) do any other thing in relation to the Services which is specifically prohibited by us, whether by verbal instruction or direction, or in writing.
- Support Services
- Our support offering: During the Term, we will provide you technical IT support services for the SaaS Services via email, telephone and/or live chat, provided that where IT support is required, you make a request through a relevant support request channel and you assist us in investigating and ascertaining the cause of the fault and provide us access to all reasonably necessary information and systems relevant to the fault (including what you have done in relation to the fault).
- Support times: We will provide support services as soon as commercially practicable, having regard to factors including availability of our resources (including our Personnel), the severity of the fault, your availability and time zones.
- Additional Services
- Additional Services request and acceptance process: You may request Additional Services, including bespoke customisation to the scope or functionality of the SaaS Services, by providing written notice to us. We may, at our discretion, provide you with written notice in the form of a scope of services, a proposal or a statement of work (as applicable) covering the Additional Services requested and any further fee required for us to undertake the Additional Services. If you agree to the scope of services, proposal or statement of work (as applicable) for the Additional Services, then this will form part of these Terms and we will provide the Additional Services to you in consideration for payment of the additional fee, which will form part of the Fees.
- Third Parties
- Third-Party Inputs: You agree that the Services may include Third-Party Inputs selected by us that interface, or interoperate, with the Services, including third-party software or services and that the provision of the Services may be contingent on, limited to, or impacted by, Third Party Inputs (i.e. our third-party data hosting provider).
- Your use of Third Party Inputs: You must comply with our instructions and directions, whether written or verbal, in relation to the use of any Third Party Inputs. Where we provide you with any terms and conditions for use of these Third-Party Inputs, you agree that you will comply with these and are liable for any liability that we incur as a result of any non-compliance by you.
- Third-Party Products: You agree that we may facilitate, on your instructions, the interface, or interoperation of, the Services with your Third Party Products, including third-party software, services or equipment and that the provision of the Services may be contingent on, limited to, or impacted by, Third Party Products (i.e. your Google account, Facebook account and/or Apple account).
- Your use of Third Party Products: To the extent that you choose to use any Third Party Products in conjunction with the Services, you are solely responsible for: (a) the purchase of; (b) the requirements (including any consents or permissions); and (c) the licensing obligations (and compliance with those obligations), related to the applicable Third Party Product; and (d) for ensuring the interface of, or interoperation of, the SaaS Services with your Third Party Product and the extraction and receipt of any of Your Data is legally and contractually permitted (including with respect to Privacy Laws). You agree that the benefit of any Third Party Product’s interface, or interoperation with, the Services, is subject to your compliance with this clause 9.4 and that we have no liability to you (including for any loss of access to data or corruption of data) if any Third Party Product withdraws your access to their services or withdraws their services from integration with our Services.
- Intellectual Property Rights + Data
- Key terms: Key terms used in this clause 10, include: (a) “Intellectual Property Rights” means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property; (b) “Improvements” means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party (or any of their respective Personnel) during the Term; (c) “New Materials” means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with these Terms and the Services (including any machine learning algorithms output from the Services and information and data generated by the SaaS Services as a result of your use of the SaaS Services (i.e. data about how often you log in to the SaaS Services and how you use the SaaS Services), whether before or after the date of these Terms; (d) “Our Materials” means all work, models, processes, technologies, strategies, materials, information, documentation and services (including the Intellectual Property and Services) that we may provide to you under these Terms, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws. For the avoidance of doubt Our Materials includes any information and content made available to you as part of the Services, including in any forms or pre-populated fields, any representations of Your Data created by or on behalf of us or our Personnel and any and all resources (including templates) made available to you by us; (e) “Your Data” means the information and data inputted, transmitted or exported by you, your Personnel, Authorised Users or Third Party Products into the Services (i.e. data transmitted from your Google account on your instructions into our SaaS Services via an application programming interface) or stored by the SaaS Services; and (f) “Your Materials” means all work, designs and logos, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Effective Date and/or developed by or on behalf of you or your Personnel independently of these Terms.
- No transfer or assignment: The Parties agree that nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights.
- Our Intellectual Property Rights: You agree that we (or the relevant third party) owns all Intellectual Property Rights in: (a) Our Materials; (b) New Materials or Improvements; (c) Analytics; and (d) any Feedback, (collectively, “Our Intellectual Property Rights”) and Our Intellectual Property Rights will at all times vest, or remain vested, in us (or, if applicable, our third-party service providers). To the extent that ownership of Our Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights. In the use of any of Our Intellectual Property Rights in connection with these Terms, you agree that you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach. You also agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use of any Feedback by us.
- Your Materials: We agree that you own all Intellectual Property Rights in Your Materials. You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under these Terms, and as otherwise contemplated by these Terms. If you or any of your personnel have any Moral Rights in any material provided, used or prepared in connection with these Terms, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.
- Your Data: As between you and us: (a) all Your Data is and remains your property; and (b) you retain any and all rights, title and interest in and to Your Data, including all copies, modifications, extensions and derivative works.
- Your Data Licence: You grant us a limited licence to copy, transmit, disclose, modify, reproduce, upload, communicate, distribute, store and back-up or otherwise access and make available Your Data to: (a) supply the Services to you (including to enable you and your Personnel and Authorised Users to access and use the Services) and to third parties; (b) diagnose problems with the Services; (c) enhance and otherwise modify the Services, including to improve functionality and algorithms; (d) perform Analytics; and (f) as otherwise reasonably required to perform our obligations under these Terms.
- Your Data obligations and warranties: You acknowledge and agree that you must, at all times, (a) ensure the integrity of Your Data and that the collection and use of Your Data is compliant with all Laws; (b) ensure the ongoing secure storage of all Your Data, free from unauthorised access or disclosure (including by regularly backing up Your Data via a means separate to its storage on the SaaS Services); and (c) ensure that you are legally permitted to disclose any of Your Data (including any Personal Information) from any Third Party Product to us and you consent to us retrieving Your Data from any Third Party Product nominated by you for use by us in accordance with these Terms. You represent and warrant that: (a) you have obtained all necessary rights, releases and permissions to provide all of Your Data to us and to grant the rights granted to us in these Terms; and (b) Your Data (and its transfer to and use by us) as authorised by you, under these Terms does not violate any Laws (including those relating to export control and electronic communications), any contractual obligations, or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity.
- Removal of Your Data: We may at any time and with notice to you, remove any part of Your Data from the SaaS Services if we reasonably consider that it does not comply with these Terms.
- Analytics: Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to New Materials, Your Data and your use of the Services for our own business purposes (being any purpose we see fit), in an aggregated and anonymised format, such that it is no longer about an identifiable individual and there is no reasonable likelihood of re-identification of an individual (“Analytics”).
- Confidential Information
- Key Terms: Key Terms used in this clause 11, include: (a) “Confidential Information” includes information which: (1) is disclosed to the Receiving Party in connection with these Terms at any time; (2) is prepared or produced under or in connection with these Terms at any time; (3) relates to the Disclosing Party’s business, assets or affairs; or (4) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information; (b) “Disclosing Party” means the Party disclosing the Confidential Information, and (c) “Receiving Party” means the Party receiving the Confidential Information.
- Confidentiality obligations: Each Receiving Party agrees: (a) not to disclose the Confidential Information of the Disclosing Party to any third party; (b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure, and (c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
- Limitations: The obligations in clause 11.2 do not apply to Confidential Information that: (a) is required to be disclosed in order for the Parties to comply with their obligations under these Terms; (b) is authorised to be disclosed by the Disclosing Party; (c) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or (d) must be disclosed by law or by a regulatory authority, including under subpoena.
- Remedies: Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 11. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 11.
- Our Obligations
- Our general warranties: We represent, warrant and agree: (a) that we are properly constituted and have the right and authority to enter into these Terms; (b) that we will provide the Services in accordance with all applicable Laws; (c) that the Services will operate and be provided in accordance with these Terms; (d) that we will use reasonable efforts to ensure all of our obligations under these Terms will be carried out: (1) by suitably competent and trained personnel; and (2) in an efficient and professional manner; (e) that we have legal authority to grant you the Licence; and (f) the provision of the Services does not and will not infringe any other person’s Intellectual Property Rights.
- Your Obligations
- Your general obligations: You agree: (a) to comply with these Terms, our reasonable requests or requirements, and all applicable Laws; (b) to provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under these Terms or at Law, in a timely manner; (c) to promptly notify us of any breach or suspected breach of these Terms by you (or an Authorised User; (d) you are responsible for all users using the Services, including your Personnel and any Authorised Users; (e) we do not make any warranty or representation in respect of Third Party Inputs or Third Party Products; (f) any representation, warranty or thing made or done by us (unless expressly stipulated in these Terms) is not to be inferred, incorporated or implied into these Terms; (g) the provision of the Services may be contingent on, or impacted by, Third Party Inputs and/or Third Party Products; (h) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users, your Personnel or any Third Party Product; and (i) we do not provide any legal advice and any suggestion, content or feature provided for your use is provided solely for your convenience and you rely on any such suggestion, content or use any such feature at your own risk; and (k) you are solely responsible for reviewing any content before transmitting it using the Services, including in response to any Google review.
- Your general warranties: You represent, warrant and agree that: (a) you have the legal capacity to enter into a legally binding agreement; (b) there are no legal restrictions preventing you from entering into these Terms; (c) you will not do anything which will cause us to violate or infringe any applicable Privacy Laws; (d) all information and documentation that you provide to us in connection with these Terms is true, correct and complete and that we will rely on such information and documentation in order to provide the Services; (e) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless such purposes are expressly stipulated in these Terms; (f) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Services and as otherwise requested by us, from time to time, and in a timely manner; (g) the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent. For the avoidance of doubt, this clause 13.2 does not operate to prevent the disclosure of any of Your Data (which includes the outputs produced or generated through using the Services), just access to the Services themselves; (h) you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights and privacy rights) or in any way that damages, interferes with or interrupts the supply of the Services; (i) the Services and any associated programs and files are used at your own risk; (j) any information, advice, material, work and services (including the Services and any reports produced as part of these Services) provided by us under these Terms does not constitute legal, financial, due diligence or risk management advice and is relied on at your own risk; (k) you will inform us if you have reasonable concerns relating to our provision of the Services under these Terms, with the aim that the Parties will use all reasonable efforts to resolve these concerns; and (l) you have all hardware, software and services which are necessary to access and use the Services (other than those required to be provided by us under these Terms).
- Your privacy obligations: You must: (a) ensure that you, your Personnel and your Authorised Users comply with all Privacy Laws applicable to all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms; (b) only disclose Personal Information in your possession or control to us (including of Authorised Users) and direct us to perform any Services in relation to such Personal Information, if: (1) it is reasonably necessary for one or more of your activities or functions; (2) you are authorised by Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by these Terms; and (c) you have informed the individual to whom the Personal Information relates, that you will disclose the Personal Information and to the extent possible, you have made the individual aware of our collection of their Personal Information. If requested by us, you agree to promptly provide us with sufficient evidence for us to confirm your compliance with this clause 13.3.
- Australian Consumer Law
- Statutory Rights: Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights).
- Limitations: If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
- Exclusions: Subject to Your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or any other basis.
- Limitations on Liability
- Limitations on liability: Despite anything to the contrary and to the maximum extent permitted by law: (a) we will not be liable for any Consequential Loss; (b) a Party’s liability for any liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure to mitigate that Liability; and (c) our aggregate liability for any liability arising from or in connection with these Terms will be limited to us (1) repaying you the amount of the Fees paid by you to us in the immediately preceding 12 months for the supply of the relevant Services to which the Liability relates; or (2) if no Fees have been paid, to $100.
- Exclusions to Liability
- Exclusions to liability: Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, to the extent caused or contributed to by, arising from or connected with: (a) loss of, or damage to, any property or any injury to or loss to any person; (b) the Computing Environment; (c) any reliance on the Services by you, including for the purposes of complying with any obligations on you (including under any Laws); (d) reliance on any suggestion, content or feature provided as part of the Services when making a business decision, or transmitting or publishing a communication; (e) any delay or failure by you or any of your Personnel to provide any permissions, information or documentation necessary to allow us to provide the Services; (f) your or your Personnel’s acts or omissions; (g) any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms; (h) any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us; (i) any Third Party Inputs or Third Party Products; (j) the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or (k) any event outside of our reasonable control (including any Force Majeure Event).
- Your indemnity: Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with: (a) any Third Party Product; and (b) any third party claim, fine or compensatory damages imposed or awarded against us as a result of your (or your Personnel’s) use of the Services in a manner that: (1) defames any person; (2) breaches any third party rights; (3) interferes with any person’s privacy; or (4) breaches the Australian Consumer Law.
- Suspension: We may immediately suspend the Services (or any Authorised User’s access to the Services) with notice to you if: (a) we reasonably consider that your continued use of the Services (or that of any Authorised User) may result in harm to the Services, other customers or third parties; (b) we reasonably consider that you (or any of your Personnel) are in breach of any Laws; or (c) we are required to do so by Law.
- Termination without cause: Either Party may terminate these Terms at any time by giving not less than 30 days’ notice in writing and these Terms will terminate immediately if you have a free account or if you have a paid Plan, on the next Payment Date which is at least 30 days after the notice date.
- Termination by us with cause: These Terms will terminate immediately upon written notice by us if: (a) you (or any of your Personnel) breach any material term of these Terms; (b) you (or any of your Personnel) breach any provision of these Terms and that breach has not been remedied within 10 Business Days of being notified by us; (c) you (or any of your Personnel) breach any agreement with a Third Party Product; (d) for any other reason outside our control which has the effect of compromising our ability to provide the Services; or (e) you are unable to pay your debts as they fall due.
- Termination by your with cause: These Terms will terminate immediately upon written notice by you, if: (a) we are in breach of a material term of these Terms, and that breach has not been remedied within 10 Business Days of being notified by you; or (b) we issue you with a notice under clause 3.6 that the Services are being varied and within 30 days of the date of the notice you choose to terminate these Terms in accordance with clause 3.6; (c) we issue you with a notice under clause 19.3 that these Terms are being varied and within 30 days of the date of the notice you choose to terminate these Terms in accordance with clause 19.3; or (d) we are unable to pay our debts as they fall due.
- Consequences of termination: Upon expiry or termination of these Terms: (a) we will cease providing the Services; (b) we will be entitled (in our sole discretion) to retain or permanently delete all Your Data after expiry or termination of these Terms; (c) you agree that subject to your Statutory Rights and to the maximum extent permitted by law, any payments made are not refundable; (d) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms; (e) you will immediately return (at our request) or delete or destroy any of our property (including any of our Confidential Information and Our Intellectual Property); and (f) the rights or liabilities that a Party has accrued under these Terms will not be affected.
- Communication: We may contact you with functional notifications via the SaaS Services using in-Account notifications or via-off platform communication channels, such as email. You acknowledge and agree that we may also send marketing and promotional material which may be of interest to you, using your contact details. You may opt-out of receiving direct marketing messages at any time. Where you opt out we will continue to send you functional communications relevant to your use of the Services.
- Survival: The following clauses will survive expiry of termination of these Terms: (a) 10 (Intellectual Property + Data); (b) 11 (Confidential Information); (c) 13 (Your Obligations); (d) 14 (Australian Consumer Law); (e) 15 (Limitation on Liability); (f) 16 (Exclusions to Liability); (g) 17 (Indemnity); 18.5 (Consequences of termination); and (h) 19 (General).
- Amendment: We may update these Terms or modify the Fees at any time with not less than 30 days notice to you via an in-Account notification or via email. If you can demonstrate that any such amendment will have a material adverse effect on you and you do not agree with it you may terminate these Terms within 30 days of the date of the notice in accordance with clause 18.4(c).
- Assignment: You consent to us, at any time, assigning or novating these Terms (or part thereof, including any of our rights or obligations under these Terms) by providing prior notice to you of such assignment or novation. You must not assign or deal with the whole or any of your rights or obligations under these Terms without our prior written consent (such consent is not to be unreasonably withheld).
- Dispute: If any dispute or claim (including any question regarding its existence, validity or termination) arises out of or in connection with these Terms (“Dispute”), either Party may issue a notice to the other Party outlining the dispute or claim (“Notice of Dispute”). Within 14 days of a Notice of Dispute, senior representatives of the Parties must meet in good faith to resolve the Dispute by negotiation or such other means as they mutually agree. If the Parties cannot agree on how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause 19.5 will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
- Entire Agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
- Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay or failure is due to any circumstance beyond our reasonable control (including but not limited to terrorism, war, flood, fire, earthquake, storm, epidemic, pandemic, COVID-19 or Government sanctioned restrictions and orders, whether known or unknown at the time of entering into these Terms) (“Force Majeure Event”).
- Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and your obligations under it.
- Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
- Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of transmission by email on a Business Day, or on the next Business Day in the case of transmission by email not on a Business Day.
- Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
- Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
- In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and:
“Account” means an account accessible to you and/or your Authorised Users to use the Services, including, the SaaS Services;
“Additional Services” means any additional Services which we agree to provide to you, in accordance with clause 8;
“Analytics” has the meaning given in clause 10.9;
“Australian Consumer Law” means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;
“Authorised User” means a user permitted to access and use the Services under your Account;
“Business Day” means a day on which banks are open for general bank business in New South Wales, excluding Saturdays, Sundays and public holidays;
“Computing Environment” means your computing environment including all hardware, software, information technology and telecommunications services and Systems;
“Consequential Loss” includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
“Feedback” means any idea, suggestion, recommendation or request by you (or any of your Personnel or Authorised Users, Third Party Products or Animal Owners), whether made verbally, in writing, directly or indirectly, in connection with the Services;
“Fees” means the fees due and payable by you for the Services, as set out in your relevant Plan;
“Force Majeure Event” has the meaning given in clause 19.7;
“GST” has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Intellectual Property” means any copyright, registered and unregistered trademarks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;
“Intellectual Property Breach” means any breach by you (or any of your Personnel) of any of Our Intellectual Property Rights (or any breaches of third-party rights including any Intellectual Property Rights of third parties), including, but not limited, to you (or your Personnel):
- copying, altering, enhancing, adapting or modifying any of Our Intellectual Property;
- creating derivative works from Our Intellectual Property;
- providing or disclosing Our Intellectual Property to, or allowing Our Intellectual Property to be used by, any third party;
- assigning or transferring any of Our Intellectual Property Rights or granting sublicenses of any of Our Intellectual Property Rights, except as expressly permitted in these Terms;
- reverse engineering or decompiling any of Our Intellectual Property Rights, except where permitted by Law; or
using or exploiting Our Intellectual Property for purposes other than as expressly stated in these Terms (including, without limitation, using Our Intellectual Property for commercial purposes or on-selling Our Intellectual Property to third parties);
“Laws” means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Services, and includes Privacy Laws;
“Liability” means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;
“Moral Rights” has the meaning given in the Copyright Act 1968 (Cth);
“Personal Information” is defined in the Privacy Act;
“Personnel” means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents and in respect of you, your Authorised Users;
“Privacy Act” means the Privacy Act 1988 (Cth);
“Privacy Laws” means the Privacy Act and Australian Privacy Principles as set out in the Privacy Act;
“Software” means our cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software as described on our Site;
“Statutory Rights” has the meaning given in clause 14.1;
“System” means all hardware, software, networks and other IT systems used by a Party from time to time, including a network;
“Third Party Inputs” means Third Party Products and third parties or any goods and services provided by third parties selected by us, including customers, end-users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by; and
“Third Party Product” means any third-party service provider with which you have a direct relationship and which you instruct us to integrate, interface or interoperate with the Services.
ANNEXURE 1 – SERVICE LEVEL AGREEMENT
1.1 This Service Level Agreement applies to the Services as set out in the Terms.
2.1 Unless otherwise set out in the Terms in this Service Level Agreement, the following words mean:
“Availability” means Total Minutes – Downtime /Total Minutes. x 100
“Availability Target” is 99.98%.
“Downtime” means the number of whole minutes within the relevant calendar month that you are unable to access the Services. Downtime does not include Scheduled Downtime, Emergency Maintenance or any unavailability of the Services caused by an Excluded Event.
“Emergency Maintenance” means any maintenance deemed necessary to protect and maintain the security or integrity of the Services.
“Failure” means we have failed to achieve the Availability Target for the Services in the relevant calendar month.
“Scheduled Downtime” means planned maintenance or upgrades to the Services with reasonable advance notice to you via the Services.
“Service Credit” means any fee rebate you claim against a future invoice as a result of a Failure and which is approved by us, as set out in this Service Level Agreement.
“Total Minutes” means the total number of minutes in the relevant calendar month.
3. Service Levels for the Services
3.1 During the Subscription Term we will use commercially reasonable efforts to provide Availability of the SaaS Services in accordance with the Availability Target.
3.2 During the Subscription Term the Service Credits are to be calculated as follows:
|Less than 99.98% but more than or equal to 99%||2.5% rebate on the Fees for your next invoice for the Services.|
|Less than 99% but more than or equal to 97%||5% rebate on the Fees for your next invoice for the Services.|
|Less than 97% but more than or equal to 95%||10% rebate on the Fees for your next invoice for the Services.|
|Less than 95% but more than or equal to 90%||15% rebate on the Fees for your next invoice for the Services.|
|Less than 90%||20% rebate on the Fees for your next invoice for the Services.|
4 Failures and Service Credits
4.1 If in any calendar month you encounter a Failure you may claim the applicable Service Credit in accordance with the terms in this Service Level Agreement. To claim a Service Credit, you must send us an email to firstname.lastname@example.org within 30 days of the end of the calendar month in which the Failure occurred (“Service Credit Request”). A Service Credit Request must include details of all the dates and times in which you experienced the Downtime in the relevant calendar month and any other information reasonably requested by us.
4.2 If we assess your Service Credit Request and confirm that we have not met the Availability Target, we will apply the relevant Service Credit based on the Availability achieved to the Fees in your next invoice for the Services.
4.3 Service Credits are non-transferrable, non-refundable and are not redeemable for cash.
4.4 Service Credits can only be used against the Fees in your next invoice and are calculated based on the Fees payable in your next invoice (not any past invoice).
4.5 Despite anything to the contrary, you will not be entitled to any Service Credit:
(a) that exceeds 100% of the Fees I your next invoice;
(b) if any undisputed invoice is overdue; or
(c) if you are in breach of the Terms.
4.6 Despite anything to the contrary, you acknowledge and agree that clause 3.5 in the Terms applies in relation to any Service Credits issued under this Service Level Agreement.
5. Excluded Events
5.1. “Excluded Events” are as follows:
(a) failure caused by any software, hardware or other components outside our network or not provided by us;
(b) any trial or beta software (being any software released to the market for testing and feedback);
(c) any trial period for the Services;
(d) a Force Majeure Event;
(e) any resource reduction directed and approved in writing by you despite our written notice that such reduction may result in that failure or less than optimum performance;
(f) any modification, revision, variation, translation or alteration of the Services that is not authorised by us;
(g) failure of access circuits to our network or upstream providers, unless such failure is caused solely by us;
(h) your acts or omissions (or the acts or omissions of others engaged or authorised by you), including, without limitation, any negligence, wilful misconduct, or use of the SaaS Services in breach of the Terms;
(i) outages elsewhere on the Internet that hinder or prevent access to the Services or your account;
(j) failure caused by Your Data;
(k) failure caused by Third Party Products; and/or
(l) IP address blacklisting by third parties.
For any questions and notices, please contact us at:
Digital Maas Pty Ltd ABN 41 167 387 724
Address: The Quantum Terminal, 1 Eddy Avenue, Haymarket, NSW 2000 Australia