1.1 These Terms and Conditions, and any other terms and polices referred to in these Terms and Conditions, (Terms) form the Agreement between V&T Technologies Pty. Ltd. ABN 81 606 826 279 (referred to as "V&T Technologies", "we" or "us") and the user (referred to as "Customer" or "you"), collectively referred to as the Parties or each a Party.
1.2 V&T Technologies owns the cloud-based Software which is accessible at https://geotargetly.com/ (Site).
1.3 The Customer wishes to use the Services.
1.4 If the processing of any of your users’ or employees’ data (“Company Personal Data”) is governed by the General Data Protection Regulation 2016/679 (“GDPR”), the additional terms in our Data Processing Schedule (“DPS”) apply. It is your responsibility to determine whether the GDPR applies to you. You must request the DPS from us if the GDPR applies to you, and we will supply you with the DPS.
1.5 You acknowledge and agree that in collecting, holding and processing Company Personal Data through the Services, we act as the data processor for the purposes of the GDPR. If the GDPR applies, the additional terms in the DPS also form part of these Terms and you must request and execute the DPS with us. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process Company Personal Data in accordance with these Terms and, if applicable, the DPS.
1.6 This Agreement sets out the terms upon which V&T Technologies has agreed to grant the Customer a right to use the Services. This Agreement is binding on any use of the Services and takes effect on the earliest of you:
when, upon clicking a box to create an account ("Account"), being presented with a link to this Agreement;
executing or electronically accepting an Order Form referencing this Agreement; or
using of the Services,
1.7 By accessing and/or using the Services you:
warrant to us that you have the legal capacity to enter into a legally binding agreement with us;
agree to use the Services in accordance with this Agreement and
warrant that you have all hardware, software and services, which are necessary to access the Services.
Please read this Agreement carefully and immediately cease using the Services if you do not agree to it.
1.8 You must not create an Account unless you are at least 18 years of age. When you create an Account and during the term of this Agreement, you must provide true, complete, and up to date contact information and keep this up to date.
1.9 By using our Services and subscribing on our Site, you acknowledge that you have read, understood, and accepted this Agreement and you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services.
2.1 On or from the Effective Date and during the Term, V&T Technologies agrees to provide the Services in accordance with the terms of this Agreement.
2.2 The Customer agrees V&T Technologies owns or holds the applicable licences to all Intellectual Property Rights including but not limited to copyright in the Software and SaaS Services and any documentation provided with the Services by V&T Technologies to the Customer including any Customer configuration documentation.
2.3 The Parties agree that V&T Technologies:
will supply the Services on a non-exclusive basis;
may use third party products or services as a part of the Services;
does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and
is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the Customer Environment or the facilities or services of any third party.
2.4 V&T Technologies reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.
2.5 V&T Technologies reserves the right at any time and from time to time to temporarily modify or disable the Service (or any part thereof) without notice, including for maintenance and Service modification or improvement purposes.
3.1 In consideration for payment of the Fees, V&T Technologies grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), personal, revocable, licence to access and use the SaaS Services in accordance with V&T Technologies’ intended purpose for the SaaS Services (SaaS Licence).
3.2 The Customer agrees that the SaaS Licence:
commences from the Effective Date or the day the Customer is granted access to the SaaS Services by V&T Technologies, whichever occurs first;
permits the Customer to use the SaaS Services in accordance with the SaaS Services’ normal operating procedures; and
permits the Customer to access and use the SaaS Services in accordance with the number and type of Authorised Users, as applicable.
3.3 If the number of Authorised Users is exceeded, V&T Technologies may charge a Fee for each Additional Authorised User as specified on the Site.
4.1 The Customer must not access or use the SaaS Services except as permitted by the SaaS Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with V&T Technologies’ Intellectual Property Rights in the SaaS Services or Software. Without limiting the foregoing provisions, the Customer agrees and acknowledges that it must not and will not permit any person to:
resell, assign, transfer, distribute or provide others with access to the SaaS Services;
use any of the Services in any advertising, publicity or any other commercial manner without our prior written consent;
"frame", "mirror" or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network;
copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services or Software (except as expressly permitted by the Copyright Act 1968 (Cth)); or
alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the SaaS Services or Software.
4.2 The Customer must not use the SaaS Services in any way which is in breach of any statute, regulation, law or legal right of any person within Australia or the jurisdiction in which the Customer or its Personnel are located.
5.1 V&T Technologies may provide Professional Services to the Customer in accordance with this Agreement in consideration for a Professional Services Fee.
5.2 Where V&T Technologies agrees to provide Professional Services, V&T Technologies will provide the Professional Services in accordance with this clause 5.
5.3 The procedure to follow for Professional Services will be as follows:
the Customer will notify V&T Technologies of any Professional Services it requires;
following notification, V&T Technologies will provide the Customer with written notice in the form of a statement of work covering:
the changes required to the SaaS Services;
the Professional Services required by such changes; and
the Professional Services Fee required to undertake such Professional Services;
If the Customer agrees to:
the changes to the Services;
the Professional Services; and
the Professional Services Fees,
this Agreement will be considered varied to include such changes as set out in the notice provided by V&T Technologies pursuant to this clause.
6.1 The Customer grants to V&T Technologies and its sub-processors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, copy, process, transmit, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of the Data in connection with the Services and otherwise access, use or make reference to any Intellectual Property Rights in the Data:
to supply the Services including to enable the Customer, its Personnel and any Authorised Users to access and use the Services;
for diagnostic purposes;
to test, enhance and otherwise modify the Services whether requested by the Customer or not;
to develop other Services; and
as reasonably required for the performance of V&T Technologies’ obligations under this Agreement.
6.2 The Customer represents and warrants that any and all Data supplied by the Customer or otherwise accessed by V&T Technologies through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the Data as applicable to permit us to use the Data and any technical information about Customer’s use of the Services to customise the user experience of the Services to Customer, to facilitate Customer’s use of the Services and to communicate with Customer.
6.3 The Customer acknowledges and agrees that:
any collation, conversion and analysis of Data performed as part of the Services whether by the Services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of Data. V&T Technologies is not liable for any such errors, omissions, delays or losses. The Customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;
V&T Technologies may relocate the Data to another jurisdiction.;
V&T Technologies is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by the Customer, its Personnel, its Related Bodies Corporate or any Authorised Users; and
V&T Technologies is not responsible for the integrity or existence of any Data on the Customer’s Environment, network or any device controlled by the Customer or its Personnel.
6.4 The Customer must ensure that all its Data on the Service is backed-up.
6.5 The Customer agrees to indemnify and hold V&T Technologies harmless for the corruption or loss of any Data controlled or stored by the Customer or any Related Bodies Corporate, to extent the corruption or loss is not caused by the negligent act or omission of V&T Technologies or its Personnel.
7.1 We communicate with users on a regular basis to provide requested services and in regards to issues relating to their account we reply via email or phone, in accordance with the user’s wishes.
7.2 We cannot guarantee that support is available at all times and that the support advice provided is correct.
7.3 We may provide access to ‘community’ support such as forums, online groups or chat rooms where our Customers or third parties provide help to each other and to others. We cannot take any responsibility for the accuracy of support provided by others.
7.4 From time to time, there may be either scheduled or unscheduled Service down-time. We endeavour make the down-time as short as we can. We will not have any Liabilities for the consequences of any down-time.
7.5 Where support is provided it will be subject to:
the Customer providing V&T Technologies with notice for applicable support Services in accordance with any applicable system and processes as set out in on the Site, as applicable; and
where required, the Customer assisting with investigating and ascertaining the cause of the fault and providing V&T Technologies all necessary information relevant to the fault (including but not limited to what the Customer or their Personnel has done in relation to the fault).
8.1 The Customer will provide all required materials as required by V&T Technologies from time to time for V&T Technologies to perform the Services.
8.2 The Customer must, at the Customer’s own expense:
provide all reasonable assistance and cooperation to V&T Technologies in order to enable V&T Technologies to supply the Services in an efficient and timely manner including but not limited to obtaining from Authorised Users any consents necessary to allow the Customer and its Personnel to engage in the activities described in this Agreement and to allow V&T Technologies to provide the Services;
use reasonable endeavours to ensure the integrity of the Data;
permit V&T Technologies and its Personnel to have reasonable access to the Customer Environment for the purposes of supplying the Services;
ensure that only Customer Personnel and Authorised Users will access and use the SaaS Services and such use and access will be in accordance with the terms and conditions of the SaaS Licence; and
make any changes to its Customer Environment that may be required to support the delivery and operation of any Services.
8.3 The Customer is responsible for its use of the Services and must ensure that no person uses the Services:
to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;
to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
in any way that damages, interferes with or interrupts the supply of the Services.
8.4 The Customer acknowledges and agrees that:
it is responsible for all users using the Services including its Personnel and any Authorised Users;
its use of the Services will be at its own risk;
it is responsible for maintaining the security of its Account and password. We cannot and will not be liable for any loss or damage from your failure to comply with this security obligation;
downgrading your Plan may cause the loss of content, features, or capacity of your Account. We do not accept any liability for such loss;
we may alter or update your logins and passwords and the logins and passwords of any Authorised Users at any time throughout the Term;
you are responsible for all content posted and activity that occurs under your Account. This includes content posted by others who have logins or accounts associated with your Account;
If you operate a shared Service Account, and make (or allow any third party to make) material available by means of the Services (including shareable links and SCORM objects), you are entirely responsible for the content of, and any harm resulting from, that content. That is the case regardless of what form the content takes, which includes, but is not limited to text, photo, video, audio, or code;
the technical processing and transmission of the Service, including your content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices;
if V&T Technologies wishes to alter the delivery of the SaaS Services which requires a change to the Customer Environment (including reconfigurations or interface customisations the extent necessary to access or use the SaaS Services) the Customer will give any assistance to V&T Technologies or make any such changes to the Customer Environment, that V&T Technologies reasonably requires; and
V&T Technologies may pursue any available equitable or other remedy against the Customer as a result of a breach by the Customer of any provision of this Agreement.
9.1 The Customer acknowledges and agrees that this Agreement incorporates by reference the terms of any acceptable use policy as set out on V&T Technologies’ website or as provided to the Customer from time to time.
9.2 There is a limit to the aggregate file size of your content on the Service. Each content item cannot exceed 1MB in size. If your bandwidth usage significantly exceeds the average bandwidth usage (as determined solely by us) of other customers, we reserve the right to immediately disable your Account, or throttle your Account until you can reduce your bandwidth consumption, or impose an appropriate Fee commensurate with such excess usage.
9.3 The Customer acknowledges and agrees that it must not, and will ensure each Authorised User does not:
use the SaaS Services to violate any legal rights of any person, the Customer or other entity in any jurisdiction;
use the SaaS Services in relation to crimes such as theft and fraud;
use the Services in breach of laws, including relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy;
make any unauthorised copy of any copyrighted material owned or licenced by V&T Technologies;
introduce malicious programs into V&T Technologies System (e.g. viruses, worms, trojan horses, e-mail bombs);
reveal the Customer’s account password to others or allow use of the Customer’s account the to those who are not the Customer’s Personnel or Authorised Users;
use the SaaS Services to make fraudulent offers of goods or services;
use the SaaS Services to carry out security breaches or disruptions of a network. Security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorised to access or corrupting any data. For the purposes of this paragraph, "security breaches" includes, but is not limited to, network sniffing/monitoring, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
use any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons’ use of the SaaS Services;
send any unsolicited email messages through or to users of the SaaS Services in breach of the Spam Act 2003 (Cth) or that is obscene, threatening, harassing, or libellous, or any other form of messaging, whether through language, frequency, or size of messages; use the SaaS Services in breach of any person’s privacy (such as by way of identity theft or "phishing") is strictly prohibited;
use the SaaS Services to circumvent user authentication or security of any of the Customer’s hosts, networks or accounts or those of the Customer’s customers or suppliers;
use the Services to administer illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or conduct any illegal activities; or
use the Services to in a way that links to, or displays or contains, nudity, obscene content, gambling related content, escort services, offers to make money online, pay day lender related content, illegal drugs, illegal software, viruses, or other content that we deem inappropriate in our sole discretion.
9.4 We reserve the right, but have no obligation, to scan every users Account and setup for compliance with this Agreement and to protect against the Services being used for offensive, defamatory, racist, inaccurate, abusive, obscene, profane material, or threatening content.
10.1 We send all new Authorised Users an email to verify their new Account and confirm their password and username. Authorised Users can subscribe to our newsletter to receive information on products, services, offers, and a newsletter. Customers can unsubscribe via the unsubscribe link in each email.
10.2 Customer agrees that we may make reference to Customer in marketing and public relations materials, including a press release announcing Customer as a customer. Customer hereby grants us a perpetual, nonexclusive, worldwide license to use and display Customer’s trademarks, trade names and logos in connection with the foregoing. This clause 10.2 will survive the termination or expiry of this Agreement
11.1 We have the right to audit your Accounts and records to evaluate your compliance with this agreement.
11.2 The Customer must keep a record of the use of the SaaS Services and provide a copy of it to V&T Technologies if V&T Technologies requests it.
11.3 V&T Technologies, its Personnel or any person authorised by V&T Technologies has the right to audit and inspect, and appoint one or more auditors to audit and inspect, any Customer Environment, documents and records to verify the Customer’s compliance with this Agreement.
11.4 Upon receipt of written notice from V&T Technologies, the Customer agrees to permit the audits and inspections referred to in clause 11.3 by V&T Technologies, its Personnel or any other person authorised by V&T Technologies or a regulatory authority or governing body and the Customer will provide reasonable assistance as required. The Customer agrees to give such person reasonable assistance, access and facilities to enable the auditing or monitoring by V&T Technologies.
11.5 The Parties agree that V&T Technologies must bear all costs associated with any audits and inspections under this clause, but not any records the Customer is required to maintain under clause 11.2.
12.1 The Customer must pay V&T Technologies:
the Fee; and
any other amount payable to V&T Technologies under this Agreement,
without set off or delay in advance of the next Plan billing cycle.
12.2 Customer is responsible for reviewing the pricing schedule, features, and limits associated with its Plan available on the Site.
12.3 The Service Fee is billed in advance in accordance with the Customer’s applicable Plan cycle based on the number of Authorised User’s in the month before the commencement of the next Plan billing cycle and is non-refundable, with any additional charges billed in arrears (at the end of the Plan cycle). Payments are due for any Plan cycle on the same date of the month, or the closest date of the month in that Plan cycle, to the day Customer signed up for the Services and made its first payment.
12.4 Customer agrees to provide accurate payment information, and hereby authorizes us to charge such credit card for all fees for the duration specified therein (and any renewal thereof).
12.5 We may, but are not obligated to, contact Customer to warn Customer that it have exceeded the included features or other limits of its current Plan.
12.6 If you downgrade your Account to a Plan with a lower features or Authorised User tier during a Plan cycle we will not provide a refund or partial credit to the Account. There will be no refunds or credits for an incomplete Plan cycle, Plan downgrade, or for unused Accounts. Downgrading your Account Plan may result in the loss of content, features, or capacity of Customer’s account. We not accept any liability for any losses or damagers that may arise in such cases.
12.7 We may offer you a free Account for a trial period with limited features designed to allow you to evaluate the Service and make sure it is right for you before signing up for a paid Plan. Any trial period can change at anytime without notice. We have the right to terminate any trial accounts if it is found to be misusing our service.
12.8 For any upgrade or downgrade in Plan level, you will be immediately charged the new Fee.
12.9 Customer must ensure that its credit card will not be declined. If your credit card expires and you do not cancel your Account, you will remain responsible for paying the Plan Fee, which will accrue to your Account until we receive a cancellation notice. You are responsible for ensuring that the email address you provide is valid and checked regularly.
12.10 We reserve the right to send delinquent Accounts to a collection agency if they are not paid within three months.
12.11 All fees are GST exclusive. If you are located outside Australia you will not be charged GST. You are responsible for all taxes, levies, or duties imposed by taxing authorities in your own country, and you shall be responsible for payment of all such taxes, levies, or duties. We have no responsibility to pay taxes, levies or duties on your behalf. Taxes may be added to the final price charged to Customer on Customer’s invoice. Customer shall pay the taxes with no reduction or offset in the amounts payable to us. Customer will, and agrees to, promptly reimburse us for any and all of Customer’s taxes that we may be required to pay in connection with this Agreement upon receipt of our invoice.
12.12 The Fees are subject to change upon 7 days’ notice from us to you and will apply to the next Plan billing cycle. Such notice may be provided at any time by posting the changes on our Site, via email and via a notification within SaaS platform. If Customer does not agree to the Fee change, it may terminate this Agreement in accordance with clause 19.1.
12.13 If there is a Variation, V&T Technologies will include the Variation Fees due and payable for the Variation performed in invoice(s) subsequent to the performance of any Variation.
12.14 If any payment has not been made in accordance with this Agreement, V&T Technologies may (at its absolute discretion):
immediately cease providing the Services, and recover as a debt due and immediately payable from the Customer its Additional Costs of doing so;
charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 1.5% of the outstanding balance per month, calculated daily and compounding monthly, on any such amounts unpaid after the due date;
condition future Plan renewals and orders on pre-payment or shorter payment terms;
engage debt collection services and/or commence legal proceedings in relation to any such amounts; and/or
report the Customer to any independent credit data agencies.
13.1 Subject to clause 13.2, each Party must (and must ensure that its Personnel do):
keep confidential; and
not use or permit any unauthorised use of,
all Confidential Information.
13.2 Clause 13.1(a) does not apply where:
the information is in, or comes into, the public domain (other than by a breach of this clause 13.1 by the relevant Party);
the relevant Party has the prior written consent of the Party that disclosed the Confidential Information;
the disclosure is required by law;
the disclosure is required in order to comply with this Agreement, provided that the Party disclosing the Confidential Information ensures the recipient complies with the terms of this clause 13.1; and
the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the Party disclosing the Confidential Information ensures the adviser complies with the terms of this clause 13.1.
13.3 Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause 13.1. 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 13.1.
13.4 This clause 13 will survive the termination or expiry of this Agreement.
14.1 A Party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the Effective Date (Pre-Existing Material) will not be altered, transferred or assigned by virtue of this Agreement.
14.2 The Customer grants to V&T Technologies a non-exclusive, royalty free, non-transferable and revocable licence to use any of the Customer’s Intellectual Property Rights including any Pre-Existing Material as reasonably required for V&T Technologies to provide the Services to the Customer.
14.3 We do not screen content uploaded onto the SaaS Service, but we have the right (but not the obligation) in our sole discretion to refuse or remove any content that is uploaded to the Service that we deem inappropriate, illegal, offensive, threatening, libellous, defamatory, pornographic, obscene, or otherwise objectionable or violate any party’s Intellectual Property Rights or this Agreement.
14.4 We have the discretion (but not obligation) to terminate a Customer’s access to and use of the Services if, we determine that Customer or its Authorised Users are repeat infringer of the Intellectual Property Rights of us or third parties.
14.5 Any Intellectual Property Rights created as a result of Professional Services (Foreground Material) will vest in V&T Technologies on creation and the Customer must promptly do any acts reasonably requested by V&T Technologies for the Intellectual Property Rights in the Foreground Material to vest in V&T Technologies.
14.6 If Customer enables, installs, or connects any Third-Party Applications for use with the Services Customer:
permits the communication of and/or access to Data to such Third-Party Applications;
grants to us and our sub-processors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable right and license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of any data communicated to or obtained by us from any Third Party Application enabled, installed, or connected to us by Customer; and
warrants that it has provided all notices and obtained all consents required by law to grant the aforementioned permissions, rights, and licenses and that doing do so will not infringe any third party's privacy, Intellectual Property Rights, or other rights.
14.7 Customer acknowledges and agrees that
we will not be held responsible for any Third-Party Applications Customer uses in connection with the Services, including but not limited to, for any disclosure, modification or deletion of Data resulting from any such communication to or access by Third Party Applications.
14.8 Customer agrees to comply with any requests by us to remove any connections to or from other websites and/or applications to the Services which Customer installs.
14.9 Subject to the terms and conditions of the Agreement (including any restrictions in the applicable Order Form) Customer is hereby granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable, license to use the Script, in the form made available to Customer, solely for the purpose of collecting data whilst using the Services in accordance with this Agreement.
14.10 Customer agrees not to use, copy, modify, adapt, alter, translate, create a derivative work of, reverse engineer, disassemble, or decompile the Script, including without limitation, any other underlying algorithms of the Script, except as expressly permitted herein or required by law.
14.11 Customer may not integrate the Script on any properties unless such properties are owned, operated or controlled by Customer or properties that Customer has the legal permission or rights to access.
14.12 Customer may provide comments, suggestions and feedback to us regarding the Services ("Comments"). The ownership right, title, and interest in such Comments will vest in us on provision of the Comments. Notwithstanding the aforementioned, to the extent that the ownership of any Comments cannot be assigned by Customer, Customer grants us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, prepare derivative works, and otherwise fully exploit such Comments in any medium or format, whether now known or later developed, provided that such Comments are anonymous.
14.13 This clause 13.4 will survive the termination or expiry of this Agreement.
15.1 Each Party and its Personnel agrees to comply with its obligations under the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines as amended from time to time in relation to personal information collected, used or disclosed by that Party or its Personnel in connection with the Services and this Agreement.
15.3 Despite anything to the contrary in this Agreement, we may monitor and analyse performance information based on and or related to Customer’s use of the Services, in an aggregated and anonymized format ("Analytics"). Customer agrees that we may make such Analytics publicly available, provided that it: 1) does not contain any personal information. We and/or our licensors own all right, title and interest in and to the Analytics, including all Intellectual Property Rights in the Analytics.
15.5 This clause 15 will survive the termination or expiry of this Agreement.
Each Party represents and warrants to each other Party:
it has full legal capacity and power to enter into this Agreement, to perform its obligations under this Agreement, to carry out the transactions contemplated by this Agreement, to own its property and assets and to carry on its business;
no Insolvency Event has occurred in respect of it;
this Agreement constitutes legal, valid and binding obligations, enforceable in accordance with its terms; and
the execution and performance by it of this Agreement and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to it or any document binding on it;
16.2 V&T Technologies
V&T Technologies warrants that to the best of its knowledge the Services do not infringe the Intellectual Property Rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the SaaS Services.
V&T Technologies does not warrant that the Services will be accurate, error-free or will operate without interruption or that, except as set out in this Agreement, the Services will be performed in the manner intended by the Customer or the Services will meet the requirements of the Customer or any results will be obtained from using the Services.
We use IP addresses, Wi-Fi signals, GPS signals and other forms of data to determine geolocation of users of the Customers website. We cannot guarantee and do not warrant that the geolocation determined by these methods is accurate to any degree and you agree that we will not have any Liability for any inaccuracies.
From time to time, Customer may receive information from our help or support pages and/or our employees (collectively, "Guidance"). Customer acknowledges and agree that such Guidance will not be deemed to constitute financial, legal or tax advice and Customer may not rely on any Guidance. Customer should seek the advice of its own professional advisers in relation to any such Guidance. Customer acknowledges and agrees that we make no warranty or representation of any kind regarding the accuracy or quality of such Guidance. Customer agrees that use of and reliance on any such Guidance is at its own risk and Customer releases us from all Liability for any consequences of its use of and reliance on any such Guidance.
Each Party makes the representations and warranties in clause 16.1 on each day on which it is a Party.
17.1 V&T Technologies is liable for the acts and omissions of all its Personnel as if they were done by V&T Technologies.
17.2 Despite anything to the contrary (but subject to clause 17.3 and 17.4), to the maximum extent permitted by the law:
V&T Technologies maximum aggregate Liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and must not exceed, in any month the total amount of Fees paid to V&T Technologies in the month in which the liability for the Services arose; and
V&T Technologies will not be liable to the Customer for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data or website,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
17.3 Clause 17.2 will not apply to V&T Technologies’ Liability to the Customer under this Agreement for any liability which cannot be excluded or limited by applicable law, including:
fraud or criminal conduct; or
death or personal injury.
Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. The Liability of us for any failure to comply with Statutory Rights when providing the Services is limited to, us (at our election): (a) resupplying that Service; or (b) refunding the Fee for the affected Service.
17.5 Despite anything to the contrary, to the maximum extent permitted by the law, V&T Technologies will have no Liability, and the Customer releases and discharges V&T Technologies from all Liability, arising from or in connection with any:
failure or delay in providing the Services; or
breach of this Agreement,
where caused or contributed to by any:
Force Majeure Event;
a fault or defect in any item of the Customer Environment; or
act or omission of the Customer or its Personnel.
17.6 V&T Technologies uses third-party service providers and applications to host or provide the Services. V&T Technologies will not be liable for any interruption to the Services, unavailability or outage, or any interruption, unavailability or outage of the Customer’s Systems, caused by any such third-party service provider. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features or Services without liability or entitling Customer to any refund, credit, or other compensation.
17.7 The Customer agrees that, to the maximum extent permitted by the law, this Agreement excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Agreement.
17.8 We do not warrant that any file or program available for download and/or execution from or via the Services is virus or error free or other conditions which could damage or interfere with Data, or Customer Environment with which such files or programs are used. All files and programs related to Services are at Customer’s own risk and Customer releases us entirely of all Liability for any consequences of its use.
17.9 From time to time, we may make certain beta services and or features available to Customer ("Beta Services"). Customer acknowledges and agrees that Beta Services have not been completely tested and are provided ‘as is’. Customer acknowledges and agrees that, to the fullest extent permitted by law, we will have no Liability in relation to such Beta Services.
17.10 This Clause 17 will survive the termination or expiry of this Agreement.
17.11 Customer agrees to defend, indemnify and hold us, our officers, directors, successors in interest, employees, agents and subsidiaries harmless from any third party Claims related to:
Customer’s breach of this Agreement and or negligence;
Customer or its client’s use of the Services; or
Claims that the Data infringes the Intellectual Property Rights or other rights of any third party).
The Term of this Agreement takes effect on and from the Effective Date and continues for the Term of your Plan unless this Agreement is terminated earlier in accordance with the terms of this Agreement.
19.1 Accounts can only be cancelled by the Customer via its Account dashboard (if such functionality is available), or by emailing support staff, however you will not be refunded any part of the Fee for any unused portion of the Service Plan billing cycle in which you terminate, except where you terminate under clause 26.13. You are solely responsible for properly cancelling your Account.
19.2 The Customer may terminate this Agreement by giving at least 15 Business Days’ notice to V&T Technologies if V&T Technologies is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, V&T Technologies has failed to remedy the breach within 15 Business Days’ of receipt of written notice from the Customer describing the breach and calling for it to be remedied.
19.3 V&T Technologies may terminate this Agreement by giving at least 15 Business Days’ notice to the Customer if the Customer is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, the Customer has failed to remedy the breach within 15 Business Days of receipt of written notice from V&T Technologies describing the breach and calling for it to be remedied.
19.4 V&T Technologies may remove any Data and/or suspend the Services and/or terminate this Agreement immediately by giving written notice to the Customer:
for any actual or alleged breach of this Agreement at any time. Any suspension pursuant to this clause will not affect your obligation to pay fees owed to us;
for non-payment or untimely authorization of payment;
for any actual or alleged breach of any laws applicable to Customer’s use of the Services; or
if Customer does not log into its account for more than 700 days ("Inactive Account"). Inactive Accounts will have 30 days to become active or the Account and its Data, may be permanently removed from our database.
where the Customer undergoes a Change of Control to a competitor of V&T Technologies as determined by V&T Technologies;
where an Insolvency Event occurs in relation to the Customer;
if the Customer uses the Services to carry out illicit, illegal, phishing/scam attacks on our Service or other entities;
if we find the Customer is creating multiple accounts to misuse the free trial or harming our Systems in any way;
if we find the Customer is causing any disturbance to our business or brand; or
where the Customer commits a breach of this Agreement not capable of remedy.
19.5 A $100 reinstatement charge applies to reactivate any suspended account once full payment has been received.
20.1 Upon termination of this Agreement, V&T Technologies will:
immediately stop performing the Services;
immediately stop placing orders for supplies or services required in connection with the performance of the Services; and
within 30 days destroy all property, including Confidential Information, Intellectual Property and Data in its possession that belongs to the Customer or, retain your content and reporting data for a period time permitted by law. This information will be accessible should you reactivate your Account.
20.2 Upon termination of this Agreement, the Customer will immediately:
cease and desist from any use of the Services;
return to V&T Technologies all property, including Confidential Information and Intellectual Property, in its possession that belongs to V&T Technologies; and
pay the Fees for all Services completed and for the remainder of the term under any applicable Order Form in effect prior to the termination date.
20.3 The expiry or termination of this Agreement for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination of this Agreement.
20.4 This clause 20 will survive the termination or expiry of this Agreement.
A Party must not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement(Dispute) without first complying with this clause 21 unless:
that Party is seeking urgent interlocutory relief; or
the Dispute relates to compliance with this clause.
Notwithstanding the existence of a Dispute, the Parties must continue to perform their obligations under this Agreement.
In the event of a Dispute, the Party claiming there is a Dispute must give written notice to the other Party or Parties to the Dispute setting out the details of the Dispute and proposing a resolution (Dispute Notice).
Within 10 Business Days after receipt of the Dispute Notice, each relevant Party must (if applicable by its senior executives or senior managers who have authority to reach a resolution on its behalf) meet at least once to attempt to resolve the Dispute in good faith. All aspects of every such conference, except for the occurrence of the conference, will be privileged.
If the relevant Parties are unable to resolve the Dispute with 15 Business Days after receipt of the Dispute Notice, any Party involved in the Dispute may (by written notice to the other Parties) submit the Dispute to binding arbitration administered by the Australian Centre for International Commercial Arbitration (ACICA) Rules, with such arbitration to be conducted:
in Perth, Western Australia; and
in accordance with the ACICA Arbitration Rules.
Each Party will bear its own costs in relation to the mediation, except Customer will bear V&T Technologies’ costs where it has issued a Dispute Notice.
If the Dispute has not been settled within 20 Business Days after the appointment of a mediator, or such other period as agreed in writing between the Parties, the Dispute may be referred by any Party involved in the Dispute (by written notice to the other Parties) to litigation.
21.4 This clause 21 will survive the termination or expiry of this Agreement.
22.1 The Parties agree V&T Technologies may engage subcontractors to perform the Services on its behalf.
23.1 Each Party will effect and maintain at its own expense relevant insurance policies.
24.1 The Customer will not solicit or entice away, any person or organization that was an actual or prospective, client, employee, contractor, representative, agent of, or developer to, V&T Technologies, during the Term of this Agreement.
24.2 This clause 24 will survive the termination or expiry of this Agreement.
25.1 Taxable supply
If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
25.2 Adjustment events
If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
25.4 GST terminology
The terms "adjustment event", "consideration", "GST", "input tax credit", "recipient", "supplier", "supply", "taxable supply" and "tax invoice" each has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
25.5 This clause 25 will survive the termination or expiry of this Agreement.
A notice or other communication given under this Agreement must be:
in writing, in English and signed by the sender; and
addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the notice details last notified by the recipient to the Parties.
Customer’s notice details are set out in the Account. V&T Technologies’ notice details are set out on the Site. A Party may change its notice details by written notice to the other Parties, which, for the Customer, is by updating their Account, and for V&T Technologies, is by updating the Site.
A notice or communication is taken as having been given:
when left at a Party’s current address for notices;
if mailed, on the third Business Day after posting (if delivered to an address within the same country) or on the tenth Business Day after posting (if delivered to an address within another country); or
if sent by email, if sent before 5pm on a Business Day in the place of receipt then on the Business Day when it is sent, otherwise on the following Business Day.
This subclause will survive the termination or expiry of this Agreement.
26.2 Force Majeure
If performance of this Agreement or any obligation under this Agreement is prevented, restricted or interfered with by reasons of Force Majeure and the affected party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the affected party invoking this provision shall be suspended to the extent necessary by such event. The affected party shall use reasonable efforts under the circumstances to remove such prevention, restriction or interference or to limit the impact of the event on its performance and must continue to perform with reasonable dispatch when the Force Majeure is removed.
Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing.
26.4 Powers, rights and remedies
Except as provided in this Agreement or permitted by law, the powers, rights and remedies of a Party under this Agreement are cumulative and in addition to any other powers, rights and remedies the Party may have.
26.5 Consents or approvals
Except as provided in this Agreement, a Party may give, attach conditions to or withhold any consent or approval under this Agreement at its sole and absolute discretion. A Party is not obliged to give reasons for giving or withholding its consent or approval or for giving its consent or approval subject to conditions.
The Services may be subject to the export control laws of the United States and other jurisdictions. Customer must comply with all applicable export laws. Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports. Customer must not permit users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
No Party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Agreement without the prior written consent of the other Parties. Any purported dealing in breach of this clause 26.6 is of no force or effect.
26.7 Further assurance
Each Party must promptly do all things and execute all further documents necessary to give full force and effect to this Agreement and their obligations under it. This subclause will survive the termination or expiry of this Agreement.
26.8 Costs and expenses
Each Party must pay its own costs and expenses (including legal costs) in connection with the negotiation, preparation and execution of this Agreement and any document relating to it.
26.9 Relationship of Parties
This Agreement is not intended to create a partnership, joint venture or agency relationship between the Parties.
Nothing in this Agreement gives a Party authority to bind any other Party in any way.
26.10 Independent legal advice
Each Party acknowledges and agrees that it has had an opportunity to read this Agreement, it agrees to its terms and, prior to executing it, it has been provided with the opportunity to seek independent legal advice about its terms.
If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.
If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
26.12 Entire agreement
This Agreement contains 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.
To the extent permitted by law, we may, at any time and at our discretion, vary this Agreement by notifying you via your Account dashboard and publishing varied terms on the Site. Subject to clause 12.12, such variation will take effect upon your use of the Services after such notification which will be deemed to be your agreement to such variation. It is Customer’s responsibility to check their Account dashboard and the Site regularly for modifications to this Agreement. If you do not agree to a variation you may terminate this Agreement pursuant to clause 19.1.
26.14 Cumulative Rights
The rights arising out of this Document do not exclude any other rights of either Party.
Each indemnity in this Document is a continuing obligation that is separate and independent from the other obligations of the Parties under this Document.
A Party is not obliged to take any action, or incur any expense, before enforcing any indemnity under this Document.
26.15 Governing law and jurisdiction
This Agreement is governed by the laws of Western Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Western Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. The Services may be accessed in Australia and overseas. We make no representations that the Services comply with the laws of any country other than Australia. If Customer accesses the Services from outside Australia, it does so at its own risk and is responsible for complying with the laws in the place in which it accesses the Services.
In this Agreement, unless defined in the preceding clauses or the context otherwise requires:
Additional Costs means any additional costs, expenses, damages or losses suffered or incurred by V&T Technologies.
Authorised User means the user(s) permitted to use the SaaS Services in accordance with the Plan specified in the Customer Account, or such other users identified by V&T Technologies through an audit, including additional Authorised Users.
Business Day means a day on which banks are open for general banking business in Western Australia, excluding Saturdays, Sundays and public holidays.
Business Hours means 9am to 5pm on a Business Day.
Change in Control occurs in respect of a Party if, after the Effective Date, a person acquires (directly or indirectly):
shares in that Party conferring alone or in aggregate 50% or more of the voting or economic interests in that Party on a fully diluted basis;
the power to control the appointment or dismissal of a majority of the directors of that Party; or
the capacity to control the financial and operating policies or management of that Party.
Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise.
Confidential Information includes information or documentation which:
is disclosed to the recipient in connection with this Agreement (whether before or after the Effective Date);
is prepared or produced under or in connection with this Agreement (whether before or after the Effective Date); or
the business, assets or affairs of a Party or any of its Affiliates;
the business, assets or affairs of a Group Company, or any client of a Group Company; or
the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as "confidential", and whether it is disclosed to the recipient or received, acquired, overheard or learnt by the recipient in any way whatsoever.
Customer Environment means the computing environment of the Customer including all hardware, software, information technology and telecommunications services and Systems.
Data means all of the information, documents and other data provided by the Customer or their Personnel to V&T Technologies, any content uploaded by the Customer or Personnel to V&T Technologies’ System, or otherwise accessed by V&T Technologies in providing the Services.
Dispute has the meaning given in clause 22.1(a).
Dispute Notice has the meaning given in clause 22.2(a).
Agreement means this agreement.
Fee means the fee set out in on the Site, or otherwise as set out in an Order Form agreed by the Parties.
Force Majeure means any event or circumstances beyond the reasonable control of a Party including any fire, lightning strike, flood, earthquake, natural disaster, sabotage, nuclear contamination, terrorism, war or civil riot that occurs to the extent that it:
would be unreasonable to expect the affected Party to have planned for, avoided or minimised the impact of such circumstance by appropriate risk management, disaster recovery or business resumption plan; and
results in a Party being unable to perform an obligation under this Agreement on time.
Insolvency Event means the occurrence of any one or more of the following events in relation to a Party:
the Party is or states that it is insolvent or is deemed or presumed to be insolvent under any applicable laws;
an application or order is made for the winding up, bankruptcy or dissolution of the Party or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution;
an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of the Party or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 10 Business Days;
a controller is appointed in respect of any of the Party’s property;
the Party is deregistered under the Corporations Act or other legislation or notice of its proposed deregistration is given to it;
a distress, attachment or execution is levied or becomes enforceable against the Party or any of its property;
the Party enters into or takes action to enter into an arrangement, composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them;
a receiver or manager (or both) or trustee in bankruptcy is appointed in respect of the Party or its property;
a petition for the making of a sequestration order against the estate of the Party is presented and the petition is not stayed, withdrawn or dismissed within 10 Business Days or the Party presents a petition against itself; or
anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of the Party.
Intellectual Property Rights means all present and future rights to:
registered or unregistered designs, patents, trade marks;
trade, business, company or domain names;
know-how, inventions, processes, trade secrets;
circuit layouts, databases or source codes; and
any similar rights in any part of the world,
including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Liability means any expense, charge, cost, liability, loss, damage, claim, demand or proceeding (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.
Order Form means any form (including an electronic form), either executed by the Parties or agreed to by the Customer online, that sets out the commercial terms of the Services to be provided to Customer under this Agreement. All order forms incorporate, and are subject to this Agreement.
Party means a party to this Agreement from time to time, and Parties means all of them.
Personnel means in relation to a Party, any employee, contractor, officer and agent of that Party.
Plan means the applicable monthly, quarterly or annual Customer Fee plan which provides for certain Service features and a number of Authorised Users tier.
Products means hardware or software.
Professional Fee means the fee agreed by the Parties for any Professional Services in accordance with clause 5.
Professional Services means the services to be provided by V&T Technologies pursuant to this Agreement for the customization and or integration of the SaaS Services.
Related Body Corporate has the meaning given in section 9 of the Corporations Act.
SaaS Licence is defined in clause 3.1.
SaaS Services means the Software as a Service described on the Site.
Script means a script of computer program code provided by us that Customers must place in their website in order for certain features of the SaaS service to work.
Services means the SaaS Services, Support Services and any Professional Services, to be provided or licensed by V&T Technologies to the Customer on the terms and conditions set out in this Agreement.
Software means the software used to provide the SaaS Services, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered into by the Parties.
System means a combination of Products or a combination of Products and services which are integrated and operate together, including a network.
Term means the term of this Agreement specified in the Customer Account.
Third Party Applications means any software, products, tools, or applications that are used in connection with the Services that are not owned by us.
Variation means a change to the Plan or SaaS Licence after the date of this Agreement.
Variation Fee means any variation to the Fee as a consequence of the Variation.
In this Agreement, unless the context otherwise requires:
the singular includes the plural and vice versa;
headings are for convenience only and do not affect interpretation;
a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Agreement;
if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
includes and similar words mean includes without limitation;
no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
a reference to time is to local time in Western Australia, Australia; and
a reference to $ or dollars refers to the currency of the United States, unless stated otherwise in an Order Form.
For any questions, please contact us at:
V&T Technologies Pty. Ltd.
Email: [email protected]
Last update: 23 October, 2018