Welcome to the customer driven digital solutions provided by propella.ai Pty Ltd ACN 623 902 885 (“Propella”), and its associated entities (together, “we”, “us” or “our”).
By using or accessing our Services, you acknowledge that:
If you have any particular questions please contact us by email via firstname.lastname@example.org
"Applications" means any of the digital solutions provided by us via the Platforms on any Device (as changed or updated from time to time by us).
"Customer Data" means all data (whether or not it includes Personal Information) stored by the Customer or its Personnel on the Services, excluding any Developed IP.
a) confidential information relating to the technology and design of our Services including, but not limited to, algorithms, manuals, designs, diagrams and training videos of the Services;
b) the Data;
c) information relating to our personnel, policies or business strategies;
d) information relating to the terms upon which the Services are provided to you;
"Device" means any type of device including a computer, mobile phone, tablet or console.
“Governing Agreement” means any subscription agreement or other agreement entered into by you and Propella which governs our provision of Services to you.
"Intellectual Property Rights" means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
"Moral Rights" has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
“Personal Information” means personal information as defined in the Privacy Act 1988 (Cth).
"Platforms" means the internet sites, mobile sites or applications operated by us via which the Applications may be accessed or used on any Device.
“Services” means any and all websites, platforms (including the Platforms), applications (including the Applications), products or services offered by us.
"User" means any person, and where the context permits, includes any entity on whose behalf that person who uses (whether as a registered or unregistered user) or accesses the Services on any Device.
"you" means the User, and where the context permits, any person you authorise to use the Services on your behalf and "your" has a corresponding meaning.
1. USE OF SOFTWARE
We reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will we be liable for the removal of or disabling of access to any such Services. We may also impose limits on the use of, or access to, the Services in any case and without any notice or liability.
As a condition of your using and accessing the Services, you represent and warrant that you:
a) will only provide Data and other information that is complete, accurate and up to date;
b) will not falsify any of your Data or other information;
c) will only maintain one account at any given time, and if your account is ever suspended or terminated for any reason, you will not create another account;
d) are not currently prohibited or otherwise restricted from using or accessing the Services;
e) are not a competitor of us, and are not using or accessing the Services for the purposes of competing with our business;
f) will not violate any of our or any other person's rights, including but not limited to, Intellectual Property Rights; and
3. YOUR OBLIGATIONS
3.1. You must not:
b) use the Services in any way that is likely to mislead or deceive, cause confusion, or prejudice the distinctiveness or value of the Services;
c) use the Services in anyway that could damage our reputation or the goodwill or other rights associated with the Services; or
e) attempt to undermine the security or integrity of our computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
f) use, or misuse, the Services in any way which may impair the functionality of the Services, or other systems used to deliver the Services or impair the ability of any other user to use the Services;
g) use the Services for the purpose of creating a competitive product or service or copying its features or user interface;
h) attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the Device on which the Services are hosted;
i) transmit, or input into the Services, any files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you do not have the right to use); and/or
j) unless you have our prior written consent, rent, sub-licence, lease, lend, sell, transmit or redistribute the Services, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Services, any updates, or any part thereof or any computer programs used to deliver and/or operate the Services (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services).
3.3. You must ensure you protect the Services at all times from unauthorised access, use or damage and you must ensure that all usernames and passwords required to access the Services are kept secure and confidential.
3.4. You must immediately notify us of any unauthorised use of your passwords, or any other breach of security and you must reset your password and you must take all other actions that we reasonably deem necessary to maintain or enhance the security of our computing systems and networks and your access to the Services.
3.7. You will be responsible for providing your own Device and other access facilities (including terminal, software, internet access, modem and telecommunications facilities) necessary for utilising the Services. You must ensure that any Device on which the Services are used are in good, up to date working order and operating condition.
3.8. We accept no responsibility or liability for any deficiency relating to your Device and other access facilities. Additionally, you acknowledge and agree that you will be solely liable for any fees or other charges incurred by you in connection with using or accessing the Services, including but not limited to software, hardware, equipment and internet usage charges.
3.9. You must pay all Subscription Fees, as set out in a Governing Agreement, promptly when due.
4. USAGE LIMITATIONS
Use of the Services may be subject to limitations. Any such limitations will be advised and may be specified in any Governing Agreement.
5.1. Unless the relevant party has the prior written consent of the other or unless required to do so by law:
c) you shall take all reasonable steps to ensure that your employees, agents, subcontractors or related entities, do not make public or disclose our Confidential Information. If you become aware that any of your employees, agents, sub-contractors or related entities passed on any Confidential Information to any other party, then you shall notify us in writing immediately.
5.2. The provisions of this clause shall not apply to any information which:
a) is or becomes public knowledge other than by a breach of this clause;
b) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
c) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
d) is independently developed without access to the Confidential Information.
6. INTELLECTUAL PROPERTY
6.1. Title to, and all Intellectual Property Rights in the Services and any documentation relating to the Services remain our (and/or our licensors) sole property. We retain full legal rights in and title to the Services whether in its original form or as modified by you or us.
6.3. You will not directly or indirectly do anything that would or might invalidate or put in dispute our title in the Services.
6.4. If any person makes any claim alleging that any of the Services infringes any Intellectual Property Rights or Moral Rights of any person, you must:
a) promptly notify us in writing; and
b) cooperate with, assist and act at all times in accordance with our reasonable instructions, in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
6.5. We grant you a non-exclusive royalty free, non-transferrable, fully revokable license to use our Intellectual Property Rights for the Term of our Agreement and solely for the purpose of obtaining the benefit of our Services as set out in any Governing Agreement.
7.1. You agree that we may collect, process, use, disclose, store, and back-up your Data for any purpose (including the purpose of enabling you to use or access the Services and any other purpose related to provision of services to you).
7.3 The Customer will own and retain all right, title and interest in and to the Customer Data. The Customer may export the Customer Data from the Services by using the data export features of the Services.
7.4 (a) The Customer will be responsible for the content of all Customer Data and for complying with all Privacy Laws in respect of the Customer Data.
(b) Without limiting the generality of clause 7.4(a), the Customer must ensure that it has obtained all necessary consents and authorisation, and given all necessary notices, as are required by law for the Company to:
(i) receive, store and process the Customer Data as part of providing the Services; and
(ii) collect and store, from time to time, certain data relating to the Customer’s use of the Services for its own internal purposes.
(c) The Customer warrants that:
(i) the Customer is aware that Personal Information must be handled in compliance with the Privacy Laws; and
(ii) the Customer has established effective security measures to:
A. safeguard the Customer Data from unauthorised access or misuses, interference, corruption and loss; and
B. ensure that Customer Data will be collected, held, used and disclosed in a manner consistent with the Privacy Laws and this Agreement.
(d) The Customer acknowledges that the Company will delete or destroy all Customer Data stored on the Services at any time after the expiry of the Data Extraction Period set out in clause 17.1(c) Below.
8. DATA BREACH AND LOSS
8.1. We use reasonable security measures to protect Data that is hosted on the Services from unauthorised access, disclosure and loss, however we do not make any guarantees that there will be no loss or unauthorised access or disclosure of Data.
8.2. Where we become aware of, or suspect that there has been loss of Data, or that there has been unauthorised access or disclosure of Data, we will notify you as soon as practicable.
9. DATA STORAGE
9.1. As part of providing the Services, we may store or process Data at a location outside Australia. Upon reasonable notice, we will provide you with a list of jurisdictions in which the Data may be held.
9.2. You acknowledge that the nature of the Services means that we may vary the storage location of your Data from time to time.
10. THIRD PARTY APPLICATIONS AND YOUR DATA
10.1. If you enable third party applications for use in conjunction with the Services, you acknowledge that we may allow the providers of those third party applications to access your Data as required for the interoperation of such third party applications with the Services.
10.2. You agree that where you use any third party applications or services to interact with our Services in any way, you do so at your own risk and on the understanding that we are not responsible for any claims or loss arising out of, or in any way related to, your use of such third party applications or services and/or the interaction of such third party applications or services with our Services.
11. WARRANTIES AND ACKNOWLEDGEMENTS
11.1. You warrant and acknowledge that:
a) you are authorised to use and access the Services and to access the information and Data that you input into the Services (including any information or Data input into the Services by any person you have authorised to use the Services);
b) you are authorised to access the processed information and Data that is made available to you through your use of the Services (whether that information and Data is your own or that of anyone else);
d) you are responsible for authorising any person who is given access to information or Data, and you agree that we have no obligation to provide any person access to such information or Data without your authorisation and may refer any requests for information to you to address; and
e) the provision of, access to, and use of, the Services is on an "as is" basis and at your own risk;
f) it is your sole responsibility to determine that the Services meet your personal needs and requirements and are suitable for the purposes for which they are used;
g) you remain solely responsible for complying with laws applicable to you; and
h) it is your responsibility to check that storage of and access to your Data via the Services will comply with laws applicable to you (including any laws requiring you to retain records).
11.2.You acknowledge and warrant that if you use our Services on behalf of, or for the benefit of anyone other than yourself (whether a body corporate or otherwise):
a) you are responsible for ensuring that you have the right to do so;
d) the provision of, access to, and use of, the Services is on an "as is" basis and at your (and that person’s) own risk.
12. OUR LIABILITY
12.1. You acknowledge and agree that the Services cannot be tested in every possible combination, operating condition or application, and how and for what purpose the Services are used by you is not within our control.
12.2. To the maximum extent permitted by law:
a) all warranties, whether express or implied including warranties as to fitness for any purpose and merchantability are expressly excluded;
b) we do not warrant or guarantee that the Site or any of the Services are free from defects, viruses or other harmful components, or your access to the Site will be uninterrupted or error free;
c) we shall not be liable for any injury, loss, expense or damages of any kind whatsoever or however arising, whether directly, indirectly, consequently or contingently to any person or property and without limiting the generality of the foregoing, we shall not be liable for any losses, expenses or damages caused by delays or any other reasons or additional expenses incurred by you or the User including losses of prospective profits or actual profits incurred by you or the User;
d) we will not be in any way responsible for the delivery and/or receipt of any emails sent by us to any email address if such emails are not received by the recipient as a result of or in connection to any email portal or system that may be in use or any email approvals, policies and/or protocols that may be in place;
e) we are not in any way responsible for any such interference or prevention of your use of or access to the Site which is caused or contributed to by a fault with your Device or by the systems (including public telephone services, computer networks and the internet) used by you to access the Site;
f) we accept no responsibility for a User’s failure to provide true, accurate and correct information in connection with accessing or using the Site and/or using the Services including but not limited to providing false information regarding the User’s identity or the correct billing information;
g) we accept no liability for the loss of Data where such loss is wholly or partly caused by factors beyond our reasonable control including, but not limited to, failure or fault in the hosted environment of the Site, defective network or internet connections, defective equipment utilised by you or incorrect operation by you of your own Device or other access facilities;
h) we will not be responsible for any disclosure, use, modification or deletion of your Data resulting from any access by third party platform providers; and
i) neither us, nor our directors, officers, employees, contractors or agents, will be liable for any direct, indirect, consequential or other loss or damage to any person or entity, however caused (whether by negligence or otherwise), arising in connection with your use of, or inability to use, the Site, or reliance upon any of the content or other information posted on the Site.
You agree to indemnify and hold us and our officers, employees and agents harmless ("those indemnified") from and against any action, liability, claim, loss, damage, proceeding, expense (including reasonable legal costs and expenses) suffered or incurred by any of those indemnified, whether directly or indirectly, in connection with:
b) your use or access of the Site and the Services;
c) improper use of any of the Services;
d) any breach or inaccuracy in any of your representations or warranties;
e) any wilful, unlawful or negligent act or omission;
f) your failure to provide true, accurate and correct Data which is required to be provided by you in order for us to provide the Services;
g) your failure to provide true, accurate and correct personal information for any purpose including but not limited to the provision of the Services and the personal information required in order to verify your identity;
h) any violation, contravention or infringement of any applicable laws by a User; and
i) any act, omission, neglect or default on the part of a User that results in a claim, liability or loss being brought by a third party against those indemnified.
14. FEEDBACK AND REVIEW
14.1. From time to time, we may request that you provide us with feedback or reviews on the Services. You are not obliged to provide such feedback.
14.2. You acknowledge and agree that:
a) we, at our sole discretion, may determine whether such comments are published on our Site or any social media platform; and
b) where you intend to post any negative review or comment with respect to us or the Services or on any external review site or social media platform, you will contact us and provide us with an opportunity to discuss your concerns before publishing such negative review or comment.
15. SOCIAL MEDIA
15.2. With respect to social media, for the purposes of marketing and/or promotion, you hereby acknowledge and authorise us to:
a) upload, publish, post or repost any content which directly or indirectly references content that you have uploaded, published, posted or reposted in respect of us and/or our Services; and
b) make use of any publicly available information (including venue information and imagery) for the purposes of any publication, post or repost.
15.3. For the avoidance of doubt, by using the Services, you agree and consent to us undertaking any of the activities contemplated by clause 15.2 without the need to obtain any further consent from you.
(a) The Company may suspend the access to, and use of, the Services by Customer in the following circumstances:
(i) for any non-payment of Fees by the Customer;
(ii) for the duration of any Force Majeure Event;
(iii) for any material breach of this Agreement by the Customer;
(iv) if the company reasonably considers that suspension is necessary to protect the Services, the Customer Data, or any other computer systems and data (including in response to an external attack); or
(b) The Company may, in its sole discretion, restrict, limit or alter any compromised login credentials (including anu which the Company suspects may have been compromised) so as to completely or partially disable access to the Services via the compromised login credentials.
(c) The Company will give the Customer as much practicable prior notice of the suspension as possible, and will promptly end the suspension after the relevant circumstances have abated.
17.2. Upon termination, you shall cease all use of the Services, and destroy and/or return all copies, full or partial, of the Services as well as all revisions, enhancements and upgrades of the Services.
17.4. If your rights to use our Services are terminated, to the fullest extent permitted by law, you agree that all prepaid Subscription Fees will be retained by us and a portion of the Subscription Fees payable for the remaining Term (as if your rights to the Services had not been terminated and determined by us acting reasonably) will become immediately due and payable as a genuine pre-estimate of the anticipated or actual loss that we may suffer as a result of the termination.
18. SERVICES AVAILABILITY
Whilst we intend that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services may be unavailable. If for any reason we have to interrupt the Services for longer periods than we would normally expect, we will use reasonable endeavours to publish in advance details of such activity on the Services. We will not be liable to you or any other person for any unavailability of or interruptions to the use of or access to the Services.
19. ASSIGNMENT AND NOVATION
You may not assign or transfer any rights under these to any other person without our prior written consent.
20. OUR RIGHTS
21. GOVERNING LAW
Notices must be sent to email@example.com or to any other email address notified by email to you by us.
Notices to you may be sent via electronic messages, including email, text message/SMS, or mobile push notifications, to the email address or numbers which you provided when setting up your access to the Services.
24. RIGHTS OF THIRD PARTIES
25. VARIATION TO TERMS
26. FAILURE TO PAY
If payment of the Fees is not received by any applicable due date described in the Governing Agreement, the Company will be entitled (without prejudice to any other right or remedy) to:
(a) withhold provision of the Services until payment is received in full and in cleared funds;
(b) charge interest on the amount outstanding at the Prescribed Rate, calculated from and including the date on which the payment became due until but excluding the date on which the payment is made, which interest is payable on the Company making written demand to that effect;
(c) require that the Customer make advance payments of the Fees or other amounts due in full or in part prior to the supply or delivery of the Services; and/or
(d) suspend the Services pursuant to clause 16; or
(e) terminate this Agreement pursuant to clause 17.