(a) This clause 1 defines certain terms used in this agreement. Other terms are defined elsewhere in this agreement.
(b) ‘Kudos’ means a collaborative online communication and content management platform operated by us and in relation to which you are using the Service.
(c) ‘Kudos Content’ means Content (including Kudos source code) supplied by us in the course of providing the Service, even if a Subscriber or End-User originally conceived of or proposed that Content to Kudos, and including Third Party Software.
(d) ‘Complimentary Service’ means our providing the Service to you at no charge, including under a free trial subscription.
(e) ‘Complimentary Service Term’ means the duration of our providing only Complimentary Service to you.
(f) ‘Content’ includes any written, pictorial, graphic, visual, audio, design, static or moving material, data, information or thing, taken individually or together (eg a compilation) depicted, embodied in or available at or within Kudos, including written works (including this agreement), artistic works, sound recordings, films, animations, data bases, logos, word marks and metadata, and copies of any of those things.
(g) ‘End-User’ means a person or organisation whom a Subscriber lawfully authorises to use Kudos.
(h) ‘Initial Term’ means the initial duration of time for this agreement as specified in the relevant information pages of Kudos website or selected by you in the process of entering into this agreement.
(i) ‘Intellectual Property’ means existing and future copyright, trademarks, designs, patents or circuit layouts, whether registered or not.
(j) ‘Personal Information’ has the same meaning as in the Privacy Act 1988 (Cth).
(k) ‘Related Body Corporate’ has the same meaning as in the Corporations Act 2001 (Cth).
(l) ‘Renewing Term’ means the duration of time for this agreement to be renewed as specified in the relevant information pages of Kudos website or selected by you in the process of entering into this agreement.
(m) ‘Service’ means access to Kudos and its features for a Subscriber who already has appropriate internet access and computer equipment.
(n) ‘Subscriber’ means any person or entity to whom we agree to supply the Service, including you.
(o) ‘Subscriber Content’ means Content supplied by a Subscriber or End-User in the course of using or in relation to the use of the Service, including Personal Information.
(p) ‘Third Party Link’ means a link, by any method, between Kudos and a third party other online location or service, eg Facebook, linkedin, a customer’s intranet.
(q) ‘Third Party Software’ means software supplied to you by us under licence from a third party, or accessible by you via Kudos under a separate agreement between you and the third party.
(r) ‘upload’ includes to program, post, email, transmit, distribute or otherwise make available, publicly or privately, to or via Kudos.
(s) ‘we’ means ISW Development Pty Ltd (ABN: 51 107 983 157) and, where it would be appropriate in the context, includes any Related Body Corporate of ISW Development Pty Ltd and all officers, employees and contractors of ISW Development Pty Ltd or its Related Bodies Corporate.
(t) ‘you’ means the person or entity entering into this agreement by accepting our offer to supply the Service on the terms of this agreement. That person will be the person or organisation in whose name your account is held.
(a) Subject to this agreement, we may operate and configure Kudos in any manner and at or for any particular time or period of time.
(b) You acknowledge that Kudos is as-is at any given time.
(c) The Service may vary according to the subscription package you select for the purposes of this agreement.
While this agreement is in effect, we must supply the Service to you and must do so in accordance with the terms of this agreement.
2.3 Access & integrity
(a) We give no warranty that the Service:
· will be continuous, uninterrupted or secure;
· will not be interfered with or adversely affected by factors or circumstances outside of our control.
(b) We give no warranty that we will maintain back-up of, or disaster recovery facilities in relation to, Subscriber Content.
Note: Clause 7 also deals with warranties we give or disclaim in relation to Kudos and the Service.
2.4 Maintenance & changes
(a) We may modify or upgrade Kudos, remove Kudos functionality or temporarily disable the Service for the purposes of doing these acts. Unless during a Complimentary Service Term, we must not remove Kudos functionality if doing so would materially adversely affect that functionality without a commensurate reduction in the Fees.
(b) If we intend to temporarily disable the Service for more than 12 consecutive hours, we must use reasonable endeavours to give notice to you of that intention. Otherwise, we may do the acts in paragraph (a) without notice to you. This clause does not apply during a Complimentary Service Term.
(a) We must provide you with a level of basic Service support sufficient to meet the reasonable needs of subscribers. This clause does not apply during a Complimentary Service Term.
(b) We may charge a fee for additional support at your request.
(a) We will charge you the following fees (‘Fees’) if and as applicable:
· subscription fees;
· specific pay-per-use or volume-based fees;
· one-off establishment, training and additional support fees; and
· payment method fees.
(b) The Fees will correspond to the subscription package you select for the purposes of this agreement and will be specified in the relevant information pages of Kudos website. Special offers, Complimentary Services, services you request, payment method and plan and the like may affect Fees.
(c) Subject to clause 12.4(a) (variation), we may increase the Fees from time to time and, if we do so, we must use our reasonable endeavours to give you notice of the increase.
(a) You must pay all Fees we charge you and pay them in accordance with this agreement, including any terms of payment specified in the relevant webpage of Kudos website.
(b) When you pay Fees, you must do so in accordance with the agreed payment method, which may include direct debit of a bank account or credit card.
Fees are non-refundable, except in circumstances where the Fee is transaction-based and the transaction is reversed by reason of fraud or wilful misrepresentation by a party to the transaction and the Transaction Functionality provider refunds all, or refrains from charging any, of its fees under the transaction.
(a) This clause 4.1 operates subject to the express terms of this agreement and rights conferred by Australian statute law.
(b) You acknowledge that, as between you and us:
· you do not own any Intellectual Property in Kudos Content or the Content of other Subscribers or their End-Users;
· you do not own, nor are entitled to exercise, any other rights in Kudos Content or the Content of other Subscribers or their End-Users.
(c) Nothing in this agreement transfers ownership to you in, or licenses to you, any Intellectual Property or other rights in Kudos Content.
(d) We acknowledge that, unless you transfer ownership to us under this agreement or otherwise, we do not own any Intellectual Property in Subscriber Content.
(e) Nothing in this agreement transfers ownership to us in, or licenses to us, any Intellectual Property or other right in Subscriber Content.
(a) To the extent that your use of the Service and performance of your obligations in accordance with this agreement would infringe our Intellectual Property or other rights subsisting in or relating to Kudos Content, and only to that extent, we authorise you to do such acts in connection Kudos Content as are reasonably necessary for the purposes of that use and performance (‘Subscriber Licence’).
(b) The Subscriber Licence:
· continues in effect until this agreement is lawfully terminated;
· is non-exclusive;
· is royalty-free (other than insofar as payment of Fees is a royalty); and
· is personal to you and otherwise not transferrable or sub-licensable – to be clear, it is granted to you alone and no other person or entity; and
· despite the above, to the extent that the Subscriber Licence is of Content embodying third party software used by us under licence, the terms of the Subscriber Licence are limited to the terms of the third party licence.
(c) To the extent that our supply of the Service to you, exercise of our rights and performance of our obligations in accordance with this agreement would infringe your Intellectual Property or other rights subsisting in or relating to your Subscriber Content, and only to that extent, you authorise us to do such acts in connection with your Subscriber Content as are reasonably necessary for the purposes of operating Kudos, supplying the Service, exercising our rights and performing our obligations in accordance with this agreement (‘Kudos Licence’). To be clear, subject to this paragraph (c), Kudos Licence entitles us to do acts including the following:
· making and storing copies of your Subscriber Content on our servers; and
· communicating your Subscriber Content to the public in response to your instructions.
(d) Kudos Licence:
· continues in effect until this agreement is lawfully terminated;
· is non-exclusive;
· is royalty-free;
· irrevocable; and
· is transferable and sub-licensable.
(a) You acknowledge that:
· nothing in this agreement authorises you to do;
· we have not authorised, sanctioned, countenanced, approved or permitted you doing; and
· we have taken reasonable steps to prevent you doing,
any act that would infringe any Intellectual Property or other rights subsisting in or relating to Subscriber Content or other subject-matter in relation to which a third party owns Intellectual Property.
(b) You warrant that your use of the Service, including uploading, publishing, communicating, and using Subscriber Content, will not infringe any Intellectual Property or other rights subsisting in or relating to Subscriber Content, nor breach any laws.
(c) You must not do any act that infringes any Intellectual Property or other rights subsisting in or relating to Subscriber Content.
4.4 Moral rights
You warrant that all individuals involved in the creation of Subscriber Materials have or will consent to any infringement of any moral rights they may have in relation to those materials and waive all right, title and interest they may have in any right, action or remedy against us for infringement of those moral rights.
We may in any event disclose your Content to third parties as reasonably necessary to the performance of this agreement.
5.1 Your obligations
(a) You must keep confidential any password, login or other information related to the integrity and security of Kudos, the Service and that relates to your use of the Service (‘Security Information’).
(b) If you become aware that any of your Security Information has been lost, compromised or misappropriated, you must notify us immediately.
(c) Except in the course of making bona fide use of the Service, you must not:
· modify or alter any part of Kudos;
· use the Service for (other) commercial purposes; or
· use the Service merely as a data storage facility,
without our express written consent.
(d) You must not under any circumstances:
· reverse engineer, infiltrate, sabotage, impose excessive load upon or otherwise interfere with;
· engage in any form of data extraction or data mining in relation to; or
· use any robot, botnet, script, spider or other automatic device or manual process in or on,
any part of Kudos.
5.2 Our rights
Among other things, if you operate any botnet where a hostname is used as command and control points, we may direct the relevant hostname to a honeypot, loopback address, logging facility or any other destination.
Each of the obligations below is to be read on as a stand-alone obligation without limiting any other obligation. You must not, and must ensure that your End-Users do not, use the Service for the purpose or effect of:
(a) disseminating surveys, contests, pyramid schemes, chain letters or any other form of spam;
(b) sending any electronic communication that is or relates to a ‘Mobile Premium Service’ within the meaning of the Mobile Premium Services Code (C637:2009) published by Communication Alliance Ltd;
(c) sending any electronic communication in contravention of the Spam Act 2003 (Cth), including by failing to include a functional unsubscribe facility with every communication;
(d) infringing the Intellectual Property of any person, including the misuse of our trade marks;
(e) engaging in misleading or deceptive conduct or misrepresenting your services to third parties, including by implying that we endorse you or your services;
(f) engaging in disruptive or anti-social online behaviour, including flaming, trolling, flooding, invading, impersonating others, off-topic messaging, uploading unnecessary ASCII art files, uploading multiple identical or hard-to-read or nonsense messages;
(g) embarrassing, humiliating, defaming, compromising the privacy of, harassing or intimidating any person;
(h) publishing or supplying Content embodying or depicting any sexually explicit, pornographic, violent or offensive subject-matter;
(i) communicating with a minor other than for and with a lawful and bona fide purpose and effect;
(j) embodying links to inappropriate websites, including websites associated with pornography, violence or gambling;
(k) mining any database;
(l) laundering money or other things of value;
(o) engaging in any (other) unlawful activity.
7.1 Additional warranties you give
In addition to and without limiting any warranty you give elsewhere in this agreement, you continuously warrant that you, and every End-User (unless inapplicable in context):
(a) are aged 13 years or older;
(b) if aged under 18 years:
· have the approval of the relevant parent or guardian to enter into this agreement;
· understand that, upon turning 18 years, your continued use of Kudos constitutes your affirmation of this agreement;
(c) have obtained all necessary consents for the purposes of sending electronic messages to any customer or other third party in compliance with obligations under the Spam Act 2003 (Cth);
(d) have collected all Personal Information about End-Users and any other person that has been collected and uploaded to Kudos, in accordance with the Australian Privacy Principles (Privacy Act 1988 (Cth));
(e) maintain as true, accurate and complete all information provided to us that is relevant to the supply of the Services;
(f) if you wish to maintain an archive of Subscriber Content, will regularly export your Subscriber Content from Kudos;
(g) outside of Kudos, maintain appropriate back-up of all your Subscriber Content; and
(h) do not rely on any representation or warranty from us that is not expressly contained in this agreement or made by law.
7.2 Additional warranties we do and do not give
(a) We warrant that we will supply the Service to you with due care and skill. This paragraph does not apply during a Complimentary Service Term.
(b) Subject to paragraph (a), we give no warranty that:
· Kudos Content comprising advice, tips, directions or guides, is true, accurate or reliable;
· your use of the Service will result in any particular commercial outcome for you or your End-Users;
· other Subscribers, their End-Users or your or their customers will not breach any agreement policies or rules governing their use of Kudos or that we will enforce our rights (if any) in response to such breach; or
· Third Party Links, whether links embodied on Kudos, on those websites themselves or elsewhere, will be safe, appropriate or reliable or that, by reason of the Third Party Link, Content will not be published, shared or disclosed outside of Kudos or that access to the Content will not be made available via the Third Party Link.
8.1 Response to breach
Despite any other provision of this agreement, if:
· we believe that you are infringing or are likely to infringe Intellectual Property or other rights;
· we receive a complaint or, pursuant to any statutory regime, an apparently bona fide notice, from a third party alleging that you are infringing Intellectual Property or other rights;
· we are requested or directed to do so by any law enforcement, governmental or regulatory authority; or
· you otherwise breach this agreement,
we may do any or all of the following, with immediate effect and without notice to you:
· modify, disable or delete Subscriber Content;
· modify, limit, disable or suspend your account;
· supply such information to third parties (including private claimants, law enforcement, government or regulatory authorities) as appropriate, requested, directed or otherwise required by law; and
· take any other action we deem appropriate and that is not unlawful,
but only as we deem to be necessary in order to resolve the issue or implications of it.
Note: We may take further action pursuant to clause 11 (termination of agreement).
8.2 Consequences of suspension
For so long as your account is disabled or suspended, our supply to you of the Service will cease. When our supply to you of the Service ceases, you will be unable to access your account or any Subscriber Content.
You indemnify us against any loss suffered by us:
· as a result of any breach of this agreement (including its warranties) by you;
· such loss including general, direct loss, special (indirect, consequential, incidental) loss and pure economic loss (including loss of revenue or profits); and
· including where such loss arises from legal action brought against us by a third party or brought by us against a third party.
(a) We are not liable to you for:
· any special (indirect, consequential, incidental) loss or pure economic loss (including loss of revenue or profits); or
· loss caused by defective Third Party Software,
regardless of how such loss arises, including for interruption to or ceasing to operate Kudos, misrepresentation, infringement of moral rights, breach of contract, breach of confidence, loss of chance or opportunity, or negligence, and whether suffered by you or a third party, except to the extent that the loss arises from our breach of a consumer guarantee that we will supply the Service with due care and skill or other consumer guarantee. To be clear, this clause applies whether or not you have advised us of the likelihood or possibility of your suffering such loss.
(b) Our liability to you is (further) limited to:
· the extent to which you or your End-User did not cause the liability to arise by reason of your or your End-User’s own negligence, breach of contract or other unlawful conduct;
· in any event, an amount equal to the Fees paid and payable in respect of the 12 months preceding the event that gave rise to the liability or, if this agreement was formed less than 12 months prior to that event, an amount equal to the Fees payable for the Initial Term extrapolated to a 12 month term if not already of 12 months duration; and
· in any event, an amount limited to, at our election, supplying the Service again or paying the cost of having the Service supplied again.
(c) The limitations provided for in paragraph (b) are to be read cumulatively and so as to arrive at the lowest liability.
(d) Despite paragraphs In relation to any matter occurring during a Complimentary Service Term that would otherwise give rise to any liability on us, we exclude that liability.
(e) To be clear, this clause 10 is subject to clause 12.5 (consumer rights).
(a) This agreement commences when you enter into it (see clause 12.1 – formation) and continues for the Complimentary Service Term and the Initial Term (as applicable).
(b) At the end of a Complimentary Service Term, this agreement renews automatically for the Initial Term. At the end of the Initial Term, this agreement renews automatically and indefinitely for successive Renewing Terms.
11.2 Your rights
(a) You may terminate this agreement by giving us notice, at least 30 days or third of the duration of the current term (whichever is less) in advance of the end of the current term (whether a Complimentary Service Term, the Initial Term or a Renewing Term), in writing or by using any other termination method notified to you by us from time to time.
(b) The termination will take effect from the end of the current term (whether a Complimentary Service Term, the Initial Term or a Renewing Term).
11.3 Our rights
(a) We may terminate this agreement at any time, with immediate effect and without notice if:
· we receive, pursuant to any statutory regime, an apparently bona fide notice from a third party alleging that you are infringing Intellectual Property or other rights;
· requested or directed to do so by any law enforcement, governmental or regulatory authority; or
· you breach clauses 5.1 (Kudos security), 6 (misuse of the Service) or 7.1 (additional warranties) of this agreement.
(b) We may terminate this agreement at any time by giving 14 days written notice if you have not paid all the Fees on time or otherwise in accordance with this agreement.
(c) We may terminate this agreement at any time by giving 30 days written notice.
(d) This agreement terminates automatically with immediate effect if we cease supplying the Service for a period of 45 consecutive days and we do not, during that time, notify you in writing explaining why the Service has ceased and stating that the Service will be resumed within 60 days of the first day that the Service ceased.
(e) You hereby relinquish your common law rights to terminate this agreement outside of the express terms of this agreement.
11.4 Consequences of termination
(a) When this agreement terminates, our supply to you of the Service will cease. When our supply to you of the Service ceases, you will no longer be able to access your account or any Subscriber Content.
(b) If we terminate this agreement pursuant to clause 11.3(c), we must refund you the amount of Fees you have already paid but that relate to a period of time occurring after the termination of this agreement. Otherwise, we are not obliged to refund or credit any Fees or other benefits unless failing to do so would be contrary to law.
By creating an account with us, you accept our offer to supply the Service to you on the terms of this agreement and thereby enter into this agreement.
(a) This agreement includes all other agreements, policies and rules relating to Kudos:
· referred to in this document, except agreements with third parties, including Third Party Software providers, End-Users and other third parties; or
· referring to this agreement in the documents embodying those other agreements, policies and rules (‘Other Agreements’), being documents authored by us and copies of which are made reasonably available to you by us,
and this agreement hereby incorporates the terms of all Other Agreements.
(b) To the extent there is any irreconcilable inconsistency between this agreement and any Other Agreement, the terms and conditions of this agreement prevail.
(c) Subject to clause 12.4(a) (variation), this agreement:
· governs all aspects of our supply and your use of the Service;
· is the only agreement between us and you in relation to Kudos and the Service; and
· as a document, embodies all the express terms of the agreement.
To be clear, this agreement supersedes or excludes all other agreements, arrangements, understandings and representations, written or oral, in relation to the Service.
(d) Insofar as they apply to you, you must comply with the terms of all Other Agreements.
12.3 Principles of interpretation of agreement
In this agreement, unless expressly to the contrary and as appropriate in the context:
(a) an expression in the plural may be read in the singular, and vice versa;
(b) any form of the word ‘include’ is not to be read exhaustively;
(c) in relation to an expression reflecting a present state of affairs, if the existence of an obligation is conditional on the existence of that state of affairs, the obligation survives only to the extent that that state of affairs exists during the term of this agreement;
(d) a reference to a thing or things includes a reference to any, some or all, or part or whole, of the thing or things; however, nothing in this paragraph means that partial performance of an obligation constitutes complete performance of the obligation;
(e) a reference to an act includes an omission and to the causing to be done of that act or omission, including the execution of legal documentation;
(f) a reference to a person doing an act includes a reference to the doing of the act on behalf of the person;
(g) a reference to one alternative does not, of itself, exclude any other alternative;
(h) an expression of the exercise of a right means the exercise of that right at the sole and absolute discretion of the relevant party;
(i) an expression prohibiting the doing of an act includes the prohibiting of:
· offering, attempting or purporting to do the act; or
· aiding, abetting, authorising, approving, contributing to, directing or materially being involved with the doing of the act;
(j) a list of rights is not to be read as an exhaustive list of rights;
(k) an expression of ownership includes the legal or beneficial ownership;
(l) a reference to an assignment or transfer of proprietary rights is a reference to the absolute and irrevocable assignment or transfer;
(m) a reference to an indemnity is a reference to compensation for loss, not prevention of loss;
(n) a reference to a ‘copy’ of a thing includes the original embodiment in material form of the thing;
(o) a reference to ‘this agreement’ includes a reference to the terms and conditions of this agreement, or this document, regardless of whether the terms and conditions of this agreement, or this document, are sometimes expressly referred to in this agreement; and
(p) a reference to a provision, clause or paragraph is a reference to a provision, clause or paragraph of this agreement.
(a) We may vary this agreement:
· at any time by amending the version of this document (ie this agreement) accessible by you via Kudos, but only if the amendment would not materially adversely affect your rights; or
· otherwise by using reasonable endeavours to give you sufficient notice such that if you exercise your right to terminate this agreement as a result of the variation, the termination will take effect before the notice period ends.
(b) You cannot vary this agreement.
12.5 Consumer rights & severability
(a) We acknowledge that:
· a guarantee that the Service will be supplied with due care and skill may apply and that certain agreements may contain certain terms, conditions, warranties or liabilities (whether by implication or otherwise) or may be subject to certain laws (‘Consumer Rights’);
· by operation of law, Consumer Rights cannot or must not be excluded, modified or limited; and
· to the extent that an agreement includes provisions that exclude, modify or limit Consumer Rights (or purports to do so) or that are unfair, then by operation of law (including the Australia Consumer Law 2010 (Cth)) those provisions may be unlawful, unenforceable or void.
(b) Despite anything else in this agreement, this agreement does not, nor purports to, exclude, modify or limit any Consumer Right.
(c) To the extent that any provision of this agreement would be unlawful, void or unenforceable for any reason (including by reason of the matters acknowledged in clause paragraph (a)), the other provisions of this agreement are valid and enforceable.
12.6 Additional waiver & release
(a) You unconditionally waive all right, title and interest you may have in any right, action or remedy against us arising from our exercise of any lawful discretion expressly provided in this agreement.
(b) Subject to this agreement, no relinquishing of rights, actions or remedies is effective unless it is in writing. To be clear, the failure of any party to exercise or enforce a right, action or remedy under this agreement, or otherwise, does not mean that they have relinquished that right, action or remedy.
12.7 Assignment & novation
(a) We may assign our rights under this agreement.
· acknowledge that we have given you notice in advance of any such assignment; and
· waive any right or remedy in relation to the giving of notice in relation to the assignment.
(c) We may novate our rights and obligations under this agreement.
(d) On condition that that novation will not materially adversely affect your interests, you:
· acknowledge that we have given you notice in advance of any such novation;
· consent to the novation; and
· waive any right or remedy in relation to the giving of notice or consent in relation to the novation.
(e) If for any reason your consent in advance is ineffective, you must give that consent promptly on request, unless to give the consent would be manifestly unreasonable.
(f) If a proposed assignment or novation will materially adversely affect your interests, then you must not unreasonably disapprove of or delay the assignment or withhold or delay your consent to the novation.
(g) Subject to the express terms of this agreement, you cannot assign, novate or otherwise transfer any of your rights or obligations under this agreement.
If we are required to give written notice to you under this agreement, we may do so by any reasonable means, including by email, by posting a notice on your account homepage or Kudos that you will only see next time you log into your account.
12.9 Governing law & jurisdiction
The laws of the state of Tasmania, Australia, govern this agreement. You acknowledge that the courts of Tasmania are an appropriate forum for the settlement of disputes. To the extent they come before any court, all disputes will be determined in the courts of Tasmania.