These Terms (“Terms”) constitute a legally binding agreement between ADL Software Pty Ltd ACN 605 421 805 (“ADL”, “we”, “us”, “our”) and the individual or company to whom we agree to supply our Products and Features (“you” or “your”). These Terms govern your use of and access to our Products and Features.
You acknowledge that we reserve the right to change these Terms at any time. We will provide notice of changes to these Terms on our website or via the Hutly Platform. Your continued use of our Products and Features after such notice has been posted constitutes your acceptance of the changes to our Terms. None of those changes are intended to have a retrospective effect.
1. INTERPRETATION AND DEFINITION
In these Terms, unless the context otherwise requires:
Business Day means a day other than a Saturday, Sunday or a public holiday in Melbourne, Victoria.
Hutly Platform means the software platform owned and operated by and Hutly Pty Ltd ACN 633 649 573.
Features means any additional features and functionalities that we provide in support of our Products.
Personal Information has the meaning given to that term in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth).
Products means any digital forms, reports, contracts, agreements, documents or content prepared or otherwise made available by us.
Subscription means your subscription to access and use our Products and Features.
Subscription Fee means the fees payable by you based on your Subscription Plan
Subscription Plan means the basis on which you can access and use our Products and Features during your Subscription Term (depending on the plan selected).
Subscription Term means the period of your Subscription in accordance with your Subscription Plan.
User means an individual designated by you as authorised to use and access our Products and Features under your Subscription Plan.
In the interpretation and application of these Terms, the following rules apply unless the context otherwise requires:
(a) words importing the singular shall include the plural and vice versa;
(b) words importing a gender include all other genders;
(c) the headings are used for convenience only and do not affect the interpretation of these Terms;
(d) other grammatical forms of defined words or expressions have corresponding meanings;
(e) a reference to a document includes the document as modified from time to time and any document replacing it;
(f) a reference to a party is to a party to these Terms and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
(g) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
(h) the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;
(i) the word "month" means calendar month and the word "year" means 12 months;
(j) the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
(k) a reference to a thing includes a part of that thing;
(l) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re‑enacted or replaced from time to time;
(m) wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)";
(n) money amounts are stated in Australian currency unless otherwise specified;
(o) a reference to time is to the time in Melbourne, Victoria, Australia;
(p) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body; and
(q) each of these Terms will be interpreted without disadvantage to the party who (or whose representative) drafted that provision.
2. Account Registration
2.1 You must register an account with us to purchase a Subscription. By registering an account with us, you represent and warrant that you:
(a) are of legal age and, where you represent a company, are authorised to act on behalf of your company; and
(b) agree to be bound by these Terms
3. You must provide us with accurate, current and complete information when registering an account with us and must notify us as soon as possible after any of the information provided to us changes or becomes inaccurate, incomplete or misleading. Where applicable, you permit us to access your information via the Hutly Platform to register your account.
3.1 If your Subscription Plan provides for multiple Users, you must appoint an account administrator (“Account Administrator”) to manage your Subscription and your Users, including without limitation, configuring administration settings, authorising Users, upgrading or downgrading your Subscription Plan, managing use of our Products and Features by your Users and accepting notices, disclosures and terms and conditions.
3.2 You are responsible for maintaining the confidentiality and security of your account (and any sub-accounts for your Users). We are not responsible for any losses arising from the unauthorised use of your account (and any sub-accounts for your Users). Please contact us if you suspect that your account (including any sub-accounts) has been compromised.
4.1 You must pay the Subscription Fees applicable to your Subscription Plan at the rates applicable at the beginning of your Subscription Term.
4.2 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with these Terms are exclusive of goods and service tax (“GST”). If GST is imposed on any supply made under or in accordance with these Terms which is not expressed to be inclusive of GST, then you, being the recipient of the taxable supply, must pay to us, being the party making the taxable supply, an amount equal to the GST payable on or for the taxable supply.
4.3 Your Subscription Term will start when we confirm receipt of your payment and will automatically renew for successive periods of equivalent duration to the immediately preceding Subscription Term unless either you or we cancel or terminate your Subscription prior to the expiry of the current Subscription Term.
4.4 If you do not wish for your Subscription to renew in accordance with clause 4.3, you must provide us with a notice of cancellation in writing or through another method we reasonably designate in advance. Terminating your Subscription means that you will not be charged for the next billing cycle, but (unless we are required to provide a refund because we are in breach of these Terms and such breach cannot be remedied) you will not receive any refunds or credits for amounts that have already been charged. All renewals will be charged at the then current rates.
4.5 During a Subscription Term, you may upgrade your existing Subscription by either:
(a) upgrading your Subscription Plan to access additional Features, additional quantities of Products or obtain additional licenses, sites, or to add Users; or
(b) upgrading to a longer Subscription Term (collectively, “Subscription Upgrades”).
4.6 We will charge you for any Subscription Upgrades at our then current rates, prorated for the remainder of the then current Subscription Term.
4.7 If you request to downgrade your Subscription Plan (for example by removing Products, Features and or shortening Subscription Term) (and we accept the same) the change will only take effect after your current Subscription Term ends.
4.8 If we do not receive payment authorisation or any authorisation is subsequently cancelled, we may immediately terminate or suspend your Subscription.
4.9 All Subscription Fees are payable in advance. Prices are current at time of display but are subject to change. We will give you at least [insert] days’ notice of any increase in your Subscription Fee, which will take effect at your next renewal date.
4.10 If through error we incorrectly state a price online or otherwise, we are not obliged to provide you with a Subscription at that price, even if we have mistakenly accepted your offer to buy a Subscription. If we notify you of a pricing error, you may cancel the Subscription and we will refund you any money paid, or you may pay the correct price and continue with your Subscription. If you do neither, we may cancel your Subscription and refund any money you have paid. We will always act in good faith in determining whether a genuine pricing error has occurred.
4.11 If you are entitled to a refund, we will credit that refund to the card or other payment method you used to submit payment, unless it has expired in which case we will contact you to arrange an alternative refund method.
4.13 We reserve the right to reject any order for Subscription at any time. Subscription Fees are not refundable except to the extent expressly set out in these terms and conditions.
5.1 Our Products and Features are licensed, not sold, to you. Subject to your continuous compliance with these Terms and any applicable law, we grant you a non-transferable, non-exclusive and non-sublicensable licence to access and use our Products and Features during your Subscription Term.
5.2 The nature and extent of your access to our Products and Features, including the number of Users who may access and use our Products and Features, shall be in accordance with your Subscription Plan. Unless your Subscription Plan allows it (or we have otherwise consented in writing) the sharing of one User account by more than one person is not permitted. You must supervise, control and accept all responsibility for the use of our Products and Features by your Users and ensure that your Users are made aware of these Terms when using our Products and Features.
5.3 The licence granted to you by us permits you to modify, complete, customise and use our Products and Features for internal business purposes, including to transmit our Products to counterparties of transactions or agreements to which you are one of the parties.
5.4 Except as expressly provided for in these Terms, you must not:
(a) use our Products and Features in any way that infringes the copyright or proprietary interest therein;
(b) remove or obscure any copyright notice, licence notice or other notices contained in our Products and Features; and
(c) modify, copy, use, reproduce, republish, on-sell, sub-licence, post, transmit or distribute our Products and Features in any way or otherwise make them available to any other person or organisation.
6. User Data
It is your responsibility to safeguard any data and information that you or any third party you are transacting with have included or generated while using our Products and Features. We are not liable for any loss of information or data or any computer or technical failure by you or a third party as a result of your use of or reliance on our Products and Features.
7.1 We may amend and update our Products and Features as we determine, from time to time.
7.2 It is your responsibility to check the version of any Product you are relying upon and to obtain an updated version if required.
8.1 We warrant that:
(a) we will use commercially reasonable efforts to keep our Products and Features free of any viruses, malware, or other harmful code; and
(b) we have all rights (including intellectual property rights) to permit you to access and use our Products and Features in accordance with these Terms.
8.2 While we take all reasonable care when producing the Products and Features, we do not warrant that our Products and Features are:
(b) suitable for your requirements or any particular use; or
(c) will be fully operable on your or any third party’s computer equipment.
8.3 Our Products and Features are provided for reference purposes only and are not to be used as a substitute for professional, legal or other expert advice. Your use of our Products and Features does not create a solicitor-client relationship between you and us. Any reliance on our Products and Features is at your own risk. You should obtain independent verification or advice before relying upon any Products and Features provided by us.
8.4 If you receive any communication from us, our agents, our employees or any other associated entity which is legal advice, you agree that it is not a communication authorised by us and you agree to immediately delete and disregard it.
8.5 You are permitted and encouraged to retain a copy of the Products as modified, completed or otherwise used by you or any third party you are transacting with for record-keeping.
9. Indemnity and Limitation of Liability
9.1 You acknowledge and agree that to the extent permitted by law by entering into these Terms, you do not do so on the basis of and do not rely on any representation, warranty or undertaking made by us or on our behalf, express or implied, which has not been stated expressly in these Terms.
9.2 To the maximum extent permitted by law:
(a) our Products and Features are provided on an “as is” and “as available” basis. Unless expressly stated to the contrary in these Terms, we exclude all representations, warranties and guarantees, whether express or implied, by statute, trade or otherwise;
(b) we are not liable under or in connection with these Terms for any actual, incidental, contingent, punitive, special or consequential damages or loss of profits or revenues arising directly or indirectly from or out of the use of any our Products and Features by you or any third party (including through our negligence);
(c) we exclude liability in respect of:
(i) mistakes, inaccuracies or incompleteness in any of our Products and Features;
(ii) any unauthorised access to or use of our Products and Features;
(iii) any modification (including the input of additional data or information) of Products and Features by you or any third-party; or
(iv) bugs, viruses, trojan horses or other harmful code which may be transmitted to or through Products and Features.
9.3 In any case, you acknowledge and agree that to the extent permitted by law our maximum liability for any and all claims arising under or in relation to these Terms will not exceed, in the aggregate, an amount equal to the Subscription Fee paid by you to us in the 12 month period before the claim, and our liability is reduced to the extent that you caused or contributed to the loss or damage.
9.4 Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on by the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement.
9.5 To the maximum extent permitted by law, our liability for a breach of a non-excludable guarantee referred to in the above clause is limited at our option to:
(a) in the case of goods, replacement or repair of the goods or payment of the cost of replacing or repairing the goods; or
(b) in the case of services, resupply of the services or payment of the cost of resupplying the services.
9.6 To the extent permitted by law, you agree to indemnify us from and against all actions, demands and proceedings whatsoever and howsoever arising which may be brought or made against us by any person who claims loss or damage, arising out of
(a) your use or reliance on Products and Features; and
(b) your breach of these Terms or any omission or failure to perform under these Terms.
10. Third party software
10.1 Third party facilities, including software programs, may be necessary or appropriate for access to or use of Products and Features. This includes accessing our Products and Features via the Hutly Platform. You acknowledge and agree that if you are accessing our Products and Features via third party facilities, your access to our Products and Features will be subject to any relevant third party licence or service agreement(s) in addition to these Terms. You agree to comply with any licence terms imposed by those third parties and indemnify us for any loss or damage arising from any breach thereof.
11. Support Desk
11.1 Our support desk (which may be provided by us or a third-party service provider) will be available on Business Days between the hours of 9:00am and 5:00pm (Eastern Standard Time and Daylight Savings Eastern Standard Time). During these hours of operation, you may contact our support desk for support limited to the operability of our Products and Features, but not for any legal or professional advice.
11.2 You acknowledge that any issues arising outside these times will not be addressed until our support desk is next attended. In providing remote technical support in accordance with these Terms, neither we nor our third-party service provider will collect data from your computer or device unless by your express permission and then only where the data is required for us or our third-party service provider to do in-house program debugging.
12.1 These Terms take effect upon commencement of your Subscription Term and will continue until the expiration or termination of your Subscription.
12.2 We may (at our election) suspend your access to any or all of our Products and Features or terminate your Subscription with immediate effect where you have breached any of these Terms and such breach is not remedied within 14 days’ written notice from us to do so, or the breach is not capable of remedy.
12.3 You may terminate your Subscription with immediate effect where we have breached any of these Terms and such breach is not remedied within 14 days’ notice from you to do so, or the breach is not capable of remedy.
12.4 In the event you terminate your Subscription due to our breach, we shall refund, on a prorated basis, any prepaid fees for your Subscription for the period beginning on the effective date of termination through the end of your then current Subscription Term.
12.5 In the event we terminate your Subscription due to a breach of these Terms by you, you will not receive any refund and must immediately pay any outstanding fees for the balance of your Subscription Term.
12.6 Upon expiry or termination of your Subscription for any reason, your access to our Products and Features will terminate immediately.
12.7 Without limitation, the sections of these Terms that are capable of surviving expiry or termination, including those entitled “Indemnity and Limitation of Liability”, “Termination”, “Intellectual Property Rights” and “Governing Law” shall survive any expiry or termination of these Terms.
13. Intellectual Property Rights
You acknowledge and agree that we are the absolute owner or the licensee of all right, title and interest including intellectual property rights (including copyright) in our platform, its software, data and content comprising the Products and Features. Except as stated in these Terms, we do not grant you any rights to ownership or use of any patents, copyright, trade secrets, trade marks or any other intellectual property rights in respect of the Products.
14. Force majeure
Neither party shall be liable for any delay in the performance of our obligations under these Terms if the delay is caused by circumstances (such as “force majeure”) beyond their reasonable control.
15. Personal Information
15.3 You declare that you are authorised to provide the Personal Information supplied to us in and have obtained any necessary consents to provide us with that information.
16. Waiver, Severance and Assignment
16.1 Our failure to take action with respect to any breach by you or others does not waive our rights to take action with respect to subsequent or similar breaches.
16.2 If any part of these Terms is found to be void, unlawful or unenforceable then that part will be deemed severed from the remainder of these Terms and will not affect the validity of the remaining provisions.
16.3 You may not assign your rights or delegate your duties under these Terms without our prior written consent.
16.4 In the event that we merge, sell or otherwise change control of our business or company, we reserve the right and you hereby consent to us transferring, assigning or sublicensing any of our rights and obligations under these Terms.
17. Governing Law
17.1 These Terms are governed by the laws in force in Victoria, Australia and the courts of Victoria, Australia have exclusive jurisdiction to decide any dispute arising under these Terms.
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