1. Definitions and interpretation
In this Agreement the following expressions have the following meanings:
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday in Sydney , New South Wales .
(a) The .php file that enables You to access the Software via the Website;
(b) Any upgrades or new versions of the Service available for use via the Website.
Software means the computer software program known as "Formbay" accessible via the Service and for the avoidance of doubt, Software does not include any third party software.
Territory means Australia .
Website means any URL via which the hosted Software is being served by FormBay to You.
(a) A reference to a person includes any other entity recognised by law and vice versa.
(b) Headings, underlinings, marginal notes and indexes are only included for ease of reference and do not affect interpretation.
(c) A reference to any legislation or legislative provision includes any modifying, consolidating or replacing legislation or legislative provisions from time to time, and includes all regulations, rules and other statutory instruments issued under the legislation.
(f) References to months and years mean calendar months and years.
(g) Words denoting the singular number include the plural, and vice versa.
(h) Where any word or phrase is given a defined meaning any other grammatical form of that word or phrase has a corresponding meaning.
1.3 Severing any void term
2. Licence to use the Service
2.2 Any documents or reports generated by Your use of the Service must only be used for the purpose outlined in clause 2.1 .
3. Your obligations
3.1 You must:
(a) ensure that any data entered onto the Service by You is accurate and reliable;
(b) keep up-to-date with the operation and any updates to the Service;
(c) be aware of, agree to and abide by terms and conditions of the Service and all variations as notified from time to time;
(d) maintain the confidentiality of the Service;
(e) act professionally, and not do anything that will or that is likely to bring FormBay into disrepute;
(g) maintain the confidentiality of Your Service username and password, and accept full responsibility for all activities that occur under Your username. Where the correct username and password are provided, FormBay is entitled to assume that the access is by You, or authorised by You, and You indemnify FormBay completely against any claim of loss or damage that results from wrongful, fraudulent or other access (using the correct username or password) to the Service;
(h) make Your own enquiries into the laws applying in each jurisdiction in which You use the Service to ensure Your use of the Service is lawful; and
(i) prevent other people from accessing or using the Service.
3.2 You must not do, and You must not authorise or encourage any third party to do, any of the following:
(a) copy, redistribute or resell any element of the Service, or any object, item or material created by Your use of the Service, or permit or purport to permit any person to copy, redistribute or resell any element of the Service;
(b) use the Service for any illegal, fraudulent or inappropriate purpose;
(c) use the Service in any other way that violates any of the items as described in the list of ‘Prohibited Actions’ and ‘Spam’ as outlined in the Schedule;
(d) alter, remove or otherwise interfere with any permissions applied by another user;
(e) interfere with or construct Your own system to access the information on the Service; or
(f) act in any way that violates this Agreement.
3.3 You acknowledge and agree to each of the following:
(b) FormBay has the right to copy, use, manipulate or otherwise deal with any and all data provided to it by You as part of Your use of the Service, and You warrant that FormBay's use of the data pursuant to this clause does not infringe the rights of any third party;
(c) the Service may be subject to technical limitations such as network coverage and third party service availability;
(d) the Service is provided on an AS IS and AS AVAILABLE basis and FormBay makes no warranties or guarantees in respect of uptime for Your data, content or the Service;
(e) FormBay expressly assumes no responsibility for, without limitation, backing up Your data, damage to Your data. You are responsible for ensuring that you have any necessary back up documentation;
(f) due to the nature of the Service, FormBay does not promise that it will be continuous, accessible at all times or fault-free;
(g) FormBay reserves the right to modify, suspend or discontinue any part of the Service with or without notice at any time and without any liability to You; and
(h) You are solely responsible for the content of any documents that You upload to the Service and FormBay takes no responsibility for the accuracy of that content of these uploaded documents.
4.1 You must promptly notify FormBay of any actual or suspected breach of security related to the Services, including, but not limited to, unauthorised use of Your password or account.
4.2 You are responsible for the security of Your password, log-in or access details or other security measures. You are responsible for all electronic communications and other information entered through or under user IDs, passwords, access numbers or account numbers. You must not disclose any security measures to any other person and must keep those details confidential.
4.3 To help ensure the security of Your password or account, You must sign out from Your account at the end of each session.
5. Intellectual Property Rights
5.1 You acknowledge that FormBay owns all right, title and interest in and to the Service, including without limitation all intellectual property rights (the FormBay Rights), and the FormBay Rights are protected by intellectual property laws. Accordingly, You must not copy, reproduce, alter, modify, reverse engineer or create derivative works from the Service. You must not use any robot, spider, other automated device, or manual process to monitor any content from, hosted by or that is otherwise available using the Service. The FormBay Rights include rights to the Service developed and provided by FormBay, all software associated with the Service and the Brand Features (see below). The FormBay Rights do not include third-party content (such as Your data) used as part of Service.
5.2 Any use of FormBay’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features (Brand Features) by You must be only in connection with the Service and in compliance with the Agreement. You must not alter any Brand Features or copyright notices that are posted by FormBay in connection with the Service.
6. Disclosure of information
If disclosure of any information provided by You to FormBay, or by FormBay to You, is or may be required by law or regulatory authority, the party under the obligation must immediately notify the other party of that fact. If the other party objects to the disclosure on the basis that it is not required by law, the party must act in accordance with any reasonable written legal opinion provided to it by the other party, or the other party’s legal advisors.
7. Suspension of the Website
- FormBay may from time to time without notice suspend the Website or disconnect or deny you access to the Website during any technical failure, modification or maintenance involved in the Website. FormBay will use its reasonable endeavours to procure the resumption of the Website as soon as reasonably practicable.
8. Warranties and indemnity
8.1 You warrant to the best of Your knowledge that the materials and information provided to FormBay for the purposes of providing the Services:
(a) are true, correct and current;
(b) are able to be disclosed by You;
(c) does not infringe the rights of any third party;
(d) is able to be legally provided to FormBay and its disclosure does not breach any law or any obligation (whether of confidence or otherwise) owed to any person;
8.2 You acknowledge that You have not relied upon or been induced by any representation by FormBay and FormBay makes no warranty or representation as to:
(a) the results that may be obtained through the Service;
(b) the accuracy, reliability or otherwise of any information obtained through the Service; or
(c) the Service or network being uninterrupted, timely or error free.
9. Limitation of Liability
provided that FormBay does not exclude any such liability if it arises as a result of FormBay's failure to take reasonable steps to guard against and use its best endeavours to immediately rectify any of the matters referred to in this clause 9.1 of which FormBay is aware.
9.2 To the fullest extent permissible at law, FormBay is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in anyway connected with the provision of or failure to provide the Service or otherwise arising out of the Service, whether based on contract, negligence, strict liability or otherwise, even if FormBay has been advised of the possibility of damages.
9.4 FormBay gives no warranty in relation to the Service provided or supplied. Under no circumstances is FormBay or any of its carriers or suppliers liable or responsible in any way to You or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Service including its form, content and timeliness of delivery, including, without limitation, for and in relation to any of the following:
(a) any Service supplied to You;
(b) any delay in supply of the Service;
(c) any failure to supply the Service;
(d) any technical or non-technical failure; or
(e) any content or information accessed via the Service with or without Your authorisation.
(a) sent by prepaid ordinary mail to the address for services of the addressee in the Contract Details, if the address is in Australia and the Notice is sent from within Australia ;
(b) sent by email to the address stated in the Contract Details;
(c) sent by facsimile to the facsimile number of the addressee in the Contract Details;
(d) delivered to the address for service of the addressee in the Contract Details; or
(e) posted at the Website.
11.3 If the Notice is sent or delivered in a manner provided by clause 11.2 it must be treated as given to and received by the party to which it is addressed:
(a) if mailed from within Australia to an address in Australia , on the 2nd Business Day (at the address to which it is mailed) after mailing;
(c) if sent by facsimile before 5.00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or
(d) if otherwise delivered before 5.00pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.
11.4 Despite clause 11.3
(a) a facsimile is not treated as given or received unless at the end of the transmission the sender’s facsimile machine issues a report confirming the transmission of the number of pages in the Notice; and
(b) a facsimile is not treated as given or received if it is not received in full and in legible form and the addressee notifies the sender of that fact within 3 hours after the transmission ends or by 12 noon on the Business Day on which it would otherwise be treated as given and received, whichever is later.
11.5 If a Notice is served by a method which is provided by law but is not provided by clause 11.2 , and the service takes place after 5.00pm on a Business Day, or on a day that is not a Business Day, it must be treated as taking place on the next Business Day.
11.6 A Notice sent or delivered in a manner provided by clause 11.2 must be treated as validly given to and received by the party to which it is addressed even if:
11.7 A party may change its address for service or facsimile number by giving Notice of that change to each other party.
13.1 FormBay may vary these terms at any time by general notice on a page of the internet referred to on the home page of the Website.
13.2 These terms constitute the Agreement in its entirety and supersede prior agreements.
14. Governing Law
The law in New South Wales governs this Terms of Service and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales .
- · Send, upload, distribute or disseminate or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content.
- · Intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature.
- · Transmit content or use the Service that in the opinion of FormBay acting reasonably may be considered harmful to or inappropriate for minors.
- · Impersonate another person (via the use of an email address or account) or otherwise misrepresent Yourself or the source of any email or communication.
- · Use FormBay to violate the legal rights (such as rights of privacy and publicity) of others.
- · Promote, encourage or participate in illegal or unlawful activity.
- · Interfere without cause in the reasonable enjoyment by other FormBay Users of the Service.
- · Create multiple user accounts, create user accounts by automated means or otherwise engage in false, fraudulent, deceptive or misleading conduct in respect of user identity.
- · Sell, trade, resell, transfer or otherwise attempt to dispose of, or otherwise exploit any content on the Service for any unauthorised commercial purpose.
- · Modify, adapt, translate, or reverse engineer any portion of the Service
- · Remove any copyright, trade mark or other proprietary rights notices contained in or on the Service.
- · Reformat or frame any portion of any web page that is part of the Service.
- · Create third party software without the permission of FormBay.
- · Communicate with the Service through other users other than the FormBay approved users.
- · Misrepresent FormBay or the Service as being associated with content with another website, web service, software service, software or other service without FormBay’s prior permission.
You are prohibited from generating or facilitating unsolicited commercial communication ("spam"). Such activity includes, but is not limited to
- · sending communication in violation of Australia 's Spam Act 2003 or any other applicable anti-spam law;
- · imitating or impersonating another person or email address or FormBay's account, or creating false accounts for the purpose of sending spam;
- · data mining any web property (including FormBay) to find email addresses or accounts;
- · sending unauthorised mail or communication via open, third-party servers;
- · sending emails or communication to users who have requested to be removed from a mailing list or Your contact list;
- · selling, exchanging or distributing to a third party the email addresses of any person without such person's knowing and continued consent to such disclosure;
- · sending unsolicited emails or communications to significant numbers of email addresses or accounts belonging to individuals and/or entities with whom You have no pre-existing relationship.