ACCEPTANCE OF TERMS OF USE
1. These Terms of Use are the terms and conditions on which MobileApp(“we” or “us”) agrees to provide the Service to the customer named on the online registration form (“Customer”, “you” or “your”).
2. By registering for the Service on this Website, you accept this Agreement on behalf of the customer you name on the registration form when you click “I Accept” at the end of this Agreement. You personally represent that you have the power and authority to legally bind the customer named on the registration form to this Agreement.
3. If you do not accept this Agreement or you do not have the power and authority to legally bind the named customer, you must click “I Do Not Accept”. You will have no right to use the Service.
REMOTE ACCESS SERVICE
1. MobileApp grants the Customer a limited, non-exclusive, non-transferable right to use the Service for its internal business purposes only, subject to the terms and conditions of this Agreement
SUPPORT AND BACK-UPS
1. If you are experiencing technical problems with the Service, Website or App, you must:
a. make reasonable efforts to investigate and diagnose problems; and
b. check the on-line support documents on the Website,
before contacting MobileApp. If you still need technical help, you can email MobileApp at:
[email protected], however, MobileApp has no obligation to help you remedy your problem or to respond to your email within any timeframe.
2. While MobileApp intends to have the Service and Website available at all times, it gives no warranty or undertaking that the Service or Website will be so available. In addition, maintenance or development work may result in the Service or Website being unavailable.
3. MobileApp performs some back-ups daily. However, you are solely responsible for obtaining back-ups of any and all of your Data. If you want to restore or recover any of your Data from a MobileApp back-up, you must make a written request to MobileApp and agree to pay the applicable restoration fee, if that Data is available.
YOUR OBLIGATIONS
1. You warrant that you:
a. have provided complete, accurate and current information when registering for the Service;
b. are acquiring the Service and using the Website for the purposes of a business;
c. have obtained all necessary permissions and authorisations to use the Data, the App, the Service and the Website for the purposes to which you put them, including (without limitation) from any person to whom you provide or receive services, where those services involve the App, the Service or the Website; and
d. have satisfied yourself that the Service, the App and the Website are suitable for the purposes to which you put them.
2. You will ensure that any person to whom you provide or receive services involving the App, the Service or the Website complies with the terms of this Agreement as if they were a party to this Agreement as a Customer
3. You will:
a. comply, and ensure that any of your personnel who use the Service or Website will also comply, with this Agreement and all laws applicable to the Service, Website or your Data;
b. implement effective security measures to prevent unauthorised access to the Service, the Website or to our Network;
c. keep your login information, user names, session codes and passwords secret and secure;
d. immediately notify MobileApp of any suspected breach of security or unauthorised use of your login information, user names, session codes or passwords; and
e. fully co-operate and provide all assistance requested by MobileApp to enable us to provide you with the Service, any technical support and to investigate and manage any breach of security to the Network, the Website, the Service or the App.
4. You will not:
a. attempt to undermine the security or integrity of MobileApp’s Network or where the Service is provided by a third party, that third party’s computing systems or networks;
b. use, or misuse, the Service in any way which may impair the functionality of the Service, App, Website or other systems used to deliver the Service, or may impair the ability of any other user to use the Service, App or Website;
d. attempt to gain unauthorised access to any data, information or systems on or connected to the Network; or
e. transmit using the Service, App or Website:
i. any virus, trojan horse or any other file, code or software that may damage another person’s hardware, software or systems or may use or access the resources of another person’s hardware, software or system without their express knowledge and consent; or
j. any Data that may be offensive, illegal, defamatory, or that you do not have any legal right to use.
TERM AND TERMINATION
1. This Agreement will begin on the date that you register for the Service and, unless terminated earlier as provide in this clause , will automatically end when you have not used the Service for a period of 1 year (“Term”).
2. Either party may terminate this Agreement at any time during the Term by giving the other party 30 day’s prior written notice.
3. Without prejudice to any other right or remedy it may have, either party may immediately terminate this Agreement at any time by giving to the other party notice in writing if:
a. the other party is in material breach of this Agreement and the material breach is not remedied within 30 days of the other party receiving notice specifying the material breach and requiring its remedy;
b. the other party ceases or threatens to cease to carry on all or substantially all of its business or operations, is declared or becomes bankrupt or insolvent, is unable to pay its debts as they fall due, enters into a general assignment of its indebtedness or a scheme of arrangement or composition with its creditors, or takes or suffers any similar or analogous action in consequence of debt;
c. a trustee, manager, administrator, administrative receiver, receiver, inspector under any legislation or similar officer is appointed in respect of the whole or any part of the other party’s assets or business;
d. an order is made or a resolution is passed for the liquidation of the other party (other than voluntarily for the purpose of a solvent amalgamation or reconstruction);
e. the other party, being an individual:
i. dies or is physically incapacitated;
ii. becomes, or if any of the other party’s property becomes, the subject of an order made pursuant to the Protection of Personal and Property Rights Act 1988;
iii. becomes a mentally disordered person within the meaning of the Mental Health (Compulsory Assessment & Treatment) Act 1992;
iv. is convicted of any criminal offence punishable by imprisonment; or
v. is declared or becomes bankrupt or insolvent, or is unable to pay his or her debts as they fall due;
LIABILITY
1. You understand and agree that use of the App, the Website and Service by you and your personnel is at your sole risk. The Website and Service are provided by MobileApp on an “as is” and “as available” basis.
2. You acknowledges that, except as expressly provided in this Agreement, MobileApp gives no warranties, terms or conditions in relation to the subject matter of this Agreement, either express or implied, including but not limited to any warranties, terms or conditions relating to quality, fitness for any particular purpose or ability to achieve a particular result. You acknowledge that:
a. MobileApp does not warrant that Website or the Service will be available at all times or be secure or be error-free, as some of the systems used to provide the Website and the Service (including, without limitation, the Internet and telecommunications networks) are operated and controlled by third parties;
b. you do not enter into this Agreement in reliance on any representation, warranty, term or condition except as expressly provided in this Agreement; and
c. any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
3. In no event will MobileApp be liable (whether in contract, tort, including negligence, or otherwise) to you for:
a. loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of Data or wasted management or staff time; or
b. loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,arising directly or indirectly out of this Agreement, even if MobileApp had been advised of the possibility of such damages, and even if such loss, damage, cost or expense was reasonably foreseeable by MobileApp.
4. The maximum liability of MobileApp for any breach of this Agreement or otherwise relating to the App, the Service or the Website will not exceed $US100.00.
5. None of the exclusions or limitations set out in this Agreement will have the effect of limiting or excluding any form of liability to the extent such liability cannot be so limited or excluded under applicable law.
6. You may not bring any proceedings under or relating to this Agreement in relation to:
a. any act or omission of MobileApp; or
b. any breach by MobileApp of this Agreement,after the earlier of the following two dates:
c. the date falling one year after you first became aware of the relevant act, omission or breach; or
d. the date of the expiry of the applicable limitation period under relevant law.
7. You agree to indemnify and keep indemnified MobileApp and its directors, employees, contractors, agents and other personnel from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by MobileApp arising out of or in connection with:
a. your breach of this Agreement; or
b. your negligent act or omission.
INTELLECTUAL PROPERTY RIGHTS
1. You acknowledge and agree that MobileApp or its licensors are the owners of all IP Rights in the Website, Network, the Services, the App and all parts of them. You may not in any form or by any means copy, reproduce, adapt, store, perform, publish, compile, distribute or create any derivative works from, any part of the Website, the Service, the App or the Network.
2. You agree not to attempt to:
a. damage or interfere with the Website, the Network, the App, the Services or any part of them, in any way whatsoever; or
b. attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the App or any software, script or code comprising or underlying the App, the Service or the Website, or any part of them (except to the extent expressly permitted by applicable law).
3. You grant to MobileApp a worldwise, non-exclusive, royalty-free licence to use, copy, transmit and store your Data for the purpose of providing the Service to you and for MobileApp’s business purposes related to the provision of the Service, the App and the Website.
GENERAL
1. MobileApp will not be liable for any failure or delay to perform any of its obligations under this Agreement to the extent they are caused or contributed to by any event beyond MobileApp’s reasonable control.
2. This Agreement may be amended by MobileApp from time to time. Amendments will be effective immediately upon posting on the Website, but MobileApp will try to give registered users advance notice of any amendments by email. If you do not accept any amendment your sole and exclusive remedy is to terminate this Agreement under clause 6.2. Your continued use of the Service after 60 days from the date the amendment is posted will constitute your express acceptance of that amendment. You are responsible for ensuring you are familiar with the latest version of all parts of this Agreement.
3. No failure or delay by MobileApp in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, nor will any single or partial exercise preclude any other or further exercise of any right, power or privilege under this Agreement.
4. You may not assign, novate or transfer this Agreement or any part of it without the prior written consent of MobileApp. MobileApp may transfer this Agreement or any part of it to any person without your consent.
5. Nothing in this Agreement confers a benefit on any person who is not a party to this Agreement. MobileApp has no obligations to any person (other than you) in relation to this Agreement.
6. This Agreement contain the whole of the contract and understanding between the parties relating to the matters covered by it and supersede all prior representations, agreements, statements and understandings between the parties relating to those matters, whether verbal or in writing.
7. If any provision of this Agreement is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision will be deemed to be amended by the addition or deletion of wording necessary to remove the invalid, unenforceable or illegal part, but otherwise to retain the provision to the fullest extent permitted under applicable law.