LEADS HOOK’S TERMS AND CONDITIONS
Welcome to Leads Hook!
These terms and conditions (Terms) govern your membership with Leads Hook, a product described on our Website at https://www.leadshook.com/ (Subscription). Your Subscription is for the tiered package, as determined by your use of the Subscription in a particular 30 day period during the Subscription Period, the details of which are set out in your Order, on the Website and in clause 4 (Subscription Tier).
By clicking the tick box below, paying for your Subscription or otherwise accepting the benefit of any part of the Solution, you agree to be bound by these Terms which form a binding contractual agreement between you or the company you represent (the ‘Client’, or ‘you’) and Blitz Brands Pty Ltd ACN 153 806 369 acting as trustee for The Nirvana Vittam Trust ABN 32 179 917 784 (‘Leads Hook’, ‘our’, ‘we’ or ‘us’). You represent and warrant that you have valid authority to enter into these Terms on behalf of any entity you may represent.
Please note that your Subscription will continue to renew indefinitely, and you will continue to incur Subscription Fees, unless you notify us that you want to cancel your Subscription in accordance with clause 5. Please ensure you contact us if you want to cancel your Subscription.
We may change these Terms at any time by notifying you, and your continued use of the Solution following such an update will represent an agreement by you to be bound by the Terms as amended.
In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.
Please read these terms and conditions carefully before agreeing to proceed with your Subscription.
1. THE SOLUTION
(a) By submitting an order for the purchase of a Subscription on the Website, or by responding to a quote from us, indicating that you would like us to provide any goods, software or services to you, including Additional Services (Order), you represent and warrant that:
(i) you have the legal capacity and are of sufficient age to enter into a binding contract with us; and
(ii) you are authorised to use the debit or credit card you provide with your Order.
(b) Submitting or agreeing to an Order constitutes your intention and offer to enter into these Terms.
1.2 YOUR SUBSCRIPTION AND THE SOLUTION
(a) (The Solution) The Solution includes the Software, the Hosted Services, the Support Services and any agreed Additional Services, to the extent described in your Subscription Tier.
(b) (Scope of Subscription) Your Subscription includes the benefits and limitations of your Subscription Tier as set out on our Website and in your Order (as may be amended from time to time by notice to you).
(a) (Accounts) To submit an Order or to use the Solution, you may be required to sign-up, register and receive an account through the Website (an Account).
(b) (Provide Information) As part of the Account registration process and as part of your continued use of the Website, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, bank account information, and other information as determined by us from time to time.
(c) (Warranty) You warrant that any information you give to us in the course of completing the Account registration process will always be accurate, honest, correct and up-to-date.
(d) (Acceptance) Once you complete the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and provide you with an Account.
(e) (Cancellation) We may, in our absolute discretion, suspend or cancel your Account for any reason, including for any failure by you to comply with these Terms.
1.4 THE SOFTWARE
(a) During the Subscription Period, we grant to you a non-exclusive, non-transferable licence to use the Software and Documentation.
(b) We may from time to time, in our absolute discretion, release enhancements to the Software, where “Enhancements” means any upgraded, improved, modified or new versions of the Software. Any Enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime.
(c) We will provide the Software in accordance with all applicable Laws and industry standards.
We will provide you with:
(a) Hosted Services and Support Services, as set out in the Order for your Subscription, or as agreed by us in writing from time to time; and
(b) additional services from time to time, as set out in any Order accepted by us (Additional Services).
2.2 SERVICE LEVELS
(a) We will use our best endeavours to provide the Services in accordance with the Support and Service Levels section in the relevant Order (if any).
(b) The Client will not receive any compensation for Scheduled Downtime in connection with the Solution other than in accordance with the terms of Support and Service Levels section in the relevant Order.
2.3 OUT OF SCOPE WORK
(a) If you request changes to Services which alter the scope set out in the relevant Order and require us to perform additional work or incur additional costs (Additional Work), you agree that an ‘additional work fee’ will be payable, in an amount agreed between you and us (both parties acting reasonably) (Additional Work Fee).
(b) Requests for Additional Work may affect our delivery schedules or timelines for Services.
(c) We will only be required to perform Additional Work, if:
(i) the parties agree in writing that we will perform the Additional Work, for the Additional Work Fee; and
(ii) you pay the Additional Work Fee, in accordance with clause 4.3.
2.4 CLIENT OBLIGATIONS
You agree to:
(a) provide us with all documentation, information and assistance reasonably required by us to perform the Services; and
(b) provide us with access to any third party or other accounts used by you (including log-in details and passwords), as is reasonably required by us to perform the Services.
2.5 CLIENT MATERIAL
(a) You warrant that all information, documentation and other Material you provide to us for the purpose of receiving the Services is complete, accurate and up-to-date.
(b) You release us from all liability in relation to any loss or damage arising out of or in connection with the Services, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by you being incomplete, inaccurate or out-of-date.
2.6 REVIEW OF SERVICES
If you review and approve of a Service, then that will constitute acceptance of responsibility for any errors and omissions within that Service (for example, in any copywriting we prepare for you). We will use our best efforts to ensure there are no such errors or omissions.
2.7 DELIVERY TIMES
(a) Delivery times set out in an Order in relation to Services are indicative only and are included as a guide for when the Services are expected to be performed, unless otherwise agreed in writing.
(b) We may, due to various reasons beyond our control, need to make reasonable adjustments to delivery times.
You acknowledge and agree that:
(a) any information provided to you as part of or in connection with the Solution or the Services is general in nature, may not be suitable for your circumstances and does not constitute financial, legal or any other kind of professional advice; and
(b) it is your responsibility to comply with applicable Laws relevant to your business, including industrial relations Laws and privacy Laws.
(a) If we provide Services to you for review, and that Service includes us incorporating your feedback into the Service by making revisions, you agree to provide this review within any timeline for feedback set out in the Order (Feedback Timeline).
(b) Before the end of the Feedback Timeline, you should review the relevant Service, and send your feedback or requested amendments to us, in one email (Feedback).
(c) We will implement Feedback, subject to any limitations in the Order as to the number of rounds of Feedback that are complimentary (Complimentary Rounds). Any feedback request in addition to the Complimentary Rounds, or outside the Feedback Timeline, will constitute Additional Work in accordance with clause 2.2.
(d) If we:
(i) receive a notice from you indicating that a Service has been accepted; or
(ii) have provided the Complimentary Rounds of Feedback in respect of a Service,
then that Service will be taken to have been accepted by you (Acceptance).
(e) If the Order refers to ‘major’ or ‘minor’ changes in relation to Feedback, what constitutes a major or minor change will be determined by us, in our sole discretion.
(f) You won’t be entitled to further revisions once a Service is Accepted.
2.10 COLLECTION NOTICE AND PRIVACY
3. SPECIFIC SERVICES
3.1 SALES DESIGN
To the extent Services involve designing sales funnels, nurture emails or the design of landing pages (Sales Design), you acknowledge and agree that:
(a) unless otherwise specified in an Order, we make no promise or guarantee regarding the effectiveness of any Sales Design, including as to conversion rates, but instead by using our professional skills we aim to deliver an incremental improvement in your results; and
(b) the effectiveness of the Sales Design may be affected by circumstances outside our control and we will not be liable for any loss or damage suffered by you arising from such circumstances. Such circumstances may include the platform that is used by us to provide the Sales Design changing its functionality in any way.
3.2 HOSTED SERVICES
If the Services include hosting any information or data (Hosted Services), the following terms apply unless otherwise specifically agreed in writing:
(a) (hosting location) You acknowledge and agree that we may use storage servers to host the Software through cloud-based services, and potentially other locations outside Australia.
(b) (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the hosting of the Software will be free from errors or defects or that the Software will be accessible or available at all times.
(c) (security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(d) (backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.
(e) (no retention after the Subscription) Without limiting clause 3.2(d) or clause 5, we have no responsibility to retain any User Data in respect of a Subscription after that Subscription’s termination or expiry, though we will take reasonable steps to retain User Data for 60 days after the date of termination or expiry.
3.3 SUPPORT SERVICES
If the Solution includes us providing you with support, where necessary to resolve technical issues with the Software (Support Services), the following terms apply unless otherwise specifically agreed in writing:
(a) We will take reasonable steps to provide Support Services where necessary. You must first endeavour to resolve any issues with the Software internally and we will not assist with issues that are beyond our reasonable control.
(b) You are responsible for all internal administration and managing access, including storing back-up passwords and assisting your Personnel to access and use the Software.
(c) You will not have any claim for delay to your access to the Software due to any failure or delay in Support Services.
3.4 DIGITAL MARKETING
If the Services include digital marketing services, the following conditions will apply unless otherwise agreed between the parties in writing:
(a) the Fees do not include digital marketing ad spend amounts, and you will be responsible for paying these fees directly to the relevant platform;
(b) if you provide us with your credit card, direct debit or other financial details for the purposes of making digital advertising payments on your behalf, we will keep these details confidential, and treat them as Confidential Information in accordance with clause 10; and
(c) you consent to us using your credit card, direct debit, or other financial details you provide to us, on your behalf to make payments for digital advertising services and any other related services reasonably necessary for us to perform the Services.
3.5 WEB DESIGN
If the Services include web development services, including building or customising websites, landing pages or online applications (Web Design), the following conditions will apply unless otherwise agreed between the parties in writing:
(a) we reserve the right to determine the choice of programming language(s) used in the Web Design;
(b) we will not provide any graphics for the Web Design, and if we require you to provide graphics, you must provide us with graphic files in an editable, high resolution, vector digital format; and
(c) we will only test mobile responsiveness on iOS Safari and Google Chrome on Android phones.
3.6 MENTORING SERVICES
If the Services include mentoring or similar services (Mentoring Services), the following conditions will apply unless otherwise agreed between the parties in writing:
(a) no information provided in connection with Mentoring Services is intended to be professional advice of any kind and it should not be relied on as such;
(b) the Mentoring Services contain general information only;
(c) we make no warranties in relation to the credentials or qualifications of the Personnel performing the Mentoring Services (Mentors);
(d) the information provided by Mentors may not be completely accurate or comprehensive;
(e) we make no warranties in relation to the information provided by Mentors being effective, fit for any particular purpose, suited to you or your business, or compliant with any particular Law;
(f) we make no warranties that the Mentoring Services will bring about any particular result for you, or that Mentors will cover any particular content or information; and
(g) you should obtain specific financial, legal, business and other professional advice before relying on the information provided in connection with Mentoring Services. By not seeking such advice, you accept the risk that the information provided by us may not meet your specific needs.
4. FEES AND PAYMENT
You agree to pay the Fees in the amounts, and at the times, set out in the relevant Order.
4.2 SUBSCRIPTION FEES
(a) (Subscription Fee) After your free trial period (which will extend for the free trial period set out in your Order (Free Trial Period)), you must pay subscription fees to us in the amounts and at the times specified in your Order, or as otherwise agreed in writing (Subscription Fees).
(b) (Payments every 30 days) Unless otherwise agreed in writing, Subscription Fees are due and payable every 30 days for the duration of the Subscription Period, with the first payment being due on the date immediately following your Free Trial Period (Fee Start Date) and subsequent payments being due every 30 days from the Fee Start Date (30 Day Payment Date), for the duration of the Subscription Period.
(c) (Types of Fees) Unless otherwise agreed in writing, the Subscription Fees contain two components:
(i) a flat fee (Flat Fee); and
(ii) an additional fee, in an amount payable for the applicable Subscription Tier (Usage Fee).
(d) (Flat Fees/Usage Fees) The Flat Fee and Usage Fee will be charged as follows for the duration of the Subscription Period, at our discretion:
(i) (Flat Fee – 30 Day charge in advance) the Flat Fee will be charged for every 30 day period, in advance, on the Fee Start Date and each subsequent 30 Day Payment Date; and
(ii) (Usage Fee – 30 Day charge in arrears) without limiting clause 4.2(d)(iii), the Usage Fee will be charged on each 30 Day Payment Date, in arrears for the previous month (if applicable); and
(e) (Usage Fee – Ad hoc charges) if Usage Fees are payable in accordance with the Client’s Subscription Tier, Leads Hook may charge Usage Fees at any time, without notice (Ad Hoc Charge). Ad Hoc Charges will be charged in arrears, for the period between the date of the charge and last 30 Day Payment Date or Ad Hoc Charge (Ad Hoc Charge Period). Leads Hook will determine the applicable Subscription Tier (and Usage Fee rate) by extrapolating from the Client’s use of the Subscription in the Ad Hoc Charge Period, and estimating what the Client’s use of the Subscription will be in the relevant 30 day period. If the Client’s subsequent actual use of the Subscription means that an Ad Hoc Charge is incorrect, then Leads Hook will deduct the difference between the charged amount and the correct amount from the next charge it makes under this clause 4. Leads Hook will generally make Ad Hoc Charges when the Client’s use of the Subscription is high, however this will not limit Leads Hook’s right to make Ad Hoc Charges at any time.
(f) (Changing Fees) We reserve the right, from time to time, to change the Subscription Fees. We will notify you in advance if we do this.
4.3 ADDITIONAL SERVICE FEES
(a) You must pay Fees for Additional Services on or before the due dates set out in the relevant Order (Due Date).
(b) If there is no Due Date set out in the Order in relation to a Fee, that Fee must be paid at the time set out in the relevant invoice issued by us.
(c) If an invoice issued by us does not set out a Due Date, then the relevant Fee will be due within 7 days from the date of issue of that invoice.
4.4 SUBSCRIPTION TIERS
(a) (Subscription Tier Criteria) Your use of the Solution will be assessed by us during the Subscription, to determine which Subscription Tier applies to your Subscription for each 30 day period and to calculate the applicable Usage Fee. This assessment will be based on the Subscription Tier criteria set out in your Order and on the Website, which may change from time to time. We will give you prior notice of changes to the Subscription Tier criteria.
(b) (Our Assessment) Unless otherwise agreed in writing, the Subscription Tier criteria are referable to the number of end user impressions you receive in relation to your use of the Software in a particular 30 day period during the Subscription Period (Number of Impressions). We measure the Number of Impressions using our internal analytics systems, and we will provide you with a breakdown of the Number of Impressions, on request. Our assessment of the Number of Impressions is final.
4.5 AUTOMATIC RECURRING BILLING
Your Subscription will continue to renew on an indefinite basis every 30 days, and you must pay Subscription Fees in respect of each 30 day period, unless you notify us within 14 days of the expiry of the then current 30 day period that you want to cancel your Subscription. Otherwise, we will continue to debit the Subscription Fees from your account for each 30 day period. We will not be required to pay any charge back amount if you fail to cancel your Subscription in accordance with this clause. By signing up for a recurring Subscription, you acknowledge and agree that your Subscription has an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to your cancellation of your Subscription. We may submit periodic charges for the Subscription Fees without further authorisation from you, until you provide prior written notice that you have terminated this authorisation or wish to change your payment method (and receipt of this is confirmed by us). Such notice will not affect charges submitted before we could reasonably act on such notice. To terminate your authorisation or change your payment method, please contact us via our Website.
4.6 LATE PAYMENTS
We reserve the right to suspend all or part of the Solution indefinitely if you fail to pay any Fees in accordance with this clause 4.
4.7 NO CHANGE OF MIND REFUNDS
Our Fees are non-refundable for change of mind.
Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.
4.9 CARD SURCHARGES
We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
5. CANCELLATION OF YOUR SUBSCRIPTION
(a) You may cancel your Subscription by notice to us. Your Subscription will end in the then current billing cycle, and you will be charged for that billing cycle.
(b) Your licence to the Solution under these Terms will last for the remainder of the then current billing cycle to ensure you have an opportunity to retrieve all data you may need from the Software. Once the then current billing cycle ends, we will have no responsibility to store or otherwise retain any Client Data and User Data (though we will take reasonable steps to retain Client Data and User Data for 60 days after the final date of your Subscription), and you release us in respect of any loss or damage which may arise out of us not retaining any Client Data or User Data or other Material beyond that point.
(c) Your access to the Solution will be revoked at the end of the relevant billing cycle in which you cancel your Subscription by notice to us.
(d) We may cancel your Subscription immediately at any time. If we cancel your Subscription under this clause 5(d), in circumstances where you have not breached any of these Terms, we will issue you with a refund of a pro rata amount of that 30 day period’s Subscription Fee, in proportion to the remainder of the 30 day period in which you will not have access to your Subscription.
6.1 YOUR OBLIGATIONS
(a) You must, and must ensure that all Users, comply with these Terms at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.
(b) You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:
(i) upload sensitive information or commercial secrets using the Software;
(ii) upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Software;
(iii) upload any material that is owned or copyrighted by a third party;
(iv) make copies of the Documentation or the Software;
(v) adapt, modify or tamper in any way with the Software;
(vi) remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation;
(vii) act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Solution
(viii) use the Software in a way which infringes the Intellectual Property Rights of any third party;
(ix) create derivative works from or translate the Software or Documentation;
(x) publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties;
(xi) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party;
(xii) decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code; or
(xiii) attempt to circumvent any technological protection mechanism or other security feature of the Software.
(c) If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Website.
6.2 USER OBLIGATIONS
You agree, and you must ensure that all Users agree:
(a) to comply with each of your obligations in these Terms;
(b) not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Solution;
(c) not to upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Solution
(d) to sign up for a new Solution account (User Account) in order to use the Solution;
(e) to not share your User Account with any other person;
(f) not to use the Software for any purposes other than the purpose of the Software, which is to design and generate decision trees, to be used by Users, for your marketing purposes (Purpose);
(g) not to integrate the Software with third party data or Software, or make additions or changes to the Software, (including by incorporating APIs into the Software) other than for the Purpose;
(h) to not share your User Account information (including your Account information), including log in details or passwords, with any other person and that any use of your User Account or Account by any person who is not the account holder is strictly prohibited You must immediately notify us of any unauthorised use of your User Account, Account, password or email, or any other breach or potential breach of the Solution’s security;
(i) to not use the Solution for any purpose other than for the purpose for which it was designed, including you must not use the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);
(j) not to use the Solution in a way which infringes the Intellectual Property Rights of any third party;
(k) not to act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Solution;
(l) you must not make any automated use of the Solution and you must not copy, reproduce, translate, adapt, vary or modify the Solution without our express written consent;
(m) that we may change any features of the Solution at any time on notice to you;
(n) that information given to you through the Software, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
(o) that we may cancel your, or any User’s, Account at any time if we consider, in our absolute discretion, that you or they are in breach of, or are likely to breach, this clause 6.
7. POSTED MATERIAL
By providing or posting any information, Material or other content in connection with the Software (Posted Material), you represent and warrant that, and must ensure that all Users make equivalent representations and warranties:
(a) you are authorised to provide the Posted Material (including by being authorised to provide any services that you represent you provide);
(b) the Posted Material is accurate and true at the time it is provided;
(c) any Posted Material which is in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;
(d) the Posted Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
(e) the Posted Material is free from any material that may harm our reputation or that of associated or interested parties;
(f) the Posted Material is not “passing off” of any product or service and does not constitute unfair competition;
(g) the Posted Material does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, confidential information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
(h) the Posted Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Solution or any network or system; and
(i) the Posted Material does not breach or infringe any applicable Laws.
(a) You grant, and must ensure that all Users grant, to us a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Posted Material in order for us to use, exploit or otherwise enjoy the benefit of such Posted Material.
(b) If it is determined that you retain moral rights (including rights of attribution or integrity) in any Posted Material, you forever release us from any and all claims that you could assert against us by virtue of any such moral rights, and you must ensure that all Users grant an equivalent release.
(c) You indemnify us against all damages, losses, costs and expenses incurred by us arising in connection with any third party claim that Posted Material infringes any third party’s Intellectual Property Rights.
(a) The Software acts as a passive conduit for the online distribution of Posted Material and has no obligation to screen Posted Material. However, we may, in our absolute discretion, review and remove any Posted Material from the Solution at any time without giving any explanation or justification for removing the Posted Material, including if we determine that the Posted Material infringes a third party’s Intellectual Property Rights, or is reasonably likely to.
(b) You agree that you are responsible for keeping and maintaining records of Posted Material.
8. INTELLECTUAL PROPERTY AND DATA
8.1 INFRINGING CONTENT ON THE SOFTWARE
(a) If you become aware of Posted Material, or other Material, on the Software that infringes the Intellectual Property Rights of any person, or is reasonably likely to, please contact us immediately on the ‘Copyright’ section of our Website, accessible here: [insert link]
(b) If you submit a complaint on our Website under clause 8.1(a):
(i) you warrant that the substance of the complaint is accurate, true and involves infringement of copyright;
(ii) you acknowledge and agree that groundless threats of legal proceedings in relation to copyright infringement may be prohibited under applicable law (for example, Australia’s Copyright Act 1968, or equivalent laws wherever you are located); and
(iii) you agree to indemnify Leads Hook in relation to any loss or damage that may arise in relation to your complaint, including in relation to any third party claim that the complaint contains a groundless threat.
8.2 SOFTWARE CONTENT INTELLECTUAL PROPERTY
(a) (Our ownership) We retain ownership of all materials provided to you throughout the course of your Subscription in connection with the Software (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Software Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us not expressly granted to you.
(b) (Licence to you) You are granted a licence to the Software Content and you may make a temporary electronic copy of the Software Content for the sole purpose of viewing it and using it for the purposes of the Software, being the generation of decision trees for marketing purposes. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish any Software Content without prior written consent from us or as otherwise permitted by Law.
8.3 CLIENT DATA AND USER DATA
Our Rights and Obligations
(a) You grant to us (and our Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use Client Data to the extent reasonably required to provide the Solution, and for our internal business purposes, including to improve the Solution and our other products and services, and including to apply machine learning and other analytics processes to the Client Data, to gain commercial insights and other associated learnings, and to improve the Solution, our business and our other products and services.
(b) We will:
(i) establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of Client Data;
(ii) not make any undocumented, unreported or authorised configuration changes to our systems or to the information security controls that secure Client Data, if those changes would materially decrease the protections afforded to Client Data; and
(iii) notify and keep you notified at all times of our current safety and security procedures and safeguards that are made from time to time.
(c) We reserve the right to remove any Client Data or User Data at any time, for any reason, including where we deem Client Data or User Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.
(d) Without limiting clause 8.3(c):
(i) we do not have a responsibility to retain Client Data or User Data, and we encourage you to make your own back ups of Client Data and User Data;
(ii) we will take reasonable steps to:
A. retain your Client Data for 60 days from the date the relevant data is created, for the duration of your Subscription; and
B. provide that Client Data to you, on request; and
(iii) your Client Data will most likely be deleted or anonymised after the 60 day period set out in clause 8.3(d)(ii) expires, so we encourage you to request any important Client Data within 60 days and keep your own records of it; and
(iv) you may remove Client Data from the Software on request to us (though we will have a right to retain anonymised versions of the Client Data).
Your Obligations and Grant of Licence to Us
(e) You are responsible for ensuring that:
(i) you share Client Data only with intended recipients; and
(ii) all Client Data is appropriate and not offensive.
(i) warrant that our use of Client Data will not infringe any third-party Intellectual Property Rights; and
(ii) indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
9. THIRD PARTY SOFTWARE, TERMS & CONDITIONS
9.1 THIRD PARTY TERMS
(a) You acknowledge and agree that the terms & conditions of third party suppliers of goods or services (Third Party Terms) may apply to your use of the Solution from time to time (including to any Additional Services), including the terms & conditions of Google Tag Manager, available here: https://www.google.com.au/analytics/terms/tag-manager/.
(b) You agree to any Third Party Terms applicable to third party goods and services that are used in providing the Solution to you, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
(c) We will endeavour to notify you of Third Party Terms that apply to the Solution or any Services, in which case:
(i) you must immediately notify us if you do not agree to such Third Party Terms; and
(ii) if we do not receive a notice in accordance with clause 9.1(c)(i), you will be taken to have accepted those Third Party Terms, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
(d) You acknowledge and agree that if you do not agree to any Third Party Terms, this may affect our ability to meet any agreed schedules for Service delivery.
9.2 THIRD PARTY SOFTWARE
(a) You acknowledge and agree that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. We cannot guarantee that integration processes between the Software and other software programs will be free from errors, defects or delay.
(b) You agree that we will not be liable for the functionality of any third party goods or services, including any third party software, or for the functionality of the Software if you integrate it with third party software, or change or augment the Software, including by making additions or changes to the Software code, and including by incorporating APIs into the Software.
(c) If you add third party software or software code to the Software, integrate the Software with third party software, or make any other changes to the Software, including the Software code (User Software Changes), then:
(i) you acknowledge and agree that User Software Changes can have adverse effects on the Solution, including the Software;
(ii) you will indemnify us in relation to any loss or damage that arises in connection with the User Software Changes;
(iii) we will not be liable for any failure in the Solution, to the extent such failure is caused or contributed to by a User Software Change;
(iv) we may require you to change or remove User Software Changes, at our discretion, and if we do so, you must act promptly;
(v) we may suspend your access to the Solution until you have changed or removed User Software Change; and/or
(vi) we may change or remove any User Software Change, in our absolute discretion. We will not be liable for loss of data or any other loss or damage you may suffer in relation to our amendment to, or removal of, any User Software Change.
10. CONFIDENTIALITY AND PRIVACY
(a) Except as contemplated by these Terms, a party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.
(c) Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information (Security Breaches).
(d) The notifying party will investigate each potential, actual or suspected Security Breach and assist the other party in connection with any related investigation.
11.1 WARRANTIES AND LIMITATIONS
(a) (Warranties) We warrant that:
(i) during the Subscription Period, the Software will perform substantially in accordance with the Documentation;
(ii) during the Subscription Period, the Solution will be provided as described to you in, and subject to, these Terms; and
(iii) to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.
(b) (Errors) We will correct any errors, bugs or defects in the Software which arise during the Subscription Period and which are notified to us by you, unless the errors, bugs or defects:
(i) result from the interaction of the Software with any other solution or computer hardware, software or services not approved in writing by us;
(ii) result from any misuse of the Software; or
(iii) result from the use of the Software by you other than in accordance with these Terms or the Documentation.
(c) (Service Limitations) The Solution is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that we cannot guarantee that:
(i) the Solution will be free from errors or defects;
(ii) the Solution will be accessible at all times;
(iii) messages sent through the Solution will be delivered promptly, or delivered at all;
(iv) information you receive or supply through the Solution will be secure or confidential; or
(v) any information provided through the Solution is accurate or true.
(d) (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these Terms are excluded.
(e) (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
11.2 LIMITATION OF LIABILITY
(a) (Limitation of liability) To the maximum extent permitted by applicable law, our maximum aggregate liability to you in respect of loss or damage sustained by you under or in connection with these Terms or the Solution is limited to the total Fees paid to us by you in the 6 months preceding the first event giving rise to the relevant liability.
(b) (Indemnity) You agree at all times to indemnify and hold harmless Leads Hook and its officers, employees and agents (“those indemnified“) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by you or you officers’, employees’ or agents’:
(i) breach of any of these Terms; or
(ii) negligent, fraudulent or criminal act or omission.
(c) (Consequential loss) We will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with these Terms or any goods or services provided by us, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
12. DISPUTES AND TERMINATION
12.1 DISPUTE RESOLUTION
(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
12.2 TERMINATION BY US
(a) We may terminate these Terms or any Subscription in whole or in part immediately by written notice to you, at any time for any reason, including if:
(i) you, a member of your Personnel, or a User, are in breach of any term of these Terms; or
(ii) you become subject to any form of insolvency or bankruptcy administration.
(b) If we terminate these Terms under this clause 12, in circumstances where you have not breached any of these Terms, we will issue you with a refund of a pro rata amount of the current 30 day period’s Subscription Fee, in proportion to the remainder of the 30 day period in which you will not have access to your Subscription.
12.3 TERMINATION BY CLIENT
You may terminate these Terms if:
(a) we have committed a material breach of these Terms and have failed to remedy the breach within 30 days’ of receipt of written notice from you; or
(b) we become subject to any form of insolvency or bankruptcy administration.
If you validly terminate in accordance with this clause 12, no further fees will be payable by you (unless later found that such termination was invalid).
13.1 ASSIGNMENT BY US
(a) Leads Hook may assign these Terms, along with all its rights and obligations under it, to any of its Related Companies at any time, on notice to you, and after such assignment all your rights and obligations under these Terms will be in relation to that Related Company.
(b) In this clause 13, “Related Company” in relation to an entity means:”
(i) any subsidiary of that entity;
(ii) any holding company of that entity; or
(iii) any associated entity to that entity.
(c) In this clause 13, “subsidiary“, “holding company” and “associated entity” all have the meanings given to them in the Corporations Act 2001.
13.2 ASSIGNMENT BY YOU
You may not assign, novate or otherwise transfer any of your rights or obligations under this agreement to any other party without Leads Hook’s prior written consent.
14. FORCE MAJEURE
(a) We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event.
(b) If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement.
(c) Subject to compliance with clause 12(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of us; or
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.
(a) A notice or other communication to a party under these Terms must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in the Order, or if no email address is specified in the Order, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
whichever is earlier.
16.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
16.4 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
16.6 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to United States currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
||has the meaning given in Schedule 1.
||means any data, document or other Material supplied by you to us under or in connection with these Terms or a Subscription, including any Intellectual Property Rights attaching to those materials.
||means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge.
||means all manuals, help files and other documents supplied by us to you relating to the Software, whether in electronic or hardcopy form.
||means the Subscription Fees, fees for Additional Services and any other fees the Client must pay in accordance with an Order.
||has the meaning given in clause 3.2.
|Intellectual Property Rights
||means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trademarks, designs, patents or other proprietary rights, Confidential Information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of these Terms, whether registered or unregistered.
||means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
||means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.
||means the Hosted Services, the Support Services, the Additional Services, and any other services we agree in writing to provide.
||means the software as described on our Website, and which is licenced to you in accordance with clauses 1.4 and 8.2.
||has the meaning set out in clause 8.2(a).
||includes the Software and the Services (and any other services to be provided to you under these Terms).
||has meaning given in the first paragraph of these Terms, and includes the limitations set out on the Website.
||has the meaning set out in clause 4.2(a) of these Terms.
||means the period of your Subscription to the Solution as agreed on the Website.
||has the meaning given in the first paragraph of these Terms.
||has the meaning given in clause 3.3.
||has the meaning given in the Support and Service Levels section of the relevant Order.
||means end users of the Solution, on your website or any other platform, and any other third party granted access to the Software by you.
||means files, data, materials or any other information, which is uploaded to the Software by you or any other User, including any Intellectual Property Rights attaching to those files, data, materials or any other information.
||means the website at the URL set out in the first paragraph of these Terms, and any other website operated by us in connection with the Solution.