|
SPHERITEC TERMS
AND CONDITIONS
These
terms and conditions comprise four separate sections as follows:
· General
Terms
These
terms apply to all end users and may be changed by us from time to time at our
discretion.
· Licence
Terms
All
our products and services are subject to their own application-specific licence
terms that apply to all end users of those products and services. The licence terms for all our products and
services are based on the generic form of licence below. Please refer to the relevant application-specific
licence terms (available on our web site) for any particular product or service
you may be interested in using. Those terms
will also incorporate (in particular) the relevant price and payment terms.
· Direct
Debit Terms
We
invoice end users electronically and collect payment under a direct debit
authority from their bank account or on their credit card. Direct debit arrangements are subject to
these terms.
· Evaluation
Account Terms
A
temporary facility is offered, subject to these terms, for you to evaluate
certain products and services free of charge before making a buying decision. This temporary facility converts
automatically to a standard licence (subject to our usual payment terms) at the
end of the evaluation period unless, before the end of that period, you notify
us (in accordance with these terms) that do not wish to proceed. There is a direct debit authority from you for
sums payable under the relevant application-specific licence terms in any case
where you do not give us notice in this way.
Please
read these terms and make sure you understand them before accepting them.
GENERAL TERMS
These
terms apply to all end users and may be changed by us from time to time at our
discretion.
These terms apply to the use of this web site including
the take-up of any product or service offered over it. In using this web site for these or any other
purposes, you agree to be bound by these terms. If you do not accept them, you may not take up
and product or service offered over it. These
terms must be read in conjunction with any other applicable terms and
conditions governing the use of this web site and any particular product or
service offered on it.
Terminology
The expressions ‘we’, ‘us’ and ‘our’ are a
reference to Spheritec Pty Ltd or any other relevant company within the same
group of companies as Spheritec Pty Ltd that may offer products or services.
References to services include the information
service referred to under ‘Information Service’ below as well as other
applications in the nature of a service from time to time provided or made
available by us.
The term ‘including’ means ‘including but not limited
to’.
The expression ‘terms’ means ‘terms and
conditions’.
Amendment
We reserve the right to amend these terms from time
to time. Amendments will be effective
immediately upon notification on this web site. Your continued use of the web site, and of any
of our products and services, following any such notification will represent an
agreement by you to be bound by the terms as amended.
Grant of Licence
The right for any end user to make use of any of
our products and services is governed by the terms of the relevant
application-specific licence and, in addition, by these terms. These terms have general application to all
our products and services.
Use of any of our products and services does not confer
any right, title or interest to or in any of them and is not to be taken as
evidencing any such right, title or interest.
All such right, title and interest are (as between you and us) are at
all times vested exclusively in us.
Membership
You must become a member in order to access the
information offered in the member services area of this web site.
The member services area of this web site is a
resource that is available to our channel partners, end users of our products
and services, and others wishing to become members – for instance to receive
information from us in relation to current and anticipated product and service
offerings.
Please register by completing your details as described
on this web site if you wish to become a member – you can do this by clicking
here.
We may at our discretion accept or reject any
application for membership but will, upon registering you as a member, notify
you of your end user ID and password and any other relevant log-in information.
You must not disclose any end user ID, password or
other log-in information to any person or entity.
You must ensure that your registration details are
true and accurate at all times and must notify us promptly of any change to your
registration details current from time to time.
We reserve the right to terminate your membership
at any time if you breach any of these terms.
You must not (whether knowingly or otherwise) use any
of our products and services:
·
for any
unlawful purpose or in any manner which may infringe or violate any third
parties rights; or
·
to
transmit or upload any harmful files or unsolicited e-mail messages.
You must:
·
use our products
and services in a manner that (according to standards of commercial behaviour
and fair dealing generally accepted by reputable persons carrying on business
in Australia and New Zealand) may reasonably be considered acceptable and in
accordance with their expected use; and
·
not
upload files for distribution via other electronic means or for any other use
that (according to such standards) may reasonably be considered unfair,
deceptive or illegal.
You, and you alone, are responsible for complying
with any law or regulatory requirement from time to time in force relating in any
way to the use, or otherwise, of any of our products and services.
You must make due and timely payment for our products
and services in the manner specified in or pursuant to the relevant
application-specific licence terms.
We may from time to time at our discretion adjust
prices for any of our products and services but will notify end users in
advance and allow them, if they wish to do so, to terminate their use of any of
our products and services concerned.
Cancellation or Termination for Error
We make all reasonable efforts to avoid errors but
may on occasion show incorrect price or other information in relation to
products and services due to typographical error or clerical oversight. In any such circumstances (notwithstanding acceptance
of any order or payment to us) we may at our discretion cancel any transaction
affected or terminate any agreement concerned.
We may do this at any time before delivery or supply of the relevant
product or service and will on doing so immediately refund any relevant payment
made to us.
Information Service
All information provided or made available by us
pursuant to these terms is provided in good faith and as information of a
general nature only. No such information
is in any circumstances provided as advice, and you should not in any circumstances
place any reliance upon it.
We derive our information from sources which we
believe to be accurate and up to date as at the date of publication but
nevertheless reserve the right to update this information at any time both
before and after publication.
We do not make or give any representation or
warranty that any information we provide is reliable, accurate or complete or
that your access to that information will be uninterrupted, timely or secure.
You should make your own enquiries and consider seeking
independent advice from relevant industry professionals before acting or
relying on any information or material which is provided or made available to
you pursuant to our information service.
You must use all information provided or made available by us lawful purposes
only.
Notices
Notices by either of us to the other should preferably be given by
e-mail as follows:
by us to you at
your e-mail address notified by you on first entering into this agreement
or other e-mail address from time to time current and duly notified to us;
and
by you to us at support@spheritec.com.
They
may also be given by post or fax as follows:
o
by us to you at your
registered office on public record from time to time; and
o
by you to us at PO box 6106, Buranda,
Queensland 4102, Australia;
and
o
by us to
you at any fax number from time to time published as your fax number on your
web site or (whether in hard copy or electronic form) on any business
stationery of yours; and
o
by you to us at +61-7-3010-7501.
Notices given in accordance with these requirements will be deemed
to have been duly delivered:
in
the case of e-mail: upon transmission (as evidenced by an appropriate
contemporary electronic record), if sent before 16:00 in the time zone of
the recipient, and otherwise at 09:00 on the next day in the time zone of
the recipient;
in
the case of post: five days after posting (as evidenced by a receipt from
the postal service); and
in
the case of fax: upon transmission (as evidenced by a transmission report
showing transmission in full of the relevant number of pages), if sent
before 16:00 in the time zone of the recipient, and otherwise at 09:00 on
the next day in the time zone of the recipient.
Notice periods are to be calculated from and
including the day of delivery (established in accordance with the above
provisions) to and including the last day of the notice period concerned.
Indemnity
You will indemnify us (and our related bodies
corporate and our respective officers, employees and agents) against all
actions, claims and demands (including the cost of defending or settling any
action, claim or demand), on a full indemnity basis, which may be instituted
against any of us arising out of any failure by you (or by any person, whether
or not with your authority, using your end user ID or password or other
relevant log-in information) to comply with these terms.
Disclaimer
This disclaimer does not attempt or purport to
exclude liability arising under statute if, and to the extent, such liability
cannot be lawfully excluded.
We do not make or give any representation or warranty that any of our products
or services will meet your particular requirements.
You should make your own enquiries and consider
seeking independent advice from relevant industry professionals before deciding
to whether or not any of our products and services will meet your particular
requirements.
We do not accept responsibility for any loss or damage
(however caused and whether or not involving negligence on our part or the part
of some other person or entity) which you may suffer, directly or indirectly,
in connection with your use of this or any linked web site, or any of our
products and services, including any such loss or damage arising out of your
use of or reliance on information contained in or accessed through this web
site.
Any condition or warranty which would otherwise be
implied into these terms is hereby excluded to the full extent allowed by law. Any condition or warranty that, by law, cannot
be excluded or, by law, cannot be limited in its application will apply on the
basis that our liability under it will be limited to one or more of the
following:
·
in any
case where the breach relates to products:
o
replacement
of the products or the supply of equivalent products;
o
repair of
the products;
o
payment
of the reasonable cost of replacing the products or of acquiring equivalent products;
or
o
payment
of the reasonable cost of having the goods repaired;
·
in any
case where the breach relates to services:
o
the
supplying of the services again; or
o
the
payment of the cost of having the services supplied again; and
·
in any
case where neither of these is allowed under applicable legislation, to the
maximum extent permitted by applicable legislation.
Specific Warnings
It is your responsibility, and yours alone, to
ensure that neither access to nor use of this web site (including our products
and services) or any linked web site:
·
exposes
you to the risk of malicious computer code (including viruses, worms, trojans
and spyware) or other forms of interference which may damage or compromise the
integrity of any computer system owned or used by you; or
·
is not
prohibited or restricted by any law or regulatory requirement to which you may
be subject.
You should make sure you are aware of and
understand the effect of, the exclusions and limitations of liability contained
in these terms – including those under ‘Information Service’ and ‘Disclaimer’
above.
Responsibility for the content of advertisements
appearing on this web site (including omissions from them and links to
advertisers' own web sites and any other web sites) rests solely with the
advertisers. The placement of any such
advertisements does not constitute a recommendation or endorsement by us of any
of the advertisers' products and services.
This web site and information contained on it (including in relation to our
products and services) have been prepared in accordance with Australian and New Zealand
law and may not satisfy the laws and regulatory requirements of any other
country. We do not warrant that this web
site or any such information will satisfy the laws of any other country. It is your responsibility to determine whether
they satisfy the laws and regulatory requirements of the jurisdiction in which
you reside (if that jurisdiction is not Australia
or New Zealand)
and, accordingly, whether you may not order any products or services from this
web site in compliance with them.
You should be aware that, despite all reasonable precautions on our part to
avoid any such risk, there is a risk of unauthorised access to or alteration of
your transmissions or data or of information contained on your computer system
or on this web site. We do not accept
responsibility or liability of any nature for any loss or damage which you may
suffer, directly or indirectly, in this regard.
Copyright
Copyright in this web site (including text,
graphics, logos, business names, icons, sound recordings and software) is owned
or licensed by us. Except as prescribed
under applicable legislation, and in accordance therewith, you may not in any
form or by any means:
adapt,
reproduce, store, distribute, print, display, perform, publish or create
derivative works from any part of this web site; or
commercialise
any information derived from or any product or service referred to in this
web site;
without our written permission in each case.
Trade Marks
This web site includes trade marks which may be registered
or subject to pending registration applications in certain jurisdictions. You must not use any such trade mark or any of
our intellectual property:
in
or as the whole or any part of any of your own trade marks or business
name or company name;
in
connection with activities, products or services which are not ours;
in a
manner which may be confusing, misleading or deceptive; or
in a
manner that may reasonably be considered as disparaging us or any of our
information, products and services (including this web site);
and must not authorise or assist any person to do
any of those things.
Restricted Use
Unless otherwise specifically authorised by us in
writing:
·
you are
provided with access to this web site only for your own specific use; and
·
you may
not sell information derived from this web site.
You are authorised to print a copy of any
information contained on this web site for your own specific use unless such
printing is expressly prohibited.
Linked Web Sites
This
web site may from time to time contain links to other web sites. We provide
those links for convenience only and may or may not (at our discretion)
maintain them or keep them current.
We are not responsible for the content of or any privacy practices associated
with any linked web sites.
Any
link to any other web site contained from time to time on this web site does
not constitute a recommendation or endorsement by us of the owner or operator
of any such other web site or of any of its material or information contained
or referred to on it (including any third web site linked to it) except as
otherwise expressly stated.
LICENCE TERMS
All
our products and services are subject to their own application-specific licence
terms that apply to all end users of those products and services. The licence terms for all our products and
services are based on the generic form of licence below. Please refer to the relevant
application-specific licence terms (available on our web site) for any
particular product or service you may be interested in using. Those terms will also incorporate (in
particular) the relevant price and payment terms.
End
User Licence Agreement
This agreement is between:
Spheritec
Pty Ltd ACN 115 851 477 – ‘we’ or ‘us’; and
The
end user – ‘you’ (ie the person or entity
intending to download [name of
application]TM).
Important Notice
[Name
of application]TM (‘the Software’) is made available by us for use
by you under, and subject to, the terms and conditions of this agreement.
You may not use the Software unless you enter into this agreement.
You should satisfy yourself that you understand and
are willing to accept the terms and conditions of this agreement before
entering into it. You enter into the agreement, and will be bound by its
terms and conditions, if you click on the ‘agreed’ icon at the end of this
agreement. Clicking on this icon will indicate:
that
you have read and understood; and
that
you approve and accept;
this agreement and its terms and conditions.
Please read it in full before you click on the ‘agreed’ icon.
Terms
and Conditions
1. Licence
·
We grant
you, and you accept, a non-exclusive, non-transferable licence to use the
Software in order to obtain computer data storage and retrieval services from
us or a third party provider authorised by us.
·
Your
licence is subject to the terms and conditions of this agreement.
·
You must
run the Software only an operating system approved by us. Approved
operating systems are shown on our web site and are subject to amendment by us
from time to time without prior notice.
·
You may
copy the Software on the hard drive or disc storage system within any personal
computer of yours but not otherwise.
·
Any copy
of the Software that you make must include this agreement as well as the
copyright notice and all other proprietary and intellectual property
designations contained in or on the Software.
2. Intellectual Property Rights
·
This
agreement does not give you any right, title or interest in or to the Software
but only with the right to use it in accordance with this agreement.
·
All
right, title, and interest in and to:
the Software (and all modifications, enhancements, and derivative
works);
all relevant intellectual property in respect of or associated
with the Software (including trade secrets, patents, trademarks and
copyrights, and rights of application therefor); and
all copies of the Software (as distinct from the media on which it
may be held);
are and remain at all times (as between you and us)
vested exclusively in us.
3. Software Code
·
The
Software is delivered and downloaded in object code only.
·
You have
no right to take possession of, or to hold or use, the source code for the
Software.
·
You may
not in any way reverse-compile or otherwise reverse-engineer the Software.
4. Prohibitions on Dealing with
the Software
You may
not in any way:
·
modify
the Software;
·
delete
any part of the Software;
·
change
any name or designation of any component of or file in the Software;
·
create
any derivative work employing the Software or any part of it;
·
sell,
distribute, or transmit the Software or any part of it; or
·
copy the
Software or any part of it except in accordance with this agreement.
5. Term and Termination
·
This
agreement continues unless and until terminated.
·
We may
terminate this agreement by written notice to you if at any time you breach any
of the terms or conditions of this agreement.
·
You may
terminate this agreement at any time by written notice received by us not less
than seven days before your regular billing date in which case we will not
issue any invoice for any period after the end of your then current billing
cycle.
·
All terms
and conditions of this agreement relating to disclaimers of warranties,
limitation of liabilities, remedies or damages, and our proprietary rights
survive termination of this agreement.
·
Upon
termination of this agreement all rights granted to you will cease and revert
to us.
·
You must
promptly upon termination of this agreement delete all copies of the Software
in your possession or custody or under your control or that you have made.
6. Exclusion of Warranty and Liability
·
The
Software is provided to you ‘as is’ without any warranty of any kind, express
or implied, including as to merchantable quality and fitness for purpose.
·
All
statutory and common law warranties and conditions are excluded to the full
extent allowed by law.
·
You
assume all risk associated with use of the Software including as to its quality
and performance.
·
We have
no liability for any loss or damage, direct or indirect, consequential or
otherwise, (including loss of profit, business interruption, loss of
information and third party claims) arising out of any use by you of the
Software or any inability on your part to use the Software, even if we have
been advised of or are otherwise aware of the possibility of any such loss or
damage.
7. Miscellaneous
·
In this
agreement the term ‘including’ means ‘including but not limited to’.
·
Any
notice provisions in the general terms from time to time published on our web
site apply in all respects for the purposes of this agreement.
·
We may at any time assign our rights to a subsidiary and require you to
enter into a new licence (in all material respects on the terms of this
agreement) with the subsidiary concerned to have effect from a date specified
by us on not less than thirty days’ prior written notice.
·
This agreement
is governed by, and to be construed in accordance with, Australian law.
·
You and
we submit to the jurisdiction of the Australian courts.
·
Any term
or condition of this agreement that may for any reason be ineffective will be
deemed severed from this agreement and will not affect the validity of any
other term or condition of this agreement. All other such terms and
conditions will continue in full force and effect.
·
This
agreement represents the whole agreement between you and us relating to the Software
to the exclusion of any other term or condition, express or implied, whether or
not the subject of any previous communication.
DIRECT DEBIT TERMS
We
invoice end users electronically and collect payment under a direct debit
authority from their bank account or on their credit card. Direct debit arrangements are subject to
these terms.
Our Commitment
to You
We will advise you by email of each monthly payment
processed. Where the due date falls on a non-business day, we will draw
the amount on the next business day.
We will not change the frequency of drawing
arrangements without your prior approval. The amount drawn from your
account will match your choice of products and services. All prices are
in the currency specified in the relevant application-specific licence terms.
Any currency conversion will be made and charged only
in accordance with the relevant application-specific licence terms.
We may immediately terminate your right to use any
of our products and services (not limited to any particular product or service
in respect of which payment is duly made) if full payment in cleared funds
(without deduction or set-off) of any sum due under the relevant
application-specific licence agreement (together with GST at the prevailing
rate) is not received by us on first drawing under this direct debit authority.
We will keep all information pertaining to your
nominated account at your financial institution private & confidential.
Your Right to Terminate
You may terminate our drawing rights under this direct
debit authority at any time by written notice received by us not less than seven
days before your regular billing date in which case we will not issue any
invoice for any period after the end of your then current billing cycle.
In any such case we may immediately terminate your
right to use any of our products and services to which your termination
relates.
Resolution of Drawings Apparently Made Incorrectly
You should take the matter up with us promptly if
you consider that any drawing under this direct debit authority has been made
incorrectly - ie not in accordance with the relevant application-specific
licence terms. Both you and we will use
all reasonable endeavours (and generally act in good faith) to resolve the
matter promptly and fairly to our mutual satisfaction.
Your Responsibilities
It is your responsibility to:
·
ensure
that sufficient funds are available (in cash or undrawn credit facilities as
appropriate) to meet each drawing on its due date;
·
ensure
that the direct debit authority given to us for us to draw on your nominated
account (whether involving your own funds or undrawn credit facilities) is
identical to the signing instruction held by the relevant bank or other financial
institution; and
·
to advise
us in writing (together, if applicable, with details of alternative payment
arrangements in compliance with the relevant application-specific terms) not
less than seven days before your regular billing date if your nominated account (in relation to which this direct debit
authority relates) is transferred or closed.
Notices
The
notice provisions in the general terms from time to time published on our web
site apply in all respects for the purposes of this direct debit authority.
EVALUATION ACCOUNT TERMS
A
temporary facility is offered, subject to these terms, for you to evaluate
certain products and services free of charge before making a buying
decision. This temporary facility
converts automatically to a standard licence (subject to our usual payment
terms) at the end of the evaluation period unless, before the end of that
period, you notify us (in accordance with these terms) that do not wish to
proceed. There is a direct debit
authority from you for sums payable under the relevant application-specific
licence terms in any case where you do not give us notice in this way.
Evaluation
Period
Evaluation is for a limited period only and may not
be available for all products and services.
The availability of any evaluation facility, and the length of
evaluation period, may vary from time to time and are as indicated for any
given product or service on our web site.
Use
During
the evaluation period you may use the product or service concerned free of
charge. Use is in each case subject to
the relevant application-specific licence terms (available on our web site)
except that no payment applies for the evaluation period.
Direct Debit Authority
In establishing an evaluation account you must give us a direct debit
authority on your credit card before you may use the product or service
concerned.
The direct debit terms shown on our web site apply for this purpose subject
to your right not to be charged for use during the evaluation period.
We will not act under this direct debit authority unless and until you
become a paying end user following the end of the evaluation period as
explained under ‘Expiry of Evaluation Period’ below.
You will become a paying end user at the end of the evaluation period
unless you take action as indicated under ‘Your Right Not to Proceed’ below.
Your Right Not to Proceed
At any time during the evaluation period you may
terminate the evaluation period, together with our drawing rights under this
direct debit authority, by written notice to us.
You must give notice before the end of the
evaluation period (as indicated on our web site for the product or service
concerned) in accordance with ‘Notices’ below.
For instance, if the evaluation period is seven
days, you must give us notice no later than the seventh day after the day on
which your evaluation account is first established.
In any case where you terminate the evaluation
period you will no longer have any right to use the product or service in
question.
Expiry
of Evaluation Period
On expiry of the evaluation period your
evaluation account will be automatically converted to a paying account, and you
will become a paying end user in the usual way, unless you give us notice as
explained under ‘You Right Not to Proceed’ above.
In any such case your use of the
product or service will be at the lowest (ie cheapest) level of subscription
then advertised on our web site. We will
collect payment (which may include an initial set-up charge as well as ongoing
periodic subscription charges) under your direct debit authority. The direct debit terms shown on our web site will
apply for this purpose. All charges
(including initial set-up and subscriptions) will be as advertised on our web
site.
Your use of the product or service in question will be subject to
the relevant application-specific licence terms shown on our web site.
Notices
You
must use e-mail (and not any other form of communication) to give us notice if
you decide to terminate the evaluation period.
The notice provisions in the general terms from time to time published
on our web site apply in all other respects to any notice you may give us to
terminate the evaluation period.
| 
|