3 Services offered under the agreement
4 Changes to this agreement and pricing
6 Our protection of Your Data – Security and data privacy
24 Relationship of the parties
User Agreement
‘Acceptable Use Policy’ – means Our policy published at Our Websites, governing the appropriate use of the service.
‘Privacy Policy’ – means Our policy published at Our Websites, explaining our policies towards you and reminding you of your obligations.
‘Service Level Agreement’ – means Our agreed service level to you published at Our Websites.
‘Confidential Information’ – means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably to be considered confidential based on its content, nature or the manner of its disclosure, but excluding:
(a) information already known to the receiving party at the time of disclosure by the other party.
(b) information developed independently by a party; and
(c) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement;
‘Hosting Providers’ – Providers of hardware and basic IT services.
‘GST’ – has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
'Intellectual property rights' means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
‘Non-CapableCo Services’ – means services or products offered by third parties which integrate with the Service Offerings.
‘Our Websites’ – means www.Capable.Co and other websites owned by us.
‘Hosting Providers’ – at June 2016 refers to Amazon web services only.
‘CapableCo’ – means CapableCo Pty Ltd.
‘Service Offerings’ – the services offered under this agreement.
‘Us, We, Our’ – means CapableCo Pty Ltd.
‘Users’ – means the Users of the Service Offerings.
‘Your Users’ – means the people You authorise to use the Service Offerings. Users may include Your employees, consultants, contractors, agents and third parties which whom you conduct business.
‘You, Your, Yourself’ – means you or the entity that you represent when accepting this Agreement, and Affiliates of that entity.
‘Your Data’ – means the data which You upload to the Service Offerings or which is created by Us using Your Data.
‘Your Details’ – includes personally identifiable information.
Unless the context requires otherwise:
(a) a reference to a person includes a corporation or any other legal entity;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
(d) the term ‘includes’ (or any similar term) means ‘includes without limitation’; and
(e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
2.1 Before agreeing you must read this agreement which is a binding contract. By clicking on the ‘accept’ button and/or ticking the checkbox, this agreement takes effect and You agree to be bound by, and become a party to, the terms set out in this agreement. Your use of Our Service Offerings is governed by the terms of this contract.
2.2 If you enter this agreement on behalf of an organisation (for example the company you work for) you represent to Us that you have the legal authority to act for that organisation and bind that organisation.
3.1 The services offered under this agreement (the ‘Service Offerings’) described on Our Websites.
3.2 We may change, discontinue or deprecate any or all of the Service Offerings, the features of the Service Offerings, and the functionality of the Service Offerings. Notice of these changes, if material, will be provided through the Service Offerings.
3.3 The plans offered by Us are described on Our Websites.
3.4 Service Offerings will be available pursuant to this agreement.
3.5 You agree that this contract is not contingent on any functionality which may be made available by Us at any time in the future (Future Functionality), whether or not We have made any comments regarding Future Functionality.
4.1 This Agreement may be modified at any time by Us. The modified Agreement will apply once posting or, if We notify You by email, on the date, if there is one, specified in the email. It is Your responsibility to check any of Our Websites regularly for updates to this Agreement. We will endeavour to notify you via the Service Offerings of any material changes to this Agreement. You agree to the modified terms of this Agreement if you continue to use the Service Offerings after the modified Agreement applies.
4.2 We may adjust pricing of the Service Offerings and will notify you of these adjustments by email.
5.1 It is Our responsibility to make commercially reasonable efforts to make the Service Offerings available at all times except for planned downtime or unavailability caused by circumstances beyond Our reasonable control. We will provide 24 hours of notice for planned downtimes occurring during office hours OR downtimes occurring after 11pm if they are expected to be possibly greater than 10 minutes; this notice will be provided through the Service Offerings.
5.2 It is Our responsibility to provide basic support to You with no additional charge. This support includes the information available on Our Websites. Additional support can be ordered through the facilities on Our Websites or by contacting Us.
5.3 It is Our responsibility to ensure the Service Offerings are in accordance with applicable laws including applicable Privacy laws.
5.4 It is Your responsibility that Your use of the Service Offerings are in accordance with applicable laws, the Capable Co Privacy Policy and CapableCo Acceptable Use Policy.
6.1 We will use appropriate administrative and technical safeguards for the protection of Your Data in relation to its security, confidentiality and integrity. We will provide reasonable and appropriate processes to assist you in securing Your Data against accidental, unwanted or unlawful loss, access or disclosure.
6.2 We will not modify Your Data. We will not disclose Your Data except as compelled by law. We will not access Your Data except if requested by You, or to provide the Service Offerings, or to prevent or resolve technical problems.
6.3 You may give You options where Your Data is stored. When you store your data with us, we will not move Your Data from the City/Region we initially store it in unless You consent, or the move is required by law.
6.4 You understand that Your Data and information about You is stored, by default, in Sydney Australia, though we anticipate that we will provide alternative options to future users in other regions.
6.5 We will collect information, including Your Details, relevant to the provision of the Service Offerings in accordance with Our Privacy Policy.
6.6 In the event that we discover that the Service Offerings are being used to store data in a way which breaches any relevant jurisdiction's laws, that will typically be considered to be a breach of the terms of use of the Service Offerings. We will then take reasonable action which will typically first include notification of concerns to You, but may in some cases include a termination of usage and/or notification to the relevant authorities.
7.1 You can use the Services Offerings in accordance with this agreement, our Acceptable Use Policy and Privacy Policy.
8.1 You agree that You are responsible for, and agree that You will, inform Your Users of relevant terms and conditions contained within this contract, including those relating to limitations of liability and privacy.
8.2 You are responsible for ensuring Your use, and Your Users’ use, of the Service Offerings complies with the obligations in this agreement, Our Acceptable Use Policy, Privacy Policy and all relevant laws and regulations.
8.3 You are responsible for the accuracy, quality and legality of Your Data and the methods and processes through which this data is obtained. We cannot and do not take responsibility for the data You decide to store on the Service Offerings. We do not examine the data You store. We do not check the data You store. In the event that You discover that Your use of the Service Offerings breaches the laws of a relevant jurisdiction, You agree that you are responsible, and that you will resolve the problems immediately.
8.4 You must use commercially reasonable efforts to prevent unauthorised access to the Service Offerings and You agree to notify Us without delay if there is unauthorised access or use.
8.5 You agree that you will not make the Service Offerings available to anyone other than Your Users. You agree that you will not sell, resell, rent or lease the Service Offerings to a party.
8.6 You must not use the Service Offerings to store or communicate defamatory or otherwise unlawful material. You must not violate third party privacy or property rights through the use of the Service Offerings.
8.7 You must not attempt, or in fact, interfere with the integrity or functioning of the Service Offerings, any third party data which is stored within Our systems, or any related systems or networks.
8.8 You are responsible for controlling access to, and use of, passwords.
8.9 You agree to pay all charges due.
8.10 You agree to ensuring all information given to Us remains current, accurate and complete, and promptly informing Us of any changes.
8.11 You must not provide false, inaccurate, or misleading information and must not act in a fraudulent matter.
8.12 You acknowledge that you are aware that We use Hosting Providers and Your Data will be stored by these providers.
8.13 You must ensure You make Yourself aware of where Your Data is stored and ensure that storage of Your Data in that location is not contravening any relevant laws, including privacy laws, in any relevant jurisdiction.
8.14 If you provide or share any information with other Users of Our Service Offerings, You must ensure that You make Yourself aware of where that data will be stored and ensure that the storage of the shared data in that location is not contravening any laws, including privacy laws, in any relevant jurisdiction.
9.1 You must create an account. You are responsible for everything undertaken under that account regardless of whether these are undertaken by You, Your employees or a third party, including contractors and agents. We are not responsible for unauthorised access to Your account except to the extent that this was caused by Our breach of this Agreement.
9.2 You must contact Us immediately if you know or consider that an unauthorised third party could be using Your account, or if account information may have been lost or stolen.
10.1 Third Parties may offer services or products which integrate with the Service Offerings (‘Non-CapableCo Services’). Your use of these services or products is solely at Your risk. Should the provider of Non-CapableCo Services cease providing the integration operability, or if the provider fails to update the Non-CapableCo Service when CapableCo is upgraded or changed in any other way, You will not be entitled to any refund, credit or compensation from Us.
10.2 Other Users may share templates, processes or scripts. Your use of these templates, processes or scripts is solely at Your risk. You will not be entitled to any refund, credit or compensation from Us for any reason in relation to these shared templates, processes or scripts.
10.3 If You install or enable Non-CapableCo Services for use with Our Service Offerings, You agree that Your Data may be made accessible to the providers of the Non-CapableCo Services as required. We will not be responsible for the activities of these Third Parties including, but not limited to, any disclosure, modification or deletion of Your Data.
11.1 Any reference to currency refers to US dollars unless otherwise specified.
11.2 The fees and charges are based on usage of the service .
11.3 Except as otherwise detailed in this agreement, payments made are non-refundable, and payment obligations cannot be cancelled.
11.4 Fees and charges are calculated and billed as described on Our Websites.
11.5 You are liable for all fees and charges and these must be paid in full.
11.6 We may increase or decrease fees and charges and may add new fees. We will give you at least 30 days’ notice of any increase to fees and charges. Current Pricing is available at our ‘Pricing’ page.
11.7 On late payments, We may charge You interest at the rate of 1.5% per month, or the highest rate permitted by law if less.
11.8 Receipts are available when payments are made via our 3rd party providers (e.g. PayPal).
11.9 If you dispute a charge made through the payment methods, You must contact Us and attempt to resolve the dispute in good faith before requesting a reversal of the charge or debit. If You do not to this, and the dispute is resolved in Our favour, You must pay the outstanding amount and reimburse Us for all Our costs and expenses incurred as a result of the chargeback. During the dispute we reserve the right to suspend your account.
12.1 You acknowledge that We retain all Intellectual Property Rights, other right, title and interest in the Service Offerings.
12.2 You must not permit a third party to access the Service Offerings except as permitted under this agreement.
12.3 You must not copy or reverse engineer the Service Offerings themselves, or the features, functions, or graphics of the Service Offerings.
12.4 We do not claim any rights, title or interests in Your Data or for the metadata created for Your Data. We have the continuing responsibility for the proper management of Your Data.
12.5 You own all right, title and interest in the templates, processes and scripts You create on the Service Offerings unless You allow these to be shared with other Users in which case you have no right, title or interest in these.
13.1 We will own all right, title and interest in and to any suggestions, requests, recommendations or feedback provided by You or Your Users. You and Your Users irrevocably assign the rights, titles and interests of these to Us.
13.2 Allowing the submission of suggestions does not, in any way, commit Us to adopting or developing any service, feature or function.
14.1 We reserve all right, title and interest in and to the Service Offerings. Under this agreement you are granted a limited, revocable, non-exclusive, non-transferrable license to access and use the services in accordance with this Agreement. This license is provided conditional on Your continued compliance with this Agreement and will terminate immediately and automatically if you do not comply with any part of this Agreement.
14.2 You, including Your Users, must not:
(a) attempt to modify the Service Offerings;
(b) reverse engineer, reverse assemble or reverse compile the Service Offerings;
(c) sub-license the Service Offerings to any party;
15.1 Your Confidential Information includes Your Data.
15.3 A party will not be in breach of clause 15.2 in circumstances where it is legally compelled to disclose the other party's confidential information.
15.4 Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party's Confidential Information.
15.5 Notwithstanding any other Confidentiality clauses, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
15.6 These Confidentiality clauses will survive the termination of this agreement.
16.1 We warrant We are the owner of the Service Offerings and We have the right and authority to grant this licence to You.
16.2 Except where expressly provided within this agreement, neither party makes any representations or warranties of any kind; this includes that We make no warranty, including implied warranty:
(a) that the Service Offerings will be uninterrupted, or error free;
(b) regarding the security, availability or privacy of Your Data or the Service Offerings;
(c) that any content will be secure and will not be lost or damaged.
(d) of satisfactory quality and fitness for a particular purpose.
16.3 You acknowledge that You are responsible for Your Data.
16.4 You acknowledge that the Service offerings are reliant upon third party Hosting Providers and Our service level may be affected by any issues by or with these providers.
16.5 The service level guarantees are set out in the Service Level Agreement.
16.6 You warrant that You have the legal power to enter this agreement, and that You have validly entered into this agreement.
16.7 If, at any time, We offer and you agree to trial products or services, You agree that these trial products and services are provided for evaluation purposes, and are not supported. You accept the risk that these trial products and services may be deficient in some respects.
16.8 We shall not be liable to you for direct, indirect, incidental, consequential, special or exemplary damages, including for loss of profits or goodwill even in the loss of damage was reasonably foreseeable or if We have been advised by you as to the possibility of such losses being incurred.
16.9 You represent and warrant that:
(a) you will pay for the Service Offerings;
(b) should you pay with a credit card, you are properly authorised to use the credit card to pay for the Service Offerings;
(c) You will not use the Service Offerings for any activity which is obscene, indecent, offensive or defamatory;
(d) You will not tamper with, hinder the operation of or make unauthorised modifications to the Service Offerings;
(e) You will not introduce any virus to or from the Service Offerings;
(f) You will not use any part of the System to send commercial electronic messages in contradiction of the Spam Act 2003 (Cth) or any other relevant law;
(g) You will keep all passwords, account names, tokens or log in identifications required to access the System secure and confidential;
(h) You will not upload onto the Service Offerings any material, or use the Service Offerings in any way:
i. which infringes the Intellectual Property Rights of any person; or
ii. which is unlawful or violates any law.
16.10 You agree to comply with all policies notified in writing by Us to You from time to time.
17.1 You agree to indemnify Us, including Our parent company and Our and its respective directors, officers, shareholders, employees, contractors, successors and agents against any loss, damage, proceeding and cost (including legal costs on an indemnity basis), including as a result of a third party claim against Us, arising from:
(a) Your use of the Service Offerings, including any data stored, transmitted, accessed, downloaded or used by You via the Service Offerings;
(b) Your breach of Warranties, representations and obligations under this Agreement;
(c) Your infringement of rights, including Intellectual Property Rights, of any person or entity; and
(d) Your breach of any of Our policies including the Acceptable Use Policy.
18.1 We shall not be liable for any circumstances affecting the performance of the Service Offerings which are caused by factors beyond Our reasonable control, including
(a) You not having such a level of competence to provide direction to Your Users in relation to the Service Offerings; and
(b) sub-contractors' acts or omissions.
18.2 To the extent permitted by applicable law, neither party will be liable to the other party for
(a) any loss of profit, business, contracts, revenue or anticipated savings; or
(b) any indirect or consequential loss;
however caused and whether or not the parties has been advised of the possibility of such damagers or the possibility of such losses being incurred.
18.3 Our total liability for damages sustained by you and any third party will be limited to, in total, to two times the annual charges for the Service Offerings.
19.1 Neither party will be liable for any delay or failure in relation to any obligation under this Agreement where the delay or failure results from any cause beyond Our reasonable control. This includes fire, flood, failure of utilities, storms, explosion, industrial action, or government requirement.
20.1 The term of this Agreement commences when You agree to these terms on any of Our Websites. The term of the Agreement will continue until:
(a) either party terminates the Agreement by advising the other party in writing in accordance with clause 21.1; or
(b) You close Your account;
21.2 We may suspend Your right to use the Service Offerings, or terminate this agreement immediately, if:
(a) You breach any of Our policies available on Our Websites;
(b) You use the Service Offerings in an unlawful or fraudulent way or for an unlawful or fraudulent purpose;
(c) You breach this agreement, including the payment terms; or
(d) You become insolvent or bankrupt.
21.3 The following clauses are intended to survive after termination of this Agreement:
(a) those relating to disclaimer, indemnity, limitation of liability, confidentiality, fees and payment of Service Offerings, return of Your Data, governing law; and
(b) any other clauses as set out in this Agreement.
21.4 On termination of this Agreement:
(a) You remain liable for any outstanding fees and charges;
(b) Your rights under this agreement terminate;
(c) We will not erase any of Your Data for 30 days after the termination;
(d) after paying any outstanding fees and charges, and after paying any applicable post-termination use fee, you may retrieve Your Data from the Service Offerings;
(e) You may choose to permanently remove all Your Data and associated metadata from Our computers.
(f) We will have no obligation to maintain Your Data or provide Your Data to You following the 30 day period specified in (c).
22.1 This agreement shall be governed by and construed according to the laws in force in the State of Queensland, Australia, and the parties agree to submit to the jurisdiction of courts and tribunals of that State.
23.1 All notices which are required to be given under this agreement shall be in writing.
23.2
Notices to You from Us shall be sent to our recorded
email address or may be posted on Our Websites. Your email addresses are those
which You provided to us. Us providing contact infoBilling-related
notices from Us will be sent to the billing contact designated by You; all
other notices will be addressed to the system administrator designated by You.
23.3 Notices to Us from You should be submitted via the form on the ‘Contact’ page on Our Websites.
23.4 Any notice delivered by email shall be deemed to have been received one business day after being sent unless the sender is aware the email could not be delivered. Any notice posted on Our Websites shall be deemed to have been received three business days after being posted or, in the case of changes to this agreement, as specified under the section 4 of this agreement – ‘Changes to this agreement and pricing’.
23.5 All communications and notices to be made or given pursuant to this Agreement must be in the English language.
24.1 The parties to this agreement are independent contractors without authority to bind the other party by contract or otherwise, and neither We nor Our personnel are agents or employees of Yours by virtue of this Agreement.
24.2 We acknowledge We have sole responsibility in relation to payment, if any, of superannuation, workers' compensation and taxes incidental to employment in respect of Our own personnel. We further acknowledge that neither We nor Our personnel have, pursuant to this Agreement, any entitlement from You in relation to any form of employment or related benefit.
25.1 There are no third-party beneficiaries to this Agreement.
26.1 Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.
27.1 Neither party shall assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of the other party.
28.1 This agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the software. No addition to or modification of any provision of this agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.
29.1 You agree that We can share Your Details (including personally identifiable information) with Our providers in order to provide You with the Service Offerings.
29.2 Our Privacy Policy sets Our further information regarding privacy. This is available on Our Websites.
29.3 Our Acceptable Use Policy sets Our further information regarding Acceptable Use. This is available on Our Websites.
29.4 Our Service Level Agreement sets our information regards our agreed service level to you. This is available at our Websites.