sMod Tasmania Terms Of Service
These Terms of Service are provided with the intention to explain our obligations as a service provider and Your obligations as a customer. Please read them carefully, as you are required to accept these terms to use our services.
These Terms are binding on any use of the Service and apply to You from the time that sMod Tasmania provides You with access to the Service, or any order form to gain access to the Service is completed.
The sMod Tasmania Service will change over time. sMod Tasmania reserves the right to change these terms at any time, effective upon the posting of modified terms and sMod Tasmania will make every effort to communicate these changes to You via email and notification via the Website. sMod Tasmania reserves the right to change these terms at any time. It is Your obligation to ensure that You have read, understood and agree to the most recent terms available on the Website, and/or notified to you via email.
By registering to use the Service you acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service.
These Terms were last updated on 29 February 2016.
means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the Website (which sMod Tasmania may change from time to time on notice to You).
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
means any data inputted by You or with Your authority into the Website.
"Intellectual Property Right"
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
means the online marketing, hosting, domain registration and website design, construction and management services made available (as may be changed or updated from time to time by sMod Tasmania) via the Website.
means the Internet site at the domain www.smodtasmania.com.au or any other site operated by sMod Tasmania.
means sMod Tasmania Pty Ltd trading as sMod Tasmania, an Australian Privately held company limited by shares, and all current and future subsidiaries.
means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
means the Subscriber, and where the context permits, an Invited User. "Your" has a corresponding meaning.
means the SMS sending facility, Email sending facility, and any other service within the system that carries a per use fee.
means the usage threshold under which you are permitted to use the Service without incurring a charge. The free Tier limits as at the date of this revision of the terms is 10 SMS messages transmitted, 1 company, 1 user of that company, 2000 email messages transmitted. The free tier may be updated at any time at sMod Tasmania’s discretion.
2. USE OF SOFTWARE
sMod Tasmania grants You the right to access and use the Service via the Website with respect to the access rights either granted by you, or permitted by your subscription. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:
- the Subscriber determines who is an Invited User and what permissions within the Service that User has;
- the Subscriber is responsible for all Invited Users’ use of the Service; Including, but not limited to; the use of any Premium Service.
- the Subscriber controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
- if there is any dispute between a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any.
3. YOUR OBLIGATIONS
- Payment obligations: An invoice for the Access Fee will be issued each month on the first day of the month for the previous month’s access fee. The first invoice will include a pro-rata figure to normalise the subscription to calendar months. All invoices will include the Access Fee for the following period (one month) of use, as well as the Premium Services consumed and/or accessed during the previous month. sMod Tasmania will continue invoicing You monthly until this Agreement is terminated in accordance with clause 8. All sMod Tasmania invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 7 days of the invoice date. You are responsible for payment of all taxes and duties in addition to the Access Fee.
- Preferential pricing or discounts: You may from time to time be offered preferential pricing or discounts. Without prejudice to any other rights that sMod Tasmania may have under these Terms or at law, sMod Tasmania reserves the right to render invoices for the full (non-discounted) Access Fees due or suspend or terminate Your use of the Service in the event that any invoices for those Access Fees are not paid in full by the due date for payment.
- General obligations: You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by sMod Tasmania or condition posted on the Website. You may use the Service and Website on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.
- Bulk Email Services and SMS services consumed by your sMod Tasmania account: You must ensure that your use of this service is in compliance with the relevant laws relating to the privacy of your intended recipients. Sending bulk unsolicited emails and/or SMS messages is illegal in Australia, and in many other countries, You agree not to send bulk unsolicited emails. By using this service, You take complete and sole responsibility for any liability, be it financial, civil, or criminal relating to your use and/or misuse of the service, either in Australia, and/or in the country your recipients reside in. By using this service you agree to pay all usage charges as published on the website. sMod Tasmania reserves, and will execute it’s rights to suspend your account immediately upon suspicion of the sending of bulk unsolicited email and SMS messages, and it is your responsibility to prove that the sending is legitimate.
- Access conditions:
- You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify sMod Tasmania of any unauthorised use of Your passwords or any other breach of security and sMod Tasmania will reset Your password and You must take all other actions that sMod Tasmania reasonably deems necessary to maintain or enhance the security of sMod Tasmania's computing systems and networks and Your access to the Services.
- As a condition of these Terms, when accessing and using the Services, You must:
- not attempt to undermine the security or integrity of sMod Tasmania's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
- not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
- not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
- not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
- not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
- Usage Limitations: Use of the Service may be subject to limitations, including but not limited to monthly transactional use volumes against premium services, and the number of tickets You are permitted to make against sMod Tasmania’s support services.
- Communication Conditions: As a condition of these Terms, if You use any communication tools available through the Website (such as any message sending or Premium Service), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale unrelated to your business, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use). When You make any communication on the Website, You represent that You are permitted to make such communication. sMod Tasmania is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. sMod Tasmania does reserve the right to remove any communication at any time in its sole discretion.
- Indemnity. You indemnify sMod Tasmania against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to sMod Tasmania, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
4. CONFIDENTIALITY AND PRIVACY
- Confidentiality: Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
- Each party's obligations under this clause will survive termination of these Terms.
- The provisions of clauses 4.1.1 and 4.1.2 shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
5. INTELLECTUAL PROPERTY
- General: Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of sMod Tasmania (or its licensors).
- Ownership of Data: Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the sMod Tasmania Access Fee and any invoice for Premium Services or other services provided by sMod Tasmania. You grant sMod Tasmania a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
- Backup of Data: You must maintain copies of all Data inputted into the Service. sMod Tasmania adheres to best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. sMod Tasmania expressly excludes liability for any loss of Data no matter how caused.
- Third-party applications and your Data. If You enable third-party applications for use in conjunction with the Services, such as Xero, Paypal, or Google and any other third party you authorise, You acknowledge that sMod Tasmania may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. sMod Tasmania shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
6. WARRANTIES AND ACKNOWLEDGEMENTS
- Authority: You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
- Acknowledgement: You acknowledge that:
- You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).
- sMod Tasmania has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
- You are responsible for ensuring that You have the right to do so;
- You are responsible for authorising any person who is given access to information or Data, and you agree that sMod Tasmania has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
- You will indemnify sMod Tasmania against any claims or loss relating to:
- sMod Tasmania's refusal to provide any person access to Your information or Data in accordance with these Terms,
- sMod Tasmania’s making available information or Data to any person with Your authorisation.
- The provision of, access to, and use of, the Services is on an "as is " basis and at Your own risk.
- sMod Tasmania does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. sMod Tasmania is not in any way responsible for any such interference or prevention of Your access or use of the Services.
- sMod Tasmania is not your Accountant, marketing consultant, legal representative, or business advisor, please ensure you contact the relevant professional for any such advice. Any advisory videos or documents on the Website represent general advice, and independent, or specific advice should be sought directly from sMod Tasmania, or from a qualified Accountant or business advisor.
- It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
- You remain solely responsible for complying with all applicable privacy, accounting, consumer rights and other laws. It is Your responsibility to check that storage of and access to your Data via the Software and the Website will comply with laws applicable to you.
- No warranties: sMod Tasmania gives no warranty about the Services. Without limiting the foregoing, sMod Tasmania does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
- Consumer protection and guarantees: You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.
7. LIMITATION OF LIABILITY
- To the maximum extent permitted by law, sMod Tasmania excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
- If You suffer loss or damage as a result of sMod Tasmania's negligence or failure to comply with these Terms, any claim by You against sMod Tasmania arising from sMod Tasmania's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.
- If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
- Trial policy and free tier: When You first sign up for access to the Services You can evaluate the Services under the defined trial usage conditions, with no obligation to continue to use the Services, or pay for the services provided you do not exceed the free tier. If you exceed the free tier, You will be billed from the day You first added your Billing Details, or exceeded the free tier. If You choose not to continue using the Services, You may delete Your company in the Services.
- Prepaid Subscriptions and Deposits against services to be rendered sMod Tasmania will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription, or any deposits paid against any services to be rendered.
- No-fault termination: These Terms will continue for the period covered by the Access Fee paid or payable under clause 3.1. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms, and any Premium Service charges accrued.
- if you:
- breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 7 days after receiving notice of the breach if the breach is capable of being remedied;
- breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.4 or any payment of Access Fees that are more than 30 days overdue); or
- You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
- sMod Tasmania may take any or all of the following actions, at its sole discretion:
- Terminate this Agreement and Your use of the Services and the Website;
- Suspend for any definite or indefinite period of time, Your use of the Services and the Website;
- Suspend or terminate access to all or any Data.
- Take either of the actions in sub-clauses (d), (e) and (f) of this clause 8(4) in respect of any or all other persons whom You have authorised to have access to Your information or Data.
- For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to any of Your Companies (as defined at clause 3) is not made in full by the relevant due date, sMod Tasmania may: suspend or terminate Your use of the Service, the authority for all or any of Your Company’s and/or Authorised Users to use the Service, or Your rights of access to all or any Data.
- Accrued Rights: Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- immediately cease to use the Services and the Website.
- Expiry or termination: Clauses 3.1, 3.7, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms.
9. HELP DESK
- Technical Problems: In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting sMod Tasmania. If You still need technical help, please check the support provided online by sMod Tasmania on the Website or failing that email us at email@example.com
- Service availability: Whilst sMod Tasmania intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place. If for any reason sMod Tasmania has to interrupt the Services for longer periods than sMod Tasmania would normally expect, sMod Tasmania will use reasonable endeavours to publish in advance details of such activity on the Website.
- Waiver: If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
- Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
- No Assignment: You may not assign or transfer any rights to any other person without sMod Tasmania's prior written consent.
- Governing law and jurisdiction: Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of the state of Tasmania, Australia for all disputes arising out of or in connection with this Agreement.
- Severability: If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
- Notices: Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to sMod Tasmania must be sent to firstname.lastname@example.org or to any other email address notified by email to You by sMod Tasmania. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
- Rights of Third Parties: A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.