Governing access to and use of online services and software
1. Scope and Definitions
1.1 The following terms and conditions govern all access to and use of the Software.
1.2 In these terms and conditions:
“Password” means the code or codes required for a User to obtain access to or use of the Software;
“Software” means software and any other online services which we make available online and which we have authorised a User to access and use;
“User” means a person who is entitled to access or use the Software as a result of the payment of applicable fees to us by the User or a third party such as a User’s employer.
“we” “us” and “our” means Op2ma Pty Ltd (ACN 117 359 761) and includes its officers, employees and contractors;
2. General conditions of access and use
2.1 By accessing or attempting to access the Software, each User agrees to be bound by and to comply with these terms and conditions and any reasonable instructions or directions relating to access or use of the Software issued by us from time to time.
2.2 Only a User who has been granted a Password in accordance with applicable policies and procedures may access and use the Software. Each User must maintain the security and secrecy of their Password. In particular, a User must not tell anyone what their Password is and must take all necessary precautions to prevent unauthorised access or use. A User must not permit any other person to access or use the Software by using that User’s Password or otherwise.
2.3 Reasonable measures have been taken to prevent unauthorised access and use of the Software but the User acknowledges that notwithstanding these measures unauthorised access and use of the Software may occur.
2.4 A User must not (and must not permit anyone else to) contravene any laws of Australia or of any other country, engage in the mass distribution of unsolicited advertising or promotional material, attempt any “denial of service” attack, attempt to obtain unauthorised access to any computer systems or data, store or distribute defamatory material or material which incorporates executable instructions which produce an undesired result (such as software viruses) or material which constitutes sexual harassment, interfere with the use or enjoyment of internet access by other internet users or do or omit to do anything which may detrimentally affect the Software or related software, data, computer systems or business.
2.5 We do not monitor, control or verify the accuracy or completeness of data a User submits or receives and we are in no way responsible for the information or data accessed or transmitted by a User.
3. Copyright & confidentiality
3.1 We retain all copyright and other intellectual property rights in the Software and also retain or obtain all intellectual property rights with respect to any copies, reproductions, adaptations, additions to, enhancements, alterations, modifications or translations made of the Software from the moment of creation (including those created by the User).
3.2 Each User must give us notice of any infringement of our copyright or any of our other rights that comes to the User’s attention.
3.3 Each User must treat as confidential all information (other than information in the public domain) which is provided to the User in connection with access to and use of the Software including (without limitation) information relating to related software and systems, pricing and business operations. A User must not disclose such information to any other party without prior written permission. A User may only use such information to the extent necessary to enable the User to access and use the Software.
3.4 These confidentiality obligations shall survive and continue to binding upon the User, notwithstanding termination of rights to access and use the Software.
4. Warranties and liability
4.1 We warrant that access to and use of the Software by a User in accordance with these terms and the Proposal will not infringe the intellectual property rights of any third party. If such access or use infringes a third party’s intellectual property rights, we will either arrange a non-infringing work-around, obtain a licence at our cost permitting such access or use or suspend the availability of such access or use.
4.2 Unauthorised access and faults in computer networks can and do occur which may result in the interception, corruption, alteration, non-delivery, incorrect delivery or loss of information transmitted. Accordingly, we do not warrant that the Software will be available on a continuous or uninterrupted basis or that it will provide a secure or confidential means of communication, or that the data transmitted or received by a User using the Software will be accurate or virus free.
4.3 Transaction data generated as a result of the use of the Software by a User will be archived and kept intact for limited periods of time in accordance with then applicable policies and any agreed arrangements with us. We may use third party hosting services and you acknowledge and agree that transaction data may be stored in one or more locations outside Australia. A User will cease to be able to access and use data if it ceases to be entitled to access and use the Software. We can be engaged to provide a copy of historical data upon agreement to pay reasonable fees for this work.
4.4 We shall be under no liability to the User or any other party in respect of any loss or damage (including loss of profit or savings, loss of or damage to data or any indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the Software.
4.5 To the maximum extent permitted by law, all warranties (apart from the warranty in clause 4.1 above) whether express, implied, statutory or otherwise, relating in any way to these terms or to access and use of the Software are excluded. Where any term is implied in this agreement by law and cannot be excluded by express agreement, that term is included. Our liability for any breach of such an implied term is limited to resupplying the relevant services or paying the reasonable cost of having those services supplied again.
4.6 Each User must indemnify us and keep us indemnified against all loss, liability, costs and expenses (including without limitation, legal expenses on a solicitor-client basis) which we may incur as a direct or indirect result of access to or use of the Software by that User.
5. Additional matters
5.1 Each User’s access and use of the Software is subject to the laws of South Australia and each User irrevocably agrees that all legal proceedings arising in connection with these arrangements must be prosecuted in the Courts of South Australia.
5.2 If any provision of these terms is unlawful, void or for any reason unenforceable, then that provision shall be deemed severed from these terms and shall not affect the validity and enforceability of any remaining provisions.
5.3 These terms may be revised at any time by written notice and each User will be bound by such revisions from the date on which the revisions take effect.