The following definitions are applicable to these Terms and Conditions of Use:
- “Business Day” means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made;
- “Client” means you, together with the business or other entity for which the Services or any Licensed Products are obtained;
- “Client Data” means data and other information related to the Client’s use of the Licenced Products, including data entered into the Service by the Client and data imported from third party sources;
- “GST” means GST within the meaning of the GST Act;
- “GST Act” means A New Tax System (Goods and Services Tax) Act 1999;
- “Licence” means a non-transferable, non-exclusive and terminable licence to use the Service and/or Licensed Products granted to the Client by the Licensor;
- “Licence Fee” means the amount specified in the invoice issued by the Licensor for the Licence;
- “Licensed Products” includes the products and services of the Licensor which the Licensor licenses the Client to use;
- “Licensor” means Master Group (Aust.) Pty Ltd ACN 131 609 008 of PO Box 7138, Shenton Park Western Australia 6008;
- “Member” means a Client who is a holder of a perpetual licence to use specified Licensed Products and is required to pay the annual Membership Fee in order to receive the Membership Services;
- “Service” means the service specified in the invoice issued by the Licensor;
- “Subscriber” means a Client who is subscriber to the Service and required to pay the Licence Fee and annual Subscription Fee in order to receive the Subscription Services;
- “Subscription or Membership Fee” means the amount specified by the Licensor for Subscription or Membership Services as specified in the issued invoice;
- “Subscription or Membership Services” means the subscription or membership services specified in the invoice issued by the Licensor;
- “Term” means the period of 1 year (or such other period agreed in writing by the parties) commencing on the date the Client pays the Licence Fee, the first instalment of the Licence Fee or the first Membership Fee to the Licensor unless otherwise specified by the Licensor in writing to the Client and renewable for further 1 year periods in accordance with clause 2.2;
- “User Instructions” means the user instructions which describe the operation of the Service and contains instructions on the use of the Service supplied by the Licensor to the Client from time to time.
- one gender includes the others;
- the singular includes the plural and the plural includes the singular;
- a person includes a body corporate;
- a party includes the party’s executors, administrators, successors and permitted assigns;
- a statute, regulation or provision of a statute or regulation (“Statutory Provision”) includes:
- that Statutory Provision as amended or re-enacted from time to time; and
- a statute, regulation or provision enacted in replacement of that Statutory Provision; and
- money is to Australian dollars, unless otherwise stated.
- “Including” and similar expressions are not words of limitation.
- Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
- Headings are for convenience only and do not form part of these Terms and Conditions of Use or affect its interpretation.
- A provision of these Terms and Conditions of Use must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of these Terms and Conditions of Use or the inclusion of the provision in these Terms and Conditions of Use.
- If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.
- By accessing and using the Service, Licensed Products and/or the Subscription or Membership Services, the Client accepts these Terms and Conditions of Use, which take effect immediately on first access or use of the Service or payment of the Licence Fee or Membership Fee in accordance with clause 3, whichever occurs first. If the Terms and Conditions of Use are not accepted in full, the Client does not have permission to access the Service and/or the Subscription or Membership Services and therefore should cease using the Service and/or Licensed Products immediately.
- These Terms and Conditions of Use apply to Clients that purchased a licence to use the Licensed Products, the Service and/or the Subscription or Membership Services and/or paid a Licence Fee and/or Subscription or Membership Fee before, on or after 1 July 2013.
- If a party consists of more than one person, these Terms and Conditions of Use bind each of them separately and any 2 or more of them jointly.
- An obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly.
- A party which is a trustee is bound both personally and in its capacity as a trustee.
- Subject to payment of the Licence Fee and/or Subscription or Membership Fee in accordance with clause 3 and the terms of these Terms and Conditions of Use, the Licensor grants to the Client a Licence to use the Service and/or the Subscription or Membership Services for the Term as specified on the invoice issued by the Licensor to the Licensee.
- Upon expiration of the Term, the Client may renew the Licence for further periods of 1 year upon payment of the Subscription or Membership Fee to the Licensor in accordance with the terms specified by the Licensor and on the same terms and conditions as these Terms and Conditions of Use. If the Licence is not renewed, at the expiration of the Term, the Licence to use the Service will end, the Subscription or Membership Services will no longer be provided and the Client’s use of the Service will be deactivated.
5.Licence Fee and Subscription or Membership Fee
- In consideration of the grant of the Licence under clause 2, the Client must pay the Licence Fee and Subscription or Membership Fee to the Licensor in accordance with the terms specified by the Licensor.
- The Licence Fee, Subscription or Membership Fee and any other amounts payable pursuant to these Terms and Conditions of Use are exclusive of GST and all federal, state, local, municipal or other excise, sales, use, property, or similar taxes and fees now in force or enacted in the future.
- All such taxes and fees referred to in clause 3.2, other than the income taxes of the Licensor, will be paid by the Client. The Client will obtain and provide to the Licensor any certificate of exemption or similar document required to exempt any transaction under these Terms and Conditions of Use from sales tax, GST, use tax or other tax liability.
- The Client is responsible for payment of any stamp duty or other impost on the Licence.
6.Persons Using Service
- The Client agrees not to sublet the use of the Service or any Licensed Product to any person or sublet time on or charge for access to the Service or any Licensed Product unless the prior consent in writing of the Licensor has been obtained.
- The Client may use the Service and any Licensed Product only for its own legitimate and internal business purposes. The Client must not copy the Service or any Licensed Product.
- The Client must not use, reverse assemble, reverse compile, reverse engineer, disassemble, modify, transfer, change, add to, remove, deface, hack or otherwise interfere with the Service or any Licensed Product or any copy in whole or in part, except as expressly provided for in these Terms and Conditions of Use. Any other act involving using, reverse assembly, reverse compilation, copying or reproducing the Service or any Licensed Product is prohibited.
- Nothing in these Terms and Conditions of Use will be deemed to pass the property in the Service or any Licensed Product to the Client. The Licensor owns all the right, title and interest in the Service and all Licensed Products and related content including its website.
- The Client may not sub-license, assign or transfer its rights and obligations as specified in these Terms and Conditions of Use without the prior written consent of the Licensor.
10.Trade Secret, Security and Confidentiality
- The Client acknowledges that the Services and the Licensed Products are the subject of copyright and proprietary confidential information and that the Client will have no right, title or interest in the Service or any Licensed Product, except as expressed in these Terms and Conditions of Use.
- The Client will take all reasonable precautions to maintain the confidentiality of the Service and any Licensed Product, but not less than that employed to protect its own proprietary information.
- Without limiting the generality of clause 8.2, the Client will not make or permit any other person to make any disclosure of the design, structure or contents of the Service or any Licensed Product to any person except for displaying the operation of the Service or any Licensed Product on the Client’s computer.
- In consideration of the grant of the Licence, the Client covenants with the Licensor that it will not create or assist or procure any other party to create any other software which has the “look and feel” of the Service or any Licensed Product as that expression is generally understood in the software industry notwithstanding that such other software may not constitute a reproduction of the Service or any Licensed Product for the purpose of copyright law.
- The Client must keep confidential and secure all usernames and passwords required to access the Service or any Licensed Product and notify the Licensor immediately of any unauthorised use or other breach of confidentiality.
- Without limiting the generality of clause 15, the Client acknowledges that the obligations and covenants set forth in this clause 8 will survive termination, for whatever reason, of the Licence.
- The Client will not transfer or permit to be transferred the Service or any Licensed Product or any adaptation of it or part of it to any person unless authorised beforehand in writing by the Licensor.
12.Warranty of Performance
- The Licensor warrants that the Service will conform to the specifications contained in the User Instructions when delivered to the Client.
- The Client acknowledges, however, that errors may exist or occur in the Service and Licensed Products and that the Licensor will not be responsible for any loss or damage arising from any error of those products.
- This clause 10 contains the only warranties of the Service and the Licensed Products by the Licensor and any other warranty or representation whether in writing or oral, express or implied including any representation of fitness for a particular purpose given by any person acting on behalf of the Licensor is not binding on the Licensor. This clause does not purport to exclude any rights which the Licensee may have which are provided by statute and which cannot be excluded.
- No employee, agent or representative of the Licensor has the authority to bind the Licensor to any oral representation or warranty concerning the Service. Any written representation or warranty not contained in these Terms and Conditions of Use will not be enforceable by the Client.
13.Limitation of Liability
- Except as expressly stated in these Terms and Conditions of Use, the Licensor will not be liable for the quality, condition or description of the Service or any Licensed Product or for any type of loss or damage suffered or incurred by the Licensee, howsoever caused, arising out of the supply or use of the Service or any Licensed Product or the Licensor’s performance of its obligations under these Terms and Conditions of Use. In respect of any such loss or damage the Licensee agrees to hold harmless and indemnify the Licensor, its servants and agents.
- Without limiting the generality of clause 11.1, the Licensor will not be liable for any consequential loss including but not limited to labour costs, loss of goodwill or loss of profits.
- Any term or condition to the contrary of this clause 11 which is implied by statute or common law is to the extent permitted by law expressly excluded.
- To the extent permitted by law, the Licensor’s liability for breach of any implied warranty or condition that cannot be excluded is restricted at Licensor’s option to:
- the resupply of services or payment of the cost of resupply of services; or
- the replacement or repair of goods or payment of the cost of replacement or repair.
- The Client covenants to the Licensor that during the Term it will not without the Licensor’s prior written consent:
- offer to sell, lease or sub-licence the Service or any Licensed Product;
- copy nor permit copies to be made of the Licensed Product;
- break or permit others to break any copy product code of the Service;
- use or permit others to use the Licensed Product in a computer services bureau, network, time sharing, interactive cable television, multiple CPU or multiple user arrangement;
- modify or alter the Licensed Product in any manner;
- communicate or permit to be communicated the contents of the Licensed Product to persons other than the Client’s employees or authorised persons carrying out the work of Client;
- make telecommunication data transmissions of the Licensed Product; and
- make copies of the Licensed Product for purposes of incorporating any part of it into any other computer program not generated by the Service.
15.Termination by the Licensor
- Upon the happening of any of the following events the Licensor has the right to immediately terminate the Licence:
- the Client commits a breach of any of the covenants contained in clause 12;
- the Client attempts to assign its interest in the Service or any Licensed Product to any other company or person without the consent of the Licensor; or
- the Client discloses or copies any material, the Service or any Licensed Product or the Licensor’s confidential information without the consent of the Licensor.
16.Termination by the Client
- The Client may terminate the Licence on any anniversary of the commencement of the Term by giving the Licensor 30 days’ notice in writing of its decision to terminate the Licence. If the Client does so, it will not be entitled to any refund of the Licence Fee and Subscription or Membership Fee or any part thereof.
17.Effect of Termination
- Termination of the Licence will not relieve the Client from any expressed or implied obligation under these Terms and Conditions of Use.
- Termination under the express provisions of these Terms and Conditions of Use will be without prejudice to any rights and remedies as would have accrued to either the Licensor or the Client if such provisions had not been included in these Terms and Conditions of Use.
- If the Licence is not renewed in accordance with clause 2.2 or the Licence is otherwise terminated, the Licence to use the Service will end, the Subscription or Membership Services will no longer be provided, the Service will be deactivated and the Client Data may not be available or may only be available in a different format.
- The Law of Western Australia governs these Terms and Conditions of Use.
- The parties submit to the non-exclusive jurisdiction of the Courts of Western Australia and the Federal Court of Australia.
- The Client’s use of the Service may also be subject to other local, state, national or international laws.
- If anything in these Terms and Conditions of Use is unenforceable, illegal or void then it is severed and the rest of these Terms and Conditions of Use remains in force.
- An express or implied waiver by either party of any right or of any claim against the other party under these Terms and Conditions of Use will not constitute nor be deemed to be a waiver of any other right or of any other claim against that other party under these Terms and Conditions of Use.
- Amendment or Variation
- The Licensor reserves the right to amend or vary these Terms and Conditions of Use at any time by posting the changes on its website. The Client is responsible for regularly reviewing the website to obtain timely notice of such amendments or variations. The Client’s continued use of the Service or any Licensed Product after amendments or variations are made constitutes the Client’s acceptance of these Terms and Conditions of Use as modified by the amendments or variations.
- The Client acknowledges and agrees that Client Data may be stored on servers which are not owned or controlled by the Licensor and which may be located in multiple physical locations including in countries other than Australia. If so, Client Data will be transmitted to external servers in an encrypted form and the Licensor does not guarantee the Client Data against loss, compromise or destruction.
- The Client must maintain copies of all Client Data inputted into the Service. The Licensor expressly excludes liability for any loss of Client Data no matter how caused.
- The Licensor will not be liable for the accuracy, reliability or compatibility of the Client Data.
- The Client acknowledges and agrees that the Licensor may collect, hold and use Client Data to facilitate the development of updates and upgrades of the Service and the provision of updates and upgrades and other services to the Client.
- The Client acknowledges and agrees that the Licensor may use the Client Data for any lawful purpose, provided that Client Data may only be disclosed to third parties in a form that properly de-identifies the Client, for a purpose related to the provision of the Licence or with the consent of the Client.
- The Licensor will provide support and maintenance of the Service in accordance with the following terms:
- In response to a prompt error report by the Customer, the Licensor will use all reasonable endeavours to ensure that the Service continues to comply with its specifications during the Term by providing technical support via tickets logged on the Licensor’s helpdesk between the hours of 8am and 5pm WST from Monday to Friday and subject to availability.
Service support and maintenance does not include the following at any time:
- rectification of defects or errors resulting from any modification of the Service made by any person other than the Licensor;
- rectification of operating errors;
- rectification of a fault in the Customer’s computer equipment;
- rectification of a fault in third party software;
- rectification of a fault in internet browsers;
- rectification of a fault in internet delivery service;
- any modification of the Service which represents a departure from the descriptions and specifications contained in the knowledge base; and
- rectifications of errors or defects which are the subject of a warranty under another agreement.
- Any additional support and maintenance together with any other services relating to computer software or hardware which the Licensor may provide to the Customer will be charged to the Customer in accordance with the Subscriber terms or the Licensor’s then current published standard charge rate for such services.