The HeadBox Solutions Pty Ltd Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of our Products - Services. The Product – Service agreement and the User Notice governs your access and use of the Product – Service (and not these Terms).
These Terms are between you and the HeadBox Solutions Pty Ltd which is the entity that owns or operates the Product that you are using or accessing via this website (“HeadBox Solutions Pty Ltd”, “we” or “us” or “Our”).
“You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that:
(i) you have full legal authority and agency to bind your employer or such entity to these Terms;
(ii) you have read and understand these Terms; and
(iii) you agree to these Terms on behalf of the entity that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you.
Please note that if you sign up for a product using an email address from your employer or another entity, then:
(a) you will be deemed to represent such party,
(b) your click to accept will bind your employer or that entity to these terms, and
(c) the word “you” in these terms will refer to your employer or that entity.
These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access a Product - Service, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms on behalf of yourself, your employer or other entity you are acting as agent for by clicking “I agree” (or similar button or checkbox) at the time you register for a Product - Service , create a Product account, or place an Product – Service agreement.
1. What these Terms cover.
1.1 Products - Services. These Terms govern our Products - Services, related Support, and Additional Services. These Terms include Our Policies (including our Privacy Policy), the Product-Specific Terms, and your Product – Service agreements.
1.2 Product-Specific Terms. All Products - Services and Services are subject to additional terms specific to that Product or Service as set forth in the Product-Service Specific Terms in the contract. By accessing or using a product covered by the Product-Service Specific Terms, you also agree to the Product-Service Specific Terms.
2. How Products - Services are administered.
2.1 Through the Products - Services, you may be able to specify certain Users as Administrators, who will have important rights and controls over your use of Products - Services and User Accounts. This may include making Product – Service agreements for Products – Services, creating, de-provisioning, monitoring or modifying User Accounts, and setting User usage permissions; and managing access to Your Data by Users or others. Without limiting Section 2.3 (Responsibility for Users), which fully applies to Administrators, you are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Products - Services for you.
2.2 You will provide all required disclosures to and will obtain and maintain all required consents from Users to allow: (i) Administrators to have the access described in these Terms and the Privacy Policy; and (ii) HeadBox Solutions Pty Ltd’s provision of the Products - Services to Administrators and Users. You will provide evidence of such consents upon our reasonable request.
2.3 Our Products - Services have various user onboarding flows. Some Products - Services require users to be designated by Administrators, some allow users to sign up for individual accounts and some may allow users to invite other users. You are responsible for understanding the settings and controls for each Product – Service that you use and for controlling who you allow to become a User. If payment is required for Users to use or access a Product - Service, then we are only required to provide the Products - Services to those Users for whom you have paid the applicable fees, and only such Users are permitted to access and use the Products - Services. Please note that you are responsible for the activities of all your Users, including Product – Service agreements and the terms they may place and how Users use Your Data, even if those Users are not from your organisation or domain. We may display our User Notice to Users at sign up, account creation and Product registration.
2.4 You must require that all Users keep their user identifications and passwords for the Products - Services strictly confidential and do not share such information with any unauthorised person. User identifications are granted to specified individual persons and may not be shared. You are responsible for any and all actions taken using User Accounts and passwords in your control, and you agree to immediately notify us of any unauthorised use of which you become aware.
2.5 The Products - Services are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all Users are at least 18 years old.
2.6 Domain Name Ownership. Where you are required to specify a domain for the operation of a Product – Service, we may verify that you own or control that domain. If you do not own or control the domain you specify, then we will refuse to provide you with the Products – Services until we have verified consent from the domain owner.
3. What's included in your Product - Service subscriptions; what are the restrictions.
3.1 Subject to these Terms and during the applicable Engagement Term, you may access and use the Products - Services for your own use in accordance with these Terms, the applicable Product - Service Documentation and agreement. This includes the right, as part of your authorised use of the Products - Services, to download and use the client software associated with the Products - Services. The rights granted to you in this Section 3.1 are non-exclusive, non sub-licensable and non-transferable.
3.2 During the Engagement Term, we will provide Support for the Products - Services in accordance with the Support Policy and the applicable Product – Service agreement.
3.3 Except as otherwise expressly permitted in these Terms, you will not without our consent: (a) reproduce, modify, adapt or create derivative works of the Products - Services; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Products - Services to a third party; (c) use the Products - Services for the benefit of any third party; (d) incorporate any Products - Services into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Products - Services intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public Application Programming Interfaces to any Products - Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Product; (h) use the Products - Services for competitive analysis or to build competitive Products - Services; (i) publicly disseminate information regarding the performance of the Products - Services; or (j) encourage or assist any third party to do any of the foregoing.
4. Our security and data privacy policies.
4.1 We implement and maintain physical, electronic, technical and administrative security measures designed to protect Your Data from unauthorised access, destruction, use, modification, or disclosure. We also maintain a compliance program that includes independent third-party certifications over data security.
4.2 We collect certain data and information about you and your Users in connection with your and your Users’ use of the Products - Services and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy, which you acknowledge and consent to.
4.3 We are always striving to improve the Products - Services. In order to do so, we use User information, analytics techniques and data mining to better understand how our Products - Services are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.
4.4 Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, but we will use commercially reasonable efforts to notify you of a disclosure order where legally permitted to do so. HeadBox Solutions Pty Ltd strives to balance your privacy rights with other legal requirements.
5. Terms that apply to Your Data.
5.1 You retain all right, title and interest in and to Your Data in the form submitted to the Cloud platforms and the Products - Services. Subject to these Terms, and solely to the extent necessary to provide the Products - Services to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. To the extent that reformatting Your Data for display in a Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, User Accounts, and your Products - Services with User permission in order to respond to your support requests.
5.2 You, and your use of Products – Services, (including use by your Users) must comply at all times with these Terms, the Acceptable Use Policy and all Laws.
You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the Cloud platforms and the Products - Services and to grant the rights granted to us in these Terms, and (ii) Your Data and its submission and use as you authorise in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Products - Services.
5.3 You will not submit to the Products - Services (or use the Products - Services to collect) any Sensitive Personal Information unless its processing is expressly supported as a feature of the applicable Product - Service in the applicable Documentation. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Personal Information submitted in violation of the foregoing.
5.4 You indemnify and hold harmless us (and our Affiliates, officers, directors, agents, contractors and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable legal counsel’s fees and costs) resulting from any claim arising from or related to (i) your breach of Section 2.2 (End User Consent) or any claims or disputes brought by your Users arising out of their use of Products - Services, (ii) your breach (or alleged breach) of Sections 5.2 (Your Data Compliance Obligations) or 5.3 (No Prohibited Sensitive Personal Information); or (iii) Your Materials.
5.5 We have no obligation to monitor any content uploaded to the Products - Services. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, we may (1) remove Your Data from the Products - Services or (2) suspend your access to the Products - Services. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Product - Service or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Products - Services as described in this Section 5.5.
6. Using third-party Products - Services with the Products - Services.
6.1 You (including your Users) may choose to use or procure other third party Products - Services or services in connection with the Products - Services, Your receipt or use of any third party Products - Services or services (and the third parties’ use of any of Your Data) is subject to a separate agreement between you and the third party provider. If you enable or use third party products or services with the Products - Services we may allow the third party providers to access or use Your Data as required for the operation of their products or services with the Products - Services. This may include transmitting, transferring, modifying or deleting Your Data, or storing Your Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of Your Data is subject to the applicable agreement between you and such third party provider. We are not responsible for any access to or use of Your Data by third party providers or their products or services, or for the security or privacy practices of any third party provider or its products or services. You are solely responsible for your decision to permit any third party provider or third party product or service to use Your Data. It is your responsibility to carefully review the agreement between you and the third party provider, as provided by the applicable third party provider. We disclaim all liability and responsibility for any third party products - services or services (whether support, availability, security or otherwise) or for the acts or omissions of any third party providers or vendors.
7. Using HeadBox Solutions Pty Ltd software.
7.1 Access to any of our Application Programming Interfaces, Software Development Kits or other HeadBox Solutions Pty Ltd Products - Services is not covered by these terms and is a separate agreement.
8. Additional Services.
8.1 Subject to these Terms, you may acquire additional Products – Services from HeadBox Solutions Pty Ltd that we will provide to you pursuant to an applicable separate contract. Additional Products and Services are subject to additional policies and terms as specified by us, specific to the Product – Service being contracted.
8.2 We will retain all right, title and interest in and to Products – Services and any information, data, market trends or other outcomes resulting from the use of our Products - Services.
8.3 You agree to provide us with reasonable access to all information as reasonably necessary for our provision of additional Products - Services. If you do not provide us with timely access to information, our performance of Products -Services will be excused until you do so. You retain your rights in your data and information, subject to our ownership of any Products – Services and any term of this agreement contrary to that ownership,. We will use information solely for purposes of performing the additional Products - Services. You represent and warrant that you have all necessary rights in your information to provide them to us for such purposes.
9. Billing and payment.
9.1 All Product – Services fees and commissions are specified in the individual Product – Service agreement and are due when specified in specific Product – Service agreement with you.
9.2 You will pay all fees and commissions in accordance with each Product – Service agreement, by the due dates and in the currency specified in the agreement. If a Purchaser Order (“PO”) number is required in order for an invoice to be paid, then you must provide such PO number to HeadBox Solutions Pty Ltd by emailing the PO number to marketing@headboxaustralia.com. For any services provided at any non-HeadBox Solutions Pty Ltd location, unless otherwise specified in your Product – Service agreement, you will reimburse us for our pre-approved travel, accommodation and meal expenses, which we may charge as incurred. Other than as expressly set forth in Section 10 (Our return policy), 18.3 (Warranty Remedy), Section 20 (IP Indemnification) or Section 24 (Changes to these Terms), all amounts are non-refundable, non-cancellable and non-creditable. You agree that we may bill your credit card or other payment method for payment of contracted sums, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable.
9.3 We will deliver the login instructions for Products - Services to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Product – Service agreement has been processed. All deliveries under these Terms will be electronic.
10. Automatic Term Renewal / Termination by Customer
10.1 Any Headbox Product - Services agreement shall renew automatically for additional consecutive 12 month period following the end of the Engagement Term unless the Customer provides HeadBox with at least 3 months’ written notice of its intention not to renew the product agreement by no later than 3 months prior to the end of the Engagement Term or the end of the current Renewal Term (as applicable), provided always that the Customer shall pay to HeadBox all Fees payable for the period up to and including the fifteenth day of the month following the expiration of the Term. The customer is permitted to terminate Headbox Product - Services agreement upon 7 days prior written notice to HeadBox. In the event that the customer terminates a Product - Services agreement then there will be no refund of any Fees. The customer accepts that in the event of termination of the services 100% of the Fees will still be due and payable.
11. Taxes not included.
11.1 Your fees under these Terms exclude any taxes or duties payable in respect of the Products - Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.
11.2 You will pay all fees net of any applicable withholding taxes. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.
12. If you make any purchases through an authorised partner or reseller of HeadBox Australia Solutions Pty Ltd (“Reseller”):
12.1 Instead of paying us, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use Products - Services if we do not receive the corresponding payment from the Reseller.
12.2 Your order details (e.g., the Products - Services you are entitled to use, the number of Users, the Engagement Term, etc.) will be as stated in the Product – Service agreement placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of any such Product – Service agreement as communicated to us.
12.3 If you are entitled to a refund under these Terms, then unless we otherwise specify, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.
12.4 Resellers are not authorised to modify these Terms or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in these Terms.
12.5 The amount paid or payable by the Reseller to us for your use of the applicable Product under these Terms will be deemed the amount actually paid or payable by you to us under these Terms for purposes of calculating the liability cap in Section 19.2.
13. No contingencies on other Products - Services of future functionality. You acknowledge that the Products - Services and Additional Services referenced in an Product – Service agreement are being purchased separately from any of our other Products - Services. Payment obligations for any Products - Services are not contingent on the purchase or use of any of our other Products - Services (and for clarity, any purchases of Products - Services and Additional Services are separate and not contingent on each other, even if listed on the same Product – Service agreement). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Products - Services beyond the current Engagement Term), or dependent on any oral or written public comments we make regarding future functionality or features.
14. We may offer certain Products - Services to you at no charge. Your use of No-Charge Products - Services is subject to any additional terms that we specify and is only permitted during the Engagement Term we designate (or, if not designated, until terminated in accordance with these Terms). Except as otherwise set forth in this Section 14, the terms and conditions of these Terms governing Products - Services, including Section 3.3 (Restrictions), fully apply to No-Charge Products - Services. We may modify or terminate your right to use No-Charge Products - Services at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta Products - Services, and any pre-release and beta features within generally available Products - Services, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products - Services. All information regarding the characteristics, features or performance of any No-Charge Products - Services (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products - Services, including any Support, warranty and indemnity obligations. notwithstanding anything else in these terms, our maximum aggregate liability to you in respect of no-charge products - services will be $100 AUD.
15. Products - Services are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Products - Services). From time to time, you may choose to submit Feedback to us. We may in connection with any of our Products - Services or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market Products - Services or services, whether incorporating Feedback or otherwise.
16. Confidentiality. Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the Products - Services will be deemed our Confidential Information without any marking or further designation. Except as expressly authorised herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 16 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 16. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
17. Term and Termination.
17.1 These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Engagement Terms.
17.2 Either party may terminate these Terms (including all related Product – Service agreements) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding or appoints a liquidator or administrator , or if any such proceeding is instituted against that party that would result any event under 17.2(c) happening and is not dismissed within sixty (60) days thereafter.
17.3 Upon any expiration or termination of these Terms, you must cease using all Products - Services and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Engagement Term), so you should make sure to export Your Data using the functionality of the Products - Services during the applicable Engagement Term. If you terminate these Terms in accordance with Section 17.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current Engagement Term after the effective date of termination. If we terminate these Terms in accordance with Section 17.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Engagement Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
17.4 The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity), 6.1 (Third-Party Products - Services), 9.4 (Payment), 11 (Taxes not included), 14 (Evaluations, trials, and betas) (disclaimers and use restrictions only), 15 (IP Rights in the Products - Services and Feedback), 16 (Confidentiality), 17 (Term and Termination), 18.4 (Warranty Disclaimer), 19 (Limitations of Liability), 20 (IP Indemnification) (but solely with respect to claims arising from your use of Products - Services during the Engagement Term), 22 (Dispute Resolution) and 26 (General Provisions).
18 Warranties and Disclaimer.
18.1 Each party represents and warrants that it has the legal power and authority to enter into these Terms.
18.2 We warrant that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Products - Services (but we are not responsible for harmful materials submitted by you or your Users) (the “Performance Warranty”).
18.3 Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Engagement Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Product - Service for the terminated portion of the applicable Engagement Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorised modifications or third-party products, software, services or equipment. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 18.
18.4 except as expressly provided in this section 18, all products - services, support and additional services are provided “as is,” and we and our suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality or merchantability, whether express, implied or statutory. Without limiting our express obligations in these terms, we do not warrant that your use of the products - services will be uninterrupted or error-free, that we will review your data for accuracy or that we will preserve or maintain your data without loss. You understand that use of the products - services necessarily involves transmission of your data over networks that we do not own, operate or control, and we are not responsible for any of your data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third party service providers. We will not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside our reasonable control. You may have other statutory rights, but the duration of statutorily required warranties, if any, will be limited to the shortest period permitted by law.
19. Limitation of Liability.
19.1 Except for excluded claims (as defined below), neither party (nor its suppliers) will have any liability arising out of or related to these terms for any loss of use, lost or inaccurate data, lost profits, failure of security mechanisms, interruption of business, costs of delay, or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of the possibility of such damages in advance.
19.2 We do not warrant that the use of the Platform will be entirely uninterrupted or error-free. We are not responsible for any delays, failures or any loss or damage resulting from the transfer of data over communications networks and facilities, including the internet. You acknowledge that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
19.3 To the fullest extent permitted by law, we expressly disclaim all implied warranties and conditions (whether implied by course of dealing, custom, law or otherwise) including without limitation any implied warranties as to merchantability and fitness for purpose of the Platform and Materials. To the extent that any liability of the Licensor under the Competition and Consumer Act 2010 (Cth) cannot be excluded, the Licensor’s liability in respect of its obligations is limited to using its reasonable endeavours to remedy the issue or defect, which shall constitute the Licensee’s sole remedy.
19.4 To the fullest extent permitted by law, we exclude all liability for:
(a). indirect and consequential loss;
(b). loss or corruption of the Platform or data, loss of revenue, loss of profits, wasted management time, any compensation paid to clients, or failure to realise expected profits or anticipated savings, in each case whether direct or indirect.
19.5 Our total aggregate liability, arising under or connection with this Agreement however arising whether in contract, tort (including negligence or breach of statutory duty) or otherwise, shall in respect of each Year not exceed the total fees paid or payable in respect of that Year.
19.6 Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Product – Service agreements, (2) either party’s express indemnification obligations in these Terms, and (3) your breach of Section 3.3 (Restrictions) or of Section 2 (Combining the Products - Services with Open Source Software) of Third Party Code in HeadBox Solutions Pty Ltd Products - Services.
19.7 Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 19 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
20. We will defend you against any claim brought against you by a third party alleging that the Products - Services, when used as authorised under these Terms, infringe any third-party patent, copyright or trademark, or misappropriate any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defence and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defence, and settlement (if applicable) of the Claim. If your use of the Products - Services is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the Product in accordance with these Terms; (ii) substitute a substantially functionally similar Product - Service; or (iii) terminate your right to continue using the Product - Service and refund any prepaid amounts for the terminated portion of the Engagement Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to a Product in the twelve (12) month period immediately preceding the Claim is less than AUD $40,000; (2) if the Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the Product is used in combination with any non-HeadBox Solutions Pty Ltd product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorised use of Products - Services; (5) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 5.4 (Your Indemnity) or (z) any third-party deliverables or components contained with the Products - Services or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. This section states our sole liability and your exclusive remedy for any infringement of intellectual property rights in connection with any product or other items we provide under these terms.
21. We may identify you as an HeadBox Solutions Pty Ltd customer in our promotional materials. We will promptly stop doing so upon your request sent to marketing@headboxaustralia.com.
22. Dispute Resolution.
22.1 In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognising their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 22.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 22.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
22.2 These Terms will be governed by and construed in accordance with the applicable laws of the State of New South Wales and Australia. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of the State New South Wales and Australia and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts of that State and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and legal Counsel’s fees.
22.3 Notwithstanding the provisions of Section 22.1 (Informal Resolution) and 22.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
22.4 Exclusion of UN Convention. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms.
23. You agree to comply with all applicable data laws and regulations in your access to, use of, and download of the Products - Services (or any part thereof).
24. We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 26.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.
24.1 No-Charge Products - Services. You must accept the modifications to continue using the No-Charge Products - Services. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products - Services.
24.2 Paid Subscriptions. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Engagement Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 9.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Engagement Term. If the effective date of such modifications is during your then-current Engagement Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Product – Service agreements upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Products - Services for the terminated portion of the applicable Engagement Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Product – Service agreement is subject to the version of these Terms in effect at the time of the Product – Service agreement.
24.3 Our Policies. We may modify Our Policies to take effect during your then-current Engagement Term in order to respond to changes in our Products - Services, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Engagement Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
25. Changes to the Products - Services. You acknowledge that the Products - Services are on-line and that in order to provide improved customer experience we may make changes to the Products - Services, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Products - Services and Additional Services under existing Product – Service agreements, we can discontinue any Products - Services, any Additional Services, or any portion or feature of any Products - Services for any reason at any time without liability to you.
26. General Provisions.
26.1 Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to HeadBox Solutions Pty Ltd Pty Ltd, c/o 111 Flinders Street Surry Hills NSW 2010. Your notices to us will be deemed given upon receipt.
26.2 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
26.3 You may not assign or transfer these Terms without our prior written consent. Any attempt by you to transfer or assign these Terms except as expressly authorised above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
26.4 These Terms are the entire agreement between you and us relating to the Products - Services and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Products - Services or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
26.5 Any provision or part of a provision of this Agreement which is, or held to be, illegal, void or unenforceable is ineffective only to the extent of such illegality, voidness or unenforceability and shall not invalidate any of the remaining provisions or part of a provision of this Agreement.
26.6 Conflicts. In event of any conflict between the main body of these Terms and either Our Policies or Product- Service Specific Terms, Our Policies or Product- Service Specific Terms (as applicable) will prevail with respect to the subject matter.
26.7 Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 24 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorised representative of each party.
26.8 Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
26.9 Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
27. Definitions. Certain capitalized terms are defined in this Section 27, and others are defined contextually in these Terms.
“Additional Services” means support or other services related to the Products - Services we provide to you, as identified in an Product – Service agreement or any services requested by you to be done by us outside the terms of the Product – Service agreement for which we are entitled to an additional fee .
“Administrators” mean the personnel designated by you who administer the Products - Services to Users on your behalf.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
“Products - Services” means our hosted or cloud based event management solutions, including any client software, access to platforms and event venue information we provide as part of the Products – Services including but not limited to Event Hub, Dashboard, HeadBox Listing, Collection Page Listing, Digital Photography, HeadBox 3D Photography, Lead Feed, HeadBox Business Proposals, Social Media Content, and Digital Mailers.
“Documentation” means our standard published documentation for the Products - Services, that are provided with the contract for the specific Product-Service.
“User” means an individual you or an Affiliate permits or invites to use the Products - Services. For the avoidance of doubt: (a) individuals invited by your Users, (b) individuals notified by you as representing you, and (c) individuals interacting with a Product -Services as your customer are also considered Users.
“User Account” means an account established by you or a User to enable the User to use or access a Product or Service.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Products - Services, Support or Additional Services.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
“Notification Email Address” means the email address(es) you used to register for a Product - Service account or otherwise sign up for a Product – Service or an email address otherwise used to communicate with us. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.
“Product – Service agreement” means HeadBox Solutions Pty Ltd’s applicable online contract page(s), flows, in-product screens or other HeadBox Solutions Pty Ltd-approved ordering document or process describing the Products - Services and services you are ordering from us and, as applicable, their permitted scope of use. As applicable, the Product – Service agreement will identify: (i) the Products - Services, (ii) the number of Users, Engagement Term, domain(s) associated with your use of Products - Services, storage capacity or limits, or other scope of use parameters and (iii) (for paid Product – Service agreements) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Product – Service agreements may also include Additional Services and No-Charge Products - Services.
“Our Deliverables” means any materials, information, assembled data, opinions, event venue information, supplementary supplier information, modifications, derivative works or developments that we provide in connection with any Additional Services.
“Our Policies” means our Acceptable Use Policy, guidelines for Reporting Copyright and Trademark Violations, Privacy Policy, Support Policy and any other policies or terms referenced in these Terms.
“Our Technology” means the Products – Services and IT platforms (including all No-Charge Products - Services), Our Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
“PCI DSS” means the Payment Card Industry Data Security Standards.
“PO” means a purchase order.
“Product-Specific Terms” means additional terms that apply to certain Products - Services and Additional Services as published from time to time.
“Sensitive Personal Information” means any (i) special categories of personal data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation (ii) credit, debit or other payment card data subject to PCI DSS; (iii) other personal information subject to regulation or protection under specific laws; (iv) driver’s license numbers or other government ID numbers; or (v) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.
“Engagement Term” means your permitted subscription or contract terms period for a Product -Service, as set out in the applicable Product – Service agreement.
“Support” means support for the Products – Services as defined Product – Service agreement.
“Training” means HeadBox Solutions Pty Ltd-provided training services.
“Your Data” means any data, including personal or corporate data, content, code, video, images or other materials of any type that you (including any of your Users) submit to Products - Services. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Products - Services.
“Your Materials” means your materials, systems, personnel or other resources.