Terms & Conditions
IMPORTANT: DO NOT USE THIS SERVICE UNTIL YOU HAVE READ AND AGREED TO THIS LICENSE AGREEMENT. This is an agreement between you (“Customer”) and Rambling Man Studios Pty Ltd (ABN:42 412 966 153) (“WAPD”). By clicking next to “I ACCEPT” prior to accessing the Service or by executing a Subscription Order, you are agreeing to the terms of this On-Demand Subscription Agreement (the “Agreement”).
1. Definitions. For the purposes of this Agreement, the following terms shall have the corresponding definitions:
“Allotment” shall mean the number of Transactions (as defined below) subscribed to by Client during a given Term;
“Available Hours of Operation” shall mean twenty-four (24) hours per day, seven (7) days per week exclusive of Scheduled Downtime, described in Section 9(b), below, and downtime arising from causes beyond the reasonable direct control of WAPD, such as the interruption or failure of telecommunications or digital transmission links, hostile network attacks or data source denials;
“Available Hours of Support” shall mean the hours set out in the Documentation during which time Client may obtain technical support for the Services;
“Client Data” shall mean any data, such as an address record, telephone number or user query, or other material submitted by Client to the Service or provided by Client to WAPD for the performance of the Service;
“Documentation” shall mean WAPD’s guide for the Service maintained on WAPD’s website that describes the functionality and service level support for the Service;
“Service” shall mean the subscription services offered by WAPD as more fully described in Exhibit 1;
“Subscription Order” shall mean Exhibit 1 or a subsequent document pursuant to which Client acquires the right to access the Service;
“Transaction” shall mean the submission and processing of each individual Client Data to the Service or the response to each individual Client Data or user query submitted to the Service; and
“Term” shall mean the term of the Agreement set out in Section 3, below.
2. Grant of Rights. WAPD hereby grants Client a non-exclusive, non-transferable right to access and use the Service identified in the Subscription Order during the term of the Subscription Order, subject to the terms of this Agreement and the Subscription Order. WAPD reserves all rights to the Service not expressly granted by this Agreement.
3. Term of Agreement.
a) This Agreement is effective on the Effective Date and shall remain in effect for an initial Term of twelve (12) months (the “Initial Term”). Thereafter, this Agreement shall continue in effect until all Subscription Orders have expired or been terminated. WAPD may terminate this Agreement in accordance with Sections 5(c) and 13, below.
b) Each Subscription Order shall be effective on the date set out therein and shall remain in effect, subject to Section 3(a), above, during the term identified in the Subscription Order. Each Subscription Order shall automatically renew for twelve (12) month terms unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the applicable term of the Subscription Order.
c) Upon termination of this Agreement or expiration of the term of a Subscription Order, Client shall immediately cease use of the Service and WAPD.
4. Fees; Payment Terms.
a) Client shall pay to WAPD the fees set out in each Subscription Order. Except as otherwise set out in a Subscription Order, all fees are stated in and shall be paid in Australian dollars. Except as otherwise provided in a Subscription Order, WAPD may change the monthly or other usage fees upon thirty (30) days notice to Client. Any increase in fees shall not be effective until the commencement of the subsequent Term Client shall also be responsible for the payment of any applicable sales, use, value added, personal property, Internet-related or other taxes and government charges imposed on the Services, except taxes relating to WAPD’s net income.
b) All fees, expense reimbursements and taxes under this Agreement are due thirty (30) days from date of invoice. Client shall pay a late charge of one-and-one-half percent (1.5%) per month on any fees not paid by the due date. If Client fails to pay any invoices by the due date, WAPD may suspend performance of the Services upon ten (10) days written notice to Client.
c) Client agrees to purchase access to the Service as indicated in the applicable Subscription Order, which may be used during the term of the Subscription Order (not to exceed twelve (12) calendar months). Service(s) purchased may not be carried over into subsequent terms. Upon request, WAPD will issue Client a report detailing the current number of Transactions charged against Client’s Allotment, one (1) time per calendar quarter.
5. Client Responsibilities.
a) Except as otherwise provided in a Subscription Order, Client shall use the Service solely for its internal business purposes and shall not use the Service on behalf of or make the Service available to any third party. All Client Data submitted to the Service must be submitted in WAPD’s submission format in accordance with the Documentation or any other format agreed to by the parties. Client shall also comply with applicable laws governing use of the Services, including, without limitation, any data protection or privacy laws.
b) Client shall identify to WAPD its personnel responsible for Client’s use of the Service, including any technical, administrative and contract matters. Client shall be solely responsible for the content of all Client Data submitted to the Service and shall comply with all laws, rules and regulations relating to the use, disclosure and transmission of such Client Data.
6. Non-infringement; Indemnification.
a) WAPD shall indemnify, defend and hold Client harmless from any claim that the Service provided by WAPD hereunder infringes or misappropriates any copyright, patent, trademark or trade secret. WAPD shall have control of the defense and shall defend at its own expense, any claim or litigation to which this indemnity relates. Client shall notify WAPD promptly of any such claim and shall reasonably cooperate with WAPD, upon WAPD’s request and at WAPD’s cost, to defend such claim.
b) In the event of an infringement claim or if Client’s use of the Service is otherwise enjoined, WAPD shall have the right to: (i) offer a non-infringing replacement Service, at no cost to Client, which replacements shall be functionally equivalent to the Service (ii) procure, at no cost to Client, the right to continue to use the Service, or (iii) direct Client to terminate use of the Service. If WAPD directs Client to terminate use of the Service, Client’s remedies, in addition to the indemnification set out herein, shall be limited to a refund of any prepaid but unused fees for the Service.
c) WAPD shall not indemnify Client or be liable for claims arising from the use of the Service with data, hardware or software not provided by WAPD or Client’s use of the Service other than as described in this Agreement and the Documentation.
d) Client shall indemnify, defend and hold WAPD harmless against any claim arising from: (i) Client’s use of the Service in a manner not permitted under this Agreement; (ii) a claim that the Client Data or any other data, files or other materials provided by Client to WAPD infringes any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret; (iii) a violation of any law, rule or regulation regarding the protection of personal data or the use or access to the Service; or (iv) acts of gross negligence or willful misconduct. Client shall have control of the defense and shall defend at its own expense, any claim or litigation to which this indemnity relates. PBS shall notify Client promptly of any such claim and shall reasonably cooperate with Client, upon Client’s request and at Client’s cost, to defend such claim.
7. WAPD Responsibilities; Support.
a) WAPD shall use best efforts to make the Services available during the Available Hours of Operation. Support for the Service shall be available during the Available Hours of Support. Support shall consist of telephone technical support to assist Client with the use of the Service and shall be provided in accordance with the Documentation. Telephone support calls may be monitored or recorded.
b) The Service may be inaccessible or inoperable during certain periods to permit WAPD (or its third party hosting service provider, if applicable) to perform maintenance support services (“Scheduled Downtime”). WAPD shall use reasonable commercial efforts to minimize any disruption, inaccessibility and/or inoperability of the Services in connection with the Scheduled Downtime or other disruption of Service.
8. Warranties; Disclaimers.
a) WAPD represents and warrants to Client that the Service shall materially conform to the Documentation. WAPD further represents and warrants that any consulting or support shall be performed in a professional manner in accordance with generally accepted industry standards and practice. WAPD does not warrant the operability or accuracy of any Client Data processed by WAPD.
b) SUBJECT TO SECTION 11(D) AND EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT, WAPD DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. EXCEPT AS PROVIDED IN SECTION 8, WAPD SHALL NOT BE LIABLE FOR ANY LOSS OF CLIENT DATA OR LOSS OR DAMAGE IN CONNECTION WITH OR ARISING OUT OF THE INTERRUPTION OR LOSS OF USE OF THE SERVICE.
c) THE SERVICE IS DEPENDENT ON ADDRESS, DEMOGRAPHIC, BUSINESS AND A VARIETY OF OTHER DATA PROVIDED BY THIRD PARTY DATA PROVIDERS. EXCEPT AS SET OUT IN SECTION 8, SECTION 11(A) AND SECTION 11(D), ACCESS AND USE OF ANY OR ALL SUCH DATA AND SOFTWARE IS PROVIDED WITHOUT ANY WARRANTIES OR GUARANTEES REGARDING ACCURACY, COMPLETENESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE.
d) Provisions of the Competition and Consumer Act 2010 (Cth) and Australian Consumer Law and other statutes in some cases either cannot be excluded, restricted or modified; or can only be restricted or modified to a limited extent. If any provisions of those types do apply, then to the extent permitted by law WAPD’s liability under those provisions is limited as follows. WAPD’s liability is limited, at its option, to supply the services again or the payment of the cost of having the services supplied again.
9. Limitation of Liability.
a) SUBJECT TO SECTION 12(C), EXCEPT FOR PBS’S LIABILITY UNDER SECTION 8, PBS’S TOTAL LIABILITY TO CLIENT ARISING OUT OF THIS AGREEMENT IN TORT, CONTRACT OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO WAPD DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF SUCH CLAIM.
b) SUBJECT TO SECTION 12(C), UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE, REGARDLESS OF THE CAUSE, FOR ANY: (I) LOSS OR DAMAGE TO PROFITS, CONTRACTS, BUSINESS, ANTICIPATED SAVINGS OR OPPORTUNITIES; OR (II) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM THIS AGREEMENT OR THE PRODUCTS OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c) Nothing in this Agreement shall exclude or restrict either party’s liability for: (i) death or personal injury resulting from the negligence of a party or its employees acting in the course of their employment; (ii) fraudulent misrepresentation; or (iii) any other cause of action which cannot be limited or excluded under applicable law.
10. Default. If either party is in breach of any provision of this Agreement, breaching party shall have fifteen (15) days following written notice from the non-breaching party, or an additional period of time as reasonably agreed to by the parties, to cure such breach. If Client, as breaching party, is unable to timely cure such breach, WAPD’s remedies shall include, without limitation, the right to terminate this Agreement or suspend performance of the Services and Client’s rights hereunder. If WAPD terminates this Agreement or any of the rights granted hereunder, Client shall remain liable for all fees due under this Agreement prior to the date of such termination and no amount previously paid to WAPD shall be refunded. If WAPD, as breaching party, is unable to cure such breach, Client may terminate this Agreement and any Subscription Order then in force with no further cost or liability to WAPD.
11. Force Majeure. Neither party shall be liable for and each party shall be excused from, any failure to deliver or perform or for delay in delivery or performance due to causes beyond its reasonable control, including, but not limited to, governmental actions, including postal authorities, fire, shortages, civil disturbances, transportation problems, interruptions of power or communications, failure of Internet service, hosting or telecommunication service providers, natural disasters, acts of war or terrorism or acts of God.
12. Assignment. Client shall not assign any of its rights or obligations under this Agreement, including the Subscription Order without the prior written consent of WAPD, which consent shall not be unreasonably withheld, delayed or denied.
13. Applicable Law and Jurisdiction. This Agreement shall be governed by the laws of the State of Western Australia, Australia, without reference to principles of conflict of laws. The parties submit to the non-exclusive jurisdiction of the courts of Western Australia, Australia in respect of all disputes related to this Agreement.
b) If any action or proceeding (including arbitration) is brought in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees arising from such action or proceeding.
14. Entire Agreement. This Agreement constitutes the entire agreement between WAPD and Client, and supersedes all proposals, purchase orders, understandings, representations, prior agreements or communications relevant to Client’s use of the Service. This Agreement also supersedes any preprinted terms contained on a purchase order or similar document issued by Client subsequent to the execution of this Agreement or a Subscription Order and such preprinted terms shall have no force or effect. Client has not been induced to enter into this Agreement by any representations or promises not specifically stated herein. Neither this Agreement nor a Subscription Order shall be construed against the party that prepared such document, but instead shall be construed as if both parties prepared the Agreement or Subscription Order. This Agreement shall be signed by authorized representatives of WAPD and Client.
What personal information do we collect?
You may give us information about yourself, such as your name, address, email address and telephone numbers, when, for example, you make a purchase from us. If you do not give this information, we may not be able to provide goods or services to you.
When you visit our website we may collect more information, such as the address of your Internet service provider, the name of the web page directing you, and your clicks and activity on our site.
How do we use the personal information?
We may use the information to process your transactions, to administer your account, to conduct credit and other checks, for our own internal purposes (such as risk management, staff training and billing), to help us to develop our website to be more available and user friendly to our customers, and for any other use which you may authorise.
In addition, we may use the information to promote and market our products and services, or the products and services of others. However, we will not do this by email or text (except as part of an email which facilitates, completes or confirms a transaction with you) unless we have your express, inferred or deemed consent to do so. These emails and texts will always include an “unsubscribe” facility.
Will we disclose the information to others?
We do not sell, trade or rent your personal information to others.
However, we do use other companies and individuals to perform services on our behalf, such as delivering packages, sending mail and emails and processing payments. They will have access to your personal information needed to perform these services, but we will not authorise them to use your information for other purposes.
This website will never store credit card information. All credit card information entered into an encrypted connection during the checkout process will be transmitted directly to the payment processor, and never stored by Web and Print Design.
We take security seriously, and have taken steps to ensure your personal information is secure. We use secure servers, and industry standard data encryption whenever we are receiving or transferring your information online. However, we accept no responsibility for any loss, misuse, unauthorised access or disclosure, alteration or destruction of personal information which you submit to us.
What about links to other websites?
Our website may contain links to other sites that are not under our control. These websites have their own privacy policies, and we encourage you to review them. We have no responsibility for linked websites, and provide them solely for your information and convenience.
Updating your personal information
You may obtain confirmation from us as to whether or not we hold personal information about you. You may also request a copy of the information and/or request that corrections or changes are made to it.
We will never ask you to confirm any account details or credit card details by email. If you receive an email claiming to be from Web and Print design, asking for these details, please ignore and do not respond.
We welcome your questions and comments about privacy at Web and Print Design . Please call us on 08 9758 8600 or email us at email@example.com.