Terms of service
Read the Terms & Conditions for using Never Miss Moments wedding QR code galleries and services.
Welcome to Never Miss Moments! We are Travis And Benny Weddings Pty Ltd trading as Never Miss Moments, an Australian business with ABN 70 657 228 432 (‘we’, ‘our’ or ‘us’) and we provide a one-click access online galleries for all your guests to upload all their amazing photos and videos of your special day (Web App).
These terms and conditions (Terms) govern your access to the Web App and us providing you any other goods and services as set out in these Terms (Services). You can view the most updated version of our Terms at https://www.nevermissmoments.com/ (Website). Please read these terms and conditions carefully before agreeing to proceed with your purchase.
1 READING AND ACCEPTING THESE TERMS
(a) In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.
(b) By clicking the tick box below or clicking the “I accept these Terms” button on our Website, paying for our Services or otherwise accepting the benefit of any part of the Services, you agree to be bound by these Terms which form a binding contractual agreement between you, the person acquiring the Services (‘you’ or ‘your’), and us.
(c) We may change these Terms at any time by notifying you, and your continued use of the Web App following such an update will represent an agreement by you to be bound by the Terms as amended.
2 ELIGIBILITY
(a) By accepting these Terms, you represent and warrant that:
(i) you have the legal capacity and authority to enter into a binding contract with us; and
(ii) you are authorised to use the payment you provided when purchasing the Services.
(b) The Web App is not intended for unsupervised use by any person under the age of 18 years old or any person who has previously been suspended or prohibited from using the Web App. By using the Web App, you represent and warrant that you are either:
(i) over the age of 18 years and accessing the Web App for personal use; or
(ii) accessing the Web App on behalf of someone under the age of 18 years old and consent to that person’s use of the Web App.
(c) Please do not access the Web App if you are under the age of 18 years old and do not have your parent or guardian’s consent, or if you have previously been suspended or prohibited from using the Web App.
(d) If you are signing up not as an individual but on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “your” means the Represented Entity and you are binding the Represented Entity to this agreement. If you are accepting this agreement and using our Web App on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.
3.1 SCOPE OF YOUR PURCHASE AND THE WEB APP
(a) We will provide you, to the extent described on the Website, access to the Web App.
(b) Your purchase includes the benefits and limitations of the Web App as set out on our Website, or as otherwise communicated to you when you purchase the Web App (and as amended from time to time by notice to you).
(c) All photos, videos and content uploaded to the Web App will be stored for a maximum of twelve (12) months, after which that content will be removed from our servers and deleted. You may notify us if you wish for us to extend the duration of our storage of your content, which we, at our absolute discretion, can choose to accept or not.
3.2 ACCOUNTS
(a) (Accounts) To use the Web App, you may be required to sign-up, register and receive an account through the Website (an Account).
(b) (Provide Information) As part of the Account registration process and as part of your continued use of the Website, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, photos and video, audio files, profile information, payment details, ratings and reviews, verified identifications, verified certifications and authentication, and other information as determined by us from time to time.
(c) (Warranty) You warrant that any information you give to us in the course of completing the Account registration process is accurate, honest, correct and up-to-date.
(d) (Acceptance) Once you complete the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and provide you with an Account.
(e) (Guests) As part of the Services, you may permit additional users (Guests) to upload photos and videos to the Web App without requiring them to register an account.
3.3 DISCLAIMER
You acknowledge and agree that:
(a) any information provided to you as part of or in connection with the Web App or the Services is general in nature, may not be suitable for your circumstances and does not constitute financial, legal or any other kind of professional advice; and
(b) it is your responsibility to comply with applicable Laws relevant to you, including privacy Laws.
(a) We grant you the ability to provide a quick-response code (QR Code) to Guests to also use the Services and Web App that we provide to you. You acknowledge and agree that you are solely responsible for all content uploaded by Guests who you grant access. You must ensure that such content complies with these Terms and Conditions and all applicable laws.
(b) We may from time to time, in our absolute discretion, release enhancements to the Web App, meaning an upgraded, improved, modified or new versions of the Web App (Enhancements). Any Enhancements to the Web App will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime.
(c) We may change any features of the Web App at any time without notice to you.
We will provide general support where reasonably necessary to resolve technical issues with the Web App (Support Services). Unless otherwise agreed in writing:
(a) we will take reasonable steps to provide Support Services where necessary;
(b) we will use our best endeavours to respond to requests for Support Services, but you acknowledge that we may not be available 24/7 or respond within a particular time frame;
(c) you are responsible for all internal administration and managing access and assisting your Guests to access and use the Web App; and
(d) you will not have any claim for delay to your access to the Web App due to any failure or delay in Support Services.
We will store your data and Guest Data you and your Guests upload to the Web App using a third party hosting service selected by us (Hosting Services), subject to the following terms:
(a) (hosting location) You acknowledge and agree that we may use storage servers to host the Web App through cloud-based services, and potentially other locations outside Australia.
(b) (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Services will be free from errors or defects or that your data and Guest Data will be accessible or available at all times.
(c) (security) We will use our best efforts to ensure that your data and Guest Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to your data and Guest Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(d) (backups & disaster recovery) In the event that your data or Guest Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.
(e) (duration) As per clause 3.1(c), all photos, videos and content uploaded to the Web App will be stored for a maximum of twelve (12) months, after which that content will be removed from our servers and deleted. You may notify us if you wish for us to extend the duration of our storage of your content, which we, at our absolute discretion, can choose to accept or not.
You agree to:
(a) provide us with all documentation, information and assistance reasonably required by us to perform the Services; and
(b) provide us with access to any third party or other accounts used by you (including log-in details and passwords), as is reasonably required by us to perform the Services.
5.2 CLIENT MATERIAL
(a) You warrant that all information, documentation and other Material you provide to us for the purpose of receiving the Web App is complete, accurate and up-to-date.
(b) You release us from all liability in relation to any loss or damage arising out of or in connection with the Web App, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by you being incomplete, inaccurate or out-of-date.
5.3 YOUR OBLIGATIONS
(a) You must, and must ensure that all Guests, comply with these Terms at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, or any Guest’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.
(b) You must not, and must not encourage or permit any Guest, or any third party to, without our prior written approval:
(i) upload sensitive information or commercial secrets using the Web App;
(ii) upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Web App;
(iii) use the Web App for any purpose other than for the purpose for which it was designed, including you must not use the Web App in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes;
(iv) upload any material that is owned or copyrighted by a third party;
(v) make copies of the Web App;
(vi) adapt, modify or tamper in any way with the Web App;
(vii) remove or alter any copyright, trade mark or other notice on or forming part of the Web App;
(viii) act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Web App;
(ix) use the Web App in a way which infringes the Intellectual Property Rights of any third party;
(x) intimidate, harass, impersonate, stalk, threaten, bully or endanger any other Guest or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Web App;
(xi) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Web App to any third party, other than granting a Guest access as permitted under these Terms;
(xii) decompile or reverse engineer the Web App or any part of it, or otherwise attempt to derive its source code;
(xiii) share your Account or Account information, including log in details or passwords, with any other person and that any use of your Account by any person who is not the account holder is strictly prohibited. You must immediately notify us of any unauthorised use of your Account, password or email, or any other breach or potential breach of the Web App’s security;
(xiv) use the Web App for any purpose other than for the purpose for which it was designed, including you must not use the Web App in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);
(xv) make any automated use of the Web App and you must not copy, reproduce, translate, adapt, vary or modify the Web App without our express written consent;
(xvi) attempt to circumvent any technological protection mechanism or other security feature of the Web App; or
(xvii) permit any use of the Web App in addition to the Number of Web App Guests.
(c) You agree, and you must ensure that all Guests agree:
(i) to comply with each of your obligations in these Terms;
(ii) that we may cancel your Account at any time if we consider, in our absolute discretion, that you or they are in breach of, or are likely to breach, this clause 5.
(a) We offer a free demonstration of the Web App (Demo) on the Website. No payments will be charged for any use of the Demo. You agree to use the Demo in accordance with these Terms.
(b) Any photos or videos you upload during the use of the Demo will not be retained by us after your session ends. We accept no liability for the content you upload to the Demo. It is your responsibility to ensure that the content complies with applicable laws and does not infringe on any rights.
6.2 FEES
(a) In order to gain access to our Services, you must purchase the relevant product from our Website through your Account for the listed price (Fees).
(b) All prices are:
(i) per unit (except where indicated); and
(ii) in Australian Dollars.
(c) Unless otherwise agreed in writing, you must pay the Fees immediately at the time of purchase.
(d) Access to the Services will be provided within 24 hours of your successful payment of the Fees.
6.3 LATE PAYMENTS
We reserve the right to suspend your access to all or part of the Web App indefinitely if you fail to pay any Fees in accordance with this clause 6.
6.4 GST
Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.
6.5 CARD SURCHARGES
We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
6.6 ONLINE PAYMENT PARTNER
(a) We may use third-party online payment partners (Online Payment Partner) to collect Fees.
(b) Provided that the Service Provider has notified the Client of such Third Party Terms and provided the Client with a copy of those terms, you acknowledge agree that:
(i) the processing of payments by the Online Payment Partner will be, in addition to this agreement, subject to the terms, conditions and privacy policies of the Online Payment Partners;
(ii) you release us in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Online Payment Partner, including any issue with security or performance of the Online Payment Partner’s platform or any error or mistake in processing your payment; and
(iii) We reserve the right to correct, or to instruct our Online Payment Partner to correct, any errors or mistakes in collecting your payment.
(b) You have the right to reject any terms and conditions of the Online Payment Partner. If you reject those terms, we cannot provide you with the Services and clause 13 will apply.
7.1 WARRANTIES
By providing or posting any information, Material or other content in connection with the Web App (Posted Material), you represent and warrant that, and must ensure that all Guests make equivalent representations and warranties:
(a) you are authorised to provide the Posted Material (including by being authorised to provide any services that you represent you provide);
(b) the Posted Material is accurate and true at the time it is provided;
(c) any Posted Material which is in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;
(d) the Posted Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
(e) the Posted Material is free from any material that may harm our reputation or that of associated or interested parties;
(f) the Posted Material is not “passing off” of any product or service and does not constitute unfair competition;
(g) the Posted Material does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, Confidential Information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
(h) the Posted Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Web App or any network or system; and
(i) the Posted Material does not breach or infringe any applicable Laws.
7.2 LICENCE
(a) Where you grant to us express written permission to use Posted Material, you grant, and must ensure that all Guests grant, to us a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Posted Material in order for us to use, exploit or otherwise enjoy the benefit of such Posted Material.
(b) If it is determined that you retain moral rights (including rights of attribution or integrity) in any Posted Material, you release us from any and all claims that you could assert against us by virtue of any such moral rights, and you must ensure that all Guests grant an equivalent release.
(c) You indemnify us against all damages, losses, costs and expenses incurred by us arising in connection with any third party claim that Posted Material infringes any third party’s Intellectual Property Rights.
7.3 REMOVAL
(a) The Web App acts as a passive conduit for the online distribution of Posted Material and has no obligation to screen Posted Material. However, we may, in our absolute discretion, review and remove any Posted Material from the Web App at any time without giving any explanation or justification for removing the Posted Material, including if we determine that the Posted Material infringes a third party’s Intellectual Property Rights, or is reasonably likely to.
(b) You agree that you are responsible for keeping and maintaining records of Posted Material.
7.4 INFRINGING CONTENT ON THE WEB APP
(a) If you become aware of Posted Material, or other Material, on the Web App that infringes the Intellectual Property Rights of any person, or is reasonably likely to, please contact us immediately.
(b) If you submit a complaint on our Website under clause 7.4(a):
(i) you warrant that the substance of the complaint is accurate, true and involves infringement of copyright;
(ii) you acknowledge and agree that groundless threats of legal proceedings in relation to copyright infringement may be prohibited under applicable law (for example, Australia’s Copyright Act 1968, or equivalent laws wherever you are located); and
(iii) you agree to indemnify Never Miss Moments in relation to any loss or damage that may arise in relation to your complaint, including in relation to any third party claim that the complaint contains a groundless threat.
8 INTELLECTUAL PROPERTY AND DATA
8.1 WEB APP CONTENT INTELLECTUAL PROPERTY
(a) (Our ownership) We retain ownership of all Materials provided to you in connection with the Web App (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and Web App) (Web App Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us in the Web App Content not expressly granted to you.
(b) (Licence to you) You are granted a licence to the Web App Content and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Web App. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Web App Content without prior written consent from us or as otherwise permitted by law.
8.2 USER DATA
Our Rights and Obligations
(a) You grant to us a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use all data that you upload and all Guest Data to the extent reasonably required to provide the Web App, and for our internal business purposes, including to improve the Web App and our other products and services, and including to apply machine learning and other analytics processes to your data and the Guest Data, to gain commercial insights and other associated learnings, and to improve the Web App, our business and our other products and services.
(b) We reserve the right to remove any of your data or Guest Data at any time, for any reason, including where we deem any of your data or Guest Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.
Your Obligations and Grant of Licence to Us
(c) You are responsible for ensuring that:
(i) you share your data and Guest Data only with intended recipients; and
(ii) all of your data and Guest Data is appropriate and not in contravention of these Terms.
(d) You:
(i) warrant that our use of your data and the Guest Data will not infringe any third-party Intellectual Property Rights; and
(ii) indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
9.1 THIRD PARTY TERMS
(a) If we are required to acquire goods or services supplied by a third party, you may be subject to the terms and conditions of that third party (‘Third Party Terms’).
(b) Provided that we have notified you of such Third Party Terms and provided you with a copy of those terms, you agree to any Third Party Terms applicable to any goods or services supplied by a third party that we acquire as part of providing the Web App to you and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
(c) You have the right to reject any Third Party Terms. If you reject the Third Party Terms, we cannot provide the Web App to you and clause 13 will apply.
(a) Except as contemplated by these Terms, a party must not use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.
(b) Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information.
(c) The notifying party will investigate each potential, actual or suspected breach of confidentiality and assist the other party in connection with any related investigation.
11 PRIVACY
(a) We collect personal information about you in the course of providing you with the Web App, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy which can be found at https://www.nevermissmoments.com/policies/privacy-policy.
(b) Our Privacy Policy contains more information about how we use, disclose and store your personal information and details how you can access and correct your personal information.
(c) By agreeing to these Terms, you agree to our handling of personal information in accordance with our Privacy Policy.
12.1 WARRANTIES AND LIMITATIONS
(a) (Warranties) We warrant that:
(i) the Web App will perform substantially in accordance with how it is described on the Website;
(ii) the Web App will be provided as described to you in, and subject to, these Terms; and
(iii) to our knowledge, the use of the Web App in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.
(b) (Errors) We will correct any errors, bugs or defects in the Web App which arise you’re your use of the Web App and which are notified to us by you, unless the errors, bugs or defects:
(i) result from the interaction of the Web App with any other Web App or computer hardware, Web App or services not approved in writing by us;
(ii) result from any misuse of the Web App; or
(iii) result from the use of the Web App by you other than in accordance with these Terms.
(c) (Service Limitations) While we will use our best endeavours to ensure the Web App is working for its intended purpose, you acknowledge and agree that from time to time, you may encounter the following issues:
(i) the Web App may have errors or defects;
(ii) the Web App may not be accessible at times; or
(iii) data you receive or supply through the Web App may not be secure or confidential.
(d) (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in these Terms are excluded.
(e) (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
To the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with these Terms or the Web App is limited to the total Fees paid to us by you in the 3 months preceding the date of the event giving rise to the relevant liability.
To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with these Terms or any goods or services provided by us, except:
(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).
13.1 cancellation BY US
We reserve the right to cancel our provision of the Services to you for any reason and we will notify you of this as soon as possible. Where payment has already been debited, the full amount will be credited back to your original method of payment.
13.2 cancellation BY YOU
You may cancel your purchase of the Services up to the time that we confirm your purchase in writing to you. Once we confirm your purchase, your purchase is binding and cannot be changed by you.
13.3 cancellation for breach
(a) Either party may cancel your access to the Services immediately by written notice if there has been a Breach of these Terms.
(b) A “Breach” of these Terms means:
(i) a party (Notifying Party) considers the other party (or any of its Guests) is in breach of these Terms and notifies the other party;
(ii) the other party is given 3 Business Day to rectify the breach; and
(iii) the breach has not been rectified within 3 Business Days or another period agreed between the parties in writing.
13.4 EFFECT OF TERMINATION
Upon termination of this agreement:
(a) you will no longer have access to the Web App, your Account or your data and Guest Data. We will store your data and Guest Data in accordance with clause 4, but otherwise we will have no responsibility to store or otherwise retain any of your data and Guest Data (and you release us in respect of any loss or damage which may arise out of us not retaining any of your data and Guest Data beyond that point);
(b) unless agreed in writing, any Fees that would otherwise have been payable after termination for the remainder of the relevant Renewal Period will remain payable and, to the maximum extent permitted by law, no Fees already paid will be refundable; and
(c) each party must comply with all obligations that are by their nature intended to survive the end of this agreement.
14 DISPUTE RESOLUTION
(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
15 FORCE MAJEURE
(a) We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event.
(b) If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement.
(c) Subject to compliance with clause 15(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of us;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.
16 NOTICES
(a) A notice or other communication to a party under these Terms must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in the Order, or if no email address is specified in the Order, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
(ii) when replied to by the other party,
whichever is earlier.
17 GENERAL
17.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in South Australia, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of South Australia, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
17.2 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
17.3 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
17.4 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
17.5 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
17.6 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
17.7 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
DEFINITIONS
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Term |
Definition |
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Confidential Information |
means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge. |
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Guest |
means you and any third party end user of the Web App who you make the Web App available to. |
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Guest Data |
means any files, data, document, information or any other Materials, which is uploaded to the Web App by you or any other Guest or which you, or Guests otherwise provide to us under or in connection with these Terms, including any Intellectual Property Rights attaching to those materials. |
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Intellectual Property Rights |
means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement. |
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Material |
means tangible and intangible information, documents, reports, Web App (including source and object code), inventions, data and other materials in any media whatsoever. |
|
Web App |
has the meaning given in the first paragraph of these Terms. |
|
Web App Content |
has the meaning set out in clause 8.1(a). |
|
Web App |
has the meaning set out in clause 3.1. |
|
Support Services |
has the meaning given in clause 3.5. |
|
Website |
means the website at the URL set out in the first paragraph of these Terms, and any other website operated by us in connection with the Web App. |