End User Licence Agreement1. Acceptance 1.1. Bagio Pty Ltd ABN 68 651 616 732 (we , us or our) owns or licenses Testify, (including the software as a service solution and any software, instructions in hard copy or electronic form and any update, modification or release of any part of the preceding), accessible at https://testifyapp.co or through other addresses and channels (Platform). 1.2. These terms and conditions (Terms) are between us and you, together the Parties and each a Party. 1.3. Where you are invited by the account holder (Account Holder) to access the Platform, we will create a user account for you as an end user (User Account), these Terms set out the terms and conditions upon which we agree to grant you, as an end user, a right to use the Platform. This will be subject to the terms of your Account Holder’s agreement with us and any privileges and permissions they grant to you. 1.4. You accept these Terms by clicking a box indicating your acceptance, creating a User Account and/or using the Platform. 1.5. These Terms will commence on the date on which you accept these Terms and will continue until the date these Terms are terminated in accordance with the termination clause below (Term). 1.6. If you are using the Platform as an Account Holder, in addition to these Terms, the Account Holder agreement will govern your access and use of the Platform. To the extent of any ambiguity or inconsistency, the Account Holder agreement will take precedence over these Terms. 1.7. By accepting these Terms, you are agreeing to these Terms on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means the Entity and you are binding that Entity to these Terms. If you are accepting these Terms on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so.
2. Licence2.1. In consideration of the payment of the fees in respect of the Platform by the Account Holder, and for your compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable (except with our express written permission), personal and revocable licence to access and use the Platform for the Term in accordance with any Authorised User limits, for the Account Holder to enjoy the benefit of the Platform, including to obtain User Content from you (Licence). 3. Accounts 3.1. The Account Holder will invite you via an email invite containing a link (generated by the Platform) to use the Platform. You will be required to choose a username and password for your User Account. You will have access to the Platform as determined by the Account Holder. 3.2. You must ensure that any information you provide to us, or we request from you, for your User Account, is complete and accurate and you are authorised to provide this information to us. 3.3. You are the User Account owner and regardless of any change in any contact details, you will remain responsible for your User Account, as set out in these Terms. If you wish to change the User Account owner, you must provide us with a written request to transfer the ownership of the User Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the User Account, in a form acceptable to us. 3.4. It is your responsibility to keep your User Account details confidential. You are responsible for all activity on your User Account, including activity by Authorised Users and for ensuring that any activities on your User Account comply with these Terms. 3.5. We are not responsible for the management or administration of your User Account.
4. Restrictions on use4.1. You must not access or use the Platform except as permitted by the Licence and you must not (and must not permit any other person to) use the Platform in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property Rights, including to: (a) use the Platform to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; (b) use the Platform in any way that damages, interferes with or interrupts the supply of the Platform; (c) introduce malicious programs into our hardware and software or Systems, including viruses, ransomware, malware, trojan horses and e-mail bombs; (d) reveal or allow others access to your User Account’s password or authentication details or allow others to use your User Account or authentication details (other than Authorised Users); (e) carry out security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/ monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes); (f) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Platform; (g) if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Platform in breach of any person’s privacy (such as by way of identity theK or “phishing”); or (h) circumvent user authentication or security of any of our Platform, networks, accounts or hosts or those of our other users.
5. Third Party Inputs5.1. You agree that the provision of the Platform may be contingent on, or impacted by, Third Party Inputs. 5.2. You agree that the Platform may include Third Party Inputs that may interface, or interoperate with, the Platform, including third party software or services. 5.3. To the extent that you choose to use such Third Party Inputs, you are responsible for: (a) the purchase of; (b) the requirements; and (c) the licensing obligations, related to the applicable Third Party Input, including third party software and services. 5.4. You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Platform, is subject to your compliance with clause 5.3.
7. Intellectual Property Rights7.1. You agree that all Intellectual Property Rights: (a) in the Platform; (b) in the Intellectual Property developed, adapted, modified or created by us, or our Personnel (including in connection with these Terms, the Platform, and any machine learning algorithms output from the Platform); and (c) Feedback, will at all times vest, or remain vested, in us (or, if applicable, our third party service providers). To the extent that ownership of the Intellectual Property Rights do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights. 7.2. You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback. 7.3. You grant us a non-exclusive, sublicensable and transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under these Terms or our agreement with the Account Holder. 7.4. You must not whether directly or indirectly, without our prior written consent: (a) copy or use, in whole or in part, any of our Intellectual Property; (b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party; (c) reverse assemble, reverse engineer, reverse compile or enhance the Platform; (d) extract data from the Platform via an automated process such as a bot or webcrawler; (e) attempt to discover the source code or object code or underlying structures, ideas, know-how or algorithms, the data or documentation, in relation to the Platform; (f) breach any Intellectual Property Rights connected with the Platform, including altering or modifying any of our Intellectual Property; (g) cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property; (h) resell, assign, lease, hire, sub-license, transfer, distribute or make available the Platform to third parNes; (i) “frame”, “mirror” or serve any of the Platform on any web server or other computer server over the Internet or any other network; and (j) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Platform. 7.5. This clause 7 will survive the termination or expiry of these Terms.
8. Analytics8.1. Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Platform, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it: (a) does not contain identifying information; and (b) is not compiled using a sample size small enough to make the underlying User Content identifiable. 8.2. We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
9. User Content9.1. You may create or upload User Content while using the Platform. Any User Content uploaded to the Platform will vest in the Account Holder. 9.2. You acknowledge and agree that we will have a right and licence to the User Content to: (a) supply the Platform (including for back-ups) to our Account Holders; (b) to allow Account Holders to use the User Content as they see fit; (c) as reasonably required, to perform our obligations under these Terms or any terms we have agreed to with the Account Holder. 9.3. You must, at all times, ensure the integrity of the User Content and that your provision of, and use of the User Content is compliant with all Laws. 9.4. You represent and warrant that: (a) you have obtained all necessary rights, releases and permissions to provide all your User Content to us and to grant the rights granted to us in these Terms; (b) the User Content is accurate and complete; (c) the User Content (and its transfer to and use by us as authorised by you) under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and (d) any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies. 9.5. We assume no responsibility or Liability for the User Content. You are solely responsible for the User Content and the consequences of using, disclosing, storing or transmitting it. 9.6. You agree that you will not under any circumstances, upload, post, host or transmit any User Content that: (a) is unlawful or promotes unlawful activities; (b) is or contains sexually obscene content; (c) is libellous, defamatory or fraudulent; or (d) is discriminatory or abusive toward any individual or group. 9.7. We do not pre-screen User Content, and you agree that we have the right to refuse or remove any User Content, that in our sole discretion, violates these Terms or any other policies we may have in place from time to time. 9.8. You agree that you will not under any circumstance: (a) harass, abuse, threaten or incite violence towards any Account Holder, individual or group, including our Personnel or other users of the Platform; (b) disrupt or attempt to disrupt or tamper with our servers in ways that could harm our Platform, to place undue burden on our servers through automated means, or to access our Platform in ways that exceed your authorisation; and (c) impersonate any person or entity, including any of our Personnel, including through false association with us, or by fraudulently misrepresenting your identity.
11. Australian Consumer Law11.1. Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights). 11.2. If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the provision of the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms. 11.3. Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or any other basis. 11.4. This clause 11 will survive termination or expiry of these Terms.
12. Indemnities12.1. Except to the extent that a Liability was contributed to by our or any of our Personnel’s negligent acts or negligent omissions, you indemnify us and our Personnel against all Liability that we or any of our Personnel may sustain or incur as a result, whether directly or indirectly, of: (a) your breach of clauses 5, 6, 7, 9 and 10; and (b) your negligent, unlawful or wilful acts or omissions in connection with these Terms.
13. Limitations on Liability13.1. Despite anything to the contrary (except for clause 12) and to the maximum extent permitted by law: (a) we will not be liable for any Consequential Loss; (b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including a failure to mitigate its loss; and (c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us paying you $100. 13.2. This clause 13 will survive termination or expiry of these Terms.
14. Exclusions to Liability14.1. Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with: (a) loss of, or damage to, any property or any injury to or loss to any person; (b) the Computing Environment; (c) your acts or omissions; (d) any public display or misuse of User Content; (e) any use or application of the Platform by a person or entity other than you, or other than as reasonably contemplated by these Terms; (f) any work, services, goods, materials or items which do not form part of the Platform (as expressed in these Terms), or which have not been provided by us; (g) any Third Party Inputs; (h) the Platform being unavailable, or any delay in us providing the Platform to you, for whatever reason; and/or (i) any event outside of our reasonable control. 14.2.You acknowledge and agree that: (a) you use the Platform and any associated programs and files at your own risk; (b) the technical processing and transmission of the Platform, including User Content, may be transferred unencrypted and involves: (1) transmissions over various networks; and (2) changes to conform and adapt to technical requirements of connecting networks or devices; (c) we may use third party service providers to integrate with the Platform or to host the Platform. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability; (d) the Platform may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services; (e) we do not guarantee that any file or program available for download and/or execution from or via the Platform is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used; (f) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by Authorised Users or the Account Holder; and (g) we may pursue any available equitable or other remedy against you if you breach any provision of these Terms. 14.3 This clause 14 will survive termination or expiry of these Terms.
15. Termination15.1. You may terminate these Terms at any time via the “cancel User Account” (or similar) feature in your User Account. 15.2. The Account Holder may terminate your access to your User Account or change your access privileges at any time at their discretion. If the Account Holder's account is suspended or terminated, we may also suspend your User Account, your access or terminate your User Account. 15.3. If we have reason to believe you are misusing the Platform or are otherwise in breach of these Terms, we may suspend and/or terminate your User Account at any time, by providing you with notice, in which case we will immediately cease providing the Platform to you. 15.4. Upon expiry or termination of these Terms: (a) we will immediately cease providing the Platform to you; (b) we will be entitled to hold User Content within the Platform unNl the Account Holder voluntarily removes it or their account with us is terminated. It may take up to 30 days before the User Content is removed from the Platform. You agree that User Content may remain in secured and encrypted back-ups for up to 1 year aKer expiry or termination of these Terms; and (c) immediately return (where possible) or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information and Intellectual Property). 15.5. Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it. 15.6. This clause 15 will survive the termination or expiry of these Terms.
16. General16.1. Access: The Platform may be accessed in Australia and overseas. We make no representation that the Platform complies with the Laws (including Intellectual Property Laws) of any country outside of Australia. If you access the Platform from outside Australia, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Platform. 16.2. Amendment: We may update these Terms at any time. Where we update these Terms we will notify you via an in-Account notification or via email. If you do not agree with any amendment you may terminate these Terms in accordance with clause 15.1. 16.3. Assignment: A Party must not assign or deal with the whole or any of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld). 16.4. Dispute: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. 16.5. Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer. 16.6. Entire agreement: These Terms contain the entire understanding between the ParNes, and supersede all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter. 16.7. Force Majeure : We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into these Terms) (Force Majeure Event). 16.8. Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it. 16.9. Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. 16.10. Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of transmission by email. 16.11. Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties. 16.12. Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
18. InterpretationIn these Terms, unless the context otherwise requires: (a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time; (b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time; (c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa; (d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it; (e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time; (f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally; (g) a reference to time is to local time in New South Wales; and (h) a reference to $ or dollars refers to the currency of Australia from time to time. For any questions and notices, please contact us at : Bagio Pty Ltd (ABN 68 651 616 732) Email: email@example.com. Last update: 11 December 2022