LOKE Digital Pty Ltd ABN 51 167 259 341, 41 Derby St, Collingwood, Victoria, Australia 3066 (“Tidy”)
The Party as detailed in the Schedule in the sign up form used to create an account to use the Tidy Application (“Client”)
a) Tidy is the owner, operator and/or licensee of the Tidy Application.
b) The Client wishes to obtain a licence to use the Tidy Application to promote itself and to advertise its own goods and services to customers.
c) Tidy is willing to grant, and the Client has agreed to accept, a licence for the Client to use the Tidy Application to advertise its goods and services in accordance with the terms of this Agreement.
Agreed Terms & Conditions
1. Defined terms & interpretation
1.1 Defined terms
In this Agreement:
Tidy Application means the software application used to deliver the Tidy service to the Client and any User and includes any improvements, enhancements, modifications or developments of that software (including any new releases and new versions) made available by Tidy.
Tidy Licence Fees and Charges mean the fees and charges payable by the Client to Tidy.
Tidy User Manual means all documentation provided by Tidy relating to the use of the Tidy Application by the Client.
Commencement Date means the date of execution of this agreement as specified by the acceptance of these terms and conditions of use by the Client in any format or such other date as otherwise agreed by the parties.
Confidential Information of a party means all information concerning the business or products and services of a party (including trade secrets and confidential know-how) disclosed by that party to the other party for the purposes of this agreement and includes all information relating to the Tidy Application (including its composition and method of operation), regardless of its form and whether the Client becomes aware of it before or after the Commencement Date.
Intellectual Property Rights or IPR means all intellectual property rights, including but not limited to, the following rights:
a) patents, copyright, rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential;
b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia), whether or not such rights are registered or capable of being registered.
Term has the meaning set out in clause 10.1.
Third Party Advertising means the promotion of goods or services using trade marks not owned by the Client.
Third Party Service means any third party software, application or website through which Client Content is available and which the Client has consented to Tidy's use of or interface to.
User means any user who accesses or interacts with the Tidy Application.
Client Content means any data, information, logos and other identifiers provided or made available by the Client to Tidy (whether personally via the Client's website(s) or otherwise using a Third Party Service nominated by the Client) and which is uploaded into and/or used in the Tidy Application. Client Content does not include any Third Party Advertising.
Website means the website operated by Tidy for the Tidy Application located at [www.tidyroi.com] or such other address as may be notified to the Client from time to time.
The Client must:
a) register and provide all information that is required by Tidy during (or at any time following) the registration process to use the Tidy Application; and
b) comply with the terms and conditions of this agreement and any other directions reasonably issued by Tidy from time to time regarding the Client's use of the Tidy Application.
2.2 Account responsibility
Tidy is not responsible for any activity that may occur as a result of disclosure of any information by the Client to Tidy or any third party. At all times the Client is solely responsible for all activity that occurs via the Client's account created under clause 2.1 and/or its use of the Tidy Application.
Tidy reserves the right to amend the Tidy Application (including any of its functionality) or the terms of this agreement at any time (including as a result of amendments made by a relevant Third Party Service to its functionality or terms and conditions of use). Subject to any right the Client has to terminate this agreement, any amendments made to these terms and conditions will be effective immediately on them being available on the Website and/or via the Tidy Application. The Client's ongoing use of the Tidy Application will constitute acceptance of the varied terms.
2.4 Third Party Advertising
Tidy reserves the exclusive right to include content advertising third party goods or services or its own advertising content as part of the Tidy Application. The Client must not use the Tidy Application for the display of Third Party Advertising without the prior written consent of Tidy.
Subject to the timely payment of the Tidy Licence Fee and compliance with the terms of this agreement, Tidy grants to the Client a revocable, non-exclusive, non-transferable licence to use the Tidy Application for the purpose of advertising its own goods and services during the Term.
3.2 Licence restrictions
The Client must not:
a) alter, adapt or modify the Tidy Application;
b) remove any of Tidy's copyright notices, logos or other marks from the Tidy Application;
c) reverse engineer or decompile the Tidy Application (except as permitted by law), or attempt to do so;
d) sell, assign or sub-license any of its rights or obligations under this agreement without Tidy's prior written consent; or
e) copy or reproduce (including engaging any other person to copy or produce) the Tidy Application by any means or in any form without Tidy's prior written consent.
3.3 Service limitations
The Client acknowledges that:
a) the Tidy Application is provided on an 'as-is' basis;
b) Tidy cannot and does not guarantee that access and use of the Tidy Application will be uninterrupted or that the Tidy Application will operate error-free;
c) Tidy and its licensors, contractors or partners have implemented reasonable security measures in relation to the Tidy Application, however Tidy is in no way responsible for any unauthorised access to the Tidy Application, or any disclosure, loss or corruption of Client Content.
4. Client Content
4.1 Tidy Application
The Tidy Application is a platform through which the Client can advertise its own goods and services. It is the Client’s sole responsibility to continually revise and update all of its Client Content.
The Client warrants that all Client Content:
a) does not, and its use and/or uploading to the Tidy Application will not, infringe the Intellectual Property Rights, confidentiality rights, or privacy rights of any person or organisation;
b) is not offensive, defamatory, obscene, vulgar, harmful, threatening, abusive, harassing or ethically objectionable, and its upload to and use in the Tidy Application will not breach any law or infringe the rights of any person;
c) is current, accurate and up-to-date;
d) contains no false, misleading or deceptive representations;
e) has only been uploaded after the Client has obtained any releases, permissions or consents required for use of its Client Content;
g) does not contain information about a third party or its goods and/or services unless the Client has the express permission of that third party to do so; and
h) which is uploaded by the Client will comply with any technical specifications and other requirements set out in the Tidy User Manual.
4.3 Client Content licence
The Client grants to Tidy, with effect from the Commencement Date a non-exclusive, irrevocable, perpetual, royalty-free licence to use the Client Content for any purpose in any form including, without limitation, in a de-identified form for benchmarking and statistical purposes in accordance with the Privacy Act 1988 (Cth).
Tidy reserves the right to reject, block, modify, suspend or remove any Client Content made available via the Tidy Application at any time.
By advertising its goods and services via the Tidy Application, the Client acknowledges and agrees that it:
a) is solely responsible for its advertising of its own goods and services via the Tidy Application; and
b) must resolve any complaints or disputes from recipients of the advertising to the satisfaction of Tidy whether referred to the Client by Tidy or otherwise.
i. monitor the Client’s use of the Tidy Application;
ii. customise any advertising or promotional material made available via the Tidy Application;
iii. obtain demographic or analytical data relevant to the Tidy Application;
iv. contact the Client with information regarding the Tidy Application; and
v. update or improve the Tidy Application.
b) Tidy may log information about any mobile device or computer used to access the Tidy Application (including the IP address, operating system and browser type of any User) and the date and time of access.
c) No data transmitted via the Tidy Application can be guaranteed to be secure. Any information the Client or its Users submit using the Tidy Application is done so at the Client’s sole risk.
6. Fees and payment
6.1 Fees and charges
a) In consideration for being provided access to the Application, the Client must pay to Tidy the Tidy Licence Fees and Charges.
b) The Fees and Charges may consist of an initial Setup fee as well as ongoing Monthly fees and any other fees as per Tidy deems appropriate based on features found in the Tidy Application. The Client acknowledges that all the Fees and Charges have been explained to them.
c) Unless otherwise notified by Tidy, the Tidy Licence Fees and Charges will be calculated monthly during the Term, or part thereof, beginning on the Commencement Date.
a) If required by Tidy, no later than 7 days after the end of each month during the Term, the Client must provide to Tidy a statement in writing setting out all information reasonably necessary to enable Tidy to calculate the Tidy Licence Fees and Charges payable for the preceding month.
b) Tidy will provide the Client with an invoice for the Tidy Licence Fees and Charges due and payable by the Client to Tidy and any other payments due and payable.
6.3 Payment terms
a) All invoices issued by Tidy must be paid within seven (7) days of the invoice date.
b) Tidy may require the Client to register a direct debit facility as a condition of the Clients's use of the Tidy Application either before or after the Commencement Date.
6.4 No Deduction
The Tidy Licence Fee must be paid in Australian or US dollars free and clear of any taxes imposed by or under the authority of any government or public authority.
If any amount payable under this agreement by the Client is outstanding, Tidy may (without limiting its other rights) suspend the Client’s access to the Tidy Application until all outstanding charges are paid in full.
The Client warrants that the information it reports pursuant to clause 6.2 (including all information regarding Third Party Advertising) will be current, complete, true and correct in every aspect.
7. Goods And Services Tax (GST)
7.1 Consideration does not include GST
Unless specifically described in this agreement as 'GST inclusive', any sum payable (or amount included in the calculation of a sum payable), or consideration to be provided, under or in accordance with this agreement does not include any amount on account of GST.
7.2 Gross up of consideration
Where any supply to be made by one party (Supplier) to another party (Recipient) under or in accordance with this agreement is subject to GST (other than a supply the consideration for which is specifically described in this agreement as 'GST inclusive'):
a) the consideration payable or to be provided for that supply but for the application of this clause (GST Exclusive Consideration) shall be increased by, and the Recipient shall pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply; and
b) the Recipient must pay that additional amount at the same time and in the same manner as the GST Exclusive Consideration payable or to be provided for that supply.
If any payment to be made to a party under or in accordance with this agreement is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that party, then the amount of the payment must be reduced by the amount of any input tax credit to which that party is entitled for that expense or other liability, such reduction to be effected before any increase in accordance with clause 7.2.
7.4 Tax invoices
The Supplier must issue a tax invoice to the Recipient in respect of any taxable supply made by the Supplier under or in accordance with this agreement, such tax invoice to be issued no later than 28 days after the Supplier receives the consideration for that taxable supply and the Recipient requests a tax invoice from the Supplier.
If an adjustment event has occurred in respect of a taxable supply made under or in accordance with this agreement, any party that becomes aware of the occurrence of that adjustment event must notify each other party to that taxable supply as soon as practicable, and all of those parties agree to take whatever steps are necessary (including to issue an adjustment note), and to make whatever adjustments are required, to ensure that any GST or additional GST on that taxable supply, or any refund of GST (or part thereof), is paid no later than 28 days after the Supplier first becomes aware that the adjustment event has occurred.
A word or expression used in this clause which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.
8. Intellectual Property Rights
8.1 Ownership and rights
The Client acknowledges and agrees that:
a) nothing in this agreement transfers or assigns to the Client any Intellectual Property Rights owned or used under licence by Tidy (including in or in relation to the Tidy Application);
b) all existing goodwill in the Tidy Application is vested, and all future goodwill in the Tidy Application will vest, in Tidy; and
c) the Client must not during the term or after termination of this agreement, apply for registration as a trade mark, domain name, business or company name any word or logo that is the same as, or substantially identical with or deceptively similar to any trade marks, business name or any other trade marks owned or used under licence by Tidy.
9. Liability and indemnity
a) To the extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute, custom or the common law are excluded from this agreement. Where legislation implies any condition or warranty, and that legislation prohibits Tidy from excluding or modifying Tidy Application of, or its liability under, any such condition or warranty, that condition or warranty will be deemed included but Tidy's liability will be limited for a breach of that condition or warranty to the minimum remedy provided for in that law.
b) If a supply by Tidy under these terms and conditions is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law, nothing contained in these terms and conditions excludes, restricts or modifies the Tidy Application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer Law permits Tidy to limit its liability, then Tidy's liability shall be limited to:
i. in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
ii. in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
c) The Client acknowledges that, to the extent permitted by law, Tidy (or any of its contractors) does not accept liability for any errors, omissions, expenses, losses or damages caused by:
i. the Client’s access to and/or use of the Tidy Application;
ii. the Client’s dealings with Users arising from use of the Tidy Application; and/or
iii. any failure of the Tidy Application (or in the networks or servers used to provide the Tidy Application).
d) As a condition of the Client’s use of the Tidy Application, the Client agrees to indemnify and keep indemnified Tidy and all of its officers, agents, employees or contractors (Personnel) against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against Tidy or its Personnel) that Tidy or its Personnel may sustain or incur as a result, whether directly or indirectly, of:
i. any breach of this agreement by the Client;
ii. the Client’s access to and/or use of the Tidy Application; and
iii. any loss of, or damage to, any property, or injury to, or death of, any person caused by the Client’s access to and/or use of the Tidy Application.
e) Tidy excludes all liability to the Client for any consequential, indirect, incidental or punitive loss or damages, however arising, including from a breach of a contract, tort (including negligence) or under statute.
10. Term & Termination
This agreement commences on the Commencement Date and will continue until terminated in accordance with this clause 10.
a) Tidy may terminate this agreement:
i. with immediate effect if the Client:
A. breaches a term of this agreement and does not rectify that breach within 7 days of a notice from Tidy requiring the Client to do so; or
B. becomes subject to any form of insolvency administration.
ii. without notice for any reason if Tidy deems it necessary to do so.
b) The Client may terminate this agreement:
i. with immediate effect if Tidy breaches a term of this agreement and does not rectify that breach within 90 days of a notice from the Client requiring it to do so; or
ii. the minimum term of this agreement on a Pay As You Go plan is four months, effective from the date of the first payment made by the Client to LOKE. Following this period either party can terminate this agreement with 30 days written notice. Any payments scheduled within the 30-day notice period are still required to be paid. If the Client is on a Pay As You Go plan no termination fees apply.
iii. if the client is on a 6-month plan, the “Termination Fees” are equal to 100% of the value of the remaining fees payable for the duration of the Agreement. If the client is on a 12 or 24-month plan, the “Termination Fees” are equal to 50% of the value of the remaining fees payable for the duration of the Agreement.
10.3 Consequences of termination
a) If this agreement expires or is terminated for any reason:
i. the Client’s licence to use the Tidy Application will immediately cease and Tidy may immediately suspend the Client’s access to the Tidy Application;
ii. the Client must immediately cease using all Intellectual Property Rights of Tidy that it was permitted to use during the term of the agreement; and
iii. the Client will stop using Tidy's Confidential Information and will return or destroy such Confidential Information as directed by Tidy.
b) Termination of this agreement under this clause 10 does not affect any accrued rights or remedies of either party.
10.4 Survival of certain provisions
The following clauses will survive expiry or termination of this agreement: clause 7 (Intellectual Property Rights), clause 9 (Liability and indemnity), clause 10.3 (Consequences of termination) and clause 12.6 (Governing law).
11. Confidential Information
11.1 Use and disclosure
a) may use Confidential Information only for the purposes of this agreement; and
b) must keep confidential all Confidential Information except:
i. for disclosure permitted under clause 11.2; and
ii. to the extent (if any) the Client is required by law to disclose any Confidential Information.
11.2 Permitted disclosure
The Client may only disclose Confidential Information to persons who:
a) have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and
b) before disclosure have been directed by the Client to keep confidential all Confidential Information (each a Direction).
The Client must:
a) ensure that each person to whom it discloses Confidential Information under clause 11.2 complies with each Direction; and
b) notify Tidy of, and take all steps to prevent or stop, a suspected or actual breach of any Direction.
11.4 Disclosure by law
If the Client is required by law to disclose any Confidential Information to a third person (including, but not limited to, government) the Client must:
a) before doing so:
i. notify Tidy; and
ii. give Tidy a reasonable opportunity to take any steps that Tidy considers necessary to protect the confidentiality of that information; and
b) notify the third person that the information is confidential information of Tidy.
12.1 Execution warranty
a) The Client warrants and represents to Tidy that:
i. the entry into this agreement by the Client has been properly authorised by all necessary corporate action; and
ii. it has full corporate power and lawful authority and the legal power to execute and deliver this agreement and to perform or cause to be performed its obligations under this agreement.
b) The individual person who purports to enter into this agreement on behalf of the Client in the manner prescribed by Tidy personally warrants that he or she has the express authority of the Client to bind the Client to the terms of this agreement.
Nothing in this agreement constitutes a relationship of employer and employee, principal and agent or partnership between Tidy and the Client.
Part or all of any provision of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining provisions of this agreement continue in force.
Tidy accepts no liability for any failure or delay in complying with this agreement where such failure or delay is due to circumstances beyond Tidy's reasonable control.
If Tidy waives any rights available to it under this agreement on one occasion, this does not mean that those rights will be automatically waived on any other occasion. Waivers must be in written form and signed by Tidy or its authorised representative.
12.6 Governing law
This agreement is governed by the law applicable in Victoria, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria, Australia.