Terms & Conditions

These terms and conditions comprise four separate sections as follows:

General Terms

These terms apply to all end users and may be changed by us from time to time at our discretion.

Licence Terms

All our products and services are subject to their own application-specific licence terms that apply to all end users of those products and services. The licence terms for all our products and services are based on the generic form of licence below. Please refer to the relevant application-specific licence terms (available on our web site) for any particular product or service you may be interested in using. Those terms will also incorporate (in particular) the relevant price and payment terms.

Direct Debit Terms

We invoice end users electronically and collect payment under a direct debit authority from their bank account or on their credit card. Direct debit arrangements are subject to these terms.

Trial Account Terms

A temporary facility is offered, subject to these terms, for you to trial certain products and services free of charge before making a buying decision. This temporary facility converts automatically to a standard licence (subject to our usual payment terms) at the end of the trial period unless, before the end of that period, you notify us (in accordance with these terms) that do not wish to proceed. There is a direct debit authority from you for sums payable under the relevant application-specific licence terms in any case where you do not give us notice in this way.

Please read these terms and make sure you understand them before accepting them.

GENERAL TERMS

These terms apply to all end users and may be changed by us from time to time at our discretion.

These terms apply to the use of this web site including the take-up of any product or service offered over it. In using this web site for these or any other purposes, you agree to be bound by these terms. If you do not accept them, you may not take up and product or service offered over it. These terms must be read in conjunction with any other applicable terms and conditions governing the use of this web site and any particular product or service offered on it.

Terminology

The expressions ‘we’, ‘us’ and ‘our’ are a reference to Spheritec Ltd or any other relevant company within the Spheritec Ltd group that may offer products or services.

References to services include the information service referred to under ‘Information Service’ below as well as other applications in the nature of a service from time to time provided or made available by us.

The term ‘including’ means ‘including but not limited to’.

The expression ‘terms’ means ‘terms and conditions’.

Amendment

We reserve the right to amend these terms from time to time. Amendments will be effective immediately upon notification on this web site. Your continued use of the web site, and of any of our products and services, following any such notification will represent an agreement by you to be bound by the terms as amended.

Grant of Licence

The right for any end user to make use of any of our products and services is governed by the terms of the relevant application-specific licence and, in addition, by these terms. These terms have general application to all our products and services.

Use of any of our products and services does not confer any right, title or interest to or in any of them and is not to be taken as evidencing any such right, title or interest. All such right, title and interest are (as between you and us) are at all times vested exclusively in us.

Membership

You must become a member in order to access the information offered in the member services area of this web site.

The member services area of this web site is a resource that is available to our channel partners, end users of our products and services, and others wishing to become members – for instance to receive information from us in relation to current and anticipated product and service offerings.

Please register by completing your details as described on this web site if you wish to become a member – you can do this by clicking here.

We may at our discretion accept or reject any application for membership but will, upon registering you as a member, notify you of your end user ID and password and any other relevant log-in information.

You must not disclose any end user ID, password or other log-in information to any person or entity.

You must ensure that your registration details are true and accurate at all times and must notify us promptly of any change to your registration details current from time to time.

We reserve the right to terminate your membership at any time if you breach any of these terms.

You must not (whether knowingly or otherwise) use any of our products and services:

for any unlawful purpose or in any manner which may infringe or violate any third parties rights; or
to transmit or upload any harmful files or unsolicited e-mail messages.

You must:

use our products and services in a manner that (according to standards of commercial behaviour and fair dealing generally accepted by reputable persons carrying on business in Australia and New Zealand) may reasonably be considered acceptable and in accordance with their expected use; and
not upload files for distribution via other electronic means or for any other use that (according to such standards) may reasonably be considered unfair, deceptive or illegal.

You, and you alone, are responsible for complying with any law or regulatory requirement from time to time in force relating in any way to the use, or otherwise, of any of our products and services.

You must make due and timely payment for our products and services in the manner specified in or pursuant to the relevant application-specific licence terms.

We may from time to time at our discretion adjust prices for any of our products and services but will notify end users in advance and allow them, if they wish to do so, to terminate their use of any of our products and services concerned.

Cancellation or Termination for Error

We make all reasonable efforts to avoid errors but may on occasion show incorrect price or other information in relation to products and services due to typographical error or clerical oversight. In any such circumstances (notwithstanding acceptance of any order or payment to us) we may at our discretion cancel any transaction affected or terminate any agreement concerned. We may do this at any time before delivery or supply of the relevant product or service and will on doing so immediately refund any relevant payment made to us.

Information Service

All information provided or made available by us pursuant to these terms is provided in good faith and as information of a general nature only. No such information is in any circumstances provided as advice, and you should not in any circumstances place any reliance upon it.

We derive our information from sources which we believe to be accurate and up to date as at the date of publication but nevertheless reserve the right to update this information at any time both before and after publication.

We do not make or give any representation or warranty that any information we provide is reliable, accurate or complete or that your access to that information will be uninterrupted, timely or secure.

You should make your own enquiries and consider seeking independent advice from relevant industry professionals before acting or relying on any information or material which is provided or made available to you pursuant to our information service.
You must use all information provided or made available by us lawful purposes only.

Notices

Notices by either of us to the other should preferably be given by e-mail as follows:

by us to you at your e-mail address notified by you on first entering into this agreement or other e-mail address from time to time current and duly notified to us; and
by you to us at support@datagard.com

They may also be given by post or fax as follows:

by post:

o by us to you at your registered office on public record from time to time; and

o by you to us at 338/50 Macquarie Street, Teneriffe, Queensland 4005, Australia; and

by fax:

o by us to you at any fax number from time to time published as your fax number on your web site or (whether in hard copy or electronic form) on any business stationery of yours; and

o by you to us at +61 7 3009 0067.

Notices given in accordance with these requirements will be deemed to have been duly delivered:

in the case of e-mail: upon transmission (as evidenced by an appropriate contemporary electronic record), if sent before 16:00 in the time zone of the recipient, and otherwise at 09:00 on the next day in the time zone of the recipient;
in the case of post: five days after posting (as evidenced by a receipt from the postal service); and
in the case of fax: upon transmission (as evidenced by a transmission report showing transmission in full of the relevant number of pages), if sent before 16:00 in the time zone of the recipient, and otherwise at 09:00 on the next day in the time zone of the recipient.

Notice periods are to be calculated from and including the day of delivery (established in accordance with the above provisions) to and including the last day of the notice period concerned.

Indemnity

You will indemnify us (and our related bodies corporate and our respective officers, employees and agents) against all actions, claims and demands (including the cost of defending or settling any action, claim or demand), on a full indemnity basis, which may be instituted against any of us arising out of any failure by you (or by any person, whether or not with your authority, using your end user ID or password or other relevant log-in information) to comply with these terms.

Disclaimer

This disclaimer does not attempt or purport to exclude liability arising under statute if, and to the extent, such liability cannot be lawfully excluded.
We do not make or give any representation or warranty that any of our products or services will meet your particular requirements.

You should make your own enquiries and consider seeking independent advice from relevant industry professionals before deciding to whether or not any of our products and services will meet your particular requirements.

We do not accept responsibility for any loss or damage (however caused and whether or not involving negligence on our part or the part of some other person or entity) which you may suffer, directly or indirectly, in connection with your use of this or any linked web site, or any of our products and services, including any such loss or damage arising out of your use of or reliance on information contained in or accessed through this web site.

Any condition or warranty which would otherwise be implied into these terms is hereby excluded to the full extent allowed by law. Any condition or warranty that, by law, cannot be excluded or, by law, cannot be limited in its application will apply on the basis that our liability under it will be limited to one or more of the following:

in any case where the breach relates to products:
- replacement of the products or the supply of equivalent products;
- repair of the products;
- payment of the reasonable cost of replacing the products or of acquiring equivalent products; or
- payment of the reasonable cost of having the goods repaired;

in any case where the breach relates to services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again; and

in any case where neither of these is allowed under applicable legislation, to the maximum extent permitted by applicable legislation.

Specific Warnings

It is your responsibility, and yours alone, to ensure that neither access to nor use of this web site (including our products and services) or any linked web site:

· exposes you to the risk of malicious computer code (including viruses, worms, trojans and spyware) or other forms of interference which may damage or compromise the integrity of any computer system owned or used by you; or

· is not prohibited or restricted by any law or regulatory requirement to which you may be subject.

You should make sure you are aware of and understand the effect of, the exclusions and limitations of liability contained in these terms – including those under ‘Information Service’ and ‘Disclaimer’ above.

Responsibility for the content of advertisements appearing on this web site (including omissions from them and links to advertisers' own web sites and any other web sites) rests solely with the advertisers. The placement of any such advertisements does not constitute a recommendation or endorsement by us of any of the advertisers' products and services.
This web site and information contained on it (including in relation to our products and services) have been prepared in accordance with Australian and New Zealand law and may not satisfy the laws and regulatory requirements of any other country. We do not warrant that this web site or any such information will satisfy the laws of any other country. It is your responsibility to determine whether they satisfy the laws and regulatory requirements of the jurisdiction in which you reside (if that jurisdiction is not Australia or New Zealand) and, accordingly, whether you may not order any products or services from this web site in compliance with them.
You should be aware that, despite all reasonable precautions on our part to avoid any such risk, there is a risk of unauthorised access to or alteration of your transmissions or data or of information contained on your computer system or on this web site. We do not accept responsibility or liability of any nature for any loss or damage which you may suffer, directly or indirectly, in this regard.

Copyright in this web site (including text, graphics, logos, business names, icons, sound recordings and software) is owned or licensed by us. Except as prescribed under applicable legislation, and in accordance therewith, you may not in any form or by any means:

adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of this web site; or
commercialise any information derived from or any product or service referred to in this web site;

without our written permission in each case.

Trade Marks

This web site includes trade marks which may be registered or subject to pending registration applications in certain jurisdictions. You must not use any such trade mark or any of our intellectual property:

in or as the whole or any part of any of your own trade marks or business name or company name;
in connection with activities, products or services which are not ours;
in a manner which may be confusing, misleading or deceptive; or
in a manner that may reasonably be considered as disparaging us or any of our information, products and services (including this web site);

and must not authorise or assist any person to do any of those things.

Restricted Use

Unless otherwise specifically authorised by us in writing:

you are provided with access to this web site only for your own specific use; and
you may not sell information derived from this web site.

You are authorised to print a copy of any information contained on this web site for your own specific use unless such printing is expressly prohibited.

Linked Web Sites

This web site may from time to time contain links to other web sites. We provide those links for convenience only and may or may not (at our discretion) maintain them or keep them current.
We are not responsible for the content of or any privacy practices associated with any linked web sites.

Any link to any other web site contained from time to time on this web site does not constitute a recommendation or endorsement by us of the owner or operator of any such other web site or of any of its material or information contained or referred to on it (including any third web site linked to it) except as otherwise expressly stated.

LICENCE TERMS

End User Licence Agreement

This agreement is between:

Spheritec Ltd ACN 115 851 477 – ‘we’ or ‘us’; and
The end user – ‘you’ (ie the person or entity intending to download [name of application]^TM).

Important Notice

[Name of application]^TM (‘the Software’) is made available by us for use by you under, and subject to, the terms and conditions of this agreement. You may not use the Software unless you enter into this agreement.

You should satisfy yourself that you understand and are willing to accept the terms and conditions of this agreement before entering into it. You enter into the agreement, and will be bound by its terms and conditions, if you click on the ‘agreed’ icon at the end of this agreement. Clicking on this icon will indicate:

that you have read and understood; and
that you approve and accept;

this agreement and its terms and conditions. Please read it in full before you click on the ‘agreed’ icon.

Terms and Conditions

1. Licence

We grant you, and you accept, a non-exclusive, non-transferable licence to use the Software in order to obtain computer data storage and retrieval services from us or a third party provider authorised by us.
Your licence is subject to the terms and conditions of this agreement.
You must run the Software only an operating system approved by us. Approved operating systems are shown on our web site and are subject to amendment by us from time to time without prior notice.
You may copy the Software on the hard drive or disc storage system within any personal computer of yours but not otherwise.
Any copy of the Software that you make must include this agreement as well as the copyright notice and all other proprietary and intellectual property designations contained in or on the Software.

2. Intellectual Property Rights

This agreement does not give you any right, title or interest in or to the Software but only with the right to use it in accordance with this agreement.
All right, title, and interest in and to:
- the Software (and all modifications, enhancements, and derivative works);
- all relevant intellectual property in respect of or associated with the Software (including trade secrets, patents, trademarks and copyrights, and rights of application therefor); and
- all copies of the Software (as distinct from the media on which it may be held);

are and remain at all times (as between you and us) vested exclusively in us.

3. Software Code

The Software is delivered and downloaded in object code only.
You have no right to take possession of, or to hold or use, the source code for the Software.
You may not in any way reverse-compile or otherwise reverse-engineer the Software.

4. Prohibitions on Dealing with the Software

You may not in any way:

modify the Software;
delete any part of the Software;
change any name or designation of any component of or file in the Software;
create any derivative work employing the Software or any part of it;
sell, distribute, or transmit the Software or any part of it; or
copy the Software or any part of it except in accordance with this agreement.

5. Term and Termination

This agreement continues unless and until terminated.
We may terminate this agreement by written notice to you if at any time you breach any of the terms or conditions of this agreement.
You may terminate this agreement at any time by written notice received by us not less than seven days before your regular billing date in which case we will not issue any invoice for any period after the end of your then current billing cycle.
All terms and conditions of this agreement relating to disclaimers of warranties, limitation of liabilities, remedies or damages, and our proprietary rights survive termination of this agreement.
Upon termination of this agreement all rights granted to you will cease and revert to us.
You must promptly upon termination of this agreement delete all copies of the Software in your possession or custody or under your control or that you have made.

6. Exclusion of Warranty and Liability

The Software is provided to you ‘as is’ without any warranty of any kind, express or implied, including as to merchantable quality and fitness for purpose.
All statutory and common law warranties and conditions are excluded to the full extent allowed by law.
You assume all risk associated with use of the Software including as to its quality and performance.
We have no liability for any loss or damage, direct or indirect, consequential or otherwise, (including loss of profit, business interruption, loss of information and third party claims) arising out of any use by you of the Software or any inability on your part to use the Software, even if we have been advised of or are otherwise aware of the possibility of any such loss or damage.

7. Miscellaneous

In this agreement the term ‘including’ means ‘including but not limited to’.
Any notice provisions in the general terms from time to time published on our web site apply in all respects for the purposes of this agreement.
We may at any time assign our rights to a subsidiary and require you to enter into a new licence (in all material respects on the terms of this agreement) with the subsidiary concerned to have effect from a date specified by us on not less than thirty days’ prior written notice.
This agreement is governed by, and to be construed in accordance with, New South Wales law.
You and we submit to the jurisdiction of the New South Wales courts.
Any term or condition of this agreement that may for any reason be ineffective will be deemed severed from this agreement and will not affect the validity of any other term or condition of this agreement. All other such terms and conditions will continue in full force and effect.
This agreement represents the whole agreement between you and us relating to the Software to the exclusion of any other term or condition, express or implied, whether or not the subject of any previous communication.

DIRECT DEBIT TERMS

We invoice end users electronically and collect payment under a direct debit authority from their bank account or on their credit card. Direct debit arrangements are subject to these terms.

Our Commitment to You

We will advise you by email of each monthly payment processed. Where the due date falls on a non-business day, we will draw the amount on the next business day.

We will not change the frequency of drawing arrangements without your prior approval. The amount drawn from your account will match your choice of products and services. All prices are in the currency specified in the relevant application-specific licence terms.

Any currency conversion will be made and charged only in accordance with the relevant application-specific licence terms.

We may immediately terminate your right to use any of our products and services (not limited to any particular product or service in respect of which payment is duly made) if full payment in cleared funds (without deduction or set-off) of any sum due under the relevant application-specific licence agreement (together with GST at the prevailing rate) is not received by us on first drawing under this direct debit authority.

We will keep all information pertaining to your nominated account at your financial institution private & confidential.

Your Right to Terminate

You may terminate our drawing rights under this direct debit authority at any time by written notice received by us not less than seven days before your regular billing date in which case we will not issue any invoice for any period after the end of your then current billing cycle.

In any such case we may immediately terminate your right to use any of our products and services to which your termination relates.

Resolution of Drawings Apparently Made Incorrectly

You should take the matter up with us promptly if you consider that any drawing under this direct debit authority has been made incorrectly - ie not in accordance with the relevant application-specific licence terms. Both you and we will use all reasonable endeavours (and generally act in good faith) to resolve the matter promptly and fairly to our mutual satisfaction.

Your Responsibilities

It is your responsibility to:

ensure that sufficient funds are available (in cash or undrawn credit facilities as appropriate) to meet each drawing on its due date;
ensure that the direct debit authority given to us for us to draw on your nominated account (whether involving your own funds or undrawn credit facilities) is identical to the signing instruction held by the relevant bank or other financial institution; and
to advise us in writing (together, if applicable, with details of alternative payment arrangements in compliance with the relevant application-specific terms) not less than seven days before your regular billing date if your nominated account (in relation to which this direct debit authority relates) is transferred or closed.

Notices

The notice provisions in the general terms from time to time published on our web site apply in all respects for the purposes of this direct debit authority.

TRIAL ACCOUNT TERMS

Trial Period

Trial is for a limited period only and may not be available for all products and services. The availability of any trial facility, and the length of trial period, may vary from time to time and are as indicated for any given product or service on our web site.

Use

During the trial period you may use the product or service concerned free of charge. Use is in each case subject to the relevant application-specific licence terms (available on our website) except that no payment applies for the trial period.Notices

You must use e-mail (support@spheritec.com) or log in to the account management system and follow the cancellation instructions (and not any other form of communication) to give us notice if you decide to terminate the trial period. The notice provisions in the general terms from time to time published on our web site apply in all other respects to any notice you may give us to terminate the trial period.