Last updated: June 2013
Priava User Agreement
By clicking a box on our Website indicating your acceptance of these terms and conditions or by otherwise accessing or using the Priava Service, registering an Account, or subscribing to the Priava Service provided by us through our Website, you: (a) acknowledge that you have read, understood, and agree to be bound by these terms and conditions (User Agreement) and our Policies in your personal capacity or on behalf of the company or legal entity that you represent (Your Company); and (b) represent and warrant that you have the power, right and authority to act on behalf of and bind Your Company or yourself (as applicable). Any reference to “you” or “your” in this User Agreement is a reference to you in your personal capacity or to Your Company, as applicable. This User Agreement, together with our Policies which are incorporated by reference, form a legal agreement between you and Priava Pty Ltd ACN 078 592 908, Priava Limited Company Number 03759663 (Priava, us or we) in relation to your access to and use of the Priava Service. If you do not agree to this User Agreement or our Policies or do not have the power, right and authority to act on behalf of and bind Your Company or yourself, do not access or use the Priava Service, register an Account or subscribe to any Priava Service provided by our Website.
- Subscription to the Priava Service: You must register an Account to access and use the Priava Service. Accounts may be provided for specific Modules or on a single or multiple user (Authorised User) basis. You must provide us with certain personal information and your current email address in order to register an Account and access and use the Priava Service. We may use your notified email address to contact you or send you notifications, tax invoices and other communications from time to time. You acknowledge that we may be unable to provide you with the Priava Service or contact you unless you provide us with a current email address and agree to promptly update us if you change your email address. Accounts are only available to persons who are at least eighteen years of age or otherwise have the permission of an adult. Accounts must be applied for using the online registration process available on our Website. An application to register an Account constitutes an offer by you to register an Account and is subject to acceptance by us. We will confirm acceptance to you by sending you an e-mail or other notice confirming that your Account has been enacted. We reserve the right to refuse an application for registration of an Account by any person for any reason at our discretion. We will refund any Service Fee or other amounts paid in respect of an Account if we refuse the application to register the Account.
- Access to the Priava Service: You may be required to create your own unique username and password combination (Log-In Details) to access and use the Priava Service. You are responsible for submitting your own username and password as part of and in accordance with the requirements of the online Account registration process. You are responsible for taking all necessary steps to prevent unauthorised disclosure of or access to your Log-In Details. You are solely responsible for the actions of any person to whom you disclose your Log-In Details and are solely liable for (and indemnify, defend and hold harmless Priava, its related companies, officers, directors, employees, agents, contractors, licensors and suppliers from and against) all losses, liabilities, expenses, claims, proceedings, damages and costs of every kind and nature (Losses) suffered by any person directly or indirectly as a result of: (i) you disclosing your Log-In Details to a third party; (ii) you failing to take all necessary steps to prevent unauthorised disclosure of or access to your Log-In Details; or (iii) any person’s access to or use of your Log-In Details. You must notify us immediately by email if you have any reason to believe that your password has become known to anyone else without your authorisation, or if your password is being, or is likely to be, used in an unauthorised manner. In such a case, we will, within a reasonable time of being notified, cancel the relevant password and send to you by email to your last notified email address a temporary password to allow you to login to your Account and create a new password. Priava may require you to change your Log-In Details at any time if your Log-In Details are inconsistent with the terms of this User Agreement. You acknowledge that you are responsible for paying any third party fees (such as ISP connection and data fees and telephone charges) that may be required to access the Priava Service.
- Free Trial: If you register on our Website for a free trial, we will make the Priava Service available to you on a free trial basis until the earlier of: (a) the end of the free trial period notified by us or as set out on our Website; or (b) the start date of any purchased Priava Service ordered by you. Additional trial terms and conditions may appear on the trial registration page of the Website and are incorporated into this User Agreement by reference. Any of Your Content supplied by you during the free trial will be permanently lost unless you purchase the same Priava Service covered by the trial or export such data before the end of the trial period. Despite anything else in this User Agreement, the Priava Service is provided “as is” without any warranty during the free trial period.
- Licence: Subject to your compliance with the terms of this User Agreement and payment of the applicable Service Fee, Priava grants you a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Priava Service for the Term for your own internal business purposes in accordance with the terms of this User Agreement.
- Restrictions: You must not use the Priava Service in any manner or for any purpose other than as permitted by this User Agreement. You must not, or attempt to: (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Priava Service without our prior written consent; (b) reverse engineer, disassemble or decompile any software included in the Priava Service or apply any other process or procedure to derive the source code, algorithms, methods or techniques embodied in any software included in the Priava Service; (c) access or use the Priava Service in a way intended to avoid incurring fees or exceeding usage limits or quotas; (d) distribute, rent, loan, lease, resell, sublicense or otherwise transfer to any person or entity all or any part of the Priava Service or your rights in respect of the Priava Service; (e) use the Priava Service as a service bureau or permit use of or access to the Priava Service by any person who is not an Authorised User; (f) interfere with or disrupt the Priava Service, or servers or networks connected to any website through which the Priava Service is provided; (g) use the Priava Service in violation of any applicable law or regulation; (h) remove, alter, or obscure any copyright, trade mark, confidentiality or other proprietary notices, labels, or marks from, on or in relation to the Priava Service; or (i) use any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by Priava in connection with the Priava Service or access the Priava Service with any code, serial number, or other copy or access protection device not supplied by Priava directly or indirectly. During and after the Term, you will not assert, or authorise, assist, or encourage any third party to assert, against us or any of our related companies, customers, vendors, suppliers or licensors, any patent infringement, copyright infringement or other intellectual property infringement claim regarding any Priava Service you have used.
- Service Fee: Each Account is subject to payment of a Service Fee as specified on our Website. Service Fees may be charged on a monthly or annual basis at Priava’s discretion. Different Service Fees may apply to different types of Accounts or Modules as specified on the Website from time to time. Service Fees are payable in advance and are non-refundable except as expressly provided in this User Agreement. We will not accept an application to register an Account or provide any part of the Priava Service until the initial monthly or annual Service Fee payable in respect of the Account is received by us in full. We may change Service Fees or add other fees from time to time by notifying the changes on our Website at least 14 days before the changes come into effect. We suggest that you visit our Website regularly to keep up to date with any changes. Service Fees and all other fees, charges and prices are stated on our Website in Australian dollars and are exclusive of applicable taxes. You are responsible for paying all fees and taxes (including any goods and services or similar value added taxes) in respect of your Account and we reserve the right to charge you such applicable taxes in addition to the Service Fees. We may charge interest of 14% per annum on any Service Fees or other amounts owing to us that are not received from you by the due date of payment.
- Payment Method: All credit card and debit card payments are subject to validation checks and authorisation by the card issuer. If the issuer of your payment card refuses to or does not for any reason authorise payment for a particular Service Fee, the payment will not be processed. You may elect to have Service Fees automatically debited from your nominated bank account. If the applicable Service Fee is not automatically debited for any reason, we may cancel your Account or temporarily deny you access to the Priava Service until such time as payment of the Service Fee is received by us in full. We will give you separate tax invoices for each monthly or annual installment of the Service Fee in advance. We will send you an initial tax invoice for the relevant monthly or annual Service Fee as soon as practicable after you apply to register your Account. We will not register your Account or provide the Priava Service to you until payment of our initial tax invoice is received in full. You agree to pay each tax invoice in full within seven days of the date of invoice in accordance with the payment method and into the bank account specified for that purpose on the tax invoice or our Website from time to time. Each tax invoice will specify the date on which the Service Fee will be automatically debited from your nominated bank account if you elect to have Service Fees automatically debited at fixed monthly or annual intervals. You agree that we may send tax invoices to you by email addressed to your last notified email address from time to time. Other payment terms and conditions specified in each tax invoice apply.
- Changes to service: We may change or discontinue all or any part of the Priava Service or change or remove features or functionality of the Priava Service from time to time. We will notify you of any material change to or discontinuation of the Priava Service.
- Support: Priava will use reasonable commercial endeavours to provide you with Standard Support for the Term as part of the Priava Service, subject to the terms and conditions specified in Schedule 1. Standard Support is included in the Service Fee. Additional support or professional services beyond Standard Support may be provided by Priava on request subject to payment of additional fees calculated on a time and materials basis at Priava’s standard rates as published from time to time. For the avoidance of doubt, Priava is under no obligation to provide any support or professional services to you beyond Standard Support.
- Service Level Agreement: Priava will use reasonable commercial endeavours to make the Priava Service available to you and your Authorised Users in accordance with Service Level Agreement specified in Schedule 2 or as otherwise published on our Website from time to time. Any service credits available to you as specified in our Service Level Agreement will be the sole and exclusive remedy for failure to meet the identified service levels. Priava does not make any representations or guarantees related to uptime or availability of the Priava Service.
- Suspension: We may suspend your right to access or use any portion or all of the Priava Service immediately upon notice to you if we determine that your access and use of, or registration of an Account for, the Priava Service: (a) poses a security risk to the Priava Service or any third party; (b) may adversely impact the Priava Service or the systems or Content of any other Priava customer; (c) may subject us, our related companies, officers, directors, employees, agents, contractors, licensors, vendors, suppliers, customers or any third party to liability; or (d) may be fraudulent. We may also suspend your right to access or use any portion or all of the Priava Service immediately upon notice to you if we determine that: (a) you are in breach of this User Agreement, including if you fail to pay any Service Fee by its due date; or (b) you have ceased to operate in the ordinary course of business, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, insolvency, reorganisation, liquidation, dissolution or similar proceeding. If we suspend your right to access or use any portion or all of the Priava Service: (a) Service Fees continue to apply and you remain responsible for all Service Fees and other charges during the suspension period; (b) you will not be entitled to any service credits under our Service Level Agreement for any period of suspension; and (c) we will not delete any of Your Content except as otherwise specified in this User Agreement. Our right to suspend your right to access or use any portion or all of the Priava Service is in addition to our right to terminate this User Agreement pursuant to its terms.
- Term: This User Agreement commences on the date that we notify you that your Account has been enacted and ends when terminated in accordance with its terms.
- Termination without cause: You may terminate this User Agreement without cause at any time by giving us 14 days written notice. If you terminate this User Agreement in accordance with this clause, applicable Service Fees will not be refunded and any outstanding Service Fees and other fees become immediately due and payable. We may terminate this User Agreement and cancel your Account at any time without cause by giving you 28 days written notice. If we terminate this User Agreement in accordance with this clause, we will refund any upfront Service Fees you have paid on a pro rata basis to a bank account notified by you for that purpose within a reasonable time of termination.
- Termination for cause: Either party may immediately terminate this User Agreement by written notice to the other party if: (a) the other party is in breach of this User Agreement and fails to rectify that breach within 30 days notice of the breach; (b) the other party ceases to operate in the ordinary course of business, makes an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, insolvency, reorganisation, liquidation, dissolution or similar proceeding. We may immediately terminate this User Agreement by notice to you if: (a) any act or omission by you results in a suspension described in clause 11; (b) our relationship with a third party supplier that provides software, hosting services or other technology, products or services relied on by us to provide the Priava Service (Third Party Provider) expires or terminates; or (c) such Third Party Provider requires us to change the way we provide the Priava Service or any software as part of the Priava Service.
- Effect of termination: Upon termination of this User Agreement for any reason: (a) your rights under this User Agreement immediately terminate; (b) you and your Authorised Users must immediately cease using all and any part of the Priava Service; (c) subject to clause 13, all Service Fees and other charges become immediately due and payable; (d) you must immediately return to us or, if instructed by us, permanently destroy all Priava Content in your possession or control; (e) subject to 15 (f) we will promptly return to you in a format and timeframe to be agreed, all of Your Content in our possession; and (f) you must pay our costs of returning Your Content as applicable within 14 days of our invoice for such costs.
- Priava Content: You acknowledge and agree that Priava, its related entities, content suppliers, service providers and licensors (as applicable) own all right, title, and interest (including, without limitation, patent, copyright, trade mark, design, trade secret and all other intellectual property rights) in and to the Priava Service, the Website, any software forming part of the Priava Service and any other content, information, data or materials provided to you by us or through our Website or used in connection with, or generated by, the Priava Service (excluding Your Content). You agree not take any action, or assist or encourage any other person to take any action, to jeopardise, encumber, limit, or interfere in any manner with the ownership rights of Priava, its related entities, content suppliers, service providers and licensors (as applicable) in respect of the Priava Content. Information, materials and content displayed on or comprised by our Website, including but not limited to text, graphics, logos, button icons, images, the Website layout and software, is subject to copyright owned by Priava, its related entities or its content suppliers and is protected by the Copyright Act 1968 (Cth) and other international copyright laws. Brands, names, images and logos displayed on our Website may be the subject of registered trade marks of Priava, its related entities, affiliates or its service providers and protected by the Trade Marks Act 1995 (Cth) and other international trade mark laws. You may access, display, download and print portions of our Website only for your own private non-commercial use and to order products or services via the Website. This permission is subject to you not modifying the content displayed on our Website, keeping intact all copyright, trade mark, and other proprietary notices, and any additional restrictions or express exceptions displayed on the Website. Any other use of material on our Website, including but not limited to the reproduction, modification, distribution, transmission, re-publication or display of the content on the Website is strictly prohibited.
- Your Content: You retain all right, title and interest in and to Your Content and sole responsibility for Your Content. You agree that Your Content and your (and your Authorised Users) conduct in using the Priava Service will comply with all applicable laws, rules and regulations. By creating, submitting, posting or otherwise making Your Content available to Priava and/or others, you acknowledge and agree that you have evaluated and bear all risk associated with Your Content and under no circumstances will Priava, its related companies, officers, directors, employees, agents, contractors, licensors, vendors or suppliers be liable in any way for Your Content or any person’s use of Your Content, including any errors or omissions. You are solely responsible for properly configuring and using the Priava Service and taking your own steps to maintain appropriate security, protection and backup of Your Content. Priava personnel will not access Your Content except: (a) as part of providing, maintaining, securing or modifying the Priava Service; (b) at your request or with your consent as part of addressing or preventing a service, support or technical issue; or (c) in connection with a valid legal requirement such as in compliance with any law, regulation, search warrant, subpoena or court order. You must not upload via our Website any materials which infringe any third party’s copyright, patent, trade mark, trade secret, confidentiality, privacy or other proprietary or intellectual property rights or which violate any applicable law, statute, ordinance or regulation. You agree to comply with Priava’s procedures and policies in respect of uploading information and materials as specified on our Website from time to time. You warrant that you own all copyright in, or otherwise have the right to upload, reproduce and permit us to reproduce, Your Content. Solely to enable us to provide the Priava Service to you, you agree to grant us, or warrant that you have procured for us from the copyright owner or licensor, a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to do and authorise the doing of all acts comprised in the copyright in all of Your Content. Subject to your rights to return of Your Content under clause 15(e), we reserve the right to delete or destroy Your Content at any time after expiry, cancellation or termination of your Account or this User Agreement for any reason as applicable.
- Suggestions: You grant Priava a royalty-free, worldwide, perpetual, irrevocable licence to use and incorporate into the Priava Service any suggestions, enhancement requests, recommendations or other feedback provided by you in relation to the Priava Service or this User Agreement.
- Information on the Website: Information on our Website may or may not change from time to time. It is not promised or guaranteed to be correct, current, or complete. Our Website may contain technical inaccuracies or typographical errors. Priava assumes no responsibility (and expressly disclaims responsibility) for updating its Website to keep information current or to ensure the accuracy or completeness of any posted information. Accordingly, you should confirm the accuracy and completeness of all posted information before making any decision related to any products or services described on our Website.
- Third-party material: Our Website may provide links or references to third party websites (Linked Sites) or display material sourced from a third party (such as a service supplier, merchant or consumer) (Third Party Material). Priava is not responsible for and does not endorse the content of Linked Sites or Third Party Material, any use (or misuse) of information you may supply to or obtain from a Linked Site or any Third Party Material, or for any goods or services offered via Linked Sites or any Third Party Material. Priava does not warrant or represent the accuracy, utility or any other characteristic of Third Party Material or information or content appearing on any Linked Sites. Priava is not a party to or responsible for any transactions you may enter into with third parties, even if you learn of such parties (or use a link to such parties) from our Website.
- Viruses: You are responsible for protecting your computer from malicious or destructive content and programs such as viruses, worms and Trojans, and to protect your information as you deem appropriate.
- Use of our Website: We reserve the right to limit the volume of Your Content that you may upload at any time. You agree to comply with all applicable domestic and international laws (including common law) applicable to your use of our Website. Without limitation, you agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of our Website, including, but not limited to, by uploading or transmitting through the Website any viruses, worms, trojans or other potentially destructive programs designed to interfere with, interrupt or disrupt the normal operating procedures of the Website or any computer. You must not post on our Website, communicate or upload any material that is abusive, defamatory, obscene, contrary to law or to the rights of any party. Priava may block or delete any material posted to our Website or otherwise uploaded or communicated that Priava decides contravenes that requirement. You must not impersonate or misappropriate the identity of another person. You must not attempt to use our Website or any of its content to solicit others to participate in any organisation or commercial on-line service. Use of our Website in contravention of this User Agreement may result in you being banned from our Website, being liable to Priava for breach of contract and/or infringing applicable law.
- Disclaimer of warranty: Use of the Priava Service is at your sole risk. To the extent legally permitted, all materials, information, products, programs, software and services are provided “as is”, with no warranties or guarantees whatsoever. Priava expressly disclaims to the fullest extent permitted by law all express, implied, statutory and other warranties, guarantees or representations, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement of proprietary and intellectual property rights. Without limitation, Priava does not represent or warrant that the Priava Service (including any software forming part of the Priava Service and the functions of such software) will be uninterrupted, error-free or secure, that any defects will be corrected, or that the Priava Service or the server/s that makes the Priava Service available is free of viruses or other harmful elements. You agree that in using the Priava Service you have not relied on any statement or representation made by Priava not expressly contained in this User Agreement. You understand and agree that if you access, download or otherwise obtain materials, information, products, software, programs or services from the Website or otherwise forming part of the Priava Service, you do so at your own discretion and risk and that you will be solely responsible for any damages that may result, including loss of data or damage to your computer system. If applicable law prohibits the exclusion of any of the warranties, guarantees, conditions or representations referred to above, to the extent legally permitted, Priava limits its liability for breach of any such warranties, guarantees, conditions or representations to resupply of the affected products or services or payment of the cost of resupply of the affected products or services, at Priava’s discretion.
- Limitation of liability: To the extent legally permitted, in no event will Priava be liable to you or any other person for: (a) any direct, indirect, incidental, special, exemplary or consequential damages of any type whatsoever related to or arising from the Priava Service or any use of the Priava Service, or of any site, service, product or resource linked to, referenced or accessed through the Website, or for the use or downloading of, or access to, any materials, information, products or services, including, without limitation, any lost profits, business interruption, lost savings or loss of programs or other data; (b) your inability to access or use the Priava Service, including as a result of any (i) termination or suspension of this User Agreement or your right to access or use the Priava Service pursuant to the terms of this User Agreement, (ii) our discontinuation of any part of or all of the Priava Service for any reason or (iii) any unanticipated or unscheduled downtime of all or a portion of the Priava Service for any reason, including as a result of power outages, system failures or other interruptions; or (c) any unauthorised access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of Your Content or other data of any type, even if Priava is expressly advised of the possibility of such damages. This exclusion and waiver of liability applies to all causes of action, whether based on contract, warranty, tort (including negligence) or any other legal theories. To the extent that the above exclusion of liability is unenforceable, invalid or ineffective for any reason, it will be severed from this User Agreement and Priava’s maximum aggregate liability for all losses, damages and other amounts referred to in the above exclusion of liability under any cause of action referred to in the above exclusion of liability is limited to an amount equal to the total Service Fees paid by you during the 6 month period immediately preceding the event giving rise to the relevant claim.
- Indemnity: You agree to indemnify, defend, and hold harmless Priava, its related companies, officers, directors, employees, agents, contractors, licensors, vendors and suppliers (including AWS) from and against all Losses made or suffered by you or any other person due to or arising out of: (a) your access to and use of the Priava Service; (b) any violation of this User Agreement, any terms and policies it incorporates by reference, the rights of another party, any applicable law, statute, ordinance or regulation; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party intellectual property or other rights by Your Content or by the use, development, production, publication or display of Your Content; or (d) any activity related to your Account (including negligent or wrongful conduct) by you, any Authorised User or any other person accessing the Priava Service using your Internet account or your Log-In Details.
- Confidential Information: Each party may use the Confidential Information of the other party only in connection with the supply and use of the Priava Service as permitted under this User Agreement. Neither party will disclose the Confidential Information of the other party during the Term or at any time during the 5 year period following the end of the Term. Each party will take commercially reasonable measures to avoid disclosure, dissemination or unauthorised use of the other party’s Confidential Information, including, at a minimum, those measures each party takes to protect its own confidential information of a similar nature. You agree not to issue any press release or make any other public communication with respect to this User Agreement or use of the Priava Service. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this User Agreement.
- Alteration: Priava may alter the terms of this User Agreement and our Policies from time to time by posting the altered version on our Website. We will use reasonable endeavors to give you prior written notice of any alteration to the terms of this User Agreement and our Policies. You should visit the Website regularly to keep up to date with any alterations. By continuing to access and use the Priava Service or this Website, you accept the User Agreement current at the time you access and use it. In the case of an alteration, the altered User Agreement only applies after the alteration takes effect.
- Import and Export controls: You acknowledge and agree that your use of the Priava Service may be subject to compliance with United States and other applicable country export control and trade sanctions laws, rules and regulations (Export Control Laws). You are solely responsible for complying with applicable Export Control Laws and monitoring any modifications to them. You represent and warrant that: (a) you are not a citizen of, or located within, a nation that is subject to US trade sanctions or other significant trade restrictions (including, without limitation, Cuba, Iran, Sudan, Syria and North Korea); (b) you are not identified on any US government restricted party lists; and (c) no part of Your Content is subject to any restriction on disclosure, transfer, download, export or re-export under applicable Export Control Laws. You agree that you will not use the Priava Service to disclose, transfer, download, export or re-export, directly or indirectly, Your Content or any other content or material to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which you may be subject.
- Notices: Except as otherwise specified in this User Agreement, all notices, permissions and approvals must be in writing and will be deemed to be given upon: (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; and (d) the first business day after sending by email.
- Severance: If any part of this User Agreement is deemed unlawful, void or for any reason unenforceable then that provision is deemed to be severable from this User Agreement and does not affect the validity and enforceability of any of the remaining provisions of this User Agreement.
- Waiver: No failures to exercise and no delay in exercising on our part any right or privilege under this User Agreement operates as a waiver thereof. A waiver by us of any breach of this User Agreement does not prevent the subsequent enforcement of that provision and will not be deemed to be a waiver of any subsequent breach of that or any other provision.
- Survival: Clauses 5, 6, 15, 19, 26, 27, 28 and 29 survive termination or expiry of this User Agreement.
- Entire agreement: This User Agreement and any other document or policies referred to herein constitute the entire and only agreement between the parties in relation to its subject matter and replaces and extinguishes all prior or simultaneous agreements, undertakings, arrangements, understanding or statements of any nature made by the parties or any of them whether oral or written (and, if written, whether or not in draft form) with respect to such subject matter. Each of the parties acknowledges that they are not relying on statements, warranties or representations given or made by any of them in relation to the subject matters of this User Agreement, save those expressly set out in this User Agreement, and that, to the extent legally permitted, they have no rights or remedies with respect to such subject matter otherwise than under this User Agreement.
- Force Majeure: We will be under no liability to you in respect of anything which may constitute a breach of this User Agreement arising by reason of force majeure, or circumstances beyond our control including, but not limited to, acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, war, terrorism, civil commotion or civil authority, including acts of local government and parliamentary authority, inability to supply any part of the Priava Service, telecommunications failure, power outages, materials, breakdown of equipment and disputes of whatever nature and for whatever cause arising including, but without prejudice to the generality of the foregoing, work to rule, overtime bars, strikes and lock outs.
- Assignment: You are not allowed to assign, novate, delegate or sub-contract any of your rights and obligations under this User Agreement. We may assign, novate, delegate or sub-contract any of our rights and obligations under this User Agreement at our discretion.
- Relationship: Nothing in this User Agreement creates or is intended to create any relationship of agency, partnership, joint venture, employment or similar between the parties. You have no authority to bind us or our related entities in any way.
- Applicable law: This User Agreement is governed by and must be construed in accordance with the law of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and its appellate courts.
Definitions: For the purposes of these Terms:
Account means the online user account which must be registered in order to subscribe to, access and use all or part of the Priava Service.
Authorised Users means individual users (identified by name or total number) which are expressly authorised by Priava to access and use the Priava Service through your Account.
Confidential Information means, in respect of a party, all non-public information disclosed by that party, its affiliates, business partners or their respective employees, contractors or agents to the other party that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential, including: (a) non-public information relating to technology, customers, business plans, promotional and marketing activities, finances and other business affairs; and (b) third-party information that the disclosing party is obligated to keep confidential. Confidential Information does not include any information that: (a) is or becomes publicly available without breach of this User Agreement; (b) can be shown by documentation to have been known to the receiving party at the time it is received; (c) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (d) can be shown by documentation to have been independently developed by the receiving party.
Content means any information, software, data, text, audio, video, images, documents or other materials or content (tangible or intangible). you, or any other person (including merchant) authorised by you, provide us or upload to our database via this Website from time to time for future access by you and your Shared Users through the Website.
Modules means the different modules of the software comprising the Priava Service as described on the Website from time to time.
Priava Content means Content that Priava or any of its related entities, content suppliers, service providers or licensors make available in connection with the Priava Service or on the Website to allow access to and use of the Priava Service.
Priava Service means: (a) the venue and event management software Module and any other software, applications and solutions made available by Priava to end users via the Website from time to time for which you have registered an Account; (b) the provision of access to such software, applications and solutions; and (c) the supply by Priava of the Standard Support.
Service Fee means the annual or monthly subscription fees payable to register an Account and access and use all or part of the Priava Service (including in respect of each Module) at the rates specified on the Website or as otherwise agreed between you and Priava.
Standard Support means the standard support services provided by Priava as part of the Priava Service and as specified in Schedule 1 to this User Agreement.
Term has the meaning given in clause 12.
Website means the website located at www.priava.com, any website which replaces that website from time to time and any other application distribution platform (including mobile applications) through which Priava provides the Priava Service.
Your Content means Content that you or any Authorised User: (a) runs on the Priava Service; or (b) upload to the Priava Service under your Account.
Your Personal Data means personal data supplied by you to Priava for the purposes of the Priava Service or otherwise in connection with this User Agreement.
SCHEDULE 1 – STANDARD SUPPORT
1. Standard Support
Programming and diagnostic services necessary to correct any material errors or malfunctions of the Priava Service comprising the following:
a) help desk to provide operational problem diagnosis and correction services in respect of the Priava Service by telephone available only between GMT (London) & AEST (Sydney) 9am – 5pm Business Days; and
b) answering application and procedural questions over the telephone to explain functions and features of the Priava Service to a maximum of five (5) hours per month.]
2. Your obligations
The provision of Standard Support is subject to you:
a) providing us with access to and use of all information necessary to provide the Standard Support;
b) maintaining, or cause to be maintained, all computer equipment that is used in connection with the Priava Service in a manner that does not in any way interfere with the operation of the Priava Service;
c) maintaining a daily backup and recovery procedure for Your Content and all data files for reconstruction of lost or altered files, data or programs;
d) following routine operator procedures as specified in any associated computer equipment operating manuals;
e) [providing and maintaining a telephone line, dial-up port and modem for scheduled use by Priava personnel while providing Standard Support];
f) ensuring that you and all Authorised Users have completed the appropriate training courses regarding use of the Priava Service as may be required by Priava from time to time; and
g) assuming responsibility for all telephone charges related to Standard Support.
3. Conditions of Service
a) Priava is under no obligation to provide or perform any Standard Support or any other support, technical or professional services if any such support or services are required because of any improper use, damage, modification or accident of or to any equipment used in connection with the Priava Service, caused by anyone other than Priava.
b) You acknowledge and agree that Priava will not be responsible for any file maintenance and any associated costs, error, data corruption, operational scheduling conflicts, or Priava Service failure caused by the misuse of the Priava Service due to any negligence, error, malicious intent, or misunderstanding, by you. In the event of such errors, Priava may use reasonable commercial efforts to assist you in correcting such error at your sole expense.
c) If any Standard Support or other support, technical or professional services are required as a result of the causes stated above, such support and services may be provided by Priava if requested by you at Priava’s sole discretion and will be subject to additional fees calculated on a time and materials basis at Priava’s standard rates as applicable and published from time to time.
d) Priava refuse to provide Standard Support if you use the Priava Service in conjunction with any third party software or equipment which has not been certified as being compatible by Priava.
e) Priava may immediately suspend Standard Support by written notice to you if you are in arrears of payment for any Service Fee for thirty (30) days or more. Standard Support will not be resumed until the Service Fee is paid in full.
f) In cases where backup and/or disaster recovery for any part of your system or Your Content is performed by a third party, you will be responsible for paying any fees incurred as a result of backup and restore operations.
g) The provision of Standard Support is subject to a reasonable use limitation at Priava’s discretion.
SCHEDULE 2 – SERVICE LEVEL AGREEMENT
This Service Level Agreement (SLA) is a policy governing the use of the Priava Service under the terms of the User Agreement between Priava and you. This SLA applies separately to each Account. Unless otherwise provided herein, this SLA is subject to the terms of the User Agreement and capitalized terms will have the meaning specified in the User Agreement. We reserve the right to change the terms of this SLA in accordance with the User Agreement.
Priava will use commercially reasonable efforts to make the Priava Service available with an Annual Uptime Percentage of at least 99.95% during the Service Year. In the event Priava does not meet the Annual Uptime Percentage commitment, you will be eligible to receive a Service Credit as described below.
Service Year is the preceding 365 days from the date of an SLA claim.
Annual Uptime Percentage is calculated by subtracting from 100% the percentage of 5 minute periods during the Service Year in which the Priava Service is unavailable to you. If you have been using the Priava Service for less than 365 days, your Service Year is still the preceding 365 days but any days prior to your use of the Priava Service will be deemed to have had 100% availability. Any downtime occurring prior to a successful Service Credit claim cannot be used for future claims. Annual Uptime Percentage measurements exclude downtime resulting directly or indirectly from any Priava Exclusion (defined below).
Unavailable means that all of your running instances of the Priava Service have no external connectivity during a five minute period and you are unable to launch replacement instances.
Eligible Credit Period is a single month, and refers to the monthly billing cycle in which the most recent Unavailable event included in the SLA claim occurred.
Service Credit is a dollar credit, calculated as set forth below, that we may credit back to an eligible Account.
Service Commitments and Service Credits
If the Annual Uptime Percentage for a customer drops below 99.95% for the Service Year, that customer is eligible to receive a Service Credit equal to 10% of their bill for the Eligible Credit Period. To file a claim, a customer does not have to wait 365 days from the day they started using the service or 365 days from their last successful claim. A customer can file a claim any time their Annual Uptime Percentage over the trailing 365 days drops below 99.95%.
We will apply any Service Credits only against future Service Fee payments otherwise due from you; provided that, we may issue the Service Credit to the credit card that you used to pay the Service Fee for the billing cycle in which the error occurred. Service Credits shall not entitle you to any refund or other payment from Priava. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar ($1 AUD). Service Credits may not be transferred or applied to any other Account. Unless otherwise provided in the User Agreement, your sole and exclusive remedy for any unavailability or non-performance of the Priava Service or other failure by us to provide the Priava Service is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA.
Credit Request and Payment Procedures
To receive a Service Credit, you must submit a request by sending an e-mail message to email@example.com. To be eligible, the credit request must (i) include your Account number in the subject of the e-mail message; (ii) include, in the body of the e-mail, the dates and times of each incident of Unavailable that you claim to have experienced including instance ids of the instances that were running and affected during the time of each incident; (iii) include your server request logs that document the errors and corroborate your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks); and (iv) be received by us within thirty (30) business days of the last reported incident in the SLA claim. If the Annual Uptime Percentage of such request is confirmed by us and is less than 99.95% for the Service Year, then we will issue the Service Credit to you within one billing cycle following the month in which the request occurred. Your failure to provide the request and other information as required above will disqualify you from receiving a Service Credit.
The Service Commitment does not apply to any unavailability, suspension or termination of the Priava Service, or any other Priava Service performance issues: (i) that result from a suspension described in clause 10 of the User Agreement; (ii) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of the Priava Service; (iii) that result from any actions or inactions of you or any third party; (iv) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control); (v) that result from failures of individual instances not attributable to Unavailability; or (vi) arising from our suspension and termination of your right to use the Priava Service in accordance with the User Agreement. If availability is impacted by factors other than those explicitly listed in this Service Level Agreement or the User Agreement, we may issue a Service Credit considering such factors in our sole discretion.
Last updated: June 2013
Priava Pty Ltd ACN 078 592 908 and our Related Companies (together referred to as Priava, us or we) recognise the importance of privacy protection. Accordingly, Priava Pty Ltd complies with the Privacy Act 1988 (Cth) (the Privacy Act).
If you would like to know more about data protection generally in Australia and the European Union, there is information available from the: (a) Australian Information Commissioner (at www.privacy.gov.au); (b) UK Information Commissioner’s Office (at www.ico.org.uk); and (c) European Commission Data Protection Officer (at www.ec.europa.eu/dataprotectionofficer/).
What types of Personal Information do we collect?
Personal Information we collect from you will depend on how you use the Website, whether you have registered an Account for the Website or are just a visitor to the Website. Personal Information we collect from you may include your name, postal address, email address, telephone number/s, Website Log-In-Details, billing information, credit card number and expiry date and other information required for payment for products and services provided by us through the Website and information necessary for us to provide the Priava Service to you.
How do we use your Personal Information?
to register your Account or otherwise register you to use the Website;
to provide you with information you request about us or the products or services we offer through the Website;
to manage the Website (including your Account);
to provide products or services you request from time to time, including the Priava Service;
to process and obtain payment for any products or services you order from us through the Website;
to understand your needs and Website usage to help us improve the Website, our marketing or the way we do business;
if necessary, to verify your identity or age (i.e. over 18); and
to contact you for direct marketing and promotional purposes including providing you with information about new products or services, events and special offers, unless you tell us that you do not wish to receive this type of information.
From time to time we may also ask you to participate in surveys or questionnaires. These help us to improve our levels of service and to maximize the opportunities and benefits you can enjoy.
We may send you electronic messages updating you about products, services, free trials and other offers. We will only send you such electronic messages if you have consented to receive them or it can be inferred from your existing business or other relationship with us, that there is a reasonable expectation of receiving those electronic messages. All electronic messages will identify us.
How do we use information that is not Personal Information?
From time to time we may sell or disclose information you provide us that is not Personal Information or does not disclose your identity or the identity of any individual to any person for any purpose at our sole discretion, including to people or companies located outside of Australia. For example, we may sell, disclose or use information you provide us that is not Personal Information to determine what advertising, promotional materials, products or services are likely to be of most interest to you or other Website visitors and to assist merchants and other third parties to monitor general consumer trends in various areas.
How do we collect your Personal Information?
We collect Personal Information from information you provide directly to us when you set up an Account and register to use the Website, use the Website or the Priava Service, pay for a service provided by the Website, contact us, participate in surveys or questionnaires and from information you upload to the Website from time to time.
What happens if you don’t provide us with the information we require?
If you don’t provide us with certain information, we may be unable to provide you the information, products or services you wish to buy or receive, including the Priava Service.
Personal Information security
We will take commercially reasonable and appropriate steps to ensure your Personal Information is protected from risks such as loss, unauthorised access or use, destruction, modification or disclosure. Aside from the disclosure or transfer of your Personal Information to AWS and between our Related Companies (see “Where your information is stored” below), we only permit our authorised personnel to access your Personal Information.
The Internet is not a secure method of transmitting information. Accordingly, we cannot accept responsibility for the security of information you send to or receive from us over the Internet or for any unauthorized access, use or modification of that information.
Payment card information
We may keep a record of your credit or debit card number if you choose to pay us directly for the Priava Service or any other products or services offered by us through the Website, particularly if you wish to have payments automatically debited from your nominated bank account at fixed intervals. We may keep details of your credit or debit card expiry dates and credit limit in order to provide you with products and services we offer through the Website.
Using 3rd parties to process your information
We may occasionally use third party companies (third party service providers) to manage information that you provide in order for us to provide the Priava Service. Aside from the disclosure or transfer of your Personal Information to AWS or between our Related Companies (see “Where your information is stored” below), when we use third party service providers, we keep the amount of Personal Information they hold to a minimum, have contracts in place to stop them using your information except on our behalf and obviously use commercially reasonable efforts to make sure they are as careful with your Personal Information as we are.
Where your information is stored
Your rights of access and correction
You have the right to access Personal Information which we have collected from you and ensure that it is correct and up to date, within the requirements of the Privacy Act.
We may withhold or refuse you access to your Personal Information if we are legally authorised to do so or where its disclosure to you is restricted by law, is the subject of legal action, or may compromise the privacy of another person.
We may charge you a reasonable fee to access your information if permitted by applicable law.
How can you stop receiving marketing information?
Where marketing information is forwarded to you via electronic messages, there will be a functional ‘unsubscribe’ mechanism contained in the message.
If you no longer wish to be contacted by us or receive such marketing information, you can advise us:
by emailing us at firstname.lastname@example.org; or
by clicking the ‘unsubscribe function’ (where marketing information is sent electronically).
We will keep a record of your request to ensure you do not receive that information in the future.
You cannot refuse to receive information which we are required to provide you by law.
Personal Information means any information or data which relates to a living individual who can be identified from, or whose identity is apparent or can reasonably be ascertained from, that information or data alone or in conjunction with other information already held by the recipient, controller or processor of such information or data and includes any expression of opinion about the individual and any indication of the intentions of the recipient or any other person in respect of that individual; and
Priava User Agreement means the Priava User Agreement available on the Website at www.priava.com/terms as updated from time to time which you must read and accept as a condition of registering an Account and otherwise accessing and using the Priava Service