1.1

By agreeing to these Terms, you are entering into a binding legal agreement with Comestri Pty Ltd ACN 132 360 840 including its successors, assignees and related bodies corporate (defined in the Corporations Act 2001 (Cth)) (Comestri) and agree to comply with any and all applicable laws and regulations, whether domestic or international.

1.2

By purchasing, accessing or otherwise using any Comestri products, services and materials (including the Comestri SaaS and App) (Services), you agree to be legally bound by these terms of use (Terms).  If you do not agree to these Terms, you must cease using the Services immediately.

1.3

You warrant and represent to Comestri that you have read and understood these Terms and have the authority and legal capacity to enter into and be bound by these Terms and that you agree to pay any fees specified by us for the use of and access to the Services (Fees).

1.4

These Terms apply in addition to any other agreements provided to you by Comestri, including (where applicable), the Master SaaS Agreement (MSA).  If there is any inconsistency between any of these documents, the following order of precedence will apply: MSA and then these terms.

1.5

We reserve the right to audit your use of the Services and your compliance with these Terms.

1.6

The Comestri Privacy Policy (Privacy Policy) and Comestri Security Policy (Security Policy) are incorporated into these Terms.  You agree to comply with all such Terms when accessing or using our Services. In the event of any inconsistency, these Terms will take precedence.

2.1

You agree to allow Comestri to send you emails regarding the Services, including any information regarding or relating to our products, in accordance with our Privacy Policy.

3.1

Comestri IP includes but is not limited to all intellectual property rights in the Services, including but not limited to:

(a) all text, graphics, user interfaces, photographs, trademarks (whether registered or common law trademarks), patents, designs, copyright, any corresponding property rights under the laws of any jurisdiction, logos, and artwork including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such content, contained on or in our Services;

(b) any intellectual property rights in the Services and any related software, interface and documentation;

(c) all rights in respect of an invention, improvements, discovery, trade secret, secret process, know-how, concept, idea, information, process, data, formula or work product; and

(d) software, code, documents and all products and services developed in whole or in part by Comestri.

3.2

For the avoidance of doubt, Comestri IP does not include any data uploaded to the Services by you.

3.3

Subject to these Terms, on payment of the relevant Fee, Comestri grants you, solely for the period covered by the Fees, a limited, single-user, non-exclusive, non-transferable, non-sublicensable licence to access and use the Services, for sole use by you for the purposes of your business in accordance with these Terms (Licence).  You acknowledge that we may grant any other number of licences for the Services to any other parties.

3.4

The Licence will be valid for the time period covered by the Fees as specified by Comestri.

3.5

Comestri retains all title, rights in and ownership of the Comestri IP and reserves all rights not expressly granted to you in these Terms.  Unless explicitly stated herein, nothing in these Terms may be construed as conferring any licence to, or assignment of, any Comestri IP, whether by estoppel, implication or otherwise.

3.6

No licence in any Comestri trade marks is granted under these Terms.

4.1

In consideration of the Licence granted under these Terms, you agree to pay us all the Fees due according to these Terms and as notified to you by Comestri.

4.2

We reserve the right to modify the Fees, our pricing structure and pricing terms at any time with notice to you in writing. Any such modification will be effective immediately upon the next renewal, billing period, upgrade or downgrade of your Licence.  If you do not accept any increase in fees then you may terminate your licence within 30 days of notification to us of the revised fees, if we do not receive any termination notice from you within 30 days of the fee notification you are taken to have accepted the increased fees which will be applied to your next billing cycle.

4.3

All Fees are exclusive of all federal, state and other governmental taxes, goods and services tax and other such charges (Taxes).  You are required to pay all Taxes at the same time as your payment of the Fees.

4.4

Your billing cycle will commence on the date specified by Comestri or if no date is specified, on the date that you are created in the production environment for the Services.  Your Fees will be due and payable determined by your subscription type (for example monthly or annual) and determined by the date that your subscription commenced.

4.5

You warrant and represent to us that at all times during the term of your Licence you will ensure that we have valid and up to date payment details, including credit card details and you grant us the authority to automatically debit the Fees due to us from the payment methods you have provided to us, including credit card.  The parties agree that this authority will remain in force until either party validly terminates these Terms.  It is your responsibility to ensure that all charges processed are accurate.   You agree that you will notify us within 30 days from a billing date if any charge is not accurate after which date you will be deemed to have accepted all charges and to have waived any claim regarding a disputed charge.

4.6

Except as expressly set out under these Terms, or as required by law, the Fees paid or payable under these Terms are non-refundable irrespective of your use or non-use of the Licence.

4.7

You agree that we may charge interest on overdue amounts at the rate of 8% per annum, calculated daily from the due date of such amount until the date of actual payment and that we may suspend or terminate your Licence if any amount remains unpaid for more than 30 days after we have provided written notice to you.

4.8

You must not pay, or attempt to pay the Fees through any fraudulent or unlawful means.  If your payment is not able to be successfully processed, or if we, in our sole discretion, suspect that it has been paid for using any fraudulent or unlawful means, we may immediately suspend or terminate the Services.

5.1

Comestri may, in its absolute discretion, make further updates or new releases of the Services available to you. These Terms will continue to apply to your use of any such updates or new releases forming part of the Services unless otherwise stated by a separate agreement accompanying the update or new release.

5.2

Comestri is not obliged to issue any updates and/or new releases to you notwithstanding that they may be distributed to other parties.

6.1

To the extent that you upload, publish or transmit any data, content or other material through your use of the Services, you represent and warrant to Comestri that you own all rights including intellectual property rights in, or have authorisation for, or are otherwise legally entitled to upload, transmit or use such material. You indemnify and hold harmless Comestri, its affiliates, agents, principals, contractors or employees for any loss, liability, cost or expense arising from or in connect with any breach of copyright or any other claim that results from your publication or use of such material.

6.2

You agree that you will not, either alone or through any other party:

(a) make any copies of any Comestri IP;

(b) use the Services to transmit or upload any computer viruses, worms, Trojan horses or other malware, or to trespass or burden any network capacity;

(c) distribute, sub-licence, disclose, market, or offer remote computing or hosting services, or transfer of the Services to any party, or permit any person or entity to have access to the Services by any sharing, remote computing or hosting services or time-sharing arrangement;

(d) circumvent, disable or otherwise interfere with security-related features of the Services or features that determine whether you are acting in accordance with these Terms;

(e) use the Services in a way which impairs the functionality or reliability of the Services;

(f) use the Services to publish or disseminate content that may be found to be defamatory or illegal;

(g) use the Services to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party;

(h) remove, obscure, deface or alter any of Comestri or any third party’s copyright notices, trade marks or other proprietary rights affixed to the Services or any Comestri IP;

(i) copy, decompile, modify, reverse engineer, disassemble, attempt to derive the source code of, decrypt or modify the Services or any Comestri IP or any of their components except as expressly permitted by these Terms, or in writing by Comestri; or

(j) in any form, or by any means, adapt, reproduce, store, distribute, display, publish or create derivative works from any part of the Services or any Comestri IP without Comestri’s express written permission.

(k) You agree that Comestri may, in its absolute discretion, limit your access to, or use of, the Services if, in its opinion, your use of the Services is excessive or unreasonable or impacts on the usability or reliability of the Services for Comestri or other users, or breaches these Terms.

6.3

Comestri may, require that you remove or delete any content uploaded onto the Services or your account within 1 business day written notice to you, if Comestri considers (acting reasonably) that such content:

(a) infringes upon a third party’s rights (including intellectual property rights);

(b) is or is likely to be defamatory or to damage the reputation of Comestri; or

(c) creates any third party liability for Comestri.

6.4

You agree to use the Services in compliance with all applicable laws of the countries in which you or your customers reside, access or use the Services.

7.1

You acknowledge and agree that you have read, understood and agreed to the Privacy Policy and Security Policy, which outlines the parties obligations in relation to security, use and storage of data.

7.2

Access to the Services may require a unique access code, token, username and/or password (Security Credentials). You must not release, distribute, publish or otherwise make public any Security Credentials provided to you in relation to the Services to any person.

7.3

You agree that you are responsible for maintaining the security of any account, login and Security Credentials, and that you will keep such information confidential. You must immediately notify Comestri of any actual or suspected unauthorised use of your account details or any other breach of security.

7.4

If you provide Security Credentials to facilitate access to the Services (or to your data stored thereon) to any third party, you do so at your own risk. You must ensure that any such party accepts and complies with these Terms and you agree to remain fully liable to Comestri for the acts, omissions and negligence of that third party.

7.5

Comestri reserves the right to suspend or terminate the Services or any account relating to the Services where it believes there has been a breach of security in relation to an account.

8.1

You agree that Comestri may collect, maintain, process and use diagnostic, technical, usage and related information in relation to your use of the Services to provide and improve Comestri’s products and services, facilitate product support and verify compliance with these Terms.

8.2

For the purpose of this clause 8, Data means any of the following to the extent it relates to your business:

(a) data or information, in whatever form, either entered, uploaded or stored on the Services;

(b) information that you create using the Services; and

(c) information generated by the Services.

8.3

Comestri will, upon receiving a written request signed by a director after the termination of these Terms, delete your Data within 5 business days.

8.4 Comestri may, provide your Data to:

(a) a third party in order to comply with its obligations under these Terms,

(b) Comestri’s other related entities, in order to comply with its obligations under these Terms; or

(c) to a third party service provider or other party if you request disclosure or a connection with such party.

8.5

If Comestri provides your Data to any third party, Comestri will not be liable for that third party not complying with a request to delete that Data, provided that Comestri has requested that the third party delete your data.

8.6

You agree that any information you upload, record, create or otherwise store in the Services is stored by you at your own risk. The Services are not data storage or backup services. While Comestri makes every effort to prevent data loss, it does not warrant that its computers or services will be free from failures, corruption, security intrusion or interference. To the maximum extent permitted by law, Comestri shall have no liability to you for such corruption or loss of data.  You agree that it is your responsibility to regularly back up your data.

8.7

If you facilitate or permit access by any other party to your data in the Services you are solely responsible for the actions of that party. Comestri shall not be liable for any addition, modification or deletion of your information or data resulting from such access by any third party.

9.1

The Services may access, or contain links to, websites or services controlled by third parties. Comestri does not guarantee the availability, accuracy, completeness, reliability, or timeliness of such websites or services, nor its stock information, location data or any other data displayed or located thereon. You agree and acknowledge that Comestri is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of third party materials or websites. You agree that such actions are your responsibility.

9.2

You agree that Comestri, its affiliates, agents, principals, contractors or employees shall have no liability to you for content that may be found to be offensive, indecent, objectionable or illegal either on the Services or any third party website or software.

10.1

You may not assign, sell, lend, sub-licence or otherwise deal with or transfer your rights to access and use the Services to another party without prior written permission from Comestri.  For the purposes of clarity, if you are a company or trust, a change of control constitutes an assignment under these Terms.

11.1

The Australian Consumer Law (ACL) contains warranties, guarantees and conditions that cannot be excluded. These Terms do not purport to exclude, restrict or modify the application of the ACL where to do so would contravene the ACL or cause any part of these Terms to be void.

11.2

Subject to the above, and except for warranties that cannot be excluded by law, no warranty or representation, either express or implied is given by Comestri in respect to the Services, Comestri makes no warranty of merchantability or fitness for any particular purpose. You agree that your use of the Services is at your own risk, and that the Services are provided to you on an “as is” basis. Comestri’s express warranties in these Terms shall not be varied or increased and no obligation or liability shall arise out of Comestri rendering technical or other advice or service in connection with the Services.  It is your responsibility to ensure that the Services are appropriate for your proposed use.

11.3

Nothing in these Terms shall exclude or limit your liability for a breach of the licence or a provision of these Terms or a party’s liability which cannot be excluded or limited by law.   Save for the foregoing, neither party accepts and each party hereby excludes any liability for loss of or damage to tangible property other than that caused by its gross negligence and hereby excludes any other liability for negligence arising pursuant to these Terms.  Under no circumstances will either party be liable for: Loss of revenue, loss of actual or anticipated profits, loss of contractors, loss of finance, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation; loss of or damage to or corruption of data; or consequential or indirect loss, or special, punitive or incidental damages; whether foreseeable or unforeseeable, based on claims of your, Comestri or any third party arising out of any breach or failure of express or implied warranty conditions or other term, breach of contract, misrepresentation, negligence, other liability in tort, failure of any remedy to achieve its essential purpose or otherwise.

11.4

You agree that to the maximum extent permitted by law, in no event shall Comestri, its affiliates, agents, principals, contractors or employees or any party acting on Comestri’s behalf be liable for loss or damages (including, but not limited to direct or indirect, special, incidental or consequential damages), howsoever caused (including, but not limited to loss or corruption of data, loss of profit, failure to transmit or process data, system failures, business or service interruption), whether arising in contract, negligence, tort, equity or statute, in connection with, arising out of, or relating to, your use or inability to use the Services.

11.5

You agree that to the maximum extent permitted by law, any liability of Comestri that cannot be excluded by law is limited, at Comestri’s option, to the re-supply of the services or a refund of the total price actually paid by you to Comestri for the Services for the 12 months preceding the date of which the liability arose.

12.1

You agree to indemnify, hold harmless, release and discharge Comestri, its affiliates, agents, principals, contractors and employees in respect of any claim, action, cost, charge, expense, penalty, fine, payment,  loss or damage which Comestri suffers, incurs or is liable for, whether directly or indirectly, including, without limitation, any special, incidental or consequential damages and legal costs, arising from your act, omission or negligence or your use of the Services or your breach of these Terms.

12.2

You indemnify and hold harmless Comestri, its affiliates, agents, principals, contractors or employees against any loss, liability, cost or expense arising from or in connection with your use or misuse of the Services or your breach of these Terms.

13.1

These Terms commence on the Commencement Date as specified in the MSA and continue as set out in the MSA.

13.2

Without prejudice to any other remedies, Comestri may immediately suspend or terminate the Services, or these Terms, or cease offering the Services if:

(a) you are in breach of any obligation (including those relating to payment) under these Terms which has not been remedied after 7 days written notice;

(b) you have breached these Terms and that breach is not capable of remedy;

(c) any money payable to Comestri becomes overdue, or in Comestri’s opinion, if you will be unable to make a payment when it falls due;

(d) you become or are suspected to be, insolvent, convene a meeting with your creditors or propose or enter into an arrangement with creditors, or make an assignment for the benefit of your creditors; or

(e) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of you or any of your assets.

(f) any amounts owing to Comestri at the time of the suspension or termination, shall become immediately due and payable; or

(g) in its absolute discretion, at any time and without notice to you.

13.3

Comestri may terminate these Terms at any time and for any reason on 30 days notice without the requirement to provide you with reasons.  If Comestri terminates these Terms under this 13.3, then any pre-paid and unused portion of your Fees will be refunded, except as required by law, in no other instances will any Fees be refundable.  Comestri will not be liable to you for any further loss or damage arising out of or in connection with Comestri exercising its rights under this clause.

13.4

Comestri may suspend the Services and suspend your access to the Services or any part of the Services until any relevant Fees have been paid in full or until any breach of these terms or a licence agreement is remedied in accordance with the relevant licence agreement.

13.5

Upon termination of these Terms, Comestri may immediately remove any access to the Services, disable the Services and/or delete your account and data.

14.1

Amendment: Comestri may, in its sole discretion, modify these Terms or include new or additional terms regarding the use of the Services and Comestri’s associated software and services. Such modifications or additions are incorporated into these Terms and will be effective immediately upon notice to you. Your continued use of the Services will constitute your agreement to be bound by the Terms, as amended.   If you do not agree to the amended Terms, you may terminate these Terms and any relevant licence by providing written notice to Comestri within seven (7) days of the date of notification of the change and any pre-paid unused portion of your licence fees will be refunded.

14.2

Assignment: Except to a related body corporate, you may not without the prior written consent of Comestri transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under these Terms.

14.3

Benefit of Terms: These Terms are made for the benefit of the parties only and are not intended for the benefit of any third party or to be enforceable by a third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to these Terms are exclusive to each party and not subject to consent of any third party.

14.4

Counterparts: These terms may be agreed and executed by the parties in counterparts, online or by exchange of digital PDF copies and each document shall be deemed to be one and the same agreement. The parties may sign these Terms by the use of electronic or digital signatures and each party accepts that by so signing the person for each party who signs by electronic or digital signature is duly authorised by that party to sign for and on behalf of the party and each party agrees that it is bound by the terms and conditions of these Terms as a consequence of the use of an electronic or digital signature.

14.5

Entire Agreement: These Terms (and all other terms and conditions and policies that are incorporated by these Terms) make up the entire agreement, and supersede all prior written and oral agreements, representations, undertakings and understandings.  Where there is an inconsistency between these Terms and any additional terms, these Terms will prevail.

14.6

Force Majeure: You agree that Comestri will not be liable for any delay or failure to perform its obligations under these Terms if such delay is due to any circumstance beyond its reasonable control. If Comestri is delayed in performing its obligations due to such a circumstance for a period of at least one (1) month, Comestri may terminate these Terms by providing five (5) business days’ notice in writing.

14.7

Relationship of parties: The parties are independent contractors and nothing in these Terms gives rise to any other relationship in the nature of partnership, joint venture, agency employment or representative. Neither party shall have the right or power to create or assume any obligation or liability on behalf of the other party as a result of these Terms or any term, activity, right or obligation contemplated by these Terms.

14.8

Set-off: You shall not be entitled to set off against, or deduct from any amounts owed to Comestri, any sums owed or claimed to be owed to you by Comestri nor to withhold payment of any invoice because part of that invoice is in dispute.

14.9

Severability: If, for any reason, a court of competent jurisdiction finds any portion of these Terms to be unenforceable or ineffective, then that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remainder of the Terms shall continue in full force and effect.

14.10

Waiver: A waiver by a party of a provision or a right under these terms is binding on the party granting the waiver only if it is given in writing and is effective only in the specific instance and for the specific purpose for which it is given.

14.11

Governing law and jurisdiction: These Terms shall be governed by and will be construed in accordance with law of the State of New South Wales, Australia and without regard to conflict of law principles. The parties agree to submit without objection to the jurisdiction of the courts of New South Wales. The operation of the United Nations Convention on Contracts for the International Sale of Goods in respect of these Terms is expressly excluded.