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INTRODUCTION

The Company provides the ABSIA Website, including the software Product Catalogue and other web-based services for its members and the public. Use of the ABSIA Website by Members is subject to these Member Terms of Use in addition to the Website Terms.

DEFINITIONS

The following terms are used regularly throughout these Member Terms of Use and have a particular meaning:

(a)                ABN means Australian Business Number.

(b)                ABSIA Website means the ABSIA web-service accessible from www.absia.asn.au, or any other URL operated by ABSIA from time-to-time.

(c)                Agreement means the agreement formed between the Users and the Company under, and on the terms of, these Member Terms of Use.

(d)                Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.

(e)                Company means Australia Business Software Industry Association Limited ABN 72 165 915 640.

(f)                 Constitution means the Constitution of the Australia Business Software Industry Association Limited accessible at:

http://www.absia.asn.au/data/ABSIA_Final_Constitution.pdf.

(g)                End User means an unregistered user of the ABSIA Website.

(h)                Fee means a fee charged by the Company for use of the ABSIA Website.

(i)                 GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(j)                 Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.

(k)                Listing means a listing that describes a Product within the Product Catalogue.

(l)                 Member means a registered user of the ABSIA Website, that uses the features associated with a Member account.

(m)              Membership Fee means a Fee charged by the Company on a periodical basis for use of the ABSIA Website as a Member and/or membership with ABSIA.

(n)                Privacy Act means the Privacy Act 1988 (Cth).

(o)                Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at https://www.absia.asn.au/page/privacy-policy.

(p)                Product means a software product or service.

(q)                Product Catalogue means the catalogue of Listings accessible on the ABSIA Website.

(r)                 Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(s)                Member Terms of Use means these terms and conditions of using the ABSIA Website that apply to all Members, as updated from time-to-time, which can be found at https://www.absia.asn.au/page/member-terms-of-use.

(t)                 User means any registered Member or End User that uses the ABSIA Website.

(u)                User Content means images, information, documents or other data that is uploaded or input into the ABSIA Website by the User or that forms part of the User’s Intellectual Property, including a Listing.

(v)                Website Terms means the ABSIA Website Terms of Service accessible at https://www.absia.asn.au/page/website-terms-of-service.

1               USING the ABSIA Website

1.1           General

(a)            To use the ABSIA Website as a Member, the Member must log into the ABSIA Website and have set up their account.

(b)            A Member that holds a free Member account that uses the ABSIA Website during a free trial, or that has not otherwise paid a Membership Fee acknowledges that:

i                 The Member may not qualify as a Member under the Constitution, but agrees to comply with the Constitution while using the ABSIA website as if they were a fully paid member of the Company;

ii                The Member uses the ABSIA Website entirely at their own risk; and

iii               To the extent permitted by law, the Company shall have no liability to the Member in relation to the ABSIA Website.

(c)            The Member agrees that all use of the ABSIA Website by the Member is subject to:

i                 These Member Terms of Use;

ii                The Constitution;

iii               The Website Terms; and

iv              The Privacy Policy.

(d)            Failure to comply with the Constitution and/or Website Terms shall be deemed a breach of this Agreement.

(e)            Use of the ABSIA Website as a Member is only available to Users over the age of 18.

(f)              The Member shall be responsible for paying the Fees for using the ABSIA Website.

(g)            The Company may suspend the account or restrict the access of any Member that breaches the terms of this Agreement.

1.2           Features

(a)            The ABSIA Website may allow a Member to:

i                 Manage their Member account;

ii                Create and manage Listings;

iii               Access news;

iv              View and post in the ABSIA Member’s Forum;

v               Access the ABSIA reference library (if available); and

vi              Such other features as the Company may make available to Members from time-to-time.

(b)            Features may differ depending on the Member’s class of membership, in accordance with the Constitution.

1.3           Listings in the Product Catalogue

(a)            A Member shall be able to create a Listing for any Product that the Member:

i                 Develops or sells; or

ii                Is otherwise authorised to do so by the owner of the Product.

(b)            Each Member is responsible for ensuring the accuracy of all information described in a Listing.

(c)            The Company makes no representation as to the accuracy of any information contained in a Listing.

(d)            Where a Member creates a Listing, the Company may require the User to verify whether it is the owner of the business that sells or operates the Product, or is otherwise authorised by the owner of the Product. The Company may require the Member to provide such additional information as the Company may reasonably request. The Company may decline a Listing in its sole discretion, if the Member fails to satisfy the Company that the Member is authorised to create the Listing for the Product.

(e)            The Company may restrict or provide additional features in relation to a Listing depending on the Member’s class of membership, as described on the ABSIA Website.

(f)              The Company may at its discretion:

i                 Approve or decline to publish a Listing within the Product Catalogue; or

ii                Remove any Listing.

1.4           No Inappropriate Products.

(a)            No Member may create a Listing for any Product that the Company in its sole discretion determines is inappropriate. In general the Company shall consider a Product to be inappropriate if the Company determines it is (without limitation) offensive, of poor quality or that is not available for purchase.

(b)            The Company may remove any User Content that suggests that a user is selling Products (or any other good or service) that the Company determines is inappropriate.

(c)            The Company may, at its discretion, remove any Listing that is for a good or service, or relating to any subject matter that is not a Product.

2               Fees, payments & refunds

2.1           Fees

(a)            The primary Fee to use the ABSIA Website shall be the Membership Fee, which is payable in advance (after any free trial period has expired).

(b)            Each Fee applies in accordance with such membership class, features, and/or services subscribed for by the Member in accordance with the pricing described on the ABSIA Website, or as otherwise agreed with the Company.

(c)            The Member agrees to make payment in advance for all Fees due at such frequency, or on such dates as the Member has subscribed for.

(d)            All payments shall be made by credit card via the online payment gateway within the ABSIA Website, or in such other manner as the Company may direct from time-to-time. The Member agrees that it has no right to access the features available to Members on the ABSIA Website if it fails to make payments when due.

(e)            The Company reserves the right to introduce or change any Fees from time-to-time by giving the User no less than 14 days’ written notice. Any new or changed Fees will apply at the next billing period after the Member has been given such notice.

(f)              If a Member does not accept a change to any Fees, then it can simply terminate its Account.

2.2           Currency.

All Fees are quoted in Australian dollars.

2.3           GST.

For Members in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the Member with a Tax Invoice for any payments.

2.4           Refunds.

No refunds of Fees are offered other than as required by law.

2.5           Late Payment.

(a)            If the Member does not pay the full Fees as required, the Company may suspend all User access to the ABSIA Website for that Account.

(b)            If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may terminate the Member’s Account in the ABSIA Website without notice and end this Agreement.

(c)            The User agrees that the Company shall not be responsible or liable in any way for:

i                 Interruptions to the availability of the ABSIA Website or User Content in the event of (a);

ii                Loss of User Content in the event of (b).

3               General conditions

3.1           Licence

(a)            By accepting the terms and conditions of this Agreement, the Member is granted a limited, non-exclusive and revocable licence to access and use the ABSIA Website as Member for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.

(b)            The Company may issue the licence to the Member on the further terms or limitations (including the number of users or Listings) as it sees fit.

(c)            The Company may revoke or suspend the Member’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the Member.

3.2           Modification of Terms

(a)            The terms of this Agreement may be updated by the Company from time-to-time.

(b)            Where the Company modifies the terms, it will provide the Member with written notice, and the Member will be required to accept the modified terms in order to continue using the ABSIA Website.

3.3           Liability & Indemnity

(a)            The Member agrees that it uses the ABSIA Website at its own risk.

(b)            The Member acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.

(c)            The Member agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the Member’s use of or conduct in connection with the ABSIA Website, including any breach by the Member of these Member Terms of Use.

(d)            In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Member’s access to, or use of, or inability to use the ABSIA Website, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, or business interruption of any type, whether in tort, contract or otherwise.

(e)            Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified.  Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law.  To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:

i                 The re-supply of services or payment of the cost of re-supply of services; or

ii                The replacement or repair of goods or payment of the cost of replacement or repair.

3.4           Termination

(a)            Either party may terminate this Agreement by giving the other party written notice.

(b)            Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.

(c)            Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations under clauses 3.3, 3.5, 3.6 and 3.7 survive termination of this Agreement.

3.5           Dispute Resolution

(a)            If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

i                 Includes or is accompanied by full and detailed particulars of the Dispute; and

ii                Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

(b)            Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.

(c)            Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

(d)            Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

(e)            Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

3.6           Electronic Communication, Amendment & Assignment

(a)            The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

(b)            The Member can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement.  The Company will notify the Member of a change of details from time-to-time.

(c)            The Company will send the Member notices and other correspondence to the details that the Member submits to the Company, or that the Member notifies the Company of from time-to-time. It is the Member’s responsibility to update its contact details as they change.

(d)            A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

(e)            Notices must be sent to the parties’ most recent known contact details.

(f)              The Member may not assign or otherwise create an interest in this Agreement.

(g)            The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.

3.7           General

(a)            Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.

(b)            Prevalence. To the extent this Agreement is in conflict with, or inconsistent with the Website Terms, the terms of this Agreement shall prevail. To the extent this Agreement is in conflict with, or inconsistent with any Special Conditions made under this Agreement, the terms of those Special Conditions shall prevail. To the extent this Agreement, the Website Terms or any Special Conditions is in conflict with, or inconsistent with the Constitution, the terms of the Constitution shall prevail.

(c)            Disclaimer.  Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.

(d)            Relationship.  The relationship of the parties to this Agreement does not form a joint venture or partnership.

(e)            Waiver.  No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

(f)              Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

(g)            Governing Law.  This Agreement is governed by the laws of New South Wales, Australia.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

(h)            Severability.  Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

(i)              Interpretation. The following rules apply unless the context requires otherwise:

i                 Headings are only for convenience and do not affect interpretation. 

ii                The singular includes the plural and the opposite also applies.

iii               If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

iv              A reference to a clause refers to clauses in this Agreement.

v               A reference to legislation is to that legislation as amended, re?enacted or replaced, and includes any subordinate legislation issued under it.

vi              Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.

vii             A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).

viii            A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.

ix              A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.