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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 all Users is subject to these Website Terms of Service.

DEFINITIONS

The following terms are used regularly throughout these Website Terms of Service 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 ABSIA Website Terms of Service.

(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)                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.

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

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

(k)                Member Terms of Use means the 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.

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

(m)              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.

(n)                Product means a software product or service.

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

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

(q)                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.

(r)                 Website Terms means these 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)            All use of the ABSIA Website by Users is subject to these Website Terms of Service.

(b)            Use of the features of the ABSIA Website available to Members are subject to the Member Terms of Use, which each User must accept in addition to this Agreement in order to use the ABSIA Website as a Member.

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

i                 These Website Terms;

ii                The Constitution;

iii               The Member Terms of Use; and

iv              The Privacy Policy.

(d)            Users under the age of 18 must not use the ABSIA Website without their parent or legal guardian’s consent.

(e)            The Company may suspend or restrict the access of any User that breaches the terms of this Agreement.

1.2           Features

The ABSIA Website may allow a User to browse the free content and access such areas of the ABSIA Website not restricted to Members, including:

(a)            View Listings in the Product Catalogue;

(b)            Access news and other information; and

(c)            Such other features as the Company may make available to Members from time-to-time.

1.3           Listings in the Product Catalogue

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

(b)            The Company makes no representation as to the accuracy of any information contained in a Listing, including (without limitation) in relation to the quality or fitness for purpose of any Product.

(c)            In no event will the Company be responsible to any User in relation to a Listing.

(d)            Any dispute between Users relative to a Product or Listing must be dealt with between the relevant Users. In no event will the Company perform a dispute resolution role for a dispute between Users.

(e)            The Company may remove any Listing at its discretion.

1.4           Conduct. The User acknowledges and accepts that:

(a)            The Company accepts no responsibility for the conduct of any User of the ABSIA Website.

(b)            The Company accepts no responsibility for any interaction between Users, whether that interaction occurs via the ABSIA Website or not (including on the forum).

(c)            The Company makes no warranty or representation as to the accuracy of any information provided by any User.

(d)            The Company makes no warranty as to the character or credentials of any User.

1.5           Lodging a Complaint.

(a)            The User may lodge a complaint to the Company via email at info@absia.asn.au if a User believes:

i                 That a Listing is inaccurate, offensive or otherwise inappropriate;

ii                A Product advertised on a Listing is of poor quality or is not available for purchase;

iii               A Member’s conduct is unprofessional, illegal or otherwise in breach of their obligations under the Constitution;

iv              A User’s behaviour is threatening, discriminatory, or deliberately offensive.

(b)            The Company may suspend or remove access by any User that the Company determines conducts itself inappropriately.

(c)            The Company will advise the suspended User (including a Member of a of a suspended or deleted account) of the decision to do so, but is under no obligation to identify a complainant.

(d)            The Company’s decision whether or not to suspend or remove a User’s or  account is at its absolute discretion. The Company’s decision shall be final and not subject to review.

1.6           No Warranty.

(a)            The Company makes no warranty or representation as to the quality, safety or fitness for purpose of any Product.

(b)            The Company takes no responsibility for any harm or loss suffered by a User as a result of using any Product. If a User suffers loss or harm as a result of any Product purchased from a Member, discovered via a Listing, the User agrees that:

i                 The User shall have no recourse against the Company; and

ii                The relevant Member remains responsible for any such loss or harm (including under Australian Consumer Law if applicable).

2               User Content

2.1           The User acknowledges and agrees that:

(a)            The ABSIA Website may enable the User to create User Content, but that by doing so the User shall not acquire an interest in any Intellectual Property owned by the Company, which may exist in the ABSIA Website.

(b)            User Content is the sole responsibility of the person that provided the User Content to the ABSIA Website.

(c)            The User indemnifies the Company for any User Content that is illegal, offensive, indecent or objectionable that the User makes available using the ABSIA Website.

(d)            The Company may suspend accessibility to User Content via the ABSIA Website that the Company determines is illegal, offensive, indecent or objectionable in its sole discretion.

(e)            To the extent permitted by law, under no circumstances will the Company be liable in any way for User Content.

(f)              The User warrants that it has all necessary Intellectual Property Rights to use User Content, and shall indemnify the Company for any infringement the User commits of third-party Intellectual Property Rights by using User Content on the ABSIA Website.

(g)            In order to provide the services afforded by the ABSIA Website, where the User Content includes the User’s brand, logo or other intellectual property, it grants the Company a worldwide, revocable license to use the User Content, for the term of this Agreement.

2.2           The Company may edit or remove any User Content (including a Listing) that is:

(a)            Indecent or objectionable;

(b)            Inaccurate or misleading; or

(c)            Otherwise in breach of any law or regulation.

3               General conditions

3.1           Licence

(a)            By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use the ABSIA Website 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 User on the further terms or limitations as it sees fit.

(c)            The Company may revoke or suspend the User’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 User.

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 User with written notice, and the User will be required to accept the modified terms in order to continue using the ABSIA Website.

(c)            The modified terms of this Agreement shall apply the next time the User accesses the ABSIA Website.

3.3           Software-as-a-Service

(a)            The User agrees and accepts that the ABSIA Website is:

i                 Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the servers operated by the Company and is not available ‘locally’ from the User’s systems; and

ii                Managed and supported exclusively by the Company from the servers operated by the Company and that no ‘back-end’ access to the ABSIA Website is available to the User unless expressly agreed in writing.

(b)            As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the ABSIA Website.

3.4           Support

(a)            The Company provides user support for the ABSIA Website via the email address info@absia.asn.au.

(b)            The Company shall endeavour to respond to all support requests within 1 Business Day.

3.5           Use & Availability

(a)            The User agrees that it shall only use the ABSIA Website for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.

(b)            The User is solely responsible for the security of its username and password for access to the ABSIA Website. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its the ABSIA Website account.

(c)            The User agrees that the Company shall provide access to the ABSIA Website to the best of its abilities, however:

i                 Access to the ABSIA Website may be prevented by issues outside of its control; and

ii                It accepts no responsibility for ongoing access to the ABSIA Website.

3.6           Privacy

(a)            The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and other customers.

(b)            The Privacy Policy does not apply to how the Member handles personal information.  If necessary under the Privacy Act, it is the Member’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.

(c)            The ABSIA Website may use cookies (a small electronic tracking code) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.

3.7           Data

(a)            Security.  The Company takes the security of the ABSIA Website and the privacy of its Users very seriously.  The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.

(b)            Transmission.  The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards.  It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.

(c)            Storage. The Company stores data on servers based in the USA according to accepted industry standards. If the User requires its User Data to be stored in a different location, the Company may charge the User a fee to do so.

(d)            Backup.  The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes.  The Company does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by the Company.

3.8           Intellectual Property

(a)            Trademarks.  The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.

(b)            Proprietary Information.  The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally.  The User warrants that it shall not infringe on any third-party rights through the use of the ABSIA Website.

(c)            The ABSIA Website Application.  The User agrees and accepts that the ABSIA Website is the Intellectual Property of the Company and the User further warrants that by using the ABSIA Website the User will not:

i                 Copy the ABSIA Website or the services that it provides for the User’s own commercial purposes; and

ii                Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the ABSIA Website or any documentation associated with it.

(d)            Content.  All content submitted to the Company, whether via the ABSIA Website or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the ABSIA Website.

3.9           Disclaimer of Third Party Services & Information

(a)            The User acknowledges that the ABSIA Website is dependent on third-party services, including but not limited to:

i                 Banks, credit card providers and merchant gateway providers;

ii                Telecommunications services;

iii               Hosting services;

iv              Email services; and

v               Analytics services.

(b)            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 due to third-party services; or

ii                Information contained on any linked third party website.

3.10        Liability & Indemnity

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

(b)            The User 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 User 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 User’s use of or conduct in connection with the ABSIA Website, including any breach by the User of these Website Terms of Service.

(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 User’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.

3.11        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 5.5, 5.6, 5.7, 5.8 5.9, 5.10, 5.12, 5.13 and 5.14 survive termination of this Agreement.

3.12        Dispute Resolution

(a)            If any dispute arises between the Company and a User 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.

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

(c)            The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’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 User 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.

3.14        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 Member Terms of Use, the terms of the Member Terms of Use 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 Membership Terms of Use 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.