LEGAL

Terms of Use

 

Terms of use

1.          PLATFORM USE

1.1.      The Company agrees to provide its Users access and use of the Platform in accordance with these terms of use.

1.2.      The User agrees and accepts that the Platform is:

(a)   Hosted by the Company and may be accessed by the User using the internet or other connection to the Platform; and

(b)   Managed and supported exclusively by the Company and that no access to the Platform is available to the User unless expressly agreed in writing.

1.3.      As a hosted and managed service, the Company reserves the right to upgrade, maintain, , backup, amend, add or remove features and exercises, redesign, improve or otherwise alter the Platform. The Company shall use commercially reasonable efforts to notify its Users of any major changes that impact known integrations at least thirty (30) days before the intended date the changes are implemented.

1.4.      The Company shall not be liable for any damage caused to any User resulting from the exercise of its rights specified in Clause 1.3. However, it shall use reasonable commercial efforts not to exercise these rights in a manner that would intentionally cause a User to lose access to User Content or fundamentally decrease the utility of the Platform to the User, other than in accordance with these terms.

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

1.6.      The User may authorise users to access the Platform in its absolute discretion. The Company accepts no liability for access by users authorised by the User or using login details of users authorised by the User.

1.7.      The User is solely responsible for the security of its username and password for access to the Platform. The User agrees to indemnify the Company for any damage it or any third party may incur as a result of any unauthorized access by any person or entity using its username and password.

1.8.      The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Upflowy account.

2.          LICENCE

2.1.      By accepting the terms and conditions of these terms, the User is granted a limited, non-exclusive and revocable Licence to access and use the Platform in accordance with these terms.

2.2.      The Company may issue the Licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.

2.3.      The Company reserves the right to revoke or suspend the User’s Licence(s) if they breach the terms and conditions in this contract. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.

2.4.      The Users understand and agree that their continued use of the Platform shall be deemed as their explicit and implied consent to be bound by these terms and the Privacy Policy as well as the amendments that may be made thereto, from time to time. Where the User does not accept these terms, the User must immediately cease using the Platform. Such refusal to use the Platform is without prejudice to any right that may have already accrued before the User ceased using the Platform.

3.          ACCESS

3.1.      By accepting these terms, the User agrees that the Company shall provide access to the Platform to the best of its abilities, however:

(a)    Access to the Platform may be prevented by issues outside of its control; and

(b)   It provides no warranties nor accept any responsibility for ongoing access to the Platform.

3.2.      The Company may, at its discretion, limit or restrict a User’s access to the Platform from time-to-time as it reasonably sees fit.

4.          FEES

4.1.      Fees apply as specified on the Upflowy Website for use of the Platform. Where a Fee is paid for a particular term of access to the Platform, the User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using the Platform within that term.

4.2.      Fees shall be paid in the Currency as specified on the Upflowy Website.

4.3.      The User agrees to pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once ordered or paid.

4.4.      The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.

4.5.      The Company may revoke or suspend the User’s Licence to access the Platform for unpaid Fees without liability.

4.6.      Where the Company:

(a)    Is required to perform any services for the User outside of what is set out in these Terms or otherwise in writing; and

(b)   Is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of these Terms); then

The User agrees that the Company shall be entitled to charge the User an additional amount that is reasonable for the service performed.

4.7.      GST is applicable to any Fees charged by the Company to Users within Australia. Unless expressed otherwise, all Fees are exclusive of GST. The Company will provide the User with an Invoice for payment which shall include the Fees and the applicable GST. If a Value Added Tax or other consumption or sales tax is applicable in the jurisdiction of the User, the User shall pay the Fees and the applicable taxes in accordance with the terms of payment.

4.8.      No refunds of Fees are offered other than as specified in these Terms or as required by law.

4.9.      The terms of payment set out in the Fees shall apply.

4.10.   Should the User dispute an Invoice, the User must notify the Company or Authorised Reseller that issued the invoice of the disputed item within 5 Business Days of the date of the Invoice. The User must pay the amount of the Invoice not in dispute within the prescribed payment period.

4.11.   Overdue Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.

4.12.   The User authorises the Company or Authorised Reseller to use the User’s information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the User’s payment history 

5.          CUSTOMER DATA

5.1.      The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.

5.2.      The User is responsible for the accuracy, quality and legality of its User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.

5.3.      Despite clause 5.1 the Company shall be authorised to permanently delete User Content 30 days after this Agreement is terminated or expired.

5.4.      The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority such as in instances where the Company needs to provide them support and/or conduct maintenance of the Platform.

6.          DATA

6.1.      The Company takes the security of the Platform and the privacy of its Users very seriously. The User agrees that it will not do anything to prejudice the security or privacy of the Company’s systems or the information on them.

6.2.      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.

6.3.      The Company may limit the amount of data that the User stores in the Platform and shall advise the User of such. Data that is stored with Upflowy shall be stored in accordance with accepted industry standards.

6.4.      The Company shall perform backups of data stored in the Platform in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company will use reasonable commercial efforts to recover all backups when requested by its Users.

7.          PRIVACY

7.1.      The Company maintains a Privacy Policy in compliance with the provisions of the Privacy Act for data that it stores.

7.2.      The Privacy Policy does not apply to how a User handles personal information. It is the User’s responsibility to meet the obligations of applicable privacy laws and regulations by implementing a privacy policy in accordance with law.

7.3.      The Company makes no warranty as to the suitability of the Platform and any of its functionalities in regard to the User’s privacy obligations at law or contract, and it is the User’s responsibility to determine whether the Platform is appropriate for it under its circumstances.

7.4.      The Platform may use cookies (a small tracking code in your browser) 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.

8.          INTELLECTUAL PROPERTY

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

8.2.       Each Party hereby grants the other the right to use such Party’s trade names, trademarks or logos (collectively, the “Marks”), solely in connection with and to the extent necessary for the joint marketing, distribution and support of the applicable Services.

(a)    Such use may include each Party’s use of the Marks on its website and in marketing materials. Any use of Marks by a Party must correctly attribute ownership of such Marks and must be in accordance with applicable law and such Party’s then-current trademark usage guidelines.

(b)   If a Party objects to any use of its Marks by the other Party, such Party shall immediately cease the use of the Marks on its website and to the extent commercially feasible, from its marketing materials and shall obtain consent for any future use of the Marks.

(c)   From time to time, Upflowy may request and User agrees to (i) participate in case studies; (ii) issue press release(s) with regards to its use of the Platform; (iii) collaborate with Upflowy on communications with the media; and (iv) speak at future Upflowy event(s). The terms of such engagement shall be mutually agreed to in writing in advance.

(d)   All goodwill arising out of the use of the Marks of a Party by the other Party shall be on behalf of and shall inure to the benefit of the Party that owns the Marks. Users use of the Platform will be hosted by Upflowy as part of the co-branding, “Powered by Upflowy” will automatically appear on the user interface with the exception of our Enterprise plans.

8.3.      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 Upflowy.

8.4.      The User agrees and accepts that the Platform is the Intellectual Property of the Company and the User further warrants that by using the Platform the User will not:

(a)    Copy the Platform or the services that it provides for the User’s own commercial purposes; and

(b)    Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Platform or any documentation associated with it.

8.5.      All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Upflowy.

8.6.      If The Company ceases trading and can no longer meet its obligations under this contract then the Organisation will be provided access to a third party code repository containing an up to date version of the Upflowy application.

9.          CONFIDENTIALITY

9.1.      The information and classes of information set out as confidential or marked as confidential as well as pertaining to Personal information, Business, employees and contractors are Confidential Information. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.

9.2.      Each party acknowledges and agrees that:

(a)    The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);

(b)    It owes an obligation of confidence to the Discloser concerning the Confidential Information;

(c)     It must not disclose the Confidential Information to a third party except as permitted by these terms;

(d)    All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and

(e)    Any breach or threatened breach by the receiving party of an obligation under these Terms may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

9.3.      A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

(a)      Any actual, suspected, likely or threatened breach by it of clause 8;

(b)    Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or

(c)     Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.

9.4.      The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:

(a)   Any actual, suspected, likely or threatened breach of these Terms; or

(b)    Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

10.       LIABILITY & INDEMNITY

10.1.   The User agrees that it uses the Platform at its own risk.

10.2.   The User acknowledges that the Company nor the Platform does not provide advice.

10.3.   The User acknowledges and agrees that before it has agreed to be bound by these Terms, it has had reasonable opportunity to obtain legal advice on these Terms.

10.4.   The User acknowledges that the Company is not responsible for the conduct or activities of any other user and that the Company is not liable for such under any circumstances.

10.5.   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 Platform, including any breach by the User of these Terms.

10.6.   In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, 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 Platform or any content, 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, to business interruption of any type, whether in tort, contract or otherwise.

10.7.   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.

10.8.   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:

(a)    Allow the User to continue using the Platform under such terms which shall not violate the warranty or condition that was violated; or

(b)    To return the fees paid by the User that is directly associated with the warranty or condition that was violated which in no case however shall exceed the sum of all fees paid by the User to the Company covering the period of 3 months immediately preceding the time such warranty or condition was violated.

11.       BREACH

11.1.   Where a party is in breach of these Terms, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:

(a)    The nature of the breach;

(b)    The provisions of the Agreement that are alleged to have been breached;

(c)     A reasonable timeframe to remedy the breach in no less than 10 Business Days; and

(d)    The action required to remedy the breach.

11.2.   Where a party issues a compliant Breach Notice in accordance with clause 16.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:

(a)   The steps taken to remedy the breach; or

(b)   Why the party believes it is not in breach as put forward in the Breach Notice,

Shall not in itself confirm the alleged breach but shall be in itself a breach of these Terms.

11.3.   Failure to remedy a breach set out in a Breach Notice shall be a material breach of these Terms (Material Breach).

12.       TERMINATION

12.1.   Breach. Where a party is in Material Breach of these Terms, the other party may terminate the relationship by giving written notice of termination, which shall become effective twenty (20) days after the date of the notice.

12.2.   Insolvency. Either party may terminate this Agreement immediately by notice, if either party:

(a)   Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

(b)    Is insolvent within the meaning of section 95A of the Corporations Act;

(c)     Fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:

a. The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or

b. The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;

(d)   Has an administrator appointed in respect of it;

(e)   Has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;

(f) Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;

(g)   Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or

(h)   Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above. 

12.3.   Expiry or 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.

12.4.   Termination of this Agreement shall not affect the rights and obligations contained in this Agreement, which by their nature survives such termination.

13.       DISPUTES

13.1.   All disputes shall be handled in accordance with the Company’s dispute resolution policy.

13.2.   Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:

(a)   If there is a dispute between the parties relating to or arising out of these Terms, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;

(b)   If the dispute between the parties relating to or arising out of these Terms is not resolved within five Business Days of notification of the dispute under Clause 12.2.1., the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;

(c)   If the dispute between the parties relating to or arising out of these Terms is not settled by mediation under Clause 13.2(b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and

(d)   A party may not commence court proceedings in relation to a dispute relating to or arising out of these Terms until it has exhausted the procedures in this Clause 12 unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.

14.       FORCE MAJEURE

14.1.   If a party is prevented in whole or in part from carrying out its obligations under these Terms as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:

(a)   Specify the obligations and the extent to which it cannot perform those obligations;

(b)   Fully describe the event of Force Majeure;

(c)   Estimate the time during which the Force Majeure will continue; and

(d)   Specify the measures proposed to be adopted to remedy or abate the Force Majeure. 

14.2.   Following a notice of Force Majeure in accordance with clause 14.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.

14.3.   The party that is prevented from carrying out its obligations under these Terms as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.

14.4.   The party that is prevented from carrying out its obligations under these Terms as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under these Terms.

15.       ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT

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

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

15.3.   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.

15.4.   A consent, notice or communication under these Terms is effective if it is sent as an electronic communication unless required to be physically delivered under law.

15.5.   Notices must be sent to the parties’ most recent known contact details.

15.6.   The User may not assign or otherwise create an interest in these Terms.

15.7.   The Company may assign or otherwise create an interest in its rights under these Terms by giving written notice to the User.

16.       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 these Terms.

17.       RELATIONSHIP

The relationship of the parties to these Terms does not form a joint venture or partnership.

18.       WAIVER

No clause of these Terms will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

19.       FURTHER ASSURANCES

Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms and the transaction facilitated by it.

20.       GOVERNING LAW

These Terms are governed by the laws of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts of New South Wales.

21.       SEVERABILITY

Any of these Terms, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining Terms. 

22.       ADDITIONAL TERMS

22.1.   The provision contained in this Clause 22 of this Agreement is applicable only to Corporate Users and shall govern their use and access to the Platform.

22.2.   The Platform may be hosted on servers located outside Australia and may also use email servers located outside of Australia. As such, the Corporate User understands, consents and agrees:

(a)   that such Servers may have access to, host and transmit personal information of its Individual Users.

(b)   that it shall be solely responsible for ensuring that its use or the use of its Individual Users of the Platform and the Company’s use, storage and transmittal of personal information by the Company is compliant with the local laws of the Corporate User and each of its Individual Corporate Users; and

(c)   to ensure that its own privacy policy and other statements about how it handles the information of individuals are accurate in respect of the Corporate User’s use of Platform.

22.3.   The Company may, at its absolute discretion and subject to such terms and conditions it may impose, enable a Corporate User to perform any and all of the following to:

(a)   Build a custom flow;

(b)   AB Test a flow;

(c)   Track data on a flows performance;

(d)   Create, manage and send notifications via SMS, Email, and/or the Platform; and

(e)   Create individual user accounts for each of its Individual Users and assign permissions and restrictions on that account to allow the individual to carry out any of the tasks listed under this sub-clause.

22.4.   The Corporate User agrees and warrants that:

(a) It must pay the applicable Fee for each Individual User that it registers as a User with the Platform.

(b) To the fullest extent allowed and/or permitted by law, the Corporate User indemnifies and holds the Company harmless against all costs, claims damages and expenses for any:

a. Penalty imposed upon the Corporate User;

b. Injury, illness or death caused to any individual or Third Party;

c. Damage to the property of any individual or Third Party;

d. Claim of infringement of intellectual property rights made by a Third Party;

e. Claim of breach of confidentiality by any Third Party arising from the Corporate User’s or its Individual User’s use and/or access to the Platform.

(c) It shall not disclose any information about an individual to any other person or party other than as authorised by the individual;

(d) It shall ensure all personal information it has access to through its use of the Platform is kept and used in accordance with applicable privacy laws in the applicable jurisdiction;

(e) It shall only use the Platform for its intended purpose as set out in these Terms;

(f)  It shall comply with all anti-SPAM legislation in its jurisdiction;

(g) It’s licence to use the Platform, as provided for in the General Conditions, is subject to the payment of all necessary Fees. 

22.5.   Any person who registers as a Corporate User in the Platform warrants that he or she is an authorised representative of that Corporate User with the requisite authority to bind the said Corporate User to these Terms.

22.6.   Where a Corporate User pays Fees to an Authorised Reseller, any claim or request for service pursuant to these Terms must be made to the Reseller in the first instance.

23.       INDIVIDUAL USER SPECIFIC TERMS

23.1.   The provisions contained in this Clause are applicable only to Individual Users and shall govern their use and access to the Platform.

23.2.   An Individual User’s access to the Platform may be created, limited and cancelled by their Corporate User at the latter’s discretion. Such access may include such features as described in Clause 25.3 of these Terms.

23.3.   The Individual User agrees and accepts that:

(a)   the Individual User uses the Platform at its own risk. To the extent permitted by law, under no circumstance will the Company be liable for any injury, illness, death or damage to property resulting from the use of the Platform;

(b) any claim based on injury, illness, death or damage to property that results from an Individual User’s use of the Platform must be directed to the concerned Corporate User;

(c) to the extent permitted by law, the Company accepts no liability for the accuracy of any information made available using the Platform. Any reliance on the information available through the Platform is at the Individual’s own risk;

(d) It shall indemnify the Company against all costs, claims damages and expenses for any injury or damage caused to the person or property of a Third Party as a result of the Individual’s use of the Platform;

(e) any information shared by the Platform with a Corporate User may be retained by the Corporate User for the purpose of updating their administrative records;

(f)  All information about an Individual User is used and controlled by the said Individual User or his Corporate User and not the Company;

(g) All information inputted into the Platform about an individual is provided with that Individual’s consent.

(h) The Corporate User authorised by the User to receive personal information may have its own policy governing access to this information and the use of the Platform.

(i)  The Platform may be hosted on servers located outside Australia and the Company may also use email servers located outside of Australia. As such, each Individual User understands, consents and agrees that such Servers may have access to, host and transmit personal information of its Individual Users.

24.       TERMINATION

24.1.   Deleting the Platform does not constitute termination of these Terms, although the Company may terminate these Terms in the event it determines in its reasonable discretion that the Platform has been deleted and the User’s intention is to cancel or terminate their account and these Terms.

24.2.   The User agrees and accepts that deletion of Upflowy may result in loss of data for which the Company is in no way liable.

25.       THIRD PARTY INFORMATION AND SERVICES

25.1.   The User acknowledges that the Platform:

(a)   is dependent on third-party services, including but not limited to Banks, credit card providers, BPAY, Telecommunications services, Hosting services, Email services, and Analytics services.

(b) The User agrees that the Company shall not be responsible or liable in any way for Interruptions to the availability of the Platform due to third-party services or Information contained on any linked third party website.

26.       DEFINITIONS & INTERPRETATION

The following words are used regularly in these Terms and have a particular meaning:

Business Day means a weekday that is not a public holiday in Sydney Australia

Agreement means these Terms.

Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:

  • All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
  • All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
  • All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
  • All information concerning any employee, customer, contractor, supplier or agent of the relevant party;
  • The party’s policies and procedures; and
  • All information contained in this document,

But excludes information that the other party can establish:

  • Is known by or is in the other party’s possession or control other than through a breach of this document and is not subject to any obligation of confidence; o 
  • Is in the public domain other than by a breach of this document or any obligations of confidence.

Company means Upflowy Pty Ltd.

Corporate User means an entity to whom the Company has given access to and has allowed its employees, contractors or other members of its organization to use the Platform.

Corporations Act means the Corporations Act 2001 (Cth).

Fee means any fee payable by a User for access to, or use of the Platform. 

Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:

  • Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions; 
  • Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
  • The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and

  • Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.

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

Individual User means the individual workers, employees, contractors, representatives and all other persons who are granted access and allowed by a Corporate User to use the Platform.

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;

Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.

Moral Rights means Moral rights pursuant to the Copyright Act 1968 (Cth) or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).

Platform refers to the Software as a Service web application platform provided by the Company.

Privacy Act means the Privacy Act 1989 (Cth).

Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at https://www.upflowy.com/privacy-policy .

Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.

Third-Party means any person and/or entity that is not a party to this Agreement.

Users refers to Individual Users and Corporate Users collectively.

User Content means data that is uploaded or input into the Platform by the User or that forms part of the User’s Intellectual Property.

27.       INTERPRETATION

Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:

(a)   The singular includes the plural and the opposite also applies.

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

(c) A reference to a clause refers to clauses in these Terms.

(d) A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.

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

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

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

(h) 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.