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Qwilr is a web service that allows users to create online documents. In general, Qwilr wants to have as many happy Customers as possible. It would be remiss of us if we were to change pricing, features or services in a way that made Customers unhappy. However, as a Software as a Service (SaaS) product, Qwilr will change over time (for the better, of course).
In these Terms of Service, the “Important Terms” mostly deal with using Qwilr, and the “General Conditions” set out the legal basis on which Qwilr is provided. You must accept these terms to use Qwilr.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
Qwilr allows Users to:
Together referred to as the services (Services).
The Site is available through the URL qwilr.com (or other domain as used by the Company from time-to-time).
In addition to any other express or implied consents, by using Qwilr the User accepts and agrees to the terms of:
To access the Services, each User must register with Qwilr (as a Free User, Customer or as a Paid User, as the case may be) with a valid email address.
Each User uses Qwilr at its own risk. The Company’s liability to a User is limited to the provision of the Services, and the Company accepts no responsibility for:
The Company provides instructional documentation on the Site and within Qwilr to assist Users with Qwilr. This documentation shall be updated from time-to-time without notice.
Forming Legal Agreements
Third Party Services
The User understands and agrees that all information, data, text, software, music, sound, photographs, graphics, video, messages and other matter of any kind accessible via the Site (Content) is subject to this Agreement.
Content is the sole responsibility of the User that made the content available via the Site by uploading, publishing it in a Document or otherwise providing it.
A User may not modify, rent, lease, loan, sell, distribute or create derivative works based on any of the Content (either in whole or in part) unless:
The User understands that it uses the Site at its own risk (including relying on any information contained in a Document) and agree that by using the Site you may be exposed to Content that you may find offensive, indecent or objectionable.
To the extent permitted by law, under no circumstances will the Company be liable in any way for any Content, including but not limited to:
The User agrees that Content that it makes available via the Site may be removed or altered by the Company, subject to applicable provisions of this Agreement and any legislation including, without limitation, privacy legislation.
The User agrees that it will not upload or otherwise post, insert or provide any Content which:
All Fees are quoted in US dollars.
For Customers 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.
No refunds of Fees are offered other than as required by law or at Qwilr’s absolute discretion.
Either party may end this Agreement at any time by written notice in accordance with these Terms.
The Company may suspend the Customer’s account (and the accounts of any of its Paid Users) should any Fees be outstanding to the Company at any time.
The Customer agrees that the Company shall not be liable in any way for any valid termination or suspension of the Customer’s access to Qwilr.
The Free User agrees and accepts that:
The Customer agrees and accepts that:
This item I applies to all Paid Users that are not Customers. In addition to complying with the Customer Terms, each Paid User agrees and accepts that:
Each Visitor agrees and accepts that:
For the avoidance of doubt a Visitor shall have no claim against the Company for its use of, or reliance on the Contents of a Document. Any claim that a Visitor may have arising from its access to, or reliance on a Document shall be between the Visitor and the User that created the Document, and not involve the Company under any circumstances.
The following definitions apply in this document:
ABN means Australian Business Number.
ACN means Australian Company Number.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
Commencement Date means the date set out in this Agreement.
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:
but excludes information that the other party can establish:
Corporations Act means the Corporations Act 2001 (Cth).
Customer Data means all information, Content, data and other such materials that the User enters into or uploads to Qwilr.
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:
General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
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.
Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
Moral Rights means:
Privacy Act means the Privacy Act 1989 (Cth).
Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
This Agreement applies to use of and access to Qwilr.
Where the User does not accept or can no longer comply with the terms and conditions of this Agreement, the User must immediately cease using Qwilr.
This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of Qwilr at the commencement of the User’s next billing period.
The User agrees and accepts that Qwilr is:
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 Qwilr.
The Company shall not exercise its rights under clause 3.2 in a manner that would intentionally cause the User to lose access to Customer Data or fundamentally decrease the utility of Qwilr to the User, other than in accordance with the terms of this Agreement.
By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use Qwilr for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
The Company may revoke or suspend the User’s license(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 or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
The User agrees that it shall only use Qwilr 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 discretion.
The Customer shall authorise users to access Qwilr in its absolute discretion. The Customer agrees that additional Fees may be payable for each additional user it authorises.
The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
The User is solely responsible for the security of its username and password for access to Qwilr.
The User is responsible for ensuring that users comply with this Agreement in full and are liable for any breach of them.
The Company obtains no right, title or interest in Customer Data including any Intellectual Property found within it.
The Company accepts no liability for the content of Customer Data.
The User is responsible for the accuracy, quality and legality of Customer Data and the User’s acquisition of it, and the users that create, access and/or use Customer Data.
Despite clause 7.1, the Company shall be authorised to permanently delete Customer Data where outstanding Fees remain unpaid in accordance the Important Terms.
The Company shall not access, use, modify or otherwise deal with Customer Data except:
The Company makes no warranty as to the suitability of Qwilr in regards to the User’s privacy obligations at law or contract, and it is the User’s responsibility to determine whether Qwilr is appropriate for the User’s circumstances.
The terms of payment set out in the Important Terms shall apply.
Should the User dispute a Tax Invoice, the User must notify the Company of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
The Company takes the security of Qwilr 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.
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.
Storage. The Company may limit the amount of data that the User stores in Qwilr, and shall advise the User of such. Data that is stored with the Company shall be stored according to accepted industry standards.
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 Customer Data from any period of time unless so stated in writing by the Company.
Solution. By accepting the terms of this Agreement the User agrees that the Company shall provide access to Qwilr to the best of its abilities, however it accepts no responsibility for ongoing access to Qwilr.
Trademarks. The Company has moral and 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.
Proprietary Information. Qwilr 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 Qwilr.
Solution. The User agrees and accepts that Qwilr is the Intellectual Property of the Company and the User further warrants that by using Qwilr the User will not:
Content. All content (with the exception of Customer Data) remains the Intellectual Property of the Company, including (without limitation) any source code, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Qwilr.
The information and classes of information set out in the Particulars are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.
Each party acknowledges and agrees that:
A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
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:
The User agrees that it uses Qwilr at its own risk.
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.
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 Qwilr or conduct in connection with Qwilr, including any breach by the User of this Agreement.
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 Qwilr, 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.
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:
Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:
Where a party issues a compliant Breach Notice in accordance with clause 15.1, 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:
15.3 Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).
Breach Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
Insolvency Either party may terminate this Agreement immediately by notice, if either party:
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.
The rights and obligations under the relevant provisions of clauses 6, 7, 8, 9, 12, 13, 14, 15, 16, 17 and 18 survive termination of this Agreement.
If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
Following a notice of Force Majeure in accordance with clause 17.1 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.
The party that is prevented from carrying out its obligations under this Agreement 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.
The party that is prevented from carrying out its obligations under this Agreement 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 this Agreement.
The term of this Agreement will not be extended by the period of Force Majeure.
The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
The User can direct notices, enquiries, and 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.
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.
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.
Notices must be sent to a party’s most recent known contact details.
The User may not assign or otherwise create an interest in this Agreement without the written consent of the Company.
The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
Prevalence Each party to this Agreement agrees to the clauses in the Important Terms and the Special Conditions. The Important Terms, any Special Conditions and the General Conditions form a single legal agreement. To the extent that the Important Terms or the Special Conditions are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
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.
Relationship The relationship of the parties to this Agreement does not form a joint venture or partnership.
Waiver No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
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.
Governing Law This Agreement is governed by the laws of the state of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
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.
Effective date: 25 November 2016.
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