Last Modified March 18 2019
These Terms and Conditions (“Terms”) are a legal agreement between you and Wyzed.
This Terms and Conditions agreement governs your acquisition and use of our Wyzed software (“Software”) directly from Wyzed or indirectly through a Wyzed authorized reseller or distributor (a “Reseller”).
Please read this Terms and Conditions agreement carefully before completing the installation process and using the Wyzed software. It provides a license to use the Wyzed software and contains warranty information and liability disclaimers.
If you register for a free trial of the Wyzed software, this Terms and Conditions agreement will also govern that trial. By clicking “accept” or installing and/or using the Wyzed software, you are confirming your acceptance of the Software and agreeing to become bound by the terms of this Terms and Conditions agreement.
If you are entering into this Terms and Conditions agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority or if you do not agree with the terms and conditions of this Terms and Conditions agreement, do not install or use the Software, and you must not accept this Terms and Conditions agreement.
This Terms and Conditions agreement shall apply only to the Software supplied by Wyzed herewith regardless of whether other software is referred to or described herein. The terms also apply to any Wyzed updates, supplements, Internet-based services, and support services for the Software, unless other terms accompany those items on delivery. If so, those terms apply.
1. SERVICES AND SUPPORT
1.1 We’ll provide you with a high quality service. Subject to the terms of this Agreement, Wyzed Pty Ltd will use commercially reasonable efforts to provide Customer the Services [in accordance with the Service Level Terms attached hereto as Appendix B]. As part of the registration process, Customer will identify an administrative user name and password for accessing Customer’s account. Wyzed Pty Ltd reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 We’ll provide you with quality customer support. Subject to the terms hereof, Wyzed Pty Ltd will provide Customer with reasonable technical support services in accordance with the terms set forth in Appendix B.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Please don’t attempt to steal our code. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Wyzed Pty Ltd or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Please don’t attempt to export or re-sell the software outside of Australia. Further, Customer may not remove or export from Australia or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the Australian Federal Government, or any other Australian or foreign agency or authority. Consistent with Australian Federal Law, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the Australian Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Please don’t use the product inappropriately. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Wyzed Pty Ltd’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations including but not limited to local and international copyright laws. Customer hereby agrees to indemnify and hold harmless Wyzed Pty Ltd against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Wyzed Pty Ltd has no obligation to monitor Customer’s use of the Services, Wyzed Pty Ltd may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Your end user hardware and software, as well as your user accounts, are your responsibility. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of this Equipment, along with Customer account, passwords (including but not limited to administrative and user passwords) and shall also be responsible for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 If we provide you with information about our business, please don’t share it with anyone. We won’t share your data or information either. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Wyzed Pty Ltd includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Wyzed Pty Ltd to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was rightfully disclosed to it without restriction by a third party, or (c) is required to be disclosed by law.
3.2 Everything you create using our services is your property. Customer shall own all right, title and interest in and to the Customer Data, (as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services). Wyzed Pty Ltd shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 We can observe how you’re using your service so we can improve the product, but we will never analyse your users’ personal account data or share your data publicly or with a third party. Notwithstanding anything to the contrary, Wyzed Pty Ltd shall have the right to analyze de-identified data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and Wyzed Pty Ltd will be free (during and after the term hereof) to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Wyzed Pty Ltd offerings.
4. PAYMENT OF FEES
4.1 The licensing fees and setup fees that are payable shall be set out in each Service Agreement. By electing credit card payment and inputting billing and credit card information into the Wyzed system or by providing it to Wyzed, Customer credit card will be kept on Wyzed’s payment gateway and will be charged in advance of any work and licensing fees for the Term (including any agreed-to renewal term). Provided that Customer remains responsible for licensing fees, and upon failure of payment by credit card and notification of same by Wyzed, Wyzed will invoice Customer for any outstanding fees and interest at the monthly rate of 1.5% or lesser maximum allowable, and Customer will pay Wyzed invoice within thirty days of stated invoice date. All undisputed invoices are due and payable by Customer net 30 days, unless otherwise agreed to by the parties in a signed writing (however, Customer’s payment will not be considered overdue for any unpaid amounts disputed in good faith on an invoice-by-invoice basis.) Wyzed will also invoice Customer (or if applicable, charge Customer’s credit card) at the time Customer adds any additional Services which will be agreed to beforehand.
4.2 Service Fees in this contract is in effect for the duration of the contract. Wyzed reserves the right to change the Service Fee pricing at any time providing 28 days’ notice beforehand.
5. TERM AND TERMINATION
5.1 Let us know if you’d like to cancel the service, otherwise we’ll automatically renew your subscription. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days days prior to the end of the then-current term.
5.2 If we breach the contract or if you breach the contract, the contract can be terminated. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other Services up to and including the last day on which the party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services are provided. Upon any termination, Wyzed Pty Ltd will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Wyzed Pty Ltd may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
We will adhere to industry standards for servicing, maintenance, and uptime in accordance with the terms set forth in Appendix B. If maintenance is required, we’ll let you know in advance, and arrange a time that won’t interrupt you. Wyzed Pty Ltd shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Wyzed Pty Ltd or by third-party providers, or because of other causes beyond Wyzed Pty Ltd’s reasonable control, but Wyzed Pty Ltd shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Wyzed Pty Ltd will create and hold for 14 days, a duplicate of Customer data (a “Back-Up”) at every 7 day interval throughout the contract period in accordance with the terms set forth in Appendix B. HOWEVER, WYZED PTY LTD DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND WYZED PTY LTD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
We provide an uptime guarantee and a data back-up and recovery facility as described in Appendix B, but other than this commitment, we will not be held liable for any damages to your business as a result of using or misusing our services, except if we are physically involved in injuring a person. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, WYZED PTY LTD AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND WYZED PTY LTD’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO WYZED PTY LTD FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT WYZED PTY LTD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If there are parts of this agreement that are unenforceable or invalid due to local laws, then the local laws shall apply. Otherwise, this agreement is final and non-transferable. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by Customer except with Wyzed Pty Ltd’s prior written consent. Wyzed Pty Ltd may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Wyzed Pty Ltd in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New South Wales, Australia without regard to its conflict of laws. The Customer agrees to reasonably cooperate with Wyzed Pty Ltd to serve as a reference account upon request.