1. Definitions and Interpretation
1.1 Definitions
In this Agreement, unless the contrary intention appears:
“Claim” means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or received by or against the person.
“Conditions of Use” means these Terms and Conditions of Use.
“Confidential Information” means all information provided by the Tuple or its Personnel to the User including but not limited to the following:-
- designs concepts, product designs (whether registered or not), trade marks, copyright and rights in the nature of copyright, patents, patterns, drawings, models, computer generated designs or images and any rights under licence or agreement relating to any of the foregoing;
- trade secrets of whatsoever kind or nature including but not limited to all know how and information as to processes, systems, strategies, configurations, components, results of tests or trials, data, performance capabilities, engineering, design or technical compatibilities, and/or research directly or indirectly in any way relating to the Service including ideas and concepts not reduced to material form;
- know-how, techniques, technical information and technical drawings;
- projections, business and marketing plans, including product and market information;
- details of and information about the Owner’s intellectual property;
- any information marked “confidential” or which the Owner informs the Recipient is confidential or a trade secret;
- any combination of the aforementioned information in documents or otherwise; and
- any intellectual property recognised by any Convention,but excluding:
- information available to the public (other than through disclosure by the Recipient or by a person to whom the Recipient disclosed the Confidential Information); and
- information which the Recipient can prove it lawfully possessed before obtaining it in connection with this Conditions of Use.
“Data” means but is not limited to publicly available data, programs, information and other works and materials accessible on the Internet Service, including without limitation, web sites and pages and web delivered software and other applications.
“Intellectual Property Rights” includes all present and future rights in relation to copyright, trade marks, designs, patents or other proprietary rights, or any rights to registration of such rights whether created before or after the date of this Agreement, and whether existing in Australia or otherwise.
“Log-In” means the identification and password provided to You or Users by Tuple or any other identification that Tuple provides to You in its absolute discretion at any time. Tuple reserves the right to ask You to reset or alter its Log-in at its absolute discretion.
“Moral Rights” means the moral rights granted under the Copyright Act 1968 (Cth), and any similar rights existing under foreign laws.
“Personnel” of a person means that person’s directors, officers, employees, agents, contractors, sub-contractors and their respective personnel.
“Training Organisation” means the Training Organisation to which the User is an affiliate or Personnel.
“Service” means the service provided by Tuple to the User.
“User” means any person who is a user of the Service.
“You” and “Your” means the User.
1.2 Interpretation
1.2.1 In these Conditions of Use, unless the context otherwise requires:
- Headings are for convenience only and do not affect the construction or interpretation of these Conditions of Use;
- Words in the singular also include the plural and vice versa;
- Words importing a gender include other genders;
- A reference to a “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
- If a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning; and
- “includes” in any form is not a word of limitation.
2. Grant and Use of Licence
2.1 In order to access the Service, You will be required to provide information (such as Your identification and Your contact details) as part of the registration process for the Service, or as part of your continued use of the Service (“Registration Information”). Once You have provided Tuple with the Registration Information, Tuple will provide You with Your Log-In information.
2.2 Tuple will supply and You will use the Service on the terms of these Conditions of Use.
2.3 Tuple grants the User a non-exclusive, non-transferable licence to use the Service subject to the terms and conditions of these Conditions of Use.
2.4 You acknowledge and agree that You cannot make a request or claim any compensation with respect to any issue arising from or in connection with the functionality of the Service.
2.5 You agree that in using the Service, You must comply with all reasonable directions with respect to the use of the Service, including the installation of updates, which are issued by Tuple from time to time at its absolute discretion.
2.6 You acknowledge that Tuple may terminate Your access to the Service at any time if it has reason to believe the terms of this Conditions of Use have been breached.
3. Restrictions on use
3.1 You must not:
3.1.1 Use any component, application or product to connect to the Service without Tuple’s prior written consent, other than those supplied by Tuple;
3.1.2 Rent, lease lend or otherwise resell, supply or publish the Service;
3.1.3 Except as expressly permitted by applicable law, broadcast, publish or republish, upload to a third party, transmit, post, show or play in public, distribute or otherwise reproduce in any format, adapt or change, alter, reverse engineer, modify, translate, decompile, disassemble or create derivative works of the Intellectual Property Rights in the Service;
3.1.4 Share the licence granted by these Conditions of Use;3.1.5 Transfer any of Your rights pursuant to these Conditions of Use without Tuple’s prior written consent; or
3.1.6 Use the Service to engage in or permit disruptive activities, including but not limited to, circulating any unsolicited publicity or advertising material, propagation of computer worms and viruses, use of the Service to gain unauthorised access to any other computer system, sending harassing, obscene, offensive or threatening electronic mail, forging electronic mail and placing, transmitting or storing any defamatory or pornographic material on the internet.
3.1.7 Use the Service to knowingly engage in, permit or be involved personally in:
- Using unsolicited commercial email as a means of advertising on the internet;
- Being the source address involved in the transmission of SPAM, chain letters, mail bombs; or
3.1.8 Knowingly access or permit any other party to access the Service for or in connection with any purpose or activity that is illegal or fraudulent in nature, including but not limited to, using the Service to aid the commission of a crime, the transmission of SPAM, chain letters and mail bombs or infringe upon the rights of a third party.
4. User’s Responsibilities
4.1 User’s Rights and Obligations
Subject to this Conditions of Use, You will:
4.1.1 Be solely responsible for the accuracy, quality, integrity and legality of your Data and of the means by which You acquired Your Data;
4.1.2 Be solely responsible to have Your Data in a format which is compatible with the Service;
4.1.3 Use all reasonable efforts to prevent unauthorised access to or use of the Service, and notify Tuple promptly of any such unauthorised access or use;
4.1.4 Use the Service only in accordance with these Conditions of Use, Tuple’s directions, the Training Organisation’s directions, and applicable laws and government regulations;
4.1.5 Ensure that Your Log-In required to access the Service, whether in use or not, are kept secure and confidential and immediately notify Tuple of any unauthorised use of that information or any other breach of security;
4.1.6 Not make the Service available to anyone other than authorised Users;
4.1.7 Not sell, resell, rent or lease the Service;
4.1.8 Not use the Service to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
4.1.9 Not use the Service to store or transmit malicious code;
4.1.10 Not interfere with or disrupt the integrity or performance of the Service or third party Data contained therein; or
4.1.11 Not attempt to gain unauthorised access to the Service or related systems or networks.
5. Proprietary rights / Intellectual Property
5.1 Ownership of Tuple data
5.1.1 Tuple is the sole proprietor of and retains all Intellectual Property Rights (including but not limited to copyright) embodied in or connected to the Service, including but not limited to, any images, graphic, website or program design, photographs, animations, video, audio, music, text, objects and ‘applets’ incorporated into the Service products, any related documents or software, whether in their original form or otherwise.
5.1.2 Except as expressly permitted by applicable law, You must not broadcast, publish or republish, up-load to a third party, transmit, post, show or play in public, distribute or otherwise reproduce in any format, adapt or change, alter, reverse engineer, modify, translate, decompile, disassemble or create derivative works of the Intellectual Property Rights and the Service without Tuple’s prior written consent.
5.1.3 Nothing in this Agreement affects the ownership of Moral Rights in the Service.
5.1.4 You acknowledge and agree that this clause has permanent effect.
5.2 Ownership of data
You acknowledge and agree that:
5.2.1 You have obtained all relevant Intellectual Property Rights, clearances and/or other consents and authorisations over any information such as, but not limited to images, written text, video, software or other content (“Content”) which You post, display, transmit, provide or otherwise make available to Tuple; and
5.2.2 The Content is Your sole responsibility and Tuple has no ownership, control or responsibility to You or to any third party for any Content which may infringe any Intellectual Property Rights of a third party.
5.3 Restrictions
5.3.1 Tuple’s Intellectual Property Rights are used by You with Tuple’s consent pursuant to these Conditions of Use.
5.3.2 Tuple reserves the right to terminate Your right to use Tuple’s Intellectual Property Rights at any time.5.3.3 Immediately upon Tuple notifying You of the termination of Your entitlement to use the Service, You must cease using the Service and Tuple’s Intellectual Property Rights.
5.3.4 You agree that You shall not do any act or thing in relation to data which would cause Tuple to infringe any party’s copyright or Intellectual Property Rights.
5.4 Suggestions
You acknowledge and accept that Tuple shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual licence to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Service.
6. Confidentiality
6.1 Protection of Confidential Information
6.1.1 Neither party may, without the prior written consent of the other, disclose the other party’s Confidential Information unless it is compelled to do so by law.
6.1.2 Each party will take all reasonable steps to ensure that its Personnel engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information.
6.1.3 Notwithstanding any other provision of this clause, a party may disclose the terms of these Conditions of Use (other than confidential information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
6.1.4 This clause will survive the termination of this Agreement.
7. Privacy
7.1 Protection of Privacy
7.1.1 Tuple:
- Will not use or disclose any personal information for a purpose other than discharging its obligations under these Conditions of Use;
- Agrees to comply at all times with the National Privacy Principles contained in Schedule 3 to the Privacy Act 1988 (Cth) (or an applicable privacy code approved by the Federal Privacy Commissioner pursuant to that Act) in the same way and to the same extent that You would have been required to comply had You been directly responsible for performing the act or practice concerned; and
- Will take all necessary steps to protect personal information in its possession against misuse or loss.
7.1.2 For the purpose of this clause, “personal information” means information or an opinion about an individual as defined in s 6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by the supplier for the purposes of this Agreement.
7.1.3 You acknowledge and understand that Tuple may, from time to time, be required to contact You using Your personal information in relation to Your access to the Service or other Tuple products to which You have subscribed.
7.1.4 You acknowledge that Tuple may, from time to time, send You marketing material. You acknowledge and agree to your personal information being used to contact You for the purpose of marketing activities of Tuple or its affiliates.
7.1.5 Tuple warrants that You may be removed from marketing communications at any time upon Your request to Tuple.
8. Termination, breach, default
8.1 Right to Terminate
Without prejudice to any other rights, Tuple may terminate Your use of the Service if You fail to comply with these Conditions of Use.
8.2 Consequences of Termination
8.2.1 In the event of termination, You must stop accessing the Service and all of its component parts.
8.2.2 Termination or expiry of this Agreement will not affect the operation of any accrued rights or liabilities of either party, nor any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.
9. Warranties & Disclaimers
9.1 You acknowledge and understand that Tuple makes no warranty to You as to the functionality of the Service.
9.2 You agree and acknowledge that You cannot make any requisition or claim any compensation for any defect or unavailability of the Service.
10. Limitation of Liability and Indemnity
10.1 Limitation of Liability
You acknowledge and accept that:
10.1.1 Tuple is not liable for any loss or damage as a result of a delay or failure in performance under these Conditions of Use regardless of the cause.
10.1.2 All warranties, conditions and representations, whether express or implied (other than express warranties stated by Tuple in writing), are excluded except where Tuple is by law unable to exclude or limit liability. To the fullest extent permitted by law, Tuple is not liable to You for loss of profit or other economic loss, indirect, special, consequential, general or similar damages arising under any order, or for negligence by Tuple, or for any Claim made against You by any other party even if Tuple has been advised of the possibility of such Claim.
10.1.3 You expressly acknowledge and agree that Tuple, its Personnel, affiliates, contributors, third party content providers and licensors are not be liable to You for any direct, indirect, incidental, special consequential or exemplary damages incurred by You, however caused and under any theory of liability.
10.1.4 You will indemnify Tuple in respect of any Claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered or incurred by Tuple (including, but not limited to, economic loss and all legal costs and disbursements on a full indemnity basis) caused by You and/or any wilful, illegal or negligent act or omission by You.
10.1.5 You acknowledge that Tuple is not responsible for assisting You with support services in respect of Your use of the Service.
11. General
11.1 Assignment
Neither party shall assign, whether in whole or part, the benefit of this Agreement or any rights or obligations under this
Agreement, without the prior written consent of the other party.
11.2 Whole agreement
This Agreement must be read in conjunction with the Agreement, and when combined, those documents supersede all prior agreements, arrangements and undertakings between the parties and constitute the entire agreement between the parties relating to subject matter.
11.3 Variation
Tuple reserves the right unilaterally vary this Agreement from time to time in its absolute discretion by providing reasonable written notice to You of the variation. You acknowledge and agree that publication of any changes made by Tuple to this Agreement on Tuple’s website will constitute reasonable notice to You of those changes.
11.4 Severability
If any clause or part thereof in this Agreement is held to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation, it is to be read down to the extent required so its validity and enforceability and the validity and enforceability of the remaining provisions are not affected.
11.5 Governing Law and Jurisdiction
This Agreement is governed by and construed in accordance with the law of Victoria and the parties submit to the jurisdiction of the courts of Victoria.
TupleSMS is a division of Adapt IT
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