Terms and Conditions
(a) Welcome to https://www.kalysys.com.au! We, Kalysys Trading Pty Ltd ACN 65 632 727 961
“we”, “us”, or “our”), provide software as a service to help our clients manage their business data by assisting clients with cloud-based data storage, CRM, order management, project management and compliance management as well as consulting implementation services (collectively, “Service”).
(c) These Terms may be amended by us at any time, and by continuing to use the Site, you accept the Terms as they apply from time to time.
2. Account Registration
(a) To access our Service, you may register for a member account (“Account”). By signing up for an Account, you accept the Terms as a condition of joining as a member (“Member”).
(b) When you sign up for an Account and agree to these Terms the contractual agreement between you and us is formed, and the term (“Term”) will begin. The Term will continue for as long as you have an Account or until you or we terminate this agreement.
(c) As part of the registration process and as a condition of your access to our Service, you may create one Account only and provide us with your current, complete and accurate identification, and other information (some of which is not mandatory) including, but not limited to, your name, phone number, a valid email address, and password (“Registration Data”).
(d) If your Registration Data changes, you must promptly update your Account to reflect those changes.
(e) As a Member of this Site, you agree that:
(i) your access to and use of our Service on the Site is non-transferable;
(ii) you will use our Service only for purposes permitted by the Terms;
(iii) you are responsible for maintaining the confidentiality of your Registration Data at all times;
(iv) we may deny anyone access to an Account, our Service or the Site at any time and for any reason without notice; and
(v) we are not obliged to confirm the identity of the Site users.
(f) By registering for an Account, you agree that we may send you text (SMS) messages as part of the normal business operation of your use of the Service. You may opt-out of receiving SMS messages from us by contacting us and you acknowledge that opting out of receiving SMS messages may impact your use of our Service.
3. Use of Site
By accessing the site, you shall:
(a) use the Site for lawful purposes only;
(b) not commit any act, engage in any practice or omit to commit any act that:
(i) is harmful to our systems, reputation or goodwill; or
(i) interferes with the integrity of the Site, including, but not limited to, by hacking, transmitting any viruses, spyware, malware or any other code of a destructive or disruptive nature;
(c) not create accounts with us through unauthorised means, including by using an automated device, script, bot or other similar means;
(d) not restrict, or attempt to restrict, another user from using the Site; or
(e) not encourage or facilitate violations of the Terms.
4. Use of Service
Your cooperation in complying with these Terms is essential to ensure that all Members can enjoy their experience with our Service. Without limiting any other provision of the Terms, you also agree not to do
any of the following:
(a) use the Service in a pornographic, defamatory, fraudulent, lewd, obscene or otherwise illegal manner, including but not limited to infringing any third-party intellectual property or privacy rights, whether directly or in context or by juxtaposition with other services or products;
(b) use the Service as part of a trademark, design mark, tradename, business name, service mark, or logo;
(c) falsely represent that you are the original provider of our Service; or
(d) modify, adapt, merge, decompile, disassemble, reverse engineer or create derivative works out of
5. User Data
(a) In these Terms, “User Data” means the data inputted by users of the Service or by us on a user’s behalf for the purpose of using the Service or facilitating the user’s use of the Service, including Registration Data.
(b) The user shall own all right, title and interest in and to all of the User Data, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the User Data.
(c) We will follow our archiving procedures for User Data. In the event of any loss or damage to User Data, the user’s sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged User Data from the latest back-up of such User Data maintained by us. We shall not be responsible for any loss, destruction, alteration or disclosure of User Data caused by any third party, including those third parties sub-contracted by us to perform services related to User Data maintenance and back-up).
(d) The user shall ensure that the relevant third party
6. Payment and Refund
(a) When you sign up to use our Service, you agree to recurring billing, which occurs on the same day each month, based on the date you started the payment plan with us.
(b) You must make payment for the Service (“Payment”) by way of credit card payment (“Credit Card”)
(c) All Payments are made in Australian Dollars (AUD) and may be converted to your local currency at the time of your order.
(d) You agree and acknowledge that we can vary any fees or costs related our Service at any time. You will be notified of changes or variations and have an opportunity to refuse such change or variation.
(e) You are responsible for ensuring your Payment details are correct. Changes to Payment details can be made by contacting us at our contact details in clause 20. If your Credit Card expires or your Payment method is invalid, access to our Service may be disable or revoked.
(f) We may, without liability to the user, deny any Member access to the Service or terminate any Member’s Account if we are unable to process the applicable fees.
(g) Except as required by law, we are under no obligation to refund any Payment made by you, inpart or in full, for any reason, including, without limitation, deactivation of your Account or discontinued use of our Service.
7. Intellectual Property
(a) The Site, our Service and all of our related products are subject to copyright. The material on the
Site is protected under the laws of Australia and through international treaties.
(b) In these Terms, “Intellectual Property (Rights)” means all intellectual property rights, including all copyright, patents, trade-marks, design rights, trade secrets, circuit layouts, source code, domain names, logos, button icons, scripts, design elements, graphics, know-how and other rights of a similar nature worldwide, whether registered or unregistered, and any applications for registration or rights to make such an application.
(c) We own or are the licensee of all rights, title and interest (including Intellectual Property) in the
Site or to the material (including all text information and content, graphics, logos and software) made available to you on the Site (collectively, “Site Content”). Your use and access of the Site do not grant or transfer any rights, title or interest to you in relation to the Site Content.
(d) You may view the Site using a web browser or mobile device, and electronically copy and print in
hard copy the Site Content solely for your personal and non-commercial use.
(e) We retain all rights, title and interest in and to our Service and the Site. Nothing you do on or in
relation to our Service or the Site will transfer any:
(i) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright;
(ii) right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or
(iii) thing, invention, design, system, work or process that is the subject of a patent, registered design or copyright or any other Intellectual Property Right (or an adaptation, improvement, modification of such a thing, invention, design, system, work or process).
(f) You must not modify, copy, distribute, transmit, display, perform, reproduce, publish, license,
commercially exploit, reverse engineer, create derivative works from, transfer or sell any Site Content or any other material in whatever form contained within the Site unless expressly stated otherwise in these Terms.
(g) The obligations accepted by you under this clause survive termination or expiry of these Terms.
8. Licenses and User Content
(a) We grant you a limited, worldwide, non-exclusive, royalty-free, and revocable licence (“Licence”) to electronically access and use the Site and our Service in accordance with these Terms.
(b) You are solely responsible for any material, content or data that you:
(i) post, publish or otherwise transmit through the Site, if available; or
(ii) obtain through accessing or using the Site (collectively, “User Content”).
(c) Your User Content must:
(i) not infringe any law, third party intellectual property rights or any other contractual or proprietary rights of a third party;
(ii) not contain abusive, homophobic, defamatory, libelous, hateful, discriminatory, obscene, inflammatory or racist language; and
(iii) not harass, bully or intimidate any person.
(d) You grant us a royalty-free, worldwide, perpetual, irrevocable, non-exclusive, transferable, assignable, sub-licensable licence to use, reproduce, modify, remove, copy, store and exploit your User Content for our business or commercial purposes.
(e) The views expressed in any User Content are the views of users and not those of us unless specified otherwise. We are not responsible for and disclaim all liability in respect of any comments, views or remarks expressed in any User Content. We encourage you to notify us of any inappropriate or illegal content. We reserve the right to remove any User Content for any reason without prior notice.
9. Third-Party Links
The Site may contain links and other pointers to Internet websites or applications operated by third parties. We do not control these linked websites and are not responsible for the contents of any linked website. Your access to any such website is entirely at your own risk. You should contact the relevant third-party directly to make inquiries concerning the information prior to entering into a transaction in
relation to the third-party products and services.
11. Exclusions and Limitation of Liability
(a) To the maximum extent permitted by law, we exclude all representations and warranties relating to the subject matter of these Terms, our Site and the use of our Service. This exclusion includes, but is not limited to:
(i) the completeness, truth, suitability, quality or accuracy of the information or Service descriptions published on our Site (including third-party material and advertisements);
(ii) whether any result or objective can be achieved or attained by accessing the Site;
(iii) any other user’s conduct;
(iv) that the information on the Site is current; or
(v) any Service or the Site will remain available.
(b) We do not warrant or represent:
(i) our Service will meet your requirements or expectations;
(ii) the accuracy of the captioning, keywording, heading, or any other information, representation or thing depicted on or associated with the Site;
(iii) that the Site or any Service on the Site will remain available, uninterrupted, timely, or error free; or
(iv) that any errors or defects on the Site or our Service will be corrected.
11.2 Limitation of liability
(a) Everything on the Site is provided to users “as is” and “as available”. None of our affiliates, directors, officers, employees, agents, contributors and licensors makes any representation or warranty about our Service referred to on the Site. This includes, without limitation, loss or damage which you may suffer as a result of any of the following:
(i) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, virus or any other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
(ii) costs incurred as a result of you using the Site and our Service; or
(iii) any defamatory, threatening, offensive or unlawful conduct by third parties, or publication of any materials relating to or constituting such conduct.
(b) Pursuant to section 64A of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”), this clause 10.2 applies in respect of services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Our liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by sections 51 to 53 of the Australian Consumer Law) is limited at our option to:
(i) re-supply of services; or
(ii) the payment of the direct cost of re-supply of services.
(a) You agree to indemnify us for all losses, damages, liabilities, claims and expenses (including reasonable legal costs) incurred by us arising out of or in connection with your use of the Site, any User Data, User Content, your breach of the Terms or any rights of third parties, except to the extent that we directly caused or contributed to the loss, damage, liability, claim or expense.
(b) We reserve the right, at our own expense, to assume the exclusive control of any matter
otherwise subject to indemnification by you, and in such case, you agree to cooperate with our
defence of such claim.
(a) We may at any time, terminate the Terms with you if:
(i) you have breached any provisions of the Terms;
(ii) we are required to do so by law; or
(iii) the provision of our Service to you by us is, in our opinion, no longer commercially viable.
(b) We reserve the right to:
(i) cease operating the Site, without notice and for any reason; or
(ii) to terminate our relationship with you without notice and with immediate effect, if you, in any way, breach the Terms;
(c) If one of the events described in clause 12(a) and (b) occurs, then:
(i) you will not have any access to the Site or User Content; and
(ii) we will not be liable for any losses arising as a result of terminating your access to the Site.
(a) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this Agreement unless it has complied with this clause 13. A party claiming that a dispute has arisen must notify the other party to the dispute giving details of the dispute.
(b) During the 15-Business Day period after notice is given (or any longer period agreed in writing by the parties to the dispute) (Initial Period) each party to the dispute (Disputant) must cooperate and take all reasonable steps necessary to resolve the dispute.
(c) If the Disputants are unable to resolve the dispute within the Initial Period, each Disputant agrees that the Dispute must be referred for mediation to a mediator agreed on by the Disputant.
(d) If the Disputants are unable to agree on a mediator within 7 days after the end of the Initial Period, then the parties must submit the dispute for mediation through the Law Society of Victoria and have the president of that Law Society appoint a Mediator and set the matter for mediation.
(e) The role of the mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a Disputant unless that Disputant has so agreed in writing.
(f) Each Disputant must pay its own costs of complying with this clause. The Disputants must pay equally the costs of any mediator engaged.
(g) The mediation will be held in Victoria, Australia.
(h) After the Initial Period, a Disputant that has complied with this section may terminate the dispute
resolution process by giving notice to each other Disputant. A party to the dispute will only be entitled to pursue other remedies available to it at law or otherwise, if the parties have failed to resolve the dispute within 30 Business Days after commencement of dispute resolution.
(i) All communications concerning negotiations made by the Disputants in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable law of evidence.
15. No Waiver
(a) No waiver of rights in these Terms, any of our policies, or agreement between us and a Site user shall constitute a subsequent waiver of this or any other right under these Terms.
(b) Any failure on our part to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.
If any provision of our Terms is unenforceable or invalid, it will be ineffective to the extent that it will not affect the enforceability or validity of the remaining provisions.
17. Entire Agreement
These Terms shall constitute the entire agreement between you and us in relation to your use of the Site and shall supersede all previous agreements between you and us.
18. Law and Jurisdiction
These Terms are governed by and construed in accordance with the laws of Victoria, Australia. You submit to the non-exclusive jurisdiction of the Courts of Victoria and Courts of Appeal from them for determining any dispute concerning these Terms.
19. Force Majeure
Force Majeure means an event which is beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, fires, acts of God, and governmental action. Neither you or we shall be deemed to be in breach of these Terms for any delays or failures in the performance of either party which results from a Force Majeure.
20. Feedback and Contact
Your feedback is important to us and our community. We welcome and encourage you to provide feedback, reviews, comments and suggestions for improvements to the Site and our Service (“Feedback”). You may submit Feedback by contacting us on 1300 94 94 68 or by email at firstname.lastname@example.org
Terms last updated 22/08/2019.