Alkhemy (doMorePtyLtd) SAAS (Software as a service) End User Agreement
Warning: Use of Alkhemy (doMorePtyLtd) SAAS is conditional upon you ("the Customer") agreeing to the terms of this Agreement. Choosing "I accept the terms and conditions of this Agreement" when accessing or installing Alkhemy (doMorePtyLtd) SAAS shall be deemed to be your acceptance of the terms of this Agreement. If you do not agree, do not proceed to use Alkhemy (doMorePtyLtd) SAAS and contact Alkhemy (doMorePtyLtd).
In this Agreement, unless inconsistent with the context:
- Agreement means this agreement, its recitals, provisions and any schedule of this agreement.
- Confidential Information includes information which relates to Alkhemy (doMorePtyLtd) SAAS including account details, passwords and activation codes, development concepts, source code, object code, configuration and other scripts, specifications, data models and schema, protocols, algorithms, manuals, drawings and data created or used by DOMOREOPTIMISER, DOMOREOPTIMISER's personnel, DOMOREOPTIMISER's policies, DOMOREOPTIMISER's business strategies and the terms of this Agreement.
- Clause means a clause of this Agreement.
- Confidential Client Data Information means information which relates solely to Customer's business and does not include any underlying data structures or concepts.
- Duration means initially 7 days but upon payment of the amount specified in an invoice issued by DOMOREOPTIMISER the Duration shall be extended for the period specified in that invoice.
- Fees means either the agreed fees of DOMOREOPTIMISER or, if none, the published fees of DOMOREOPTIMISER as amended from time to time.
- Force Majeure means an act, omission or circumstance over which DOMOREOPTIMISER could not have reasonably exercised control including telecommunication failures.
- Intellectual Property Right includes any right arising from or capable of arising from the: Circuits Layout Act 1989 (Cth); Copyright Act 1968 (Cth); Designs Act 2003 (Cth); Patents Act 1990 (Cth); Trade Marks Act 1995 (Cth); any similar legislation outside the Commonwealth of Australia; any similar unregistered right and Confidential Information.
- Interest Rate means the rate of 10% per annum calculated monthly in arrears and added to the outstanding sum.
- Party and Parties means a party to this Agreement and their respective successors, trustees and permitted assigns.
- Sub-clause means a sub-clause of this Agreement.
- Specification means the published specification for Alkhemy (doMorePtyLtd) SAAS as updated from time to time in the sole discretion of DOMOREOPTIMISER unless same is agreed expressly otherwise in writing.
- Taxes includes taxes, duties and government charges, fees, levies, any penalty for not paying same and any liability for same.
In this Agreement, unless inconsistent with the context:
- Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.
- Words denoting the singular number shall include the plural number and vice versa.
- Words denoting any gender shall include all other genders.
- A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.
- Money references are references to Australian currency.
- A reference to "includes", "including" or "inclusive" is to be construed as being a reference to "includes, without limitation", "including, without limitation", and "inclusive, without limitation" respectively.
- Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.
- Every obligation express or implied into this Agreement and entered into by more than one Party shall bind them jointly and each of them severally.
- Every right express or implied into this Agreement granted in favour of one more or Parties shall be for the benefit of each of them jointly and severally
- A provision of this Agreement shall not be construed adversely to the Party that drafted it.
- If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.
- No right or remedy granted to DOMOREOPTIMISER pursuant to this Agreement excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to DOMOREOPTIMISERand all such granted rights and remedies are cumulative.
Customer's Right to Use Alkhemy (doMorePtyLtd) SAAS
Subject to the terms of this Agreement DOMOREOPTIMISER grants Customer a revocable non-exclusive right to use one or more modules of Alkhemy (doMorePtyLtd) SAAS as set out in an invoice for the Duration as follows.
- a single user licence is purchased then the licence is limited to a single user;
- a licence for multiple users is purchased then the licence is limited to the number of users so purchased;
- a bandwidth licence is purchased then the licence is limited to the amount of bandwidth so purchased; and
- a storage licence is purchased then the licence is limited to the amount of storage so purchased.
DOMOREOPTIMISER shall, from time to time, provide access codes to permit Customer to use Alkhemy (doMorePtyLtd) SAAS.
- pay the Fees specified in an invoice;
- keep its user accounts, passwords and activation codes details confidential and not disclose same to any other party. Customer shall be responsible for all use of same whether authorised by Customer or not. Should any such disclosure occur Customer shall report same to DOMOREOPTIMISER in writing as soon as possible;
- provide (if required) equipment which DOMOREOPTIMISER considers suitable to use Alkhemy (doMorePtyLtd) SAAS;
- agree to and comply with the terms and conditions of any third party software or services supplied by DOMOREOPTIMISER or made available with Alkhemy (doMorePtyLtd) SAAS and or not use such third party software and services;
- comply with all applicable laws;
- ensure that its customers, employees, volunteers, sub-contractors and other agents who have authorised access to Alkhemy (doMorePtyLtd) SAAS are made aware of the terms of this Agreement;
- supervise and control the use of Alkhemy (doMorePtyLtd) SAAS in accordance with the terms of this Agreement;
- immediately advise DOMOREOPTIMISER in writing upon Customer becoming aware of any person using Alkhemy (doMorePtyLtd) SAAS who is not authorised by DOMOREOPTIMISER to do so; and
- train its staff in the use of Alkhemy (doMorePtyLtd) SAAS and the internet;
Customer shall not:
- copy, reproduce, translate, adapt, vary, modify, decompile, disassemble, reverse engineer, create derivative works of, sub-license, rent, lease, loan or distribute Alkhemy (doMorePtyLtd) SAAS other than as expressly authorised by this Agreement;
- engage in password sharing, remote desktop access or port aggregation without the express permission of DOMOREOPTIMISER;
- exceed the licensed number of users;
- install, upload or execute any computer programs which have not been checked and are not expressly specified by DOMOREOPTIMISER as suitable;
- interfere with the network or disrupt any other user, service or equipment;
- permit any act which infringes the Intellectual Property Rights which subsist in Alkhemy (doMorePtyLtd) SAAS and which belong to DOMOREOPTIMISER.
- provide or otherwise make available Alkhemy (doMorePtyLtd) SAAS in any form to any other person;
- use Alkhemy (doMorePtyLtd) SAAS for any illegal, unauthorised or dangerous purpose including unsolicited commercial e-mail;
- use Alkhemy (doMorePtyLtd) SAAS to publish any material for which it is not the Intellectual Property Right owner or licensed by the Intellectual Property Right owner or is defamatory.
DOMOREOPTIMISER may, whilst being under no obligation to do so and at its sole discretion, without notice or giving any reason or incurring any liability for doing so:
- delete, remove or refuse to publish any material which is, in its sole opinion, without limitation:
- found in an unauthorised area;
- excessive in volume;
- uncollected for an excessive period;
- in breach of DOMOREOPTIMISER's Reasonable Use or Publishing Policy; and
- take action if it suspects that malicious, illegal or unacceptable usage of Alkhemy (doMorePtyLtd) SAAS is occurring or has occurred, including destruction or disposal of Customer's access passwords.
Disclaimer & Acknowledgments
Customer acknowledges that:
- Alkhemy (doMorePtyLtd) SAAS is not designed as a substitute in any way for professional advice. Customer shall obtain appropriate professional advice before using Alkhemy (doMorePtyLtd) SAAS;
- supplied with Alkhemy (doMorePtyLtd) SAAS are certain notes and instructions and a failure to follow those instructions or notes carefully could result in erroneous data being produced or actions being taken or not taken by Alkhemy (doMorePtyLtd) SAAS;
- Customer shall check all data stored or provided by Alkhemy (doMorePtyLtd) SAAS for any anomalies and compliance with law;
- Alkhemy (doMorePtyLtd) SAAS does not check for all anomalies and data incorrectly entered may be processed without question;
- Alkhemy (doMorePtyLtd) SAAS does not necessarily comply with any standard or legislation;
- Alkhemy (doMorePtyLtd) SAAS is licensed on the strict understanding that, subject to the warranties below, DOMOREOPTIMISER is not responsible for the results of any actions taken, either by Customer or a third party relying on data supplied or not supplied by Alkhemy (doMorePtyLtd) SAAS;
- DOMOREOPTIMISER cannot and does not warrant that Alkhemy (doMorePtyLtd) SAAS shall be available 24 hours a day or that any defect shall be corrected within a specific time frame;
- Alkhemy (doMorePtyLtd) SAAS is not necessarily secure, virus free or without defect; and
- DOMOREOPTIMISER is not responsible for:
- ensuring that Alkhemy (doMorePtyLtd) SAAS is suitable for Customer's requirements or fit for any purpose;
- any interruption to Alkhemy (doMorePtyLtd) SAAS due to equipment failure, the need for routine maintenance, peak demand etc;
- the supply or maintenance of Customer's equipment, software or telephone lines;
- monitoring, controlling or ensuring the accuracy, appropriateness or content of any information on the internet and does not do so; and
- any software available on the internet or supplied by third parties.
- DOMOREOPTIMISER may, from time to time, make available various support services and other assistance in relation to Alkhemy (doMorePtyLtd) SAAS.
- Should Customer wish to use such services then Customer shall pay the then published rate ofDOMOREOPTIMISER in relation to such services. Such services are supplied pursuant to the terms and conditions set out in this Agreement.
Intellectual Property Rights
- DOMOREOPTIMISER retains all the Intellectual Property Rights in Alkhemy (doMorePtyLtd) SAAS and the trade mark Alkhemy (doMorePtyLtd) SAS.
- Customer hereby assigns all Intellectual Property Rights it may have arising from or in relation to any of its suggestions or requirements in relation to the Alkhemy (doMorePtyLtd) SAAS to DOMOREOPTIMISER immediately as such rights are capable of assignment.
- This assignment is absolute, worldwide and includes all present and future Intellectual Property Rights arising from or in relation to Alkhemy (doMorePtyLtd) SAAS.
- Customer acknowledges that Customer's right to make any use of materials assigned pursuant to this Agreement, is dependent upon DOMOREOPTIMISERgranting an express licence to Customer, the granting and terms of which shall be at the sole discretion of DOMOREOPTIMISER.
- To the extent that Confidential Information is not in the public domain (other than by way of breach of this Agreement) and is not known by the Customer at the time of disclosure, Customer:
- keep such information confidential;
- take all necessary precautions to prevent any disclosure of Confidential Information to unauthorised third parties; and
- inform DOMOREOPTIMISER of any suspected or actual disclosure of Confidential Information; and
shall not, without the express written consent of DOMOREOPTIMISER:
- directly or indirectly divulge or communicate or otherwise disclose any Confidential Information, in whole or part to any third party;
- use any Confidential Information, other than for the express purpose set out in this Agreement; or
- remove or cause to be removed from DOMOREOPTIMISER's systems any Confidential Information.
- This Clause shall survive the termination of this Agreement.
- Customer shall pay DOMOREOPTIMISER the Fees without withholding, deduction or offset of any amounts for any purpose.
- DOMOREOPTIMISER may increase the Fees at any time upon 60 days' notice.
- An account rendered by e-mail or otherwise by DOMOREOPTIMISER shall be prima facie evidence for a Court of the provision of the items referred to in same to Customer by DOMOREOPTIMISER.
Unless expressly stated to the contrary and to the extent permitted by law:
- the Fees are exclusive of all Taxes which may arise in relation to the subject matter of this Agreement;
- Customer shall immediately pay any applicable Taxes to DOMOREOPTIMISER; and
- Customer shall indemnify and keep indemnified DOMOREOPTIMISER from payment of the Taxes and any penalties arising from non-payment of same.
Customer shall pay DOMOREOPTIMISER interest at the Interest Rate on all overdue amounts from the due date until payment is made.
Suspension of Obligations
If Customer breaches any provision of this Agreement DOMOREOPTIMISER may, without further notice to Customer,
- suspend all its obligations to Customer under this Agreement;
- disable Alkhemy (doMorePtyLtd) SAAS using time out codes, remote access or other technological measures; and or
- withdraw any discount which was otherwise applicable to the Fees.
DOMOREOPTIMISER shall not be liable for any delay or failure to perform its obligations if such a failure or delay is due to Force Majeure.
- DOMOREOPTIMISER shall supply Alkhemy (doMorePtyLtd) SAAS with all due care and skill.
- DOMOREOPTIMISER shall re-supply Alkhemy (doMorePtyLtd) SAAS which is not supplied in accordance with Sub-clause 16.1 provided that Customer notifies DOMOREOPTIMISER of same within a reasonable time. This remedy shall beCustomer's sole and exclusive remedy for breach of this Agreement or any other cause of action against DOMOREOPTIMISER.
Limitation of Liability
- To the extent permitted by law and except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded. Where legislation implies in this Agreementany condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement. However, the liability of DOMOREOPTIMISER for any breach of such term shall be limited, at the option of DOMOREOPTIMISER, to any one or more of the following: if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and if the breach relates to services the supplying of the services again; or the payment of the cost of having the services supplied again.
- To the extent permitted by law and except as expressly provided to the contrary in this Agreement, DOMOREOPTIMISER shall not be under any liability (contractual, tortious or otherwise) to Customer in respect of any loss or damage (including consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or an act, failure or omission of DOMOREOPTIMISER.
- Customer warrants that it has not relied on any representation made by DOMOREOPTIMISER or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by DOMOREOPTIMISER.
- declare, make or sign all documents and do all things necessary or desirable to give full effect to this Agreement; and
- if applicable, procure its officers, employees, volunteers and agents to do same.
- To the extent permitted by law, Customer shall release, indemnify and keep indemnified DOMOREOPTIMISER, its officers, employees, volunteers and agents, against any injury, death, damage, loss, costs (including legal costs on an indemnity basis), expenses, interest, taxes or liability whether direct or indirect and whether sustained by DOMOREOPTIMISER, DOMOREOPTIMISER's officers, employees, volunteers and agents Customer, Customer's officers, employees, volunteers and agents or a third party arising out of:
- a breach of this agreement by Customer;
- any wilful, unlawful or negligent act or omission of Customer, its officers, employees, volunteers or agents;
- any injury suffered by Customer's officers, employees, volunteers or agents; and
- the discharge of Customer's obligations pursuant to this Agreement.
- This indemnity applies regardless of whether or not legal proceedings are instituted.
- This indemnity applies to any payment, settlement, compromise or determination regardless of whether same is authorised by Customer or not.
- It is not necessary to incur any expense or make any payment before enforcing any right of indemnity under this Agreement.
- This Clause survives termination of this Agreement.
- No right of DOMOREOPTIMISER under this Agreement shall be deemed to be waived except by notice in writing signed by DOMOREOPTIMISER. Any such waiver shall be limited to its express terms.
- Any failure by DOMOREOPTIMISER to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by DOMOREOPTIMISER shall not be construed as a waiver of DOMOREOPTIMISER's rights.
The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.
Assignment, Novation and Sub-Contracts
- Customer shall not sub-contract, sub-licence, assign or novate, in whole or part, any entitlement or obligation under this Agreement without the prior written consent of DOMOREOPTIMISER.
- DOMOREOPTIMISER may:
- sub-contract for the performance or part performance of this Agreement; and
- assign this Agreement to a third party without notice and in such circumstances, DOMOREOPTIMISER's rights and obligations under this Agreement shall be immediately terminated upon assignment.
- Notices under this Agreement may be delivered by hand, by mail or by facsimile.
- Notices shall be deemed given in the case of:
- hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
- email, immediately upon acceptance of same from a machine outside the control of the sender;
- posting, 3 days after dispatch; and
- facsimile, upon completion of transmission.
- If Customer accepts an offer from DOMOREOPTIMISER which is for a fixed period and before that fixed period has expired terminates this AgreementCustomer shall pay DOMOREOPTIMISER by way of liquidated damages the full amount remaining to be payable for that fixed period.
- The Parties agree that amount is a genuine pre-estimate of the loss or damage which DOMOREOPTIMISER would suffer in such circumstances.
DOMOREOPTIMISER may terminate this Agreement immediately if:
- any payment due from Customer to DOMOREOPTIMISER remains unpaid for a period of 14 days;
- Customer breaches any provision of this Agreement and such breach is not remedied within 14 days of notice by DOMOREOPTIMISER;
- Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
- Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
- Customer being a natural person, dies; or
- Customer ceases or threatens to cease conducting its business in the normal manner.
In addition to terminating this Agreement, DOMOREOPTIMISER:
- may disable Alkhemy (doMorePtyLtd) SAAS using time out codes, remote access or other technological measures;
- may retain any moneys paid;
- may charge a reasonable sum for any un-invoiced items;
- shall be regarded as discharged from any further obligations under this Agreement;
- shall be under no liability to Customer for damages or compensation or any other payment whatsoever;
- may immediately erase all Confidential Client Data Information stored by DOMOREOPTIMISER; and
- may pursue any additional or alternative remedies provided by law.
Unless stated expressly to the contrary in this Agreement:
- this Agreement constitutes the entire agreement between the Parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded;
- this Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties. No Party may represent that there exists such a relationship between the Parties;
- no Party may bind another Party to any agreements, arrangements, contracts or understanding or represent that they have such authority; and
- no modification or alteration of any provision of this Agreement shall be valid except in writing signed by each Party save that DOMOREOPTIMISER may on 30 days notice change any term of this Agreement and in such a case Customer may terminate this Agreement during that notice period without further obligation.
- This Agreement shall be governed by and construed according to the law of Victoria.
- The Parties irrevocably submit to the exclusive jurisdiction of the Courts of Victoria and the Commonwealth of Australia. Any proceedings in a Commonwealth Court shall be commenced in Victoria.
Alkhemy (doMorePtyLtd) Pty Ltd. All rights Reserved.