Thank you for choosing to use the Software made by Nigel Greens Apps. This agreement (Agreement) is between Nigel Greens Apps ABN 21 790 232 340 (Nigel Greens Apps, “us,” “we,” or “our”) and the person or entity agreeing to these terms (you). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “you” means your company, and you are binding your company to this Agreement.
By using or accessing the Software you agree to these terms and conditions of use (Terms).
If you do not agree with these Terms, stop using and uninstall the Software immediately.
Subject to these Terms, Nigel Greens Apps grants you a non-exclusive, non-transferable revocable licence to use the Software on a compatible handheld device (Device) owned or controlled by you.
Unless permitted by law or as otherwise expressly permitted in these Terms, you must not (nor may you authorise any third person to):
(i) rent, lease, distribute, license, sublicense, sell, transfer, assign, distribute or otherwise provide access to the Software to a third party;
(ii) reproduce, modify, adapt, create derivative works of, the Software;
(iii) reverse engineer, disassemble, decompile, transfer, exchange or translate the Software or otherwise seek to obtain or derive the source code or API;
(iv) remove or tamper with any disclaimers or other legal notices;
(v) combine the whole or any part of the Software with any other software, data or material;
(vi) store or use any part of the data you do not own in an archival database or other searchable database. You must promptly notify us in writing of any breach of these conditions of use.
Intellectual Property Rights
You agree that all intellectual property of any sort in or associated with the Software, including all code, libraries, programs, software, documentation, content, databases, systems, logos and trademarks are owned either directly by us or by our licensors. You are not authorised to use any of our intellectual property except as is expressly allowed under these Terms.
Term and Renewal
Software are provided on a subscription basis for a set Term as specified in your Order. Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Term (and you will be charged at the then-current rates) unless you cancel your subscription in writing or through your account at the Site. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
If Nigel Greens Apps does not want the Software to renew, then it will provide you written notice to this effect. This notice of non renewal will be effective upon the conclusion of the then current Term.
You must use the Software in accordance with the Acceptable Use Policy and Site Terms and Conditions.
You may specify one or more administrators who will have password protected rights to access administrative account(s) for the purposes of administering the Software (Admin Account(s)) and to administer all End Users permitted to use the Software and who have established an End User Account. You are responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with these Terms. You agree that our responsibilities do not extend to the internal management or administration of the Software for you and that we are merely a software provider.
Your administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. You will obtain and maintain all required consents from End Users to allow: (i) your access, monitoring, use and disclosure of this data and Nigel Greens Apps providing you with the ability to do so and (ii) Nigel Greens Apps to provide the Software.
You are responsible for responding to a request from a third party for records relating to an End User's use of the Software (Third Party Requests). Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure. We will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify you of the receipt of a Third Party Request; (b) comply with your reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide you with the information or tools required for you to respond to the Third Party Request. You will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact us only if you cannot reasonably obtain such information.
By using the Software, you acknowledge that it is your sole responsibility to ensure the confidentiality and security of any information transmitted from or stored on a Device for the purposes of the Software, for all transactions and other activities in the End User’s name, whether authorized or unauthorized. You understand that use of the Software involves transmission of your data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
When you use the Software, any data, templates, information, content, code, video, images or other materials of any type (Materials) you enter remains confidential to you unless you choose to share any Materials with Nigel Greens Apps and/or other users.
When you choose to publicly share content, including Materials that you upload, submit or otherwise transmit to or through Software or the Site, or with us:
- you warrant that the Materials have not been misappropriated from or breach the intellectual property rights of any other person and that you have the rights to use and provide the Materials and to grant the licenses contained in this Section;
- you grant to Nigel Greens Apps and/or other users of our technologies a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable, license to use, publish, exercise the copyright and other intellectual property rights you have in the Materials;
- you agree that this license includes the right for us to provide, promote, and improve the Software and to make Materials submitted to or through the Software or the Site available to other companies, organizations or individuals who use the Software, with no compensation paid to you;
- you are responsible for ensuring that the Materials and their use, meaning, effect and placement is not:
- unlawful, obscene, harmful, of bad taste, inappropriate and otherwise comply with the Acceptable Use Policy;
- false, misleading or inaccurate, or otherwise in contravention of the Competition and Consumer Act (Cth) 2010;
- in breach of any applicable law;
- confidential or infringes upon any third-party's intellectual property rights;
- defamatory or offensive;
- in breach of these Terms; or
- infected with viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of the Software; and
- you indemnify Nigel Greens Apps and/or other users against any and all legal fees, damages and other expenses that may be incurred by us and/or other users as a result of a breach by you of the above Terms. Without limiting any other remedies available, Nigel Greens Apps has the unfettered right to remove, delete or modify any Materials that it considers to be inappropriate, at its absolute discretion, without consultation with you.
- unlawful, obscene, harmful, of bad taste, inappropriate and otherwise comply with the Acceptable Use Policy;
Disclaimer, Limitation on Liability and Indemnity
Except as expressly stated in this Agreement, we do not make any representation or warranty (express or implied) in respect of the Software, any Materials or any other goods or Software provided by Nigel Greens Apps to you, including, without limitation, any implied warranty: (i) of merchantability; (ii) of fitness for a particular purpose; (iii) arising from a course of performance, course of dealing, or usage of trade; (iv) of non-infringement of third party rights; or (v) against hidden defects. The Software and Materials are provided on an “as is”, “with all faults” and “as available” basis and without any further warranties of any kind. We make no warranty that operation of the Software or any Materials will be uninterrupted or error free or that all defects will be corrected.
Without limiting the above, you acknowledge that:
- you are using the Software at your own risk;
- the Software is not a substitute for professional advice;
- you are solely responsible for the use of the Software and agree that any safety audits, training courses or incidents conducted using the Software are only part of establishing a safe system of work, which would typically require you to undertake additional and comprehensive gap analysis and risk assessments along with specific safe work method statements and safety training;
- you have not relied on any representation in ordering the Software or any goods and Software from us.
To the maximum extent permitted by law, we exclude completely all liability whatsoever for any claims, liability, loss or damage of any kind however caused (including negligence) arising out of or in connection with any goods or Software provided by us including the Software and its access, use or performance, including, without limitation, we are not liable for: (a) misuse of the Software or any Materials; (b) use of the Software or any Materials with third party data, software or hardware which is incompatible with the Software and/or not recommended by us; (c) reduced performance or non-availability of the Software or any Materials as a result of network connections; or (d) errors in the Software or any Materials resulting from your configuration or manipulation of the Software or any Materials, in each case not specifically recommended in writing by us.
Under no circumstances (including but not limited to any act or omission on our part) will we be liable for any loss or damages (including, without limitation, indirect, incidental, special or consequential or punitive damages and damages for loss of profits) whatsoever which result from any use, or any inability to use, the Software or any Materials.
To the maximum extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded is limited at our option to supply of the good or service ordered by you again or paying for their resupply.
Notwithstanding the above, to the maximum extent permitted by law, in no event shall our aggregate liability for any claims arising out of or related to these Terms exceed the greater of one hundred Australian dollars ($100) or the amount that you paid, if any, to us for access to or use of the Software during the six months period immediately prior to the event giving rise to such liability.
You agree to indemnify Nigel Greens Apps and its related parties, officers, agents and employees (Indemnified Parties) in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment (including legal expenses (on a full indemnity basis) arising from or relating to: (i) your use of the Software or any Materials; (ii) a breach of these Terms by you; and (iii) your breach of any applicable law.
This Agreement is in effect for the Term, unless sooner terminated as permitted in these Terms. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of these Terms and does not cure the breach within thirty (30) days after written notice of the breach, or if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations.
You may terminate this Agreement at any time with notice to Nigel Greens Apps, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused subscription Fees.
Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law, or otherwise.
Except as set forth in this Section, once the Agreement terminates, then:
(i) the rights and licenses granted by Nigel Greens Apps to you will cease immediately (except as set forth in this Section);
(ii) you (and your End Users) must cease all use of the Software;
(iii) if there is no reasonable intention of renewing your subscription you are required to delete the software and any third party Materials made available to you under this Agreement, including any Nigel Greens Apps confidential information from your systems as applicable and, if requested by us, provide written certification to us that you have done so at our request;
and (iv) you undertake not to attempt to access the software or any data stored in the software after the date of termination.
We may update or modify these Terms from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will notify you by posting on our Site. If we modify these Terms during the Term, the modified version will be effective upon your next renewal of the Term, as applicable. In this case, if you object to the updated Terms, as your exclusive remedy, you may choose not to renew, including cancelling any Terms set to auto-renew.
Nigel Greens Apps Acceptable Use Policy
Customer agrees not to, and not to allow third parties (including End Users) to use the Software:
- to violate, or encourage the violation of, the legal rights of others (for example, this may include allowing End Users to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act);
- to engage in, promote or encourage illegal activity;
- for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
- to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
- to interfere with the use of the Software, or the equipment used to provide the Software, by customers, authorized resellers, or other authorized users;
- to disable, interfere with or circumvent any aspect of the Software;
- to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations (“spam”); or
- to use the Software, or any interfaces provided with the Software, to access any other Nigel Greens Apps product or service in a manner that violates the terms of service of such other Nigel Greens Apps product or service.
These Terms are governed by the laws of Queensland, Australia and the parties agree to submit to the exclusive jurisdiction of the courts in Queensland, Australia.
If any provision of these Terms is held to be invalid, illegal, or unenforceable that provision shall be deemed omitted to the extent that it is invalid, illegal, or unenforceable and the remainder of the Terms shall be construed in a manner as to give greatest effect to the original intention of these Terms.
The waiver of any right or failure of either of us to exercise in any respect any right provided in these Terms in any instance shall not be deemed to be a waiver of such right in the future or a waiver of any right under these Terms.
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and internet disturbance) that was beyond the party's reasonable control (Force Majeure).
Your use of any website or software that is not provided by us to access or download the Software shall be governed by the terms and conditions applicable to that website or software. We are not responsible for any consequences resulting from the use of such website or software, including but not limited to any damage to your property, including your Device, or the transfer of any computer virus or similar malicious code, except to the extent such consequences are caused by the Software.
Any notices to you will be posted on the Site (www.nigelgreensapps.com). Any notices to Nigel Greens Apps, and any questions, concerns or complaints relating to the Software shall be in writing and given by email to: email@example.com
You agree to use your best endeavours to resolve any dispute arising out of or relating to these Terms, with us, prior to resorting to any external dispute resolution process. Please notify us in writing of any dispute you may have.
This Agreement, and any rights and licenses granted hereunder, must not be transferred or assigned by you without our prior express written consent. We may, without restriction, assign this Agreement and our rights and delegate our obligations hereunder to: (i) any of our affiliates or subsidiaries, or (ii) a third party participating in a merger, acquisition, sale of shares or assets, change of control, corporate reorganization or similar transaction in which Nigel Greens Apps is participating.
In respect of the subject matter of the Terms, these Terms contain the entire understanding between the parties. Any previous oral and written communications, representations, warranties or commitments are superseded by the Terms and do not affect the interpretation or meaning of the Terms and each of the parties has relied entirely on its own enquiries before entering into the Terms.