Welcome! We are My Quality Management System (My QMS) Pty Ltd, an Australian business with ABN 71 686 960 761 ('we', 'our' or 'us') and we provide a purpose-built, online Quality Management System (QMS) tailored specifically for Australian BAS practitioners known as My QMS as described on our Websites (Software).
These terms and conditions (Terms) govern your access to the Software and us providing you any other goods and services as set out in these Terms (Subscription). You can view the most updated version of our Terms at https:// myqms.com.au/ and https://bas.myqms.com.au/ (Websites). Please read these terms and conditions carefully before agreeing to proceed with your Subscription.
Your Subscription is for the tiered package as selected by you and agreed between us by means of the Websites (Subscription Tier).
Please note that your Subscription will continue to renew indefinitely, and you will continue to incur Subscription Fees, unless you notify us that you want to cancel your Subscription in accordance with clause 14. Please ensure you contact us if you want to cancel your Subscription.
Please note that your Subscription is for a minimum period of 12 months and cannot be terminated for any pro rata reduction of fees or refunds.
(a) In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.
(b) By clicking the "I accept these Terms" button on our Websites, paying for your Subscription or otherwise accepting the benefit of any part of your Subscription, you agree to be bound by these Terms which form a binding contractual agreement between you the person acquiring a Subscription or the entity you represent and are acquiring the Subscription on behalf of ('you' or 'your') and us.
(c) We may change these Terms at any time by notifying you, and your continued use of the Solution following such an update will represent an agreement by you to be bound by the Terms as amended.
(a) By accepting these Terms, you represent and warrant that:
(i) you have the legal capacity and authority to enter into a binding contract with us; and
(ii) you are authorised to use the payment you provided when purchasing a Subscription.
(b) The Software is not intended for unsupervised use by any person under the age of 18 years old or any person who has previously been suspended or prohibited from using the Software. By using the Software, you represent and warrant that you are either:
(i) over the age of 18 years and accessing the Software for personal and commercial use; or
(ii) accessing the Software on behalf of someone under the age of 18 years old and consent to that person's use of the Software.
(c) Please do not access the Software if you are under the age of 18 years old and do not have your parent or guardian's consent, if you are under 16 or if you have previously been suspended or prohibited from using the Software.
(d) If you are signing up not as an individual but on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then "you" or "your" means the Represented Entity and you are binding the Represented Entity to this agreement. If you are accepting this agreement and using our Solution on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.
(a) Your Subscription and these Terms commence on the date you agree to be bound by these Terms (as set out at the beginning of these Terms) and continues for the Subscription Period and any Renewal Periods applicable, unless terminated earlier in accordance with clause 14.
(b) Subject to clause 3.1(c), upon expiration of the Subscription Period, this agreement will automatically and indefinitely renew on an ongoing basis for a period equal to the Subscription Period (Renewal Period).
(c) This agreement will not automatically renew on expiry of the Subscription or Renewal Period (Renewal Date), if either party provides a written cancellation notice at least 30 days prior to the Renewal Date.
(a) We may, at our sole discretion, offer you a 10 Business Day cooling-off period from the date you accept these Terms. If offered, you may cancel your Subscription during this period by providing written notice to us.
(b) If you cancel during an active cooling-off period, your access to the Solution will be immediately revoked, you will receive a full refund of any Fees paid within 14 Business Days; and the agreement will be treated as void from the date of your notice.
(c) We are not obligated to offer a cooling-off period and may change this policy at any time. A Cooling-off period, where offered, applies only to initial subscriptions, not renewals or any other goods or services.
(d) If we elect to offer you a cooling-off period, this will be clearly stated in your subscription confirmation with instructions on how to exercise this right.
(e) For the avoidance of any doubt, the Cooling Off Period will not apply in any Renewal Term.
(a) We will provide you, to the extent described in your Subscription Tier, the Software and the Documentation (Solution).
(b) Your Subscription includes the benefits and limitations of your Subscription Tier as set out on our Websites, or as otherwise communicated to you when you subscribe for your Subscription (and as amended from time to time by notice to you).
(a) (Accounts) To use the Solution, you may be required to sign-up, register and receive an account through the Websites (an Account).
(b) (Provide Information) As part of the Account registration process and as part of your continued use of the Websites, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, photos and video, audio files, profile information, payment details, ratings and reviews, verified identifications, verified certifications and authentication, and other information as determined by us from time to time.
(c) (Warranty) You warrant that any information you give to us in the course of completing the Account registration process is accurate, honest, correct and up-to-date.
(d) (Acceptance) Once you complete the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Websites and provide you with an Account.
You acknowledge and agree that:
(a) that any information provided to you as part of or in connection with the Solution or the Services is general in nature, may not be suitable for your circumstances and does not constitute legal, financial, tax, accounting or any other kind of professional advice;
(b) the Solution includes generalised files, forms, workflows, templates, and other tools intended to support your business operations. It is your sole responsibility to review, customise, and implement these materials to ensure they are suitable for your specific operational requirements and compliant with all applicable laws, regulations, and industry standards relevant to your business. My QMS does not warrant that the default files, forms, workflows or templates meet any particular regulatory obligations, and you must seek your own professional advice where necessary; and
(c) it is your responsibility to comply with applicable Laws relevant to your business, including tax Laws and privacy Laws.
(a) While your Subscription is maintained, we grant to you a non-exclusive, non-transferable licence to use the Software and Documentation for the Number of Solution Users. If your Subscription Tier on the Websites does not specify a Number of Solution Users, your licence to use the Solution under this clause will be limited to one User (i.e., the Number of Solution Users will be one).
(b) We may from time to time, in our absolute discretion, release enhancements to the Software, meaning an upgraded, improved, modified or new versions of the Software (Enhancements). Any Enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime.
(c) We may change, add, or remove features of the Solution, provided that material changes do not substantially reduce the core functionality of your Subscription Tier. If material changes substantially reduce functionality, you may terminate your Subscription under clause 14.
(d) While we reserve the right to refuse or terminate Accounts in our discretion, we will provide written notice of any account suspension or termination, give you a reasonable opportunity to address any issues that led to the decision; and act reasonably and in good faith when exercising this discretion.
We will provide general support where reasonably necessary to resolve technical issues with the Software (Support Services). Unless otherwise agreed in writing:
(a) we will take reasonable steps to provide Support Services where necessary (you must first endeavour to resolve any issues with the Software internally and we will not assist with issues that are beyond our reasonable control);
(b) we will use our best endeavours to respond to requests for Support Services and you acknowledge that we may not be available 24/7 or respond within a particular time frame;
(c) you are responsible for all internal administration and managing access, including storing back-up passwords and assisting your Users to access and use the Software; and
(d) you will not have any claim for delay to your access to the Software due to any failure or delay in Support Services.
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(a) Nothing in these Terms excludes, restricts or modifies any consumer guarantees, warranties, representations or other rights you may have under the Australian Consumer Law or other applicable law that cannot be excluded, restricted or modified by agreement.
(b) If our goods or services fail to meet a consumer guarantee for a major failure, you are entitled to cancel your subscription and obtain a refund or obtain compensation for the drop in value below the price paid.
(c) For a major failure relating to services, you are also entitled to compensation for any reasonably foreseeable loss or damage. For a failure that is not major, we will provide a free remedy within a reasonable time, and if we do not, you can cancel your subscription and obtain a refund for the unused portion.
(d) Consumer guarantees apply for the period that a reasonable consumer would expect the goods or services to last, taking into account factors such as the nature and price of the goods or services and any representations made about their quality or performance.
We will store User Data you upload to the Software using a third party hosting service selected by us (Hosting Services), subject to the following terms:
(a) (hosting location) You acknowledge and agree that we may use storage servers to host the Software through cloud-based services in Australia, and potentially other locations outside Australia.
(b) (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Services will be free from errors or defects or that User Data will be accessible or available at all times.
(c) (security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(d) (backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.
You agree to:
(a) provide us with all documentation, information and assistance reasonably required by us to perform the Services; and
(b) provide us with access to any third party or other accounts used by you (including log-in details and passwords), as is reasonably required by us to perform the Services.
(a) You warrant that all information, documentation and other Material you provide to us for the purpose of receiving the Solution is complete, accurate and up-to-date.
(b) You release us from all liability in relation to any loss or damage arising out of or in connection with the Solution, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by you being incomplete, inaccurate or out-of-date.
(a) You must, and must ensure that all Users, comply with these Terms at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel's, or any User's, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.
(b) You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:
(i) upload sensitive information or commercial secrets using the Software;
(ii) upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Software;
(iii) use the Software for any purpose other than for the purpose for which it was designed, including you must not use the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes;
(iv) upload any material that is owned or copyrighted by a third party;
(v) make copies of the Documentation or the Software;
(vi) adapt, modify or tamper in any way with the Software;
(vii) remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation;
(viii) act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Software;
(ix) use the Software in a way which infringes the Intellectual Property Rights of any third party;
(x) create derivative works from or translate the Software or Documentation;
(xi) publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties;
(xii) integrate the Software with third party data or Software, or make additions or changes to the Software, (including by incorporating APIs into the Software) other than integrating in accordance with any Documentation or instructions provided by us in writing;
(xiii) intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Software;
(xiv) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party, other than granting a User access as permitted under these Terms;
(xv) decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
(xvi) share your Account or Account information, including log in details or passwords, with any other person and that any use of your Account by any person who is not the account holder is strictly prohibited. You must immediately notify us of any unauthorised use of your Account, password or email, or any other breach or potential breach of the Solution's security;
(xvii) use the Solution for any purpose other than for the purpose for which it was designed, including you must not use the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes);
(xviii) make any automated use of the Solution and you must not copy, reproduce, translate, adapt, vary or modify the Solution without our express written consent;
(xix) attempt to circumvent any technological protection mechanism or other security feature of the Software; or
(xx) permit any use of the Solution in addition to the Number of Solution Users.
(c) If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Websites.
(d) You agree, and you must ensure that all Users agree:
(i) to comply with each of your obligations in these Terms;
(ii) to sign up for an Account in order to use the Solution;
(iii) that information given to you through the Software, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
(iv) that we may cancel your, or any User's, Account at any time if we consider, in our absolute discretion, that you or they are in breach of, or are likely to breach, this clause 6.
We may from time to time offer a free trial period of the Solution (Free Trial Period). No payments will be due during any Free Trial Period and your first payment will be due immediately after the expiry of the Free Trial Period.
(a) You must pay subscription fees to us in the amounts specified on the Websites for your Subscription Tier, or as otherwise agreed in writing (Subscription Fees).
(b) All Subscription Fees must be paid in advance and are non-refundable for change of mind.
(c) Unless otherwise agreed in writing, the Subscription Fees are due and payable on a recurring basis for the duration of your Subscription, with the first payment being due on the first day of the Subscription Period (or immediately after the expiry of any applicable Free Trial Period) and at the beginning of every Renewal Period thereafter.
(d) Unless otherwise agreed in writing, the Subscription Fees are due and payable at the times specified in the Websites (Billing Cycle) on a recurring basis for the duration of your Subscription, with the first payment being due on the first day of the Subscription Period (or immediately after the expiry of any applicable Free Trial Period) and at the beginning of every Billing Cycle thereafter.
Subject to clauses 7.4 and 7.5:
(a) Your Subscription will continue to renew on an automatic indefinite basis unless you notify us that you wish to cancel in accordance with this clause 7.
(b) While your Subscription is maintained, your Subscription Fees will continue to be debited at the beginning of each Renewal Period from the payment method you nominated when you registered for an Account.
(c) By signing up for a recurring Subscription, you acknowledge and agree that your Subscription has an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to your cancellation of your Subscription.
(d) Unless otherwise agreed in writing, Subscription Fees are due and payable according to your selected billing cycle (monthly or annually).
If you fail to cancel your Subscription prior to a Renewal Period and you are charged recurring charges, you have up to 20 Business Days from the date of that renewal to cancel your Subscription by contacting us through our Websites (Grace Period). If you cancel your Subscription within the Grace Period, please contact us via our Websites to request a refund for any recurring fees charged to you during the Grace Period. We will process the refund within 14 Business Days of receiving your cancellation notice.
(a) We may, from time to time, change our Subscription Fees and provide you with 30 Business Days' notice prior to the changes taking effect. During this time, you have the opportunity to cancel your Subscription with us. If you do not cancel your Subscription before the new Subscription Fees take effect, the Grace Period in clause 7.4 will apply.
(b) The notice will be sent to your registered email address and will include details of the new fees, the date the new fees will take effect, and your right to cancel your Subscription before the new fees take effect.
(c) During the 30-day notice period, you may cancel your Subscription without penalty; continue at your current fee rate until the end of your current Subscription Period; or accept the new fees by taking no action.
(d) For annual subscriptions, we may offer a price freeze guarantee where fees remain unchanged for the duration of your annual term.
(e) Existing subscribers may be offered the option to maintain current pricing for a specified period when new pricing is introduced.
We reserve the right to suspend all or part of the Solution indefinitely if you fail to pay any Fees in accordance with this clause 7.
Unless otherwise indicated, the Fees include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.
We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
(a) We may use third-party online payment partner, currently Stripe (Online Payment Partner) to collect Subscription Fees.
(b) Provided that the Service Provider has notified the Client of such Third Party Terms and provided the Client with a copy of those terms, you acknowledge agree that:
(i) the processing of payments by the Online Payment Partner will be, in addition to this agreement, subject to the terms, conditions and privacy policies of the Online Payment Partner, which can be found here: https://stripe.com/au/legal/ssa;
(ii) you release us and our Personnel in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Online Payment Partner, including any issue with security or performance of the Online Payment Partner's platform or any error or mistake in processing your payment; and
(iii) We reserve the right to correct, or to instruct our Online Payment Partner to correct, any errors or mistakes in collecting your payment.
(a) In addition to your base Subscription, we may offer optional extras and additional services that you may choose to purchase, including but not limited to:
(i) additional user access beyond your Subscription Tier limit;
(ii) premium templates and forms libraries;
(iii) advanced workflow automation tools;
(iv) additional data storage capacity;
(v) priority customer support;
(vi) custom integrations or configurations;
(vii) training and consultation services; and
(viii) any other features or services we may offer from time to time.
(b) Optional Extras are not included in your base Subscription Fees and will incur additional charges as specified in your Account dashboard or as otherwise communicated to you at the time of purchase.
(c) Before you can purchase any Optional Extra, we will clearly display the description of the Optional Extra, the price and billing frequency (one-time, monthly, or annually), any usage limits or restrictions, the term and renewal conditions; and cancellation terms specific to that Optional Extra.
(d) Optional Extras may be billed separately from your base Subscription Fees, on different billing cycles than your main Subscription, as one-time charges or recurring charges, as specified for each Optional Extra.
(e) By purchasing an Optional Extra, you authorise us to charge your nominated payment method for the specified amount and on the specified billing schedule.
(f) Each Optional Extra is subject to these general Terms and Conditions, any specific terms and conditions applicable to that Optional Extra, which will be presented to you before purchase, the pricing and billing terms displayed at the time of purchase.
(g) Your consumer rights under the Australian Consumer Law apply to Optional Extras in the same way they apply to your base Subscription, including consumer guarantees for quality and fitness for purpose, rights to refunds and remedies for major failures, and protection from unfair contract terms.
(h) We may offer free trial periods for certain Optional Extras. If we do the trial period duration will be clearly stated, you will not be charged during the trial period, you can cancel before the trial period ends to avoid charges, and if you don't cancel, billing will commence automatically after the trial period.
(i) You may cancel any Optional Extra by accessing your Account settings and cancelling through the self-service options, contacting us through our Websites, or sending written notice to the contact details specified on our Websites.
(j) Unless otherwise specified for a particular Optional Extra recurring Optional Extras can be cancelled with 30 days' notice, one-time Optional Extras cannot be cancelled once the service has been provided, and you may cancel during any applicable trial period without charge.
(k) Upon cancellation of an Optional Extra your access to that Optional Extra will cease at the end of your current billing period, you will not be charged for subsequent billing periods, any data or content specific to that Optional Extra may be deleted in accordance with our data retention policies and your base Subscription will continue unaffected.
(l) We may change the pricing of Optional Extras by providing you with at least 30 days' written notice. The notice will include, details of the new pricing, the effective date of the change, your right to cancel the Optional Extra before the new pricing takes effect.
(m) We may modify, discontinue, or replace Optional Extras by providing you with at least 30 days' written notice. If we discontinue an Optional Extra you have purchased, we will provide a comparable alternative where reasonably possible, if no comparable alternative is available, we will provide a pro-rata refund for any prepaid charges, and you may cancel related Optional Extras without penalty.
(n) We may offer Optional Extras as part of bundle packages at discounted rates. Bundle terms will be clearly specified at the time of purchase, including which Optional Extras are included, the bundle price and any savings compared to individual purchases, the minimum term for the bundle pricing, and what happens if you cancel individual components of the bundle.
(o) We may offer promotional pricing for Optional Extras. Promotional terms will specify the promotional price and regular price, the duration of the promotional period, any conditions or limitations that apply, and what pricing applies after the promotional period ends.
(p) Refunds for Optional Extras are available if you cancel during any applicable cooling-off or trial period, if we fail to provide the Optional Extra as described, if you are entitled to a refund under the Australian Consumer Law, and as otherwise specified in the terms for that particular Optional Extra.
(q) For recurring Optional Extras cancelled mid-billing period, no pro-rata refunds apply unless we have materially breached our obligations, you will retain access to the Optional Extra until the end of the current billing period, and exceptions may apply for certain Optional Extras as specified in their individual terms.
(r) Approved refunds will be processed within 14 Business Days and credited to your original payment method.
(s) Optional Extras are additional to your base Subscription. Cancellation or modification of Optional Extras does not affect your base Subscription unless you specifically cancel your entire Account.
(t) Optional Extras may not be available to all users or in all regions. Availability may depend on your current Subscription Tier, technical compatibility and regulatory or legal restrictions in your jurisdiction.
(u) Optional Extras may be subject to fair usage policies or specific usage limits, which will be clearly communicated at the time of purchase.
(a) (Our ownership) We retain ownership of all Materials provided to you throughout the course of your Subscription in connection with the Software (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Software Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us in the Software Content not expressly granted to you.
(b) (Licence to you) You are granted a licence to the Software Content, for the Number of Solution Uses, and You may access and use the materials made available to you through the Software only via the Software's user interface and solely for the purposes of using the Software in accordance with this agreement. You must not download, store, copy, reproduce, extract, distribute, or otherwise use any part of those materials outside the Software, except as expressly permitted by us in writing. For clarity, you must not make any temporary or permanent electronic or physical copies of the materials without prior written consent from us or as otherwise permitted by law.
Our Rights and Obligations
(a) You grant to us (and our Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use User Data to the extent reasonably required to provide the Solution, and for our internal business purposes, including to improve the Solution and our other products and services, and including to apply machine learning and other analytics processes to the User Data, to gain commercial insights and other associated learnings, and to improve the Solution, our business and our other products and services.
(b) We reserve the right to remove any User Data at any time, for any reason, including where we deem User Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.
Your Obligations and Grant of Licence to Us
(c) You are responsible for ensuring that:
(i) you share User Data only with intended recipients; and
(ii) all User Data is appropriate and not in contravention of these Terms.
(d) You:
(i) warrant that our use of User Data will not infringe any third-party Intellectual Property Rights; and
(ii) indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
(a) If we are required to acquire goods or services supplied by a third party, you may be subject to the terms and conditions of that third party ('Third Party Terms').
(b) Provided that we have notified you of such Third Party Terms and provided you with a copy of those terms, you agree to any Third Party Terms applicable to any goods or services supplied by a third party that we acquire as part of providing the Solution to you and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
(a) You acknowledge and agree that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. We cannot guarantee that integration processes between the Software and other software programs will be free from errors, defects or delay.
(b) You agree that we will not be liable for the functionality of any third party goods or services, including any third party software, or for the functionality of the Software if you integrate it with third party software, or change or augment the Software, including by making additions or changes to the Software code, and including by incorporating APIs into the Software.
(c) If you add third party software or software code to the Software, integrate the Software with third party software, or make any other changes to the Software, including the Software code (User Software Changes), then:
(i) you acknowledge and agree that User Software Changes can have adverse effects on the Solution, including the Software;
(ii) you will indemnify us in relation to any loss or damage that arises in connection with the User Software Changes;
(iii) we will not be liable for any failure in the Solution, to the extent such failure is caused or contributed to by a User Software Change;
(iv) we may require you to change or remove User Software Changes, at our discretion, and if we do so, you must act promptly;
(v) we may suspend your access to the Solution until you have changed or removed User Software Change; and/or
(vi) we may change or remove any User Software Change, in our absolute discretion. We will not be liable for loss of data or any other loss or damage you may suffer in relation to our amendment to, or removal of, any User Software Change.
(a) Except as contemplated by these Terms, a party must not permit any of its Personnel, use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party's prior written consent.
(b) Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information.
(c) The notifying party will investigate each potential, actual or suspected breach of confidentiality and assist the other party in connection with any related investigation.
(a) We collect personal information about you in the course of providing you with the Solution, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy which can be found at www.bas.myqms.com.au/privacy.
(b) Our Privacy Policy which complies with the Privacy Act 1988 (Cth) contains more information about how we use, disclose and store your personal information and details how you can access and correct your personal information.
(c) By agreeing to these Terms, you agree to our handling of personal information in accordance with our Privacy Policy.
(a) (Warranties) We warrant that:
(i) during the Subscription Period, the Software will perform substantially in accordance with the Documentation;
(ii) during the Subscription Period, the Solution will be provided as described to you in, and subject to, these Terms; and
(iii) to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.
(b) (Errors) We will correct any errors, bugs or defects in the Software which arise during your Subscription and which are notified to us by you, unless the errors, bugs or defects:
(i) result from the interaction of the Software with any other solution or computer hardware, software or services not approved in writing by us;
(ii) result from any misuse of the Software; or
(iii) result from the use of the Software by you other than in accordance with these Terms or the Documentation.
(c) (Service Limitations) While we will use our best endeavours to ensure the Solution is working for its intended purpose, you acknowledge and agree that from time to time, you may encounter the following issues:
(i) the Solution may have errors or defects;
(ii) the Solution may not be accessible at times;
(iii) messages sent through the Solution may not be delivered promptly, or delivered at all;
(iv) information you receive or supply through the Solution may not be secure or confidential; or
(v) any information provided through the Solution may not be accurate or true.
(d) (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in these Terms are excluded.
(e) (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided. Where the Australian Consumer Law permits us to limit our liability, we will provide the most appropriate remedy in the circumstances, however will not rely on any limitation of liability clause in a way that would be unfair or unreasonable in the circumstances.
(a) To the maximum extent permitted by law and subject to clause 12.2(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with these Terms or the Solution is limited to the total Fees paid to us by you in the 6 months preceding the date of the event giving rise to the relevant liability.
(b) Clause 12.2(a) does not apply to your liability in respect of loss or damage sustained by us arising from your:
(i) breach of third party intellectual property rights; or
(ii) negligent, wilful, fraudulent, criminal act or omission.
To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with these Terms or any goods or services provided by us, except:
(a) in relation to a party's liability for fraud, personal injury, death or loss or damage to tangible property; or
(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).
(a) You may notify us via our Websites that you would like to upgrade your Subscription Tier or the Number of Solution Users at any time. If you do, we will:
(i) take reasonable steps to promptly provide you with access to the new Subscription Tier or the additional Number of Solution Users; and
(ii) upon providing such access, apply the new, relevant Subscription Fees, to the Renewal Period immediately following the period in which your access to the new Subscription Tier was provided, and you will be charged at the new Subscription Fee in every subsequent Renewal Period.
(b) You may downgrade your Subscription Tier or reduce the Number of Solution Users by providing 30 days' written notice to us via our Websites. If you do:
(i) the downgrade will take effect at the end of your current billing period, you will continue to have access to your current tier until the downgrade takes effect, we will apply the lower Subscription Fees from your next Renewal Period, no additional charges will apply for the downgrade.
(ii) downgrade to a tier with lower data storage limits, we will provide you with 30 days' notice before any data deletion, you will have the opportunity to manage excess data before the downgrade takes effect, and we may temporarily maintain access to excess data for up to 60 days to allow you to manage the transition.
(a) You may cancel your Subscription at any time by providing 30 days' written notice to us through your account settings on our Websites; the contact form on our Websites; or by sending an email to the address specified on our Websites.
(b) We may cancel your Subscription by providing you with 30 days' written notice to your registered email address.
(a) Either party may cancel your Subscription immediately by written notice if there has been a Breach of these Terms.
(b) A "Breach" of these Terms means:
(i) a party (Notifying Party) considers the other party (or any of its Personnel or Users) is in breach of these Terms and notifies the other party;
(ii) the other party is given 10 Business Days to rectify the breach; and
(iii) the breach has not been rectified within 10 Business Days or another period agreed between the parties in writing.
(iv) either party may terminate this agreement immediately by written notice if the other party commits a material breach that cannot be remedied, or the other party commits a material breach and fails to remedy it within 14 days of receiving written notice of the breach.
(v) we may suspend your access to the Solution immediately if we reasonably believe you have breached clause 6.3 (your obligations), provided we give you written notice and an opportunity to remedy any remediable breach within 7 days.
Upon termination of this agreement:
(a) you will no longer have access to the Software, your Account or your User Data and we will have no responsibility to store or otherwise retain any User Data except in accordance with clause 14.4 (and you release us in respect of any loss or damage which may arise out of us not retaining any User Data beyond that point);
(b) unless agreed in writing, any Subscription Fees that would otherwise have been payable after termination for the remainder of the relevant Subscription Period or Renewal Period (as the case may be) will remain payable and, to the maximum extent permitted by law, no Subscription Fees already paid will be refundable; and
(c) each party must comply with all obligations that are by their nature intended to survive the end of this agreement.
(a) Upon termination or expiry of these Terms, we will archive data and material associated with your or your User's Account, including User Data for a period of 5 years, in accordance with applicable regulations (Archived Data).
(b) Archived Data can only be accessed with an active Subscription. You acknowledge and agree that it is your responsibility to back up any User Data or other information stored on the Platform prior to the expiry of these Terms.
(c) We will not be responsible to you, or any User, for, and we expressly disclaim any liability for, any cost, loss, damages or expenses arising out the cancellation, termination or expiry of these Terms and any loss of data.
(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
(a) We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event.
(b) If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement.
(c) Subject to compliance with clause 16(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(d) For the purposes of this agreement, a 'Force Majeure Event' means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of us;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19 or other epidemic or pandemic, or any threat of COVID-19 or other epidemic or pandemic beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.
(a) A notice or other communication to a party under these Terms must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in the Order, or if no email address is specified in the Order, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party's Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
(ii) when replied to by the other party,
whichever is earlier.
This agreement is governed by the law applying in South Australia, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of South Australia, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or "dollar" is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) 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;
(e) (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word "includes" and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
| Term | Definition |
|---|---|
| Automatic Renewal | has the meaning given in clause 3. |
| Bundle | means a package offer that includes multiple Optional Extras or combines Optional Extras with Subscription Tier upgrades at a combined price. |
| Confidential Information | means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge. |
| Documentation | means all manuals, help files and other documents supplied by us to you relating to the Software, whether in electronic or hardcopy form. |
| Hosting Services | has the meaning given in clause 5. |
| Intellectual Property Rights | means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement. |
| Material | means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever. |
| Number of Solution Users | means the number of Users that you may make the Solution available to, in accordance with your Subscription Tier. |
| Optional Extra | means any additional feature, service, capacity, or functionality offered by us that is not included in your base Subscription Tier and is available for purchase as an add-on to your Subscription. |
| Personnel | means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents. |
| Software | has the meaning given in the first paragraph of these Terms. |
| Software Content | has the meaning set out in clause 8.1(a). |
| Solution | has the meaning set out in clause 4.1. |
| Subscription | has meaning given in the first paragraph of these Terms. |
| Subscription Fees | has the meaning set out in clause 7 of these Terms. |
| Subscription Period | means the period of your Subscription to the Solution as agreed on the Websites. |
| Subscription Tier | has the meaning given in the first paragraph of these Terms. |
| Support Services | has the meaning given in clause 4.5. |
| User | means you and any third party end user of the Software who you make the Software available to. |
| User Data | means any files, data, document, information or any other Materials, which is uploaded to the Software by you or any other User or which you, your Personnel or Users otherwise provide to us under or in connection with these Terms, including any Intellectual Property Rights attaching to those materials. |
| Websites | means the websites at the URLs set out in the first paragraph of these Terms, and any other website operated by us in connection with the Solution. |