In this Agreement, unless the context otherwise requires, the following terms have the corresponding meanings:
- means the Subscription account for Your use, and associated account information, log-in information, user ID, passwords and identity;
- ADR Rules
- means the mediation rules of the Institute of Arbitrators and Mediators Australia;
- means this Subscription Agreement including any document expressed to be supplementary to it;
- means the application for a Subscription made by You by completing the form on Swim Jewelry Software by TJS' Website (onswim.com), and submitting it to TJS for approval, and 'Apply', 'Applying' and 'Applied' will have a corresponding meaning;
- means attacks on computer systems or programs including both high level computer programs such as viruses, worms, trojans or other malicious computer programs or lower level denial of service attacks;
- Client or Customer
- means any person or entity who access a website established by TJS for a Subscriber and whose data or personal information is entered into or retained on a website hosted by TJS at the request of a Subscriber, whether or not the Subscriber has a contract or agreement to enter the data with the client;
- Confidential Information
- means all information supplied by TJS to You concerning the Subscription, the IPR, the business of TJS; information relating to sales, marketing or technical operations of TJS, trade secrets, know-how, concepts, techniques, formulae, advice and other proprietary knowledge, whether in writing or otherwise, but excluding information in the public domain except where that information has become available by virtue of a breach of clause of this Agreement.
- means the content and other information which You (or an authorised agent who You appoint) post, upload to or maintain on Your Website – which is Your responsibility under this Agreement.
means that data, information, figures and details relating to the Subscriber's business activities or the activities of Clients or Customers in a particular Industry relating to the Subscriber's business activities including, but not limited to, the following:
- geographical information, such as business premises location, market segment dispersion;
- Client or Customer information, such as type of business, industry or sector, size, location, services and products which they acquire; and
- marketing information, such as marketing methods, referrals, costs.
- means that industry or business sector which most appropriately describes Your business activities, which You nominate in Your Application from a list of standardised industry groups provided by TJS.
- means all intellectual property rights including those rights in patents, patent applications, trade marks (whether registered or not), copyright, designs (whether registered or not), circuit layout rights, business reputation, Confidential Information, know-how and trade secrets subsisting in the Service, the Website, the Material, the Confidential Information and the Improvements, anywhere in the world;
- means those upgrades, updates, amendments or modifications to, the Service, the Website, or the IPR, whether developed by TJS or You;
- means that material and information provided to You pursuant to this Agreement or to which You otherwise gain access with respect to the Service, in any form;
- means TJS (USA), Inc.;
- means those occasions on which TJS or other third parties are required to perform remedial work in the form of maintenance, upgrades or repairs to the Service or the Website, such that all or part of the Service or the Website is not available for Your use or access and will include any reduction in bandwidth or speed of delivery of Service;
- Payment Confirmation
- means confirmation, received by TJS, that payment of the Subscription Fee to TJS, has been received;
- Payment Method
- means that method by which TJS will accept payment of the Subscription Fee from You;
- Payment Terms
- means the terms of payment of the Subscription Fee by a Subscriber to TJS, which payments are due and to be made as specified by TJS;
- Personal Information
- means information or an opinion about an individual or commercial entity represented by the individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;
- means the Swim Jewelry Software, developed and owned by TJS, for which You are granted a Subscription and any related services including any Improvements which are made from time to time;
- means a subscription to receive the Service provided by TJS to You, in accordance with this Agreement, using the Account, throughout the Term;
- means the person or entity who receives the Subscription, otherwise referred to as You;
- Subscription Fee
- means that fee to be paid by a Subscriber to TJS, throughout the Term, and which fee is set out on TJS' Website as varied from time to time in accordance with the terms of this Agreement. There will not be any lock in or exit fee payable as part of the Subscription. There will not be any refund payable should you cease to use the Subscription before the end of the Term;
- means that period of time which is one (1) month from the date TJS accepts Your Application, which will automatically be renewed in each subsequent month until You fail to make payment of the Subscription Fee or earlier termination of this Agreement;
- Unauthorised Use
means acts of misuse of any component of the Service by You, including but not limited to use:-
- other than strictly in accordance with this Agreement;
- which causes degradation to the Service, or interference with use of the Service by others, or circumstances which may place TJS in potential or actual breach of any agreement with third parties;
- which interferes with, disrupts or attempts to gain unauthorised access to, any computer system, network or account for which it does not have authorisation to access;
- which creates a false identity or to otherwise attempts to mislead any person as to the identity, source or origin of any communication; or
- to develop or publish any product in competition with those provided by TJS.
- means that set of internet web pages to be established by TJS, and made available for access under these terms and conditions. TJS will maintain and host the Website template for You. The Content which is to be placed on the Website is Your sole responsibility as is the establishment and maintenance of any third party services such as facebook, twitter and the like;
- means the Subscriber, its officers, employees, clients, contractors, consultants and any other persons, corporations or commercial entities affiliated with the Subscriber for the purpose of using the Service.
Obligations of TJS
During the Term, TJS will:-
- provide You with a non-exclusive, non-transferable Subscription to use the Service for which You have Applied, through use of Your Account.
use Personal Information collected about You for the purposes of:-
- access to and use of the Service by You; and
- providing customer support and other similar activities related to the Service.
- be entitled, without notice or liability to You, to inhibit access to the Service at the request of any provider or Government authority;
- be entitled, from time to time to schedule downtime for maintenance, upgrading, testing or repair of any component of the Service or the Website, without liability, on the provision of reasonable notice to You;
- be entitled, in its sole discretion, to modify, remove, reconfigure, discontinue, replace, substitute, upgrade or enhance any function, component of, or feature of the Service, without any liability to You; and
- be entitled, upon notice in writing to You, to assign this Agreement or any right or obligation under it, to any other party at its own discretion, or to sub-contract the performance of any of its obligations.
Obligations of Subscriber
During the Term and, where relevant after the end of the Term, You will, in relation to the Subscription:-
- be solely responsible for selecting, supplying, configuring and maintaining, at Your own expense, all computers, hardware, software, modems and similar devices which are necessary to access the Service and maintain the content of your Website, including any connection to the internet, and all associated telephone lines and telecommunications services.
- be solely responsible for the engagement of any Client or Customer to your Website (including any rewards program which you maintain through the Website) and the preparation of quitable terms of engagement.
- be solely responsible for the development and maintenance of any merchant or point of sale materials including bar codes, seaming devices and the like to assist in the processing of any rewards program or related services.
with respect to the Service:
- not engage in Unauthorised Use of the Service, and use Your best endeavours to assist TJS to identify and prevent Unauthorised Use by others;
- maintain adequate security measures to safeguard the Service from access or use by unauthorised persons, including maintaining security of Your Account and taking all other reasonable measures to limit access to the Service to authorised users;
- ensure You have sufficient protection in place, at Your own expense, to protect the Service against Attack including firewalls and up to date virus scanning software;
- comply, at Your own expense, with all applicable data protection, privacy, export and spam laws, restrictions and regulations, and refrain from directly or indirectly using the Service in violation of any such restrictions, laws or regulations;
ensure, at Your own expense, that all commercial messages sent comply with all requirements of the relevant Spam legislation including that those messages:
- are sent only with 'express consent' or 'inferred consent';
- always contain the correct legal name of the organisation or individual, and a Business Number (if applicable) and how they can be contacted;
- always contain a functional 'Unsubscribe' facility.
with respect to maintenance, acknowledge that:-
- satisfactory performance of the Service depends upon the suitability of Your computer, hardware, software, modems and similar, including connection to the internet, and all associated telephone lines and telecommunications services, which are Your responsibility; and
- any unsuitability of Your computer, hardware, software, modems and similar, connection to the internet, and associated telephone lines and telecommunications services, which causes unsatisfactory performance of the Service or any component will not exempt You from paying the Subscription Fee, nor entitle You to any discount or reduction in the Subscription Fee;
with respect to the IPR:-
- acknowledge that nothing in this Agreement, gives You any right, title or interest in the IPR other than as specifically set out herein;
- will notify TJS in writing of any infringement or potential infringement of the IPR which comes to your attention;
- acknowledge that any Improvements developed by You or on Your behalf vest in TJS, or as directed by TJS. You appoint TJS to be Your attorney to sign any document or take any action that You legally could take to more completely effect TJS' ownership of the Improvements;
with respect to the Material:-
- acknowledge that nothing in this Agreement, gives You any right, title or interest in the Material other than as specifically set out herein;
- only use the Material for the Services specified;
- not attempt to modify, copy, reproduce, publish, distribute, re-transmit, upload or repost, create derivative works based upon, sell, lease, rent, licence, assign, transfer, dispose or part with possession of the Material without the prior written approval of TJS;
- acknowledge that Outages may occur in relation to the Service, without notice to You and that such Outages will not entitle You to any reduction in or reimbursement of any Subscription Fee, regardless of the cause or length of the Outage;
- adopt appropriate measures to ensure the security, secrecy and confidentiality of the Account, including log-in information and passwords and will not disclose to any other person or entity the log-in information and passwords.
In respect of Your Personal Information:-
- acknowledge that TJS gives no warranty as to the protection of Your Personal Information;
- provide to TJS true and accurate information;
- use the Service in a responsible manner, taking into account the effects its use may have on other users;
not attempt to use or otherwise engage in any conduct in any way related to the Service, or allow anyone else to use or otherwise engage in any conduct in any way related to the Service:-
- for any unlawful, illegal, malicious or improper purpose or to conduct or promote anything that is illegal;
- in any way which interferes with its availability for other subscribers or the proper operation of the Service;
- to disclose or misuse private or confidential information to another;
- to enable a minor to access material inappropriate for a minor;
- to harass, threaten or menace any person or cause damage or injury to any person or property;
- to breach any laws, infringe any third party rights, including IPR, or to expose TJS to any claims;
- to use another's name, user name, password or account without permission;
- to interfere with, disrupt or affect the availability of the Service or any other network or computer system.
- not resell any component of or information provided via the Service without the express written permission of TJS;
In relation to third party content accessed via the Website (which is Your responsibility):-
- where appropriate acknowledge that some of the products and services advertised and information provided on the Website and in links on the Website are the products, services and information of third parties (TPI);
- acknowledge that TJS does not provide or endorse this TPI or the third party, and has not checked the accuracy or completeness, suitability or quality of the TPI;
- make Your own enquiries with the third party before relying on the TPI;
- Not assign this Agreement or any right or obligation under it.
- You are entitled to enter and have relied on Your own judgment and experience in entering into this Agreement;
- that in entering this Agreement, You have not relied on any representation made by TJS other than as expressly stated in this Agreement, or on any descriptions, illustrations or specifications, including those contained on the Website, or in any written advertising material provided to you by TJS;
- all information You have provided to TJS is true in all respects and is not misleading;
- the Agreement is valid and binding on You and enforceable in accordance with its terms;
- that you are the beneficial owner of any names, brands, trademarks or logos which you have provided to TJS in relation to the promotion of the Services and will grant to TJS an irrevocable licence to use the names, brands and trademarks for the Term.
During the Term, You will pay the Subscription Fee to TJS by the Payment Method on the Payment Terms.
Variation to Subscription Fee
TJS reserves the right to adjust the Subscription Fee to accommodate any increase in the costs associated with the Service on the giving of one (1) months notice to You.
The Subscription Fee is not refundable (in whole or in part) under any circumstances.
During the Term, and after the expiry or Termination of this Agreement, You will:-
- be responsible for and liable to TJS for ensuring the Confidential Information is treated as confidential and kept secret and used and dealt with only in accordance with this Agreement and the directions of TJS;
- keep the Confidential Information secure from unauthorised access, damage or destruction;
- not reproduce, copy, distribute or disseminate the Confidential Information, in whole or in part.
You may disclose the provisions of this Agreement to Your professional advisers and where disclosure is required by law, provided that You provide prior notice to TJS so that TJS may take any lawful steps available to it to resist such disclose if its sees fit.
Term of Subscription
Unless otherwise agreed in writing by TJS, Subscription will continue for the Term.
Automatic Termination for Subscribers
This Agreement will automatically terminate after a period of thirty (30) days during which You have not paid the Subscription Fee.
Suspension of Access
TJS may be entitled to suspend access to the Subscription or any part of it, without any liability to You, immediately upon:-
- You breaching this Agreement;
- becoming aware of any Unauthorised Use of the Service.
- TJS will provide prompt notice of any such suspension of access to You, along with reasons for the suspension (Rectification Notice);
- You will remain liable to pay the Subscription Fee during such suspension.
Effect of Suspension for Subscribers
Where TJS has suspended access to Your Subscription, TJS will retain all Data You have submitted for a period of thirty (30) days, whereupon if You:-
- comply with a notice issued pursuant to clause , Your access to Your Subscription will be reinstated ; or
- do not comply with a notice issued pursuant to clause , TJS may Terminate this Agreement and Your Website may be shut down or made inaccessible and/or all Data retained by TJS will be inaccessible.
Termination by TJS
TJS may Terminate this Agreement upon:-
- thirty (30) days after a notice issued pursuant to clause , if the notice is not complied with; and
- immediately upon written notice to You for fundamental breach of this Agreement, upon any representation, warranty or statement made by You, and which is untrue or misleading or should You become insolvent or otherwise unable to pay the Subscription Fee.
Consequence of Termination
Upon Termination of this Agreement by either party for any reason, You will, in addition to and without prejudice to any other rights, remedies or powers which TJS might have at law, in equity or set out in this Agreement:-
- cease to use the Subscription or any component of it; and
- not be entitled to any reimbursement or refund for any losses incurred, other than those set out herein.
TJS warrants that to the best of its knowledge:-
the Subscription granted in this Agreement does not infringe the intellectual property rights of any third party;
it is entitled to grant the Subscription to You;
TJS will provide the Service, on an 'as is' and TJS undertakes no liability and gives no warranty:-
- as to the condition, quality or performance of the Service or any component of it;
- as to the accuracy, reliability, completeness, timeliness or otherwise, of the Service, the content of the Website including text or graphics, or the Material;
- as to the continued availability to TJS of information to enable TJS to keep the Service, content of the Website or the Material up to date;
- in relation to defects, errors or inadequacies of any kind in the Service, or any component thereof, regarding their fitness for purpose, merchantable quality or interruptions in access to, operation of or use of any of them, either implied, expressed or imposed by statutory requirement;
- as to the protection of Your Personal Information;
- that the laws applying in Your jurisdiction permit You to use the Service. You agree that it is Your responsibility to ensure that no law is violated by Your use of the Service or Website;
That the Service will run properly:-
- on the computers, hardware, software, modems and similar which are necessary to access the Service, including any connection to the internet, and all associated telephone lines and telecommunications services, which You have selected or acquired; or
- within all network and operating system environments used by You;
As to the accuracy, reliability or completeness of the information (within the Service) relating to entries which have been made by You on your Website, which You are solely responsible for entering, updating and maintaining, as to content, correctness and compliance with all laws and regulations in force from time to time, including without limitation, ensuring the information is not misleading or defamatory, and You will indemnify TJS against all loss and damage arising therefrom;
As to any service or product of any service provider offered through the Service, or its use by any party;
TJS will have no obligation to monitor the availability or performance of, or any Outage relating to, the Service, or to ensure the availability of Your access to the Service, or the internet.
Limitation of Liability
To the maximum extent permitted by law, TJS, its affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign (a Covered Party) will not be liable for any loss, injury, claim, liability, or damage of any kind resulting under this Agreement, including in any way from:-
- any errors in or omissions from the Service or any of the Material available or not included therein;
- the unavailability or interruption to the supply of the Service or any features thereof or the Data, Results or any of the Material;
- Your use or misuse of the Service or the Material (regardless of whether You received any assistance from a Covered Party in using or misusing the Service);
- Your use of any equipment in connection with the Service;
- the content of the Material or the Website;
- any delay or failure in performance beyond the reasonable control of a Covered Party; or
- any negligence of a Covered Party under this Agreement.
- any claims made by the Subscriber, the Subscriber's officers, employees, clients, customers, contractors, consultants or affiliates.
TJS' liability to You for breach of any condition or warranty implied under any law which cannot be lawfully modified or excluded by this Agreement shall, to the extent permitted by law, be limited at TJS' option to supplying the Service again or paying for its re-supply.
TJS' liability to You for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that You caused or contributed to that loss or damage.
You will at all times, promptly and completely indemnify TJS against all and any claims, damages, liabilities, costs and expenses (plus any GST payable, and all legal costs and expenses) arising out of:-
- any breach or non-compliance by You of any provision of this Agreement;
- any act of negligence committed by You in performing or omitting to perform, Your obligations under this Agreement;
- any loss suffered by any third party in connection with any act or omission by You;
- the use by or on behalf of You of the Subscription or any component of the Subscription;
- any interruptions in access to the Service caused by You.
Each indemnity contained in this Agreement:-
- is a continuing obligation despite the occurrence of any act and remains fully effective until all money owing, contingently or otherwise, under an indemnity has been paid in full;
- is an additional, separate and independent obligation and no one indemnity limits the generality of another indemnity; and
- survives the termination of this Agreement.
Nothing in this clause prevents either party from exercising its rights under this Agreement, which may include commencement of court proceedings.
The parties will endeavour to resolve by negotiation any dispute that arises between them under this Agreement, and to conduct the dispute resolution process set out in this clause as efficiently and cost effectively as possible.
Each party will bear its own costs in relation to its participation in any dispute resolution process.
Where a party claims a dispute (including a breach or an alleged breach) has arisen under this Agreement, then:-
- that party will give written notice to the other party of the nature and details of the dispute and nominating a representative to negotiate and settle the dispute (Notice);
- the other party will, within ten (10) days of receiving the Notice, reply in writing nominating its representative to negotiate and settle the dispute (Reply); and
- the representatives of each party will use their best endeavours to negotiate and settle the dispute, which settlement will be recorded in writing and signed by both representatives. The parties acknowledge that it is in their respective interests to resolve disputes at this level.
Should the representatives fail to reach a resolution in accordance with clause within ten (10) days of the issue of the Reply, the parties may proceed to mediation. The mediator will be agreed between the parties or, failing agreement, will be an accredited mediator appointed by the President of the Queensland Law Society. The parties agree to abide by the ADR Rules, in seeking to resolve the dispute in accordance with this clause.
Notwithstanding the existence of a dispute, each party will continue to perform its obligations under this Agreement, wherever practicable.
Notices or other communications given under this Agreement including, but not limited to, requests, demands, consents or approvals, will be in writing and delivered either by mail, email or by facsimile, and addressed to:-
- TJS at email@example.com;
- You at the address set out in the Application.
Notice will be deemed given, in the case of:-
- prepaid registered mail, three (3) business days from and including the date of posting;
- email receipt by the sender of an acknowledgment or transmission report generated by the machine from which the email was sent;
- facsimile, on receipt by the sender of an acknowledgment or transmission report generated by the machine from which the facsimile was sent;
- if given within normal business hours, or otherwise notice will be deemed given at the commencement of the first business day thereafter.
Changes in Internet-related Laws
The parties recognise that issues of legal liability and responsibility for internet-related transactions are changing rapidly. The parties intend to retain their relative responsibilities and rights regardless of changes in underlying statutory or case law. The parties agree to negotiate in good faith any amendments to the Agreement necessary to maintain the relationship between them.
Forum and Jurisdiction
This Agreement is deemed to have been made in Queensland, Australia and this Agreement will be governed by the law of the State of Queensland and the parties submit to the jurisdiction of the Courts of the State of Queensland in relation to any dispute concerning this Agreement.
Any failure or delay by a party in the exercise of any of their rights under this Agreement will not be deemed to be a waiver of such rights, except where the party expressly by notice in writing waives compliance with such provision.
Time will in all respects be of the essence, such that all time periods nominated in this Agreement will apply strictly.
Taxes and Stamp Duty
The parties agree that:-
You will pay when due, and indemnify TJS against all liability for, all taxes, any tax on goods, services or goods and services, including any value added tax, broad based consumption tax or other similar tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST), charges, licence fees, stamp duty or assessments (including any penalties for late payment) imposed by any governmental authority and payable by TJS or You in relation to any goods or services provided under this Agreement, excluding income tax payable by TJS on its net income.
TJS will pay when due, and indemnify You against all liability for, all taxes, GST or assessments (including any penalties for late payment) imposed by any governmental authority and payable by TJS or You in relation to any payments to be made by TJS to You under this Agreement.
Unless expressly stated otherwise, any consideration for any supply made pursuant to this Agreement does not include GST. You agree to pay GST, (if required), on all amounts owed to TJS, in addition to any consideration set out in this Agreement.
If any term of this Agreement is to any extent, held by any Court of competent jurisdiction to be invalid or unenforceable, that provision will be read down or severed in that jurisdiction only to the extent of the invalidity or unenforceability, and the remaining terms and provisions of this Agreement will not be affected and will remain in full force and effect.
Each party will do all such acts, matters and things and execute such further deeds and other documents as may be necessary or desirable for the purpose of giving effect to this Agreement.