Terms and Conditions of Use
We are excited that you have chosen to work with us. These are our Terms and Conditions of Use. They will assist you in understanding our product, our obligations to you, and your obligations as the customer. Please make sure you understand them so our lawyers will breathe a little easier.
By using Avaza Services, you agree you have read, understood and are bound by these Terms and Conditions. You acknowledge that You have the capacity to register for our Services and the authority to act on behalf of any entity for whom You are using the Service, and that Your use of Avaza Services is only for lawful purposes.
We hope to continually improve the service, so these Terms and Conditions may evolve over time. We reserve the right to modify our Terms and Conditions at any time, and these amended terms will be effective from when we make such modifications on our website. In using our Service, it is your obligation to make sure you understand and agree with our most current Terms and Conditions, as published on our site.
“Agreement” means these Terms and Conditions of Use.
“Add–Ons Fee” means the monthly fee (excluding all taxes and duties) payable by You for add-ons (such as additional users) as set out per the fee schedule on our Website (which Avaza may change from time to time on notice to You).
“Account Subscription Fee” means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the Website (which Avaza may change from time to time on notice to You).
“Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
“Data” means any data You input into the Website.
“Intellectual Property Right” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Service” means the online project management, time sheet, invoicing and accounting management services, and any other services made available via the Website or related Avaza sites..
“Website” means the Internet site at the domain www.avaza.com and all subdomains of avaza.com.
“Avaza” means Avaza Software Pty Limited, an Australian company. ACN: 169 570 594
“Invitee” means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
“Subscriber” means the person or entity who registers to use the Service.
“You” means the Subscriber, and any Invitee. “Your” has a corresponding meaning.
“Anniversary Date” The day of the month on which the Subscriber first switches to a paid plan, and therefore becomes subject to an Account Subscription Fee. This day of the month corresponds with the beginning of each Billing Period.
“Billing Period” The monthly period beginning on each Anniversary date, and ending the day prior to the next Anniversary Date.. For example, if an Anniversary Date falls on the 15th May, the Billing Period would begin on the 15th of each month and end on the 14th of the following month.
USE OF SOFTWARE
Subject to this Agreement, Avaza grants You a non-exclusive, non-transferable right to access and use the Service via the Website, which right will correspond with your subscription plan type. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invitees, or any other applicable laws:
- the Subscriber is responsible for all Invitees’ use of the Service including determining the level of access each Invitee has to the Service;
- the Subscriber can revoke or change a Invitee’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invitee or shall have that different level of access;
- in the case of disputes between Subscriber and Invitee, the Subscriber will decide what access or level of access to the relevant Data or Service that a Invitee shall have, if any.
Each month on or around the Anniversary Date, You will be charged the Account Subscription Fee and Add-Ons Fee (together the “Fees”). You can upgrade your Subscription Plan & Subscription Add-Ons whenever you choose. After making any change to your Subscription or Add-Ons, you must wait 1 day before you can downgrade your Subscription plan or Subscription Add-Ons.
Where there is a difference in the level of Fees due as a result of a change in Subscription plan or adds-ons, the difference will immediately be reflected in your customer account. This means that you will be liable for the higher level of Fees or a credit may be processed to your account – if the your Account Subscription Fee or Add-Ons Fee is now lower. Credits will be used against future Fees. We will apply the new level of fees from when you make the change, over the remaining Billing Period. This means that if you make a change to your Subscription or add-ons on the 20th of a month, and your Anniversary date is the 15th of each month, then from the 20th of that month till the 14th of the following month, we will charge you the new Account Subscription Fee and new Add-Ons Fee. Avaza will continue charging You the monthly Fees until this Agreement is terminated in accordance with clause 8. You are responsible for payment of all taxes and government charges in addition to the Fees.
Payment Method Failure & Overdue Payments
In the event that we are unable to process a charge on your card, you will have an opportunity to update your credit card details. We will try 3 times within a 14 day period to recharge the card. If, after 3 attempts in the 14 day period, we are still unable to charge your card, we reserve the right to deactivate your account. For 30 days following deactivation, you can reactivate your Subscription by updating your credit card details and paying all outstanding Fees. We reserve the right to delete accounts that have been overdue for longer than 45 days.
- You will keep secure and confidential all usernames and passwords required to access the Service. You will immediately notify Avaza of any unauthorised use of Your passwords or any other breach of security and Avaza will reset Your password. If this occurs, You agree to take all other actions that Avaza reasonably deems necessary to maintain or enhance the security of Avaza’s computing systems and networks and Your access to the Services.
- When accessing and using the Services, You will:
- not undermine the security or integrity of Avaza’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
- not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
- not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
- not transmit, or input into the Website, any: files or Data that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
- not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
Avaza may limit Your monthly transaction volumes and the number of calls You are permitted to make against Avaza’s application programming interface. Any such limitations will be advised.
You use any communication tools available through the Website (such as any forum, chat room or message centre), only for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).When You make any communication on the Website, You represent that You are permitted to make such communication. Avaza is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. Avaza reserves the right to remove any communication at any time in its sole discretion.
You indemnify Avaza against: all claims, costs, damage and loss arising from Your breach of this Agreement or any obligation You may have to Avaza, including (but not limited to) any costs relating to the recovery of any Account Subscription Fees or Add-Ons Fee that are due but have not been paid by You.
CONFIDENTIALITY AND PRIVACY
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.
- Each party’s obligations under this clause will survive termination of this Agreement.
- The provisions of clauses 4.1.a and 4.1.b shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Avaza (or its licensors).
Ownership of Data:
Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Avaza’s Account Subscription Fee and Add-Ons Fee when due. You grant Avaza a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
Backup of Data:
You must maintain copies of all Data inputted into the Service. Avaza adheres to best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Avaza expressly excludes liability for any loss of Data no matter how caused.
Third-party applications and your Data.
If You enable third-party applications for use in conjunction with the Services, You acknowledge that Avaza may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. Avaza shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
WARRANTIES AND ACKNOWLEDGEMENTS
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to this Agreement on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of this Agreement, without limiting Your own personal obligations under this Agreement.
You acknowledge that:
- You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).
- Avaza has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
- You are responsible for ensuring that You have the right to do so;
- You are responsible for authorising any person who is given access to information or Data, and you agree that Avaza has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
- You will indemnify Avaza against any claims or loss relating to:
- Avaza’s refusal to provide any person access to Your information or Data in accordance with these Terms,
- Avaza’s making available information or Data to any person with Your authorisation.
- The provision of, access to, and use of, the Services is on an “as is” basis and at Your own risk.
- Avaza does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Avaza is not in any way responsible for any such interference or prevention of Your access or use of the Services.
- Avaza does not provide any accounting or financial advice in allowing you the use of the Services.
- It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
- You remain solely responsible for complying with all applicable accounting, tax and other laws. It is Your responsibility to check that storage of and access to your Data via the Website will comply with laws applicable to you (including any laws requiring you to retain records).
Avaza gives no warranty about the Services. Without limiting the foregoing, Avaza does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.
LIMITATION OF LIABILITY
- To the maximum extent permitted by law, Avaza excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
- If You suffer loss or damage as a result of Avaza’s negligence or failure to comply with these Terms, any claim by You against Avaza arising from Avaza’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Account Subscription Fees and Add-Ons Fee paid by You in the previous 12 months.
- If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
Avaza reserves the right to delete accounts and all associated data stored by Avaza for accounts which are do not carry an Account Subscription Fee where the most recent login date by You or Your Invitees is more than 6 months passed.
You can cancel Your Subscription at any time. You can request your account be cancelled by contacting Avaza support via email at support@Avaza.com and confirming account details with our team.You will not be charged any Account Subscription Fees or Add-Ons Fees for any future Billing Period once we have confirmed your account cancellation in writing.Avaza will not provide any refund for any prepaid Fees on any Subscription.
This Agreement will continue for the period covered by the Account Subscription Fee paid or payable under clause 3.1. On or around each Anniversary Date, at the commencement of each new Billing Period, this Agreement will automatically continue for another period of the same duration as the previous Billing Period, provided You continue to pay the prescribed Account Subscription Fee and Add-Ons Fee when due.
- breach any of these terms in this Agreement (including, without limitation, by non-payment of any Account Subscription Fees or Add-Ons Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
- breach any of the terms in this Agreement and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.4 or any payment of Account Subscription Fees of Add-Ons Fees that are more than 30 days overdue); or
- You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
Avaza may take any or all of the following actions, at its sole discretion:
- Terminate this Agreement and Your use of the Services and the Website;
- Suspend for any definite or indefinite period of time, Your use of the Services and the Website;
- Suspend or terminate access to all or any Data.
- Take either of the actions in sub-clauses (d), (e) and (f) of this clause 8(4) in respect of any or all other persons whom You have authorised to have access to Your information or Data.
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- immediately cease to use the Services and the Website.
Expiry or termination:
Clauses 3.1, 3.7, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms.
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Avaza. If You still need technical help, please check the support provided online by Avaza on the Website or failing that email us at support@Avaza.com.
Avaza intends that the Services should be available 24 hours a day, seven days a week, however it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place.If for any reason Avaza has to interrupt the Services for longer periods than Avaza would normally expect, Avaza will use reasonable endeavours to publish in advance details of such activity on the Website.
If either party waives any breach of this Agreement, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
You may not assign or transfer any rights to any other person without Avaza’s prior written consent.
Governing law and jurisdiction:
This Agreement is governed by the laws of the State of New South Wales in Australia and You hereby submit to the exclusive jurisdiction of the courts of New South Wales for all disputes arising out of or in connection with this Agreement.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Avaza must be sent to support@Avaza.com or to any other email address notified by email to You by Avaza. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
Rights of Third Parties:
A person who is not a party to these Terms and Conditions of Use has no right to benefit under or to enforce any term within this Agreement.