Zivora Authorised User Terms and Conditions

Effective date: 16 July 2019
  1. General
    1. These Authorised User Terms and Conditions govern your access to, and use of our products, services, website and our data visualisation and insights platform, and any information or content appearing therein (collectively Zivora Platform ).

    2. The Zivora Platform is operated by Zivora Pty Ltd (ACN 613 314 819) (we, our or us).

    3. By using, browsing or accessing the Zivora Platform, you acknowledge that you have read, understood and accept these Authorised User Terms and Conditions, together with our Privacy Policy (www.zivora.co/legal/privacy-policy) (collectively, agreement), and you agree to abide by them. If you do not accept this agreement, you must not access and use the Zivora Platform and will not be able to access or otherwise use the Content provided by the Zivora Platform to users.

    4. In this agreement, you and your includes anyone acting on your behalf or with your express or implied authority.

  2. Registration and Access
    1. In order to access and use the Zivora Platform, we will create a unique account for you (Account). The Account will be operated by a username and password (Password), which can be changed at any time by you using the Access Portal.

    2. When creating an Account, you must provide truthful, accurate and up-to-date information about yourself. You should choose a strong and secure Password. You must keep your Password secure and confidential.

    3. You agree not to share your Account credentials or give others access to your account. You will immediately notify us in writing of any unauthorised use of your Account or your Password. If and when we detect that an account is shared by multiple users, we may treat this as a security breach and suspend or terminate your Account.

    4. We have the right to disable any Password, if in our reasonable opinion:

      1. you are in breach of this agreement; or
      2. the Customer is in breach of the SaaS Subscription Agreement.

    5. You are responsible for all actions or activities that happens by, through or under your Account and we are not responsible or liable for any loss or damage due to misused, stolen or hacked Account or Password.

    6. We grant you a non-exclusive, revocable and limited licence to access the Zivora Platform. We will use reasonable endeavours to ensure that the Zivora Platform is available at all times; however, we will not be liable to you or anyone else if, for any reason, the Zivora Platform is unavailable at any time or for any period. From time to time, we may suspend or restrict access to all or some parts of the Zivora Platform. You are responsible for making all arrangements necessary for you to access and use the Zivora Platform. You are also responsible for ensuring that all persons who access the Zivora Platform (such as through your internet connection, mobile phone, computer or any other device) are aware of this agreement, and that they comply with them.

  3. Use of the Zivora Platform
    1. When accessing and using the Zivora Platform, you must at all times comply with all:

      1. Relevant Laws, including Privacy Laws; and
      2. of our directions, policies and guidelines advised in writing to you from to time.

    2. You must only use the Zivora Platform in the form provided and you must not copy, edit, crop, amend, duplicate, supplement, create derivative works from, sell, translate, republish, lease, sub-lease, assign, transfer, or otherwise distribute or commercially exploit or otherwise make available to a third party, all or part of the Zivora Platform (or any of the Zivora IP contained therein).

    3. You must not reverse engineer, disassemble, decompile or otherwise reduce to human-perceivable form all or any part of the Zivora Platform in any way or otherwise learn the source code or algorithms underlying the Zivora Platform (or attempt to do any of the foregoing).

    4. You retain your rights to any information or content you submit, post or display on or through the Platform ( Your Content ). By submitting, posting or displaying such Content, you grant us a worldwide, non-exclusive, royalty-free licence (with the right to sublicense) to use, process, copy, reproduce, adapt, modify, publish, transmit, display and distribute Your Content (in aggregated anonymized form) in any and all media or through any distribution channels (now known or later developed), subject to applicable provisions in our Privacy Policy.

    5. You are responsible for your use of Your Content and any consequences thereof, including any consequences of the use of Your Content by other users or third parties. We are not responsible or liable for any use of Your Content, nor the use of any content or information submitted or posted by other users of the Zivora Platform.

    6. You warrant that Your Content is not and will not infringe rights of any third parties and that you are all the necessary rights, power and authority to satisfy your obligations with regard to Your Content under this agreement.

  4. Intellectual Property
    1. You acknowledge that we, or our licensors, are the owner of the Zivora Platform (or any Intellectual Property contained therein) or any information, Our Content or technology that may be provided to, or accessed by, you in connection with your use of the Zivora Platform, all of which is, and will remain, owned by us or our licensors (Zivora IP).

    2. Accessing and using the Zivora Platform does not give you (or anyone else) ownership of, or any right, title or interest in the Zivora IP.

    3. You must only use the Zivora Platform for internal business purposes. You must not access or use the Zivora Platform, or any part of the Zivora IP contained therein, for commercial or upselling purposes or any other purpose. You must not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Zivora Platform available to any third party without our written consent.

  5. Warranties
    1. To the maximum extent permitted by Relevant Laws, we exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the provision of the Zivora Platform (or any other goods or services provided in connection with the Zivora Platform).

    2. Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any similar legislation anywhere in the world or under the law of any jurisdiction, where to do so is unlawful.

    3. You acknowledge and agree that, to the extent permitted by Relevant Laws, we make no representations, warranties or guarantees in relation to the availability, continuity, reliability, completeness, accuracy, currency or security of the Zivora Platform (or any goods or services provided in connection with the Zivora Platform).

    4. We will not be liable to you or anyone else if the Zivora Platform is unavailable for any reason, including directly or indirectly as a result of:

      1. telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
      2. acts or omissions of third parties (including our third party service providers);
      3. maintenance (scheduled or unscheduled) carried out by us or any third party service provider, including in respect of any of the systems or network used in connection with the provision of the Zivora Platform; or
      4. a Force Majeure Event.

    5. To the maximum extent permitted by Relevant Laws, we do not warrant that the Zivora Platform will be uninterrupted, error free or virus free or free from external intruders. We further do not warrant that your use of the Zivora Platform is suitable for any particular purpose or use under any specific conditions, and the Zivora Platform is provided on an ‘as is’ and ‘where is’ basis.

  6. Limitation of Liability
    1. To the maximum extent permitted by Relevant Laws, we will not be liable to you or any third party for:

      1. indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities;
      2. loss of profits, business interruption, loss of revenue, economic loss, loss of goodwill, loss, corruption or alteration of data, downtime costs, loss of use, failure to realise anticipated savings, loss of opportunity or expectation loss or loss of production; or
      3. loss of, or damage to, any property or any personal injury or death to You or any third person, arising out of, relating or connected to, the provision or use of the Zivora Platform and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

    2. We will not be liable to you or anyone else, in any circumstances, where the Zivora Platform has been abused, misused or otherwise not been used strictly in accordance with:

      1. all Relevant Laws;
      2. our directions, policies and guidelines
      3. any operating instructions, manuals and warnings provided, including those embedded, displayed or hyperlinked within, or via, Zivora Platform.

    3. All risk in using the Zivora Platform passes to you upon accepting this agreement or otherwise using the Zivora Platform (whichever is earlier).

    4. To maximum extent permitted by Relevant Laws, under no circumstances will our aggregate liability to you or anyone else, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the fees paid by you to access and use the Zivora Platform in the 3 months immediately preceding the date on which the claim giving rise to such liability arose.

    5. You agree to defend, indemnify and hold us, our Affiliates, officers, directors, employees, contractors and agents (Indemnified) harmless from and against any and all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of:

      1. the use by you or any third party of the Zivora Platform; or
      2. any breach by You of this agreement.

  7. Third Party Products
    1. You acknowledge that in order to enable you to access and use the Zivora platform, you are required to access and use at least one of Zivora’s cloud based accounting, CRM or other partners software platforms ( Third Party Products ) and that your use, of and reliance on, such Third Party Products is solely at your own risk. We have no control over, and make no representations or commitments in relation to, the accuracy, currency, suitability, functionality, integrity, security or otherwise of such Third Party Products. We recommend that you refer to the third party’s terms and conditions prior to using the relevant Third Party Products.

    2. We shall have no liability or obligation whatsoever to you or anyone else in relation to any Third Party Products accessed or used on, or in conjunction with, the Zivora Platform, or any contract entered into by you, with the owner, licensor or operator of such Third Party Products.

  8. Privacy
    1. In registering for an Account and using the Zivora Platform (or any goods or services provided in connection with the Zivora Platform), you will be required to provide Personal Information to us, including your name e-mail address, country of residence and business details (for example, business name and your business role). All Personal Information provided, or otherwise made available, to us, is subject to our Privacy Policy (www.zivora.co/legal/privacy-policy), which is incorporated into this agreement.

    2. You acknowledge that we are reliant on you alone for direction as to the extent we are entitled to use, disclose, store, transfer, process, alter or delete Personal Information. Consequently, you warrant that, in relation to any Personal Information comprising Your Content or otherwise disclosed to, or brought to, our attention pursuant to this agreement:

      1. it has been collected in accordance with the Privacy Laws;
      2. you have the authority to provide us, or otherwise make available to us, such information; and
      3. you have obtained the informed consent of the individuals the subject of such Personal Information in order for us to use, disclose, store, transfer, process, alter or delete it.

  9. Termination
    1. You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate, suspend or block your access to:

      1. any Account or Password (whether chosen by you or allocated by us);
      2. the Zivora Platform or any part thereof (or our social media pages or any websites linked to the profiles of Third Party Providers); and/or
      3. any goods and services offered on, or via, the Zivora Platform (or on, or via, our social media pages or any websites linked to the profiles of Third Party Providers).

    2. Cause for such suspension or termination shall include, but not be limited to:

      1. breaches or violations of this agreement, our policies and guidelines (including our Privacy Policy) and/or any other agreements entered into between the parties;
      2. termination of the SaaS Subscription Agreement;
      3. requests by law enforcement or other government agencies;
      4. discontinuance of the Zivora Platform or any websites linked to the Zivora Platform (or any part thereof); or
      5. unexpected technical or security issues or problems.

    3. You agree that all such suspensions or terminations shall be made at our sole discretion and that we shall not be liable to you or any third party for any such suspension or termination.

  10. Viruses and Hacking
    1. You must not misuse the Zivora Platform by introducing viruses, trojans worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Zivora Platform (or any Zivora IP contained therein), the server on which the Zivora Platform is stored or any server, computer or database connected to the Zivora Platform.

    2. We will not be liable to you or anyone else for any loss or damage caused by a virus, system failures or other technologically harmful material due to, or arising out of, your access to, or use of, the Zivora Platform.

  11. Force Majeure

    We shall not be responsible to you (or anyone else) if we are prevented from or delayed in performing its obligations under this agreement, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, natural disaster, sabotage, war, riot, civil commotion, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, default of hosting or data centre providers or other suppliers or sub-contractors, or shortage of suppliers, equipment or materials (Force Majeure Event).

  12. Updates and Variations
    1. Without notice to you, we may from time to time apply or install updates to, or new versions of, the Zivora Platform. You acknowledge that Our Content on the Zivora Platform is subject to change at any time and may be out of date at any given time. We are under no obligation to update Our Content or the Zivora Platform, nor notify you of any changes to Our Content or Zivora Platform unless required by Relevant Laws to do so.

    2. Some of the provisions contained in this agreement may also be superseded by provisions or notices published elsewhere on the Zivora Platform. Any changes are effective immediately upon posting to the Zivora Platform. Your continued use of the Zivora Platform thereafter constitutes Your acceptance of all such changes to the agreement.

    3. Please read this agreement before using the Zivora Platform as the agreement may have changed since the last time you accessed and used the Zivora Platform. If you do not agree to any change, then you must immediately stop using the Zivora Platform.

  13. Severability

    If any provision in this agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the reminder of this agreement which will continue in full force and effect.

  14. Relationship

    No agency, principal-agent, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created between you and us by this agreement.

  15. Entire Agreement

    This agreement, any other documents referred to in it, represent the entire agreement between us and you in relation to the subject matter and supersedes any previous arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).

  16. Jurisdiction and Applicable Law
    1. The laws of the State of New South Wales, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the Courts of New South Wales.

    2. The Zivora Platform is available only to people who can form legally binding contracts under Relevant Laws.

  17. DEFINITIONS

    In this agreement, unless the context requires another meaning:

    1. Account has the meaning in clause 2.1;
    2. Access Portal means the self-service portal provided to you to access and use the Zivora Platform.
    3. Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes;
    4. Customer means the person or entity listed as the ‘Customer’ in the SaaS Subscription Agreement;
    5. Force Majeure Event has the meaning in clause 11;
    6. Intellectual Property means all confidential information, designs, copyright, derivative works, trade marks, trade mark applications, patents, patent applications, semi-conductor or circuit layout rights, operations, software or systems, inventions, discoveries, trade names, service marks, and domain names, trade secrets, know-how, technical information, specification, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world;
    7. Password has the meaning in clause 2.1;
    8. Personal Information means data by which a person may be personally identified, including a person's name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under any applicable Privacy Laws;
    9. Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, and any other legislation, codes and policies relating to the handling of Personal Information applicable to the jurisdiction in which you carry on your business;
    10. Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy laws, anywhere in the world;
    11. Our Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the Zivora Platform;
    12. SaaS Subscription Agreement means the software-as-a-service subscription agreement between us and the Customer;
    13. Third Party Providers means a third party service provider, who is not us or our Affiliate;
    14. Third Party Products has the meaning in clause 7.1;
    15. Your Content has the meaning in clause 3.4;
    16. Zivora IP has the meaning in clause 4.1; and
    17. Zivora Platform has the meaning in clause 1.1.