Terms and Conditions
The person and all companies who use this software (The Purchaser) are agreeing to the following. The Purchaser agreed to purchase this Software from Planet Factory Pty Ltd ACN 627314158 on the basis of the details set out below. Terms used in this document below have the meaning outlined, or that of the reasonable Australian dictionary.
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Privacy Policy
All information collected will be used for initial phone contact only and will be deleted if requested. All information is stored in accordance with Australian Privacy Act.
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Minimum Term
The Purchaser agrees to purchase a subscription for the Software for a minimum term of 1 month.
Upon the conclusion of the above minimum term, The Purchaser’s subscription for Software will continue until terminated in accordance with this agreement.
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System details and modules
Planet Factory Pty Ltd will provide The Purchaser with access to the Invoice Automation Software which does not include OCR/ICR component of Software (as it is an external component)
Maximum number of authorised users
Unlimited users employed at the company of The Purchaser may have the right to access and use the System at any one time.
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Fees
The Purchaser must pay fee indicated every month (ex GST) or the software will stop immediately.
Payment Terms of Planet Factory Pty Ltd’s Fees
Planet Factory Pty Ltd will charge The Purchaser’s provided credit card for the Fees on a calendar monthly basis.The Fees will be paid immediately before the beginning of each month.
Initial Implementation and Setup requirements
Planet Factory Pty Ltd will undertake the following to setup and implement the System for use by The Purchaser:
The software will be made available to access online within 48 hours of confirmed payment.
The above will not include any Customisation of the System which is dealt with below.
The Purchaser will have its own license to the System hosted on Microsoft Azure.
Hosting Software – bandwidth and storage space restrictions
The Purchaser may only upload and download a total of 25 gigabytes of data per month to the System.Any data uploaded or downloaded which is in excess of this amount will be subject to an additional Fee as indicated by Microsoft regular charges.
The Purchaser may only store 500 gigabytes of Client Data in the System.Any data stored above this amount will be subject to an additional Fee as set out above.
Solution to be used by The Purchaser.
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Client Data backup requirements
Planet Factory Pty Ltd will instruct its nominated hosting Software provider to backup The Purchaser Data in accordance with its own backup cycle.
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Configuration and Customisation
Configuration and customisations to product are to be covered in direct support
agreement with Planet Factory Pty Ltd and must be handled in alternate agreements
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Other Conditions
Notice Period for termination under this agreement of the Agreement 30 days.
By clicking “agree” to the terms and conditions, on the website, The Purchaser agrees to enter into the Agreement which is below, and to be bound by both the Agreement.
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AGREEMENT
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The use of the System and the Software (as defined below) which are provided by Planet Factory Pty Ltd ACN 62731415 PO BOX 532, Miami Queensland Australia (“Planet Factory Pty Ltd”) are governed by the terms and conditions set out below (“this Agreement”).
Without limiting the way in which you may be bound by this Agreement, by purchasing this software, you and all companies you represent or are affiliated with (“The Purchaser”), agree to be bound by this Agreement and/or by proceeding to use the software you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement.
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ENGAGEMENT OF PLANET FACTORY PTY LTD
The Software
The Purchaser engages Planet Factory Pty Ltd to provide, and Planet Factory Pty Ltd agrees to provide to The Purchaser, the following Software on the terms and conditions of this Agreement, and in accordance with the details contained in the herein:
the provision of access to the System being an online, hosted solution, whereby Planet Factory Pty Ltd provides a software solution to assist in the extraction of data from printed documents which The Purchaser scans and uploads to the System.
The type of documents from which the System may extract data will be as specified by Planet Factory Pty Ltd from time to time.
The initial setup and implementation of the System are as is. You will receive a login and password, and accept the system as it is and as it changes.
The Purchaser’s use of the System will be in accordance with this agreement.
The provision of Hosting Software is in accordance with this agreement.
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The Order Form
The parties have set out the particulars of the Order Form of the Software through the website buying process on planetfactory.biz/buy now. This is what The Purchaser is purchasing.
Subject to this Agreement, Planet Factory Pty Ltd is only required to deliver the Software as described in the Order Form, and as described in any subsequent Order Form, and/or in any subsequent written agreement between the parties.
The parties may at any time execute a new Order Form to designate new or amended Software which Planet Factory Pty Ltd may choose to provide under this Agreement.A subsequent Order Form, once accepted by Planet Factory in writing, will override an earlier Order Form to the extent of any inconsistency.
Where any part of this Agreement specifies that a matter is subject to a separate agreement between the parties, then in addition to the matters set out in this agreement, that separate agreement may be expressed as an “Order Form” or take any other form agreed between the parties.
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ACCOUNT SETUP
The Purchaser agrees to create an Account with Planet Factory Pty Ltd in order to use the Software.
The Account will be created using Planet Factory Pty Ltd’s online sign up process, or any other method specified by Planet Factory Pty Ltd from time to time.
The Account will permit The Purchaser to connect to Planet Factory Pty Ltd’s Portal to manage their Account and other details involving their relationship with Planet Factory Pty Ltd.
The Purchaser agrees to keep confidential and secure all usernames or passwords used to access the Account.
The Purchaser warrants that all information provided to Planet Factory Pty Ltd in the setup of the Account is complete, true and correct in every detail.
The Purchaser agrees that it will only use the Account and the Portal for the purposes of using the System and the Software and for no other purpose.
Planet Factory agrees to notify The Purchaser of any discovered breaches within the required guidelines / requirements of each country.
Without limiting the ways in which the parties may agree certain matters relating to this Agreement (including entering into agreements in writing), such agreement may be reached by The Purchaser, via a Portal, electing to agree to any proposed terms or offer relating to such agreement which is communicated by Planet Factory Pty Ltd to The Purchaser.
Although The Purchaser may delegate the usage of its Account to persons described in this agreement, only certain employees or representatives of The Purchaser who are agreed with Planet Factory Pty Ltd (or who are named and identified), may deal directly with Planet Factory Pty Ltd in relation to this Agreement, including without limitation, lodging Support Requests for Support Software, requesting Customisations and binding The Purchaser in relation to any matter under this Agreement.
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USAGE RIGHTS AND INTELLECTUAL PROPERTY OWNERSHIP
Usage Rights
Planet Factory Pty Ltd grants The Purchaser a non-exclusive, non-transferrable (save as expressly set out in this Agreement), revokable licence, to use and access the System in accordance with the terms of this Agreement (“Licence”).
The term of the Licence will be the same as the term of this Agreement.The Licence will immediately terminate upon the termination of this Agreement.
The Purchaser may only use and access the System from within the country purchased from.Any person to whom The Purchaser delegates usage of the System and The Purchaser’s Account (as permitted by this Agreement), must be located in the country the system was purchased from.
The Purchaser may delegate the usage of the System and their Account to their employees and third party agents who provide Software to The Purchaser, however The Purchaser remains responsible at all times for the use of their Account by those persons and will indemnify Planet Factory Pty Ltd against all loss, cost, expense or damage caused by the use of the Account by such employees or third party agents, and their failure to comply with the terms of this Agreement.
Planet Factory Pty Ltd may (on the Order Form or otherwise) designate a maximum number of authorised users from time to time who may access and use the System at any time on The Purchaser’s behalf.The Purchaser agrees not to delegate its usage rights to more than the forgoing maximum number of users.
The Purchaser may only access and use the System via a web browser or via other software provided by Planet Factory Pty Ltd.The Purchaser will not be provided with a copy of the System at any stage and has no right to reproduce or copy the System.For the avoidance of doubt, The Purchaser will not be entitled to any source code for the System.
The Purchaser must provide its own computer hardware and computer software to use and access the System which meets the minimum system requirements as specified by Planet Factory Pty Ltd from time to time.
Individual or shared instance, and entitlement to Updates
Unless otherwise specified on the Order Form, The Purchaser will not have its own individual instance of the System.This means, that apart from The Purchaser Data which is unique to The Purchaser, The Purchaser will access the same version of the System (including any Updates which Planet Factory Pty Ltd makes to the System from time to time), which is generally provided by Planet Factory Pty Ltd to its other clients.
Planet Factory Pty Ltd may provide Updates to the System at any time at its sole discretion.
If The Purchaser and Planet Factory Pty Ltd agree on an Order Form (or in a separate agreement) that The Purchaser will have an individual instance of the System, then:
Planet Factory Pty Ltd will set up and configure, an individual executable copy of the System which only The Purchaser may access; and
The Purchaser will be entitled to Updates of the System, however these Updates will only be applied to The Purchaser’s copy of the System as additional Software and only once the parties have agreed on:
The process for applying the Updates and each of The Purchaser’s then existing Customisations to the Updates; and
Planet Factory Pty Ltd’s Fees in respect of the application of the above.
Intellectual Property Rights
The Purchaser acknowledges that Planet Factory Pty Ltd is the owner of all Intellectual Property Rights which subsist in the Software, the System, each Customisation and the Works. The Purchaser acknowledges that it has no Intellectual Property Rights in the Software, the System, each Customisation or in any Works.The only rights which The Purchaser has in the forgoing are the Licence rights which are expressly granted by this Agreement.
Apart from the forgoing limited Licence, and any other usage rights expressly granted by this Agreement, all rights in and to the Software, the System, each Customisation, or in any Works are strictly reserved by Planet Factory Pty Ltd.
The Purchaser must not copy or reproduce the Software or the Works or disassemble, modify or reverse engineer the System, each Customisation or the Works, other than as expressly permitted by this Agreement.
Nothing in this agreement is intended to transfer ownership to Planet Factory Pty Ltd of the Intellectual Property Rights in any Client Works which The Purchaser or a third party were the owner of at the time of their supply to Planet Factory Pty Ltd.The Purchaser warrants that it has the necessary rights in The Purchaser Works to permit Planet Factory Pty Ltd to incorporate The Purchaser Works into the System.The Purchaser hereby grants Planet Factory Pty Ltd an irrevocable, worldwide, royalty free, non-exclusive licence to incorporate and publish The Purchaser Works as part of the System, for the purposes of Planet Factory Pty Ltd providing the System and the Software to The Purchaser.
Client Data access
Planet Factory Pty Ltd will provide The Purchaser with access to The Purchaser’s Data via functionality contained in the System.
INITIAL IMPLEMENTATION AND SETUP
Initial Setup
Following the execution of this Agreement, Planet Factory Pty Ltd will:
setup the System for use by The Purchaser, as set out on the Order Form.
The Purchaser agrees to provide all reasonable assistance and information to Planet Factory Pty Ltd for the purposes of the forgoing.
Acceptance testing the initial setup
Acceptance testing will not be permitted.
SUPPORT
Support Requests
If The Purchaser finds any errors in the System or the Hosting Software, or has any queries in respect of the use of the same, then The Purchaser may contact Planet Factory Pty Ltd via email, and report the error or generally request assistance (“Support Request”).
Only persons described in this agreement can make Support Requests.
How a Support Request may be resolved
After receiving a Support Request, Planet Factory Pty Ltd may, in its sole discretion, resolve the Support Request by:
modifying the System;
providing a work around;
providing an Update to resolve the relevant error or defect;
in the case of a query that does not relate to an error in the System, by providing a workaround or answer to the query; or
any other means considered prudent by Planet Factory Pty Ltd.
The Purchaser acknowledges that the time taken to resolve a Support Request will depend on the type of error or defect in the System, and type of resolution required.
The Purchaser may purchase support time if the support request is revealed to not be due to error in the software.
Consequently The Purchaser acknowledges that Planet Factory Pty Ltd is under no obligation to resolve a Support Request within any specific period of time.
New features or modifications
The Purchaser acknowledges and agrees that any requests for additional functionality for the System, or modifications to the System (other than for error correction), may only be made as a Customisation.
Exclusions
Support Software to be provided by Planet Factory Pty Ltd under this Agreement do not include:
correction of errors or defects caused by the operation of the System in a manner other than that basic website use;
correction of errors or defects caused by any modification, revision, variation, translation or alteration of the System not authorised by Planet Factory Pty Ltd;
correction of errors or defects caused by the use of the System by any person other than The Purchaser or its authorised users;
correction of errors caused in whole or in part by the use of computer programs or Software other than the System;
correction of errors in the System arising from the interface with, or transfer of data between, the System and other computer software;
correction of errors caused by the failure of The Purchaser to provide suitably qualified and adequately trained personnel for the use of the System;
correction of errors caused by the operating system (or other software) and not the System;
training of The Purchaser’s personnel;
rectification of errors caused by incorrect use of the System;
rectification of errors caused by an equipment fault;
Client’s equipment maintenance;
diagnosis or rectification of faults not associated with the System or Hosting Software;
correction of errors arising directly or indirectly out of The Purchaser’s failure to comply with this Agreement or any other agreement with Planet Factory Pty Ltd; or
correction of errors or defects which are the subject of a warranty under another Agreement.
If The Purchaser so requests in writing, Planet Factory Pty Ltd may at its option provide any of the Support in this agreement. Planet Factory Pty Ltd may impose a Fee for providing such.
HOSTING SOFTWARE
Planet Factory Pty Ltd will provide Hosting Software to The Purchaser.The Hosting Software will entail:
the procurement by Planet Factory Pty Ltd, on The Purchaser’s behalf, of a third party provider (“Hosting Provider”) to host, on the Hosting Provider’s servers, the System and The Purchaser Data;
for the Hosting Provider to make available the System and The Purchaser Data for use by The Purchaser via the internet; and
for the Hosting Provider to securely backup The Purchaser Data, in accordance with standard practices at Planet Factory Pty Ltd.
Limitations on usage
The Purchaser acknowledges that its usage of the Hosting Software and its access and use of the System may be constrained by Planet Factory Pty Ltd from time to time, to reflect similar constraints imposed on Planet Factory Pty Ltd by the Hosting Provider, or to ensure the proper performance of the System for all of its users.
Such constraints may include, without limitation, Planet Factory Pty Ltd specifying from time to time:
a maximum number of transactions The Purchaser may process through the System;
a maximum number of concurrent users;
a maximum amount of data which The Purchaser may upload or download from the System; and/or
a maximum amount of Client Data which The Purchaser may store in the System.
The Purchaser acknowledges that Planet Factory Pty Ltd may suspend its usage of the System if it exceeds any of the above constraints and/or that The Purchaser may be liable to Planet Factory Pty Ltd for additional Fees for any excess use.
Responsibility for a failure in the Hosting Software
If The Purchaser detects an error or failure in the Hosting Software, it must lodge a Support Request with Planet Factory Pty Ltd in respect of the same.
The Purchaser acknowledges that the Hosting Software are procured by Planet Factory Pty Ltd from a Hosting Provider.
The Purchaser acknowledges and agrees that:
Planet Factory Pty Ltd has no control over the Hosting Provider’s performance of the Hosting Software; and
Planet Factory Pty Ltd will not be held liable or responsible for any failure in the Hosting Software and/or any lost Client Data which results from:
the Hosting Provider failing to provide, or properly provide, the Hosting Software; and/or
any other act, omission or negligence of the Hosting Provider.
PLANET FACTORY PTY LTD’S FEES
The Purchaser agrees to pay Planet Factory Pty Ltd the following fees and charges (“Fees”):
Planet Factory Pty Ltd’s fees and charges which Planet Factory Pty Ltd advises The Purchaser will apply from time to time in relation to the provision of the Software (whether stated on the Order Form or otherwise), or which The Purchaser and Planet Factory Pty Ltd separately agree in writing in relation to the provision of the Software; and
any other amounts, fees or charges which The Purchaser is obligated to pay to Planet Factory Pty Ltd pursuant to this Agreement.
The amount of the Fees payable by The Purchaser will be calculated and determined by Planet Factory Pty Ltd in accordance with the rates specified on the Order Form, and if no such rates are specified, then the rates of Planet Factory Pty Ltd which apply from time to time.In the absence of any manifest error, Planet Factory Pty Ltd’s calculation of the Fees will be final and conclusive.
Unless expressly stated by Planet Factory Pty Ltd to the contrary, the Fees payable are expressed to be exclusive of all Taxes. Upon payment of the Fees, The Purchaser will pay Planet Factory Pty Ltd an additional amount to ensure that after the deduction of any Taxes levied in respect of the Fees, Planet Factory Pty Ltd receives no less than the amount of the Fees.
Unless separately agreed between the parties, the Fees will be payable within the time period for payment specified on the Order Form, and if no such time period is specified, then within 7 days after the date of any invoice which Planet Factory Pty Ltd provides to The Purchaser in respect of the same.
The Purchaser will pay to Planet Factory Pty Ltd, interest on the amount of any overdue Fees, calculated at a rate equal to 2% above the General Interest Charge of The Purchasers Counrty. Such interest will be payable on demand to Planet Factory Pty Ltd.
SUSPENSION OF THE SOFTWARE
Without limiting Planet Factory Pty Ltd’s other rights arising under this Agreement, Planet Factory Pty Ltd may at any time, suspend The Purchaser’s use of the Software, and/or suspend or terminate the provision of any and all other Planet Factory Pty Ltd Goods and Software, with or without notice to The Purchaser if:
Planet Factory Pty Ltd considers that The Purchaser has breached any of its obligations to Planet Factory Pty Ltd under this Agreement or under any other agreement between the parties;
The Purchaser fails to pay any Fees by their due date;
The Purchaser is using its Account or the Software in such a manner, which in Planet Factory Pty Ltd’s sole and absolute opinion, may breach consumer laws, or is offensive, immoral, unethical or is likely to bring Planet Factory Pty Ltd into disrepute;
The Purchaser is using its Account or the Software for illegal means or in a manner which Planet Factory Pty Ltd in its sole discretion considers offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable; or
in Planet Factory Pty Ltd’s sole and absolute opinion, the provision of the Software to The Purchaser is resulting in an unreasonable load on Planet Factory Pty Ltd’s servers or Planet Factory Pty Ltd’s other Software.
The Purchaser agrees:
Planet Factory Pty Ltd may at any time, where permitted under this agreement, suspend the provision of the Software and/or suspend or terminate the provision of any or all other Planet Factory Pty Ltd Goods and Software;
Planet Factory Pty Ltd’s suspension of the Software and/or suspension or termination of other Planet Factory Pty Ltd Goods and Software, may in Planet Factory Pty Ltd’s sole discretion, apply to only some of the Software and/or Planet Factory Pty Ltd Goods and Software, and/or for a fixed or indefinite period of time; and
Planet Factory Pty Ltd may in its sole discretion reactivate the Software and/or other Planet Factory Pty Ltd Goods and Software for The Purchaser at any time following their suspension.
PRIVACY
Each party undertakes to the other party that they will comply with all applicable privacy laws and data protection laws in relation to the storage, use and transfer of Personal Information which the party obtains in the course of providing or using the Software.
RELATIONSHIP OF THE PARTIES
Planet Factory Pty Ltd is the independent service provider and contractor of The Purchaser and is not the partner, agent or employee of The Purchaser.Neither party has the power to bind the other in relation to any obligation owing to a third party.
GENERAL OBLIGATIONS OF THE PURCHASER
The Purchaser agrees that:
it will not use the Software for any illegal or fraudulent purpose or for any purpose other than as expressly permitted by this Agreement;
it will comply with all laws which must be complied with in relation to the use of the Software and the supply of any goods or Software of which the Software form a component;
it warrants that it will not, by engaging Planet Factory Pty Ltd to provide the Software, place Planet Factory Pty Ltd in breach of any law or obligation owing to a third party;
it will not undertake any act or cause any omission which will bring Planet Factory Pty Ltd, its brand or its other customers and clients into disrepute;
it will not use the Software in a manner that may lead to the suspension of the Software under this agreement;
it will provide Planet Factory Pty Ltd with all information requested by Planet Factory Pty Ltd which Planet Factory Pty Ltd requires to provide the Software; and
it will undertake all tasks requested of it by Planet Factory Pty Ltd which are necessary to enable Planet Factory Pty Ltd to provide the Software.
TERM AND TERMINATION
Term of this Agreement
This Agreement will commence on the date of the first Order Form signed or entered into by the parties in relation to this Agreement, and will continue until terminated in accordance with this this Agreement.
Subject to any right of early termination as provided in this Agreement, this Agreement will continue for the Minimum Term.At the end of the Minimum Term, this Agreement will continue until terminated by either party on the provision of 30 days written notice to the other party.If there is no Minimum Term stated on the Order Form, then this Agreement will continue until terminated by either party on the provision of 30 days written notice to the other party.
Termination for material breach or insolvency
This Agreement may be terminated by a party by written notice to the other party, if the other party is in material breach of this Agreement, and the other party has failed to rectify the material breach after having received 30 days written notice from the non-defaulting party requiring rectification of the material breach.
This Agreement may be terminated by a party, by written notice to the other party, if the other party becomes bankrupt or insolvent, or has an administrator, receiver, liquidator (or similar person to the forgoing under the laws of the jurisdiction in which the other party is located) appointed over the other party or its assets.
Immediate termination for a failure to pay Fees
This Agreement may be terminated at any time by Planet Factory Pty Ltd upon written notice to The Purchaser if The Purchaser fails to pay any Fees by the date they are due.
Termination by Planet Factory Pty Ltd.
Planet Factory Pty Ltd may terminate this Agreement at any time, and for any reason, on the provision of 30 days written notice to The Purchaser, or, if the Order Form specifies a different notice period for termination, then the notice period specified on the Order Form.Upon termination under this Agreement if The Purchaser has pre-paid any Fees which relate to a future period of usage of the Software, then Planet Factory Pty Ltd will refund to The Purchaser a proportion of the Fees which relates to that future period after termination.
What happens on termination
Upon the termination of this Agreement:
The Purchaser must cease all use of the System and the Software;
upon the payment of a specified Fee to Planet Factory Pty Ltd within 14 days following the date of termination, Planet Factory Pty Ltd will request the Hosting Provider deliver a copy of The Purchaser Data to The Purchaser in a format solely determined by Planet Factory Pty Ltd; and
The Purchaser will have no claim and hereby releases and forever discharges Planet Factory Pty Ltd against all loss, cost, expense or damage which The Purchaser suffers or incurs as a result of Planet Factory Pty Ltd’s termination of this Agreement.
All reasonable requirements within this agreement regarding Planet Factory Pty Ltd’s ongoing business will survive the termination of this Agreement.
LIMITATION OF LIABILITY AND IMPLIED TERMS
The Purchaser acknowledges that Planet Factory Pty Ltd has made no warranties that the System or the Software will be error free.
The Purchaser agrees that Planet Factory Pty Ltd will not be liable or responsible for any failure in, or delay to, the provision of the Software or the System, or in Planet Factory Pty Ltd complying with its obligations under this Agreement where such failure or delay has a arisen as a direct or indirect result of:
The Purchaser failing to meet any obligations to Planet Factory Pty Ltd which are necessary for Planet Factory Pty Ltd to deliver the Software;
The Purchaser’s improper, reckless or negligent use of the System or the Software;
fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
a significant demand being placed on Planet Factory Pty Ltd’s Software which is above the usual level of demand and which results in a failure of the System or Planet Factory Pty Ltd’s other software and hardware to function correctly;
the failure of any third party (including without limitation, any bank or other financial organisation) to fulfil any obligations to Planet Factory Pty Ltd; or
any other circumstances or event similar to the above which are beyond the reasonable control of Planet Factory Pty Ltd.
The Purchaser acknowledges that the System provides functionality to scan and analyse documentation provided to the System by The Purchaser.The purpose of the System is to assist The Purchaser with the analysis of the information uploaded and create efficiencies in The Purchaser’s workflows.However the System depends on optical character recognition technologies which are by their nature imperfect and The Purchaser to enter the correct information about the documentation uploaded.
Consequently The Purchaser acknowledges and agrees that:
Planet Factory Pty Ltd makes no warranty whatsoever that the System will correctly analyse documentation uploaded or correctly process the documentation;
The Purchaser will at all times be responsible for meeting its obligations to third parties, and will not rely solely on the System to meet those obligations;
Planet Factory Pty Ltd will not be responsible for any failure of the System to provide the correct information to The Purchaser in order for it to meet its obligations to third parties; and
The Purchaser accepts all risk in using the System.
The Purchaser acknowledges that Planet Factory Pty Ltd has not made and will not make any express or implied warranties in relation to the System, the Software or any other goods or Software provided by Planet Factory Pty Ltd under this Agreement, other than those warranties contained in this Agreement. Subject to in this agreement, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded.
Subject to this agreement, The Purchaser agrees that Planet Factory Pty Ltd will not be liable in respect of any claim by The Purchaser (whether contractual, tortuous, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the System, the Software or the provision of any other goods or Software under this Agreement and whether as a result of any breach or default, by Planet Factory Pty Ltd.The maximum liability of Planet Factory Pty Ltd under this Agreement for any and all breaches of this Agreement and for any negligence in respect of this Agreement, will not exceed the amount which is equivalent to one month of the Fees paid for the Software by The Purchaser.
If the Competition and Consumer Act 2010 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute, the liability of Planet Factory Pty Ltd is limited, at the option of Planet Factory Pty Ltd, to:
in the case of goods, any one or more of the following:
the replacement of the goods or the supply of equivalent goods;
the repair of the goods;
the payment of the cost of replacing the goods or of acquiring equivalent goods; or
the payment of the cost of having the goods repaired; and
in the case of Software:
the supplying of the Software again; or
the payment of the cost of having the Software supplied again.
Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of Planet Factory Pty Ltd will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting The Purchaser’s statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.
Notwithstanding, for Australian consumers, Planet Factory Pty Ltd’s products come with guarantees that cannot be excluded under the Australian Consumer Law.
If The Purchaser is an Australian consumer, it may be entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage.The Purchaser may also be entitled to have the Software repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure.For more information about these rights please go to www.accc.gov.au.
CLIENT INDEMNITY
The Purchaser indemnifies Planet Factory Pty Ltd, its agents, officers and employees (“Indemnified“) against any loss, cost, expense or damage (including all legal costs) which Planet Factory Pty Ltd suffers or incurs as a direct or indirect result of any breach of this Agreement by The Purchaser.
CONFIDENTIALITY
Each party will keep confidential the Confidential Information of the other party and will only use that Confidential Information for the purposes of this Agreement.
A party may disclose or use Confidential Information of the other party:
where the Confidential Information used or disclosed is in the public domain (other than through a breach of this Agreement);
where the disclosure is required by law;
where the disclosure is made to the other party’s employees or contractors solely for the purposes of this Agreement and only where such employees or contractors are under an obligation of confidentiality on terms no less restrictive than this clause; or
where the Confidential Information is disclosed to the party’s legal or professional advisors solely for the purposes of seeking advice and only where such advisors are under an obligation of confidentiality on terms no less restrictive than this clause.
SPECIAL CONDITIONS
The parties will be bound by any special conditions which are set out on an Order Form.Such special conditions will override any inconsistent term of this Agreement.
DEFINITIONS AND INTERPRETATION
In this Agreement, the following terms will have the following meanings, unless the context otherwise requires:
Accountmeans an online account with Planet Factory Pty Ltd
Base Productmeans the version of the System in existence as at the date of this Agreement, which does not incorporate any Updates or Customisations
Clientmeans the person so identified in this Agreement as the “Client”
Client Datameans The Purchaser’s information and data which The Purchaser upload’s to the System, or which the System produces on behalf of The Purchaser from time to time and which is particular to The Purchaser
Client Works means:
(a)The Purchaser Data; and
(b)any logo, artwork or other works which The Purchaser supplies to Planet Factory Pty Ltd for inclusion in a Customisation
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Confidential Information means all information of a confidential or sensitive nature in relation to Planet Factory Pty Ltd or The Purchaser, including, without limitation, information relating to the Software and their underlying processes and technology and information relating to the business of Planet Factory Pty Ltd
Customisation means a modification or enhancement of the System, which is not an Update.
Errors has the meaning given in clause this agreement.
Planet Factory Pty Ltd Goods and Softwaremeans the Software provided by Planet Factory Pty Ltd under this Agreement, and any other goods and Software provided by Planet Factory Pty Ltd from time to time to The Purchaser under any separate agreement between the parties
Fees has the meaning given in this document.
Hosting Provider has the meaning given in this document.
Hosting Software means the Software described in this document.
Indemnified has the meaning given in this document.
Intellectual Property Rights means all intellectual property rights of any type whatsoever throughout the world including all present, future, registered and unregistered rights which subsist in copyright, patent rights, trademark rights, designs, circuit layouts and plant breeder rights.
Licence has the meaning in this document,
Minimum Term means the minimum term of this Agreement as specified on the Order Form.
Order Form means a document, website purchase, or element with that title (or similar title) which is attached to, or which refers to this Agreement.
Personal Information has the same meaning as in the Privacy Act 1988 (Cth), or its update.
Portal means Planet Factory Pty Ltd’s online portal or offline process with which Clients can access their Accounts and view information provided by Planet Factory Pty Ltd, which may be accessed through planetfactory.biz or any other website specified by Planet Factory Pty Ltd from time to time.
Software means the Software provided by Planet Factory Pty Ltd which are described in this document and all other goods and Software which Planet Factory Pty Ltd expressly agrees to provide under this Agreement.
Specification means, as the context requires, a document which sets out the functionality of the System, and/or the functional requirements of a Customisation, or both
Support Request has the meaning given in this document.
Support Software means the provision of software support in respect of the System, in accordance with this document.
System means Invoice Automation Software which includes the modules described on the Order Form, which The Purchaser may access at or via planetfactory.biz.A reference to the System shall include the Base Product, together with each Customisation and each Update made or applied to the System
Taxes means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect of a transaction contemplated by this Agreement
Testing Deliverables has the meaning given in this document.
Update means any new release, update or upgrade which Planet Factory Pty Ltd makes to the System from time to time.
Works means any deliverable, item or thing embodied as a result of or by the Software and includes, without limitation, the System, each Customisation and all software, content, data or other information provided to or used by The Purchaser in their use of the Software.
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In the interpretation of this Agreement, unless the contrary intention appears:
a reference to this Agreement means a reference to an agreement between Planet Factory Pty Ltd and The Purchaser on the terms and conditions of this document and each Order Form, and includes an amendment or supplement to or replacement of this Agreement;
the words “includes” or “including” mean “includes without limitation” or “including without limitation”;
a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
the singular includes the plural and vice versa;
a reference to any gender includes a reference to all other genders;
a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
headings are inserted for convenience only and do not affect the interpretation of this Agreement.
MISCELLANEOUS
This document may be only be amended from time to time by Planet Factory Pty Ltd.
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Unless otherwise requested in writing by The Purchaser, Planet Factory Pty Ltd may use The Purchaser’s corporate identity (if applicable) as part of promoting the Software and Planet Factory Pty Ltd’s other software in the market place.
Any notice given under this Agreement must be in writing and must be signed by the party or its agent giving the notice.
A notice is taken to be received:
in the case of a notification delivered through the Portal, in the case of a notice sent by Planet Factory Pty Ltd, then at the time The Purchaser first logs into the Portal after the notice is sent, and in the case of a notice sent by The Purchaser, at the time The Purchaser selects or clicks the relevant onscreen button or onscreen instruction to send the notice via the Portal;
in the case of a notice delivered by hand, when so delivered;
in the case of a notice sent by pre paid post, on the third day after the date of posting;
in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that the facsimile has been successfully sent; or
in the case of a notice sent by email, on the date the sender sends the email, provided the sender does not receive a subsequent communication that the email was not delivered.
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This Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement.
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A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
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If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.
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Planet Factory Pty Ltd may assign and novate its rights and obligations which arise under this Agreement. The Purchaser must not assign, novate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Planet Factory Pty Ltd (which may be withheld).
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Each provision of this Agreement capable of having effect after termination and each representation and warranty made in this Agreement will survive the execution, delivery and termination of this Agreement and the performance of all obligations under this Agreement and will not merge on termination.
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The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
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This Agreement is governed by the laws of the Queensland, Australia.The parties submit to the exclusive jurisdiction of the Courts of the State of Queensland and their Courts of Appeal.
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