Terms of Service
Last updated: 7th July 2014 Print Terms of Service
This Terms of Service Agreement governs all of your use of our internet-delivered service and any form of messaging including e-mail, instant push notifications, SMS, phone, IP telephony and any other means of telecommunication now known or later developed (the “Online Service”), whether you access it from our website at www.wicomply.com (the “Site”), from our mobile applications and mobile websites, or from any other application or access point we make available to you. This agreement governs all use you make of the Online Service and our Site, including your Free or Paid use.
1. Acceptance of Agreement
This Agreement is a legal contract between WiComply Holdings Pty Limited (“WiComply”) (“we”, “us” or “WiComply”) and you. By registering, downloading, installing, activating or accessing the Online Service, you agree to the Terms and Conditions of this Agreement. If you are accepting this Agreement on behalf of a Business, Company, Organisation, Educational Institution, Government Agency or any other Incorporated Body (“Other Party”), you represent and warrant that you have the legal authority to bind this Other Party to this Agreement, and that you have read and understood this Agreement. If you do not have such authority, or if you or the Other Party does not agree with the Terms of this Agreement, you should not accept it. If you are accepting this Agreement on behalf of the Other Party, then the terms “you” and “your” refer to the Other Party whenever used below.
If you do not agree with these Terms of Service, you may not use the Online Service.
2. No Competitive Use
You may not register for or use our Online Service to monitor or test its performance or for other benchmarking or competitive purposes.
3. Modifications to Agreement.
We reserve the right to modify this Agreement by posting an updated version on our Site. Any updated version will become effective 15 days after posted. If you do not agree to any modified terms, you may terminate the Agreement in the manner described in Section 11.2 below. Your continued use of the Online Service after notice will constitute your acceptance of the modified Agreement.
4. Use of Online Service.
You must be human and at least 18 years old and have otherwise achieved the age of majority in the applicable jurisdiction to use this Service. If you are not of the age of majority, this Agreement can only be entered into on your behalf by your parent, guardian or other person who is lawfully entitled to give consent on your behalf. Accounts registered by “bots” or other automated methods are not permitted. You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process.
If your bandwidth significantly exceeds the average bandwidth usage (as determined solely by WiComply) of other WiComply customers based on the same subscription plan as you, we reserve the right to immediately disable your account or throttle your use until you can reduce your bandwidth consumption or we agree to modify your subscription plan.
4.3 Permitted Use.
Among other features, the Online Service allows users to create, upload, download, organize, modify and store data, content and file attachments (“Information”) and share this with other users. Subject the terms and conditions of this Agreement and the usage limitations established by the Online Service, we hereby grant you a worldwide, non-exclusive, non-transferable right to access and use the Online Service during the term of this Agreement to (i) create, submit content to, edit and delete Information, (ii) request other users to view, submit content to, and/or edit Information, and (iii) otherwise use the Information, forms, reports, and other features and functionality of the Online Service for your personal use (or, if you are an Other Party, your internal purposes).
4.4 Licensed Users.
If you maintain a multi-user subscription plan, WiComply will allow you to create logins for your Client Account, Administrators, and other Users (“Licensed Users”), subject to any limits on the number of Licensed Users for your subscription tier described on the Site. Each login (i.e., email address and password) may be used only by a single individual. You are responsible for all use and misuse of the Online Service that occurs under your and your Licensed Users’ login credentials, and you agree to notify WiComply of any unauthorized access or use of which you become aware. “Client Account” means a Licensed User with the ability to (1) designate permissions and authority levels of other Licensed Users, (2) establish certain limits on how Information covered by your subscription plan can be shared. If you exceed the maximum number of Licensed User’s specified on our Site for your subscription tier, you will be charged for additional Licensed Users at the rate stated on the Site.
A “Collaborator” is anyone you invite to create, edit and update Information. No Service Fee is required for Collaborators.
4.6 Prohibited Use.
You will not (and will ensure that your Licensed Users or Collaborators do not): (a) “frame,” distribute, resell, or permit access to the Online Service by any third party other than for its intended purposes (for example, by sharing Information or publishing Information); (b) permit multiple Licensed Users to access the Online Service using shared login Credentials (i.e., a shared email address and password); (c) use the Online Service other than in compliance with applicable federal, state, and local laws; (d) interfere with the Online Service or disrupt any other user’s access to the Online Service; (e) reverse engineer, attempt to gain unauthorized access to the Online Service, or attempt to discover the underlying source code or structure of the Online Service; (f) submit to the Online Service any content or data that is false, misleading, defamatory, threatening, offensive, or infringing of intellectual property rights, or that contains mass mailings or any form of “spam”; (g) submit to the Online Service any routine, device or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap or back door or software routine, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications; or (h) use any robot, spider, data scraping or extraction tool or similar mechanism with respect to the Online Service.
4.7 Emergency Services.
Online Services are not intended to support or carry emergency calls to any emergency services, including emergency services personnel or public safety answering points such as 000 or 911. WiComply will not be liable under any legal or equitable theory for any claim, damage, or loss, and you will hold WiComply harmless against any and all such claims, arising from or relating to the inability to use the Online Services to contact emergency services.
5. Your Content.
5.1 Ownership and Treatment of Your Content; Representation.
As between you and WiComply, you retain all right, title and interest in any and all data, files, attachments, text, images, personally identifiable information, and other content that you and your Licensed Users upload or submit to the Online Service (collectively, “Your Content”). Your Content includes content submitted by Collaborators, and also any data or content collected by you from third parties and submitted to WiComply using forms or similar features of the Online Service. You represent and warrant that you have all rights, permissions and consents necessary (a) to submit Your Content to WiComply, (b) to grant WiComply the limited rights to use Your Content set forth in this Agreement, and (c) for any transfer of Your Content or your Information from one Licensed User to another.
5.2 Content Submitted by Collaborators and Licensed Users under Paid Subscription.
If you are a Collaborator, you acknowledge that any content you submit may be retained indefinitely, distributed, displayed, published, modified, and used for any purpose by a Licensed User, notwithstanding any other provision of this Agreement. WiComply has no responsibility to enforce any confidentiality obligation the Licensed User may have to you. If you are a Collaborator who submits content, the Licensed User may publish or distribute Your Content to a third party, revoke your permission to access Your Content, or transfer all rights in the Information to a third party.
5.3 Content Submitted by Individual Users.
If you are an individual user under a multi-user subscription plan maintained by your employer or a third party (a “Multi-User Plan”), any Information you created will be subject to control by the owner of the Multi-User Plan. Customer Account and other Licensed Users who have been granted the appropriate permissions and authority levels under a Multi-User Plan can designate other users under that Multi-User Plan to access your Content and Information.
5.4 Use of Your Content by WiComply.
You agree that, subject to the permissions and authority settings selected for your Information where Your Content is stored, WiComply may use Your Content to provide the Online Service and its features, including by making it available for viewing, download and modification by other Online Service users with access rights to that Information. The Online Service includes features that permit Licensed Users to “invite” third party Collaborators to view, modify, collaborate on, share, and “publish” content from Information, and permit Licensed Users with the appropriate permission and authority settings to set certain limits on how Information can be shared, and permit Licensed Users to “publish” content. WiComply has no liability for any distribution, display, use or disclosure of Your Information and Content by other users of the Online Service to whom you provide or submit Your Content or Information.
5.5 Sharing of Your Content.
WiComply may, notwithstanding any provision of any separate nondisclosure agreement that may have been executed between you and WiComply, distribute and disclose Your Content (a) to other Licensed Users via the Online Service as described in this Section 5, and (b) to WiComply’s service providers who act on WiComply’s behalf in providing the Online Service (as long as such service providers are subject to confidentiality obligations substantially as protective of Your Content as this Agreement).
5.6 Treatment of Your Content at Termination.
After termination or expiration of this Agreement, WiComply has no obligation to retain, and may delete Your Information and Content from the Online Service at any time.
6. Mobile Application, Connectivity and Response
6.1 Reliable and functioning hardware.
WiComply is not responsible for ensuring any Licensed User has or continues to maintain, a reliable and functioning hardware (Smartphone/Tablet/PC etc). Licensed Users are responsible for ensuring that they have up-to-date mobile application versions to access the Online Service, and are responsible for ensuring that their hardware is compatible with the Online Service and is configured to work with the application, including enabling location services to allow all networks to locate the position of the Licensed User, enabling push message notification and other hardware access functionality requested by WiComply’s mobile applications when downloaded, installed, updated or otherwise accessed.
WiComply has no responsibility for providing connectivity to the Internet, wireless access, or any other telecommunications services necessary for you to access or interact with the Online Service. You acknowledge that certain Online Services are only available to Users who have the WiComply or WiDuress App installed and running on their device and that their device must be able to communicate with GPS satellites and be connected to a GSM network and the Internet.
6.3 Alert and Duress notifications.
WiComply shall not be held liable for any loss suffered by the Licensed User as a result of delayed response time or no response as a result of network coverage, software issues, hardware issues, communication, traffic conditions and any number of other technical issues affecting receipt of any alert or duress notification.
6.4 GPS and Telecommunication.
As with any GPS or telecommunication service or device, you acknowledge that:
6.4.1 the accuracy of any location information is dependant on the quality of connection with GPS satellites and carrier telecommunication networks. Location information is therefore to be regarded as a guide to the location of the device at the time of the last update received from it, and subject to error.
6.4.2 Online Services may only be accessed or available when devices are in operating range of the facilities of any underlying telecommunication service provider. In addition, the services of any underlying telecommunication service provider may be temporarily refused, interrupted, or limited at any time because of: (a) limitations to facilities or services of the underlying telecommunication service provider or its vendors; (b) transmission limitations caused by atmospheric, topographical, terrain, other natural or artificial conditions or other factors or causes outside of the underlying telecommunication service provider’s reasonable control; or (c) usage concentrations, modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of the services provided by the underlying telecommunication service provider.
6.4.2 Individual data transmissions may be involuntarily disconnected or delayed for a variety of reasons, including without limitation atmospheric conditions, topography, weak batteries, system over-capacity, movement outside of geographic locations in which the services are available from time to time and gaps in coverage within said geographic locations.
WiComply shall not be held liable for the failure to provide adequate Online Services as a result this section 6.4.
7. WiComply APIs.
WiComply may make certain application programming interfaces (APIs), API access tokens, HTML scripts, data import tools, or other software available to you as part of the Online Service (collectively, “WiComply APIs”). WiComply grants you a non-exclusive, non-transferable license, only while this Agreement remains in effect, to use any such WiComply APIs solely to access and use the Online Service for your internal use. You agree not to distribute, disclose or make available the WiComply APIs to any third party or (unless you are a registered user of WiComply’s Development Platform and have accepted WiComply’s Development Program Agreement) to distribute, disclose or make available any software application or website that incorporates or calls the WiComply APIs.
8. Subscription Renewals and Cancellations.
If you maintain a paid subscription to the Online Service, your subscription period is established when you purchase your subscription. Unless you notify us in the account administration area of the Online Service before the end of your subscription term, your subscription will automatically renew for successive subscription periods of the same length. Unless we otherwise agree in writing, we charge Service Fees in advance at the beginning of each subscription period. You may view your current subscription plan and billing information at any time in your account administration settings.
If you downgrade your subscription plan, your right to use certain Information and Content, features or capacity of the Online Service may immediately cease.
8.4 Renewal and Cancellation.
Once a subscription period (initial or renewal) commences, all Service Fees paid for that period are non-refundable. You may cancel your subscription at any time before the end of the then-current subscription period using the cancellation procedure available through the account administration area of the Online Service, in which case your subscription will not renew and we will not charge you any further Service Fees. When you cancel your subscription, your paid subscription will terminate and you and your Licensed Users’ access to the Information and Content you created will terminate.
9. Service Fees; Payment; Taxes.
9.1 Service Fees.
You agree to pay the fees in effect for your subscription at the time you purchase or renew it, along with any fees for additional services you agree to pay while using the Online Service (collectively, “Service Fees”). Current pricing for subscription plans is available on the Site and WiComply reserves the right to modify Service Fees at any time without notice. Unless we separately agree otherwise in writing, all Service Fees for subscriptions are payable in advance prior to the commencement of each subscription period. Other Service Fees become due and payable as described on our Site or in this Agreement.
9.2 Billing Information.
When you subscribe for a paid Online Service subscription, you will provide us with either a valid, up-to-date credit card number or the other payment information we request. If you have selected a credit card or Paypal as your payment method, you authorize us to charge your credit card (or Paypal account, as applicable) for Service Fees on the first day of your initial subscription period and each renewal subscription period and, for any additional Service Fees beyond your Service Fee (for example, over usage Service Fees for SMS and Text to Speech Messages), to charge your credit card when such fees become due and payable. You are responsible for maintaining up-to-date payment information on our Site. If we cannot charge your credit card for any Service Fees when due because your payment information is no longer valid and up-to-date, or if we do not receive your payment when due through the alternative payment method you have selected, we may, at our election: (a) suspend your access to the Online Service, in which case you will be responsible for all Service Fees incurred during the period of suspension; (b) immediately terminate this Agreement, in which case your right to use the Online Service will cease; or (c) without waiving our rights to suspend or terminate your account, allow you a longer period during which to make payment, in which case you will remain responsible for all Service Fees incurred while we await your payment. Late payments incur interest charges at the rate of 1% per month on any outstanding balance or the maximum amount permitted by applicable law, whichever is less. The Service Fees shown on our Site do not include any local, state or federal taxes or duties. Except for our income taxes and gross receipts taxes, you acknowledge that you are responsible to pay such taxes (if any). If we collect sales tax or other taxes from you, we will identify the portion of your payment attributable to such taxes.
10. Referral Program.
If you participate in our Referral Program, a separate Referral Program Agreement governs your participation in the program. The Referral Program Agreement forms a part of, and is incorporated by reference into, this Agreement. If this Agreement conflicts with the Referral Program Agreement in any respect, the term of this Agreement will control.
11. Term and Termination; Subscription Renewals and Cancelations.
This Agreement takes effect when you first create a login for the Online Service and accept this Agreement. It remains in effect indefinitely unless terminated as provided in this Section 11.
11.2 Termination by You.
You may terminate this Agreement at any time by written notice to us in accordance with this Agreement. We will not be obligated to refund any Service Fees to you when you terminate. Your termination will be effective immediately upon our acknowledgement, and in no event later than 30 days from your notice to us. Note that your cancelation of a subscription does not, in and of itself, terminate this Agreement.
11.3 Termination by Us for Cause.
We may terminate this Agreement and your access to the Online Service immediately, without any obligation to notify you or refund any Service Fees, if you are in breach of this Agreement, you misappropriate or infringe any of our intellectual property or proprietary rights, or you fail to make any payment when due.
11.4 Termination by Us for Convenience.
In addition, we may terminate this Agreement at any time, for any reason or no reason, by giving you 5 days’ written notice to the email address you provide when you register for the Online Service. If we discontinue your access to the Online Service at the end of this 5 day period, our termination will be effective at the end of this period, and we will refund any prepaid, unused subscription fees for the Online Service as soon as practicable thereafter. Otherwise, no Service Fees are refundable, and you may continue using the Online Service through the end of your subscription period, at which point our termination will become effective.
11.5 Effect of Termination.
Upon expiration or termination of this Agreement: (a) all rights and obligations of the parties will cease, except that the following sections will survive: 2, 3, 4.4, 5, 11.5, 12, 13, 15, 16.1, 16.3, and 17 through 21; and (b) notwithstanding any provision of any surviving section, you will have no further right to use the Online Service.
12. Ownership of the Online Service.
12.1 Online Service and Documentation.
As between the parties, WiComply retains all right, title and interest in and to (a) the Online Service and the technology and software used to provide it, and all intellectual property and proprietary rights therein; and (b) all electronic and print documentation and other content and data (excluding Your Content) made available through the Online Service. Except for your rights to access and use the Online Service set forth in this Agreement, nothing in this Agreement licenses or conveys any of WiComply’s intellectual property or proprietary rights to anyone, including you.
You agree that WiComply will have a perpetual right to use and incorporate into the Online Service any feedback or suggestions for enhancement that you or your Licensed Users provide to WiComply concerning the Online Service (“Feedback”), without any obligation of compensation.
14. Additional Services.
WiComply offers you the option for “Additional Services”. If you request Additional Services, WiComply will agree a price with you for these Additional Services. Amounts payable become due and payable when you accept the Additional Services to be performed or as otherwise agreed by WiComply.
You agree not to disclose, duplicate, publish, release, transfer or otherwise make available our Confidential Information in any form to any person or entity without our prior written consent. “Confidential Information” means any of our financial, technical, or business information that we designate as confidential at the time we disclose it to you, or that you should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. The specific features of the Online Service, the documentation we provide to you in connection with it, and the WiComply APIs are our Confidential Information. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of your confidentiality obligation under this Agreement; (ii) was independently developed by you without breach of your confidentiality obligation under this Agreement; or (iii) is received from a third party who obtained such Confidential Information without breach of any obligation owed to us.
16. Representations and Warranties; Disclaimer.
Each party represents and warrants that it has the necessary authority to enter into this Agreement.
16.2 Limited Warranty for Online Service.
WiComply represents and warrants that the Online Service will operate substantially as described in the online documentation made available with the Online Service.
You acknowledge that, as an internet-delivered software application, the Online Service may experience periods of downtime, including but not limited to scheduled maintenance. Accordingly, except for the limited warranties in section 16.2, WiComply makes no representations or warranties with respect to the Online Service, including its documentation, the WiComply API’s, or any data or content made available through the Online Service, whether express or implied. WiComply specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, non-infringement, and accuracy. WiComply does not warrant that the Online Service will be error-free or operate without interruptions or downtime.
16.4. Liability Limitation; Damages Exclusion.
WiComply will not be liable for any incidental, consequential, special, indirect, exemplary or punitive damages in connection with any claim of any nature arising under this Agreement, even if WiComply has been given advance notice of such possible damaged. In addition, WiComply’s aggregate liability for all claims of any nature arising out of the Agreement, regardless of the cause of action, will not exceed the fees actually paid to WiComply under this Agreement during the twelve (12) months preceding the event giving rise to the claim.
You will defend, indemnify and hold harmless WiComply and its corporate affiliates, directors, officers, employees, successors, assigns and agents from and against any third party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs and expenses, that arises out of or relates to Your Information and/or Content (except to the extent such claim arises from WiComply’s use of Your Information and/or Content in violation of this Agreement), including without limitation claims that Your Information and/or Content infringes or violates any intellectual property or proprietary right of a third party, violates any confidentiality obligation owed to a third party, or violates any applicable law.
You agree that, if you have (or have had) a paid subscription to the Service, we may identify you as a customer on our Site or in our customer list, blogs, and other public communications.
Except where this Agreement permits notice via email, all notices required under this Agreement must be in writing, must be sent via internationally recognized delivery service or messenger, and will be deemed given five (5) business days after having been sent. Notices must be addressed as follows: if to us, to Attn: WiComply Legal, 23 Brisbane Street Surry Hills NSW 2010 Australia, and for notices permitted to be sent via email, to legal@WiComply.com; and, if to you, to the contact name and address or email address that you have provided us.
20. Entire Agreement.
This Agreement represents the entire agreement between WiComply and you with respect to your use of the Online Service and the related matters set forth in this Agreement. As between WiComply and you, this Agreement expressly supersedes (i) any terms or conditions stated in your purchase order, order documentation or similar document, (ii) any online agreement that you or your Licensed User may have accepted, or may accept in the future, in the course of using the Online Service, and (iii) any other contemporaneous or prior agreements or commitments regarding the Online Service or the other subject matter of this Agreement.
This Agreement has been written in the English language, and you agree that the English language version will govern your use of the Online Service and the other matters described in this Agreement. Neither party is liable for delay or default under this Agreement if caused by conditions beyond its reasonable control (e.g., technology malfunctions or acts of God). The laws of New South Wales Australia, without regard to its conflicts of law rules, govern this Agreement and each party hereby consents to exclusive jurisdiction and venue in the state and federal courts located in New South Wales, Australia for any dispute arising out of this Agreement. Either party may assign this Agreement to any third party acquiring all or substantially all of such party’s assets or equity securities, without any requirement to obtain permission for such assignment; otherwise, neither party may assign this Agreement to a third party without the written consent of the other party in advance. This Agreement will bind and benefit the parties, their successors, and their permitted assigns. Each party is an independent contractor to (and may not act on behalf of or bind) the other.