Welcome to Promo Video Creator! These terms and conditions set out the terms on which we will provide our services to you.
1.1 Richview Pty Ltd (ACN 632 799 216) (we, us or our), own the cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software that is accessible at promovideocreator.com, and may be available through other addresses and channels (Site).
1.2 These terms and conditions (Terms):
(a) set out the terms and conditions upon which we agree to grant you a right to use the Services; and
(b) are binding on you on and from the date on which you accept these Terms (Effective Date) until the date on which your Account and these Terms are terminated in accordance with the terms (the Term).
1.3 You accept these Terms by clicking a box indicating your acceptance.
1.4 If you create an Account and are agreeing to these Terms on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means the Entity and you are binding that Entity to these Terms. If you are accepting these Terms on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so.
2.1 In consideration of payment of the Fees, we will provide the Services to you and your Authorised Users in accordance with these Terms, whether ourselves or through our Personnel.
2.2 You agree that we may amend the Services (including any features) or the Fees at any time, by providing written notice to you. If you do not agree to any amendment made to the Services or the Fees, you may terminate these Terms in accordance with clause 18.2.
3.1 Plans: We provide a variety of Plans, as set out on the Site. Our Plans have different inclusions, pricing and billing options for you to select from.
3.2 Account: To sign up for the Services you must register for an account (Account). Account creation is subject to our approval. To create an Account, we require that you provide us with information about yourself, such as your name and email. You must provide accurate, current and complete information during the registration process and you must update such information to keep it accurate, current and complete. At our sole discretion, we may refuse to allow any person to register an Account.
3.3 Free Trial: We offer a free trial Plan with limited features designed to allow you to evaluate the Services and make sure the Services are right for you before signing up for a paid Plan. Any trial period can change at any time without notice. We have the right to terminate any trial Plan if you are found to be misusing the Services. Despite anything to the contrary, you may terminate your Account at any time during any trial period. At any time during the trial period, you may input your payment details and sign up to a paid Plan in order to continue your access to the Services after the trial period has ended. If you do not provide your payment details, your Account will be terminated at the end of the free or trial period.
3.4 You must ensure that any information you provide to us, or we request from you, for any Account or login, is complete and accurate, and you are authorised to provide this information to us.
3.5 It is your responsibility to keep your Account details confidential and to ensure that all Authorised Users do the same. You are responsible for all activity on your Account and all activity by any Authorised User, and for ensuring that any activities on any Account complies with these Terms.
4 Leased Hardware
4.1 You may rent the Leased Hardware from us by selecting a bundle on our Site. The bundles have different inclusions and you may also purchase additional add-ons when choosing a Leased Hardware bundle. The bundle will set out the Hardware Rental Period, the billing period, the hardware inclusions and any other services we provide to you as part of the bundle. When you choose a Leased Hardware bundle, you will also select a Plan.
4.2 If you rent Leased Hardware from us, the terms and conditions in this clause apply to you.
4.3 You must pay the Leased Hardware Fee in accordance with the payment terms and payment method in the invoice we provide to you or as set out on the Site. The first installment of Leased Hardware Fees must be paid upfront prior to us supplying the Leased Hardware. You must continue to pay the Leased Hardware Fees throughout the Hardware Rental Period at the start of each billing period.
4.4 Where applicable, we will take reasonable steps to deliver the Leased Hardware to the delivery location in the manner and within the delivery lead time notified by us to you (Delivery).
4.5 For the avoidance of doubt, you agree estimated Delivery times are an estimate only and do not guarantee Delivery by the estimated date.
4.6 We may suspend or cancel delivery of Leased Hardware if:
(a) we are unable to deliver the Leased Hardware due to any event beyond our control; or
(b) any payment owing to us is overdue.
4.7 Title in the Leased Hardware will at all times remain with us (or our third party providers), and you will take the Leased Hardware as a bare bailee only.
4.8 Risk in the Leased Hardware will pass from us to you on Delivery of the Leased Hardware in accordance with these Terms.
4.9 Damage to or loss of the Leased Hardware after risk has passed to you does not discharge you of your obligations to pay the Leased Hardware Fee under these Terms unless the loss or damage is due to an act or omission of ours.
4.10 During the Hardware Rental Period, you agree:
(a) to ensure that you have any necessary permissions or consents to install and use the Leased Hardware (including any strata or building management consent);
(b) to comply with our reasonable instructions in relation to the Leased Hardware, including any user manuals or directions for use that we provide to you;
(c) to not allow anyone to interfere or otherwise tamper with the functioning of the Leased Hardware;
(d) to protect and maintain the Leased Hardware and keep it in good order and condition;
(e) to ensure that only trained Authorised Users use the Leased Hardware;
(f) to not conduct, or commission a third party to conduct, any repairs or maintenance or otherwise tamper with the Leased Hardware, without our prior consent;
(g) that we have no obligation to provide any Services for, and we provide no warranties in respect to, the Leased Hardware, or any part of the Leased Hardware, to the extent it has been repaired, modified or tampered with by a person other than with our prior consent;
(h) that you are responsible for any loss, cost, theft, damage, vandalism or destruction of or to the Leased Hardware;
(i) that no such loss, cost, theft, damage or destruction of or to the Leased Hardware will impair or frustrate any of your obligations under these Terms (including, without limitation, payment of the Fees);
(j) to ensure that the Leased Hardware is protected from power surges and is located in a suitable physical environment for the operation of the Leased Hardware; and
(k) we may take such steps as may be reasonably necessary to protect or enforce our rights under the this clause (including giving us and our Personnel the right to enter your premises) and you agree to sign such documents and do such things as we may reasonably require in such regard.
4.11 At the end of the Hardware Rental Period, we will, at our discretion, notify you of your option to purchase the Leased Hardware if you have paid us the total Leased Hardware Fees payable for the Hardware Rental Period and you have paid us any other amounts due and payable under these Terms.
4.12 If you notify us of your acceptance of the option to purchase the Leased Hardware, you must also provide us an end of rental condition report which sets out the condition of the Leased Hardware and any defects or faults in the Leased Hardware.
4.13 Upon receipt of the rental condition report, if you have paid all Fees under these Terms and have fully complied with all your obligations in these Terms, we will transfer title to the Leased Hardware to you. You agree that you purchase and accept the Leased Hardware “as is”, meaning in the condition it is at the time title passes, and we will not be liable for any damage, defect or other Liability in the Leased Hardware after title to the Leased Hardware transfers from us to you.
4.14 Nothing in these Terms excludes or alters your rights under any warranty provided by a manufacturer of the Leased Hardware.
4.15 If you do not exercise the option to purchase the Leased Hardware within 30 days of our notification to you or upon on expiry or termination of these Terms, you are responsible for returning all Leased Hardware to us at your cost.
5 Intellectual Property
5.1 Our rights in the Services: Unless otherwise indicated, we own or licence all rights, title and interest (including intellectual property rights) in our Site and Software and all audio and video stock assets (Stock Assets) made available by us to you as part of the Services (together, the Content). Your use of our Services and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Services or the Content.
5.2 Prohibited Content uses: You must not, except as expressly permitted by these Terms, without the prior written consent of ourselves or the owner of the Content (as applicable): (1) copy or use, in whole or in part, any Content; (2) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party.
5.3 Licence to use the Services: Subject to your compliance with these Terms, we grant you and your Authorised Users a non-exclusive, non-transferable, revocable, worldwide licence for the Term to use the Services and the Content for your own business purposes at one premises (Licence). If you are a business with several premises, you must have an Account for each premises. All other uses are prohibited without our prior written consent.
5.4 Stock Assets: Stock Assets accessible via the Services are solely for use with the Services.
5.5 Comments: Any comment, feedback, idea or suggestion (Comments) which you provide to us through the Services becomes our property. You agree that we are entitled to use your Comments for any commercial or non-commercial purpose (such as improving the Services, promoting the Services, creating new services) without compensation to you or to any other person who has transmitted your Comments. If you provide us with Comments, you acknowledge that you are responsible for the content of such material including its legality, originality and copyright.
5.6 Customer Content: Excluding Comments, Customer Content remains your property. By providing Customer Content to us or making available any Customer Content on or through the Services, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, sub-licensable, royalty-free licence to use the Customer Content, with the right to use, view, copy, and modify such Customer Content on, through, or by means of the Services solely for the following purposes: (1) to provide the Services to you; (2) to improve the Services; (3) to create the Analytics (defined below); and (4) to keep records and undertaking reporting for our internal business purposes.
5.7 You represent and warrant that: (1) you are either the sole and exclusive owner of all Customer Content or you have all rights, licences, consents and releases from the relevant third party that are necessary to grant to us and your own users the rights in such Customer Content as contemplated by these Terms; and (2) neither the Customer Content nor the transcoding (converting), posting, uploading, publication, submission, editing or transmission of the Customer Content by you or Authorised Users, our hosting or other required use of the Customer Content on, through or by means of the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5.8 We do not endorse or approve and we do not accept any responsibility for any Customer Content. We may, at any time at our sole discretion, remove any Customer Content subject to a takedown notice or other legal claim, or where we otherwise reasonably believe it is in our interests to do so, without prior notice to you.
5.9 Illegal content: You must not use the Services to create any videos with illegal content. Illegal content is any content that violates the laws applicable to us, to the Services or to you. If we become aware of any usage of the Services for illegal video content you acknowledge that we will inform and collaborate with the relevant law enforcement agencies to ensure any necessary legal steps are taken.
5.10 Analytics: Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, including integrated Third Party Inputs (as defined below), in an aggregated and anonymised format (Analytics). We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all intellectual property rights in the foregoing.
6 Access and availability
6.1 Subject to clause 6.2, we agree to use commercially reasonable endeavours to ensure that the Services will be available and accessible at all times during the Term.
6.2 During the Term, from time to time, we may perform scheduled and emergency maintenance and updates in relation to the Services. You agree that access to, or the functionality of all or part of the Services, may need to be suspended for a time in order for us to do this.
6.3 We will endeavour to provide you with reasonable notice, where possible, of any interruptions to access and availability of the Services.
7 Third Party Inputs
7.1 You agree that the Services include Third Party Inputs that interface, or interoperate, with the Services, including third party software or services and that the provision of the Services is contingent on, limited to or impacted by, Third Party Inputs.
7.2 You must comply with our instructions and directions, whether written or verbal, in relation to use of any Third-Party Inputs. Where we provide you with any terms and conditions for use of these Third-Party Inputs, you agree that you will comply with these and are liable for any damages and/or loss that we incur as a result of any non-compliance by you.
8 Support Services
8.1 We offer a range of online videos and information on the Site to assist you with the Services. In the future, we may also offer a chat function. Any additional support will be as set out in your Plan.
9 Your obligations
9.1 You warrant, represent and agree:
(a) you have the legal capacity to enter into a legally binding agreement;
(b) there are no legal restrictions preventing you from agreeing to these Terms;
(d) you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including intellectual property rights and privacy rights) or in any way that damages, interferes with or interrupts the supply of the Services;
(e) to cooperate with us and provide all assistance, resources, data, people, information, facilities, access and documentation reasonably necessary to enable us to comply with our obligations under these Terms or at Law, in a timely manner;
(f) all information and documentation that you provide to us in connection with these Terms is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;
(g) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes) or any Third Party Inputs, unless expressly stipulated in these Terms;
(h) you have not made any representations or warranties to any third parties that could be construed as being representations or warranties from us in relation to the Services or any other matter;
(i) you are responsible for all users using the Services, including your Personnel and any Authorised Users;
(j) the Services and any associated programs and files are used at your own risk;
(k) you are responsible for obtaining, and providing to us in a timely manner, any consents, licences, authorities and permissions from third parties necessary for the Services to be provided in accordance with these Terms, at your cost;
(l) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users or your Personnel;
(m) the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;
(n) you have the authority to act on behalf of any person or entity for whom you are using the Services and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services;
(o) you have all hardware, software and services which are necessary to access and use the Services (other than those required to be provided by us under these Terms);
(p) if applicable, you hold a valid ABN which has been advised to us; and
(q) if applicable, you are registered for GST purposes.
9.2 To the extent contemplated, this clause 9 will survive termination or expiry of these Terms.
10 Fees and payment
10.1 You agree to pay us the Fees, and any other amounts payable to us under these Terms, without set-off or delay, via direct debit from a credit card or bank account or in accordance with the Leased Hardware order form or invoice (if applicable).
10.2 The Plan Fee is payable in advance of the next Billing Cycle for your Plan (Payment Date).
10.3 You are responsible for reviewing the pricing schedule, features and limits for your Plan, which are available on the Site.
10.4 If your Plan requires you to pay the Fees via direct debit, you expressly consent to, authorise and instruct us to deduct the Fees from your nominated account as an automatic payment in accordance with the relevant Payment Date. If required, you agree to complete a direct debit request form and/or direct debit request service agreement, which may be provided by us or by a third-party provider on our behalf.
10.5 Plans automatically renew for periods of the same length as your current Plan, unless you cancel your Plan in accordance with clause 18.2.
10.6 If you are paying the Fees via direct debit, you are liable for any fees charged by our third party payment processor as a result of a late payment, except to the extent these are as a result of our error or our system failure and where this is the case you should provide us with a copy of the relevant records so that any issue can be resolved.
10.7 If any payment has not been made or is not successful in accordance with these Terms and as specified in your Plan, we may (at our absolute discretion):
(a) immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so;
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with these Terms; and
(c) engage debt collection services and/or commence legal proceedings in relation to any such amounts.
10.8 If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.
10.9 You acknowledge that we may set off any amounts you owe us from time to time against any amounts we owe to you.
Upgrading and downgrading your Plan
10.10 You may upgrade or downgrade your Plan to another tier at any time in the Account Payment Plan page (or similar) or by sending us an email.
10.11 If you upgrade your Plan, the upgrade will happen immediately and the payment method linked to your Account will automatically be charged the Fee for your new Plan on a pro-rata basis for the remaining period until the next Payment Date. You must then pay to us the new Plan Fees on each Payment Date thereafter.
10.12 If you are permitted to downgrade your Plan in accordance with Plan details set out on the Site, if you downgrade your Plan, the downgrade will come into effect on your next Payment Date and you must then pay us the new Fees on each Payment Date thereafter.
12 Confidential Information
12.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party;
(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
12.2 The obligations in clause 12.1 do not apply to Confidential Information that:
(a) is required to be disclosed in order for the Parties to comply with their obligations under these Terms;
(b) is authorised to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or
(d) must be disclosed by Law or by a regulatory authority, including under subpoena.
12.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 11.1. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 11.1.
12.4 This clause 11.1 will survive the termination or expiry of these Terms.
13 Prohibited conduct
13.1 You must not do, or attempt to do, anything that is unlawful; anything prohibited by any laws which apply to the Services or which apply to you or your use of the Services; or anything which might bring us or the Services into disrepute, including (1) anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual’s consent) or any other legal rights; (2) using the Services to defame, discriminate against, harass, abuse, threaten, menace or offend any person; (3) interfering with any user using the Services; (4) tampering with or modifying the Services; (5) knowingly transmitting viruses or other disabling features, or damaging or interfering with the Services, including using trojan horses, viruses or piracy or programming routines that may damage or interfere with the Services; (6) anything that might violate any local, state, national or other law or regulation or any order of a court, including privacy regulations; (7) using the Services to send spam; (8) use any data mining robots or other extraction tools; or (9) facilitating or assisting a third party to do any of the above acts.
14 Australian Consumer Law
14.1 Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights).
14.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
14.3 Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind (including as to fitness for purpose), either express or implied, whether in statute, at Law or any other basis.
14.4 This clause 14 will survive termination or expiry of these Terms.
15.1 Except to the extent that the Liability arose from our negligent acts or omissions or any of our Personnel, you indemnify us and our Personnel against all Liability that we or any of our Personnel may sustain or incur as a result, whether directly or indirectly, of:
(a) your or your Personnel’s breach of clauses 7.2, 4 and 11.1; and
(b) your or your Personnel’s negligent, unlawful or wilful acts or omissions in connection with these Terms.
16 Limitations on Liability
16.1 Despite anything to the contrary (except for clause 15) and to the maximum extent permitted by law:
(a) neither Party will be liable for any Consequential Loss;
(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and
(c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us repaying you the amount of the Fees paid by you to us in the immediately preceding 12 months for the supply of the relevant Services to which the Liability relates.
16.2 This clause 16 will survive termination or expiry of these Terms.
17 Exclusions to Liability
17.1 Video quality: The Services support a limited number of video codecs as inputs and outputs for transcoding (conversion). While we’re working hard on implementing additional video codecs, the Services are provided as is and are limited to the current offering. The quality of the result may vary and can be dependent on the source video.
17.2 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:
(a) loss of, or damage to, any property or any injury to or loss to any person;
(b) the Computing Environment;
(c) any reliance on the Services by you, including for the purposes of complying with any obligations on you (including under any Laws);
(d) your, an Authorised User or your Personnel’s acts or omissions;
(e) any claim by an Authorised User or your client whose information you you upload to the Site;
(f) any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
(g) any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Customer Content).
(h) any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;
(i) any Third Party Inputs; and/or
(j) the Services being unavailable, or any delay in us providing the Services to you, for whatever reason.
17.3 This clause 17 will survive termination or expiry of these Terms.
18.1 We may suspend the Services (or any Authorised User’s access to the Services) with notice to you if:
(a) we reasonably consider that your continued use of the Services (or that of any Authorised User) may result in harm to the Services, other customers or third parties;
(b) we reasonably consider that you (or any of your Personnel) are in breach of any Laws; or
(c) we are required to do so by Law.
18.2 You may terminate an Account and these Terms at any time. Where this termination right is exercised, these Terms and your Account will terminate immediately however clause 18.4 will apply.
18.3 These Terms and your Account will terminate immediately upon written notice by:
(a) us, if:
(1) you (or any of your Personnel) breach any provision of these Terms and that breach has not been remedied within 10 Business Days of being notified by us;
(2) for any other reason outside our control which has the effect of compromising our ability to provide the Services; or
(3) you are unable to pay your debts as they fall due; and
(b) you, if we:
(1) are in breach of a material term of these Terms, and that breach has not been remedied within 20 Business Days of being notified by you; or
(2) are unable to pay our debts as they fall due.
18.4 Upon expiry or termination of these Terms:
(a) we will immediately cease providing the Services, the Licence will terminate and you will lose access to any Content you have created;
(b) we will be entitled to permanently delete all Customer Content and Content you have created within 24 hours from expiry or termination of these Terms;
(c) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;
(d) unless you terminate in accordance with clauses 18.3(b) (in which case we will provide you with a pro-rata refund of Fees paid by you in advance, for the remainder of the Billing Cycle), to the maximum extent permitted by law, Fees paid are not refundable and there will be no refunds or credits for any unused Licence (or part thereof) unless we decide at our discretion to grant you a pro-rata refund for Fees paid in advance;
(e) pursuant to clauses 18.2 and 18.3(a)(1), (3) you also agree to pay us additional costs arising from, or in connection with, such termination; and
(f) immediately return (where possible) or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information and intellectual property).
(g) immediately delete or destroy all copies of downloaded video files:
(h) immediately delete or remove downloaded videos that have been uploaded as MP4 files, hyperlinks or embed codes on social media sites, blog posts and other websites;
(i) if you do not terminate in accordance with clauses 18.4(f), 18.8g) and 18.4(h) we will continue to charge you subscription fees based on the terminated subscription plan until such time as you comply with clauses 18.4(f), 18.8g) and 18.4(h); and
(j) if you do not terminate in accordance with clauses 18.4(f), 18.8g) and 18.4(h), you agree to pay all legal fees and associated costs incurred by us in collecting the subscription fees due for your non-compliance with clauses 18.4(f), 18.8g) and 18.4(h).
18.5 Termination of these Terms will not affect any rights or liabilities that a party has accrued under it.
18.6 This clause 18 will survive the termination or expiry of these Terms.
19.1 Unless specified otherwise, all amounts in these Terms are exclusive of GST.
19.2 If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
19.3 If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
19.4 If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
19.5 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
20.1 A party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute.
20.2 If the parties cannot agree how to resolve the Dispute at that initial meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, either party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the parties.
20.3 Nothing in this clause will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
20.4 This clause 20 will survive the termination or expiry of these Terms.
21.1 Amendment: We may update these Terms at any time. Where we update these Terms, we will notify you via an in-Account notification or via email. If you do not agree with any amendment you may terminate these Terms in accordance with clause 18.3.
21.2 Assignment: A party must not assign or deal with the whole or any of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
21.3 Entire agreement: These Terms contain the entire understanding between the parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
21.4 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into these Terms) (Force Majeure Event).
21.5 Further assurance: Each party agrees to promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.
21.6 Governing law: These Terms are governed by the laws of New South Wales. Subject to clause 20, each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
21.7 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).
21.8 Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material, with your prior written consent.
21.9 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
21.10 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and:
Account means an account accessible to you and/or your Authorised Users to use the Services.
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Authorised User means a user permitted to access and use the Services under your Account at your request or with your authorisation and includes your clients to whom you grant access to the Services.
Biling Cycle means the billing cycle for your Plan. The Billing Cycle may be different to the Plan Period.
Business Day means a day on which banks are open for general bank business in New South Wales, excluding Saturdays, Sundays and public holidays.
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.
Confidential Information includes information which:
(a) is disclosed to the Receiving Party in connection with these Terms at any time;
(b) is prepared or produced under or in connection with these Terms at any time;
(c) relates to the Disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Customer Content means the information, materials, logos, documents and other intellectual property or data inputted by you, your Personnel, Authorised Users into the Services or accessed by the Services through Third Party Inputs, or stored by the Services or generated by the Services as a result of your use of the Services.
Disclosing Party means the party disclosing Confidential Information to the Receiving Party.
Fee or Fees means those fees due and payable by you for the Services, as set out on the Site and includes (where applicable, the Leased Hardware Fees). The Fees depend on your chosen Plan.
Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel or Authorised Users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services.
Hardware Rental Period means the period for which we rent the Leased Hardware to you as set out in the order form (which may be an online order form) between you and us.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).
Leased Hardware means any hardware leased by us to you as set out in an order form between you and us.
Leased Hardware Fee means the fee applicable for the lease of the Leased Hardware set out in an order form between you and us.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.
Personnel means, in respect of a party, any of its employees, consultants, suppliers, subcontractors or agents.
Plan means the plan you choose to access our Software, including the Fees, Billing Cycle, Plan Period, features (including number of saved videos), as set out on the Site and post purchase, as set out within your Account.
Plan Period means the term of your Plan.
Receiving Party means the party receiving Confidential Information from the Disclosing Party.
Services means the Software, the Services, the Support Services and the Leased Hardware.
Software means our Software as a service as described on the Site.
System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network.
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
In these Terms, unless the context otherwise requires:
(a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g) a reference to time is to local time in New South Wales; and
(h) a reference to $ or dollars refers to the currency of Australia from time to time.
For any questions and notices, please contact us at:
Richview Pty Ltd (ACN 632 799 216)
Email: [email protected]
Last update: 2 June 2022