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Terms & Conditions

1. AGREEMENT

1.1 These Website Terms and Conditions (T&Cs), together with our Privacy Policy, applies to your use of the FallbackAi Platform (and applicable Services) operated by FallbackAi Pty Ltd (ACN 665 047 272) trading as FallbackAi (we, our or us).

1.2 These T&Cs will override previous conditions that you had received or accessed through this Site.

1.3 Please read these T&Cs carefully. If you do not agree with the terms of these T&Cs, you must immediately cease your access or use of the Services.

1.4 By subscribing to, accessing, using or otherwise using the Services:

1.4 We reserve the right to review, change and update these T&Cs by updating this page at our sole discretion. We will use reasonable efforts to provide you with notice when we update these T&Cs. Any changes to these T&Cs will take immediate effect from the date of publication.

2. LICENCE AGREEMENT

2.1 We grant you and your Authorised User(s) a limited, revocable, non-transferable, non-sublicensable and non-exclusive licence to access and use the Services (including, to avoid doubt, access to the Platform) (Licence), subject to the terms of these T&Cs and payment of the applicable Fees by you.

2.2 Your Licence will be limited by the subscription selected and paid for by you, whether via the Site or otherwise. Details of such limits are as specified on the Site from time to time.

2.3 You agree not to, and you will not permit others (including Authorised Users) to:

3. SITE AND SERVICES

3.1. To access certain content on the Site and the Services, you must first register for an account on the Site (Account) by providing us with Registration Data and nominating a password.

3.2. You must keep your Registration Data up to date at all times and your password confidential and secure. We may, at our absolute discretion, refuse any registration requests.

3.3. You warrant that your access to, or use of, the Services and Site is not prohibited by any applicable laws. You understand and agree that any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.

3.4. We may, at our absolute discretion, terminate your Account, disable your Account, restrict your access to the Services, or impose any other limits or restrictions on your use of the Services whether temporarily or permanently, where you have breached these T&Cs or for any reasonable reason, at any time. Under these circumstances, you may be prevented from accessing any content associated with your Account. We agree that we will not be liable to you or any third party if this occurs.

3.5. We may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services, the Site and any related services (Updates). These may be automatically installed without providing any additional notice or receiving any additional consent. By continuing to use the Services or Site after an Update, you are deemed to have consented to the Updates. If you do not consent to such Updates, you must immediately cease to access or use the Services and Site.

3.6. The Services or Site may contain links to third party websites. We do not represent that we have any relationship with such websites nor recommend or endorse any goods, services or third party content appearing on, or via, other websites linked to the Site or from the Services. We are not responsible for any loss or damage that may arise from your access to, and/or use of, third party websites, products and services. Additionally, we are not responsible for the content or privacy practices associated with linked websites. You should make your own enquiries before using or accessing third party websites.

3.7. You must not, and must not attempt or permit any person (including any Authorised Users) to:

4. YOUR OBLIGATIONS

4.1. You acknowledge that our ability to be able to provide the Site and the Services to you is dependent on your full and timely cooperation. You will and will ensure that your Authorised User(s) will:

4.2. You will, and will ensure that your Authorised User(s) will, implement, maintain and operate reasonable and appropriate:

4.3. You will and will ensure that your Authorised User(s) will notify us of:

5. OUR OBLIGATIONS

5.1. We will investigate any problems or errors arising in relation to the Services, provided that you:

5.2. There are certain situations or events that may occur which will not be within our reasonable control. Where this occurs, we will notify you of these circumstances and attempt to recommence providing any or all of the Services and Site as soon as we are able to. You acknowledge that, in such circumstances, there may be a delay before we can recommence or continue providing any or all of the Platform, Site and Services (as the context requires).

5.3. We may subcontract any part of our obligations under these T&Cs without your prior consent. We acknowledge and agree that we will be liable for our subcontractors’ acts and omissions in relation to these T&Cs.

6. PRIVACY

6.1. We are committed to protecting your privacy and personal information. Please see our Privacy Policy for further details about our practices relating to the collection, use, disclosure and storage of your personal information.

6.2. In connection with these T&Cs and in accessing or using the Services or Site, you must, and ensure that your Authorised Users will, at all times:

6.3. We will take commercially reasonable endeavours to secure the Customer Data in the course of providing the Services, such as through:

6.4. Through your use of the Services or Site, you may provide or make available Customer Data to us or other users of the Services or Site. Without limiting anything in this T&Cs, you are solely responsible for:

6.5. You retain ownership rights to all Customer Data (whether uploaded to the Services, provided via any third-party applications or otherwise by you) and any report, data or analysis created on your behalf using the Platform.

6.6. If you enable any third-party applications in conjunction with the Platform, you agree that your Customer Data may be accessible by those third-party applications in order for such applications to functions correctly. You agree that your Customer Data does not violate any laws or any third party rights. You will be bound by the terms of such third-party providers regarding the use of your Customer Data and we will not be held responsible for the disclosure, modification or deletions of the Customer Data by such third-party applications.

7. INTELLECTUAL PROPERTY

Our intellectual property

7.1. We retain all rights, title and interest in the Services and Site (including all Materials and Intellectual Property Rights contained therein) made available by us to you in connection with these T&Cs, irrespective of any licence we may grant to you to access and use the Services or Site (Provider IP).

Subject to clause 7.3, all Intellectual Property Rights (including any enhancements, improvements and modifications to the Provider IP) discovered, developed or otherwise came into existence as a result of, for the purposes of or in connection with the Platform will automatically vest in, and are assigned to, us or such other persons as we may nominate from time to time.

7.3. Unless expressly permitted in writing by us, you must not:

Your intellectual property

7.4. You will retain all Intellectual Property Rights in the Customer Data provided by you through your use of the Site and the Services.

7.5. By uploading, posting, transmitting or otherwise making available your Customer Data via or on the Services or Site, to the extent permitted by law you:

8. CONFIDENTIALITY

8.1. Each party agrees not to use or disclose confidential information received or disclosed to it by the other party in the negotiation or operation of these T&Cs, save for such use or disclosure necessary and required to perform their respective obligations under these T&Cs. Disclosure will be, in any event, only made to the receiving party's employees, officers, agents or contractors to whom it is necessary to do so and who are directly involved in performing the receiving party's obligations.

8.2. In making disclosure to persons as permitted under this clause 8, the receiving party will ensure that persons receiving the disclosing party's confidential information will comply with the same obligations regarding confidentiality as that of the receiving party.

8.3. Information is not to be regarded as confidential, and the receiving party will have no obligation regarding confidentiality, where that information is:

8.4. Any confidential information held by a receiving party will be returned to the disclosing party or destroyed at the written request of the disclosing party.

9. INDEMNITY

9.1. You agree to indemnify, keep indemnified and hold harmless the Indemnified from and against all actions, claims, demands, proceedings, losses, damages, liabilities, costs and expenses that may be directly or indirectly incurred by, sustained by or brought against the Indemnified in connection with:

10. LIABILITY

10.1. To the maximum extent permitted by law, we exclude all and any liability to you however arising (whether under statute, negligence or otherwise) for any:

arising out of or in connection with your access to, use of and/or any interruption or delay experienced by you in accessing or using the Platform, Site or Services.

10.2. Without limiting anything else in these T&Cs, you agree that our total liability to you or any third party (whether based on warranty, contract, tort, statute, misrepresentation or otherwise) arising out of or in connection with these T&Cs, for any one event or a series of related events, will be limited to the total Fees paid by you under these T&Cs in the 12 months immediately prior to the occurrence of the event(s).

10.3. You agree and acknowledge that:

10.4. Nothing contained in these T&Cs excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, state or territory legislation where to do so is unlawful.

11. FEES AND PAYMENT

11.1. The fees payable by you in relation to the Licence, Site and Services (Fees) are as specified on the Site from time to time or as otherwise specified by us in writing.

11.2. All Fees displayed on our Site are subject to change without notice. Any changes to the Fees will apply to the next Billing Period and will not apply retrospectively. If you do not agree to such changes, you may terminate these T&Cs subject to the terms of these T&Cs.

11.3. The Fees payable by you are non-refundable unless otherwise provided in these T&Cs. If you choose to terminate your subscription during your current Billing Period, you may use the Site and Services until the end of your current Billing Period, but we will not refund any Fees payable by you.

11.4. By registering your Account and providing us with your payment details, you authorise us to charge the Fees to your nominated Payment Method:

11.5. If we do not receive payment of the Fees from you by such due date specified on the Site or otherwise specified in writing by us, we will be entitled to:

without prejudice to any other right or remedy available to us under these T&Cs or at law.

11.6. Unless stated otherwise on the Site or in writing by us:

11.7. You must make all payments for the Fees without any deduction for tax unless a tax deduction is required by law. If you are required to make a tax deduction by law, the amount due will be increased to the amount that (after making the tax deduction) upon deduction of the amount attributable to tax equals the amount which would have been due if no tax deduction had been required.

12. TERM AND TERMINATION

12.1. These T&Cs are effective from the date you first access or use the Services until it is terminated in accordance with this clause 11 (Term).

12.2. Any party may terminate these T&Cs at any time and for any reason by giving the other party 7 days of prior written notice or such other method specified on the Site.

12.3. We may immediately terminate these T&Cs and/or suspend your access to the Services or the Site at our absolute discretion, if:

12.4. On termination of these T&Cs:

12.5. Termination of these T&Cs is without prejudice to any right, action, remedy which has accrued, or which may accrue in favour of us.

12.6. Clauses 7, 8, 9, 10, 13 and 14 shall survive termination.

13. DISPUTE RESOLUTION

13.1. If a dispute arises in relation to these T&Cs, the party raising the dispute (Disputing Party) may give the other party a written notice adequately identifying the matters in dispute (Dispute Notice).

13.2. Within 10 days of the Disputing Party giving a Dispute Notice, the parties involved in the dispute must meet informally and attempt to resolve the dispute. If a resolution is not achieved within 10 days from the informal meeting, the Disputing Party may give the other party written notice requiring the dispute to be referred to mediation (Mediation Notice).

13.3. If a Mediation Notice is given, the parties will appoint a mediator in writing, or if the parties cannot agree on a mediator within 7 days of the Mediation Notice being served, a mediator will be appointed by the Chair of Resolution Institute or the Chair’s designated representative. The parties or their nominated representatives must attend any arranged mediation to attempt to resolve the dispute and unless otherwise agreed by the parties, the Resolution Institute Mediation Rules will apply to the mediation.

13.4. The costs of mediation will be shared equally by the parties unless otherwise agreed in writing.

13.5. If the dispute identified in the Mediation Notice is not resolved within 14 days of appointment of the mediator, either party may seek mediation again pursuant to this clause 13, with the parties agreeing that the mediator will make a binding resolution.

13.6. No party may commence litigation unless they have first complied with this clause 13, except where the party is seeking urgent interlocutory relief.

13.7. Notwithstanding the existence of a dispute, each party must continue to perform its obligations under these T&Cs.

13.8. This clause 13 survives the termination or expiry of these T&Cs.

14. GENERAL

14.1. Entire agreement: These T&Cs constitutes the entire agreement between the parties in respect of the subject matter of these T&Cs and supersedes and replaces any prior written or oral agreements, representations or understandings. The parties confirm that they have not relied on any representation that is not expressly incorporated into these T&Cs.

14.2. Governing law: These T&Cs are governed by, and must be construed according to, the laws of the State of Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts in that State.

14.3. No assignment: You must not, without our prior written consent (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under these T&Cs.

14.4. No waiver: A failure or delay by us to exercise a power or right under these T&Cs do not operate as a waiver of that power or right, and the exercise of a power or right by us does not preclude our future ability to exercise that or any other power or right.

14.5. Non-exclusive: These T&Cs, and the relationship between the parties contemplated by it, are not intended to be exclusive.

14.6. Notices: Any notice required to be given under these T&Cs:

14.7. Relationship: Nothing in these T&Cs are intended to create or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in these T&Cs. Neither we nor you will have, nor represent that it has, any authority to make any commitments of this kind on the other party's behalf.

14.8. Severability: If any provision of these T&Cs is held invalid or unenforceable, such provision will be deemed deleted from these T&Cs and, to the extent permitted by law, replaced by a valid and enforceable provision which so far as possible achieves the parties' intent in agreeing to the original provision. The remaining provisions of these T&Cs will continue in full force and effect.

15. DEFINITIONS AND INTERPRETATION

15.1. In these T&Cs:

15.2. In these T&Cs, unless the context requires otherwise:

Last Updated ( 29/08/2023 )

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