HospoSure Pty Ltd - Terms & Conditions

1. Our Disclosures

2. Disclaimer

2.1 Content is provided “as is”: Please note that our Platform and the content contained on our Platform (including any templates, recommendations, comparisons and any other tools, information, insights or resources made available to you) (Content) are provided “as is” for general information purposes only. You understand and agree that:

1. the Content must not be used on the basis that it is legal, financial, superannuation or tax advice;
2. the Content does not take into account your specific needs or circumstances;
3. whilst we use reasonable endeavours to keep the information up-to-date, we make no representation that any information provided is accurate or up-to-date and we do not guarantee that any recommendations featured on our Platform are more suitable than options not featured on our Platform; and
4. you use the Content at your own risk, and it is your sole responsibility to determine the suitability, reliability and usefulness of the Content.

2.2 Using templates: If you use any templates available on the Platform, you understand that such templates do not consider your specific needs or circumstances, and in some cases may not be accurate or suitable for you. It is your responsibility to determine the suitability, reliability and usefulness of the templates.

2.3 No liability for Content: To the extent permitted by law, we do not assume any responsibility or liability, and you waive and release us from all responsibility or liability, arising from or connected with your use or reliance on the Content provided in our Platform.

2.4 Providing us with accurate information: You acknowledge and agree that where we generate any content on your behalf through the Platform, such content is reliant on the accuracy and completeness of the information that you input into the Platform, you must ensure that such information is accurate, complete and up-to-date.

2.5 In-app purchases: You understand that although you may select to use a free Membership, there may be in-app purchases and subscriptions available on the Platform.

3. Introduction

3.1 These terms and conditions (Terms) are entered into between HospoSure Pty Ltd ACN 662 503 808 (we, us or our) and you, together the Parties and each a Party.

3.2 We provide a cloud-based, software as a service platform where business can input their information about their business (including financial and operational information) and review insights about your business operations (Platform).

3.3 In these Terms, you means the person or entity registered with us as an Account holder.

3.4 If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity's personnel to these Terms.

4. Acceptance and Platform Licence

4.1 You accept these Terms by accepting these Terms on the Platform or using the Platform.

4.2 You must be at least 16 years old to use the Platform.

4.3 We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment and it adversely affects your rights, you may cancel your Membership with effect from the date of the change in these Terms by providing written notice to us. If you cancel your Membership:

1. you will no longer be able to use the Platform on and from the date of cancellation; and
2. if you have paid Fees upfront you will be issued a pro-rata refund having regard to the date of termination and the period for which you have paid.

4.4 Subject to your compliance with these Terms, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.

4.5 When using the Platform, you must not do or attempt to do anything that is unlawful or inappropriate, 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 Platform to defame, harass, threaten, menace or offend any person, including using the Platform to send unsolicited electronic messages;
3. tampering with or modifying the Platform (including by transmitting viruses and using trojan horses) unless expressly stipulated under this Agreement;
4. using data mining, robots, screen scraping or similar data gathering and extraction tools on the Platform; or
5. facilitating or assisting a third party to do any of the above acts.

5. HospoSure Services

5.1 In consideration for your payment of the Fees, we agree to provide you with access to the Platform and any other services we agree to provide as set out in your Account.

5.2 We agree to use our best endeavours to make the Platform available at all times. However, from time to time we may perform reasonable scheduled and emergency maintenance, and the Platform may be unavailable during the times we are performing such maintenance.

5.3 Should you be unable to access the Platform, or should you have any other questions or issues impacting on your use and enjoyment of the Platform, you must place a request via the contact form on the website. We will endeavour to respond to any support requests in a reasonable period.

5.4 You acknowledge and agree that the Platform may be reliant on, or interface with third party systems that are not provided by us (for example, cloud storage providers, email clients, CRM systems, and internet providers) (Third Party Services). To the maximum extent permitted by law, we shall have no Liability for any Third Party Services, or any unavailability of the Platform due to a failure of the Third Party Services.

5.5 You acknowledge and agree that data loss is an unavoidable risk when using any software. To the extent you input any data into the Platform, you agree to maintain a backup copy of any data you input into the Platform.

5.6 To the maximum extent permitted by law, we shall have no Liability to you for any loss or corruption of data, or any scheduled or emergency maintenance that causes the Platform to be unavailable.

6. Accounts

6.1 You must register on the Platform and create an account (Account) to access the Platform's features.

6.2 You must provide basic information when registering for an Account including your business name, contact name and email address and you must choose a password.

6.3 All personal information you provide to us will be treated in accordance with our Privacy Policy.

6.4 You agree to provide and maintain up to date information in your Account and to not share your Account password with any other person. Your Account is personal and you must not transfer or provide it to others.

6.5 You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details.

6.6 When you create an Account, you must also select a membership (Membership). You may choose between different tiers of Membership with different services and different membership periods as set out on our Platform.

6.7 If applicable, you will ensure each Authorised User complies with these Terms and must agree to our End User Licence Agreement (as contained on the Platform or otherwise notified by us to you from time to time) in order to access the Platform.

6.8 If applicable, you may request in writing that additional Authorised Users be granted a licence to access the Platform by upgrading your Membership tier, as set out in the 'Changes to your Membership' section below.

7. Memberships

7.1 You may purchase a Membership by paying the Membership fees outlined on the Platform (Fees) in advance on a monthly basis or some other recurring interval disclosed to you prior to your payment of the Fees (Billing Cycle).

7.2 Your Membership will automatically renew at the end of the Billing Cycle for the same period of time and you will be charged the Fees in connection with each subsequent Billing Cycle unless and until you cancel your Membership.

7.3 The payment methods we offer for the Fees are set out on the Platform. We may offer payment through a third-party provider. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions.

7.4 You must not pay, or attempt to pay, the Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third party payment processor to debit your account in accordance with these Terms and you certify that you are either an account holder or an authorised signatory on the account for which you provide details.

7.5 You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us in connection with the Platform.

7.6 We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.

7.7 Changes to your Membership: If you wish to change your Membership (for example, by upgrading to a different Membership tier) you must provide notice to us via email that you wish to vary your Membership at least 24 hours before the end of the current Billing Cycle. If you vary your Membership and the Fees increase, we will charge you for the increase in the Fees on a pro-rata basis for the remainder of the period until the start of the next Billing Cycle, and you will have access to the additional Membership features from the date you make such payment.

7.8 The Fees are only refundable and cancellable in accordance with your Consumer Law Rights and these Terms.

7.9 We may need to change what is available as part of your Membership (for example, the inclusions, exclusions, updated features) from time to time. If we change what is available as part of your Membership, we will provide you with at least 30 days notice of the change. After the notice period has lapsed, we will apply the changes to your Membership. If the changes adversely affect your enjoyment of the Membership, you may cancel your Membership with effect from the date we apply the changes to your Membership by providing written notice to us. If you cancel your Membership:

1. you will no longer be able to use the Platform on and from the date of cancellation; and
2. if you have paid Fees upfront you will be issued a pro-rata refund having regard to the date of termination and the period for which you have paid.

7.10 We may need to change the Fees from time to time. If we change the Fees, we will provide you with 30 days notice of the change. After 30 days we will apply the updated Fee to your Membership. If the updated Fee is not acceptable to you, you may cancel your Membership in accordance with the 'Cancellation of Memberships' clause.

8. Our Intellectual Property

8.1 You acknowledge and agree that any Intellectual Property or content (including copyright and trademarks) available on the Platform, the Platform itself, and any algorithms or machine learning models used on the Platform (Our Intellectual Property) will at all times vest, or remain vested, in us.

8.2 We authorise you to use Our Intellectual Property solely for your internal business use. You must not exploit Our Intellectual Property for any other purpose, nor allow, aid or facilitate such use by any third party.

8.3 You must not, without our prior written consent:

1. copy, in whole or in part, any of Our Intellectual Property;
2. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party; or
3. breach any intellectual property rights connected with the Platform, including (without limitation) altering or modifying any of Our Intellectual Property, downloading Our Intellectual Property, causing any of Our Intellectual Property to be framed or embedded in another website, or creating derivative works from any of Our Intellectual Property.

8.4 Nothing in the above clause restricts your ability to publish, post or repost Our Intellectual Property on your social media page or blog, provided that:

1. you do not assert that you are the owner of Our Intellectual Property;
2. unless explicitly agreed by us in writing, you do not assert that you are endorsed or approved by us;
3. you do not damage or take advantage of our reputation, including in a manner that is illegal, unfair, misleading or deceptive; and
4. you comply with all other terms of these Terms.

8.5 This clause will survive the termination or expiry of your Membership.

9. Your Data

9.1 You own all data, information or content you upload into the Platform (Your Data).

9.2 You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data to:

1. communicate with you (including to send you information we believe may be of interest to you);
2. supply the Platform to you and otherwise perform our obligations under these Terms;
3. diagnose problems with the Platform;
4. enhance and otherwise modify the Platform;
5. perform Analytics;
6. develop other services, provided we de-identify Your Data; and
7. as reasonably required to perform our obligations under these Terms.

9.3 You agree that you are solely responsible for all of Your Data that you make available on or through the Platform. You represent and warrant that:

1. you are either the sole and exclusive owner of Your Data or you have all rights, licences, consents and releases that are necessary to grant to us the rights in Your Data (as contemplated by these Terms); and
2. neither Your Data nor the posting, uploading, publication, submission or transmission of Your Data or our use of Your Data on, through or by means of our Platform 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.

9.4 You acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Platform, in an aggregated and anonymised format (Analytics). You acknowledge and agree that we own all rights in the Analytics, and that we may use the Analytics for our own internal business purposes, provided that the Analytics do not contain any identifying information.

9.5 We do not endorse or approve, and are not responsible for, any of Your Data.

9.6 You acknowledge and agree that the performance of the Platform is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Platform.

9.7 This clause will survive the termination or expiry of your Membership.

10. Warranties

10.1 You represent, warrant and agree that:

1. you will not use our Platform, including Our Intellectual Property, in any way that competes with our business;
2. you use the Platform and our Content at your own risk;
3. there are no legal restrictions preventing you from entering into these Terms; and
4. all information and documentation that you provide to us in connection with these Terms is true, correct and complete.

11. Australian Consumer Law

11.1 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).

11.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.

11.3 Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

11.4 This clause will survive the termination or expiry of your Membership.

12. Liability

12.1 Despite anything to the contrary, to the maximum extent permitted by law:

1. neither Party will be liable for Consequential Loss;
2. each 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 that Party's personnel, including any failure by that Party to mitigate its losses; and
3. our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Fees paid by you in the 12 months immediately preceding the act, event or omission giving rise to the Liability (and where there has been less than 12 months of Fees paid, an amount equal to 12 months of Fees calculated on a pro rata basis having regard to the amount of Fees paid and the period of time).

12.2 This clause will survive the termination or expiry of your Membership.

13. Termination

13.1 Cancellation of Memberships: You may request to cancel your Membership at any time by notifying us via the 'cancel my membership' feature in your Account and we will contact you to discuss your reason for cancellation and to work with you to remedy any potential issues. If you decide to cancel your Membership following this, your cancellation will take effect from the end of the current Billing Cycle.

13.2 A Membership will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

1. the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
2. the Defaulting Party is unable to pay its debts as they fall due.

13.3 Should we suspect that you are in breach of these Terms, we may suspend your access to the Platform while we investigate the suspected breach.

13.4 Upon expiry or termination of your Membership:

1. we will remove your access to the Platform; and
2. where we terminate your Membership as a result of your unrectified default, you also agree to pay us our reasonable additional costs directly arising from such termination, including recovery fees.

13.5 Where termination is due to our breach of these Terms, we agree to refund you for any prepaid unused Fees on a pro-rata basis.

13.6 Termination of a Membership will not affect any rights or liabilities that a Party has accrued under these Terms.

13.7 This clause will survive the termination or expiry of your Membership.

14. Confidentiality

14.1 Each Receiving Party agrees:

1. not to disclose the Confidential Information of the Disclosing Party to any third party;
2. to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
3. 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.

14.2 The obligations in this clause do not apply to Confidential Information that:

1. is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
2. is authorised to be disclosed by the Disclosing Party;
3. is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
4. must be disclosed by Law or by a regulatory authority, including under subpoena.

14.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause. 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.

14.4 This clause will survive the termination or expiry of this Agreement.

15. General

15.1 Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part 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).

15.2 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.

15.3 Disputes: A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

15.4 Entire Terms: Subject to your Consumer Law Rights, these Terms contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

15.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided the Party seeking to rely on the benefit of this clause, as soon as reasonably practical, notifies the other party in writing about the Force Majeure Event and the extent to which it is unable to perform its obligations and uses reasonable endeavours to minimize the duration and adverse consequences of the Force Majeure Event.

15.6 Governing law: These Terms are governed by the laws of New South Wales. 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.

15.7 Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

15.8 Privacy: Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.

15.9 Publicity: With your prior written consent, you agree that we may advertise or publicise the fact that you are a user of our Platform, including on our website or in our promotional material.

15.10 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.

15.11 Third party sites: The Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a third party website linked from the Platform, such third party provides the goods and services to you, not us.

16. Definitions

16.1 Confidential Information includes information which:

1. is disclosed to the Receiving Party in connection with this Agreement at any time;
2. is prepared or produced under or in connection with this Agreement at any time;
3. relates to the Disclosing Party's business, assets or affairs; or
4. relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

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.

16.2 Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise; any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into these Terms as the probable results of the relevant breach, act or omission, and/or, any 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. The Parties agree that your obligation to pay us the Fee under these Terms will not constitute “Consequential Loss”.

16.3 Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

16.4 Force Majeure Event means any event or circumstance which is beyond a Party's reasonable control.

16.5 Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.

16.6 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.

16.7 Receiving Party means the party receiving Confidential Information from the Disclosing Party.