Typsy Terms of Service 

TYPSY GROUP PTY LTD ABN 68 601 767 328 


1.1           Typsy is an online vocational training platform for the hospitality industry.

1.2           In these Terms of Service, the “Important Terms” deal with using Typsy, and the “General Conditions” set out the legal basis on which Typsy is provided. You must accept these terms to use Typsy.

1.3           Typsy treats the confidentiality of our User’s information seriously and handles all Personal Information in accordance with Australian privacy laws and the GDPR, as set out in the Typsy Privacy Policy. Simply, we protect our Users’ information, not exploit it.

 

 

IMPORTANT TERMS

A              KEY TERMS

A.1          The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a)            Account means a registered account within Typsy and includes both Customer and Employee accounts.

(b)            Agreement means the agreement formed in accordance with these Terms of Service between the Company and the User.

(c)            Application means the:

i                 Web application accessible from http://www.typsy.com; and/or

ii               Typsy mobile application available from the Apple® App Store®, Google Play® and other mobile application marketplaces.

(d)            Certificate means a certificate awarded to an Employee who successfully completes a Course in full.

(e)            Company means Typsy Group Pty Ltd ABN 68 601 767 328.

(f)            Course means a short vocational course provided via Typsy comprising of Lessons, an assessment and supporting material, and any other verification of an Employee’s aptitude for a skill subject to the Course.

(g)            Credit means any credit points awarded within Typsy to an Employee for successfully viewing a Lesson.

(h)            Custom Content means any video content that is created and uploaded directly by a Customer via Typsy.

(i)            Employee means a person an employee of the Customer and/or any user authorized to access Typsy by the Customer.

(j)            Fee means any fees payable to the Company for access to or use of Typsy.

(k)            Group means a group of Employees associated with each other by a Customer within Typsy.

(l)            Lesson means a short instructional video provided via Typsy to develop particular skills.

(m)          Mentor Session means a short educational video on a particular topic provided via Typsy.

(n)            Account Admin means the person at each venue that will be the only person that can upload Custom Content to the Typsy platform.

(o)            Personal Information means information that identifies an individual, or makes an individual who is reasonably identifiable, whether the information is true or not.

(p)            Privacy Policy means the Company’s privacy policy as updated from time to time, accessible from here: www.typsy.com/privacy.

(q)            Schedule means a schedule of Courses, Lessons, Mentor Sessions, and/or Custom Content selected by the Customer to be completed by an Employee.

(r)            Site means the website found at http://www.typsy.com, app.typsy.com, or such other URL used by the Company from time to time.

(s)            Third-Party Services means any of the Customer’s third-party service account connected to and/or integrated with Typsy.

(t)            Typsy means the Company’s suite of tools, applications, and services, known together as “Typsy”, licensed to the Customer under this Agreement.

(u)            Typsy Content means either or all of Courses, Lessons, Mentor Sessions, and Custom Content.

(v)            Typsy Proposal means a proposal provided to a Customer by the Company for use of Typsy, which may include (without limitation) a quote as to pricing.

(w)           User means either or both of a Customer and an Employee, as the use of the term in its context implies.

B              AGREEMENT

B.1          This Agreement governs the use of Typsy by the Customer and its Employees. This Agreement has specific terms of use (in addition to the General Conditions) that apply to:

(a)            Employees (Item E); and

(b)            Customers (Item F).

B.2          The license granted under this Agreement shall be ongoing until terminated in accordance with the terms of this Agreement.

B.3          The Customer agrees:

(a)            To use Typsy in accordance with the terms of this Agreement; and

(b)            It is responsible for the use of Typsy by its Employees (including the establishment of, and access to, an Admin Account); Admin Account.

B.4          The Customer agrees:

(a)            That it is responsible for the conduct of each Employee it authorizes, whom each must enter into and comply with this Agreement.

(b)            To pay the Fees in accordance with the pricing on the Site from time-to-time, or as otherwise agreed with the Company (including within a Typsy Proposal), as and when they fall due, and for each Employee it authorizes on its account.

B.5          The Company represents and warrants:

(a)            it will provide Typsy in a manner consistent with general industry standards reasonably applicable to the provision thereof;

(b)            Typsy shall perform materially in accordance with Company’s documentation for Typsy; and

(c)            the functionality of Typsy will not be materially decreased during the term of this Agreement.

C              USING TYPSY

C.1          To access Typsy, each User must have a registered account with Typsy (either as a Customer or as an Employee, as the case may be).

C.2          The Company provides instructional content on the Site and within Typsy to assist Users with Typsy. This documentation shall be updated from time to time. Typsy also provides user support services.

C.3          The Company does not offer qualifications of any type in relation to a User’s use of Typsy. The Company is not a registered provider of tertiary or higher education services, nor does it represent itself as such.

C.4          Employee Accounts

(a)            For clarity, this Agreement supersedes any prevailing Terms of Service in respect of the use of Typsy by an Employee, and any Terms of Service do not apply in respect of Employee’s use of Typsy as an Employee (notwithstanding that if the Employee uses Typsy in their own right the Terms of Service will apply in respect of that individual use).

(b)            An Employee account may be used by the Employee to complete such Courses and Schedules as:

i                A Customer has granted the Employee access to.

(c)            An Employee may obtain an Employee account by either:

i                Registering as an Employee themselves; or

ii               A Customer inviting the User to register an Employee account linked to that Customer.

(d)            Notwithstanding the permissions granted by a Customer and the payment of Fees, once an Employee has claimed ownership of an account created for them by a Customer, the Employee shall be entitled to maintain their account once their association with a Customer has ceased and update their profile details to remove their association with the Customer as appropriate.

(e)            An Employee account that is not associated with a Customer, shall in default be a free account, unless the Employee:

i                Upgrades their subscription to become a paying customer of Typsy; or

ii               Another Customer connects with the Employee’s account.

(f)            An Employee account may be used by the Employee to complete such Courses and Schedules as:

i                The Employee has subscribed for; or

ii               A Customer has granted the Employee access to.

(g)            The Customer shall be solely responsible for the payment of any remuneration to the Employee for participating in any Courses and/or Schedules.

(h)            An Employee can hold multiple Employee accounts linked to different Customers.

(i)            An Employee can add themselves to an Admin Account, subject to the Customer’s acceptance. For clarity, an invitation from the Customer is not required.

C.5          Customer Accounts

C.6          An Admin Account may allow a Customer to:

(a)            Create Employee accounts;

(b)            Add registered Employees to the Customer’s Account;

(c)            Create and manage Schedules;

(d)            Create and manage Groups;

(e)            Upload and archive or delete Custom Content to the Admin Account; provided, however, that such rights will be limited to the Account Admin;

(f)            View Credit and Typsy Content records of Employees connected to the Customer;

(g)            Grant admin privileges over the Customer’s Account to other Users, including with regard to specific Employees or Groups.

C.7          Credits and Certificates

(a)            An Employee shall be provided Credit for successfully completing a Lesson.

(b)            An Employee shall be awarded a Certificate for successfully completing a Course.

(c)            A Certificate will not be awarded against the Employee’s account until the Employee has successfully completed an assessment of the Employee’s skills relative to a Course. Such assessment shall only become available when the Employee views each lesson under the relevant Course and may include successfully completing a quiz or such other assessment method as may be conducted via Typsy from time to time.

(d)            Unless agreed otherwise by the Company, the Company shall not be responsible to any User in relation to Credits or Certificates, including with regard to (without limitation):

i                The granting of any qualification;

ii               The Employee’s relationship (including employment) with a Customer; or

iii              Any other use an Employee intends to make of Credits or Certificates.

C.8          Application

(a)            The Application is accessible to registered Users via login from the Site. To use Typsy, it is necessary that the User has access to the Application via the internet or mobile application.

(b)            The Application:

i                Contains the Typsy Content made available by the Company;

ii               Contains the Personal Information that each User enters into the Application; and

iii              Provides the Customer with account management.

C.9          Dependencies

The Customer agrees and acknowledges that:

(a)            Typsy has third-party dependencies which may affect its availability, including without limitation:

i                Enterprise Resource Planning Services;

ii               Practice Management software;

iii              Infrastructure providers;

iv              Email service providers; and

(b)            The Company has no means of controlling the availability of such dependencies, although each of those services has a robust operating standard suitable for commercial dependency.

C.10        Support

(a)            The Company provides user support for Typsy via a dedicated support email.

(b)            The Company shall endeavor to respond to all support requests within 1 Business Day.

(c)            The Company reserves the right to require the payment of reasonable Fees for non-standard support requests prior to the provision of such support.

D              PAYING FOR TYPSY

(a)            The Company shall provide an invoice to the Customer for all fees payable under this Agreement. 

(b)            The customer shall pay undisputed invoices within thirty (30) days of receipt of such invoices.   

D.2          Fees

(a)            Pricing shall be in accordance with the prices agreed in Appendix 2 - Pricing, or as agreed between the Company and the Customer in a Typsy Proposal, or as otherwise agreed between the User and the Company.

(b)            Notwithstanding (a) above, the primary Fee to use Typsy shall be the Subscription Fee, which is payable annually in advance as elected by the User (after any free trial period has expired).

(c)            The Subscription Fee applies in accordance with the account type and a number of user licenses subscribed for by the User, in accordance with the features and pricing described on the site, or otherwise agreed with the Company.

(d)            Subject to the Company being notified otherwise or the valid termination of this Agreement prior to the expiry of the User’s billing cycle, the User agrees to the automatic successive renewal of its Account for the same duration and on the same terms, and to be charged the Subscription Fee accordingly.

(e)            Notwithstanding any agreement to the contrary, the User responsible for payment of Fees agrees to provide a credit card through Typsy, which will be charged in accordance with the relevant User’s subscription. Without the provision of a valid credit card or other agreed payment method, the Customer agrees that it has no right to access Typsy.

D.3          The company agrees to fix its pricing for a period of 36 months from the date of the agreement Currency.

Unless stated otherwise, all Fees are quoted in US dollars, however, transactions may be processed in an equivalent foreign currency (such as Australian dollars, British pounds, or Euros or Swiss Francs).

D.4          Sales Tax

For Customers in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed exclusive of GST, or any other sales taxes relevant to the User. The Company will provide the Customer with a Tax Invoice for any payments.

D.5          Refunds

No refunds are offered on the Subscription Fee other than as required by law or as agreed at the absolute discretion of the Company. For clarity, this applies to any cancellation of a subscription before the end of the agreement term. 

D.6          Late Payment

(a)            If the Customer does not pay the full Fees as required, the Company may suspend all User access to Typsy for that account.

(b)            If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may terminate the Customer’s account in Typsy without notice and end this Agreement.

(c)            The User agrees that the Company shall not be responsible or liable in any way for:

i                Interruptions to the availability of Typsy in the event of (a);

ii               Loss of Personal Information in the event of (b).

D.7          Invoicing and payments

(a)            Should the Customer dispute an item on the invoice, the Customer must notify the Company of the disputed item within 5 Business Days of the date of the Tax Invoice.  The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.

(b)            The Company reserves the right to charge any User interest at the rate of 1.5% per month on any overdue Tax Invoices, or in default, the maximum rate of penalty interest prescribed under law.

E              EMPLOYEE TERMS

E.1           The Customer agrees and accepts that:

(a)            The Employee must use Typsy in accordance with the terms of this Agreement even if their account was set up by a Customer;

(b)            The Customer is responsible for the Employee use of Typsy in accordance with this Agreement;

(c)            It is the Employee’s responsibility to follow the instructions relative to each Course and correctly perform any activities instructed in the Course; and

(d)            The Company shall not be liable for any claim based on injury, illness, death, or damage to property that results from an Employee’s use of Typsy;

(e)            The Customer indemnifies Typsy against all costs, claims damages, and expenses for any injury or damage caused to the person or property of a Third-Party as a result of the Employee’s use of Typsy;

(f)            Typsy may send the Employee emails, text messages, push notifications, and other alerts on behalf of the Company or Customer connected with the Employee’s account and Typsy services (subject to the Employee opting out).

(g)            Any consent made by an Employee through Typsy is valid and binding unless and until revoked by the Employee. The Company and a Customer may rely on a consent made through Typsy without any need to further verify the veracity of that consent.

F               CUSTOMER TERMS

F.1           The Customer agrees and warrants that:

(a)            To the extent permitted by law, the Customer indemnifies and will hold Typsy harmless against all costs, claims damages, and expenses for:

i               Any penalty imposed upon the Customer;

ii              Any injury, illness, or death caused to an Employee or Third-Party;

iii             Any damage to the property of any Employee, Nominee or Third-Party;

iv              Any claim of infringement of intellectual property rights made by a Third-Party;

v               Any claim with respect to employee entitlements made by an Employee linked to the Customer’s Account;

vi              Any information that the Customer provided to the Company is found to be misleading;

vii            Any loss of content or interruption to the availability of Typsy in event of clause 5.2;

viii           Any claim of breach of confidentiality by any Third-Party;

as a result of the Customer’s use of Typsy;

(b)            It shall not disclose any information about an Employee to any person or party other than as authorized by the Employee;

(c)            All information supplied to Typsy about an Employee on their behalf is provided with that Employee’s consent;

(d)            It shall ensure all Personal Information it has access to through its use of Typsy is kept and used in accordance with applicable privacy laws in the jurisdiction. It must not provide Personal Information to the Company or create an Employee account on behalf of any person unless the Customer remains compliant with all privacy laws in doing so;

(e)            It shall only use Typsy for its intended purpose as set out in this Agreement; and

(f)            It shall comply with all anti-SPAM legislation in its jurisdiction.

G              SPECIAL CONDITIONS

G.1          The parties may agree to any Special Conditions to this Agreement in writing, which shall include any terms agreed in a Typsy Proposal. Where the parties make such Special Conditions, those Special Conditions shall prevail over any inconsistency with any other provisions of this Agreement.


 

GENERAL CONDITIONS

1               INTERPRETATION

1.1           The following definitions apply in this document:

(a)            ABN means Australian Business Number.

(b)            ACN means Australian Company Number.

(c)            Business Day means a day (other than a Saturday, Sunday, or public holiday) on which banks are open for general banking business in Melbourne, Australia.

(d)            Commencement Date means the date set out in this Agreement.

(e)            Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present, or future business, operations, or affairs of either party, including, without limitation:

i                all technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;

ii               all business and marketing plans and projections, details of agreements and arrangements with third-parties, and User and supplier information and lists;

iii              all financial information, pricing schedules and structures, product margins, remuneration details, and investment outlays;

iv              all information concerning any employee, customer, contractor, supplier, or agent of the relevant party;

v               the party's policies and procedures;

vi              all Personal Information; and

vii            all information contained in this document,

but excludes information that the other party can establish:

viii           Is known by or is in the other party's possession or control other than through a breach of this document and is not subject to any obligation of confidence; or

ix              Is in the public domain other than by a breach of this document or any obligations of confidence.

(f)             Corporations Act means the Corporations Act 2001 (Cth).

(g)            Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure.  It includes each of the following, to the extent it is beyond the reasonable control of that party:

i                Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;

ii               Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;

iii              The effect of any change in applicable laws, orders, rules, or regulations of any government or other competent authority; and

iv              Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.

(h)            GDPR means the European Union’s General Data Protection Regulation.

(i)             General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.

(j)             GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(k)            Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.

(l)             Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names, and other forms of intellectual property;

(m)          Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.

(n)            Moral Rights means:

i                Moral rights pursuant to the Copyright Act 1968 (Cth);

ii               Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).

(o)            Privacy Act means the Privacy Act 1989 (Cth).

(p)            Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.

(q)            Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

1.2           Headings are only for convenience and do not affect interpretation.  The following rules apply unless the context requires otherwise:

(a)            The singular includes the plural and the opposite also applies.

(a)            If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

(b)            A reference to a clause refers to clauses in this Agreement.

(c)            A reference to legislation is to that legislation as amended, re-enacted, or replaced, and includes any subordinate legislation issued under it.

(d)            Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.

(e)            A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).

(f)            A reference to a person, corporation, trust, partnership, unincorporated body, or other entity includes any of them.

(g)            A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes, or object codes, technology, or trade secrets.

2               APPLICATION OF THIS AGREEMENT

2.1           This Agreement applies to the use of and access to Typsy.

2.2           Where the Customer does not accept or can no longer comply with the terms and conditions of this Agreement, the Customer and any User must immediately cease using Typsy.

2.3           This Agreement may be updated by the Company at its absolute discretion from time to time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of Typsy at the commencement of the User’s next billing period.

3               APPLICATION

3.1           The Customer agrees and accepts that Typsy is:

(a)            Hosted by the Company using a secure third-party hosting service and shall only be installed, accessed, and maintained by the Company;

(b)            Accessed by the User using the internet or other connection to the servers hosting the Typsy and is not available ‘locally’ from the User’s systems; and

(c)            Managed and supported exclusively by the Company from the Company’s third-party hosting service and that no ‘back-end’ access to Typsy is available to the User unless expressly agreed in writing.

3.2           As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Typsy.

3.3           The Company shall not exercise its rights under clause 3.2 in a manner that would intentionally cause the User to lose access to Personal Information or fundamentally decrease the utility of Typsy to the User, other than in accordance with the terms of this Agreement.

4               LICENSING

4.1           By accepting the terms and conditions of this Agreement, the Customer and its Users are granted a limited, non-exclusive, and revocable license to access and use Typsy for the duration of this Agreement, in accordance with the terms and conditions of this Agreement. The terms of the license will depend on the account type of the User.

4.2           Employee Licence

(a)            The license granted to an Employee shall only permit access and use of Typsy for that particular individual and does not permit the Employee to authorize additional users of Typsy.

4.3           Customer Licence

(a)            The Customer agrees to be bound by the terms of the license agreed between the Customer and the Company in writing from time-to-time (including, and especially, in a Typsy Proposal), which may specify with the following terms with respect to the license (without limitation):

i                A fixed-term;

ii               A defined territory;

iii              Included venues and authorized users per venue; and

iv              The notice period required by the parties to terminate this Agreement.

4.4           The Company may revoke or suspend the User’s license(s), acting reasonably, for any reason it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users.  

4.5           The Customer may not assign, transfer, sublicense or otherwise create an interest in this Agreement without the written consent of the Company.

5               USE

5.1           The Customer agrees that it shall only use Typsy for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, offensive, abusive, or in a way that is deemed unreasonable by the Company in its reasonable discretion, which shall include any Custom Content and communications sent via the Site (such as comments and chat rooms).

5.2           In the event of a breach of clause 5.1, the Company may upon advance notice to Customer in its reasonable discretion elect to remove the infringing content, suspend, or terminate accessibility to Typsy or otherwise exercise its legal rights.

6               AUTHORISED USERS

6.1           The Customer may add Employees under their Admin Account to access Typsy in its absolute discretion. The Customer agrees that additional Fees may be payable for each additional user it authorizes and acknowledges that any users under their account are free to register a separate account with Typsy.

6.2           The Customer acknowledges that they are solely responsible for managing authorized users under their Account, and for all conduct and activities under their Account by any authorized users.

6.3           The Company accepts no liability for access to Personal Information by users authorized by the User or using login details of users authorized by the Customer.

6.4           The User is solely responsible for the security of its username and password for access to Typsy.

6.5           The User is responsible for ensuring that users comply with this Agreement in full and are liable for any breach of them.

7               CUSTOMER DATA

7.1           Other than as agreed under this Agreement or elsewhere in writing by the Parties, the Company obtains no right, title, or interest in Personal Information.

7.2           The Company accepts no liability for the content of Personal Information and/or Custom Content.

7.3           The User is responsible for the accuracy, quality, and legality of Personal Information and Custom Content and the User’s acquisition of it, and the users that access and/or use Personal Information and/or Custom Content.

7.4           The Company shall only access, use, modify or otherwise deal with Personal Information in accordance with the terms of this Agreement and the Privacy Policy, except where required by compulsion of law or upon the User’s authority (such as to provide support for Typsy).

7.5           The Company shall comply with Attachment 1 with respect to the Organization Data.

8               PRIVACY

8.1           The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act and the GDPR for data that it collects about the User and other customers.

8.2           The Privacy Policy only relates to how the Company handles Personal Information and does not apply to how the User handles Personal Information. The User is free to handle Personal Information as they wish and the Company shall not be responsible for the User’s use of Personal Information in any circumstances.

8.3           Except as set forth herein, the Company makes no warranty as to the suitability of Typsy in regards to the User’s privacy obligations at law or contract, and it is the User’s responsibility to determine whether Typsy is appropriate for the User’s circumstances.

8.4           Users are able to access third-party training through Typsy.  Where the user accesses this training and completes a “badge” they consent to their personal profile data (including name and profile link) to be passed to the third-party.  The third-party is considered to have a legitimate interest in the data of the user.

9               DATA

9.1           Security.  The Company takes the security of Typsy and the privacy of its Users very seriously.  The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.

9.2           Transmission.  The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards.  It is up to the Customer to ensure that any transmission standards meet the Customer’s operating and legal requirements.

9.3           Storage.  The Company may limit the amount of data that the User stores in Typsy and shall advise the User of such.  Data that is stored with the Company shall be stored according to accepted industry standards.

9.4           Backup.  The Company shall perform backups of its entire systems in a reasonable manner at such times and intervals as is reasonable for its business purposes.  The Company does not warrant that it is able to backup or recover specific Personal Information from any period of time unless so stated in writing by the Company.

10             ACCESS

10.1         Application.  The Company shall provide access to the Typsy application and content.
to users in any geography (including China).

11             INTELLECTUAL PROPERTY

11.1         Trademarks.  The Company has moral & registered rights in its trademarks and the Customer shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.

11.2         Proprietary Information.  Typsy may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the Customer agrees that such is protected by copyright, trademarks, patents, proprietary rights, and other laws, both domestically and internationally.   The Customer warrants that it shall not intentionally infringe on any third-party rights through the use of Typsy.

11.3         Application.  The Customer warrants that by using Typsy the Customer will not:

(a)            Copy Typsy or the services that it provides for the Customer’s own commercial purposes;

(b)            Download, copy and/or share Typsy Consent without the Company’s express written consent (unless it relates to Custom Content for which the Customer is the author); and

(c)            Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Typsy, or any documentation associated with it.

11.4         Content

(a)            All content (with the exception of Personal Information and Custom Content) remains the Intellectual Property of the Company, including (without limitation) any source code, ideas, enhancements, feature requests, suggestions, or other information provided by the User or any other party with respect to Typsy.

(b)            For the avoidance of doubt:

i                The Company does own the Intellectual Property with respect to Typsy Content in accordance with clause 11.4;

ii               In the absence of a written agreement to the contrary, any Custom Content developed by Typsy shall become the Intellectual Property of the Customer; and

iii              Where the Customer makes any Custom Content generally accessible to other Users via Typsy, then, in addition to any other terms agreed by the parties in writing, as consideration for Typsy’s hosting of that Custom Content the Customer grants the Company a limited, royalty-free, and revocable license to use that Custom Content within Typsy solely for Customers’ use and only for so long as Customer requires such use.

11.5         Infringement Indemnification. Company agrees to defend, indemnify, and hold Organization, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third-parties against Organization based on any third-party claim for infringement of its intellectual property rights based on Typsy or its use by a User. 

12             CONFIDENTIALITY

12.1         The Company agrees to keep all Personal Information in the strictest confidence, and to the extent, Personal Information is accessed and/or received by Typsy it shall be deemed as Confidential Information for the purposes of this Agreement.

12.2         Each party acknowledges and agrees that:

(a)            The Confidential Information is secret, confidential, and valuable to the disclosing party (Discloser);

(b)            To owes an obligation of confidence to the Discloser concerning the Confidential Information;

(c)            It must not disclose the Confidential Information to a third-party except as permitted in this Agreement;

(d)            All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and

(e)            Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy.  Consequently, the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers, and directors, personally) or to compel specific performance of this clause.

12.3         A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

(a)            Any actual, suspected, likely, or threatened breach by it of any obligations it has in relation to the Confidential Information.

(b)            Any actual, suspected, likely, or threatened breach by any person of any obligation in relation to the Confidential Information; or

(c)            Any actual, suspected, likely, or threatened theft, loss, damage, or unauthorized access, use, or disclosure of or to any Confidential Information.

12.4         The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation, or other action of the Discloser or of a related body corporate if there is:

(a)            Any actual, suspected, likely, or threatened breach of a term of this Agreement; or

(b)            Any theft, loss, damage, or unauthorized access, use, or disclosure of or to any Confidential Information that is or was in its possession or control.

13             LIABILITY & INDEMNITY

13.1         The Customer agrees that it and its Employees use Typsy at their own risk.

13.2         The Customer acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.

13.3         The User agrees to indemnify the Company for any loss, damage, cost, or expense that the Company may suffer or incur as a result of or in connection with the User’s use of Typsy or conduct in connection with Typsy, including any breach by the User of this Agreement. 

13.4         In no circumstances will a party be liable for any indirect, incidental, consequential, or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings, or any other similar or analogous loss arising in the performance of this Agreement, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the party knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.

13.5         To the maximum extent permitted by law, a party’s aggregate cumulative liability hereunder shall not exceed the greater of one million us dollars (us$1,000,000) and two times (2x) the amount paid by the organization for Typsy and associated services that caused such damage.  The exclusions and limitations in this section shall not limit the company’s liability under sections 11.5 or 12 and a party’s liability for damages arising from such party’s gross negligence or wilful misconduct.

13.6         Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted, or modified.  Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law.  To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:

(a)            The re-supply of services or payment of the cost of re-supply of services; or

(b)            The replacement or repair of goods or payment of the cost of replacement or repair.

14             BREACH

14.1         Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:

(a)            The nature of the breach;

(b)            The provisions of the Agreement that are alleged to have been breached;

(c)            A reasonable timeframe to remedy the breach in no less than 10 Business Days; and

(d)            The action required to remedy the breach.

14.2         Where a party issues a compliant Breach Notice in accordance with clause 14.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice.  Failure to respond in writing setting out:

(a)            The steps taken to remedy the breach; or

(b)            Why the party believes it is not in breach as put forward in the Breach Notice,

(c)            Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.

14.3         Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).

15             TERMINATION AND SUSPENSION

15.1         General Termination. Except where a different notice period is agreed in writing between the parties (including and especially in a Typsy Proposal), and subject to the provisions relating to breach of this Agreement in the General Conditions, Either party may terminate this Agreement without cause by providing the other party with no less than 30 days written notice.

15.2         Suspension for Non-Payment. The Company may suspend the Customer’s account (and the accounts of any of its authorized users) should any Fees be outstanding to the Company at any time

15.3         Termination for Breach.  Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 30 Business Days after the date of the notice.

15.4         Termination for Insolvency.  Either party may terminate this Agreement immediately by notice, if either party:

(a)            Stops or suspends or threatens to stop or suspend the payment of all or a class of its debts;

(b)            Is insolvent within the meaning of Section 95A of the Corporations Act;

(c)            Fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:

(d)            The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or

(e)            The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;

(f)            Has an administrator appointed in respect of it;

(g)            Has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;

(h)            Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise, or composition with or assignment for the benefit of its creditors or a class of them;

(i)            Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or

(j)            Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.

15.5         The Customer agrees that the Company shall not be liable in any way for any valid termination or suspension of the Customer’s access to Typsy.

15.6         Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.

15.7         The rights and obligations under the relevant provisions of clauses 6, 7, 8, 11, 12, 13, 14, 15, 16, and 18 survive termination of this Agreement.

16             DISPUTES

16.1         All disputes shall be handled in accordance with the Company’s dispute resolution policy.

16.2         Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:

(a)            Negotiation.  If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavors acting in good faith to resolve the dispute by joint discussions;

(b)            Mediation.  If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 16.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;

(c)            Court proceedings.  A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause 16.2 unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.

17             FORCE MAJEURE

17.1         If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly.  The notice must:

(a)            Specify the obligations and the extent to which it cannot perform those obligations;

(b)            Fully describe the event of Force Majeure;

(c)            Estimate the time during which the Force Majeure will continue; and

(d)            Specify the measures proposed to be adapted to remedy or abate the Force Majeure.

17.2         Following a notice of Force Majeure in accordance with clause 17.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.

17.3         The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.

17.4         The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.

17.5         The term of this Agreement will not be extended by the period of Force Majeure.

18             ELECTRONIC COMMUNICATION AND ASSIGNMENT

18.1         The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

18.2         The User can direct notices, enquiries, complaints, and so forth to the Company as set out in this Agreement.  The Company will notify the User of a change of details from time to time.

18.3         The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time to time. It is the Customer’s responsibility to update its contact details as they change.

18.4         A consent, notice, or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

18.5         Notices must be sent to a party’s most recent known contact details. All notices sent by the Company to the Customer shall be deemed delivered and effective when sent to the email address linked to the User’s Account.

18.6         The Customer may not assign or otherwise create an interest in this Agreement without the written consent of the Company.

18.7         The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Customer.

19             GENERAL

19.1         Prevalence. Each party to this Agreement agrees to the clauses in the Important Terms and the Special Conditions.  The Important Terms, any Special Conditions, and the General Conditions form a single legal agreement.  To the extent that the Important Terms or the Special Conditions are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.

19.2         Disclaimer.  Each party acknowledges that it has not relied on any representation, warranty, or statement made by any other party, other than as set out in this Agreement.

19.3         Relationship.  The relationship of the parties to this Agreement does not form a joint venture or partnership.

19.4         Waiver.  No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

19.5         Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

19.6         Governing Law.  This Agreement is governed by the laws of the state of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

19.7         Severability.  Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

END GENERAL CONDITIONS