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Thank you for using Traffio’s products and services (“Services”).
You indicate your agreement to these Terms by executing a document that references them, or by using the Services.
If you will be using the Services on behalf of an organisation, you agree to these Terms on behalf of that organisation and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that organisation.
1.1 Fees and Payments
1.1.1 Fees for Services: You agree to pay to Traffio any fees for each Service you purchase or use in accordance with the pricing and payment terms presented to you for that Service. Fees paid by you are non-refundable, except as provided in these Terms or when required by law. Invoices must be paid according to the payment terms. If payment is not made, we may suspend access to the Service and your content.
1.1.2 Subscriptions Some of our Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, monthly basis (each period is called a “billing cycle”). Your Subscription will automatically renew at the end of each billing cycle unless you cancel in writing
1.1.3 Taxes Unless otherwise stated, you are responsible for any taxes (other than Traffio’s income tax) or duties associated with the sale of the Services (collectively, “Taxes”). You will pay Traffio for the Services without any reduction for Taxes. Unless a price is described as GST inclusive, you must pay us the GST amount.
1.1.4 Price Changes
Traffio may change the fees charged for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then current billing cycle of your Subscription. Traffio will provide you with at least 3 months prior written notice of any change in fees.
1.1.5 SMS Fees
Unless otherwise stated, charges for SMS messages sent by you will be billed in arrears on a monthly basis. Failure to pay these fees when due may result in the applicable Service being limited, suspended, or terminated (subject to applicable legal requirements)
Traffio will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including our privacy policies). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by Traffio); (b) was lawfully known to Traffio before receiving it from you; (c) is received by Traffio from a third party without knowledge of breach of any obligation owed to you; or (d) was independently developed by Traffio without reference to your Content.
1.3 Your Content
1.3.1 You Retain Ownership of Your Content. You retain ownership of all of your intellectual property rights in your Content. Traffio does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
1.3.2 You May Request Access to Your Content. At any time you may reasonably request to be provided with a copy of your content, which Traffio will provide as soon as reasonably practicable, provided we are not otherwise prevented from doing so on legal grounds, and provided that you have paid all outstanding invoices.
1.3.3 In relation to all Content you share with us in connection with the Services, you confirm: (a) you own or have the right to post the Content; and (b) such Content or its use by us, and where applicable a Linked Contact, does not violate these Terms, applicable law or the intellectual property rights or other rights of any person.
1.3.4 Customer Portal and Linked Contacts.
i. Our Services may include functionality to link your account with that of a third party, such as one of your suppliers (a “Linked Contact”). You agree to us providing your Content (including all personal information you share with us via the Services) to your Linked Contacts and confirm that you hold all necessary consents, licences and permissions in connection with the same.
ii. If in the course of using the Services, you are provided with content belonging or relating to any third party, such as personal data belonging to a Linked Contact (“Third Party Content”); you agree to: (a) process such Third Party Content solely in connection with your use of the Services and in compliance with these Terms; (b) in compliance with applicable laws; (c) not to transfer such Third Party Content to anyone else; and (d) on request immediately to permanently delete all copies of such Third Party Content.
iii. If we provide you with functionality to invite third parties to create a Linked account (“Invitation Function”), you agree to use this functionality solely in relation to legitimate business contacts and only in connection with your authorised receipt of the Services. Any abuse of the Invitation Function shall constitute a material breach of these Terms.
iv. You shall notify us promptly in writing if you become aware of any misuse of our Services by any Linked Contact.
1.4 Traffio IP
The Services, our brand and the content we include in our Services is our property or that of our licensors. Subject to your compliance with these Terms, we grant you a personal, limited, non-exclusive, non-transferable, revocable licence to use the Services. You agree that you will not redistribute or transfer any aspect of the Services. Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content).
1.5 User Content
1.5.1 Content Review. You acknowledge that, in order to ensure compliance with legal obligations, Traffio may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates these Terms. However, Traffio otherwise has no obligation to monitor or review any content submitted to the Services.
1.5.2 Third Party Resources. Traffio may publish links in its Services to websites maintained by third parties. Traffio does not represent that it has reviewed such third-party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.
1.6 Account Management
1.6.1 Keep Your Password Secure. If you have been issued an account by Traffio in connection with your use of the Services, the account is personal to you and you are responsible for safeguarding your password and any other credentials used to access that account. You must not share your account information with anyone else. You, and not Traffio, are responsible for any activity occurring in your account, whether or not you authorised that activity. If you become aware of any unauthorised access to your account, you should notify Traffio immediately.
1.6.2 Keep Your Details Accurate. Traffio occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.
1.7 Trial Accounts
1.7.1 Terms during the trial period. If you are provided with a trial account (i.e. a functional account for a temporary time period at no charge), these Terms apply for the duration of your trial.
1.8 Acceptable Uses
1.8.1 Legal Compliance. You must use the Services in compliance with, and only as permitted by, applicable law.
1.8.2 Your Responsibilities. You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Services:
i. You may not misuse our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide.
ii. You may not circumvent or attempt to circumvent any limitations that Traffio imposes on your account.
iii. Unless authorised by Traffio in writing, you may not probe, scan, or test the vulnerability of any Traffio system or network.
iv. Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Services, or attempt to do so.
v. You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services.
vi. You may not engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. Traffio will endeavour to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to Traffio.
vii. You may not use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity.
viii. Unless authorised by Traffio in writing, you may not resell the Services.
1.8.3 If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless Traffio has agreed with you otherwise. You may not use the Services in a way that would subject Traffio to those industry-specific regulations without obtaining Traffio’s prior written agreement. For example, you may not use the Services to collect, protect, or otherwise handle “protected health information” without entering into a separate business associate agreement with Traffio that permits you to do so.
1.9 Suspension and Termination of Services
1.9.1 By You. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund for any period of time you did not use in that billing cycle unless you are terminating the Agreement for our breach and have so notified us in writing, or unless a refund is required by law.
1.9.2 By Traffio. Traffio may limit, suspend, or stop providing the Services to you if you fail to comply with these Terms (such as a failure to pay fees when due), you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services or we cease to provide the Services or a material aspect of them. Traffio may also suspend providing the Services to you if we are investigating suspected misconduct by you. We also have the right to terminate a Service at any time without cause, but will use reasonable endeavours to give you at least one month’s notice if that is the case. If we suspend or terminate the Services you receive, we will endeavour to give you advance notice and an opportunity to export a copy of your Content from that Service. Traffio has no obligation to retain your Content upon termination of the applicable Service.
1.10 Changes and Updates
1.10.1 Changes to Terms. Traffio may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. Any changes will be posted to https://www.traffio.com.au/terms-and-conditions. Traffio may also provide notification of changes via email. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require Traffio to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
1.10.2 Changes to Services. Traffio constantly changes and improves the Services. Traffio may add, alter, or remove functionality from a Service at any time without prior notice. Traffio may remove content from the Services at any time in our sole discretion, although we will endeavour to notify you before we do that if it materially impacts you and if practicable under the circumstances.
1.11 Disclaimers and Limitations of Liability
1.11.1 Disclaimers. While it is in Traffio’s interest to provide you with a great experience when using the Services (and we love to please our customers), there are certain things we do not promise about them. We try to keep our online Services up and functional, but they may be unavailable or not operate properly from time to time for various reasons. We do not promise that our Services will always be online or working properly. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND TRAFFIO DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OR ANY REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.
1.11.2 Exclusion of Certain Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRAFFIO, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR ANY DAMAGES (WHETHER DIRECT OR INDIRECT) FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF TRAFFIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE For example, consequential loss includes, if as a result of the services not functioning correctly, you lose business or do not receive a payment from one of your customers.
1.11.3 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF TRAFFIO, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE GREATER OF: (A) THE AMOUNTS PAID BY YOU TO TRAFFIO FOR USE OF THE SERVICES AT ISSUE DURING THE 3 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) AU$25.00.
1.11.4 To the extent permitted by law, you will indemnify and hold harmless Traffio and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and legal fees on an indemnity basis) arising out of or related to: (a) your use of the Services or a breach of these Terms; (b) your Content; and (c) your violation of any law or rights of any third party.
1.12 Contracting Entity
1.12.1 Who you are contracting with. Unless otherwise specified in relation to a particular Service, the Services are provided by, and you are contracting with, Traff.io Pty Ltd ACN 169 500 154.
1.12.2 Traff.io Pty Ltd. For any Service provided by Traff.io Pty Ltd or its assignee, the following provisions will apply to any terms governing that Service:
1.12.3 Contracting Entity. References to “Traffio”, “we”, “us”, and “our” are references to Traff.io Pty Ltd., located at Level 11, 160 Queen St, Melbourne, VIC, Australia.
1.12.4 Governing Law. Those terms are governed by the laws of the State of Victoria (without regard to its conflict of laws provisions).
1.12.5 Jurisdiction. Each party submits to the exclusive jurisdiction of the Supreme Court of Victoria
1.13 Other Terms
1.13.1 Assignment. You may not assign these Terms without Traffio’s prior written consent, which may be withheld in Traffio’s sole discretion. Traffio may assign or subcontract its responsibilities under these Terms in whole or party without notice to you.
1.13.2 Entire Agreement. These Terms (including the Additional Terms) constitute the entire agreement between you and Traffio, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.
1.13.3 Independent Contractors. The relationship between you and Traffio is that of independent contractors, and not legal partners, employees, or agents of each other.
1.13.4 Interpretation. The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.
1.13.5 No Waiver. A party’s failure or delay to enforce a provision under
these Terms is not a waiver of its right to do so later.
1.13.6 Severability. If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
1.13.7 Third Party Beneficiaries. There are no third-party beneficiaries to these Terms.
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