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FLOWRiX Terms of Use

 

Nimble Technology Pty Ltd ACN 664 547 424

1. Background

Thank you for visiting our Terms of Use (Agreement), we are Nimble Technology Pty Ltd ACN 664 547 424 (Nimble, we, our, us and other similar terms). We provide an all in one commerce platform known as FLOWRiX (FLOWRiX).

This Agreement outlines the terms and conditions associated with your use of FLOWRiX . It is your obligation to ensure that you have read, understood, and agree to the most recent terms available at https://flowrix.com/terms-of-use (Website).

2. Agreement

2.1 Accepting this Agreement

By creating a Business Account or executing a Proposal provided to you by us, you agree to comply with and be legally bound by the terms and conditions of this Agreement. If you do not agree to these terms, you have no right to continue using FLOWRiX.

You must not use FLOWRiX if you are not able to form legally binding contracts or are under the age of 18. If you create a Business Account on behalf of your employer or any other entity, you represent and warrant you hold authority to enter into this Agreement on behalf of that entity and that the entity will comply with the obligations contained herein.

2.2 About this Agreement

Throughout the Agreement we use some capitalised words and phrases, like the word Agreement. These capitalised words and phrases are defined in clause 18. They aid to clarify the terms and conditions. Please feel free to email us at info@flowrix.com if you have any questions.

3. Term and Renewal

3.1 Subscription Period

This Agreement will commence when you create a Business Account (or execute a Proposal, as the case may be) and will continue for the Subscription Period or until the date of termination of this Agreement in accordance with clause 16.

3.2 Automatic Renewal

If this Agreement is not terminated in accordance with clause 16, prior to the expiry of the then current Subscription Period, this Agreement will automatically renew for a period equal to the current Subscription Period.

4. Licence to FLOWRiX

4.1 Licence

We grant you a non-transferrable, non-exclusive and revocable licence to access FLOWRiX for the Subscription Period, subject to the terms and conditions of this Agreement.

The FLOWRiX license grants you the right to make End User Accounts available to End Users. You acknowledge and agree that you are responsible for the End Users’ use of FLOWRiX and any breach of this Agreement by them.

4.2 Our Right to Suspend

We reserve the right to limit or suspend your licence to access FLOWRiX if you fail to pay the Subscription Fee, or if in our reasonable opinion, you are in breach of any of your obligations or warranties in this Agreement. Suspending your Business Account, or any End User Account, will not constitute a breach of this Agreement by us, nor will it alter your obligation to pay the Subscription Fee.

4.3 Trial Accounts

We may give you notice (Trial Notice) that all or some of FLOWRiX is being made available to you on a demonstration or trial basis (Trial Service). The trial period commences upon receipt of the Trial Notice and terminates at the time stated in the Trial Notice, or if no such date is specified, 28 days from the date of the Trial Notice (Trial Period).

Access to the Trial Service will automatically continue at the expiration of the Trial Period unless either party gives notice that the Trial Services are to conclude. We provide the Trial Services “as is” and without warranty or indemnity, to the extent permitted by law, and all other terms of this agreement otherwise apply.

You acknowledge and agree to give feedback in the form of interviews and surveys related to the Trial Services during and after the Trial Period.

5. Access, Support And Maintenance

5.1  Access

You acknowledge and agree FLOWRiX will only be accessible using the internet, by users with a valid account and will not be available "locally" from your own servers or devices.

5.2 Support And Maintenance

Support for FLOWRiX is provided in accordance with the support arrangements as set out in the Subscription Package, and may vary from time to time.

If it is necessary to interrupt your use of FLOWRiX , we will endeavour to provide you with reasonable notice (where possible) of when, and the anticipated duration for which, FLOWRiX will be unavailable.

You acknowledge access to FLOWRiX may be changed, interrupted or discontinued for many reasons, some of which are beyond our control and during routine maintenance there may be updates to FLOWRiX which may change the interface and manner in which it functions.

You agree that we are not liable for any loss, foreseeable or not, arising from any interruption to access, planned or not, and any such interruptions will not constitute a breach by us of these terms.

6. Your Use of FLOWRiX

6.1 Registering a Business Account

In order to use FLOWRiX , you are required to provide us with Personal Information and create a Business Account. Further information may be required should you wish to make End User Accounts available to your customers, suppliers and staff.

You agree to provide any information reasonably requested by us for the purpose of setting up your Business Account and any End User Account. You warrant that all of the information you provide to us is accurate and complete in all respects, you will inform us by updating your Account details whenever any such information changes and you will not provide false or misleading information.

We reserve the right to reject any new Account in our absolute discretion.

6.2 Account Security

Maintaining the security of your Accounts is important to ensuring your data, and that data which we process on your behalf, remains safe. We work hard to keep FLOWRiX secure and we ask you to contribute. You agree to ensure the security credentials associated with your Accounts remain safe, to change them regularly and make used of any multi factor authentication made available.

You agree not to request or allow another person to create a Business Account on your behalf, for your use, or for your benefit, except that an authorised employee or agent may create a Business Account on behalf of your business.

You are responsible for the activities undertaken using your Accounts which occur via FLOWRiX , whether such activities are authorised by you or not.

You are solely responsible for:

  1. issuing End User Accounts to your staff, suppliers and customers as required by you;
  2. disabling, changing the security credentials or deleting your End User Accounts on FLOWRiX as required to ensure the security of your implementation of FLOWRiX ; and
  3. setting the permissions associated with your End User Accounts.

You acknowledge and agree we are not liable for any failure by you or your personnel to adequately secure your implementation of FLOWRiX .

6.3 Lawful Use of FLOWRiX

You undertake not to upload, store or access any data on FLOWRiX if such access or storage would infringe a person’s Intellectual Property right, breach any Privacy Law or breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance in Australia or the jurisdiction in which you operate).

6.4 Conduct Which is Expressly Prohibited

You may only acquire and make use of FLOWRiX for the sole purpose of meeting your internal business needs. You must not use or include any part of FLOWRiX in any service bureau or fee generating service offered to third parties.

You must not:

  1. in any way tamper with, hinder or modify FLOWRiX ;
  2. use FLOWRiX directly or indirectly for any activity or transmit any information or material unlawfully, or which is obscene, indecent, uses offensive language, defames, abuses, harasses, stalks, threatens, menaces or offends any person;
  3. knowingly transmit any viruses or other disabling features to or via FLOWRiX;
  4. use any screen capture, data mining, robot, crawler or similar data gathering, reproduction or data extraction tools to collect information from FLOWRiX or our Website for any purpose including the sending of unsolicited emails, soliciting our or another user’s clients or duplicating the content of FLOWRiX ;
  5. intentionally disable or circumvent any protection or disabling mechanism of FLOWRiX;
  6. install or store any software applications, code or scripts on or through FLOWRiX;
  7. use FLOWRiX in any way which could be reasonably expected to interfere with or damage our systems, any other operator's systems, or another user's enjoyment of FLOWRiX;
  8. use FLOWRiX in connection with a breach of any law in Australia or the jurisdiction in which you operate; or
  9. attempt, facilitate or assist another person to do any of the above acts.

6.5 Third Party Integrations

FLOWRiX may provide integration points with and/or access to Third Party Services, such as Whats App, Twilio, Send Grid, Office365, Xero the Google suite of products and others. Use of these Third Party Services may be subject to Third Party Service Terms issued by those providers.

Where you integrate with FLOWRiX using your own Third Party Service account, you agree to comply with those Third Party Service Terms.

Where we make Third Party Services available to you via our corporate account with that provider, you warrant that you will not do anything which will cause us to be in breach of the agreement we have with that provider.

Use of Third Party Services may have Usage Restrictions as set out on our Website or in the details of those Subscription Packages.

We reserve the right to suspend or terminate access to Third Party Services if we no longer have an agreement with that provider, the provider ceases to integrate with FLOWRiX , the provider materially changes the nature or cost of those services or if you breach, or through your actions cause us to breach those Third Party Service Terms.

You acknowledge and agree that:

  1. suspension or termination of Third Party Services as set out herein does not constitute a breach of this Agreement by us;
  2. we are not liable for any failure of Third Party Services; and
  3. where you make use of Third Party Service via our corporate agreement with that provider, you will not be entitled to access the providers services other than via our support centre nor will you be able to transfer your data or port any number associated with that account. If you wish to retain control of an account with those Third Party Service providers you must set up your own account and integrate with FLOWRiX via the configuration options made available to you.

7. App Marketplace Providers

FLOWRiX mobile applications may be made available from Google Play and the Apple App Store (App Marketplace Providers). This clause 7 applies solely to the FLOWRiX mobile applications.

This Agreement is between you and us. The App Marketplace Provider is not responsible for the FLOWRiX mobile applications.  We are solely responsible for:

  1. support and maintenance;
  2. the investigation, defence, settlement and discharge of any claim which relates to an infringement of third-party Intellectual Property rights arising from the use of FLOWRiX ; and
  3. any claim FLOWRiX fails to conform to any applicable legal or regulatory requirement, including product liability claims and claims arising under consumer protection laws.

The App Marketplace Provider’s liability to you is limited to the refund of the purchase price of FLOWRiX and any other remedies under consumer protection law. Your right to use any mobile version of FLOWRiX is non-transferable and non-sublicensable, except to the extent the App Marketplace Provider permits family sharing or like sharing arrangements.

The App Marketplace Provider may monitor your use of FLOWRiX and is entitled to enforce the terms of this Agreement against you. You agree to submit to their legitimate enforcement activities.

If there is any inconsistency between this Agreement and the application use rules set out in the App Marketplace Provider’s terms of service, their terms of service will prevail to the extent of the inconsistency.

If you download a copy of a FLOWRiX mobile application, you represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and you are not listed on any U.S. Government list of prohibited or restricted parties.

8. Payment

We will provide you with a tax invoice for the Subscription Fee, which will be automatically deducted from your account in accordance with the Payment Terms.

Unless expressed otherwise, Subscription Fees are quoted in Australian Dollars and are exclusive of GST, VAT, withholding taxes, duties and charges imposed or levied in Australia, or overseas, in connection with this Agreement.

You are responsible for all bank fees and charges applied by the payment gateway provider, which you choose to use.

9. Upgrading Subscription Packages

You may upgrade your Subscription Package at any time by using the facilities made available via your Business Account or by making the request to us in writing. When you upgrade your Subscription Package, we will notify you of the additional charge at the time you make the request or order the upgrade.

10. Locations

Your Subscription Package will entitle you to operate one or more Locations as defined in that Subscription Package. You may increase or decrease the number of Locations made available in FLOWRiX via your Business Account.

We will notify you of any additional charge associated with an increase in the number of Locations associated with your Business Account, at the time you make the request. Where you reduce the number of Locations, the change will take effect at the end of the Term.

You acknowledge and agree that when you remove a Location from your Business Account, you will not be able to access the data associated with that Location. It is your sole responsibility to extract, transfer or otherwise deal with that Location’s inventory, customer or other data which you require prior to closing a Location in FLOWRiX .

11. Intellectual Property

We warrant we own or have a licence to use the Intellectual Property in FLOWRiX.

If you provide us with content, including, without limitation, text, photos, images, audio, video, code and any other materials (User Content). Your User Content stays yours. This Agreement does not transfer ownership of User Content to us.

When you provide User Content, you grant us a non-exclusive, worldwide, perpetual, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with FLOWRiX), communicate, publish, publicly display, publicly perform and distribute User Content for the purposes of allowing us to provide, improve, promote and protect FLOWRiX. You waive any claims against us relating to any moral rights or similar rights worldwide that you may have in the User Content.

You warrant that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your User Content  to the extent that it is used within FLOWRiX.

You acknowledge and agree that we reserve the right to take down any User Content if we receive a notice that the User Content infringes third party intellectual property rights. This right extends to any take down notice received under any law, regulation or code anywhere in the world, including the United States Digital Millennium Copyright Act.

While we reserve the right to take down any User Content which is in breach of this Agreement, you acknowledge and agree we are not required to monitor User Content, nor are we responsible for it.

You must not do any of the following, assist anyone to do any of the following or permit any person over whom you have effective control to:

  1. create an adaptation or translation of, all or part of FLOWRiX in any way;
  2. integrate or access FLOWRiX other than via the interfaces made available to you including any API;
  3. use FLOWRiX in a manner which may infringe any other persons Intellectual Property;
  4. incorporate all or part of FLOWRiX in any other webpage, site, application or other digital or non-digital format, other than to the extent FLOWRiX services are made available to you via an API; or
  5. except to the extent that reproduction occurs automatically through its ordinary use, directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, content, architecture, or algorithms contained in FLOWRiX .

12. Privacy

You agree and consent to us handling your Personal Information in accordance with our Privacy Policy. We may amend our Privacy Policy in our sole discretion. If we amend our Privacy Policy, we will post the new version on our Website.

13. Warranties

We aim to provide the best possible user experience, however, subject to the Non-excludable Conditions, we make no warranties or guarantees that FLOWRiX is fault free, regarding FLOWRiX's fitness for any particular purpose which we have not expressed, or regarding your access to, or the results of your access to, FLOWRiX including its correctness, accuracy, timeliness, completeness, reliability or otherwise.

14. Liability

14.1 Implied Conditions

We expressly exclude all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition.

14.2 Limitation of Liability

Subject to the Non-excludable Conditions, we exclude all other liability for any costs, including consequential losses, suffered or incurred directly or indirectly by you in connection with this Agreement, including:

  1. FLOWRiX being inaccessible for any reason;
  2. incorrect or corrupt data, lost data, or any inputs or outputs of FLOWRiX;
  3. computer virus, trojan, ransomware and other malware in connection with FLOWRiX;
  4. security vulnerabilities in FLOWRiX or any breach of security that results in unauthorised access to, or corruption of data;
  5. negligence arising from our activities or that of our service providers;
  6. the occurrence of an Event of Force Majeure;
  7. your breach of this Agreement; or
  8. any act or omission by you, your personnel, your associates or any related body corporate under or in relation to this Agreement.

14.3 Liability Associated with Goods And Services

To the fullest extent possible under the law, we limit our liability for any breach to: in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods, or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and in the case of services: the resupply of the services or the payment of the cost of having the services resupplied.

14.4 Indemnity

You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with this Agreement or your use of FLOWRiX, including any costs arising from your breach of this Agreement, your infringement of any third party Intellectual Property rights associated with this Agreement, any harm to, claim or action by a third party (including to that third party’s personal property) which arise directly or indirectly from your use of FLOWRiX and your breach of any law including Privacy and Spam Laws.

15. Dispute Resolution

A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 15 before commencing any legal proceedings.

If the parties cannot resolve the Dispute between themselves within 30 days then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, within the jurisdiction of the Agreement and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.

Each party must pay its own internal and legal costs in relation to complying with this clause 15. The mediator’s costs are to be shared equally.

The parties acknowledge and agree this clause 15 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.

16. Ending Your Use of FLOWRiX

16.1 Termination

Either party may terminate this Agreement by providing the other party notice in writing. Terminating your subscription via the facilities made available in your Business Account will satisfy the need for termination in writing, otherwise we may, in our sole discretion, require proof of identity before your notice of termination is effective.

Termination will take effect, at the end of the then current Subscription Period.

16.2 Termination for Cause

Either party may terminate this Agreement if the other party commits a material breach of this Agreement and the breach is incapable of being remedied or if the breach is capable of being remedied, the party in breach has failed to remedy the breach within 14 days after the receipt of notice to remedy.

16.3 Actions Upon Termination

Upon termination you must immediately stop using FLOWRiX , we reserve the right to permanently erase any data associated with your Business Account and you will no longer have access to FLOWRiX.

17. General Provisions

Assignment - We may assign, encumber, declare a trust over or otherwise create an interest in our rights in this Agreement without your consent.

Entire Agreement - This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.

Governing law - The laws of New South Wales govern this Agreement. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.

Notices - The parties agree all notices, disclosures and other communications that are provided in accordance with this clause, satisfy any legal requirement that such communications be in writing. Any communication under or in connection with this Agreement:

  1. which we send to you, will be sent to the email address provided to us in your Business Account and by accepting these terms you give your consent to receive communications from us by email; and
  2. which you send, must be either delivered or posted by prepaid post to our registered address or sent by email to our address set out at clause 2.2.

Relationship - Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties.

Severability - Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change its intended effect.

Variations to this Agreement - We may vary this agreement by giving written notice to you prior to the end of the Subscription Period. The variation will automatically take effect at the beginning of the new Subscription Period. If you do not accept the terms of the variation you may terminate your subscription in accordance with clause 16.1.

18. Definitions

Unless the terms and conditions of the Agreement state otherwise, the following expressions used in this Agreement have the following meanings:

Account means both Business Accounts and End User Accounts.

Agreement means these terms and conditions and any document incorporated into them by reference.

API means an Application Programming Interface made available by us.

Business Account means the username and access credentials used to administer your implementation of FLOWRiX.

End User Account means the individual security credentials used by your staff, suppliers and customers to access FLOWRiX.

End User means a staff member, supplier or customer of your organisation who has been authorised, by you, to access FLOWRiX and given unique End User Account.

Event of Force Majeure means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.

Intellectual Property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, domain names, circuit layouts, computer code, confidential information, copyright, designs, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

Location means a physical or online shop front (including shop fronts provided by Third Party Service providers like Amazon and e-Bay), warehouse or similar logical separation of data in FLOWRiX, which is configurable by the User via their Business Account.

Non-excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.

Payment Terms mean the requirement to make payment immediately on commencement of this Agreement and each subsequent Renewal Date in accordance with the Subscription Package selected.

Personal Information means information or an opinion about an identifiable individual (not a company), whether or not that information or opinion is true or in a material form.

Privacy Law means both the privacy laws in the jurisdiction in which you operate and the Privacy Act 1988 (Cth) incorporating the Australian Privacy Principles.

Privacy Policy means the privacy policy available on our Website as amended by us from time to time.

Proposal means a written agreement between the parties which sets out the details of a bespoke Subscription Package, which may include associated services, and which refers to, or links to, these terms.

Spam Laws means the Spam Act 2003 (Cth) and any similar laws relating to the sending of unsolicited electronic messages in the jurisdiction in which you operate.

Subscription Fee means the price for the FLOWRiX Subscription Package as set out on our Website or Proposal, as the case may be.

Subscription Package means one of the subscription packages advertised on our Website from time to time or as otherwise set out in a Proposal provided to you.

Subscription Period means the duration of the FLOWRiX licence granted to you at the time you subscribe or execute a Proposal, as the case may be.

Third Party Service means a service provided by a third party to this Agreement which integrates with FLOWRiX.

Third Party Service Terms means the terms of use issued by a Third Party Service Provider.

You or your means the person or entity using FLOWRiX.

Us, we or our means Nimble Technology Pty Ltd ACN 664 547 424.

Usage Restrictions mean any limits to the use of FLOWRiX or associated Third Party Services, as set out on our Website or in the Subscription Package.

Website means the website located at https://www.flowrix.com and any of its subdomains.

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