Terms & Conditions
Introduction
This document (Terms) sets out the terms and conditions between you and Collabra Pty Ltd ABN 35 672 933 818 (we, us, Collabra, our), in relation to the Collabra software as a service (Service) subscription on https://collabra.ai (Website) or through any application developed by us from time to time (Application) (Subscription). Your subscription is for the tiered package as selected by you in your Order Information: Subscription Tier (including the “free tier”) and agreed between us the details of which are published on the Website (Subscription Tier).
By entering into any Order in respect of the Subscription, making the first payment in respect of your Subscription or otherwise accepting the benefit of any part of the Service, you agree to be bound by these Terms which form a binding contractual agreement between you or the company you represent (the Client, or you) and us.
Please read these Terms carefully before agreeing to proceed with your Subscription.
1. Definitions and Interpretation
1.1 Definitions
In these Terms:
Client Data means any data, document or other Material supplied by you or on your behalf to us under, or in connection with, these Terms or a Subscription, including any Intellectual Property Rights attaching to those materials.
Confidential Information means information of or provided by a party that is, by its nature, confidential information, is designated by that party as confidential, or that the other party knows, or ought to know, is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
Documentation means all manuals, help files and other documents supplied by us to you relating to the Service, whether in electronic or hardcopy form.
Intellectual Property Rights means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.
Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
Order has the meaning given in clause 2.1.
Personnel means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.
Subscription Fees has the meaning set out in clause 3 of these Terms.
Subscription Period means the period of your Subscription as set out in the Order Information: Subscription Period.
User means end users of the Service.
User Data means files, data, materials or any other information, which is uploaded to the Service by you, any other User or any other third party on your behalf or on behalf of a User, including any Intellectual Property Rights attaching to those files, data, materials or any other information.
1.2 Interpretation
(a) In these Terms, unless the context otherwise requires:
(1) words in the singular includes the plural (and vice versa);
(2) a reference to $; or “dollar” is to Australian currency;
(3) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(4) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(5) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(6) a reference to a party, clause, paragraph is a reference to a party, clause or paragraph to or of these Terms;
(7) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time; and
(8) the word “includes” and similar words in any form is not a word of limitation.
(b) Headings are for convenience only and do not affect interpretation.
(c) No provision of this agreement will be interpreted adversely in respect of us because we were responsible for the preparation of these Terms.
2. The Service
2.1 Order
(a) By submitting an order[1] [AS2] in respect of a Subscription (Order), you represent and warrant to us that:
(1) if you are entering into these Terms on behalf of a Client who is a corporate entity, you hereby warrant and represent that you are duly authorised to enter into these Terms on behalf of the Client which is a corporate entity; and
(2) you are authorised to use the debit or credit card you have submitted to us for the purposes of making payment of Subscription Fees to us pursuant to these Terms.
(b) Submitting or agreeing to an Order constitutes your intention and offer to enter into these Terms.
2.2 Your Subscription
(a) Your Subscription will commence on the date we make the Service available to you (subject to you paying the Subscription Fees that are, as at that date, due and payable), and will continue for the Subscription Period, unless terminated earlier in accordance with these Terms.
(b) During the Subscription Period you will have access to the Service in accordance with the inclusions contained in your Subscription Tier.
2.3 Accounts
(a) To submit an Order or to use the Service, you will be required to sign-up, register and receive an account through the Website[3] and/or any Application (an Account).
(b) As part of the Account registration process and as part of your continued use of the Website and/or any Application, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, photos and video, audio files, profile information, payment details, ratings and reviews, verified identifications, verified certifications and authentication, and other information as determined by us from time to time. You warrant that any information you give to us while completing the Account registration process is accurate, honest and correct. You hereby undertake to inform us if any information provided to us while setting up the Account becomes out of date.
(c) Once you complete the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and/or any Application and provide you with an Account.
(d) We may, in our absolute discretion, suspend or cancel your Account for any reason, including for any failure by you to comply with these Terms.
2.4 Client Material
(a) You warrant that all information, documentation and other Material you provide to us for the purpose of receiving the Service is complete, accurate and up-to-date.
(b) You release us from all liability in relation to any loss or damage arising out of, or in connection with, the Service, to the extent that such loss or damage is caused or contributed to by information, documentation or any other Material provided by you being incomplete, inaccurate or out-of-date.
2.5 Collection Notice and Privacy
We collect personal information about you in the course of providing you with the Service, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy. Our Privacy Policy contains more information about how we use, disclose, and store your information and details regarding how you can access and correct your personal information. By agreeing to these Terms, you agree to be bound by our Privacy Policy. You hereby warrant to us that you are located within the Commonwealth of Australia[4] [AS5] or New Zealand and that no other legislation anywhere in the world in relation to privacy will apply to you or to any of the User Data or other information that you will provide to us in the course of providing you with the Service.
3. Subscription Fees and Payment
3.1 Subscription Fees
You must pay subscription fees to us in the amounts and at the times specified in your Order, or as otherwise agreed in writing (Subscription Fees).
3.2 Late Payment
We reserve the right to suspend all or part of the Service indefinitely if you fail to pay any Subscription Fees in accordance with this clause 3.
3.3 GST
Unless otherwise indicated, the Subscription Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.
3.4 Card Surcharges
We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
4. Cancellation of your Subscription
(a) You may cancel your Subscription by notice to us at no less than 30 days (Notice Date). Your Subscription will end at the end of the then billing cycle in which the Notice Date occurs (Cancellation Date), and you will be charged for that billing cycle.
(b) You can use the Service until the Cancellation Date. You must remove any data (including User Data and Material) you may have on the Service prior to the Cancellation Date.
(c) After the Cancellation Date:
(1) you will no longer have access to the Service; and
(2) we will have no responsibility to store or otherwise retain any of your data (including User Data and Material), and you release us in respect of any loss or damage which may arise out of us not retaining any data (including User Data and Material) after the Cancellation Date.
5. Upgrade and Downgrades
(a) You may notify us that you would like to upgrade or downgrade your Subscription Tier at any time. If you do, we will:
(1) take reasonable steps to promptly provide you with access to the new Subscription Tier; and
(2) upon providing such access, apply the new, relevant Subscription Fees, in the billing cycle immediately following the cycle in which your access to the new Subscription Tier was provided, and you will be charged at the new Subscription Fee in that subsequent cycle.
(b) For the avoidance of doubt, if you choose to downgrade your Subscription, the new Subscription Fees will commence at the start of the next billing cycle, unless we notify you otherwise.
(c) If you choose to downgrade your Subscription, you acknowledge and agree we are not liable, and you release us from all claims in relation to, any loss of content, features, or capacity, including any Client Data.
6. Obligations
6.1 Your Obligations
(a) You agree to:
(1) provide us with all documentation, information and assistance reasonably required by us to perform the Service; and
(2) provide us with access to any third party or other accounts used by you (including log-in details and passwords), as is reasonably required by us to perform the Service.
(b) You must, and must ensure that all Users, comply with these Terms at all times.
(c) You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.
(d) You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:
(1) upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Service;
(2) upload any material that is owned or copyrighted by a third party;
(3) make copies of any part of the Documentation or of the Service;
(4) adapt, modify or tamper in any way with the Service;
(5) act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Service;
(6) use the Service in a way which infringes the Intellectual Property Rights of any third party;
(7) publish or otherwise communicate the Service or Documentation to the public, including by making it available online or sharing it with third parties or providing third parties with unauthorised access;
(8) decompile or reverse engineer the Service or any part of it, or otherwise attempt to derive its source code; or
(9) attempt to circumvent any technological protection mechanism or other security feature of the Service.
(e) If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately form provided on our Website (if available) or via a notice sent pursuant to clause 15.
6.2 User Obligations
You agree, and you must ensure that all Users agree:
(a) to comply with each of your obligations in these Terms;
(b) not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Service;
(c) not to upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Service;
(d) to sign up for a new Service account (User Account) in order to use the Service;
(e) to not allow a third party to use a User Account;
(f) not to use the Service for any purposes other than the purpose of the Service (Purpose);
(g) not to integrate the Service with third party data or software, or make additions or changes to the Service, (including by incorporating APIs) other than for the Purpose;
(h) to not share your User Account information (including your Account information), including log in details or passwords, with any other person and that any use of your User Account or Account by any person who is not the account holder is strictly prohibited. You must immediately notify us of any unauthorised use of your User Account, Account, password or email, or any other breach or potential breach of the Service’s security;
(i) to not use the Service for any purpose other than for the purpose for which it was designed, including any manner that is illegal or facilitates illegal activity;
(j) not to use the Service in a way which infringes the Intellectual Property Rights of any third party;
(k) not to act in any way that may harm our reputation or that of associated or interested parties, or do anything at all contrary to the interests of us or the Service;
(l) you must not make any automated use of the Service and you must not copy, reproduce, translate, adapt, vary or modify the Service without our express written consent;
(m) that we may change any features of the Service at any time after we provide 7 days notice to you;
(n) that information given to you through the Service, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
(o) that we may cancel your, or any User’s, Account at any time if we consider, in our absolute discretion, that you or they are in breach of, or are likely to breach, this clause 6.
6.3 Hosted Service
We will store User Data you upload to the Service using a third party hosting service selected by us from to time (Hosted Service), subject to the following terms:
(a) we may use storage servers to host the Service through cloud-based services, and potentially other locations outside Australia, unless otherwise agreed in writing.
(b) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosted Service will be free from errors or defects or that User Data will be accessible or available at all times.
(c) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.
7. Posted Material
7.1 Warranties and Indemnity
(a) By providing or posting any information, Material or other content in connection with the Service (Posted Material), you represent and warrant, and ensure that all Users make equivalent representations and warranties, that:
(1) you are authorised to provide the Posted Material (including by being authorised to provide any services that you represent you provide);
(2) the Posted Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
(3) the Posted Material is free from any material that may harm our reputation or that of associated or interested parties;
(4) the Posted Material is not “passing off” of any product or service and does not constitute unfair competition;
(5) the Posted Material does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, Confidential Information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
(6) the Posted Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Service; and
(7) the Posted Material does not breach or infringe any applicable laws.
(b) You indemnify us against all damages, losses, costs and expenses incurred by us arising in connection with any third party claim that Posted Material infringes any third party’s Intellectual Property Rights.
7.2 Removal
(a) The Service acts as a passive conduit for the online distribution of Posted Material and has no obligation to screen Posted Material. However, we may, in our absolute discretion, review and remove any Posted Material from the Service at any time without giving any explanation or justification for removing the Posted Material, including if we determine that the Posted Material infringes a third party’s Intellectual Property Rights, or is reasonably likely to.[6] [7]
(b) You agree that you are responsible for keeping and maintaining records of Posted Material.
8. Intellectual Property
8.1 Infringing Content on the Service
(a) If you become aware of Posted Material, or other Material, on the Service that infringes the Intellectual Property Rights of any person, or is reasonably likely to, please notify us immediately (Infringement Notification).
(b) If you contact us in relation to an Infringement Notification:
(1) you warrant that the substance of the Infringement Notification is accurate, true and involves infringement of copyright;
(2) you acknowledge and agree that groundless threats of legal proceedings in relation to copyright infringement may be prohibited under applicable law (for example, the Copyright Act 1968 (Cth) or other equivalent laws); and
(3) you agree to indemnify us in relation to any loss or damage that may arise in relation to an Infringement Notification, including in relation to any third party claim that the Infringement Notification contains a groundless threat.
8.2 Content Intellectual Property
(a) We retain ownership of all materials provided to you throughout the course of your Subscription in connection with the Service (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us not expressly granted to you.
(b) You are granted a licence to the Content and you may make a temporary electronic copy of the Content for the sole purpose of viewing it and using it for the purposes of the Service. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish any Content without prior written consent from us or as otherwise permitted by Law.[8] [9]
9. Client Data[10] [AS11]
9.1 Our Rights
(a) You grant to us a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use Client Data to the extent reasonably required to provide the Service and to improve the Service.
(b) We reserve the right to remove any Client Data at any time, for any reason, including where we deem Client Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.
9.2 Your Obligations and Grant of Licence to Us
(a) You are responsible for ensuring that:
(1) you share Client Data only with intended recipients; and[12] [13]
(2) all Client Data is appropriate and not offensive.
(b) You:
(1) warrant that our use of Client Data will not infringe any third-party Intellectual Property Rights; and
(2) indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
10. Third Party Software, Terms & Conditions
10.1 Third Party Terms
(a) You acknowledge and agree that the terms & conditions of third party suppliers of goods or services (Third Party Terms), including those listed below, may apply to your use of the Service from time to time and you agree to the Third Party Terms.
(b) We will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
(c) You must immediately notify us if you do not agree to such Third Party Terms and if you do not agree to any Third Party Terms, this may affect our ability to meet any agreed schedules for Service delivery.
10.2 Third Party Software Integrations
(a) You acknowledge and agree that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. We cannot guarantee that integration processes between the Service and other software programs will be free from errors, defects or delay.
(b) You agree that we will not be liable for the functionality of any third party goods or services, including any third party software, or for the functionality of the Service if you integrate it with third party software, and including by incorporating APIs into the Service.
(c) If you integrate the Service with third party software, or make any other changes or modifications to the Service (User Changes), then:
(1) you acknowledge and agree that User Changes can have adverse effects on the Service;
(2) you will indemnify us in relation to any loss or damage that arises in connection with the User Changes;
(3) we will not be liable for any failure in the Service, to the extent such failure is caused or contributed to by a User Change;
(4) we may require you to change or remove User Changes, at our discretion, and if we do so, you must act promptly;
(5) we may suspend your access to the Service until you have changed or removed User Change; and/or
(6) we may change or remove any User Change, at our absolute discretion. We will not be liable for loss of data or any other loss or damage you may suffer in relation to our amendment to, or removal of, any User Change.
11. Confidentiality
(a) Except as contemplated by these Terms, a party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.
(b) You agree to our Privacy Policy, located on our Website, which is incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs our collection, use, and disclosure of personal information.
(c) Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information.
(d) The notifying party will investigate each potential, actual or suspected security breach and assist the other party in connection with any related investigation.
12. Liability
12.1 Warranties and Limitations
(a) We warrant that:
(1) during the Subscription Period, the Service will be provided as described to you in, and subject to, these Terms; and
(2) to our knowledge, the use of the Service in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.[14]
(b) The warranty in clause 12.1(a)(2) does not apply to any third-party subsystems and services used by the Service.
(c) We will correct any errors, bugs or defects in the Service which arise during the Subscription Period and which are notified to us by you, unless the errors, bugs or defects:
(1) result from the interaction of the Service with any other solution or computer hardware, software or services not approved in writing by us;
(2) result from any misuse of the Service by you or any other User; or
(3) result from the use of the Service by you or any other User other than in accordance with these Terms or the Documentation.
(d) The Service is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that we cannot guarantee that:
(1) the Service will be free from errors or defects;
(2) the Service will be accessible at all times;
(3) messages sent through the Service will be delivered promptly, or delivered at all;
(4) information you receive or supply through the Service will be secure or confidential; or
(5) any information provided through the Service is accurate or true.
(e) You acknowledge and agree that:
(1) we are not liable for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference;
(2) any information provided to you as part of, or in connection with, the Service is general in nature, may not be suitable for your circumstances and does not constitute financial, legal or any other kind of professional advice; and
(3) it is your responsibility to comply with applicable laws relevant to your business, including industrial relations laws and privacy laws.
(f) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these Terms are excluded.
12.2 Limitation of Liability
(a) To the maximum extent permitted by applicable law, our maximum aggregate liability to you in respect of loss or damage sustained by you under or in connection with these Terms or the Service is limited to the total Subscription Fees paid to us by you in the 3 months preceding the first event giving rise to the relevant liability.
(b) We will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with these Terms or any goods or services provided by us.
12.3 Australian Consumer Law
Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund or a reperformance of the Service) if there is a failure in certain respects in relation to the Service. In the event that a remedy under the ACL is applicable, we will decide whether a refund or reperformance of the Service will be the appropriate remedy and our liability in respect of any breach of the ACL will be limited to that remedy.
13. Dispute Resolution
(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
14. Termination
14.1 Termination by us
(a) We may terminate these Terms or any Subscription in whole or in part immediately by written notice to you, at any time for any reason, including if:
(1) you, a member of your Personnel, or a User, are in breach of any term of these Terms and you fail to remedy such breach within 7 days of a notice received from us; or
(2) you become subject to any form of insolvency or bankruptcy administration.
(b) If we terminate these Terms under this clause 14.1, in circumstances (other than those set out in clause 14.1(a)(1) and clause 14.1(a)(2)) where you have not breached any of these Terms, we will issue you with a refund of a pro rata amount of the current 30 day period’s Subscription Fee, in proportion to the remainder of the 30 day period in which you will not have access to the Service.
14.2 Termination by Client
You may terminate these Terms if:
(a) we have committed a material breach of these Terms and have failed to remedy the breach within 30 days’ of receipt of written notice from you; or
(b) we become subject to any form of insolvency or bankruptcy administration.
If you validly terminate in accordance with this clause, no further Subscription Fees will be payable by you (unless later found that such termination was invalid).
15. Notices
(a) A notice or other communication to a party under these Terms must be:
(1) in writing and in English; and
(2) delivered via email to the other party:
(A) in the case of us, hello@collabra.ai;
(B) in the case of you, to the email address you specified in the Order Information: Client Email Address for Notices,
(Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(1) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state of New South Wales, in which case the notice will be taken to be given on the next occurring business day; or
(2) when replied to by the other party,
whichever is earlier.
16. General
16.1 Governing Law and Jurisdiction
This agreement is governed by the law applying in New South Wales in Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
16.2 Waiver
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
16.3 Severance
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
16.4 Entire agreement and amendment to the Terms
(a) This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
(b) We may change these Terms at any time by notifying you, and your continued use of the Service following such an update will represent an agreement by you to be bound by the Terms as amended.
