Terms and Conditions of Use
Terms and Conditions
– “Active” means a User Account where the ‘active tick box’ in the Formaliti System has been ticked (or remained ticked) as active (by the Customer or any of its representatives) at any time during the Period (regardless of whether the User Account accesses the Formaliti System during that Period).
– “Agreement” means the terms and conditions between Formaliti and the Customer as contained in this agreement.
– “Applicable Laws” means common law, principles of equity and laws made by a parliament or government, including laws made in relation to or in respect of electronic transactions and electronic signatures, both in Australia and in any other applicable jurisdiction.
– “Author” / “Authoring” means the process of taking the Customer’s Document and capturing and applying electronic data entry and signature fields to create a Form.
– “Codes” means any unique identifiers, log-ins, administrator identification numbers and/or passwords.
– “Commencement Date” means the date specified on page 1 of this Agreement.
– “Completed Form” means a Form that the Customer has delivered to its End User using the Formaliti System, that has been returned by the End User.
– “Confidential Information” means all confidential, non-public or proprietary information, regardless of how the information is stored, which is delivered to the Customer before, on or after the date of this Agreement, relating to the Services or the Formaliti System, or the business, technology, Intellectual Property, Rights or other affairs of Formaliti, including any data, tools, indices, programs or algorithms.
– “Create” / “Creating” / “Created” means the process of creating a bespoke Form for the Customer, and capturing and applying electronic data entry and signature fields to create a Form.
– “Customer” means the customer specified on page 1 of this Agreement.
– “Customer’s Enterprise” means the Customer and its Related Entities, and the Customer warrants and covenants in favour of Formaliti that it will be responsible for and cause its Related Entities to be bound by this Agreement as if they were named the Customer herein.
– “Design” / “Designing” / “Designed” means the process of creating a Form using existing form templates, and capturing and applying electronic data entry and signature fields to create a Form.
– “Document” means any document that the Customer provides to Formaliti to Author.
– “Electronic Transactions Act” means the Electronic Transactions Act 1999 (Cth), Electronic Transactions Act 2001 (ACT), Electronic Transactions Act 2000 (NSW), Electronic Transactions (Northern Territory) Act 2000, Electronic Transactions Act 2001 (Qld), Electronic Transactions Act 2000 (SA), Electronic Transactions Act 2000 (Tas), Electronic Transactions (Victoria) Act 2000 or Electronic Transactions Act 2003 (WA) whichever is applicable to the signing of this Agreement by the Customer and Formaliti.
– “End User” means any party to whom the Customer delivers (or intends to deliver) any Form via the Formaliti System; and/or from whom the Customer receives a Completed Form via the Formaliti System.
– “End User Esign Consent” means the electronic notice prepared by Fomaliti that is automatically presented to the End User and must be accepted by the End User before the End User can electronically sign the Form provided to the End User by the Customer.
– “Fees” means all amounts payable by the Customer pursuant to this Agreement, including the Period Access Fee and the Services Fee.
– “Form” means a digitised form Authored, Created and/or Designed by Formaliti, containing one or more text and/or signature fields, capable of being signed electronically by the Customer’s End User, and used within the Formaliti System.
– “Formaliti” means Formaliti Limited (Company Number 2133260).
– “Formaliti System” means an internet based online system, accessed via the Website:
- whereby, the Customer can:
- send Forms to its End User(s) via email invitation, to request the End User to complete and/or sign the Forms by electronic signature;
- provide Forms to its End User(s), to request the End User to complete and/or sign the Forms by electronic signature while face to face on a touch screen device;
- whereby the Customer’s End User(s) can complete and/or sign the Forms by electronic signature, and return the Completed Forms to the Customer;
- where the Customer can store Forms and Completed Forms.
– “Intellectual Property” includes but is not limited to the name, common law and registered trade marks, patents, copyrighted material, logos, designs, documentation, insignias, registered and unregistered business names, emblems, know-how, procedures, business processes, manuals, training and other methods and programs, marketing information, client lists and confidential information, computer software, algorithms, source code, and all other material however embodied.
– “Period” means a period of 4 weeks.
– “Period Access Fee” means the schedule of User Account access fees payable per Period for the Formaliti System displayed on the Website from time to time, payable by the Customer to Formaliti for access to the Formaliti System.
– “Related Entities” means only such persons or entities expressly notified to and agreed by Formaliti.
– “Rights” means any copyright, extended or revived copyright, design right, registered design right, patent, intellectual property right, trade mark, database right or any similar right exercisable in any part of the world, including any application for registration of any patent, trade mark, registered design or similar registrable rights in any part of the world.
– “Services” means Authoring and/or Creating and/or Designing, and any additional services performed by Formaliti at the request of the Customer.
– “Services Fee” means the schedule of service fees displayed on the Website from time to time, payable by the Customer to Formaliti for the Services, or as otherwise agreed by Formaliti and the Customer.
– “Term” means the term of this Agreement.
– “Tickets” means prepaid tickets purchased by the Customer from Formaliti.
– “User Accounts” means the right for one nominated individual to access the Formaliti System for the Customer.
– “Website” means the website (or websites) through which the Customer can access the Formaliti System via the internet, as notified in writing by Formaliti from time to time.
- Formaliti is in the business of providing technology services, and in particular provides the Services and the Formaliti System, which can include:
- Authoring Documents to create Forms to be utilised within the Formaliti System;
- Creating / Designing Forms to be utilised within the Formaliti System;
- providing the Formaliti System, to enable the Customer to deliver Forms to its End Users for electronic signing (and the capture of data in fields); and receiving and storing those returned Completed Forms; and
- where possible, capturing document activity for Completed Forms, for example the IP address of the End User and the activity dates relevant to the Completed Form.
- Subject to the terms of this Agreement and the Customer’s performance of its obligations, including payment of the Services Fee and the Period Access Fee, Formaliti:
- agrees to perform the Services in accordance with this Agreement; and
- grants to the Customer a non-exclusive, non-transferable, non-sub-licensable limited license during the Term to access and use the Formaliti System, within the Customer’s Enterprise only and solely for the Customer’s business purposes, and only by the User Accounts.
- Notwithstanding anything to the contrary in this Agreement, except as and then only to the extent expressly permitted for the Customer’s Enterprise, the Customer must only use the Formaliti System and the Customer agrees that it will not (and will not permit or allow any person) to create an access permission or user or allow access to or use the Formaliti System unless the person is an employee or contractor or other person authorised by the Customer and that person also holds a User Account.
- Except as provided for in clauses 2 and 3, the Customer is not licensed to use the Formaliti System and hereby undertakes not to do so.
- The Customer acknowledges and agrees to use the Formaliti System solely for the purpose for which it is intended, and in accordance with all Applicable Laws. Except as expressly permitted under this Agreement, the Customer, the Customer’s Enterprise and the User Account holders must not, or encourage any person or entity to:
- decompile, disassemble or otherwise reverse engineer all or any portion of the Formaliti System, including any source code, object code, algorithms, methods or techniques used or embodied therein;
- modify or create any derivative works based upon the Formaliti System;
- distribute, resell, disclose, market, rent, lease, assign, incorporate into any database, sublicense or otherwise transfer access to the Formaliti System to any third party, or use the Formaliti System on behalf of or for the benefit of any third party;
- without limiting the forgoing, infringe any Intellectual Property Rights in the Formaliti System, whether owned by Formaliti or any third party.
Formaliti System – Period Access Fee
- For the Period Access Fee, Formaliti will make the Formaliti System available to the Customer during the Term.
- The Customer will obtain a set number of User Accounts. For each User Account, one nominated person is permitted to access the Formaliti System on behalf of the Customer.
- The Period Access Fee is payable for each Period during the Term, is payable every 4 weeks, and is calculated as follows:
- The Period Access Fee is payable for all Active User Accounts.
- The Period Access Fee is payable in advance of each Period. Therefore, the advance payment of the Period Access Fee will be calculated based on the number of Active User Accounts in the previous Period.
- For clarity however, where it is determined that the number of Active User Accounts for that Period is less than the number of Active User Accounts for which payment in advance was made, then the Customer is not entitled to any refund of the Period Access Fee paid, and Formaliti will not be liable to the Customer for any such refund.
- The Period Access Fee is payable by way of credit card or debit card, or direct debit, as specified at page 1 of this Agreement, or amended from time to time.
Authoring / Creating / Designing of Forms – Services Fee
- For the Services Fee, Formaliti agrees to provide the Services to the Customer as requested by the Customer from time to time.
- Where the Customer requests that Formaliti Authors the Customer’s Document:
- the Customer will upload, provide, or otherwise make available within the Formaliti System the Document/s for Authoring. Formaliti will Author each Document to create a Form, in accordance with the reasonable directions of the Customer. Formaliti will then upload, provide, or otherwise make available within the Formaliti System, the Form for approval by the Customer. Where the Customer does not approve the Form within 24 hours of Formaliti uploading, providing, or otherwise making available within the Formaliti System the Form, the Form will be deemed to be approved by the Customer and Formaliti will be entitled to charge the Services Fee to the Customer or otherwise deduct a Ticket from the Customer.
- the Customer represents and warrants to Formaliti that it has the right to the Document; that the Document does not and shall not infringe upon or misappropriate any rights, including, without limitation, Intellectual Property Rights of any third parties or Formaliti; and that such Document is free of worms, viruses, trojan horses, and other disabling code.
- no Rights shall accrue to Formaliti in respect of the Documents, which upon termination of this Agreement shall remain the property of the Customer, and Formaliti warrants in favour of the Customer that Formaliti will not thereafter use, reproduce, distribute, transmit, perform, display (publicly or otherwise), adapt, make derivative works of, and otherwise commercialise and exploit, the Documents.
- Where the Customer requests that Formaliti Creates / Designs a Form, Formaliti will Create / Design such Forms in accordance with the reasonable directions of the Customer.
- Formaliti reserves the right to refuse to Author / Create / Design any Document, or remove or refuse to distribute or publish any Form on the Formaliti System which:
- violates the terms of this Agreement;
- is in the reasonable opinion of Formaliti deemed to be unlawful, inappropriate, offensive, defamatory, or inaccurate; or
- Formaliti otherwise determines, acting reasonably, that the Document or Form ought not be Authored, distributed or published.
- While Formaliti will use best endeavours to provide the Services in a timely manner it shall not be liable, and the Customer shall not take issue, and have no recourse against Formaliti in the event that Formaliti cannot perform the Services within the Customer’s requested timeframe.
- If the volume or complexity of Authoring / Creating / Designing for a single Form is determined to be excessive, then Formaliti reserves the right to decline to Author / Create / Design the Form and such an action does not constitute a breach of the supply of the Services by Formaliti. In such an instance a bespoke price to Author / Create / Design the Form will be supplied to the Customer.
- The Customer will pay Formaliti the Services Fees and the Period Access Fees. All such Fees, when paid, are non-refundable, and are payable during the Term even if the Customer stops using, or decides not to use the Formaliti System for any reason, or for any period.
- Each Period Formaliti will give the Customer a tax invoice for Period Access Fee for the subsequent Period. The failure of Formaliti to deliver a tax invoice will not relieve the Customer from its obligation to make payment of the Period Access Fee by the due date.
- The Customer will pay Formaliti the Services Fees for the Services which Formaliti has been engaged to perform, with payment to be made in advance by way of Tickets. Formaliti will give the Customer a tax invoice for Services performed. The Tickets will expire twelve (12) months from the date the Customer has paid for the Tickets. The Customer will not be entitled to a refund of the Tickets in part or in full, if it fails to use the Tickets within twelve (12) months of purchasing the Tickets.
- The Customer agrees to pay the Fees for the Term without deduction or set-off.
- Except as otherwise expressly stipulated herein, all Fees are GST exclusive. If any payment due under this Agreement is subject to GST, the Customer must pay to Formaliti an additional amount equal to the GST component on that taxable supply. Such additional amount is payable at the same time as the Fees.
- Formaliti may at its discretion increase the Fees by providing the Customer with written notice of its intention to do so at least 30 days prior to the Fee increase. Upon receiving a notice of a Fee increase from Formaliti, the Customer will have the right to elect to terminate this Agreement, by providing Formaliti with written notice of its intention to do so within 30 days of its receipt of Formaliti’s written notice of the Fee increase, however the Customer must continue to pay the existing Fees until the date of termination.
- Any Fees not paid to Formaliti when due will be subject to interest equal to the lesser of 0.375% per week and the maximum amount permitted by law, calculated on a daily basis.
- In the event that Fees are not paid within terms, then without limiting any other rights Formaliti may have pursuant to this Agreement or at law, Formaliti may suspend the Customer’s access to the Formaliti System and/or the Services for such time as the Fees remain unpaid, and Formaliti shall not be liable to the Customer in anyway as a result of such suspension.
- The Services Fee and the Period Access Fee do not include any services or support not expressly agreed or noted. If the Customer requests (additional) services not included in the Services Fee an hourly fee will apply (which Formaliti will quote on request). If the Customer accepts the hourly fee, Formaliti may require pre-payment of its estimate before undertaking the requested additional services.
Access and Authorisation
- The Customer will access the Formaliti System via the Website. The Customer acknowledges and agrees that, in the event that Formaliti provides the Customer with Codes, the Customer:
- bears sole responsibility for protecting all Codes (including against employee theft or misappropriation);
- will not provide such Codes to any third party;
- will remain fully responsible and liable for any unauthorised use of any Code;
- will for security purposes change such Codes periodically or as directed by Formaliti from time to time.
- The Customer will be responsible for obtaining access to the Formaliti System via the Internet, and for any and all costs and expenses in connection with accessing and using the Formaliti System, including internet service provider fees, telecommunications fees, and the cost of any and all equipment (including hardware and software) used by the Customer in its access and use of the Formaliti System as permitted hereunder.
- The Customer acknowledges that Formaliti will have no obligation to assist the Customer in using or accessing the Formaliti System except as expressly provided in this Agreement.
- Formaliti will maintain the Website through which the Formaliti System is accessed, and perform network, hardware or service maintenance services or upgrades, which may require the Formaliti System to be non-accessible for a period of time. Formaliti will endeavour to perform such services or upgrades during typically low usage periods.
- For clarity, Formaliti will not be liable for any delay, defect, deficiency and/or loss of service in connection with the Formaliti System or the Website or any loss caused by or on account of any of the following:
- equipment, data, or services supplied by the Customer or any third party;
- any telecommunications organisation equipment or services (including speeds or capabilities of such equipment or services) or any requirements of the telecommunications authorities; or
- Formaliti not being able to provide availability of the Formaliti System.
- Formaliti reserves the right to change or refine the features and functionality of the Formaliti System, provided that the Formaliti System will at all times retain the basic functionality with which it was initially provided to the Customer pursuant to this Agreement.
- The Customer assumes the risk in using the Formaliti System.
Storage of Forms
- During the Term, the Customer’s Forms and Completed Forms will be stored in the Formaliti System and will be accessible by the Customer. In consideration of the payment of the Period Access Fee, the Customer is authorised to download the Completed Forms one at a time.
- Should the Customer wish to download Completed Forms by bulk extract (that is other than one at a time) then an additional Fee will apply (which Formaliti will quote on request).
- Following the Term, Formaliti will be under no obligation whatsoever (however it may in its sole election choose so to do for a period of up to 5 years) to continue to store any Forms, Completed Forms, audit trails, and any other information or data relating to the Customer and its End Users, and it may delete all such information and documents from the Formaliti System.
- Formaliti is not responsible for the security or integrity of any Forms or Completed Forms including with respect to the fields and electronic signatures completed by the End User, when stored by the Customer, including (for example only, and not by way of limitation) Forms and Completed Forms that leave the server of Formaliti when (i) the Customer forwards, accesses or stores a document external to the Formaliti System; (ii) after the Term of this Agreement. This statement of lack of responsibility shall not be construed to impose liability upon Formaliti for the integrity or encryption of Forms and Completed Forms while in the Formaliti System or on the server of Formaliti.
Data Security and Disclosure of Data
- Formaliti will take reasonable endeavours not to disclose Customer data to persons not a party to this Agreement; except:
- as convenient or necessary to perform the Services and provide the Formaliti Systems;
- as convenient or necessary for Formaliti’s internal record keeping, internal reporting and support purposes;
- to third parties bound by a confidentiality agreement to view Customer data only for the purpose of assessing Formaliti for a possible acquisition, a transfer of substantially all of the assets of Formaliti or its business;
- as required by law, court order, subpoena, judicial or governmental administrative request or order, or to prosecute or defend the rights of Formaliti in a legal action.
- Formaliti shall store and process information pertaining to the Customer and its End Users using industry standards such as SSL encryption methods and secure data centre hosting. Formaliti will host its services including the Website and the Formaliti System with a variety of outsourced providers in multiple countries and will attempt to procure reputable and stable industry providers when procuring these facilities.
- Where possible, Formaliti will capture document activity for Completed Forms, for example the IP address and email address of the End User and the activity dates relevant to the Completed Form. Notwithstanding the foregoing, Formaliti does not guarantee nor warrant the identity of any End User or any of these attributes. The Customer acknowledges and agrees that it is solely responsible to determine the identity of the End User and to assess the risk as to the End User with whom the Customer is transacting with and under what terms and as to the trustworthiness of the other parties to its transactions.
- The Customer acknowledges and agrees that Formaliti and the Formaliti Systems does not verify or validate that the actual recipient / signatory is the intended End User.
Use of the Formaliti System
- The Customer will follow all reasonable instructions Formaliti gives from time to time with regard to the use of the Formaliti System. The Customer will permit Formaliti at all reasonable times to monitor and check that the Formaliti System is being used in accordance with the terms of this Agreement.
- There are important provisions in the Competitions and Consumer Act 2010 (Cth) (“the Act”) that may apply to the Customer’s use of the Formaliti System. The Customer acknowledges that it is responsible to ensure compliance with the Act and all Applicable Laws.
- The Customer will be responsible for all acts and omission of any of its directors, members, employees, contractors, agents and representatives, including any holder of a User Account.
- The Customer agrees that it will not use the Formaliti System or any Forms: for illegal or criminal activities, to unlawfully threaten or harass other persons whatsoever, to distribute any unlawful Forms, to be involved in unsolicited emails and/or advertising, to be involved with any unlawful content such as viruses, Trojan horses, worms or any other matter that may damage or adversely affect the operation of any system, data or personal information.
- The Customer covenants and warrants to Formaliti that it will not in the performance of this Agreement be involved with any misleading information, infringe any person’s Intellectual Property or Rights, manipulate data in order to disguise the origin of the Customer, or violate any Applicable Laws whatsoever.
- Formaliti does not warrant, guarantee or make any representation that the Formaliti System or the server that makes the Formaliti System available are free of software viruses; the functions contained in any software contained on or in the Formaliti System will operate uninterrupted or are error free; and errors and defects in the Formaliti System will be corrected.
- Formaliti is not liable to the Customer for: errors or omissions in the Formaliti System, or linked sites on the internet; delays to, interruptions of or cessation of the services provided in the Formaliti System, or linked sites; and defamatory, offensive or illegal conduct of any user of the Formaliti System; whether caused through negligence of Formaliti, its employees or independent contractors, or through any other cause.
- The Formaliti System may contain links to sites on the internet owned and operated by third parties and which are not under the control of Formaliti. The existence of a link to other sites does not imply any endorsement by Formaliti of the linked site; and Formaliti is not responsible for the material contained on those linked sites.
- If any use is made of the Forms, Completed Forms or the Formaliti System by any person or entity other than the Customer and such use is attributed to the act or default of the Customer, then without prejudice to Formaliti’s other rights and remedies the Customer will immediately be liable to pay to Formaliti an amount equal to the charges which such person or entity would have been obliged to pay had Formaliti granted a licence to the unauthorised user at the beginning of the period of the unauthorised use.
- Formaliti reserves the right to suspend or terminate the Customer’s access to the Services and/or the Formaliti System:
- in the event that any Fee or charge is not paid when due;
- in the event that Formaliti reasonably believes that the Customer has used or disclosed the Forms, the Formaliti System, or Services or other Confidential Information in a manner not permitted under this Agreement or otherwise has materially breached this Agreement; or
- an event of force majeure occurs that affects Formaliti’s ability to provide the Services and/or the Formaliti System.
Compliance with Law
- The Customer is entirely responsible for ensuring that it complies with all Applicable Laws in respect of its use of the Services, the Forms, the Completed Forms and the Formaliti System. Formaliti makes no warranties as to the suitability, legality and compliance with any Applicable Laws of the use of the Formaliti System and/or the Forms and/or the Completed Forms to obtain electronic signatures and/or the completion of the Forms.
- In entering into this Agreement, using the Services, the Forms and the Formaliti System and notwithstanding the use of the End User ESign Consent, the Customer:
- expressly acknowledges and accepts that it is solely responsible for ensuring that it complies with all Applicable Laws, and the Customer warrants and agrees that it will comply with the Applicable Laws in all respects in utilising the Services, the Forms, the Completed Forms and the Formaliti System;
- expressly acknowledges and accepts that it does so at its own risk, and it is entirely responsible to determine the suitability, enforceability and validity of the Forms and the Completed Forms, and the use of electronic signatures thereto;
- expressly acknowledges and accepts that it is entirely responsible for determining the identity of the End User and that the Completed Form has been completed by the intended End User;
- expressly acknowledges and agrees that the Customer is solely responsible for determining the enforceability of Completed Forms and electronic signatures;
- expressly acknowledges and agrees that the Customer is solely responsible for the text and format of all Forms, and for ensuring that the Forms comply with all Applicable Laws, and contain all necessary text and information required by all Applicable Laws;
- expressly acknowledges and accepts that Formaliti makes no warranties as to the suitability, legality and compliance with the Applicable Laws of the use of the Formaliti System and/or the Forms and/or the Completed Forms to obtain electronic signatures and/or the completion of the Forms. The Customer is entirely responsible for ensuring compliance with all Applicable Laws;
- expressly acknowledges and agrees that it is the Customer’s sole responsibility to determine and provide all necessary disclosures, warnings and instructions to all End Users (including in respect of the utilisation of electronic signatures, completed fields and the use of the Formaliti System), and that Formaliti is not responsible and is not required to take any such steps;
- expressly acknowledges and agrees that the End User Esign Consent is provided by Formaliti as a service to the Customer for use of the Foramliti System only, and the use of the End User ESign Consent is not, and is not to be taken, as satisfaction of the Customer’s compliance with the Applicable Laws;
- warrants that any use of the Formaliti System and/or the use of the Forms and/or the Completed Forms (including to obtain electronic signatures) by the Customer its directors, members, employees, contractors, agents and representatives or assigns and the Customer’s End Users (including their directors, members, employees, contractors, agents and representatives or assigns), complies with all Applicable Laws, and that its use will not give rise to any rights against or liabilities in Formaliti, its directors, members, employees, contractors, agents and representatives or assigns for any breach of the Applicable Laws; and
- indemnifies, releases and holds Formaliti, its directors, members, employees, contractors, agents, representatives and assigns harmless against all liability, claims or proceedings whatsoever arising from its use of the Formaliti System and/or the Forms and/or the Completed Forms (including to obtain electronic signatures) and/or the completion of the Forms, and without limiting the generality of the forgoing, indemnifies Formaliti to the fullest extent permitted by law in relation to the Applicable Laws and otherwise in connection with the all matters stated in clauses 51a to i, and warrants that any use of the Services and/or the Formaliti System complies with all Applicable Laws, and that its use will not give rise to any rights against or liabilities in Formaliti, its directors, members, employees, contractors, agents, representatives or assigns.
- The Formaliti System utilises email notifications to alert End Users of a request by the Customer to complete and/or electronically sign a Form. The Customer acknowledges and agrees that Formaliti is not responsible if the End User does not receive an email notification, or fails to respond to any email notification.
- Formaliti does not guarantee that the Customer will derive any benefit, or any level of benefit from this Agreement or the Services or the Formaliti System.
- Formaliti does not guarantee any amount of income that the Customer will earn as a result of entering this Agreement.
- The Customer acknowledges and agrees that, as between Formaliti and the Customer, Formaliti or one or more of its related entities or licensor(s) is and will remain the sole and exclusive owner of all right, title and interest in and to the Formaliti System, including any and all creations, inventions and Intellectual Property Rights contained or embodied within the Formaliti System. The Customer agrees that it (and its End Users) acquires no rights in or to the Formaliti System provided pursuant to this Agreement except for the limited license set forth in clause 2, and that it will not, and will not permit any other person or entity to, infringe upon, harm or contest the validity or Formaliti’s and its related entities or licensor(s) ownership of the Formaliti System or the creations, inventions and Intellectual Property Rights contained or embodied within the Formaliti System. The Customer agrees that it will not make copies or derivative works of the Formaliti System. All other uses of the Formaliti System not expressly addressed in this Agreement are strictly prohibited.
- Subject to the further provisions of clause 57 below, the Customer must not and must ensure that its directors, members, employees, contractors, agents and representatives do not during the continuance of this Agreement and the Term, and after its termination, without Formaliti’s prior written consent disclose any content or effect of this Agreement, the Confidential Information, or any information that could reasonably be expected to be regarded as confidential to Formaliti, to any third party for any reason, nor make any public announcement, release or other broadcast in respect of this Agreement.
- The Customer may make disclosures to those of its employees, officers, professional or financial advisers and bankers as the Customer reasonably thinks necessary to give effect to this Agreement but only on a strictly confidential basis.
- Notwithstanding the above, the Customer authorises Formaliti to list the Customer as its customer, including but not limited to on its website, in presentations, webinars, and published material in any medium.
Limited Warranty and Limitation of Liability
- Formaliti hereby represents and warrants that the Formaliti System will have those features, and the Services will be performed, as described herein, and that Formaliti will use commercially reasonable efforts to ensure that the Formaliti System is accessible via its Website in accordance with the terms hereof. In the event of any breach of this warranty, the Customer agrees that Formaliti’s sole and exclusive obligation and the Customer’s sole and exclusive remedy, is for Formaliti to use commercially reasonable efforts to either (as applicable):
- modify, correct or provide access to the Formaliti System; or
- to provide the Services in accordance with this Agreement.
- The warranty set forth in clause 59 is in lieu of any other warranties, and to the fullest extent permitted by law (subject to clauses 61 and 62), all other warranties are hereby excluded, and Formaliti and its related entities and service providers hereby expressly disclaim all warranties:
- that the Formaliti System will meet the Customer’s requirements;
- that the Services will be provided or performed to a standard other than on a best endeavours basis;
- that the Formaliti System will be error-free, that the Website will function in an uninterrupted manner, be available 24 hours a day, 7 days a week, or be fully secure;
- that the Formaliti System and the use of the Forms(including to obtain electronic signatures) complies with the Applicable Laws for which the Customer intends to use them; or
- that the Services, the Formaliti System and the use of the Forms by the Customer and its End Users:
- comply with any Applicable Law, and in particular that the electronic signing of any Forms is binding and enforceable between the Customer and the End User;
- are fit or suitable for any particular purpose;
- as to the validity, legality and enforceability of any Forms or Completed Forms used in connection with the Formaliti System.
- that electronic signatures are enforceable or valid in any court of law or equity;
- that the performance of the Services will not be affected by delays, however caused.
- If rights are conferred upon the Customer or obligations are imposed upon Formaliti by the Act or other law which cannot be excluded, the provisions of this section [Limited Warranty and Limitation of Liability] shall be read subject to those rights or obligations, and to the extent permitted by such legislation Formaliti hereby expressly limits its liability under any such legislation to the maximum extent permitted by law.
- To the extent that the Act implies any warranties under this Agreement, then Formaliti’s and its service providers’ and related entities’ liability in respect of such implied warranty is limited:
- in the case of goods, to any one or more of the following (as Formaliti and its service providers may in their discretion determine):
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
iii. the payment of the cost of replacing the goods or acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; or
- in the case of services, to any one of the following (as Formaliti and its service providers may in their discretion determine):
- the supplying of the services again; or
- the payment of the cost of having the services supplied again, except as expressly provided elsewhere in this Agreement.
- Subject to clause 62 Formaliti will not be liable for default or failure in performance of its obligations pursuant to this Agreement resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of suitable parts, components, materials including ink, chemicals and paper, labour or transportation or any other cause beyond the reasonable control of Formaliti.
- Formaliti shall in no circumstances be liable to the Customer for any special, direct or indirect incidental and/or consequential damages or loss in connection with the Customer’s use of the Services or the Formaliti System including but not limited to economic loss, negative reaction, loss of use of the Formaliti System, or loss of data or information of any kind including Forms and/or Completed Forms, breach of security or theft of data, or Formaliti System or Website down time or unavailability for any reason, arising out of the supply of the Formaliti System and/or Services or the negligence of Formaliti, its directors, members, employees, contractors, agents and representatives or related entities or however otherwise caused or the failure of the Formaliti System to work or perform in any way or any liability to the Customer, its End Users, or third parties except as set out in clauses 59 to 62, even if Formaliti and its service providers have been advised of or should have known of the possibility of such loss.
- The Customer agrees to indemnify and keep indemnified Formaliti against all actions, proceedings, costs, claims, demands, losses and expenses brought against or suffered by Formaliti which arise, directly or indirectly, from matters as set out in clause 64 and the deliberate or negligent acts or omissions of the Customer, its directors, members, employees, contractors, agents and representatives or assigns in the course of its business, other than liability arising out of the common law or provisions or any Federal or State legislation which are not capable of being excluded by Formaliti.
- To the maximum extent permitted by law, in no event will Formaliti’s and its service providers’ or related entities’ aggregate liability to the Customer exceed the amount of Fees actually paid by the Customer to Formaliti under this Agreement. Formaliti’s obligations are limited to those contained in this section [Limited Warranty and Limitation of Liability] and Formaliti does not authorise, and is not bound by any third party warranty obligations that may be created or implied by the Customer.
- To the fullest extent permitted by law, the Customer indemnifies, releases and holds Formaliti, and its directors, members, employees, contractors, agents and representatives harmless against all liability, claims or proceedings whatsoever arising from the Customer and the End User’s use of the Services and/or the Formaliti System and/or the Forms and/or the Completed Forms (including to obtain electronic signatures) and/or the completion of the Forms, and without limiting the generality of the forgoing, indemnifies Formaliti to the fullest extent permitted by law in relation to the Applicable Laws and otherwise in connection with all matters set out in clauses 60 and 64, and any defamation, slander, breach of copyright, infringement of trademark or names, unfair competition or consumer law, royalties or violation of rights of privacy.
- Without limiting the earlier provisions of this section [Limited Warranty and Limitation of Liability], the Customer acknowledges that the terms on which the Formaliti System is provided, and the content of the Formaliti System may change, and Formaliti may require the Customer to accept any changes upon log-in to the Website as a pre-condition to Formaliti continuing to provide access to the Formaliti system.
Compliance & Breach
- The Customer agrees to comply with this Agreement and the Other Conditions in all respects.
- In the event that the Customer breaches any term of this Agreement or the Other Conditions, Formaliti may, at its election, do one or any of the following:
- suspend or terminate the Customer’s access to the Services and/or Formaliti System; and
- commence proceedings against the Customer for any loss or damage Formaliti suffers as a result of the breach; and
- refer the matter (including the Customer’s name and contact details) to any debt collector or other third party to assist Formaliti in collecting any Fee not paid to Formaliti under the terms of this Agreement, including but not limited to conducting any consumer credit searches or listing the Customer with a credit reporting agency; and
- terminate this Agreement.
Term & Termination
- This Agreement commences on the Commencement Date and will continue for 4 week periods, until terminated by either party on the provision of 4 weeks written notice, or as otherwise terminated by mutual agreement of the parties.
- Formaliti will have the right to terminate this Agreement immediately upon written notice to the Customer in the event that the Customer:
- uses the Formaliti System other than as expressly permitted under this Agreement; or
- fails to pay any amount or Fee due to Formaliti in accordance with this Agreement.
- In the event that this Agreement is terminated, all of the Customer’s rights to use the Services and the Formaliti System will immediately terminate, and the Customer will cease to have access to the Formaliti System (including the Forms and Completed Forms).
- Termination of this Agreement will not act as a waiver of any breach of this Agreement and will not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party will be liable to the other for damages arising by reason of termination of this Agreement in accordance with its terms. Either party’s termination of this Agreement will be without prejudice to any other right or remedy that it may have, and will not relieve either party of any obligation or liability which arose prior to the effective date of such termination.
- Clauses intended to survive termination of this Agreement shall so survive.
Assignment of Agreement
- The Customer agrees and acknowledges that the terms and conditions contained in this Agreement on the part of the Customer are assignable in absolute by Formaliti to a third party (“Assignee”), in Formaliti’s sole discretion (“Assignment”).
- In the event of an Assignment:
- Formaliti will provide express notice of such Assignment in writing to the Customer; and
- the Customer consents to be bound by the terms and conditions contained in this Agreement on the part of the Customer to the same extent as if the Assignee had originally been named in this Agreement as Formaliti.
- The Customer releases and indemnifies Formaliti and its representatives against any liability, damage, loss, cost or expense (including, without limitation, legal fees) suffered or incurred by Formaliti or its representatives arising out of, or in connection with: the Customer being in breach of any of its obligations under this Agreement (including breach of a representation or warranty); any negligent or wrongful act or omission of the Customer or its representatives; any claim, action or proceeding by a third party caused or contributed to by the Customer or its representatives. The indemnities contained in this Agreement will survive the termination of this Agreement.
- Each party warrants to each other party that this Agreement creates legal, valid and binding obligations, enforceable against the relevant party in accordance with its terms.
- The Customer must not assign, charge or otherwise deal with this Agreement or any right under this Agreement without Formaliti’s prior written consent (and where consent is granted by Formaliti, on such terms and conditions as it specifies). Formaliti may assign this Agreement or any part of this Agreement, or any right or obligation under this Agreement, without notice to or the consent of the Customer.
- If due to war, strikes, industrial action short of a strike, import or export embargo, lockouts, accidents, fire, blockade, flood, natural catastrophes or other obstacles over which Formaliti has no control, Formaliti fails to perform any of its obligations under this Agreement, Formaliti shall not be held responsible for any loss or damage which may be incurred as a result of such failure. Should the event of force majeure continue for longer than 4 weeks, Formaliti shall have the option of terminating this Agreement immediately without further liability other than such liabilities as have already accrued when the Agreement ends.
- This Agreement shall be governed and construed in accordance with the laws in force in the State of Queensland, Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland, Australia.
- This Agreement and the Other Conditions constitutes the entire understanding and agreement of the parties in relation to the subject matter hereof and supersedes all prior negotiations, understandings and agreements between the parties in relation to the subject matter. Each of the parties hereby declares that save for the provisions contained in the Agreement and the Other Conditions there is no other understanding, agreement, warranty, undertaking or representation whether express or implied which in any way extends or defines limits or otherwise relates to the express provisions contained in this Agreement or the Other Conditions.
- This Agreement does not create a relationship of employment, agency, joint venture, trust or partnership between Formaliti and the Customer. It is the intent of this Agreement to create a contractual relationship only between Formaliti and the Customer.
- The Customer warrants and covenants in favour of Formaliti, that it has received, or has waived its right to receive, independent legal advice with respect to all matters contemplated by this Agreement.
- This Agreement is binding upon and inures to the benefit of the parties hereto and their respective heirs, personal representatives, administrators, successors and permitted assigns.
- Subject to clause 95, it is expressly agreed that no variation or alteration of this Agreement shall be effective unless in writing and signed by a duly authorised signatory of the Customer and Formaliti.
- This Agreement may be executed in original form and/or by facsimile transmission or pdf copies or electronic digital copies in any number of counterparts and all counterparts taken together shall constitute one and the same instrument.
- If a provision of this Agreement is held to be illegal, invalid, void, voidable or unenforceable, then that provision must be read down to the extent necessary to ensure it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down a provision as required, then that provision is severable without affecting the validity or enforceability of the remaining part of that provision or the other provisions of this Agreement.
- Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.
- A single or partial exercise or waiver of a right by Formaliti relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right by Formaliti. Formaliti will not be liable to the Customer for any loss or expenses incurred by the Customer or any other party caused or contributed to by Formaliti’s waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
- In the event Formaliti or any of its directors, members, employees or other agents are called to testify as a witness or called to provide as a witness any documentation or information in a judicial or administrative proceeding in which the Customer or its End User is a party and Formaliti is not a party, the Customer will pay to Formaliti a per diem fee equal to 150% of the compensation paid by Formaliti to that director, member, employee or other agent for the production of the testimony or the provisions of the documentation or information, together with all travel, transfers, lodging and meal expenses.
- Each party will meet its obligations under the Privacy Act 1988 (Cth) in respect of any personal information that is provided to or accessed by the party in connection with the party’s performance of the Agreement.
- Formaliti may change or add to these terms and conditions for security, legal or regulatory reasons and reserve the right to make changes to at any time. The Customer’s continued use of the Formaliti System following such changes confirms acceptance of these changes.
- In this Agreement, unless the contrary intention appears:
- headings are for ease of reference only and do not affect the meaning of this Agreement;
- the singular includes the plural and vice versa and words importing gender include other genders;
- other grammatical forms of defined words or expressions have corresponding meanings;
- a reference to “AUD$”, “$A”, “dollar” or “$” is a reference to Australian currency;
- a reference to a party includes its executors, administrators, successors and permitted assigns;
- words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies;
- words and expression defined in the Corporations Act 2001 (Cth) as at the date of this Agreement have the meanings given to them in the Corporations Act 2001 (Cth) at that date.
- For the purposes of the Electronic Transactions Act and the execution of this Agreement:
- The Customer and the Customer’s signatory hereby confirm that the identification details of the Customer’s signatory that that have been inserted into this Agreement is true and correct;
- The Customer and the Customer’s signatory hereby consent to the use of the electronic format of this Agreement; and
- Formaliti hereby consents to the use of the electronic format of this Agreement.