CABINET VISION Subscription Licences Terms and Conditions
1. The Terms
(a) These terms and conditions (“Terms”) relate to products and services provided by The Solution Specialists Pty Ltd (ACN 050 037 879) trading as Planit Cutting Edge Solutions (“Planit”) defined in the above proposal (“Proposal”).
(b) Planit provides software and technology solutions for the cabinetry and joinery industry, including support and training (“Products & Services”).
(c) Please read these Terms and the Terms of the End User Licence Agreement (“EULA”) carefully. If you do not agree with the Terms or the EULA, you must cease usage of any Products & Services immediately.
2. Acceptance of the Terms
By executing the Proposal and receiving the Products & Services, you accept the Terms and the EULA. You may also accept the Terms by simply using the Products & Services.
3. Subscription to use the Products & Services
(a) In order to access the Products & Services, you must first purchase a subscription by way of accepting the Proposal (the “Subscription”) and paying the applicable fee for the selected Subscription (the “Subscription Fee”).
(b) The minimum term for the Subscription is twelve (12) months from the date of purchase (the “Subscription Period”).
(c) At the conclusion of each Subscription Period, your Subscription will automatically renew for a further twelve (12) month Subscription Period, unless you advise Planit in accordance with clause 12 of the Terms.
(d) In purchasing the Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription you elect to purchase is suitable for you and your use. You acknowledge and agree that Planit is not aware of your needs or intended use for the Products & Services, nor that Planit provides any warranties of the suitability of the Products & Services for that purpose.
(e) The Subscription licence configuration can only be added to at the 6 month or 12 month period , with 30 days prior notice required for the change. Modules can only be added to a Subscription Licence and cannot be removed from the Subscription licence.
(f) As part of the registration process, or as part of your continued use of the Products & Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
(i) Company Name;
(ii) Email address;
(iii) Preferred username;
(iv) ABN;
(v) Mailing address; and
(vi) Telephone number.
(g) You warrant that any information you give to Planit in the course of completing the registration process will always be accurate, correct and up to date. You also warrant that you will update Planit in the event that this information changes.
Once you have purchased a Subscription and undertaken any associated registration process, you will be a registered customer of Planit (“Customer”) and agree to be bound by the Terms. As a Customer you will be granted access to the Products & Services from the time you have completed the registration process and your order has been processed, until the earlier of the Subscription Period expiring or termination.
(h) You may not use the Products & Services and may not accept the Terms if:
(i) you are not of legal age to form a binding contract with Planit; or
(ii) you are a person barred from receiving the Products & Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Products & Services.
(i) By accepting the Terms and becoming a registered Customer, you warrant that you are capable of forming a binding contract with Planit and you are not barred from receiving the Products & Services by law.
4. Payment of the Subscription Fee
(a) Payment of the Subscription Fee is to be completed as required by Planit and clause 5 of these Terms.
(b) The Subscription Fee may be paid:
(i) Annually in full; or
(ii) Quarterly.
(c) Where payment of the Subscription Fee is to be paid on a quarterly or annual basis, then payment is due each quarter or year, from the day of commencement of the Subscription Period respectively, unless otherwise directed by Planit.
(d) If you terminate your Subscription prior to the conclusion of the Subscription Period, you will be charged without notice for the balance of the Subscription Fee that is payable for the remainder of the Subscription Period.
(e) Planit is entitled to amend or alter the payment structure from time to time as it deems necessary.
(f) The Subscription Fee excludes all external costs for third parties that may be associated with use of, or access to, the Products & Services.
5. Payment Method
(a) Where the option is given to you, you may make payment of the Subscription Fee by way of Credit Card Payment (‘Credit Card’), Electronic Funds Transfer (‘EFT’), Stripe or any other payment method offered or required by Planit from time to time.
(b) When making any payment in relation to your use of the Products & Services, you warrant that you have read, understood and agree to be bound by the terms and conditions of any third party through which payment is made, which are available on that third party’s website.
(c) You acknowledge and agree that where a request for the payment of the Subscription Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Subscription Fee.
6. Renewal of Your Subscription
(a) Your Subscription will automatically renew for an additional 12 months at the expiration of the Subscription Period.
(b) If you do not wish to renew your Subscription with us, you must provide Planit with a minimum of 30 days’ written notice to cancel your Subscription (in accordance with clause 13 of the Terms).
(c) Planit review their Subscription Fees periodically and reserve their right to change them. Planit must notify you with a minimum of 30 days’ written notice of any changes to the Subscription Fee. Following such notice being provided, you authorise Planit to increase any Subscription Fees.
7. Your obligations as a Customer
(a) As a Customer, you agree to comply with the following:
(i) you will use the Products & Services only for purposes that are permitted by:
(A) the Terms;
(B) the terms of the EULA; and
(C) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(ii) Use of your Subscription or the Products & Services by any other person will result in the immediate cancellation of the Products & Services and the payment of a sum equal to the Subscription Fee, for every individual or organisation that has obtained benefit from your Subscription. As a customer, you agree that such payment is reasonable compensation for loss suffered by Planit due to your breach;
(iii) you agree to immediately notify Planit as soon as reasonably practicable of any unauthorised use of your Subscription or any breach of security of which you have become aware;
(iv) access and use of the Products & Services is limited, non-transferable and allows only the sole use of the Products & Services by you;
(v) you accept that Planit will not indemnify you, nor pay you any compensation for any unused or expired Products & Services or Subscription;
(vi) you will not use the Products & Services in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Planit; and
(vii) you will not use the Products & Services for any illegal and/or unauthorised use which includes collecting email addresses of Customers by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to Planit.
8. Refund Policy
(a) Your Subscription is non-refundable if you change your mind about the Subscription and the Products and Services.
(b) Planit will only provide you with a refund of the Subscription Fee in the event they are unable to continue to provide the Products & Services or if the manager of Planit makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances. Where this occurs, the refund will be in the proportional amount of the Subscription Fee that remains unused by the Customer (the 'Refund'). Planit shall not be liable for any delay or failure to perform its obligations under any agreement, including providing the Products & Services, if such delay or failure is due to a Force Majeure.
9. Copyright and Intellectual Property
(a) The Products & Services and all of the related products of Planit are subject to copyright. Unless otherwise indicated, all rights (including copyright) in the Products & Services (including but not limited to text, graphics, logos, button icons, video images, audio clips, Planit’s website, code, scripts, design elements and interactive features) owned or controlled for these purposes, and are reserved by Planit or Hexagon Group trading as Hexagon AB (“Hexagon”).
(b) You may not, without the prior written permission of Planit and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Products & Services or third party products for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials that Planit has stated otherwise, and are freely available for re-use or are in the public domain.
(c) Failure to comply with this clause may result in direct payment to Hexagon for any losses suffered by Planit.
10. Privacy
(a) Planit takes your privacy seriously and any information provided through your use of the Products & Services are subject to Planit’s Privacy Policy.
11. General Disclaimer
(a) Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
(b) Subject to this clause, and to the extent permitted by law:
(i) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(ii) Planit will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Products & Services or these Terms (including as a result of not being able to use the Products & Services or the late supply of the Products & Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
(c) Use of the Products & Services is at your own risk. Information about the Products & Services is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Planit make any express or implied representation or warranty about the Products & Services, including (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(i) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(ii) the accuracy, suitability or currency of any information about the Products & Services, or any of its Products & Services related products; and
(iii) costs incurred as a result of you using the Products & Services or any of the products of Planit.
12. Limitation of liability
(a) Planit’s total liability arising out of or in connection with the Products & Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Products & Services to you.
(b) You expressly understand and agree that Planit, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
13. Termination of Contract
(a) The Terms will continue to apply until terminated by either you or by Planit as set out below.
b) If you want to terminate the Terms, you may do so by:
(i) providing Planit with 30 days’ notice of your intention to terminate;
(ii) closing off any access to the Products & Services; and
(iii) paying any and all Subscription Fees, payments or fees that are due and payable. Where you have received a discount on the standard Subscription Fee for any reason, you will be required to pay the difference between the standard and reduced price of the Subscription Fee.
(c) Your notice should be sent, in writing, to Planit via email to sales@planitaustralia.com.au.
(d) You are not entitled to a refund or reimbursement upon termination, for any fees or payments paid for the Subscription Period.
(e) Planit may at any time, terminate the Terms and any agreement with you if:
(i) It has given 30 days’ notice of its intention to terminate;
(ii) you have breached any provision of the Terms or intend to breach any provision;
(iii) Planit is required to do so by law;
(iv) The provision of the Products & Services to you by Planit is, in the opinion of Planit in its sole discretion, no longer commercially viable.
(f) Subject to local applicable laws, Planit reserves the right to discontinue or cancel your Subscription at any time and may suspend or deny, in its sole discretion, your access to the Products & Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Planit’s name or reputation or violates the rights of those of another party.
14. Effect of Termination:
(a) Upon Termination of this Agreement you:
(i) shall have no licence, service or usage rights, or other right with respect to the Licenced Materials;
(ii) shall immediately cease using any Licenced Material and promptly uninstall and erase Planit’s materials from all computers used by you;
(iii) shall destroy any licence or, upon request from Planit, return the same to Planit or its affiliates;
(b) Planit reserves its rights to require you to certify and/or show satisfactory proof that all copies of Planit’s materials have been uninstalled and destroyed, or returned as applicable.
(c) Termination of this Agreement or any licence shall not relieve you from any obligation accrued on or before the date of termination, including without limitation any payment obligation to Planit or its affiliates.
(d) Provisions that survive this agreement include those in Clauses 9, 10, 11, 12 and
15. Right to Suspend Performance:
(a) If you fail to make a payment to Planit or otherwise breach the Terms of this Agreement, Planit may, without prejudice to any other right or remedy available to Planit, suspend performance, and/or suspend your Subscription. In addition, Planit may do the same if it has reasonable grounds for insecurity concerning your performance under this Agreement.
16. Indemnity
(a) You agree to indemnify Planit, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(i) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your use of the Products and Services and non-compliance with the End User Licence Agreement; and
(ii) any breach of the Terms.
17. Dispute Resolution
(a) Compulsory:
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
(b) Notice:
A party to the Terms claiming a dispute (“Dispute”) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
(c) Resolution:
On receipt of that notice (“Notice”) by that other party, the parties to the Terms must:
(i) Within 30 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(ii) If for any reason whatsoever, 30 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of The NSW Small Business Commission or his or her nominee;
(iii) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(iv) The mediation will be held in Sydney, Australia.
(d) Confidential:
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
(e) Termination of Mediation:
If one (1) month has elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
18. Venue, Jurisdiction & Governing Law
(a)The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules.
(b) The Products & Services offered by Planit are largely consumed by individuals and entities based in Australia or New Zealand. In the event of any dispute arising out of or in relation to the Terms, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
19. Severance
(a) If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.