Terms & Conditions

Terms & Conditions

September 11, 2021 2022-10-18 20:32

End User License Agreement

1. Acceptance and Term

1.1 This End-User License Agreement (EULA) is between Xoda Pty Ltd ABN 42 658 707 825 (we, us or our) and the account holder (Account Holder), user of the Services, and any other person or entity using or accessing the Services (jointly and severally referred to in this EULA as you or your). This EULA governs your acquisition and use of the Services, including all instructions in hard copy or electronic form and any update, modification or release of any part of the Services which is accessible on our platform (Platform). If you access or download our Software from (1) the Apple App Store, you agree to any terms set forth in the App Store Terms of Service or (2) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google Apps Terms of Service.

1.2 In these Terms, “you” means the individual accessing or using the Services as an end user.

1.3 You accept this EULA by clicking a box indicating acceptance via the Platform or by otherwise using or accessing the Software.

1.4 These Terms will commence on the date on which you accept these Terms and will continue until the date these Terms are terminated in accordance with the Termination clause below (Term).

1.5 If you are using the Services as an Account Holder, in addition to these Terms, the Terms and Conditions will govern your access and use of the Services. To the extent of any ambiguity or inconsistency, the Terms and Conditions will take precedence over the Terms. 

2. Licence

2.1 In consideration of the payment of the fees in respect of the Services by the Account Holder, and for your compliance with these Terms, we grant you a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under these Terms) and revocable licence to access and use the Services for business purposes for the Term (Licence).

3. Accessing the Services

3.1 You can access and download our Software via the Apple App Store or the Google Play Store. Once you download the Software, you will be required to choose a username and password. You will have access to the Platform as determined by the Account Holder or an admin user.

3.2 You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.

3.3 Your Account is personal and you must not transfer it to others, except with our written permission.

3.4 It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account and for ensuring that any activities on your Account comply with these Terms.

3.5         We are not responsible for the management or administration of your Account.

4. Restrictions on Use

4.1 You must not access or use the Services except as permitted by the Licence and you must not (and must not permit any other person to) use the Services in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property Rights, including to:

  • use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing, unwanted, misleading or deceptive;
  • use the Services in any way that damages, interferes with or interrupts the supply of the Services;
  • use the Services in any way that breaches any applicable Laws or infringes any person’s rights, including Intellectual Property Rights (and privacy rights);
  • continue to use the Services after termination of your employment and/or relationship with the Account Holder;
  • introduce malicious programs into our hardware and software or systems, including viruses and malware through any channel;
  • reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details (other than the Account Holder);
  • carry out security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
  • use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services;
  • if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
  • circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users.

5. Third Party Inputs

5.1         You acknowledge and agree that:

  • the provision of the Services may be contingent on, or impacted by, third parties, other customers’ use of our services, suppliers and other subcontractors (Third Party Inputs); and 
  • despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any default or breach of these Terms or law, if such default or breach was caused or contributed to by any Third Party Inputs.

5.2         You acknowledge that the Services include certain optional functionalities or features that may interface or interoperate with third party software or services. To the extent that you choose to use such functionality, you are responsible for the purchase of and any ancillary and/or licensing obligations related to the applicable third party software and services. It is your responsibility to ensure the requirements are met in order for you to benefit from the specific functionality made available to you.

5.3         This clause 5 will survive the termination or expiry of these Terms. 

6. Support Services

6.1 We may, at our sole discretion during the Term, provide you with support services in respect of any technical issues which arise in respect of the Services (Support). If you would like to request such Support, you must lodge a ticket with us through your Account, and we will provide you with Support in accordance with the specifications of your Account Holder’s agreement with us.

6.2 You agree, where we provide any Support to you, to assist us in investigating and ascertaining the cause of any issues and provide us with access to all necessary information relevant to the issue (including what you have done in relation to the issue). Support will be subject to the Terms and Conditions.

7. Warranties

7.1 Our Services are provided to you on an “as is”, and “as available” basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance, merchantability, fitness for a particular purpose, or title. You may have other statutory rights, but the duration of such statutory warranties, if any, shall be limited to the shortest period permitted by law. We will not be liable for delays, interruptions, service failures and other problems inherent with the use of the internet and electronic communications or other systems outside of our reasonable control. To the maximum extent permitted by law, we do not make any representation, warranty or guarantee that:

  • the use of the Services will be secure, timely, uninterrupted or error-free;
  • the Services will operate in combination with any other hardware, software, system, or data;
  • the Services will meet your requirements or expectations;
  • any stored User Data will be accurate or reliable or that any stored User Data will not be lost or corrupted;
  • errors or defects will be corrected; or
  • the Services are free of viruses or other harmful components.

7.2 You warrant and agree that:

  • you have reviewed these Terms including our Privacy Policy, which is available on the Site;
    • you have all hardware, software and services which are necessary to access and use the Services;
    • you will use the Services in accordance with these Terms;
    • all information and documentation that you provide to us in connection with these Terms is true, correct and complete (including your User Account details) and you acknowledge and agree that we will rely on such information and documentation in order to provide the Services;
    • you are responsible for obtaining any consents, licenses, authorities and permissions from other parties necessary for the Services to be provided in accordance with these Terms, at your cost, and for providing us with the necessary consents, licenses, authorities and permissions; and
    • you will maintain the confidentiality and security of any of your User Account and/or Account Holder details and passwords. 

8. Intellectual Property

i. Our Intellectual Property

8.1 All Intellectual Property in the Software and Services and that Intellectual Property developed, adapted, modified or created by us or our officers, employees, contractors, sub-contractors or agents including in connection with these Terms, the Software and the Services and any machine learning algorithms output from the Services, is and will remain owned exclusively by us or our third party service providers or licensors.

8.2 You must not, without our prior written consent:

  • copy or use, in whole or in part, any of our Intellectual Property;
  • reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
  • reverse assemble, reverse engineer, reverse compile or enhance the Services;
  • breach any Intellectual Property Rights connected with the Software or the Services, including altering or modifying any of our Intellectual Property;
  • cause any of any of our Intellectual Property to be framed or embedded in another website (other than the Account Holder’s); or creating derivative works from any of our Intellectual Property;
  • resell, assign, transfer, distribute or make available the Services to third parties;
  • “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; or
  • alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services or Software.
ii. Your Intellectual Property

8.3 As between you and us all User Data is and remains your property or the property of the Account Holder (as applicable).

8.4 License: Where User Data is your property, you grant us a limited license to copy, transmit, store and back-up or otherwise access the User Data during the Term solely to:

  • supply the Services to you (including to enable you to access and use the Services) and your Account Holder;
  • diagnose problems with the Services;
  • enhance and otherwise modify the Services;
  • develop other services, provided we de-identify the User Data; and
  • as reasonably required to perform our obligations under these Terms.

8.5 General: You must, at all times, ensure the integrity of any User Data you input and that your use of the User Data is compliant with all Laws. You represent and warrant that you have obtained all necessary rights, releases and permissions to provide all your User Data to us and to grant the rights granted to us in these Terms.

8.6 We assume no responsibility or Liability for the User Data. You are solely responsible for the User Data and the consequences of using, disclosing, storing or transmitting it.

8.7 We have no obligation to monitor any content uploaded to the Services. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove your User Data from the Services. We have no liability to you for removing your User Data from the Services.

8.8 This clause 8 will survive termination or expiry of these Terms.

9.Our liability

9.1 Despite anything to the contrary, to the maximum extent permitted by law: 

  • we will not be liable for Consequential Loss;
  • a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party, including a failure to mitigate; and
  • (c)          our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us paying you $100. 

9.2 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with: 

  • failure or delay in providing the Services;
  • breach of these Terms or any Laws;
  • loss of, or damage to, any property or any injury to or loss to any person;
  • the Computing Environment;
  • your acts or omissions; 
  • any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms; 
  • any User Data, including where our use of it, as contemplated by these Terms, infringes on the rights of a third party;
  • any retailer you onboard onto the platform, including any of their products, services, content, advertising and compliance with any Laws;
  • any works, services, data, hardware, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us; 
  • any Third Party Inputs;
  • the Services and UserData being unavailable, or any delay in us providing the Services and UserData to you, for whatever reason; and/or
  • any event outside of our reasonable control.

9.3         To the maximum extent permitted by law, you indemnify and continue to indemnify us against all Liability we suffer or incur arising from or as a consequence of a breach of clause 8 (Intellectual Property) and/or your use of the Services contrary to these Terms, including from any claim relating to the User Data.

9.4         Certain legislation, including the Australian Consumer Law, and similar consumer protection Laws and regulations may confer you with rights, warranties, guarantees and remedies relating to provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in this Agreement.

9.5        You acknowledge and agree that:

  • you are responsible for your use of the Services;
  • you use the Services and any associated programs and files at your own risk;
  • the technical processing and transmission of the Services, including the User Data, may be transferred unencrypted and involve:
    • transmissions over various networks; and
    • changes to conform and adapt to technical requirements of connecting networks or devices;
  • we may use third-party service providers to assist in transmitting or hosting the Services, including for the collection of and provision of the User Data. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without liability or entitling you to any refund, credit, or other compensation;
  • the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;
  • any Third Party Inputs and/or reliance on these Third Party Inputs, for example reliance on any data from third parties;
  • we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used we are not responsible for any corruption or loss of any User Data if such corruption or loss is due to an act or omission by you; and
  • we are not responsible for the integrity or existence of any User Data on the in the Computing Environment, network or any device controlled by you.

9.6 This clause 9 will survive the termination or expiry of these Terms.

10. Termination

10.1      You may terminate these Terms at any time via the “cancel Account” (or similar) feature in your Account.

10.2      The Account Holder may terminate your access to your Account or change your access privileges at any time at their discretion. If the Account Holder’s subscription is suspended or terminated, we may also suspend your Account, your access or terminate your Account.

10.3      If we have reason to believe you are misusing the Services or are otherwise in breach of these Terms, we may suspend and/or terminate your Account at any time, by providing you with notice, in which case we will immediately cease providing the Services to you.

10.4      This clause 10 will survive the termination or expiry of these Terms

11. Disputes

11.1      Disputes: If any dispute or claim (including any question regarding its existence, validity or termination) arises out of or in connection with these Terms (Dispute), either Party may issue a notice to the other Party outlining the dispute or claim (Notice of Dispute). Within 14 days of a Notice of Dispute, the Parties must meet in good faith to resolve the Dispute by negotiation or such other means as they mutually agree. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may:

(a) where the Parties are both located in Australia, refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties; and

(b) where either Party is located outside of Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration (ACICA), with such arbitration to be conducted in Sydney, New South Wales, in English and in accordance with the ACICA Arbitration Rules. The costs of the arbitration will be shared equally between the Parties and the determination of the arbitrator will be final and binding.

11.2      This clause 11 will survive the termination or expiry of these Terms.

12. Privacy

12.1      Our collection, use, disclosure and management of any User Data you provide to us or that you input into the Services, including user and employee personal information, is managed in accordance with our Privacy Policy, which can be accessed at XODA Privacy Policy.

12.2      By using our Services, you acknowledge that you have read our Privacy Policy and that you consent to us collecting, using, disclosing and managing your User Data as set out there

13. General

13.1 Changes to the Services: You agree that we may make changes to the Software and Services in accordance with the Terms and Conditions. If you have any concerns about any such changes, you should speak to an Account Holder.

13.2      Changes to the Terms: We may amend these Terms at any time, by providing written notice to you. By continuing to use the Services, you agree to the amended terms. If you do not agree to the amendment, you must terminate these Terms in accordance with the Termination clause.

13.3      Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent (such consent is not to be unreasonably withheld).

13.4      Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments, and agreements, in respect of its subject matter.

13.5      Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.

13.6      Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.

13.7      Governing law: This Agreement is governed by the laws of New South Wales, Australia. Subject to clause 11.1(b), each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

13.8      Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).

13.9      Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

13.10    Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

14. Definitions

In these Terms, unless the context otherwise requires, capitalized terms have the meanings given to them in any Order, and:

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010(Cth), as amended, from time to time.

Account means an account accessible to you to use the Services.

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Hardware and Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.

Services means the integration of a white labelled product comparison system onto the Account Holder’s website, that can be monitored, managed, controlled and edited via the Platform.

Software means the software used to provide any of the Services, any software as a service, any instructions in hard copy or electronic form and any update, modification or release of any part of that software after these Terms are entered into by the Parties.

Terms means this End User License Agreement and any terms agreed under it and any documents attached to, or referred to in them.

Terms and Conditions means the terms and conditions we entered into with the Account Holder.

User Data means the information, documents and other data provided by you to us or inputted by you (including in relation to any retailer), into the Software or stored by the Services as a result of your use of the Services;

15. Interpretation

a. In these Terms, unless the context otherwise requires:

(a) a reference to these Terms or any other document includes the document, all schedules, attachments and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

(g) a reference to time is to local time in New South Wales; and

(h) a reference to $ or dollars refers to the currency of Australia from time to time.

 

For any questions and notices, please contact us at:

Xoda Pty Ltd (ABN 42 658 707 825)

Address: Unit 8 431-433 Burke Rd Glen Iris VIC 3146

Email: support@xoda.com

Last update: 15 April 2022