“Client Data” or GoVisually data stored in the GoVisually platform means any content, data, information or material that is uploaded and stored by, the Services, concerning the characteristics and activities of Users
“Personal Information” means all Personal Data relating to a person that identifies such person or could reasonably be used to identify such person, including but not limited to, first and last name, home address, billing address, or other physical address, email address, telephone number (As defined by the Privacy Act 1988 (Cth) pt II div 1. Retrieved fromhttps://www.legislation.gov.au/Details/C2018C00034)
“Subscription / Subscription Plan” means the Services outlined in the Services Order Form, and ‘services’ provided by the GoVisually platform;
“Services” or GoVisually platform services means the content, features, functionality, tools, data, software applications and APIs provided by GoVisually via https://govisually.com/ and/or other designated websites as described in the Services Order Form
“Third Party” means any third party (i) to which You provide access to Your Account or (ii) for which You use the Service to collect information on the third party’s behalf.
“Users” means individuals who are authorized by Client to use the Services, for whom subscriptions to the Services have been purchased under an Order, and who have been supplied user identifications and passwords by Client (or by GoVisually, at Client’s request). Users may include Client’s employees, consultants, contractors and agents or third parties with which the Client transacts business.
Services and Support
Subject to the terms of this Agreement, GoVisually will use commercially reasonable efforts to provide Client the Services in accordance with the Services uptime guarantee listed in the above Order Form.
Subject to the terms of this Agreement, GoVisually will provide Client with reasonable technical support services in accordance with the terms set forth in the above Order Form.
Rights of GoVisually
All right, title, and interest in and to the Services (excluding Data provided by Client) are and will remain the exclusive property of GoVisually and its licensors.
The Services are protected by copyright, trademark, and other laws of both Australia and foreign countries. Client will not use GoVisually name or any of the GoVisually trademarks, logos, domain names and other distinctive brand features.
GoVisually reserves all intellectual property rights, including, but not limited to, copyright in the Services.
Client hereby grants GoVisually the non exclusive right and license to use and display the Client’s name, logo and similar indicia (“Client Marks”)
to the extent any customization or implementation of the Services involve the incorporation of Client Marks in furtherance of this Agreement and
on its website and marketing collateral identifying Client as a customer of GoVisually
GoVisually obtains no rights in the Client Marks except for the limited right described in the preceding sentence, and Client retains all right, title and interest in the Client Marks. All use of the Client Marks by GoVisually will insure to Client.
Non Exclusive License
GoVisually hereby grants Client a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the GoVisually Code (“IC”) solely as necessary to use the Services for one or more web pages or domains that Client owns and/or controls (collectively, the “Website”) pursuant to Client’s Subscription Plan and the terms of this Agreement
Client will not, nor will Client allow any third party to:
copy, modify, adapt, translate or otherwise create derivative works of the Services;
reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Services;
rent, lease, sell, assign, sublicense or otherwise transfer rights in the Services;
remove any proprietary notices or labels on the Services or placed by the Services;
use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services; or
use the Services for illegal purposes.
Client will use the Services solely for Client’s own internal use, and will not
make the Services available for timesharing, application service provider or service bureau use;
use the Services outside of the scope of the license granted hereunder;
send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or that violates third party privacy rights; and/or
send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs. Client will comply with all applicable laws and regulations in client’s use of and access to the Services.
Subscription, Account and Cancellation
Client will at all times be responsible for maintaining the security of Client’s Account. Client shall take all necessary steps to protect Client’s Account password from disclosure. Client is fully responsible for Client’s own and third party use of Client’s Account. GoVisually will not be liable for any loss and/or damage resulting from Client’s failure to comply with this section. Client agrees to notify GoVisually immediately upon learning of any unauthorized use of Client’s Account or any other breach of security.
Client shall pay GoVisually the fees for Client’s Subscription Plan (the “Subscription Plan Fees”) in advance unless otherwise explicitly specified in Client’s Order Form. Any fees unpaid by Client by the due date shall thereafter bear interest at the rate of one and a half percent (1.5%) per month (or the maximum amount permitted by applicable law, whichever is less), during the period between the date the payment first becomes due and the date such amount is actually paid.
All amounts owed to GoVisually are non-cancellable and fees paid are non-refundable except as explicitly stated otherwise in writing.
GoVisually may use various billing service providers. When using such provider’s services, Client agrees to follow and comply with the policies of such provider.
All fees payable hereunder, do not include local, state, or federal sales, use, excise, personal property, GST, VAT or other similar taxes or duties, including, without limitation, any withholding tax, and any such taxes, to the extent legally applicable, shall be borne and paid by Client. For the avoidance of doubt, Client shall not be responsible for any payment of taxes based on GoVisually’s net income.
This Agreement shall be in force until Client’s subscription expires or is terminated pursuant to the terms herein. At the end of the subscription period specified in Client’s Subscription Plan, Client’s Subscription Plan will be automatically renewed unless otherwise explicitly stated in an Order Form or if terminated pursuant to the terms herein.
If Client wishes to terminate subscription prior to the renewal of Client’s Subscription Plan then Client may do so by contacting GoVisually for Account cancellation. When Client cancels subscription, Client’s Subscription Plan will remain active during the then current subscription period specified in Client’s Subscription Plan, but Client’s Subscription Plan will not thereafter be renewed.
GoVisually, in its sole discretion, has the right to suspend or terminate Client’s subscription and refuse any and all current or future use of the Services at any time as a result of Client’s breach of this Agreement or for any other reason.
Upon any termination or expiration of this Agreement, GoVisually will cease providing the Services to Client, and Client will delete all copies of GoVisually Code from all web pages under Client’s control and certify thereto in writing to GoVisually within three (3) business days of such termination. In the event of any termination
Client will not be entitled to any refunds of any usage fees or any other fees (except as explicitly otherwise provided in writing), where GoVisually has suspended or terminated the Services for material breach by the Client in accordance with clause 5.8. In all other cases, Client will be entitled to a refund of any fees paid for the remaining term of the Agreement on a pro-rata basis.
any outstanding balance through the date of termination, and other unpaid payment obligations will be immediately due and payable in full and
all of Client’s Reports, Recordings, Client Data and other data associated with Client’s Account will no longer be available to Client.
Client Data
Client retain full ownership of Client Data. Client hereby allows GoVisually to collect, store and process Client Data. GoVisually shall use and maintain Client Data only as set forth in this Agreement and the GoVisually Privacy Policy available at https://govisually.com/privacy, as may be updated from time to time.
GoVisually will not use or disclose Client Data to any third parties except
if required in limited circumstances, including when complying with legal requirements, preventing fraud or imminent harm, and ensuring the security of our network and services;
if it is part of aggregated, non-personal information, such as average page load time, or the number of pages processed by our system per day; or
to a limited number of GoVisually employees or contractors as required to operate, develop or improve the Services.
Upon any termination or expiration of this Agreement, GoVisually will permanently delete all of Client Data in two (2) business days.
Privacy
For information about GoVisually’s data protection and collection practices, please read the GoVisually Privacy Policy https://govisually.com/privacy, which is incorporated herein by reference. Client agrees to GoVisually’s use of Client’s data in accordance with the Privacy Policy.
Client represents and warrants that Client will not transmit, provide, or otherwise make available to GoVisually sensitive personal information about other individuals, including but not limited to other employees, customers, partners, or site visitors. Sensitive personal information includes but is not limited to information regarding a minor, financial information, and medical or health information.
Third Parties
If Client is an agency or a party representing a third party (“Third Party”), Client represents and warrants that Client is authorized to act on behalf of, and bind to this Agreement, that Third Party (and upon our request shall provide evidence of such).
Client further represents and warrants that such Third Party has provided Client with explicit permission to collect on its behalf and view its Client Data and that Client shall use such Client Data strictly in accordance with the permissions provided to Client by such Third Party and the terms of this Agreement.
Client shall ensure that each Third Party agrees to the terms of this Agreement and agrees to abide by its terms, including without limitation, Section 5 (Privacy). Client acknowledges and agrees that
GoVisually makes no representations or warranties for the direct or indirect benefit of any Third Party and
that Client will not make any representations or warranties to such Third Party on behalf of GoVisually. Client shall take all measures necessary to disclaim any and all representations or warranties that may pertain to GoVisually, the Services, or use thereof. Client agrees to indemnify, hold harmless and defend GoVisually, at Client’s expense, against any and all third-party claims, actions, proceedings, and suits brought against GoVisually or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by GoVisually, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to
any representations and warranties made by Client concerning any aspect of the Services to a Third Party;
any claims made by or on behalf of any Third Party pertaining directly or indirectly to Client’s use of the Services;
violations of Client’s obligations of privacy to any Third Party; and
any claims with respect to acts or omissions of a Third Party in connection with the Services.
Warranties and Disclaimer of Warranties
Client represents and warrants that:
Client has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; and
Neither the execution, delivery, nor the performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which Client is bound.
The Services (including, without limitation, any information, features or functionality contained therein), may include inaccuracies or typographical errors. GoVisually and/or its respective suppliers may make improvements and/or changes in the Services at any time, with or without notice. Client specifically agrees that GoVisually shall not be responsible for unauthorized access to or alteration of the Client Data or data from Client’s Website.
GoVisually does not guarantee the Services will be operable at all times including, without limitation, during any down time
caused by outages to any public Internet backbones, networks or servers,
caused by any failures of Client’s equipment, systems or local access services,
for previously scheduled maintenance or
relating to events beyond GoVisually’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where GoVisually or Client’s servers are located or co-located. Complete accuracy in all aspects of Client’s Recordings or Reports at all times also is not guaranteed.
THE SERVICES ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY GOVISUALLY, EITHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. GOVISUALLY DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S NEEDS OR BE FREE FROM ERRORS OR VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO CLIENT.
Limitation of Liability
GOVISUALLY WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF GOVISUALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY TO CLIENT.
IN ANY EVENT GOVISUALLY TOTAL CUMULATIVE LIABILITY TO CLIENT OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT FOR THE SERVICE FOR 1 MONTH PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
Waiver / Severability
The failure of GoVisually to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, at the option of GoVisually the remaining provisions of these Terms will remain in full force and effect.
Governance
The use of the Services provided by GoVisually and the agreement set out in these Terms are governed by the laws of New South Wales, Australia, without giving effect to any principles of conflicts of laws. Client agrees to the jurisdiction of the courts of New South Wales to determine any dispute arising out of these Terms.
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