In these Terms, capitalised words and phrases have the meaning given to them when first used and followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.
These terms and conditions (Terms) govern your membership with “GoVisually”, a product described on our Website (Subscription). Your Subscription is for the tiered package as selected by you and agreed between us, as those tiers are described on our Website (Subscription Tier).
By purchasing your Subscription or otherwise accepting the benefit of any part of the GoVisually Solution, you agree to be bound by these Terms which form a binding contractual agreement between you (the Client, or you) and us, Clock Work Studio Pty Ltd ABN 11 143 452 877 (GoVisually, our, we or us). You represent and warrant that you are over 16 years of age and have valid authority to enter into these Terms on behalf of any entity you may represent.
Please note that your Subscription will continue to renew indefinitely, and you will continue to incur Subscription Fees, unless you notify us that you want to cancel your Subscription in accordance with clause 7.2. Please ensure you contact us if you want to cancel your Subscription.
We may change these Terms at any time by notifying you, and your continued use of your Subscription following such an update will represent an agreement by you to be bound by the Terms as amended.
Please read these terms and conditions carefully before agreeing to proceed with the GoVisually Solution.
- THE GOVISUALLY SOLUTION
- YOUR SUBSCRIPTION AND THE SOLUTION
- (The GoVisually Solution) The GoVisually Solution includes, to the extent described in your Subscription Tier, the Software, the Hosted Services and the Support Services.
- (Scope of Subscription) Your Subscription includes the benefits and limitations set out on our Website for your Subscription Tier, or otherwise communicated to you, when you subscribe for your Subscription (as amended from time to time by notice to you).
- (Provide Information) As part of registering for, and your continued use of, your Subscription, you are required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, photos and video, audio files, profile information, payment details, ratings and reviews, verified identifications, verified certifications and authentication, and other information as determined by GoVisually from time to time. You warrant that any information you give to GoVisually in the course of completing the Subscription registration process is accurate, honest, correct and up to date.
- THE SOFTWARE
- During the Subscription Period, GoVisually grants to you a non-exclusive, non-transferable licence for the Number of Licensed Users to use the Software and Documentation.
- GoVisually may from time to time in its absolute discretion release enhancements to the Software, where enhancements means any upgraded, improved, modified or new versions of the Software. Any enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime.
- GoVisually will provide the Software in accordance with:
- your reasonable directions; and
- all applicable laws and industry standards.
Unless otherwise agreed, GoVisually may not provide access, or suspend access, to any part of the Software until you has paid the relevant instalment of the Subscription Fees.
- HOSTED SERVICES
- (hosting location) You acknowledge and agree that GoVisually uses storage servers to host the Software is located in the United States of America, and potentially other locations outside Australia.
- (service quality) While GoVisually will use its best efforts to select an appropriate hosting provider, it does not guarantee that the hosting of the Software will be free from errors or defects or that the Software will be accessible or available at all times.
- (security) GoVisually will use its best efforts to ensure that Customer Data is stored securely. However, GoVisually does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Customer Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
- (backups & disaster recovery) GoVisually will use its best efforts to create scheduled daily backups of Customer Data stored by GoVisually. In the event that Customer Data is lost due to a system failure (e.g. a database or web server crash), GoVisually will attempt to restore the Customer Data from the latest available backup, However, GoVisually cannot guarantee that any backup will be free from errors or defects.
- SUPPORT SERVICES
- GoVisually will provide reasonable support services to you during the Term as necessary to ensure you can access and use the Software, including through a help desk (Support Services).
- GoVisually will use its best endeavours to provide the Support Services within a reasonable timeframe and to resolve issues to your satisfaction. However, there are factors that influence GoVisually’s provision of the Support Services, including time zones and competing priorities.
- You will not have any claim for delay in the Support Services.
- SUBSCRIPTION FEES AND PAYMENT
- (Subscription Fee) You must pay to GoVisually the Subscription Fees in the amounts and at the times you selected in the pricing section of our website for the Subscription Tier you select at https://govisually.com/pricing/ when registering your Subscription, or as otherwise agreed in writing. Payments must be made through our third party payment provider (Stripe) (Subscription Fee). All Fees are in USD$, and are payable in advance.
- All Subscription Fees must be paid in advance and are non-refundable.
- (Free 7-day Trial) Your Subscription includes a 7 day trial. This entitles you to a free trial of GoVisually. After that time, your Subscription Fee for the Subscription Period is payable and non-refundable unless you cancel and inform us you do not wish to proceed to a Subscription.
- Unless otherwise agreed in writing, the Subscription Fees are due and payable on the date of the commencement of each Subscription Period.
- (Automatic Recurring Billing) Your Subscription will continue for the Subscription Period you selected when subscribing to GoVisually. This may include an initial period with a one-time charge, followed by recurring Subscription Fees as agreed by you. Your Subscription will continue to renew indefinitely, unless you notify us within 30 days of the expiry of the then current Subscription Period that you want to cancel your Subscription. Otherwise, we will continue to debit the Subscription Fees from your account. We will not pay any charge back amount if you fail to cancel your Subscription in accordance with this clause. By choosing a recurring payment plan, you acknowledge that your Subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. We may submit periodic charges for the Subscription Fees without further authorization from you, until you provide prior notice (receipt of which is confirmed by us) that you have terminated this authorization or wish to change your payment method. Such notice will not affect charges submitted before we reasonably could act. To terminate your authorization or change your payment method, please contact us through the methods provided on our website.
- Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by GoVisually, you must pay the GST subject to GoVisually providing a tax invoice.
- The Company reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
- We reserve the right, from time to time, to change the Subscription Fees. We will notify you in advance if we do this.
- YOUR OBLIGATIONS
- You must, and must ensure that all Users, comply with these Terms at all times. You acknowledge and agree that GoVisually will have no liability for any act of a User for damage, loss or expense suffered by a User in connection with the use of the Software and will indemnify GoVisually for any such damage, loss or expense.
- You must not, and must not encourage or permit any User or any third party to, without GoVisually’s prior written approval:
- upload sensitive information or commercial secrets;
- upload any inappropriate, illegal, offensive, threatening, libellous, defamatory, homophobic, pornographic, racist, obscene, or otherwise objectionable or violate any party’s Intellectual Property Rights or this Agreement.
- upload any material that is owned or copyrighted by a third party;
- make copies of the Documentation or the Software;
- adapt, modify or tamper in any way with the Software;
- remove or alter any copyright, trade mark or other notice on or forming part of the Software or Documentation;
- create derivative works from or translate the Software or Documentation;
- publish or otherwise communicate the Software or Documentation to the public, including by making it available online or sharing it with third parties;
- sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software or Documentation to any third party;
- decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
- attempt to circumvent any technological protection mechanism or other security feature of the Software; or
- permit any person other than Licensed Users to use or access the Software or Documentation.
- If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Website.
- We have the discretion (but not obligation) to terminate a Customer’s access to and use of the Services if, we determine that Customer or its Authorised Users are repeat infringer of the Intellectual Property Rights of us or third parties.
- INTELLECTUAL PROPERTY AND DATA
- SOFTWARE CONTENT INTELLECTUAL PROPERTY
- (GoVisually ownership) GoVisually retains ownership of all materials provided to you through the course of your Subscription (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Software Content) and reserves all rights in any Intellectual Property Rights owned or licensed by it not expressly granted to you.
- (Licence to you) You are granted a licence to the Software Content, for the Number of Licensed Users, and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing it and using it for the purposes described to you. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Software Content without prior written consent from GoVisually or as permitted by law.
- CLIENT DATA
GoVisually Rights and Obligations
- You grant to GoVisually (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use you Data to the extent reasonably required to provide the GoVisually Solution.
- GoVisually will:
- establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of Client Data;
- not make any undocumented, unreported or authorised configuration changes to GoVisually’s systems or to the information security controls that secure Client Data, if those changes would materially decrease the protections afforded to Client Data; and
- notify and keep you notified at all times of GoVisually’s current safety and security procedures and safeguards that are made from time to time.
- GoVisually reserves the right to remove any Client Data, including where it deems you Data to be inappropriate, offensive, illicit, illegal, pornographic, homophobic or racist.
Your Obligations and Grant of Licence to GoVisually
- You are responsible for ensuring that:
- you share Client Data only with intended recipients; and
- all Client Data is appropriate and not offensive.
- warrant that GoVisually’s use of Client Data will not infringe any third-party Intellectual Property Rights; and
- indemnify GoVisually from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
- CONFIDENTIALITY AND PRIVACY
- Except as contemplated by these Terms, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
- Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information (Security Breaches).
- The notifying party will investigate each potential, actual or suspected Security Breach and assist the other party in connection with any related investigation.
- The Company warrants that:
- during the Term, the Software will perform substantially in accordance with the intended purpose;
- the Hosted Services and Support Services will be fit for purpose and provided by Personnel who have expertise in the provision of those Services;
- during the Term, the Solution will be provided as described to you in and subject to these Terms; and
- to its knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.
- The Company will correct any errors, bugs or defects in the Software which arise during the Term and which are notified to GoVisually by you unless the errors, bugs or defects:
- result from the interaction of the Software with any other solution or any computer hardware or services not approved in writing by GoVisually;
- result from any misuse of the Software; or
- result from the use of the Software by you other than in accordance with these Terms or the Documentation.
- To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these Terms are excluded. Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, GoVisually’s liability for breach of that non-excludable condition, warranty or guarantee will, in GoVisually’s absolute discretion, be limited to:
- in the case of goods, their replacement or the supply or equivalent goods or their repair; and
- in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
- LIMITATION OF LIABILITY
To the maximum extent permitted by law, GoVisually’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with these Terms or a Subscription:
- is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
- is limited, insofar as concerns other liability, to the total money paid to GoVisually under these Terms as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
Nothing in these Terms is intended to limit the operation of the Competition and Consumer Act 2010 (Cth).
You indemnify GoVisually from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
- any breach of these Terms by you; or
- any negligent, fraudulent or criminal act or omission of you or its Personnel.
- UPGRADES, DOWNGRADES AND CANCELLATION OF YOUR SUBSCRIPTION
- UPGRADE AND DOWNGRADES
- You may notify us that you would like to upgrade or downgrade your Subscription Tier at any time. If you do, we will:
- as soon as possible, provide you with access to the new Subscription Tier; and
- immediately upon providing such access, apply the new Subscription Fees agreed with you, where that current billing cycle will be charged at the new Subscription Fee as if that Subscription applied for that whole billing cycle.
- These Terms will be taken to be amended in accordance with any changes agreed in accordance with clause 7.1(a).
- If you choose to downgrade your account, you acknowledge and agree the GoVisually is not liable, and you release GoVisually for all claims in relation to, any loss of content, features, or capacity, including any Client Data.
- You may cancel your subscription by notice to GoVisually. Your Subscription will end in the then current billing cycle, and you will be charged for that billing cycle.
- Your access to the GoVisually Solution will be revoked upon the end of the relevant billing cycle.
- DISPUTES AND TERMINATION
- DISPUTE RESOLUTION
- The parties must endeavour to settle any dispute arising out of or relating to these Terms, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation.
- The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC (Guidelines). The terms of the Guidelines are hereby deemed incorporated into these Terms.
- If the parties are unable to settle the dispute by mediation, either party may institute arbitration. The parties will use their best endeavours to not proceed to litigation.
- TERMINATION BY GOVISUALLY
The Company may terminate these terms or any Subscription in whole or in part immediately by written notice to you if:
- you is in breach of any term of these terms or any part of a Subscription; or
- you become subject to any form of insolvency or bankruptcy administration.
- TERMINATION BY CLIENT
You may terminate these Terms if:
- GoVisually has committed a material breach of these Terms or a Subscription and has failed to remedy the breach within 30 days written notice by you; or
- GoVisually becomes subject to any form of insolvency or bankruptcy administration.
- EFFECT OF TERMINATION
Upon termination of these Terms, the Fees will be non-refundable, and you must promptly pay:
- the remainder of the Fees applicable for the Term as if the agreement had not been terminated;
- GoVisually’s expenses to date; and
- payments required by GoVisually’s suppliers to discontinue their work.
- FORCE MAJEURE
- Under no circumstances will GoVisually be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, floods, storms, explosions, acts of god, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
- THIRD PARTY TERMS & CONDITIONS
You acknowledge and agree that third party terms & conditions (Third Party Terms) may apply.
You agree to any Third Party Terms applicable to any third party goods and services that are used in providing the GoVisually Solution and GoVisually will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
A notice or other communication to a party under these Terms must be:
- in writing and in English; and
- delivered via email to the other party, to the email address that has been regularly used by the parties to correspond for the purposes of the subject matter of these Terms (other party’s email address).
Unless the party sending the notice knows or reasonably ought to suspect that the email was not delivered to the other party’s email address, notice will be taken to be given:
- 24 hours after the email was sent; or
- when replied to by the other party,
whichever is sooner.
- GOVERNING LAW AND JURISDICTION
Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
- COMPLIANCE WITH LAWS
Each party is responsible for complying with all applicable laws in connection with the GoVisually Solution. Neither party shall be responsible to the other party for that other party’s breach of an applicable law.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior consent of each other party (such consent not to be unreasonably withheld).
These Terms may only be amended by a document signed by each party.
No party to these Terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
If any part of these Terms is or becomes invalid, that part is severed from these Terms and that severance does not limit or otherwise affect the remaining provisions of these Terms.
- FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to these Terms.
- ENTIRE AGREEMENT
These Terms embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of these Terms.
Any provision of these terms (including in a Subscription) which, by its nature, would reasonably be expected to be performed after the termination or expiry of these Terms, shall survive and be enforceable after such termination or expiry.
In these Terms, the following rules of interpretation apply:
- (singular and plural) words in the singular includes the plural (and vice versa),
- (gender) words indicating a gender includes the corresponding words of any other gender;
- (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
- (person) a reference to “person” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
- (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
- (these Terms) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of these Terms;
- (document) a reference to a document (including these Terms) is to that document as varied, novated, ratified or replaced from time to time;
- (currency) a reference to “$” or “dollar” is to US currency;
- (headings) headings and words in bold type are for convenience only and do not affect interpretation;
- (includes) the word “includes” and similar words in any form is not a word of limitation; and
- (adverse interpretation) no provision of these Terms will be interpreted adversely to a party because that party was responsible for the preparation of these Terms or that provision.
- In these Terms, capitalised terms have the meaning set out in the following table.
|Client Data||means any documents or materials supplied by you to GoVisually under or in connection with these Terms or a Subscription, including any Intellectual Property Rights attaching to those materials.|
|Confidential Information||means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge.|
|Customer Data||means files, data or any other information, which is uploaded to the Software by you or its Licensed Users.|
|Documentation||means all manuals, help files and other documents supplied by GoVisually to you relating to the Software, whether in electronic or hardcopy form.|
|Hosted Services||has the meaning given in clause 1.3.|
|GoVisually Solution||includes the Software, Hosted Services, and Support Services, as set out in clause 1.1(a).|
|Intellectual Property Rights||means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, Confidential Information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of these Terms, whether registered or unregistered.|
|Licensed User||means a user of the Software and Documentation who has been validly granted access to the Software and Documentation by you in accordance with a Subscription.Number of Licensed Users means the number of Client Personnel that may be granted access to the Software in accordance with a Subscription Tier.|
|Subscription||has meaning given in clause 1.1(b) of these Terms and includes any limitations set out on our website.|
|Subscription Fee or Fees||means the amount you agree to pay for each Subscription Period when you subscribe for a Subscription, as described in clause 2(a) of these Terms.|
|Subscription Period||means the portions of time you agree for your Subscription to continue.|
|Subscription Tier||has the meaning given in the first paragraph of these Terms.|
|Personnel||means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.|
|Software||means the GoVisually software as described on our Website, and which is licenced to you in accordance with clauses 1.2 and 4.1(b).|
|Software Content||means all materials owned or licensed by GoVisually in connection with the Software and any Intellectual Property Rights attaching to those materials.|
|Support Services||has the meaning given in clause 3.3(a).|
|User||means your Licensed Users, its Personnel, and any other third party who are granted access to the Software in accordance with a Subscription.|
|Website||means https://govisually.com/ or any other site operated by GoVisually in connection with the Service.|
We may disclose that information to third parties that help us deliver our services (including information technology suppliers, communication suppliers and our business partners) or as required by law. If you do not provide this information, we may not be able to provide all of our services to you. We may also disclose your personal information to recipients that are located outside of Australia, including to and not limited to Facebook, Google, Intercom, Heap Analytics, HotJar etc located in any geographical location