User Terms of Service

1 Background

(a) Showcache Pty Ltd (ACN 614 773 705) (we or us) offers a cloud-based software solution for digital asset management in the form of our Showcache platform. The platform makes it easy for businesses to store, access, search, approve and distribute their digital assets, including via integration with third party software to allow publishing directly to social media.

(b) Where you log on as a user of the Showcache platform, including as an employee, consultant, contractor, customer, agent, client or supplier to the Subscription Holder, your use of the platform is subject to these end user terms and conditions (Terms).

2 Acceptance

(a) We own the cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software (Software) which is accessible at and may also be accessible via other addresses or channels (Site).

(b) These Terms:

(1) sets out the terms and conditions upon which we agree to grant you a right to use the Software as a service, as described on the Site (SaaS Services) and provide any other services as set out in these Terms (together with the SaaS Services, the Services); and

(2) are binding on you from the date (Effective Date) on which you accept these Terms (Authorised User Login) until the date on which your Authorised User Login is terminated in accordance with these Terms (Term).

(c) You, as an end user, accept these Terms by clicking a box indicating acceptance.

(d) By accepting these Terms, creating an Authorised User Login and/or accessing and/or using the Services, you:

(1) warrant to us that you have reviewed these Terms, including our Privacy Policy, available on the Site (with your parent or legal guardian (if you are under 18 years old), and you understand them;

(2) warrant to us that you have the legal capacity to enter into a legally binding agreement or (if you are under 18 years old) you have your parent’s or legal guardian’s permission to access and use the Site and they have agreed to the Terms on your behalf;

(3) warrant to us that you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services;

(4) warrant to us that you have all hardware, software and services which are necessary to access and use the Services; and

(5) agree to use the Services in accordance with these Terms.

(e) Minors: You must not create an Authorised User Login and/or access the Site unless you are at least 13 years old. If you are a parent or legal guardian permitting a person who is at least 13 years old but under 18 years old (a Minor) to create an Authorised User Login and/or use the Site, you agree to: (i) supervise the Minor’s use of the Site and their Authorised User Login; (ii) assume all risks associated with, and liabilities resulting from, the Minor’s use of the Site and their Authorised User Login; (iii) ensure that the content on the Site is suitable for the Minor; (iv) ensure all information submitted to us by the Minor is accurate; and (v) provide the consents, representations and warranties contained in the Terms on the Minor’s behalf.

3 Registering your Authorised User Login

(a) As part of setting up your Authorised User Login you must provide basic information including name, email address, and telephone number and you must choose a password.

4 SaaS Licence

(a) In consideration 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), personal and revocable licence to access and use the SaaS Services for business purposes for the Term (SaaS Licence).

(b) You agree that you may not be able to access the SaaS Services where the number of Seats for the Subscription Holder’s Subscription is limited and a number of users equal to the number of limited Seats are currently logged in under that Subscription.

(c) In order to use the Authorised User Login to access a Subscription Holder’s Subscription you must be invited by the Subscription Holder to access their Subscription on the Site. The Subscription Holder’s invite or your continued access to the Subscription Holder’s Subscription may be subject to extra terms and conditions which the Subscription Holder asks you to agree to. You agree and acknowledge that any extra terms and conditions you agree to with the Subscription Holder, is solely between you and the Subscription Holder.

5 Intellectual Property Rights

Your Intellectual Property

(a) As between you and us, (i) all Data is and remains your property or the property of any other entity you may have agreed to assign the intellectual property rights to, and (ii) you retain any and all rights, title and interest in and to the Data, including all copies, modifications, extensions and derivative works thereof.

(b) As between you and the Subscription Holder, (i) all intellectual property rights in Data are a matter to be agreed between you and the Subscription Holder independently of these Terms.

(c) Licence: You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Data during the Term and make it accessible to other users of the applicable Subscription solely to:

(1) supply the Services to you and to the Subscription Holder;

(2) diagnose problems with the SaaS Services;

(3) enhance and otherwise modify the Services;

(4) develop other services, provided we de-identify the Data; and

(5) as reasonably required to perform our obligations under these Terms.

(d) General: You must, at all times, ensure the integrity of the Data and that your use of the Data is compliant with all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in these Terms; and (ii) the Data and its transfer to and use by us, as authorised by you under these Terms do not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.

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

(f) This clause will survive termination or expiry of these Terms.

Our Intellectual Property

(g) All Intellectual Property in the Software and Services and that Intellectual Property developed, adapted, modified or created by us or our Personnel (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.

(h) You must not, without our prior written consent:

(1) copy or use, in whole or in part, any of our Intellectual Property;

(2) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;

(3) reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services;

(4) breach any Intellectual Property Rights connected with the Software or the Services, including altering or modifying any of our Intellectual Property;

(5) cause any of our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of our Intellectual Property (excluding where we provide you the functionality within the SaaS Services to do so such as via a link generated by us);

(6) resell, assign, transfer, distribute or make available the SaaS Services to third parties;

(7) “frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network (excluding where we provide you the functionality within the SaaS Services to do so);

(8) 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 SaaS Services or Software;

(i) Notwithstanding anything to the contrary in these Terms or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymized format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

(1) does not contain identifying information;

(2) is not compiled using a sample size small enough to make the underlying data identifiable.

(j) We and/or our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all Intellectual Property rights in the foregoing.

6 Restrictions

(a) You must not access or use the SaaS Services except as permitted by the SaaS Licence and you must not and must not permit any other person to:

(1) use the SaaS Services in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property rights;

(2) use the SaaS Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;

(3) use the SaaS Services in any way that damages, interferes with or interrupts the supply of the SaaS Services;

(4) introduce malicious programs into our hardware and software or Systems, including viruses, worms, trojan horses and e-mail bombs;

(5) reveal your Authorised User Login password to others or allow others to use your Authorised User Login;

(6) use the SaaS Services to carry out security breaches or disruptions of a network. Security breaches include 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);

(7) 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 SaaS Services;

(8) to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the SaaS Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or

(9) use the SaaS Services to circumvent user authentication or security of any of your networks, accounts or hosts or those of your Subscription Holder’s customers or suppliers.

7 Third Parties

(a) You acknowledge and agree that:

(1) the provision of the Services may be contingent on, or impacted by, third parties, other customers’ use of our services, suppliers, other subcontractors (Third Party Inputs); and

(2) 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.

(b) You acknowledge that the SaaS Services include certain optional functionality that may interface or interoperate with third party software or services such as associated social media applications. To the extent that you choose to use such functionality, you give us permission to access your third party software accounts to push content from the Site onto that third party software account where you direct us to do so by using the inbuilt platform functionality. You agree you are responsible for: (i) the use of and purchase of, (ii) the ancillary requirements related to, (iii) any content you push through to the applicable third party software via our Site; and (iv) the licensing obligations related to the applicable third party software or application and services. It is your reasonability to ensure the requirements are met in order for you to benefit from the specific functionality made available to you.

(c) This clause will survive the termination or expiry of these Terms.

8 Support Services

(a) During the Term, if you are an external user with an Authorised User Login (not a member of the Subscription Holder’s staff) you may lodge a support ticket via the Site and we will aim to respond within a reasonable time or you may contact the applicable Subscription Holder for support.

(b) During the Term, if you are an internal user with an Authorised User Login (a member of the Subscription Holder’s staff) we will provide you with the support services set out on the Site in accordance with the response times set out on the Site for the Subscription Holder’s Plan, provided that (i) you notify us in accordance with any applicable systems and processes set out on the Site and (ii) where required, you assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you or your Personnel have done in relation to the fault). Technical support services are provided during Business Days and Business Hours.

9 Warranties

(a) You warrant and agree that:

(1) you are responsible for obtaining any consents, licences, 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, licences, authorities and permissions; and

(2) you will maintain the confidentiality and security of any of your Authorised User Login details or passwords.

10 Liability

(a) Despite anything to the contrary, to the maximum extent permitted by law:

(1) our maximum aggregate Liability arising from or in connection with these Terms (including the Services or the subject matter of these Terms) will be limited to, and must not exceed $10; and

(2) we will not be liable to you for any Consequential Loss,

whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

(b) Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you waive and release us from and against, all Liability (whether under statute, contract, negligence or other tort, indemnity, or otherwise) arising from or in connection with any:

(1) loss of, or damage to, any property or any injury to or loss to any person;

(2) failure or delay in providing the Services;

(3) breach of these Terms or any Laws; or

(4) unavailability, outage or interruption of the Computing Environment,

where caused or contributed to by any:

(i) Force Majeure Event;

(ii) a fault, defect, error or omission in your Computing Environment or Data; or

(iii) act or omission of you, the Subscription Holder, or the Subscription Holder’s related parties, or any third party (including customers, end users, suppliers, providers or subcontractors),

and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services.

(c) 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 5 (Intellectual Property), and your use of the Services contrary to these Terms, including from any claim relating to the Data.

(d) Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms 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 these Terms.

(e) You acknowledge and agree that:

(1) you are responsible for your use of the Services;

(2) you use the Services and any associated programs and files at your own risk;

(3) the technical processing and transmission of the Services, including your Data, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices;

(4) we may use third party service providers to host the Services. 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;

(5) 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;

(6) 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;

(7) we are not responsible for the integrity or existence of any Data on the Computing Environment, network or any device controlled by you; and

(8) we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.

(f) This clause will survive termination or expiry of these Terms.

11 Termination

(a) The Subscription Holder for the Subscription may terminate access for your Authorised User Login or you may choose to terminate your Authorised User Login by deleting your Authorised User Login using the functionality within the Site or emailing our support staff. Where the Subscription Holder terminates your Authorised User Login you will still be able to access the Site if you have access to other Subscriptions. If you do not have access to other Subscriptions, or where you terminate your Authorised User Login your login will be deleted immediately and all personal information will be removed from the applicable Subscription/s within 7 days. Any Data you have uploaded will remain accessible within that Subscription to users with an Authorised User Login for that Subscription while that Subscription remains active.

(b) We may immediately terminate these Terms with notice to you where the Subscription Holder directs us to do so or where the Subscription is terminated. All of your personal information will be removed within 7 days and where the Subscription remains active any Data you have uploaded will remain accessible within that Subscription to users with an Authorised User Login for that Subscription while the Subscription remains active.

(c) To the extent permitted by law, either Party may terminate these Terms, if the other Party has breached a material term of these Terms and has failed to remedy such breach within 20 Business Days of receiving notice to do so, subject to any other express right of termination.

(d) We recommend that you regularly back-up your Data and where the Subscription or your Authorised User Login is being terminated you download copies of any Data that is not backed-up before the date of termination. While the Data may remain in the Subscription, you will not be entitled to access to your Data via your Authorised User Login after the date of termination. After the date of termination of your Authorised User Login any access to your Data is between you and the Subscription Holder. To the extent permitted by law we do not undertake to keep copies of your Data or supply you with copies of your Data.

12 General

(a) Our Services will be provided to you on a non-exclusive basis.

(b) We reserve the right at any time and from time to time to change or remove features of the SaaS Services provided that, where there is any material alteration to the functionality of the SaaS Services in accordance with this clause, we will provide the Subscription Holder with 20 Business Days’ notice.

(c) Force Majeure: If we are delayed from performing our obligations due to such a circumstance for a period of at least two months, we may terminate our agreement with you by giving you five Business Days' notice in writing.

(d) Disputes: Neither Party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other Party to seek (in good faith) to resolve that dispute (unless that Party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).

(e) Notices: Any notice required or permitted to be given by either Party to the other under these conditions will be in writing and addressed to us at the address below and to you at the details provided when setting up your Authorised User Login. A Party may change its notice details by written notice to the other Parties. Any notice may be sent by standard post or email, and notice 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.

(f) Delay: If the provision of the Services depends upon or includes the provision of information, materials, consents or approvals by you or the Subscription Holder, or requires your cooperation, action or response (or that of the Subscription Holder), you must provide that information, cooperation and those materials, consents or approvals in a timely manner. If you breach this obligation, we will be entitled to an extension of time in respect any deadline or milestone to the extent of the delay caused by you and we will have no Liability for a failure to perform the Services caused by you.

(g) Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.

(h) Relationship of Parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the Parties. Nothing in these Terms gives a Party authority to bind the other Party in any way.

(i) 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.

(j) Assignment: Neither Party may assign, transfer or otherwise deal with all or any of its rights or obligations under these Terms without the prior written consent of the other Party. Any purported dealing in breach of this clause is of no force or effect.

(k) Time Zone: Our Business Hours are based on Australian Eastern Standard Time. All time references within the Services and this Agreement, are based on Coordinated Universal Time.

(l) Governing law: These Terms are governed by the laws of Queensland, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts. The Services may be accessed in Australia and overseas. We make no representation that the Services complies with the laws (including Intellectual Property laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Services.

(m) This clause will survive termination or expiry of these Terms.

13 Definitions and interpretation

(a) Definitions

The following words will mean:

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Queensland.

Business Hours means 8am to 4pm AEST (Australian Eastern Standard Time) on a Business Day;

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

Confidential Information includes confidential information about a Party’s business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential" but does not include any information which is in the public domain other than through a breach of confidence. Our Confidential Information includes our Intellectual Property including the Software. Your Confidential Information includes the Data;

Consequential Loss includes any indirect, incidental or consequential loss, loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any remote, abnormal or unforeseeable loss, loss of use and/or loss or corruption of data or any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with these Terms (whether involving a third party or a Party to these Terms or otherwise);

Data means the video, photographs, information, documents and other data inputted by you, the Subscription Holder or other users into the Software or stored by the SaaS Services or, subject to the Subscription Holder paying the applicable fees for the Services, generated by the SaaS Services as a result of your use of the SaaS Services;

Force Majeure Event means an event which is beyond a Party's reasonable control including a fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, and strike by employees of a third person;

Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, customer names or internet domain names. Our Intellectual Property includes the Software;

Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory and includes the Privacy Act and the Spam Act 2003 (Cth);

Liability means any loss, liability, cost, payment, damages, debt or expense (including reasonable legal fees);

Party means either party to these Terms;

Personnel means, in relation to a Party, the officers, employees, contractors, sub-contractors and agents of that Party;

Seats means the number of internal users (the Subscription Holder’s staff) permitted to use the SaaS Services under the Subscription Holder’s Subscription at any one time;

Subscription means the account for the SaaS Services which is subject to our software as a service agreement between us and the Subscription Holder and to which your Authorised User Login is linked;

Subscription Holder means the person or entity that has accepted the software as a service agreement with us and is paying the applicable fees to us to access the Subscription, including to allow your access as an Authorised User Login under their Subscription; and

System means all hardware, software, networks and other IT systems used by you from time to time, including a network.

(b) Interpretation

In these Terms, unless the context otherwise requires:

(1) the singular includes the plural and vice versa;

(2) headings are for convenience only and do not affect interpretation;

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

(4) if any act which must be done under these Terms is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;

(5) the word "month" means calendar month and the word "year" means 12 months;

(6) the words "in writing" include any communication sent by letter or email or any other form of communication capable of being read by the recipient;

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

(8) includes and similar words mean includes without limitation;

(9) a reference to $ or dollars refers to the currency of Australia from time to time;

(10) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body; and

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

Showcache Pty Ltd (ACN 614 773 705)


Last update: 29 January 2019

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