Digital Stack Terms and Conditions [Last updated May, 2016]
1. About Digital Stack
LT Network Pty Ltd ACN 80 133 161 289 (we, us or our) provides a unique marketing content management system, which enables clients to manage, upload, configure and distribute content through email and social media (Digital Stack). We provide Digital Stack as a service (Service). We do this by:
(a) providing you an interface to Digital Stack in which you can manage, upload, configure and distribute your content; and
(b) depending on the plan that you select, we may provide additional services.
2. About this document
This document (Terms) along with any Service Application Form (SAF) that we accept, makes up the Agreement for the provision of a Service. By applying to use our Service, you agree to be bound by these terms.
3. Our relationship with you
You are an independent contractor. You are not our employee or agent and have no authority to act on our behalf or to bind us. You must not allow any person to believe otherwise.
4.1 Where you seek to use our Services, you must complete our SAF (which may be online or in paper form) and pay our fees as determined by the plan you have selected.
4.2 If we agree to provide our Services to you, we will notify you in writing.
5.1 You warrant that we are authorized for the purpose of providing our Services, to:
(a) access any social media accounts you nominate;
(b) access email accounts that you nominate;
(c) to use, manipulate and publish images, video and other content you upload to Digital Stack;
(d) do anything else that we reasonably need to.
6.1 You acknowledge that:
(a) Digital Stack does not operate error free;
(b) Digital Stack may not always operate as intended;
(c) Digital Stack may not be available at times, including for maintenance;
(d) Digital Stack should not be your sole marketing platform;
(e) Digital Stack relies on third party email and social media platforms to distribute content – a failure or defect in third party platforms is not a defect in Digital Stack.
(f) you should retain backups of all data that is entered into Digital Stack;
(g) we do not offer any service levels around the Services unless we agree otherwise in a SAF.
6.2 You agree that the matters you acknowledge in clause 6.1 are not a defect in service, and you accept our services subject to these matters.
7. Our charges
7.1 In order to use our services you must pay us:
(a) a Service Fee; and
(b) any other fee that arises as a consequences of other services you request and we agree to provide including under clause 8.
7.2 A Service Fee is a monthly fee for service, which is set out in our Price List as amended from time to time.
7.3 The Service Fee is exclusive of GST unless stated otherwise.
7.4 We may elect to have any fees paid to us:
(a) on terms as invoiced; or
(b) by direct debit of your credit card or bank account.
7.5 We must pay us, upon demand, any fees which arise because of a reversed transaction, or a dishonoured payment.
8. Additional Services
We may from time to time agree to provide additional services to you, where we do:
(a) those services are subject to these Terms; and
(b) you are liable to pay us our additional charges.
9.1 We provide our services subject to policies that we publish from time to time (Policies), such as
our Acceptable Use Policy.
9.2 Compliance with our Policies is a term of your agreement with us.
10. Confidential information
(a) Confidential information means information of any kind and in any form:
(i) relating to our business, projects, technology, software, processes, plans, strategies, finances, intellectual property, trade secrets, research, contractual arrangements and personnel;
(ii) which includes data collected from the use of our services;
(iii) which by its nature is confidential or which a party knows or ought to know is confidential,
(iv) which may provide a party or another person with a commercial advantage over a party or any of their clients, and
(v) which if disclosed may be detrimental to a party’s goodwill, reputation, standing or commercial best interests.
(b) Confidential information does not include information which a party can show:
(i) is in or comes into the public domain other than by way of unauthorised disclosure,
(ii) was already known to you at the date of disclosure (as evidenced by written records) without any obligation of confidentiality, or
(iii) was lawfully disclosed by a third party to you without any restriction as to its use or disclosure; or
(iv) which was uploaded to Digital Stack for the purpose of using the Service.
11. Confidentiality obligations
(a) The parties must, in relation to confidential information:
(i) hold it in strictest confidence and not disclose, release or make it available to any person except with our prior written consent,
(ii) not copy, reproduce, publish or circulate it or allow any other person to do so,
(iii) take all steps necessary to prevent its unauthorised disclosure,
(iv) at our request, return it or destroy it and, if we require, certify that you have done so,
(v) notify us immediately in writing if you suspect or aware of any unauthorised disclosure, and
(vi) do anything we reasonably require to restrain its unauthorised disclosure or mitigate any damage which may result from unauthorised disclosure.
(b) Nothing in these Terms prevents a party from disclosing confidential information where required by law or is required to be disclosed in order to provide the Service.
12. Intellectual Property
12.1 All intellectual property rights in Digital Stack and our Services are owned by us. You must not:
(a) do anything which may infringe, jeopardise or challenge such rights,
(b) commercialise or attempt to commercialise such rights.
12.2 Any templates or creative work we provide for your use remains our property and we licence you to use it for so long as you use the Service.
12.3 Subject to clause 12.2, you own the intellectual property rights in any content you upload into Digital Stack, and you give us a royalty free licence to use it for the purpose of providing the Service and for marketing our Services to the public.
13. Trade marks
13.1 Digital Stack and the Digital Stack logo are trademarks of ours. Other trademarks that may appear on our website are the property of our respective licensors.
13.2 You must not use any trademark without the prior written consent of the relevant owner.
You must indemnify us, our directors, officers, employees, agents and contractors against all Claims, loss, damage, harm, injury, costs, expenses, claims and liabilities directly, indirectly or consequentially incurred by us arising from or in connection with your breach of these Terms or the use of the Service.
15.1 The Australian Consumer Law sets out certain consumer rights and remedies that cannot be excluded, restricted or modified. These Terms are subject to the ACL and do not exclude, restrict or modify them where it would be unlawful to do so.
15.2 Subject to clause 15.1 and to the fullest extent permitted by law:
(a) the Service is provided on an ‘as is’ basis and we exclude all implied conditions, warranties, guarantees and representations of any kind;
(b) where any law implies a condition, warranty or guarantee into these Terms which cannot be excluded, our liability for breach of such a condition, warranty or guarantee will be limited to:
(i) the resupply of the Service; or
(ii) the payment of the cost of resupply of the Service; and
(c) we exclude and you release us from all liability to you for loss or damage of any kind (however caused or arising, including by negligence) arising from or in any way connected with our website, Digital Stack, its contents, the Service or your use of them.
16. Exclusion of implied terms and limitation of liability
Important consumer information: Nothing in this clause 16 limits the consumer rights and remedies referred to in clause 15.
16.1 Subject to clause 15:
(a) Any representation, warranty, condition or undertaking that would be implied in your Contract by legislation, common law, equity, trade, custom or usage or otherwise is excluded from your Agreement with us to the fullest extent permitted by law.
(b) We are never liable to you for, and you release us from any Claim for, any Contract Loss. 16.2 For the purposes of these Terms:
(a) Claim means any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim);
(b) Contract Loss means loss or damage suffered by a party and arising in connection with or out of your Agreement with us or any supply made under it (whether pleaded in contract, tort, breach of statutory duty or on any other basis, and whether arising from acts or omissions, and whether or not loss or damage the risk of which another party was or should have been aware), including but not limited to:
(i) economic loss;
(ii) business interruption;
(iii) loss of revenue, profits, actual or potential business opportunities or contracts;
(iv) anticipated savings;
(v) loss of profits;
(vi) loss of data;
(vii) indirect or consequential loss;
(viii) an obligation to indemnify another person;
(ix) an obligation to contribute to the compensation of loss or damage suffered by another person
17. Termination / Suspension
17.1 We may immediately suspend provision of our Service where:
(a) you breach our Policies;
(b) you break the law;
(c) you use our Service to do (or not do) anything which may infringe any third party’s intellectual property rights;
(d) we are required to do so by a Court, regulatory or law enforcement authority;
(e) you fail to pay us money you owe within our trading terms.
17.2 We may terminate your agreement with us on 7 days written notice where:
(a) you breach any part of these Terms or your agreement;
(b) you breach any of our Policies;
(c) we believe that you are insolvent, are placed into administration, or have a controller or liquidator appointed;
(d) you fail to pay us money within 14 days of its due date for payment.
17.3 You may terminate your agreement with us:
(a) without cause on 30 days written notice to us, however, you remain liable to pay us for fees incurred until the expiration of your notice period; and
(b) on 7 days notice where we fail to remedy a breach of this Agreement for which you have put us on notice of.
18. Non Merger
Clauses 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 18, and 19 do not merge upon termination of an Agreement.
(a) We may amend these Terms from time to time by giving you written notice. Amendments will not apply retrospectively.
(b) You may not assign any part of your rights or obligations under these Terms without our prior written consent.
(c) Our rights, remedies and powers under these Terms are cumulative and not exclusive of any rights, remedies or powers provided to us by law.
(d) If we overlook a breach of these Terms on one or more occasions, we are not taken to have agreed to any future breach.
(e) If a provision of these Terms is unenforceable it must be read down, to the point of severance if necessary.
(f) These Terms (and a relevant SAF) constitute the entire agreement between you and us in relation to its subject matter and supersede all other agreements, arrangements or understandings.
(g) These Terms are not to be construed against a party because that party was responsible for its preparation.
(h) These Terms and any Agreement for Services are governed by the law of Victoria, Australia.