1.1 These Terms govern the supply of the Platform by growthable to you under the commercial terms outlined in the Proposal.
1.2 These terms and conditions prevail over any other terms or conditions that may be communicated to you, whether in writing or agreed orally.
1.3 These terms and conditions may not be waived or changed, except in writing signed by or otherwise expressly approved by a director of growthable.
2.1 In these Terms, the following expressions have the meanings set out below:
(a) ACL means Australian Consumer Law.
(b) Commitment Price means the price agreed between you and growthable in the Proposal for the Commitment Term.
(c) Commitment Term means the length of the initial commitment term agreed between you and growthable in the Proposal.
(d) Confidential Information means all information, whether oral, graphic, electronic, written or in any other form, that is not generally available to the public at the time of disclosure other than by reason of a breach of these terms and conditions, or is required to be disclosed by any applicable law, or that is in fact, or should reasonably be regarded as, confidential to the party to whom it belongs or relates.
(e) growthable, us, we, our means growthable PTY LTD (ACN: 652 950 064) or any of its related parties.
(f) Intellectual Property Rights means any current and future intellectual property rights whether registered or unregistered, including copyrights, design rights, trade marks, trade names, domain names, rights in logos and get-up, patents, inventions, confidential information and know-how, all rights in computer software, privacy, data and databases.
(g) Monthly Price means the amount payable by you to growthable each month after the conclusion of the Commitment Term.
(h) Platform means the platform provided by growthable to you and any tools or applications that are made available to you by growthable via that product.
(j) Proposal means the proposal between you and growthable that includes the specifications of the Platform for you and the Commitment Price.
(k) Registration means the registration process that must be completed by a User in accordance with the Platform requirements and Registered has a corresponding meaning.
(l) Technology means the proprietary software platform developed by growthable to automate a range of processes, including but not limited to lead generation (via voice, email, sms and other channels including social), response categorisation and response decision handling, program strategy and content creation and optimisation, audience contact data generation and more.
(m) Terms means these terms and conditions and includes any amendments made in accordance with these terms and conditions.
(n) User means a person or other entity who is a user of the Platform and who has created a User Account.
(o) User Account means an individual user account created in accordance with the requirements of the Platform by a User.
(p) User Content means any content that is submitted or uploaded to us through a User’s use of the Platform, including through any application created by the User using the Platform.
(q) You and your is a reference to a customer of growthable that has been provided access to the Platform.
3.1 In these Terms:
(a) unless the context requires otherwise, capitalised terms shall have the meanings given to them in clause 2.1, or as set out in context;
(b) a person includes any natural person, body corporate, unincorporated association or partnerships;
(c) the singular includes the plural and vice versa;
(d) a reference to a clause or schedule, unless the context otherwise requires, is a reference to a clause or schedule of these Terms; and
(e) any reference to legislation is a reference to New South Wales legislation and shall be construed as referring also to any amendment or re-enactment (whether before or after the date of these Terms).
4.1 You will be invoiced the First Month Price upon signing the Proposal with 7-day terms.
4.2 Upon conclusion of the Commitment Term, you will be invoiced for the last month as we offboard your data/program wind up period takes place during the final 30 days after your commitment term ends.
4.3 If you agree to purchase any additional usage and storage from our third party soft telephony and messaging providers, you will be invoiced for these in arrears at the end of the month in which the additional usage amounts are purchased.
4.4 Unless otherwise agreed with you, the included usage for each service provided by growthable will be per growthable’s general fee schedule, which can be found in your Proposal
4.5 growthable has a credit card storage facility and will store your credit card details in a secure external storage service. This function allows your credit card details to be stored securely within the system to enable automated payments for future purchases (and cannot be accessed by any growthable personnel). This is an optional feature that is enabled upon request.
4.6 The Commitment Price and Monthly Price is exclusive of all taxes (including GST), and you shall pay any applicable goods and services tax, sales tax and other taxes payable in respect of the supply of the Platform.
4.7 You will pay all undisputed invoices in full no later than 7 days after the invoice is issued. If growthable has your credit or debit card details your credit or debit card will be charged on the due date of the invoice.
4.8 You must pay interest on any late payments at the rate of 5% per annum.
5.1 In the event that you cannot access the Platform, or of a breach of any provision of these terms and conditions, you may, if the breach or Platform access is not remedied within thirty (30) days, terminate these terms and conditions immediately.
5.2 In the event of termination, no monies paid to growthable will be repaid. Any credit balance will be kept in your account for 180 days after termination and may be reused in the event of reactivation of an account within that period. After 180 days, any remaining credits on your account will be removed.
6. INTELLECTUAL PROPERTY
6.1 You acknowledge that growthable (and/or its suppliers and licensors) own all Intellectual Property Rights in and to the Platform, the Technology and the software and other material underlying and forming part of the Platform unless otherwise proprietary to a third party.
6.2 growthable reserves all right, title and interest not expressly granted under these Terms to the fullest extent possible under applicable laws. In particular, you acknowledge that nothing in these Terms shall grant you any rights to the Technology or any improvements in or to the Technology, including any right to access and/or use the Technology.
6.3 You acknowledge that nothing in these Terms shall grant you any rights to republish, sell, rent, sub-license, reproduce, duplicate or copy in any way, material from growthable or the Platform (or any campaigns created by the Platform), or redistribute any content created by growthable, unless that content is specifically created for the purpose of redistribution.
6.4 You acknowledge and agree that any improvement, modification or development of the Technology arrived at through your access to and/or use of the Platform (the Data) or otherwise will be owned exclusively by growthable (New IP).
6.5 Unless you have an agreement in writing with growthable, executed by both parties, expressly stating otherwise, to the extent that growthable receives through your use of the Platform (including through any user’s use of any application developed by a User using the Platform) any of your data or other pre-existing intellectual property (Background IP), you hereby grant growthable a non-exclusive, irrevocable, perpetual, royalty-free license to use such Background IP, without limit in time, solely for the purpose of developing, improving, using and commercialising the Technology.
7.1 By agreeing to these terms of service and using our service, you give growthable permission to represent your business and offer to the target market. The representation will be limited only to providing details of your offering with the purpose to start conversations to be continued by you. The conduct of this representation including telesales scripts, email templates and other methods of direct contact to the target market will be pre-approved by you. There may be instances where exact content and activity strategy may become altered when moving data between platforms and teams, and you are encouraged to frequently monitor content.
7.2 growthable is also a platform that can be used to leverage data contained from advertising online through digital marketing efforts, and as a result will enrich, inform, augment and use the data obtained to continue to advertise on and in such marketing platforms for the purpose of audience engagement, enrichment, acquisition, retention and advocacy.
8. PRODUCT USE RULES
8.1 Your obligations
When you use our Product, you agree that you will:
(a) comply at all times with New South Wales law;
(b) not interfere with or attempt to impair growthable’s computer systems or transit software viruses, worms, other harmful files or other malware;
(c) not use a robot, spider, scraper or other unauthorised automated means to access the Product, the Technology or any content shown on the Product’s interface; and
(d) not attempt to undermine the security or integrity of the Product or gain unauthorised access to any part of the Product or the Technology, including attempting to gain access to a User Account other than yours.
9. SERVICE LIMITS, DISCLAIMERS AND LIMITATIONS OF LIABILITY
9.1 You acknowledge and agree that any information you rely on using the Platform is entirely at your own risk. You are solely responsible for the actions you take in reliance of the information available on or accessed through the Platform.
9.2 Email and phone support is provided during growthable business hours only. Unless specified otherwise in the Proposal or any other agreement, all support will be charged at growthable’s Standard Hourly Rate. Minimum service charges apply. An invoice for all such support charges will be sent to you at growthable’s discretion.
9.3 To the extent permitted by law, growthable has no responsibility and liability for:
(a) the conduct of Users, including without limitation no responsibility for Users who have created a User Account under false pretences and act fraudulently;
(b) any act, omission, representation or breach of any duty at law by any other User;
(c) the accuracy, reliability, completeness and correctness of any information (including any data, images, opinions, advice, representations and descriptions about any User) displayed, stored, described or contained on the Platform or provided during the course of using the Platform.
9.4 You acknowledge that the Platform is provided on an “as is” and “as available” basis. To the maximum extent permitted at law, growthable disclaims and excludes all implied conditions or warranties relating to the Platform. Without limiting the foregoing growthable does not:
(a) give any warranties of merchantability, fitness for a particular purpose and non-infringement;
(b) warrant that the Platform will be compatible with your equipment; or
(c) warrant that the Platform will be free from errors, loss, destruction, interruption, corruption (including corruption of data), or that the Platform will be timely or secure.
9.5 growthable will not be liable or responsible for any damages arising from the use of (or inability to use) the Platform, including any loss, costs or damages arising from any:
(a) corruption or loss of data or other information;
(b) malware that may be transmitted to your computer by use of the Platform; or
(c) interruption, suspension or discontinuance of the Platform.
9.6 Except as required by law, growthable will not be liable for any indirect, consequential loss or special damages, loss of profit or any costs, expenses or other claims whatsoever for any consequential compensation (and whether caused by the negligence of growthable, its employees or agents or otherwise) which arise out of, or in connection with any breach of contract (being these Terms), equity, common law, statutory duty or by reason of any representation, implied warranty or other condition.
9.7 Under no circumstances will growthable be liable for any loss, cost, damages, compensation or any other claim whatsoever arising out of the actions of a third party subcontractor, whether contracted by growthable or not. We will endeavour to, but are not obligated to, provide you with reasonable information required to bring a case against any such subcontractor.
9.8 Under no circumstance will growthable be liable to any third party for any loss, cost, damages, compensation or any other claim whatsoever arising out of or in relation to your use of the Platform, any actions you take in reliance on the information available on or accessed through the Platform, or otherwise in connection with the performance or non-performance of your obligations under these Terms.
9.9 To the extent permitted by law, growthable’s maximum aggregate liability to you arising out of or in connection to these Terms, whether for negligence, breach of contract, misrepresentation or otherwise, shall in no circumstances exceed the Monthly Price.
10. STATUTORY RIGHTS
These terms and conditions do not exclude, restrict or modify the application of any provision of the ACL, the exercise of any right or remedy conferred by the ACL, or the liability of the Agency for a failure to comply with the ACL, where to do so would contravene that statute or cause any part of these terms and conditions to be void.
You will indemnify growthable for any loss, cost, damage or expense of any nature whatsoever suffered or incurred by growthable arising out of:
(a) your breach of these Terms;
(b) any claim that the User Content infringes the Intellectual Property Rights of any third party or is otherwise not in accordance with these Terms (including that the User Content or any part of it is not authorised, false, misleading, deceptive, inaccurate and/or misrepresentative); and
(c) any claim by a third party in relation to your use of the Platform, the performance or non-performance of your obligations under these Terms, or any actions you take in reliance on the information available on or accessed through the Platform.
12. TERMS THAT DO NOT APPLY
If you are a “consumer” for the purposes of the ACL, nothing in these Terms is intended to limit any rights or remedies that you may have under the ACL.
13. DISPUTE RESOLUTION
In the event of a dispute arises, you agree to seek to resolve the dispute through open and good faith discussions in the first instance. growthable will seek to ensure any campaigns remain live through this process and there is a continued future partnership between you and growthable.
15.1 growthable acknowledges that if you provide us with any Confidential Information (whether yours or your customers or potential customers) then we will:
(a) keep such Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person
(b) take all reasonable steps to secure and keep secure the Confidential Information coming into its possession or control; and
(c) not memorise, use, modify, reverse engineer or make copies, notes or records of the Confidential Information for any purpose other than in connection with our performance of our obligations under these Conditions.
15.2 We may share Confidential Information that you provide to us with our subcontractors, provided that they sign a confidentiality agreement with us on the same terms as those outlined in these Terms.
16. GENERAL TERMS
16.1 growthable has no liability to you for any lack of performance, unavailability or failure of the Platform, or failure to comply with these Terms or where the same arises from any cause reasonably beyond the control of growthable.
16.2 growthable may provide you with notices, including notices relating to these Terms by way of electronic communications, including by email.
16.3 If growthable does not exercise or enforce any rights available to growthable under these Terms that does not constitute a waiver of those rights.
16.4 You may not assign, transfer and/or subcontract any of its rights under these Terms.
16.5 If any provision contained in these Terms is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of these Terms will remain in full force and effect and will not in any way be impaired.
16.6 These Terms are governed by New South Wales law, and the parties agree that the courts of the state of New South Wales shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with these Terms.