Terms of Use

Including Software Agreement

Definitions

These Terms of Use (including the 'Software Agreement') apply to anyone who visits the Jego Creative website or uses any of our products or services. Your use of our website, products or services constitutes your acceptance of these Terms of Use. In these Terms of Use and generally on the Jego Creative website.

"we", "our" or "us" means Jego Creative.

"you" means you, the person using our Services;

"Intellectual Property Rights" includes without limitation any copyright, patents, trade-marks, design rights or database rights, whether registrable or not, and whether registered or not, and also includes any other proprietary rights, trade secrets or rights of publicity, privacy or confidentiality;

"Licence" means the permission we give to you to use our Software products (FORMbasic included) and which is given under the terms of the relevant Software Agreement;

"Services" means all products, goods or services we provide to you including our Website;

"Software" means the software we provide to you as part of our products and means for example the FORMbasic software;

"Software Agreement" means the relevant licence agreement under which any of our Software products are purchased and comprises the terms and conditions contained in these Terms of Use which are expressly or by implication intended to apply to the licence of the Software;

"Website" means the Jego Creative website;

"User" means a person setup to use the Services and is a person who can have all available or limited privileges in using the Software. It is possible to create a User who will never access the system, the functions of such a user will be performed by a user with a higher degree of security privileges.

Any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment.

The headings to the clauses of these Terms of Use are for convenience only and do not affect its interpretation.

In addition to these 'Terms of Use' other contractual terms may apply to some Services. It is important that you are familiar with all of the terms applying to your use of our Services.

Licence

We distribute all of our Software under 'commercial' licences. Each licence is non-exclusive, non-transferable, temporary (for the period specified) and revocable.

Transferring Licences

Licences cannot be transferred to other parties. This applies to both general software and upgrades. Any upgrades are supplied subject to the same terms and conditions as the original software.

Distribution

We house all software on our owned/rented servers. Unauthorized distribution without prior consent is strictly prohibited.

Customer's obligations

(a) The Customer shall have the following responsibilities:

(i) provision of all data to be incorporated into the Website;

(ii) provision of all logos, designs, graphic and related materials to be incorporated into the Website;

(iii) provision of any other information, ideas or suggestions which are to be expressly considered by the Supplier in creating the Website.

Maintenance

If requested by the Customer, and subject to prior payment of the relevant Charges, the Supplier shall provide the Maintenance Services.

The Maintenance Services shall be provided for renewable periods of twelve (24) months. At the request of the Customer, the Maintenance Services shall be renewed for subsequent terms of similar duration to the initial term. Maintenance Services will be available during normal business hours.

Payment

(a) Payment of the Charges shall be made in accordance with the stages set out in the Schedule.

(b) If the Customer disputes the whole or any part of the amount claimed in an invoice submitted by the Supplier pursuant to this agreement, the Customer will pay the undisputed portion on the due date. The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this agreement. If it is subsequently resolved that a further amount is payable, the Customer will pay that amount together with interest at the rate of 12 per cent per annum.

(c) Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.

(d) In addition to paying the Charges and any other amount payable or in connection with this agreement (which is exclusive of GST), the Customer will:

(i) pay to the Supplier an amount equal to any GST payable from any supply by the Supplier in respect of which the Charges or any other amount is payable under this agreement; and

(ii) make such payment either on the date when the Charges are due or within 7 days after the Customer is issued with a tax invoice, whichever is the later.

(e) The Supplier must, within 28 days of request from the Customer, issue a tax invoice (or an adjustment note) to the Customer for any supply under or in connection with this agreement.

(f) The Supplier will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to the Customer, any overpayment by the Customer for GST but the Supplier need not refund to the Customer any amount for GST paid to the Commissioner of Taxation unless the Supplier has received a refund or credit for that amount.

Warranty

If the operation of the Website is found to be defective and if the Customer notifies the Supplier of the defect during the warranty period, the Supplier shall immediately rectify the defect.

Password and Security

You must maintain the confidentiality of any passwords in respect of your account and are fully responsible for all activities that occur under your password or account. You agree to notify us immediately of any disclosure or unauthorized use of your password or account or any other breach of security and to ensure that you exit from your account at the end of each session.

Ownership

You acknowledge that we or our suppliers own any Intellectual Property Rights which subsist in any aspect of our Website, products, goods or services.

Restrictions on Use of Software

You may not copy, publish, de-compile, or reverse engineer the Software or use the Software other than either (a) as is strictly necessary to facilitate the provision of the Services to you or (b) in accordance with any statutory rights you may have to do so.

Accuracy of Information, etc.

Your activities on our Website and any information provided by you to us including but not limited to any information provided in your registration details must not: • be false or misleading and you agree to keep us updated with any changes to that information;

• be offensive, defamatory, indecent or in breach of any applicable laws or regulations;

• infringe any third party's rights including but not limited to any third party Intellectual Property Rights;

• create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers;

• contain any computer viruses, macro viruses, trojan horses, worms or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer or to surreptitiously intercept, access without authority or expropriate any system, data or personal information;

• cause the Website or any other Services to be impaired, interrupted, damaged or rendered less efficient or less effective.

Confidentiality

(a) A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

(b) A party will not be in breach of subclause (a) in circumstances where it is legally compelled to disclose the other party's Confidential Information.

(c) Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party's Confidential Information.

(d) Notwithstanding any other provision of this clause, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

(e) This clause will survive the termination of this agreement.

Privacy

The Supplier will not use or disclose any Personal Information for a purpose other than discharging its obligations under this agreement. The Supplier will take all necessary steps to protect Personal Information in its possession against misuse or loss and it will return all such information to the Customer (or if requested by the Customer, destroy or de-identify such information) upon termination or expiry of this agreement. This clause will survive the termination or expiry of this agreement.

We may, from time to time, gather specific data from user browsers as they enter and exit the site. This information is standard, and contains data such as referring URL, pages viewed, and amount of time spent on the site. This data is used for internal calculations of traffic, platform, and download counts.

Any information collected may be used to investigate any possible breach of these Terms of Use or illegality.

We will endeavour to keep your information safe and secure. Unfortunately, due to the very nature and environment of the internet, we cannot ensure that all communications and personally identifiable information will never be disclosed.

Termination

Your Licence will terminate automatically on the expiry of the period for the applicable licence fee or in the case of failure to pay any required licence fee. We may terminate your Licence immediately and without notice in the event of any breach of these Terms of Use by you or on the occurrence of any external event requiring us to cease provision of the Services. Those clauses which are either expressly or by implication intended to survive termination shall survive termination including without limitation those clauses headed Indemnity, Ownership, Severance, Proper Law and Jurisdiction, Set-Off and Waiver. Termination shall not affect any rights which have accrued prior to termination.

Notices

Any notice required to be given by us to you shall be sent to the e-mail address provided by you in your registration details or as updated by you from time to time in accordance with proper use of our Website. Any such notice shall be deemed (a) to be notice in writing and (b) to have been received 24 hours after being sent. Any notice required to be given by you to us under this Agreement shall be sent to the postal address provided under our contact details on our Website and as updated from time to time.

Force Majeure

We shall not be liable for any delay or failure in performing these Terms of Use which results from circumstances outside our reasonable control.

Third Parties

These Terms of Use are intended to confer a benefit on our proper assigns and successors but are not intended to confer any rights on any other third parties whether pursuant to the Contracts (Privacy) Act 1982 or otherwise.

Severance

Any term or condition of these Terms of Use which is found to be unlawful, void or unenforceable shall to the extent required be severed and be rendered ineffective as far as possible without modifying the remaining terms and conditions.

Set-Off

Where you have incurred any liability to us, whether under these Terms of Use or otherwise, we reserve the right to set-off the amount of such liability against any sum that would otherwise be due to you in relation to these Terms of Use.

Waiver

No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.

Variation and change control

No variation of this agreement will be effective unless in writing and signed by both parties.

Severability

Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.