By agreeing to these Terms, you are entering into a binding legal agreement with Fusion Factory Pty Limited (ACN 132 360 840) including its successors, assignees and related bodies corporate (defined in the Corporations Act 2001 (Cth))(Fusion Factory) and agree to comply with any and all applicable laws and regulations, whether domestic or international.
You warrant and represent to Fusion Factory that you have read and understood these Terms and have the authority and legal capacity to enter into and be bound by these Terms and that you agree to pay any fees specified by us for the use of and access to the Services (Fees).
These Terms apply in addition to any other agreements provided to you by Fusion Factory, including (where applicable), the Master Services Agreement or a SOW. We reserve the right to audit your use of the Services and your compliance with these Terms.
Fusion Factory IP includes but is not limited to all intellectual property rights in the Services, including but not limited to:
all text, graphics, user interfaces, photographs, trademarks (whether registered or common law trade marks), patents, designs, copyright, any corresponding property rights under the laws of any jurisdiction, logos, and artwork including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such content, contained on or in our Services;
any intellectual property rights in Comestri and any related software, interface and documentation;
all rights in respect of an invention, improvements, discovery, trade secret, secret process, know-how, concept, idea, information, process, data, formula or work product; and
software, code, documents and all products and services developed in whole or in part by Fusion Factory.
Subject to these Terms, on payment of the relevant Fee, Fusion Factory grants you, solely for the period covered by the Fees, a limited, single-user, non-exclusive, non-transferrable, non-sublicensable licence to access and use the Services, for sole use by you for the purposes of your business in accordance with these Terms (Licence). You acknowledge that we may grant any other number of licences for the Services to any other parties.
We may specify a minimum duration for your Licence in a SOW. The Licence will be valid for the time period covered by the Fees as specified in the SOW or as otherwise specified by Fusion Factory.
Fusion Factory retains all title, rights in and ownership of the Fusion Factory IP and reserves all rights not expressly granted to you in these Terms. Unless explicitly stated herein, nothing in these Terms may be construed as conferring any licence to, or assignment of, any Fusion Factory IP, whether by estoppel, implication or otherwise.
No licence in any Fusion Factory trade marks is granted under these Terms.
In consideration of the Licence granted under these Terms, you agree to pay us all the Fees due according to these Terms and the prices and terms listed in a SOW.
The Fees are calculated on a monthly basis, based on the number of stock-keeping units (SKUs), types and number of channels used, and number of orders processed through Comestri (Client Variables). The Fees are initially based on the Client Variables as set out in a SOW, however you acknowledge and agree that if any of the Client Variables change, the Fees will change accordingly and where Fees are paid in advance, retrospective credits or additional charges may be applied.
We reserve the right to modify the Fees, our pricing structure and pricing terms at any time with notice to you in writing. Any such modification will be effective immediately upon the next renewal, billing period, upgrade or downgrade of your Licence.
All Fees are exclusive of all federal, state and other governmental taxes, goods and services tax and other such charges (Taxes). You are required to pay all Taxes at the same time as your payment of the Fees.
Your billing cycle will commence on the date specified in a SOW, or if no date is specified, on the date that you are created in the production environment for Comestri. Your Fees will be due and payable each month on the same date as your billing cycle commenced.
You warrant and represent to us that at all times during the term of your Licence you will ensure that we have valid and up to date payment details, including credit card details and you grant us the authority to automatically debit the Fees due to us from the payment methods you have provided to us, including credit card. The parties agree that this authority will remain in force until either party validly terminates these Terms. It is your responsibility to ensure that all charges processed are accurate. You agree that you will notify us within 30 days from a billing date if any charge is not accurate after which date you will be deemed to have accepted all charges and to have waived any claim regarding a disputed charge.
Except as expressly set out under these Terms, or as required by law, the Fees paid or payable under these Terms are non-refundable irrespective of your use or non-use of the Licence.
You agree that we may charge interest on overdue amounts at the rate of 8% per annum, calculated daily from the due date of such amount until the date of actual payment and that we may suspend or terminate your Licence if any amount remains unpaid for more than 30 days after we have provided written notice to you.
You must not pay, or attempt to pay the Fees through any fraudulent or unlawful means. If your payment is not able to be successfully processed, or if we, in our sole discretion, suspect that it has been paid for using any fraudulent or unlawful means, we may immediately suspend or terminate the Services.
Fusion Factory may, in its absolute discretion, make further updates or new releases of the Comestri, including Comestri, available to you. These Terms will continue to apply to your use of any such updates or new releases forming part of the Services unless otherwise stated by a separate agreement accompanying the update or new release.
Fusion Factory is not obliged to issue any updates and/or new releases to you notwithstanding that they may be distributed to other parties.
6. Use of Services
To the extent that you upload, publish or transmit any data, content or other material through your use of the Services, you represent and warrant to Fusion Factory that you own all rights including intellectual property rights in, or have authorisation for, or are otherwise legally entitled to upload, transmit or use such material. You indemnify and hold harmless Fusion Factory, its affiliates, agents, principals, contractors or employees for any loss, liability, cost or expense arising from or in connect with any breach of copyright or any other claim that results from your publication or use of such material.
You agree that you will not, either alone or through any other party:
make any copies of any Fusion Factory IP;
use the Services to transmit or upload any computer viruses, worms, Trojan horses or other malware, or to trespass or burden any network capacity;
distribute, sub-licence, disclose, market, or offer remote computing or hosting services, or transfer of the Services to any party, or permit any person or entity to have access to the Services by any sharing, remote computing or hosting services or time sharing arrangement;
circumvent, disable or otherwise interfere with security-related features of the Services or features that determine whether you are acting in accordance with these Terms;
use the Services in a way which impairs the functionality or reliability of the Services;
use the Services to publish or disseminate content that may be found to be defamatory or illegal;
use the Services to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party;
remove, obscure, deface or alter any of Fusion Factory or any third party’s copyright notices, trade marks or other proprietary rights affixed to the Services or any Fusion Factory IP;
copy, decompile, modify, reverse engineer, disassemble, attempt to derive the source code of, decrypt or modify the Services or any Fusion Factory IP or any of their components except as expressly permitted by these Terms, or in writing by Fusion Factory; or
in any form, or by any means, adapt, reproduce, store, distribute, display, publish or create derivative works from any part of the Services or any Fusion Factory IP without Fusion Factory’s express written permission.
You agree that Fusion Factory may, in its absolute discretion, limit your access to, or use of, the Services if, in its opinion, your use of the Services is excessive or unreasonable or impacts on the usability or reliability of the Services for Fusion Factory or other users, or breaches these Terms.
Fusion Factory may require that you remove or delete any content uploaded onto the Services or your account within 1 business days’ written notice to you.
You agree to use the Services in compliance with all applicable laws of the countries in which you or your customers reside, access or use the Services.
7. Security of your account
Access to the Services may require a unique access code, token, user name and/or password (Security Credentials). You must not release, distribute, publish or otherwise make public any Security Credentials provided to you in relation to the Services to any person.
You agree that you are responsible for maintaining the security of any account, login and Security Credentials, and that you will keep such information confidential. You must immediately notify Fusion Factory of any actual or suspected unauthorised use of your account details or any other breach of security.
If you provide Security Credentials to facilitate access to the Services, including Comestri (or to your data stored thereon) to any third party, you do so at your own risk. You must ensure that any such party accepts and complies with these Terms and you agree to remain fully liable to Fusion Factory for the acts, omissions and negligence of that third party.
Fusion Factory reserves the right to suspend or terminate the Services or any account relating to the Services where it believes there has been a breach of security in relation to an account.
8. Use and Storage of data
You agree that Fusion Factory may collect, maintain, process and use diagnostic, technical, usage and related information in relation to your use of the Services to provide and improve Fusion Factory’s products and services, facilitate product support and verify compliance with these Terms.
You agree that Fusion Factory may provide its partners and third party providers data relevant to that party’s software or services provided that the data is provided in a form that does not personally identify you.
For the purpose of this clause 8, Data means any of the following to the extent it relates to your business:
data or information, in whatever form, either entered, uploaded or stored on Comestri;
information that you create using Comestri; and
information generated by Comestri.
All Data held by Fusion Factory will be deleted by the date that is six (6) months after termination of these Terms.
Fusion Factory will, upon receiving a written request signed by a director after the termination of these Terms, delete your Data within 5 business days.
If Fusion Factory provides your Data to any third party, Fusion Factory will not be liable for that third party not complying with a request to delete that Data, provided that Fusion Factory has requested that the third party delete your data.
You agree that any information you upload, record, create or otherwise store in the Services, including in Comestri is stored by you at your own risk. The Services, including Comestri are not data storage or backup services. While Fusion Factory makes every effort to prevent data loss, it does not warrant that its computers or services will be free from failures, corruption, security intrusion or interference. To the maximum extent permitted by law, Fusion Factory shall have no liability to you for such corruption or loss of data. You agree that it is your responsibility to regularly back up your data.
If you facilitate or permit access by any other party to your data in the Services, including on Comestri, you are solely responsible for the actions of that party. Fusion Factory shall not be liable for any addition, modification or deletion of your information or data resulting from such access by any third party.
9. Third Party Information and Services
The Services may access, or contain links to, websites or services controlled by third parties. Fusion Factory does not guarantee the availability, accuracy, completeness, reliability, or timeliness of such websites or services, nor its stock information, location data or any other data displayed or located thereon. You agree and acknowledge that Fusion Factory is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of third party materials or websites. You agree that such actions are your responsibility.
You agree that Fusion Factory, its affiliates, agents, principals, contractors or employees shall have no liability to you for content that may be found to be offensive, indecent, objectionable or illegal either on the Services or any third party website or software.
You may not assign, sell, lend, sub-licence or otherwise deal with or transfer your rights to access and use the Services to another party without prior written permission from Fusion Factory. For the purposes of clarity, if you are a company or trust, a change of control constitutes an assignment under these Terms.
11. Disclaimer and Limitation of Liability
The Australian Consumer Law (ACL) contains warranties, guarantees and conditions that cannot be excluded. These Terms do not purport to exclude, restrict or modify the application of the ACL where to do so would contravene the ACL or cause any part of these Terms to be void.
Subject to the above, and except for warranties that cannot be excluded by law, no warranty or representation, either express or implied is given by Fusion Factory in respect to the Services, Fusion Factory makes no warranty of merchantability or fitness for any particular purpose. You agree that your use of the Services is at your own risk, and that the Services are provided to you on an “as is” basis. Fusion Factory’s express warranties in these Terms shall not be varied or increased and no obligation or liability shall arise out of Fusion Factory rendering technical or other advice or service in connection with the Services. It is your responsibility to ensure that the Services are appropriate for your proposed use.
Nothing in these Terms shall exclude or limit your liability for a breach of the licence or a provision of these Terms or a party’s liability which cannot be excluded or limited by law. Save for the foregoing, neither party accepts and each party hereby excludes any liability for loss of or damage to tangible property other than that caused by its gross negligence and hereby excludes any other liability for negligence arising pursuant to these Terms. Under no circumstances will either party be liable for: Loss of revenue, loss of actual or anticipated profits, loss of contractors, loss of finance, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation; loss of or damage to or corruption of data; or consequential or indirect loss, or special, punitive or incidental damages; whether foreseeable or unforeseeable, based on claims of your, Fusion Factory or any third party arising out of any breach or failure of express or implied warranty conditions or other term, breach of contract, misrepresentation, negligence, other liability in tort, failure of any remedy to achieve its essential purpose or otherwise.
You agree that to the maximum extent permitted by law, in no event shall Fusion Factory, its affiliates, agents, principals, contractors or employees or any party acting on Fusion Factory’s behalf be liable for loss or damages (including, but not limited to direct or indirect, special, incidental or consequential damages), howsoever caused (including, but not limited to loss or corruption of data, loss of profit, failure to transmit or process data, system failures, business or service interruption), whether arising in contract, negligence, tort, equity or statute, in connection with, arising out of, or relating to, your use or inability to use the Services.
You agree that to the maximum extent permitted by law, any liability of Fusion Factory that cannot be excluded by law is limited, at Fusion Factory’s option, to the re-supply of the services or a refund of the total price actually paid by you to Fusion Factory for the Services for the 12 months preceding the date of which the liability arose.
Fusion Factory agrees that your liability to Fusion Factory under this Agreement is limited to the total price of Fusion Factory Services for the 12 months preceding the date of which the liability arose.
12. Release and Indemnity
You agree to indemnify, hold harmless, release and discharge Fusion Factory, its affiliates, agents, principals, contractors and employees in respect of any claim, action, cost, charge, expense, penalty, fine, payment, loss or damage which Fusion Factory suffers, incurs or is liable for, whether directly or indirectly, including, without limitation, any special, incidental or consequential damages and legal costs, arising from your act, omission or negligence or your use of the Services or your breach of these Terms.
You indemnify and hold harmless Fusion Factory, its affiliates, agents, principals, contractors or employees against any loss, liability, cost or expense arising from or in connection with your use or misuse of the Services or your breach of these Terms.
You may terminate these Terms with, or without cause by providing at least 30 days written notice (to Fusion Factory via our email at email@example.com or as otherwise provided from time to time). You acknowledge and agree that such notice of termination must be provided to Fusion Factory at least 5 days prior to the end of the then-current billing cycle, otherwise you will be charged for the next billing cycle without refund. To the maximum extent permitted by law, you will not be entitled for a refund for any pre-paid and unused portion of your Fees except as required under Australian Consumer Law or where the termination is a result of our breach.
Without prejudice to any other remedies, Fusion Factory may immediately suspend or terminate the Services, the License or these Terms, or cease offering the Service if:
you are in breach of any obligation (including those relating to payment) under these Terms which has not been remedied after 7 days written notice;
you have breached these Terms and that breach is not capable of remedy;
any money payable to Fusion Factory becomes overdue, or in Fusion Factory’s opinion, if you will be unable to make a payment when it falls due;
you become or are suspected to be, insolvent, convene a meeting with your creditors or propose or enter into an arrangement with creditors, or make an assignment for the benefit of your creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of you or any of your assets.
any amounts owing to Fusion Factory at the time of the suspension or termination, shall become immediately due and payable; or
in its absolute discretion, at any time and without notice to you.
Fusion Factory may terminate these Terms at any time on 1 months notice and if Fusion Factory terminates these Terms under this 13.3, then any pre-paid and unused portion of your Fees will be refunded, except as required by law, in no other instances will any Fees be refundable. Fusion Factory will not be liable to you for any further loss or damage arising out of or in connection with Fusion Factory exercising its rights under this clause.
Fusion Factory may suspend the Services and suspend your access to the Services or any part of the Services until any relevant Fees have been paid in full or until any breach of these terms or a licence agreement is remedied in accordance with the relevant licence agreement.
Upon termination of these Terms, Fusion Factory may immediately remove any access to the Services, disable the Services and/or delete your account and data.
Entire agreement: These Terms (and all other terms and conditions and policies that are incorporated by these Terms) make up the entire agreement, and supersede all prior written and oral agreements, representations, undertakings and understandings. Where there is an inconsistency between these Terms and any additional terms, these Terms will prevail.
Set-off: You shall not be entitled to set off against, or deduct from any amounts owed to Fusion Factory, any sums owed or claimed to be owed to you by Fusion Factory nor to withhold payment of any invoice because part of that invoice is in dispute.
Relationship: These Terms do not confer an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between Fusion Factory and you or any other party unless expressly stated otherwise.
Force Majeure: You agree that Fusion Factory will not be liable for any delay or failure to perform its obligations under these Terms if such delay is due to any circumstance beyond its reasonable control. If Fusion Factory is delayed in performing its obligations due to such a circumstance for a period of at least 1 month, Fusion Factory may terminate these Terms by providing 5 business days’ notice in writing.
Governing law and jurisdiction: These Terms are governed by, and shall be construed under, the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the Courts of New South Wales and the Commonwealth. The operation of the United Nations Convention on Contracts for the International Sale of Goods in respect of these Terms is expressly excluded.
Severability: If, for any reason, a court of competent jurisdiction finds any portion of these Terms to be unenforceable or ineffective, then that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remainder of the Terms shall continue in full force and effect.
Waiver: Any failure by a party to insist upon strict performance by the other of any provision in the Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by Fusion Factory of any of the terms of these Terms shall be effective unless Fusion Factory expressly waives its such term in writing.
Amendment: Fusion Factory may, in its sole discretion, modify these Terms or include new or additional terms regarding the use of the Services and Fusion Factory’s associated software and services. Such modifications or additions are incorporated into these Terms, and will be effective immediately upon notice to you. Your continued use of the Services will constitute your agreement to be bound by the Terms, as amended. If you do not agree to the amended Terms, you may terminate these Terms and any relevant licence by providing written notice to Fusion Factory within 7 days of the date of notification of the change and any pre-paid unused portion of your licence fees will be refunded.