Terms & Conditions
1.1 In this document, 'we', 'our' and 'us' means Virtual Forms Pty Ltd ACN 161 519 393 and 'you' and 'your' mean the customer.
1.2 This agreement outlines the terms and conditions that apply to your use of our services.
1.3 The services we are to provide to you and the initial period we are to provide them to you for are identified in the emails we send you after we accept your order for service.
1.4 The Services and this agreement will be automatically renewed for the same period as the initial period unless this agreement is terminated by you or us in accordance with these terms and conditions.
2. Commencement of the Agreement
2.1 This agreement commences on the date we accept your order for Services.
3. Service Availability
3.1 In these terms and conditions 'Service' primarily refers to our provision of developing and hosting online forms.
3.2 We will use our best endeavours to provide continuing availability of the Service but we will not be liable for Service interruptions or down time of the Service except if agreed separately in writing with us.
3.3 We will attempt to perform all scheduled maintenance at times which will affect the fewest customers. If scheduled maintenance requires the Service to be offline for more than 30 minutes we will post details of the scheduled maintenance at least 48 hours in advance of the maintenance. If we need to perform unscheduled maintenance that requires the Service to be offline for more than 30 minutes, we will post details of the event after the maintenance has been completed.
3.4 We will not be liable for any costs incurred by you due to technical failure, modification, or maintenance of the Service.
4. Passwords and content
4.1 You will keep any passwords or log-in details used in connection with the Service secure and you are totally responsible for when and how your account with us is used and the actions of any people you give your password and log-in details to.
4.2 You are solely responsible for any content of your Service and you must hold and continue to hold the copyright in your data or trade mark in any name and logo that you use, or that you are licensed and will continue to be licensed to use that data or name or logo.
4.3 Any explicit content on your web site must be classified and you will restrict access to it where required by law. You will not use the Services to supply any form of content prohibited by law.
4.4 You will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the server does not contain any computer virus and will not in any way, corrupt the data or systems of any person.
4.5 You are solely responsible for dealing with persons who access your data and you will not refer complaints or inquiries in relation to such access to us.
4.6 You agree that if, in our sole discretion, you are using the Services in a way which is not legitimate, is not in compliance with this agreement or any law that we may suspend, disable, limit or terminate the Services or deny you access to the Service without notice, including taking down any of your data or content.
5. Customer's Warranties, Liabilities and Undertakings
5.1 You indemnify and keep indemnified, defend and hold us harmless from and against any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Services, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), demands, or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of this agreement.
5.2 At the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues, web site or publicity material which we have produced.
5.3 You indemnify us against all claims arising out of the use of your online forms, unless and to the extent that the claim arises out of our breach of this agreement, or our negligent act or omission.
5.4 The content and data you use our Services for must not infringe the intellectual property or other proprietary rights of any person, will not breach another person's privacy, is not defamatory or misleading and does not infringe any law.
5.5 You will not use the Services for any illegal, dishonest, deceptive or unfair trade practices.
6. Our Warranties and Liabilities
6.1 We accept liability for the supply of the Services to the extent provided in this agreement.
6.2 We do not warrant that the Services:
(a) provided under this agreement will be uninterrupted or error free;
(b) will meet your requirements, other than as expressly set out in this agreement;
(c) will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of ours; or
(d) will produce any particular results, data, sales or other return.
6.3 Subject to clause 6.4:
(a) we exclude all liability for indirect, incidental, special and consequential loss or damage of any kind, loss or corruption of data, loss of use, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement and/or its subject matter;
(b) the Services are provided on an 'as is' and 'as available' basis;
(c) we make or give no express or implied warranties including, without limitation, the warranties of merchantability or fitness for a particular purpose, or arising from a course of dealing, usage or trade practice, with respect to any goods or services provided under or incidental to this agreement;
(d) no oral or written information or advice given by us, our resellers, agents, representatives or employees shall create a warranty or in any way increase the scope of the express warranties hereby given, and you may not rely on any such information or advice;
(e) our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services will be limited to the charges paid by you in the 12 months preceding the claim in respect of the Services which are the subject of any such claim. Any claim must be notified to us within one year of it arising.
6.4 In the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Competition and Consumer Act 2010 (Cth) nothing contained in this agreement excludes, restricts or modifies any remedies or guarantees where to do so is unlawful. To the full extent permitted by law, where the benefit of any such remedy or guarantee is conferred upon you pursuant to the Act, our sole liability for breach of any such remedy or guarantee shall be limited to the remedies available under the Competition and Consumer Act 2010 (Cth).
6.5 We specifically exclude any warranty as to the accuracy or quality of information received by any person via your online forms and in no event will we be liable for any loss or damage to any data stored. You are responsible for maintaining insurance cover in respect of any loss or damage to your data stored.
7. Suspension and Termination of the Service
7.1 We may suspend or terminate your account if:
(a) you breach this agreement and fail to rectify any remediable breach within 7 days of us notifying you to do so;
(b) you become insolvent;
(c) you are declared bankrupt; or
(d) we are ordered to do so by a court or pursuant to an arbitration award.
7.2 In addition to any other rights we may have under this agreement, you agree that we may, without notice to you and without any liability to us, amend, alter or take down your online forms and data if we:
(a) receive an order from a court or other competent body requiring us to do so;
(b) are directed to do so by the Australian Communications and Media Authority, any other regulatory body or authority or industry association;
(c) determine in our sole discretion that you are infringing this agreement.
7.3 From time to time we may have to suspend or disconnect the service without notice or deny your access to the Service during any technical failure, modification or maintenance involved in the Service. We will use reasonable endeavours to procure the resumption of the services as soon as reasonably practicable. In these circumstances you will remain liable for all charges due throughout the period of suspension.
7.4 If your account has been suspended or terminated due to your breach, reactivation of your account will be at our discretion. If we agree to reactivate your account, we will require payment in full of all outstanding amounts and payment of a reactivation fee.
7.5 You may terminate your account or any individual Service with us for any reason at any time by using the contact form on our website. No refunds are available for Services with 30 days or less of time to run. For Services with more than 30 days of time to run the refund of unused credit will be a whole month pro-rata of the time to run less an early cancellation fee set by us and notified on our website.
7.6 If we wish to terminate your Service for reasons other than a breach of these conditions, we can do so by giving you 30 days written notice. In this circumstance, we will refund any remaining unused credit on your account.
7.7 If your account is closed for whatever reason you must pay all outstanding charges immediately.
7.8 We are under no obligation to provide you with a copy of your data if we have suspended or terminated your access to the Service for your breach. If we provide you with a copy of your data in such circumstances, we are entitled to charge a fee for doing so. If we terminate your account or any Service in such circumstances we may also at our discretion destroy your data. If your data is destroyed it may not be recoverable.
8. Fees, Charges and Payments
8.1 All charges payable by you to us for the Services will be in accordance with the relevant scale of charges and rates published from time to time by us on our website and will be due and payable within 14 days of receipt of our invoice, or on other terms separately agreed with us by you. The price of the Services we provide you will remain fixed for the period covered by the payment; that is, monthly, quarterly or annually. After that time you will be billed at the rates current on our website at the time the Service is renewed.
8.2 Prices published on our web site are inclusive of any government taxes or charges unless otherwise noted.
8.3 We will only provide the Services to you where you have paid for the Services in full. Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, we reserve the right, at our discretion, to suspend the provision of Services to you until we receive the required payment (including any late payment fees, interest, debt recovery charges and reactivation fees) in full.
8.4 If you fail to make payment in accordance with the terms of this agreement, you will become liable for any reasonable costs incurred by us in recovering the debt (including any legal fees, collection agency charges or any other reasonable costs) and interest on the outstanding amount, calculated at the daily rate of 10% per annum, from the due date of the payment.
8.5 Upon registration of a credit card account, you give us authorisation to debit your credit card for all charges. If you are billed on a monthly basis, the billing cycle begins from the date you register.
8.6 You consent to us obtaining a report from a credit reporting agency on your credit worthiness if you choose to pay by credit card.
8.7 If we receive notice of a chargeback, declined or reversed payment from a credit card company in connection with payments made by you for the Services, we reserve the right to suspend the provision of Services to you until we receive the required payment (including any bank charges we incur, late payment fees, interest, debt recovery charges and reactivation fees) in full.
8.8 No refunds will be given for unused portions of payments in advance (including payment of yearly contracts) unless the account has been terminated due to our breach of these terms and conditions, we exercise our rights under clause 7.6, or you exercise your rights under clause 16.1.
9. Archiving and Backup of Your Data
9.1 You are solely responsible for the back-up of your data. You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient data recovered from our backups.
9.2 We will archive your data on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your web site.
10. The use of Spam and Virus Filters
10.1 We can use spam and virus filters and this may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet. We will not be liable for any loss or damage resulting from the use of spam or virus filters.
11. The Need to Change to a New Operating Platform
11.1 Unless otherwise agreed, the Service is provided by us from our data centres in Australia. We reserve the right to migrate your web site to a new Service platform if our supplier ceases to provide appropriate support or your particular server fails or becomes unreliable.
11.2 We will advise you of such a change but we will not take any responsibility for Service failure if you have failed to keep your contact details up-to-date or if you have not checked the operation of your Service post-migration and notified us of any required changes to the Service configuration.
12. Ownership of Equipment
12.1 Unless otherwise agreed, you obtain no rights to the hardware and other infrastructure and facilities used by us to deliver the Services.
13. Intellectual Property
13.1 All rights, title and interest in any technology, techniques, software or trade mark that is used in, or provided by us, as part of the Services will be owned by us.
14.1 If any clause of these terms and conditions is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable wording shall be deemed to be omitted.
15.1 You may transfer this agreement provided that you give us notice in the form we require (setting out the details of the assignee) accompanied by payment of any transfer fee specified by us. No other method of transfer by you is permitted.
16. Changes to Terms
17. Entire Agreement
17.1 These terms and conditions constitute the entire agreement between us and you. It supersedes all prior agreements, understandings and representations whether oral or written.
18. Governing Law
18.1 These terms and conditions are governed by the laws in force in New South Wales. Both parties agree to submit to the exclusive jurisdiction of the Courts of that State.
19. Notifications & Communications
19.1 All notifications under this agreement will be by email to your nominated internet address. By entering into this agreement you agree to receive other email communications of a marketing and promotional nature unless you opt out of our mailing list. You will not be able to opt-out of critical service notifications, renewal, billing and account notifications, scheduled downtime notifications or any other communications deemed to be an essential part of our Service to you.