The Product is operated by Neptune Studio Pty Ltd (ACN 682 570 476) (Provider). These Software as a Service Terms and Conditions (Terms and Conditions) govern access to and use of Neptune (the Product as defined below) by you, the individual agreeing to these Terms and Conditions, and any other person or legal entity on whose behalf you are acting (Customer).
By accepting these Terms and Conditions, or by using or accessing the Product, you indicate your assent to be bound by these Terms and Conditions.
If a person is agreeing to these Terms and Conditions on behalf of the Customer, the person agreeing on behalf of the Customer warrants that it has the irrevocable authority and agreement of the Customer to be bound by these Terms and Conditions.
The Provider may, at its sole discretion, vary or modify these Terms and Conditions by posting such amended Terms and Conditions on the Product, the website or otherwise sending them directly to the email address linked to the Customer's Account. Unless otherwise stated, all amended terms will automatically be effective from the date they are published on the Product or notice is otherwise given to the Customer. Any subsequent access to or use by the Customer of the Product and the Services will constitute an acceptance of those changes. If the Customer does not agree to these new terms, please stop using the Product and the Services. Each time the Customer accesses or uses the Product they should revisit these Terms and Conditions.
In these Terms and Conditions unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a)Account: an account enabling the Customer to access and use the Product. In these Terms and Conditions unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(b)ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(c)Address for Service: for the Customer means such address as provided by the Customer to the Provider, and for the Provider such address set out on the Product, or such other address for service advised by the party to the other parties in writing from time to time.
(d)Applicable Laws: any laws governing or affecting the arrangements contemplated by these Terms and Conditions.
(e)Beta Version: means a pre-release version of the Product made available by the Provider free of charge for a limited period, during which users are invited to test the software and provide feedback before its official release..
(f)Customer Data: all data, files, works and materials uploaded to or stored on the Product by the Customer (or Users), transmitted by the Product at the instigation of the Customer (or Users), or supplied by the Customer (or Users) to the Provider for uploading to, transmission by or storage on the Product.
(g)Commencement Date: the date that the Customer subscribes to the Product including during the period of any Beta Version.
(h)Confidential Information: of a party means all information (in any form):
(i)relating to or arising from the Services (including the Customer Data for the Customer);
(ii)that concerns a party's business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, client lists, pricing, and other business processes); and
(iii)includes these Terms and Conditions;
but does not include information that:
(iv)is or becomes independently developed or known by the other party through no breach of these Terms and Conditions by that party; or
(v)becomes publicly available without breach of these Terms and Conditions.
(j)Corporations Act: the Corporations Act 2001 (Cth)).
(k)Fee: any fees payable by the Customer to the Provider to use the Services and the Product in accordance with clause 5, including but not limited to the Subscription Fee and any other fees, taxes and charges payable by the Customer to the Provider under these Terms and Conditions.
(l)Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
(i)strikes, lock-outs or other industrial action;
(ii)civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(iii)fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic (including COVID-19), health emergencies, disease, or other natural disaster;
(iv)interruption or failure of utility services (including the inability to use public or private telecommunications networks);
(v)interruption of networks or third party services (including telecommunication or web services); and
(vi)the acts, decrees, legislation, regulations or restrictions of any Government Agency,
however does not include a lack of funds.
(m)Further Term: any further term of these Terms and Conditions in accordance with clause 3.1.
(n)Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
(o)GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
(p)Insolvency Event:
a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
a liquidator or provisional liquidator is appointed in respect of a person;
any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (i) or (ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.
(q)Intellectual Property Rights: all present and future rights conferred by law in or in relation to copyright, trademarks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
These rights include without limitation:
all rights in all applications to register those rights;
all renewals and extensions of those rights;
and all rights in the nature of those rights, such as Moral Rights.
(r)Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(s)Materials: all materials, documentation and information (whether reduced to written form or otherwise) provided to the Customer by the Provider at any time.
(t)Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.
(u)Product: means the software known as Neptune Story Studio as available via www.neptunestorystudio.com
(v)Policy: means any policy of the Provider in place from time to time and includes the Privacy Policy.
(w)Privacy Legislation: means the Privacy Act 1988 (Cth), including Australian Privacy Principles, and the guidance and codes of practice issued by the Office of the Australian Information Commissioner from time to time.
(x)Privacy Policy: means the privacy policy of the Provider as accessible on the Product.
(y)Related Entity: has the meaning given in section 9 of the Corporations Act.
(z)Services: means any services that the Provider provides to the Customer, including without limitation the Product.
(aa)State: New South Wales, Australia.
(bb)Subscription Fee: the subscription fees payable by the Customer for access to the Product.
(cc)Subscription Types: means the various types of subscription available for Customers and Users of the Product, as offered by the Provider, which may include, but are not limited to, different levels of access, features, and pricing options, as outlined in the relevant subscription plans or packages provided and advertised by the Provider from time to time.
(dd)Term: means the term of these Terms and Conditions, commencing and expiring in accordance with its terms. The Term includes any Further Terms.
(ee)Terms and Conditions: these Terms and Conditions and any amendments to these Terms and Conditions from time to time.
(ff)User: any end user of the Product which is supplied to the Customer. In these Terms and Conditions the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
In these Terms and Conditions the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a)Headings and subheadings are for convenience only and do not affect the interpretation of these Terms and Conditions.
(b)References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, these Terms and Conditions.
(c)References to parties are references to the parties to these Terms and Conditions.
(d)References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
(e)Words denoting the singular include the plural and words denoting the plural include the singular.
(f)Words denoting any gender include all genders.
(g)The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
(h)A reference to a body (other than a party to these Terms and Conditions), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(i)A reference to any agreement or document (including these Terms and Conditions) includes any amendments to or replacements of that document.
(j)A reference to a law includes: legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them; any constitutional provision, treaty or decree; any judgment; any rule or principle of common law or equity, and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
(k)Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
(l)Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
(m)No provision of these Terms and Conditions will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms and Conditions.
(n)If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
(o)A reference to time is a reference to time in the capital city of the State.
(p)A reference to a day is a reference to a day in the capital city of the State.
(q)A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
(r)If any act is required to be performed under these Terms and Conditions by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
(s)If any act is required to be performed under these Terms and Conditions on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
(t)A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
(u)Specifying anything in these Terms and Conditions after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(v)Where these Terms and Conditions are executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
(w)These Terms and Conditions includes all schedules, annexures, appendices, attachments and exhibits to it.
(x)A reference to writing or written includes email.
(y)Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
2.1The Product is a software and is designed to support writers from concept to creation by leveraging innovative technology. It goes beyond script writing, offering comprehensive tools to assist Users in developing their creative projects. Users will have access to the Product in accordance with these Terms and Conditions, to enter their relevant information as required, which the Customer is able to access via the Product.
2.2The Customer and User acknowledges and agrees that:
(a)the Customer is solely responsible for any obligations under any applicable laws relating to its relationship with a User, including without limitation obligations under privacy laws;
(b)due to the nature of software, the Provider is unable to guarantee the data accuracy of the Product or the completeness, accuracy, currency or reliability of any information provided by Users;
(c)the Provider processes the Customer Data on the Customer’s behalf and does not control the handling of the Customer Data or the ownership of such Customer Data;
(d)they must not upload inappropriate or otherwise illegal content, images, files to the Product;
(e)they are the rightful owner of the content, images and files uploaded to the Product or has otherwise obtained all necessary consents to the use of the content, images and files;
(f)they must take all necessary steps to save or back up projects created using the Product;
(g)they must not provide unauthorised access to the Product to third party users;
(h)they must not intentionally bombard the Product with the intent to affect the Service or with the view to disable the Product or drive up cloud service costs to the Provider;
(i)any AI-generated images or content created within the Product use standard AI generation methods, and any resemblance or likeness to existing people, objects, or works is purely coincidental and not the responsibility of the Provider;
(j)the Owner of a Project is responsible for any User that is added to the Project and any actions taken by those Users within the Project space; and
(k)the Provider may use aggregated or anonymised project data for system analysis, performance monitoring, and other internal purposes.
2.3In providing Customer Data to the Product, the Customer acknowledges and agrees that they are authorised to disclose such information and that, without the Provider taking any further steps required by applicable data protection or privacy laws, the Provider is able to collect, use and disclose such Customer Data for the purposes described in the Provider’s Privacy Policy.
2.4The Product is available only to persons who are able to form legally binding contracts under Applicable Laws.
(a)The Subscription Types will be displayed at the Provider’s website, along with its features and respectively fees.
(a)These Terms and Conditions shall commence on the Commencement Date and continue until terminated in accordance with their terms.
(b)Unless otherwise agreed in writing with the Provider, the Customer will be on the following subscription plan:
Subscription Term: The subscription period can be monthly or annually, and it will commence at the completion of the Beta Version, which is to be determined by the Provider.
Automatic Renewal: To avoid interruption of the Customer’s use of the Product, unless the Customer terminates these Terms and Conditions before the end of the then current Term, these Terms and Conditions will automatically renew for a subsequent subscription term period (a Further Term) and the Customer authorises the Provider to charge the Subscription Fee for each Further Term.
(a)Subject to the Customer’s compliance with the terms of these Terms and Conditions, the Provider hereby grants to the Customer a non-exclusive, non-transferable, revocable licence to use the Product during the Term in accordance with these Terms and Conditions.
(b)All Users of the Product must agree to the Terms of Use prior to using the Product. The Provider will make these Terms of Use available on the Product and the Customer agrees that it must not remove or otherwise attempt to modify or hide any reference to the Terms of Use from the Product.
(a)The Customer shares the responsibility for ensuring its Users comply with the provisions of the Terms of Use (as agreed under clause 3.2(b)), and a breach by any of the Users of the Terms of Use will be deemed to be a breach by the Customer.
(b)When using the Product the Customer will be considered to be a “User” and as such must comply with the Terms of Use.
(c)Any data submitted to the Product, or action taken, by a User will be deemed to be submitted and taken by the Customer.
(a)Except to the extent expressly permitted in these Terms and Conditions, the licence granted by the Provider to the Customer under clause 3.2 is subject to the following prohibitions:
(i)the Customer must only sub-license its right to access and use the Product to Users in accordance with these Terms and Conditions;
(ii)the Customer must only use the Product for its intended purposes;
(iii)must not directly or indirectly copy, reproduce, reverse engineer, decompile, translate, alter, modify, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Product or any software, documentation or data related to the Product (except to the extent expressly permitted by Provider);
(iv)must not create derivative works based on the Product (except to the extent expressly permitted by Provider or authorised within the Product);
(v)must not make any alteration to the Product;
(vi)the Customer must comply with all Policies.
4.2In order to use the Product, the Customer must have their own Account. The Customer may permit its Personnel to access and use its Account. Any acts of the Customer’s Personnel will be attributed to the Customer in using the Account:
(a)the Customer must not use false or misleading information and must update their details should they have changed from the last time they used the Product;
(b)the Customer must follow any password policies made available by the Provider from time to time (and as are stated on the Product from time to time);
(c)the Customer is responsible for the security of its username and password and the Provider will assume that anyone using the Customer’s Account is authorised to do so by the Customer and the Customer is responsible for their actions. Under no circumstances will unauthorised access and use of the Customer’s Account reduce the Customer’s liability to the Provider; and
(d)the Customer must notify the Provider immediately if it becomes aware of any unauthorised use of its Account or other security breach.
4.3Users will be able to register their account using their email address.
(a)The Customer must pay the Subscription Fee for the Product as displayed by the Provider into its website.
(b)The Provider reserves the right to change the Subscription Fee at any time with notice to you, but the date that the increase is to take effect will be only after the current Term finishes.
(c)The Customer may elect to participate in certain add-ons or functionality of the Product which must be paid for at the time specified on the Product or otherwise notified by the Provider.
(d)In the Provider’s sole discretion, the Provider may offer free or discounted pricing for various Services accessible on the Product. The terms of such use and any limitations will be as specified on the Product or at any location and website where the Service is accessed at the time the Service is accessed. If the Provider offers the Customer access to a Beta Version or a trial program, once the terms of that Beta Version and/or trial program have expired the Customer agrees that the Provider’s normal billing rates shall apply. The Customer agrees to comply with any restrictions or limitations placed on their Account during any free or discounted pricing term.
(a)Payment of the Subscription Fee is to be made via the means specified by the Provider and processed by a reputable third party vendor.
(b)If the parties have agreed that the Fees will be paid via a direct credit card/debit card indicated by the Customer or User, on or about the due date for payment without notice to the Customer. The Customer must ensure that its payment details are up to date at all times and the Customer must notify the Provider in the event that the details are no longer current, and provide replacement details. The Customer also irrevocably authorises the Provider to deduct all other fees and charges payable by the Customer to the Provider under these Terms and Conditions from the Customer’s payment details. The Customer warrants that the Customer is the owner or has the right to use any payment details provided to the Provider. Default charges will apply in the event that the Customer stops the authority to charge the payment details without acceptance by the Provider or if there are insufficient funds.
(a)Where any part of the Subscription Fee or other monies payable by the Customer under or in connection with these Terms and Conditions are not paid by their due date, the Provider reserves the right to (without limitation to any other rights it may have):
(i)suspend the Customer’s access (including the access of its Users and any project collaborators) to the Product until all overdue amounts (including interest) are received by the Provider in cleared funds;
(ii)suspend the Customer’s access (and the access of any project collaborators) to any data stored on the Product (to the extent permitted by law) until all overdue amounts (including interest) are received by the Provider in cleared funds in accordance with clause 8; and
(iii)charge the Customer interest on the overdue amount at the rate of 12% per annum accruing daily and compounding monthly until payment is received in full.
(b)The Customer acknowledges that the Provider may not grant the Customer access to the Product, including access by any project collaborators, until they have received payment of all required Fees payable in cleared funds.
(a)The Customer must pay Subscription Fee and other amounts without set-off or claim under any circumstance including if a dispute exists.
(b)All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of GST or any other tax and charges, which will be added to those amounts and payable by the Customer to the Provider.
(c)Depending on the method of payment the Customer uses to pay the Fees, additional charges may be incurred (such as a small credit card processing charge).
(d)Except to the extent expressly set out in these Terms and Conditions, all amounts paid by the Customer are non-refundable to the extent permitted by law. For the avoidance of doubt, the Setup Fee is non-refundable at any time to the extent permitted by law.
(a)The Provider reserves the right to perform general maintenance services to the Product including updating and upgrading the Product during the Term as the Provider considers necessary from time to time. The Customer acknowledges and agrees that the Product may occasionally be unavailable during periods of planned or unscheduled critical and urgent maintenance or updates or upgrading.
(b)The Provider will provide the Customer with the following notice in the event any maintenance services will or are likely to result in any downtime to the Product:
(i)if the maintenance services are critical, urgent and it is not reasonably practicable for the Provider to provide any notice – no notice will be provided;
(ii)otherwise – the Provider will endeavour to provide at least 5 business days’ notice.
(a)Should the Customer require amendments to the Product (such as custom requirements and integrations), then the Customer may request the Provider provide such amendments, and the Provider may accept or reject such request at its sole discretion. If the Provider accepts such requests then it will provide an additional quote (with additional fees if required to be paid as advised by the Provider at the time of request) and if accepted by the Customer, an invoice will be issued to accommodate these changes.
(b)The Provider reserves the right to make changes to the Product which are necessary to comply with Applicable Laws, Government Agency requests or safety requirements.
(a)The Product utilises third party services to enable the Product to provide a number of features. By using the Product, the Customer and the User:
(i)the Customer may be required to have an account set up with that third party supplier; and
(ii)the Customer authorises and directs the Provider to disclose the Customer Data as required to such third party systems in order for the Provider to provide the Services.
(b)The Customer acknowledges that such third party services are beyond the Provider’s reasonable control, and in the event that:
(i)a third party service is experiencing issues or downtime; or
(ii)the Customer is required to maintain an account with that third party service and fails to do so,
(iii)this may also cause the Product to become unavailable and the Provider accepts no responsibility for any Losses in this regard.
(c)Where information is transferred to a third party service, the Provider will not be liable for any Loss arising from the use of that information by that third party service.
(d)This application incorporates certain open source software components that are licensed under the MIT License, Apache License 2.0, and other similar permissive open source licenses. The applicable license terms, copyright notices, and acknowledgements for these components are maintained by Neptune and are available upon request.
Use of this application does not grant you rights to any intellectual property of such third-party software beyond what is provided in the respective open source licenses.
All original Neptune source code and software is proprietary and not open-source.
(a)The Provider will use commercially reasonable efforts to make the Product available 99% of the time, 24 hours a day, 7 days a week, excluding:
(i)routine maintenance or reasonable downtime of the Product;
(ii)an event outside of the Provider’s reasonable control including without limitation, carrier related problems or issues, or internet access or related problems;
(iii)any actions or inactions of the Customer or any third party (except for the Provider);
(iv)the Customer’s applications, equipment, software or other third party equipment, software.
(b)Notice for scheduled downtime for maintenance will be provided in accordance with clause 6.2.
(c)The Provider will not be in breach of these Terms and Conditions, or required to provide any refund or credits if it fails to meet the specified availability service levels set out in this clause 6.4.
(a)The Provider shall at all times retain all title, rights and interest in and to the Product and Materials including:
(i)the Intellectual Property Rights subsisting in each;
(ii)any customisations of, and modifications to, the Product and Materials to suit the Customer’s individual needs;
(iii)information or data, software, source codes and other information technology relating to or connected with the Product or Materials;
(iv)marketing information relating to or connected with the Product or Materials; and
(v)technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Product,
(b)however, excluding the Customer Data.
(c)No right, title and interest in any of the Product and Materials is transferred or granted to the Customer except as expressly stated in these Terms and Conditions. The Customer must not use the Product in any way that is inconsistent with the Provider’s ownership.
(d)For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Product, either during or after the Term.
(a)The Customer (or its appropriate licensors) shall at all times retain ownership of the Customer Data.
(b)The Customer is responsible for the uploading or entering of any Customer Data. The Provider may, in its absolute discretion, refuse to accept the upload of Customer Data to the Product. The Customer agrees that the Provider shall not be liable to the Customer for any Loss or damage the Customer may suffer as a result of this.
(c)The Customer acknowledges and agrees that the Product may automatically process, modify, compress, resize, or otherwise adjust uploaded Customer Data as necessary to ensure compatibility with the system and maintain optimal performance, including (but not limited to) downsizing large files such as high-resolution images.
(d)The Customer hereby grants to the Provider a non-exclusive, worldwide, transferable, royalty-free license to use, store, copy, display, and process the Customer Data solely as reasonably necessary to provide, operate, maintain, and improve the Product and Services; assist the Customer with support requests or system issues; monitor compliance with these Terms and Conditions (including investigating suspected misuse or illegal content); and generate aggregated or anonymised insights, analytics, or system analysis that do not identify the Customer or its Users. This license includes the right to sub-license these rights to the Provider’s third-party service providers solely for these purposes. For clarity, the Provider will not use Customer Data in a way that publicly identifies the Customer or its Users, or for marketing or promotional purposes, without the Customer’s prior written consent.
(e)The Customer also grants the Provider an irrevocable, non-exclusive licence to use the Customer Data as non-personally identifiable data in aggregated and blinded formats where the data provides no identifying, referencing or implication of an association with the Customer for the purposes of:
(i)displaying the Customer Data on the Product;
(ii)improving the Product by ways of benchmarking, research and marketing analysis, analytics, surveys, reports and studies of the Customer Data;
(iii)to measure any metrics associated with the Customer’s use of the Product;
(iv)for philanthropic purposes; and
(v)for such other purposes specified in the Privacy Policy.
(f)The Provider warrants that:
(i)it will only use the Customer Data as set out in these Terms and Conditions and the Provider’s Privacy Policy in place from time to time; and
(ii)it will not sell, rent or lease the Customer Data to any third party.
(g)The Customer warrants to the Provider that:
(i)the Customer owns or has the necessary licenses to transmit such Customer Data through the Product and that any Customer Data provided will not infringe any third party rights (including intellectual property or confidentiality obligations) nor give rise to a liability to make royalty or other payments to a third party;
(ii)the Customer Data will not:
A.breach the provisions of any law, statute or regulation;
B.give rise to any cause of action against the Provider, in each case in any jurisdiction and under any applicable law.
8.1Subject to the other terms of this clause, in the event that:
(a)the Customer fails to pay any part of the Subscription Fee or other monies payable by the Customer under or in connection with these Terms and Conditions by its due date; or
(b)these Terms and Conditions and/or the Customer’s access to the Product is suspended, restricted or terminated; or
(c)the Customer closes their account or their subscription or terminates these Terms and Conditions, the Customer’s Account will become inactive. Subject to the other terms of this clause, the Customer will have no access to the Customer Data while the Customer’s Account is inactive.
8.2Prior to termination of these Terms and Conditions or the Customer’s Account otherwise becoming inactive, the Customer is solely responsible for downloading any Customer Data that is available for download from the Product. Only the Customer Data that is made available in the format as specified on the Product may be downloaded. The Provider does not guarantee, represent or warrant that all of the Customer Data will be able to be downloaded.
8.3Following termination of these Terms and Conditions the Provider may provide the Customer with a grace period of 30 days to export or download their Client Data after cancellation or termination. Such period is provided at the discretion of the Provider and subject to the other terms of these Terms and Conditions. Such grace period is provided to the Customer without guarantee that any Customer Data will be able to be downloaded post termination. Where such request is made, an administrative fee may be payable, as advised by the Provider.
8.4Following termination of these Terms and Conditions, and subject to the Provider granting a 30 day grace period in accordance with clause 8.3, the Provider reserves the right to delete all Customer Data from the Product and is under no obligation to provide any notice or copies of such Customer Data to the Customer prior to its deletion.
9.1The Customer warrants:
(a)that it has the legal right and authority to enter into these Terms and Conditions and to perform its obligations under these Terms and Conditions;
(b)that it has not relied upon any representations, warranties or conditions offered or made by or on behalf of the Provider except to the extent expressly set out in these Terms and Conditions.
9.2All of the parties' warranties and representations in respect of the subject matter of these Terms and Conditions are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of these Terms and Conditions will be implied into these Terms and Conditions or any related contract.
10.1The Provider provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Customer relies on the Services at its own risk and is solely responsible and liable for how they use the Services.
10.2Without limiting clause 10.1, the Customer acknowledges and agrees that:
(a)the Provider does not guarantee continuous, uninterrupted or secure access to its Product or that any information provided by the Provider is up to date and accurate;
(b)the Provider does not warrant that the use of the Product will result in the Customer or its Users achieving any specific result;
(c)the Provider makes no representations about the suitability of the Product including any third-party integrations for any purpose;
(d)the Provider makes no guarantees that there will be no loss or corruption of Customer Data at any time;
(e)the Provider cannot guarantee the accuracy, currency, suitability, reliability and availability of the Product and any content gained within (including any calculations and estimates);
(f)the information provided on and in the Product is general information and is not in the nature of financial, legal or any form of advice. The Customer should obtain advice before making any decision based on the Product;
(g)the Provider reserves the right to withdraw, or amend, update or change the functionality or content of the Product at any time, without notice;
(h)the Services are generated based on documentation and input provided by the Customer (and its Users). The Customer is solely responsible for the reliability, accuracy and completeness of such documentation and input provided. It is the Customer’s obligation to ensure that they input the correct data, and that they review the outcome of the Services. The Customer should make their own enquiries and review and obtain their own independent advice in relation to the information contained on the Product before making any decision or taking action on their contents;
(i)the Customer acknowledges that the Services are data imputation and/or generated via artificial intelligence based on information provided by the User. In light of this, the Service Provider takes no responsibility if the outcome of the Services is inaccurate, incomplete or non-reliable because it is based on inaccurate, incomplete or non-reliable documentation provided by the User. As the Services are based on information provided by the User, the Service Provider excludes all liability and will not be responsible for any Loss that the Customer may incur from reliance on the Services in any third party arrangement;
(j)the Customer acknowledges that the projects created by the Customer or the User using the Product includes content generated via artificial intelligence and therefore:
(i)the content created by the Customer or the User is content that is not exclusively owned by the Customer or the User;
(ii)use of the content may be in breach of copyright laws and plagiarism.
(k)the Beta Version may be subject to changes, may contain bugs or errors, and is used at the Customer own risk.
(l)complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Product will be wholly free from defects, errors and bugs; and
(m)the Provider will maintain appropriate technical and organisational measures to protect the security of the Customer Data. However, the Provider does not guarantee that unauthorised third parties will never be able to defeat those measures to access the Customer Data for improper purposes. The Customer acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and Customer Data. Accordingly, any Customer Data that is transmitted by the Customer is transmitted solely at the Customer’s risk. The Customer is solely liable for their Customer Data.
11.1Subject to the other terms of this clause, the Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.
11.2Without limitation to clause 11.1, to the extent permitted by law, the Provider excludes all liability to the Customer and Users and/or anyone else for Losses arising in any way in connection with the Product or its use and/or the Services and/or these Terms and Conditions, including but not limited to Losses suffered as a result of:
(a)non-performance or downtime of the Product;
(b)any reliance on the Product (or any information provided from the Product);
(c)any incorrect data entry or information made by the Customer or Users on the Product;
(d)any incorrect data or content, errors, mistakes or inaccuracies on the Product;
(e)any loss or corruption of Customer Data at any time;
(f)any defects, errors and bugs in the Product;
(g)any unauthorised access to or use of the Product;
(h)any interruption or cessation of transmission to or from the Product;
(i)use of the Product which is contrary to law, these Terms and Conditions or any other agreement between the Customer and the Provider;
(j)unauthorised third party access to the Product or the Services;
(k)any viruses, trojan horses or other harmful code or communications which may be transmitted to or through the Product by any third party; and/or
(l)loss of privacy and confidential information.
11.3Subject to the other terms of this clause, the Provider’s maximum aggregate liability to the Customer for any Loss or damage or injury arising out of or in connection with these Terms and Conditions, including any breach by the Provider of these Terms and Conditions however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual Fees paid by the Customer to the Provider under these Terms and Conditions in respect of the one-month period preceding the matter or event giving rise to the claim.
11.4Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services, to the extent that the ACL applies to the Services.
11.5If the Provider is liable to the Customer in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Provider's total liability to the Customer for that failure is limited to, at the option of the Provider the resupply of the Services or the payment of the cost of resupply.
11.6The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
11.7Without limitation to the other terms of this clause, the Provider excludes any liability to the Customer, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms and Conditions.
11.8Notwithstanding anything else in this clause, the Provider’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Customer, the Customer’s Users or the Customer's employees, agents or contractors.
11.9Where the Customer is or may be entitled to recover from a third party any sum in respect of any matter or event that could give rise to a claim under these Terms and Conditions, the Customer must:
(a)use its best endeavours to recover that sum before making the claim;
(b)keep the Provider at all times fully and promptly informed of the conduct of such recovery; and
(c)reduce the amount of the claim to the extent that sums are recovered.
11.10The Provider will not be liable for any claim under or in relation to or arising out of these Terms and Conditions including a breach of any warranty unless:
(a)the Customer has first made a claim under any insurance policy held by the Customer that may cover that claim; and
(b)that claim has been denied in whole or partly by the relevant insurer.
11.11If the Customer recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of these Terms and Conditions and that amount is less than the loss or damage incurred by the Customer, the amount of the shortfall will be the amount of the Customer’s loss for the purposes of these Terms and Conditions.
12.1Except to the extent caused by the breach of these Terms and Conditions by the Provider, the Customer indemnifies and releases the Provider, and its officers, directors, shareholders, employees, consultants, agents, and related bodies corporate from and against any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Provider arising out of or in connection with:
(a)the Customer or the Customer’s User's use of the Services;
(b)the supply, suspension, restriction or cancellation of the Customer or the Customer’s User’s access to the Product;
(c)the Customer or the Customer’s User's breach or negligent performance or non-performance of these Terms and Conditions;
(d)from the Customer or the Customer’s User’s violation of any Applicable Law;
(e)any claim made against the Provider and/or the Customer and/or its Users by a third party arising out of or in connection with these Terms and Conditions, to the extent that such claim arises from the act or omission of the Customer and/or its Users or out of the breach, negligent performance or failure or delay in performance of these Terms and Conditions by the Customer;
(f)any claim made against the Provider for actual or alleged infringement of a third party’s rights arising out of or in connection with the Customer Data; and/or
(g)the enforcement of these Terms and Conditions by the Provider.
12.2The Customer must make payments under this clause:
(a)in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b)in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
12.3It is not necessary for the Provider to incur expense or make payment before enforcing a right of indemnity under this clause.
12.4The indemnities in this clause:
(a)are continuing obligations of the Customer, independent from its other obligations under these Terms and Conditions and survive termination or expiry of these Terms and Conditions; and
(b)are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Customer.
12.5The Provider’s liability under this indemnity is limited under clause 11.
13.1The Provider will not be in breach of these Terms and Conditions or liable to the Customer for any Loss incurred by the Customer as a direct result of the Provider failing or being prevented, hindered or delayed in the performance of its obligations under these Terms and Conditions where such prevention, hindrance or delay results from a Force Majeure Event.
13.2If a Force Majeure Event occurs, the Provider must notify the Customer in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
13.3On providing the notice in clause 13.2, the Provider will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Provider must continue to use all reasonable endeavours to perform those obligations.
13.4The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
14.1Termination by the Customer
(a)The Customer may terminate these Terms and Conditions at any time without cause by giving written notice to the Provider of its intention to terminate. Except where the Customer terminates under clause 14.1(b), the Customer will not be entitled to any refund of Fees already paid for the current Term (whether monthly or annually), but will retain access to the Product and Services until the end of that Term.
(b)The Customer may terminate these Terms and Conditions with immediate effect, where:
(i)the Provider breaches any term of these Terms and Conditions and fails to rectify that breach within a reasonable time (being no less than 14 days) from being given notice by the Customer; or
(ii)the Provider suffers an Insolvency Event,
(iii)and in that case the Provider will provide the Customer with a pro-rata refund of the Subscription Fee paid in respect of the balance remaining of the Term. This is the sole remedy available to the Customer.
14.2Provider’s right to terminate, suspend or restrict
(a)The Provider may terminate these Terms and Conditions or the Provider’s Account at any time without cause. Except as set out under clause 14.2(b), if the Provider terminates these Terms and Conditions, the Customer will be able to access the Product for the remainder of the current subscription plan.
(b)The Provider may immediately suspend, restrict or terminate these Terms and Conditions and/or the Customer’s (and the Customer’s Users’) access to all or part of the Services, including access to the Customer Data on the Product immediately where:
(i)it is reasonably necessary for security, technical, copyright or operational reasons;
(ii)the Customer breaches any term of these Terms and Conditions;
(iii)the Customer violates the rights of any third party or the Provider;
(iv)the Provider reasonably believes that the Customer is engaged in illegal or fraudulent use of the Services;
(v)the Provider reasonably believes that the Customer Data is inappropriate or unlawful;
(vi)the Provider reasonably believes that the Customer is using the Services in a way that would cause Loss or damage to or otherwise cause legal liability to the Provider, other users, third parties or disrupt others’ use of the Services; or
(vii)the Customer suffers an Insolvency Event.
(c)The Provider may only offer a pro-rata refund of the Subscription Fee paid in respect of the balance remaining of the Term if the Provider terminates during the Term under clauses 14.2(b)(i) at no fault of the Customer. Otherwise no pro-rata refund will be provided.
15.1On termination of these Terms and Conditions:
(a)the right to use the Product is revoked and the Customer’s access will be terminated;
(b)the Customer must cease using, and must ensure its Users cease using the Product or any embed codes as they relate to the Product (all embed codes must be removed from the Customer’s website or platform); and
(c)all amounts payable by the Customer to the Provider (including amounts that are payable but not yet due) shall become immediately due and payable and must be paid within 7 days of termination without set-off or counter claim. Any amounts to be refunded in accordance with clause 14 are to be applied to any amounts payable by the Customer first, and then any surplus will be refunded by the Provider to the Customer within 30 days of termination.
15.2The terms of clause 8 will apply on termination with respect to the Customer Data.
(a)The parties undertake that they and their respective Personnel will not, without the prior written consent of the other party:
(i)disclose the Confidential Information of the other party to any person; or
(ii)use the Confidential Information of the other party for their own or a third party’s benefit.
(b)Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to such of its personnel as require that information in order to enable the performance of these Terms and Conditions.
(c)If requested by either party the other party must return all Confidential Information and any copies of the Confidential Information to the other party.
(d)In the event that either party is requested or becomes legally compelled to disclose any of the other party’s Confidential Information, that party will (subject to any regulatory restrictions) provide the other party with prompt notice so that the other party may seek such protective order or other appropriate remedy as it thinks appropriate.
(e)In the event of a breach or threatened breach of the terms of this clause by either party (Breaching Party), the other party will, as between the parties, be entitled to an injunction restraining the Breaching Party from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by the party.
(a)In respect of any Personal Information (as defined in the Privacy Legislation) that is included in Customer Data or otherwise provided to, collected or received by either party in connection with the Product, the Customer must comply with:
(i)the Privacy Legislation, and Personal Information in accordance with the Privacy Legislation (as it applies to that party); and
(ii)the applicable Policies and guidelines of the Provider as made known from time to time.
(b)The Customer warrants and represents that all Personal Information that it provides to the Provider complies with this clause and these Terms and Conditions at all times. Immediately upon the Customer becoming aware of any breach by it of any Privacy Legislation in respect of Personal Information provided to the Provider, the Customer must inform the Provider of this.
(c)If either party receives a request for access to or correction of any Personal Information from any person (including the Office of the Australian Information Commissioner) prior to providing such access to or correcting the information it must notify the other party.
17.1All notices authorised or required under these Terms and Conditions to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party's Address for Service or as the case may be at such other address as a party may from time to time notify to the other.
17.2The following shall constitute proof of receipt:
(a)proof by posting by registered post; or
(b)proof of dispatch by email.
17.3Receipt of a notice given under these Terms and Conditions will be deemed to occur:
(a)in the case of a communication sent by pre-paid registered post, on the third business day after posting;
(b)in the case of an email, on the business day immediately following the day of dispatch.
17.4If a notice is sent via post, it must also be sent via email.
18.1In consideration of the Provider providing the Services, the Customer also agrees that it may be identified as a client on the Provider’s website or other marketing materials, and that the Provider may, upon request and permission from the Customer, use the Customer’s logo for this purpose, and Customer also agrees that the Provider may develop a case study featuring the work that the Provider has done for the Customer and that this may be used for publicity purposes.
(a)An amendment or variation of any term of these Terms and Conditions must be in writing and communicated to the Customer via email or through an in-product notification. The Customer’s continued use of the Product after being notified of the change will constitute acceptance of the revised Terms and Conditions, and the Customer may be required to confirm acceptance through a checkbox or similar mechanism upon their next login.
(a)No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms and Conditions unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
(b)Words or conduct referred to in clause 19.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
(a)The Provider may assign or novate any rights that arise out of or under these Terms and Conditions without notice or obtaining the consent of the Customer.
(b)Any rights of the Customer that arise out of or under these Terms and Conditions are not assignable or capable of novation by the Customer without the prior written consent of the Provider, whose consent must not be unreasonably withheld.
These Terms and Conditions may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute these Terms and Conditions by signing any counterpart. The date on which the last counterpart is executed is the date of these Terms and Conditions. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.
The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms and Conditions.
(a)If the whole or any part of a provision of these Terms and Conditions is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
(b)Clause 19.6(a) does not apply if the severance of a provision of these Terms and Conditions in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms and Conditions.
On completion or termination of these Terms and Conditions, the rights and obligations of the parties set out in these Terms and Conditions will not merge and any provision that has not been fulfilled remains in force.
Any clause of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment (clause 5), warranty disclaimers (clause 10), limitations of liability (clause 11) and confidentiality and privacy obligations (clause 16).
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms and Conditions and the transactions contemplated by these Terms and Conditions.
Time is of the essence in these Terms and Conditions in respect of any date or time period and any obligation to pay money.
(a)Nothing in these Terms and Conditions gives a party authority to bind any other party in any way.
(b)Nothing in these Terms and Conditions imposes any fiduciary duties on a party in relation to any other party.
Except as provided in these Terms and Conditions and permitted by law, the rights, powers and remedies provided in these Terms and Conditions are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms and Conditions.
These Terms and Conditions states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms and Conditions.
(a)These Terms and Conditions are governed by the law in force in the State.
(b)Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms and Conditions.
(c)Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 19.15(b) on the basis that:
(i)any proceeding arising out of or in connection with these Terms and Conditions has been brought in an inconvenient forum; or
(ii)the courts described in clause 19.15(b) do not have jurisdiction.
(a)If a dispute arises in connection with these Terms and Conditions then a party may only deal with that dispute in the manner set out in this clause.
(b)A party to a dispute which arises in connection with these Terms and Conditions may give to the other party or parties to the dispute a notice specifying the dispute and requiring its resolution under this clause.
(c)Within 7 days after a notice is given under the above clause (or such longer period as is agreed in writing by the parties to the dispute) each party to the dispute must use its best efforts to resolve the dispute in good faith.
(d)If despite the parties’ best efforts, a dispute not resolved within 7 days after notice a party may by notice to the other party or parties to the dispute refer the dispute for mediation in accordance with the Resolution Institute Mediation Rules. The mediation will be conducted by a mediator to be appointed by agreement of the parties or, if the parties are unable to agree on a mediator within 7 days of a party making a written nomination to the other party, to be appointed by the Chair (or his or her designated representative) of Resolution Institute (ACN 008 651 232) at the request of a party.
(e)If the dispute is not resolved within 30 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.
20.1The conditions of the Neptune Beta Programme are as follows:
(a)Access to the system and features will be free during the beta programme unless otherwise stated.
(b)Features are still in development and may be unstable and should be treated as such. We recommend backing up important work externally, as occasional bugs or updates may result in temporary data issues.
(c)As a beta user, you may be invited to provide feedback to help us improve Neptune. Participation is optional but greatly appreciated.
(d)Neptune reserves the right to add, modify or remove features during the beta programme.
(e)Once the beta programme closes, users will automatically move to the free tier or have an opportunity to move to a paid subscription.
(f)No credit card details are required to sign up for the beta programme.
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