We are Thirteen Sixty-Nine Pty Ltd trading as Quote ‘N’ Go (ABN 55 691 290 490) (‘we’, ‘our’ or ‘us’) and we provide a mobile application that allows users (‘you’, ‘your’) to prepare and issue quotes, schedule jobs and convert quotes into invoices (Services). Our solution is the Quote ‘N’ Go mobile application for iOS and Android devices, as described on our Website (Software or App).
These terms and conditions (Terms) govern your access to the Software and us providing you any other goods and services as set out in these Terms (Subscription). You can view the most updated version of our Terms at https://quotengo.com.au/ (Website). Please read these terms and conditions carefully before agreeing to proceed with your Subscription.
Your Subscription is for the Subscription Tier you select when you subscribe through the Apple App Store or Google Play Store (Subscription Tier). The Subscription Tiers available, the features included in each Subscription Tier (Subscription Features) and the fees payable for each Subscription Tier (Subscription Fees) are set out on our Website and in the applicable app store listing, as updated from time to time in accordance with clause 7.
The Subscription Fees for your Subscription Tier will be charged to the payment method linked to your Apple App Store or Google Play Store account on the date you purchase your Subscription, and thereafter at the beginning of each monthly or annual billing period (Billing Cycle), in accordance with clause 7. We do not collect, process or store your payment details.
You may change your Subscription in accordance with clause 12.
Please note that your Subscription will automatically renew, and you will continue to incur Subscription Fees, unless you cancel your Subscription through your Apple App Store or Google Play Store account settings in accordance with clause 13. We are not able to cancel your Subscription for you - you must cancel it through the applicable app store before the end of your current Billing Cycle.
(a) In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.
(b) By clicking the “I accept these Terms” button in the App, creating an Account, paying for your Subscription or otherwise accepting the benefit of any part of your Subscription, you agree to be bound by these Terms which form a binding contractual agreement between you, the person acquiring a Subscription or the company you represent and are acquiring the Subscription on behalf of (‘you’ or ‘your’), and us.
(c) We may change these Terms at any time by giving you at least 10 Business Days’ notice (including by notice in the App or by email). Where a change is materially detrimental to you, you may cancel your Subscription in accordance with clause 13 before the change takes effect. Your continued use of the Software following such an update will represent an agreement by you to be bound by the Terms as amended.
(a) By accepting these Terms, you represent and warrant that:
(i) you have the legal capacity and authority to enter into a binding contract with us; and
(ii) you are authorised to use the payment you provided when purchasing a Subscription.
(b) The Software is intended for use by persons over the age of 18 years for business purposes, and is not intended for use by any person who has previously been suspended or prohibited from using the Software. By using the Software, you represent and warrant that you are over the age of 18 years and are accessing the Software for business purposes.
(c) Please do not access the Software if you are under the age of 18 years, or if you have previously been suspended or prohibited from using the Software.
(d) If you are signing up not as an individual but on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “your” means the Represented Entity and you are binding the Represented Entity to this agreement. If you are accepting this agreement and using our Software on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.
(e) The Software is designed for use in Australia and includes features specific to Australian business and tax requirements (including GST, ABN and trade licence fields). While the App may be available for download in other countries, we make no representation that the Software is appropriate, compliant or available for use outside Australia. If you access the Software outside Australia, you do so on your own initiative and are responsible for compliance with all laws applicable to you.
(a) Your Subscription and these Terms commence on the date you agree to be bound by these Terms (as set out at the beginning of these Terms) and continues for the Subscription Period and any Renewal Periods applicable, unless terminated earlier in accordance with clause 13 (Subscription Term).
(b) Subject to clause 3(c), upon expiration of the Subscription Period, this agreement will automatically and indefinitely renew on an ongoing basis for a period equal to the Subscription Period (Renewal Period).
(c) This agreement will not automatically renew on expiry of the Subscription Period or Renewal Period (Renewal Date) if you cancel your Subscription through your Apple App Store or Google Play Store account settings prior to the Renewal Date (and, where required by the applicable app store, at least 24 hours prior to the Renewal Date), or if we provide you with written cancellation notice at least 30 days prior to the Renewal Date.
(d) Where we intend to increase the Subscription Fees or change these Terms in a way that is materially detrimental to you, we will provide you with advance written notice of the agreement renewing and of those changes at least 10 Business Days prior to the Renewal Date (Renewal Notice).
(a) We will provide you, to the extent described in your Subscription Tier, the Software.
(b) Your Subscription includes the benefits and limitations of your Subscription Tier as set out in the Apple App Store or Google Play Store listing for the Software, on our Website, or as otherwise communicated to you when you subscribe for your Subscription (and as amended from time to time by notice to you).
(a) (Accounts) To use the Software, you must download the App and sign-up, register and receive an account (an Account).
(b) (Acceptance) Once you complete the account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and provide you with an Account.
(c) (Provide Information) As part of the Account registration process and as part of your continued use of the Software, you may be required to provide personal information and details, such as your first and last name, business name, email address, mobile phone number, a secure password, your business address and, at your option, your ABN, builder’s or trade licence number and bank account details for inclusion on quotes and invoices, and other information as determined by us from time to time.
(d) (Business details) Any business details you enter into the Software, including your ABN, business name, builder’s or trade licence number, insurance details and bank account details, are entered by you and are not verified by us. You are solely responsible for ensuring that those details are accurate, current, lawfully used and appropriate for inclusion on any quote or invoice you issue.
(e) (Payment details) We do not collect, process or store the payment details you use to purchase your Subscription. Those details are collected and processed by the Apple App Store or Google Play Store in accordance with their own terms and privacy policies.
(f) (Warranty) You warrant that any information you give to us in the course of creating an Account will always be accurate, honest, correct and up-to-date.
(g) (Security) You are responsible for managing your Account. You must immediately notify us of any unauthorised use of your profile, password or email, or any other breach or potential breach of the Software’s security.
(h) (Cancellation) We may cancel your Account or suspend your access where you have breached these Terms, or where we reasonably consider it necessary to protect the Software, our other users or our legitimate business interests. We will give you reasonable notice before doing so unless it is not reasonable or practicable in the circumstances. Where we cancel your Subscription other than for your breach of these Terms, we will refund the unused portion of any Subscription Fees you have paid in advance.
To access the Software, you must download the App from the Apple App Store or Google Play Store, create an Account and select a Subscription Tier. You are responsible for your own device, internet connection and app store account, and for ensuring that your device meets the minimum operating system requirements set out in the applicable app store listing.
You acknowledge and agree that:
(a) The Software is a quoting and invoicing tool designed to help you prepare, send, schedule and manage quotes and invoices for your business. It is intended to serve as a general business administration tool only and must not be relied upon as a source of legal, accounting, taxation or financial advice.
(b) You are solely responsible for the content of any quote, invoice, job record or other document you create using the Software, including the description of works, quantities, rates, prices and terms, and whether GST or any other tax applies. The Software does not set, calculate, recommend or verify your pricing. Where you change a quantity, the Software will recalculate the total by applying the rate you have entered — all rates and prices are set by you.
(c) The Software includes a toggle which allows you to select whether GST applies to a quote or invoice. Whether you are required to be registered for GST, and whether GST applies to a particular supply, is a matter for you and your accountant or registered tax agent. We do not provide taxation advice and we are not responsible for:
(i) the correctness of the information you input, including descriptions of works, quantities, rates, prices and GST treatment;
(ii) whether any document you generate satisfies the requirements for a tax invoice under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or any other applicable law; or
(iii) the accuracy of any bank account, ABN, licence, insurance or other business details you include on a quote or invoice, or whether any document you send using the Software is received, read or acted on by its intended recipient.
(d) The Software does not create, form or evidence any contract between you and your customer. Any quote or invoice you issue using the Software is issued by you, on your own terms, and we are not a party to it. We are not responsible for any dispute between you and your customer, including any dispute as to scope, price, payment or workmanship.
(e) We do not hold, receive, process or transmit any money on your behalf. Payment of any quote or invoice you issue using the Software is a matter between you and your customer.
(f) Any information provided by us to you as part of or in connection with the Software or the Services is general in nature, may not be suitable for your circumstances and does not constitute financial, legal, health or any other kind of professional advice.
(a) While your Subscription is maintained, we grant to you a non-exclusive, non-transferable licence to use the Software for your own internal business purposes, in accordance with these Terms.
(b) We may from time to time, in our absolute discretion, release enhancements to the Software, meaning an upgraded, improved, modified or new versions of the Software (Enhancements). Any Enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime.
(c) We may change or remove any feature of the Software from time to time. Where a change is likely to materially reduce the functionality of the Software, we will take reasonable steps to notify you in advance, and you may cancel your Subscription in accordance with clause 13.
(a) You acknowledge and agree that third party terms & conditions (Third Party Terms) may apply to your use of the Software, including:
(i) Apple (App Store) for distribution of the App and processing of Subscription payments;
(ii) Google Play Store for distribution of the App and processing of Subscription payments;
(iii) Elegant Media for hosting of the Software and User Data; and
(iv) Twilio SendGrid for delivery of the quotes, invoices and other communications you send using the Software,
as updated from time to time.
(b) You agree to any Third Party Terms applicable to any third party goods and services that are used in providing the Software, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
(c) Without limiting clause 4.6(b), we will take reasonable steps to notify you of Third Party Terms.
(d) You have the right to reject any Third Party Terms. If you reject the Third Party Terms, we cannot provide the Software to you and clause 13 will apply.
(e) Where you download the App from the Apple App Store, Apple’s Licensed Application End User Licence Agreement, available at https://www.apple.com/legal/internet-services/itunes/dev/stdeula/, applies to your use of the App in addition to these Terms and prevails to the extent of any inconsistency. You acknowledge that Apple is not a party to these Terms, that we (and not Apple) are solely responsible for the App and its content, that Apple has no obligation to provide any maintenance or support in respect of the App, and that Apple is a third party beneficiary of these Terms and is entitled to enforce them against you.
(a) You acknowledge and agree that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. We cannot guarantee that integration processes between the Software and other software programs will be free from errors, defects or delay.
(b) You agree that we will not be liable for the functionality of any third party goods or services, including any third party software, or for the functionality of the Software if you integrate it with third party software, or change or augment the Software, including by making additions or changes to the Software code, and including by incorporating APIs into the Software.
(c) If you add third party software or software code to the Software, integrate the Software with third party software, or make any other changes to the Software, including the Software code (User Software Changes), then:
(i) you acknowledge and agree that User Software Changes can have adverse effects on the Software;
(ii) you will indemnify us in relation to any loss or damage that arises in connection with the User Software Changes;
(iii) we will not be liable for any failure in the Software, to the extent such failure is caused or contributed to by a User Software Change;
(iv) we may require you to change or remove User Software Changes, at our discretion, and if we do so, you must act promptly;
(v) we may suspend your access to the Software until you have changed or removed User Software Change; and/or
(vi) we may change or remove any User Software Change, in our absolute discretion. We will not be liable for loss of data or any other loss or damage you may suffer in relation to our amendment to, or removal of, any User Software Change.
We may subcontract any aspect of providing the Services and Software, and you hereby consent to such subcontracting.
(a) We will provide general support where reasonably necessary to resolve technical issues with the Software (Support Services). Unless otherwise agreed in writing:
(i) we will take reasonable steps to provide Support Services where necessary (you must first endeavour to resolve any issues with the Software internally and we will not assist with issues that are beyond our reasonable control);
(ii) we will use our best endeavours to respond to requests for Support Services and you acknowledge that we may not be available 24/7 or respond within a particular time frame;
(iii) you are responsible for all internal administration and managing access, including storing back-up passwords; and
(iv) you will not have any claim for delay to your access to the Software due to any failure or delay in Support Services.
(b) Any enquiry, dispute or request relating to the billing, renewal, refund or cancellation of your Subscription must be directed to the Apple App Store or Google Play Store (as applicable) in the first instance. We will assist you where we are reasonably able to do so, but we do not control, and are not responsible for, the billing, refund or cancellation processes of those platforms.
We will store User Data you upload to the Software using a third party hosting service selected by us (Hosting Services), subject to the following terms:
(a) (hosting location) You acknowledge and agree that we use cloud-based storage servers located in Melbourne, Australia to host the Software and User Data. We may change our hosting provider from time to time and will take reasonable steps to notify you if User Data will be stored outside Australia. Before disclosing User Data containing personal information to an overseas recipient, we will take such steps as are reasonable in the circumstances to ensure that the recipient does not breach the Australian Privacy Principles in relation to that information.
(b) (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Services will be free from errors or defects or that User Data will be accessible or available at all times.
(c) (security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference, except to the extent that the unauthorised use, destruction, loss, damage or alteration is caused by our negligence or our breach of these Terms.
(d) (backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects. We encourage all Account holders to ensure they always backup data entered in the Software in another location on a regular basis.
(e) (retention) We will retain User Data for a period of 12 months from the date it is uploaded to the Software, after which it may be permanently deleted. You are responsible for exporting, downloading or otherwise retaining your own copies of any quotes, invoices or other records you require, including for taxation and record-keeping purposes. This retention period applies whether or not your Subscription remains on foot.
You agree to:
(a) provide us with all documentation, information and assistance reasonably required by us to perform the Services; and
(b) provide us with access to any third party or other accounts used by you (including log-in details and passwords), as is reasonably required by us to perform the Services.
(a) You warrant that all information, documentation and other Material you provide to us for the purpose of receiving the Software is complete, accurate and up-to-date.
(b) You release us from all liability in relation to any loss or damage arising out of or in connection with the Software, to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided by you being incomplete, inaccurate or out-of-date.
(a) You must, and must ensure that all Users, comply with these Terms at all times. You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s, or any User’s, breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.
(b) You must not, and must not encourage or permit any User, Personnel or any third party to, without our prior written approval:
(i) upload sensitive information or commercial secrets using the Software;
(ii) upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the Software;
(iii) use the Software for any purpose other than for the purpose for which it was designed, including you must not use the Software in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
(iv) use the Software to issue any quote, invoice or other document that is false, misleading or deceptive, or that misrepresents your ABN, business name, licence status, insurance or entitlement to charge GST;
(v) use the Software to send any commercial electronic message in contravention of the Spam Act 2003 (Cth);
(vi) upload any material that is owned or copyrighted by a third party;
(vii) make copies of the Software;
(viii) adapt, modify or tamper in any way with the Software;
(ix) remove or alter any copyright, trade mark or other notice on or forming part of the Software;
(x) act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the Software;
(xi) use the Software in a way which infringes the Intellectual Property Rights of any third party;
(xii) create derivative works from or translate the Software;
(xiii) publish or otherwise communicate the Software to the public, including by making it available online or sharing it with third parties;
(xiv) integrate the Software with third party data or Software, or make additions or changes to the Software, (including by incorporating APIs into the Software) other than integrating in accordance with any instructions provided by us in writing;
(xv) intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Software;
(xvi) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software to any third party;
(xvii) decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
(xviii) share your Account or Account information, including log in details or passwords, with any other person and that any use of your Account by any person who is not the account holder is strictly prohibited. You must immediately notify us of any unauthorised use of your Account, password or email, or any other breach or potential breach of the Software’s security;
(xix) make any automated use of the Software and you must not copy, reproduce, translate, adapt, vary or modify the Software without our express written consent;
(xx) attempt to circumvent any technological protection mechanism or other security feature of the Software.
(c) If you become aware of misuse of your Subscription by any person, any errors in the material on your Subscription or any difficulty in accessing or using your Subscription, please contact us immediately using the contact details or form provided on our Website.
(d) You agree, and you must ensure that all Users agree:
(i) to comply with each of your obligations in these Terms;
(ii) to sign up for an Account in order to use the Software;
(iii) that information given to you through the Software, by us or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information.
We may from time to time offer a free trial period of the Software through the Apple App Store or Google Play Store (Free Trial Period). No payments will be due during any Free Trial Period and your first payment will be due immediately after the expiry of the Free Trial Period, unless you cancel your Subscription through the applicable app store before the Free Trial Period ends.
(a) You must pay subscription fees to us in the amounts specified on our Website and in the Apple App Store or Google Play Store listing for the Software for your Subscription Tier, as updated from time to time, or as otherwise agreed in writing (Subscription Fees).
(b) All Subscription Fees must be paid in advance and are non-refundable for change of mind. Nothing in this clause limits your rights under the Australian Consumer Law.
(c) If you select an annual Subscription, you acknowledge and agree that the annual Subscription Fee is offered at a discounted rate in exchange for a minimum commitment of 12 months. The annual Subscription Fee is payable in advance for the full 12 month period and, to the maximum extent permitted by law, is not refundable in whole or in part if you cancel or stop using the Software during that period (other than any proration or credit applied by the applicable app store). Nothing in this clause limits your rights under the Australian Consumer Law.
(d) Unless otherwise agreed in writing, the Subscription Fees are due and payable on a recurring basis for the duration of your Subscription, with the first payment being due on the first day of the Subscription Period (or immediately after the expiry of any applicable Free Trial Period) and at the beginning of every Renewal Period thereafter.
Subject to clauses 7.4 and 7.5:
(a) Your Subscription will continue to renew on an automatic indefinite basis unless you cancel your Subscription through your Apple App Store or Google Play Store account settings in accordance with this clause 7 and clause 13.
(b) While your Subscription is maintained, your Subscription Fees will continue to be charged at the beginning of each Renewal Period to the payment method linked to your Apple App Store or Google Play Store account.
(c) By signing up for a recurring Subscription, you acknowledge and agree that your Subscription has an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to your cancellation of your Subscription.
If you fail to cancel your Subscription prior to a Renewal Period and you are charged recurring charges, refunds are administered by the Apple App Store or Google Play Store (as applicable) in accordance with their terms, and you may request a refund directly from them. If you contact us through our Website within 10 Business Days of that renewal (Grace Period), we will use reasonable endeavours to support your refund request with the applicable app store, although we do not control whether a refund is granted.
The Subscription Fees applicable from time to time are those published on our Website and in the applicable app store listing at the time you purchase or renew your Subscription. We may, from time to time, change our Subscription Fees and will provide you with at least 10 Business Days’ notice prior to the change taking effect. Any change will apply from the start of your next Renewal Period. During this time, you have the opportunity to cancel your Subscription through the applicable app store. If you do not cancel your Subscription before the new Subscription Fees take effect, the Grace Period in clause 7.4 will apply.
Should the Subscription Fees not be successfully collected by the Apple App Store or Google Play Store on the due date (for example, because your nominated payment method is declined, expired or cancelled), we reserve the right to, in our absolute discretion:
(a) suspend or restrict your access to the Software until the outstanding Subscription Fees are paid;
(b) not provide any part of the Software until you pay the Subscription Fees payable in respect of such Software; and
(c) treat your Subscription as cancelled in accordance with clause 13.
Unless otherwise indicated, the Subscription Fees displayed in the Apple App Store or Google Play Store are inclusive of GST. Receipts and tax invoices for your Subscription are issued by the applicable app store.
(a) We use third-party online payment partners, currently the Apple App Store and Google Play Store (Online Payment Partner), to collect Subscription Fees.
(b) Provided that we have notified you of such Third Party Terms and provided you with a copy of, or a link to, those terms, you acknowledge and agree that:
(i) the processing of payments by the Online Payment Partner will be, in addition to this agreement, subject to the terms, conditions and privacy policies of the Online Payment Partner, which can be found at https://www.apple.com/au/legal/internet-services/itunes/au/terms.html (Apple App Store) and https://play.google.com/intl/en-US_us/about/play-terms/index.html (Google Play Store);
(ii) you release us and our Personnel in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Online Payment Partner, including any issue with security or performance of the Online Payment Partner’s platform or any error or mistake in processing your payment; and
(iii) We reserve the right to correct, or to instruct our Online Payment Partner to correct, any errors or mistakes in collecting your payment.
(c) You have the right to reject any terms and conditions of the Online Payment Partner. If you reject those terms, we cannot provide you with the Subscription and clause 13 will apply.
(a) (Our ownership) We retain ownership of all Materials provided to you throughout the course of your Subscription in connection with the Software (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Software Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us in the Software Content not expressly granted to you.
(b) (Licence to you) You are granted a licence to the Software Content, and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of viewing them and using them for the purposes of the Software. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Software Content without prior written consent from us or as otherwise permitted by law.
Our Rights and Obligations
(a) You retain all right, title and interest in and to your User Data, including the content of any quote, invoice or job record you create using the Software. Nothing in these Terms transfers ownership of User Data to us.
(b) You grant to us (and our Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use User Data to the extent reasonably required to provide the Software and, in de-identified and aggregated form, for our internal business purposes, including to improve the Software and our other products and services, and including to apply machine learning and other analytics processes to that data, to gain commercial insights and other associated learnings. We will de-identify User Data before using it for the purposes described in this clause, and will not seek to re-identify that data or to re-associate it with you, your Personnel or your customers.
(c) We reserve the right to remove any User Data at any time, for any reason, including where we deem User Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.
Your Obligations and Grant of Licence to Us
(d) You are responsible for ensuring that:
(i) you share User Data only with intended recipients; and
(ii) all User Data is appropriate and not in contravention of these Terms.
(e) You:
(i) warrant that our use of User Data will not infringe any third-party Intellectual Property Rights; and
(ii) indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
(a) Except as contemplated by these Terms, a party must not, and must not permit any of its Personnel, use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.
(b) Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information.
(c) The notifying party will investigate each potential, actual or suspected breach of confidentiality and assist the other party in connection with any related investigation.
(a) We collect personal information about you, and you provide us with personal information about your customers, in the course of providing you with the Software, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy which can be found at https://quotengo.com.au/privacy. We handle personal information in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.
(b) Our Privacy Policy contains more information about how we use, disclose and store your personal information and details how you can access and correct your personal information.
(c) By agreeing to these Terms, you agree to our handling of personal information in accordance with our Privacy Policy.
(d) Where we receive a request from one of your customers to access or correct personal information that you have entered into the Software, we may refer that request to you, and you must respond to it promptly and in accordance with all applicable privacy laws. We may also respond to the request directly where we are required to do so by law.
(e) You acknowledge that when you enter your customers’ personal information into the Software, you are responsible for ensuring that you have collected that information lawfully and are entitled to use and disclose it in the manner contemplated by these Terms, and you indemnify us in respect of any claim arising from your failure to do so.
(a) (Warranties) We warrant that:
(i) during the Subscription Period, the Software will perform substantially in accordance with the description of the Software in the applicable app store listing;
(ii) during the Subscription Period, the Software will be provided as described to you in, and subject to, these Terms; and
(iii) to our knowledge, the use of the Software in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.
(b) (Errors) We will correct any errors, bugs or defects in the Software which arise during your Subscription and which are notified to us by you, unless the errors, bugs or defects:
(i) result from the interaction of the Software with any other Software or computer hardware, software or services not approved in writing by us;
(ii) result from any misuse of the Software; or
(iii) result from the use of the Software by you other than in accordance with these Terms.
(c) (Service Limitations) While we will use our best endeavours to ensure the Software is working for its intended purpose, you acknowledge and agree that from time to time, you may encounter the following issues:
(i) the Software may have errors or defects;
(ii) the Software may not be accessible at times;
(iii) messages sent through the Software may not be delivered promptly, or delivered at all;
(iv) information you receive or supply through the Software may not be secure or confidential; or
(v) any information provided through the Software may not be accurate or true.
(d) (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in these Terms are excluded.
(e) (Consumer law) Nothing in these Terms is intended to exclude, restrict or modify the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided. This clause 11.1(e) and clause 11.1(f) prevail over any other provision of these Terms to the extent of any inconsistency.
(f) (Limitation for consumer guarantees) To the maximum extent permitted by section 64A of the ACL, where the Software or the Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability for a failure to comply with a consumer guarantee (other than a guarantee under sections 51, 52 or 53 of the ACL) is limited, at our option, to the resupply of the services or the payment of the cost of having the services supplied again.
(a) To the maximum extent permitted by law and subject to clause 11.2(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with these Terms or the Software is limited to the total Subscription Fees paid and payable to us by you in the 6 months preceding the date of the event giving rise to the relevant liability.
(b) Clause 11.2(a) does not apply to your liability in respect of loss or damage sustained by us arising from your breach of third party intellectual property rights.
To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with these Terms or any goods or services provided by us, except:
(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).
(a) You may request to change your Subscription Tier, or to change between a monthly and an annual Subscription, at any time through your Apple App Store or Google Play Store account settings. Any change is processed by the applicable app store in accordance with its terms, and we do not control the timing of, or any proration, credit or refund applied to, that change.
(b) An upgrade (including a change from a monthly Subscription to an annual Subscription) will generally take effect immediately, and the applicable app store may prorate or credit the unused portion of your current Subscription Fees.
(c) A downgrade (including a change from an annual Subscription to a monthly Subscription) will take effect at the end of your current Subscription Period or Renewal Period, and not before. If you hold an annual Subscription, this means a downgrade will not take effect until the end of the 12 month period for which you have paid in advance, consistent with clause 7.2(c).
(a) You may cancel your Subscription at any time through your Apple App Store or Google Play Store account settings. Cancellation takes effect at the end of your current Billing Cycle and you will continue to have access to the Software until that time. We may cancel or terminate your Subscription for convenience by providing 30 Calendar Days’ notice to you, in which case we will refund the unused portion of any Subscription Fees you have paid in advance.
(b) We may discontinue the Software, or any material part of it, at any time. Where we do so, we will give you as much notice as is reasonably practicable in the circumstances, your Subscription will terminate on the date of discontinuance, and we will refund the unused portion of any Subscription Fees you have paid in advance. To the maximum extent permitted by law, and subject to clause 11.1, we will have no further liability to you in connection with the discontinuance of the Software.
(a) Either party may cancel your Subscription immediately by written notice if there has been a Breach of these Terms.
(b) A “Breach” of these Terms means:
(i) a party (Notifying Party) considers the other party (or any of its Personnel or Users) is in breach of these Terms and notifies the other party;
(ii) the other party is given 14 Business Days to rectify the breach; and
(iii) the breach has not been rectified within 14 Business Days or another period agreed between the parties in writing.
Upon termination of this agreement:
(a) you will no longer have access to the Software or your Account, and, subject to clause 13.4, we will have no responsibility to store or otherwise retain any User Data (and you release us in respect of any loss or damage which may arise out of us not retaining any User Data beyond that point);
(b) unless agreed in writing, any Subscription Fees that would otherwise have been payable after termination for the remainder of the relevant Renewal Period will remain payable and, to the maximum extent permitted by law, no Subscription Fees already paid will be refundable, except where we have cancelled your Subscription for convenience or discontinued the Software under clause 13.1, where you have cancelled your Subscription for our Breach under clause 13.2, or where a refund is required under the Australian Consumer Law; and
(c) each party must comply with all obligations that are by their nature intended to survive the end of this agreement, including without limitation intellectual property and confidentiality.
(a) Subject to clause 5(e), upon termination of the agreement, you will have 30 days to access and export your data. After this period, we will securely delete all personal data, except where retention is required by applicable law or expressly instructed by you. Backup data will be rendered inaccessible and deleted within 60 days.
(b) While we disclaim liability for indirect, incidental, or consequential losses arising from termination, we acknowledge our obligation to ensure that Client Data is handled in accordance with this Agreement, the Privacy Act 1988 (Cth) and any other relevant legislation or regulation applicable in your jurisdiction.
(c) We shall not be liable for any loss of Client Data resulting from your failure to export or request return of such data within the agreed timeframe following termination, provided that we have made such options reasonably available.
(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
(a) We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event.
(b) If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement.
(c) Subject to compliance with clause 15(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of us;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.
(a) A notice or other communication to a party under these Terms must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in your Account (or, in our case, the email address published on our Website), or if no email address is specified, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
(ii) when replied to by the other party,
whichever is earlier.
This agreement is governed by the law applying in South Australia, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of South Australia, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party, except that we may assign or novate our rights and obligations under these Terms to a purchaser of all or substantially all of our business or assets, on notice to you.
These Terms and our Privacy Policy embody the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
| Term | Definition |
|---|---|
| App | has the meaning given in the first page of these Terms. |
| Billing Cycle | has the meaning given in the first page of these Terms. |
| Business Day | means a day that is not a Saturday, Sunday or public holiday in Adelaide, South Australia. |
| Confidential Information | means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge. |
| Hosting Services | has the meaning given in clause 5. |
| Intellectual Property Rights | means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement. |
| Material | means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever. |
| Personnel | means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents. |
| Software | has the meaning given in the first page of these Terms. |
| Software Content | has the meaning set out in clause 8.1(a). |
| Subscription | has meaning given in the first page of these Terms. |
| Subscription Fees | has the meaning set out in the first page of these Terms and clause 7.2. |
| Subscription Period | means the period of your Subscription to the Software (being monthly or annual) as selected by you in the Apple App Store or Google Play Store on commencement of your Subscription. |
| Subscription Tier | has the meaning given in the first page of these Terms. |
| Support Services | has the meaning given in clause 4.9. |
| User | means you and any person who accesses the Software using your Account. |
| User Data | means any files, data, document, information or any other Materials, which is uploaded to the Software by you or any other User or which you, your Personnel or Users otherwise provide to us under or in connection with these Terms, including any Intellectual Property Rights attaching to those materials. |
Quote 'N' Go is a registered business of Thirteen Sixty-Nine Pty Limited (ABN: 55 691 290 490)