IMPORTANT, PLEASE READ CAREFULLY.
This agreement is between DIGITAL RECALL PTY LTD, ACN 116 824 018, of 41 Hodder Street, Brighton East Victoria, Australia ("We", "Us") and any person, organisation, legal entity or any and all other users whatsoever ("You", "you") of Digital Recall Cloud digital signage system ("System" or "Service")
The System comprises any and all components of the System including but not restricted to the SignagePlayer Software ("SignagePlayer"), SignageStudio Software ("SignageStudio"), any and all Severs whether nominated or owned by us in any way whatsoever, and any and all related and/or ancillary components of it such as, but not restricted to: servers, resources, materials, documentation, support services, videos, templates, etc.
BY USING THE SYSTEM YOU AGREE TO ALL THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, YOU MUST NOT USE THE SYSTEM.
We may make changes to these Terms and Conditions at any time. When/ if we do so we will: Post a notice of such change on our website www.digitalrecall.com.au and/or Send registered users a notice by email of such change to the email address used when registering and/or Post a notice of such change on our Twitter Account @DigitalRecall - You must subscribe to our Twitter feed please. Your continued use of the System after any such posting/ sending notice of a change shall constitute your agreement to any and all such changes even if you have not reviewed them.
General Use Restrictions
We provide content and other services through the Service. Certain information, documents, products and services provided on and through the Service, including content, trademarks, logos, graphics and images that are not Presentations (as defined below) (together, the "Materials") are provided to you by Us and we are the authorised users or have the permission of the authorised user of such copyrighted works. The Service also may provide, among other things, an online marketplace (the "Shared resources") where you can browse and acquire content and services for use in your Presentations ("Shared resources"), which may be subject to third party license agreements. In addition, we may make certain applications available to you on the Service for use that may assist you in developing or managing Presentations (the "Software"). Any such Software is only made available for use under the terms of a limited, non-exclusive license to use the Software on your personal computer for the sole purpose of developing or managing Presentations.
During the term of these Terms, We grant you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and use the services, the Service and the Software solely for your personal use if you are an individual and solely for your business use if you are an organization or agent of your organization in connection with the creation, storage, display and arrangement of Presentations you create using the Service. You acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Materials or the Software in any manner. This limited license terminates automatically, without notice to you, if you breach any of these Terms, and/or if you fail to make any payment to us as and when it is due. Upon termination of this limited license, you agree to immediately destroy any downloaded or printed Materials or Software and to stop using the System or any part thereof. Continued use (whether with our consent – express or implied) will make you responsible for any and all financial and other obligations arising from such use, notwithstanding such automatic termination. Except as stated herein, you acknowledge that you have no right, title or interest in or to the Service, any Materials or the Software on any legal basis.
Your Registration Obligations.
In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or We have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, We has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
By using all or part of this Service, you consent to receiving electronic communications from us and our partners and affiliates. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to our Service. These electronic communications are part of your relationship with us and you receive them as part of your use of the Service. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Password Restricted Areas of the Service
When a visitor to the Service registers to become a member ("Member"), he or she will select an available user name ("Membership Name") and a corresponding user password ("Membership Password") to create a unique, personal account (a "Membership Account"). The Member may also be required to specify whether he or she is registering as an individual or on behalf of a company or entity (and, if so, the name of the company or entity). You will need a Membership Password to login to the Service and use it and/or certain functions and areas within the Service ("Restricted Areas"). If you are an authorized Member of the Restricted Areas, you are responsible for maintaining the confidentiality of your password and account, and agree to notify us if your password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. You are responsible for activities that occur under your account. You agree to immediately notify us of any unauthorized use of your account or any other breach of security in relation to the Service known to you. You will not use other members' contact information gathered from Restricted Areas of the Service for commercial purposes and agree not to provide any other Member's contact information to any third party that is not a Member of Digital Recall.
Subscription Pricing and Changes
When/ if a Member of the Services chooses to become a paid subscriber ("Subscriber "), he or she (You) will provide us with additional data, including payment information and the maximum number of Licenses (Players) you want us to activate at the prices we provide you. With respect to Software or Services provided on a subscription basis, Subscriber agrees that We may from time to time either increase or decrease the fee(s) for all or any portion thereof, and that any such adjustment, when made by Us shall apply effective as of the expiration of the then-current subscription term. If Subscriber objects to any fee change, Subscriber's sole remedy shall be to elect not to renew the Software or Service at the expiration of the then-current subscription term. Each subscription term begins on the day we receive full payment of the applicable fees from Subscriber and expires one month later, save and except that if the Subscriber has paid for for a period of longer than one month, then the subscription term shall end at the end of the period for which the subscriber has paid the subscription. The subscription term will automatically renew for additional periods unless Subscriber elects not to renew or does not pay in full on or before the expiration date. If Subscriber purchases additional subscription Software or Services, the subscription term for such additional Software or Services will be coterminous with the pre-existing subscription term. We reserve the right, in our sole discretion, not to give refunds or credit adjustments. You acknowledge that we reserve the right to limit the maximum number of free and/or trial licenses and total storage capacity for each user account.
We may require, and Subscriber agrees that such fees shall be paid by means of credit card payments or other forms of electronic funds transfers nominated and agreed to by Us, and to implement measures enabling Us to initiate such electronic funds transfers. Electronic funds transfers shall incur an additional fee of $15.00 per transfer if made from outside of Australia (as there is a substantial fee levied by our banks for overseas transfers. If you are paying by credit card, only valid credit cards acceptable to us may be used by you to make payment, and all authorized refunds will be credited to the same card. Until all amounts due have been paid in full, you hereby authorize us to charge any credit card provided by you all amounts due under the Agreement from time to time, including without limitation, ongoing Subscription and installment and other payments, taxes, and additional fees. If the credit card cannot be verified, is invalid, is declined, or is not otherwise acceptable or if we do not receive payment for your purchase or subscription, the Software and Services may be terminated, deferred, suspended, or cancelled by us without notice at our sole discretion and we may generate invoices for payment. Where applicable you agree to update your credit card information to keep it current at all times. All prices are given and must be paid in the currency listed or at the exchange rate we provide from time to time to such listed currency. Unless otherwise provided by law or in connection with any particular service offer, all charges are non-refundable.
Where Subscriber receives a discount on the subscription price (for example: as a result of paying for more than one month, or for any other reason whatsoever), and if Subscriber wishes to end the Subscription before the end of the period for which the subscription fees have been paid, the Subscriber shall receive no discount for any period for the subscription has been used, and we will refund the balance remaining for any unused subscription period less an add-back in respect of any discount for any used portion of the subscription period.
Authorised maximum number of Licenses (Stations)
A "Station" is any PC or device onto which the Signage Player is installed. When/ if you elect to continue your use of the System after any trial period, this will be subject to your paying a monthly fee based on the maximum number of Licenses (Stations) you would like us to allow you to activate. The fee shall be for that maximum amount whether or not that maximum number were in fact activated by you. Where you elect to reduce the maximum amount you would like us to allow, then, before we reduce the fee to comply with such newly advised lesser maximum, you shall delete and unregister Stations as necessary in order to reduce the number of Stations you have created to that reduced-maximum number or less.
You undertake not to activate any more Stations than you have paid for, and if you do so, you undertake to pay us the applicable fee in relation to the those Stations.
All fees are exclusive of all taxes, fees, levies, duties or similar charges arising out of or relating to the Agreement, and you shall be responsible for payment of all such taxes, fees, levies, duties or similar fees.
Conversion of Trial Period Offers
You may have received a complimentary trial Subscription to the Software or Service or some other trial period offer. Unless we notify you otherwise, if you are participating in any trial period offer, your trial period will expire at the end of the trial term and access to the Subscription-based Software or Service will be suspended at our discretion. You may then be prompted to either become a Subscriber or the Service will cease as and when we elect to stop it. Whatever the case, you undertake not to continue using the system after the trial period has expired (unless we have authorised you in writing to do so).
We may, at any time, terminate this Agreement in its sole discretion, including, without limitation, for breach by you of any of your representations, warranties or obligations under this Agreement, or for inactivity as it relates to the Service for a period of 90 days. You may, at any time, terminate this Agreement by advising us in writing of your Termination. In the event termination is by us, we shall notify you of such termination. We reserve the right, in our sole discretion, to terminate your Membership Account at any time, including, without limitation, deactivating your Membership Name and Membership Password.
Effect of Termination
- Upon any termination of this Agreement:
- (a) Your Membership Account shall be cancelled and closed and your Membership Name and Membership Password shall be deactivated;
- (b) You shall remain responsible for any amounts owing to us under any other Agreements you have made with us for example in relation to any agreement where we have agreed to manage your network, or where we have agreed to create content for you or any other agreement that is separate to this one.
- (c) Any and all amounts owing by you under this agreement shall remain due and payable; and
- (d) We will permanently delete your Presentations and Materials within 24 hours of the effective date of termination.
Termination of this Agreement shall not relieve you of any payment obligations that may have arisen prior to such termination, or any other obligations pursuant to any other agreement that has not been specifically terminated.
Third Party Content
Certain information and content that are not Presentations may be provided by third party licensors and suppliers to our authorising entity ("Third Party Content"). The Third Party Content is, in each case, the copyrighted work of the creator/licensor. You agree to only display the Third Party Content on your personal computer solely for your personal or business use. You acknowledge and agree that you have no right to download, cache, reproduce, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner of the Third Party Content. We disclaim all express, implied and statutory warranties and conditions with regard to third party content, including, but not limited to, all implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party rights.
Links to Third Party Services
Our Service may be linked to other Services that are not our Services. We provide these links to you only as a convenience, and we are not responsible for the content or links displayed on such Services.
Maximum Storage Limit
You acknowledge that we reserves the right to limit the maximum storage capacity for each user account, and that we reserve the right to adjust the maximum storage limit of any user account, at any time without prior notice.
You acknowledge that you are responsible for the information and material that you develop and/or import to the Service and/or through the use of the Software, including, without limitation, any presentations, or portions thereof, that you import, create, store and access on this Service (each, a "Presentation"), and that you, and not us, will have full responsibility for each such Presentation, including its legality, reliability, appropriateness, originality and copyright. You further agree that you will not upload, post or otherwise make available on the Service any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right, and the burden of determining that any material is not protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any Presentation.
You represent and warrant that: (i) you own the Presentations posted by you on or through the Service or otherwise have the right to grant the license set forth in this section, and (ii) the posting of your Presentations on or through the Service and any other use of your Presentations does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Presentations posted by you to or through the Service or created with the use of the Software.
Presentations and unauthorized use of any Materials or Third Party Content contained on this Service may violate certain laws and regulations. You shall indemnify and hold us and our officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys' fees we or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of the Service or the use of the Service by any person using your user name and/or password violates any applicable law or regulation, or the rights of any third party.
Unless otherwise specified, all information and screens appearing on this Service including documents, services, Service design, text, graphics, logos, images and icons, as well as the selection and arrangement thereof, are the sole property of our authorising business partner. All rights not expressly granted herein are reserved. Except as otherwise required by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.
DISCLAIMER OF WARRANTIES
Your use of this Service, any Software and/or the services is at your own risk. Neither the Materials nor the Third Party Content have been verified or authenticated in whole or in part by us, and they may include inaccuracies or typographical errors. We do not warrant the accuracy of timeliness of the Materials or the Third Party Content contained on this Service. We have no liability for any errors or omissions in the Materials and/or the Third Party Content, whether provided by us or our licensors
Neither we, nor any of: our officers, directors, employees, affiliates, agents, licensors, and / or business partners, makes any express, implied or statutory representations, warranties, or guarantees in connection with the service, the software, the services or any materials or third party content. Relating to the quality, suitability, truth, accuracy or completeness of any information or material contained on the service, including without limitation the materials and the third party content.
To the maximum extent permitted by applicable law, the service, the software, the services, materials, third party content and any information or material contained on the service is provided to you on an "as is," "as available" and "where-is" basis with no warranty of any kind, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party rights. We do not provide any warranties against viruses, spyware or malware that may be installed on your computer.
We do not warrant that accessibility to our nominated servers will be continuous and uninterrupted.
LIMITATION OF CONSEQUENTIAL DAMAGES
You agree that we shall not be liable to you or any third party for any damages resulting from your use of the system in any way whatsoever, including but not restricted to the displaying, copying, or downloading any material on the service or relating to your presentations or the software. In no event shall we be liable to you or any third party for any indirect, extraordinary, exemplary, punitive, special, incidental, or consequential damages (including loss of data, revenue, profits, use or other economic advantage) however arising even if we knows there is a possibility of such damage.
MEDIATION - CONDITION PRECEDENT TO LEGAL ACTION
Before any legal action is commenced, all parties agree to submit to Mediation in Melbourne Australia, before any Accredited Mediation Specialist accredited by the Law Institute of Victoria, Australia. Where the parties cannot agree on a specific Accredited Mediation Specialist, then one appointed by us shall be deemed to be a validly appointed Mediator. All parties shall act in good faith in order to resolve any disputes in the Mediation. The parties shall pay the costs of such mediation in advance in equal shares.
All references to currency shall, unless otherwise specifically agreed to by us in writing, refer to United States Dollars
We may assign our rights and/or obligations (as we deem fit) under this Agreement without your consent. You may make any assignment under this agreement.
You agree to the Courts of the State of Victoria in Australia having jurisdiction in regard to any matter connected to or arising out of this Agreement and you shall not object to the Forum being in Melbourne Australia on the basis of inconvenience or any other reason whatsoever.
You indemnify us in respect of any claims and/ or damages arising from such claims where such claims or damages are as a result of your use of the System directly or indirectly.
LIMITATION ON DAMAGES
In no event shall our aggregate liability for any and all direct damages arising out of or related to this agreement and/or your use of the system exceed five hundred dollars (USD $500).