Neto E-Commerce Solutions Pty Ltd
Terms of Use
for List&Send
These Terms are important and you should ensure that you read them carefully and contact us with any questions before you use the Software and our hosting and support services provided under these Terms.
You can contact us on by email at support@listandsend.com.au
1. Definitions and Interpretation
1.1 In these Terms unless the subject matter or context requires otherwise, the following words and expressions shall have the meanings respectively assigned to them below:-
1.1.1 “we” or “us” mean Neto E-Commerce Solutions Pty Ltd A.B.N. 91 147 118 and our directors, officers, employees and agents;
1.1.2 “you” mean the person or entity who uses the Software and accepts our hosting and support services and include your directors, officers, employees and agents, as the case may be;
1.1.3 “Content” means information, material, content, language, imagery, links or other similar things;
1.1.4 “the Contract” means the agreement formed between you and us by your use of the Software and the acceptance of the Service and our support services identified in clause 5 in accordance with these Terms;
1.1.5 "CPI" means the Consumer Price Index (All Groups) for Brisbane published by the Australian Bureau of Statistics. If that index no longer exists, "CPI" means an index that we decide best reflects changes in the cost of living in Brisbane;
1.1.6 “the Documentation” means the operating manuals and other printed materials relating to the Software including but not limited to users' manuals, programming manuals, modification manuals, flow charts, drawings and software listings, which are designed to assist or supplement the understanding or application of the Software;
1.1.7 “fee” means all fees, charges and other costs identified in the Pricing Schedule or such increased fees, charges and other costs as may be current at the relevant time, as the case may be;
1.1.8 “Force Majeure” means any circumstances beyond our or your reasonable control including but not limited to storm, tempest, fire, lightning, above average levels of rainfall, flood, other inclement weather, earthquake, volcanic eruption, acts of God or enemies, declared or undeclared war, piracy, riot, sabotage, terrorism, civil disturbance, power failure, shortage of fuel, labour dispute, strike, lock-out, other industrial disturbance, Denial of Service (“DOS”), Distributed Denial of Service (“DDOS”) attack, third party provider outages, cable cuts and material changes in the law but excludes the inability, for whatever reason, to make any payments in accordance with these Terms;
1.1.9 “GST” means the goods and services tax as provided by the GST law;
1.1.10 ‘GST Act’ means the A New Tax System (Goods and Services Tax) Act 1999 as it stands from time to time;
1.1.11 “GST law” means the GST Act and associated legislation including without limitation delegated legislation;
1.1.12 ”the Installation Date” means the date of installation of the Software on our equipment;
1.1.13 “Intellectual Property Rights” mean any copyright rights, trade mark rights, design rights, patent rights, semiconductor or circuit layout rights or any proprietary rights similar to any of the aforesaid rights;
1.1.14 “the Monthly Payment Date” means the date on which we provide you with your login details and calendar monthly thereafter;
1.1.15 “notice” means a written notice, consent, approval, direction, order or other communication;
1.1.16 “post” and “posting” means posting, uploading, contributing, submitting, transmitting, publishing or otherwise disseminating;
1.1.17 “the Pricing Schedule” means the list of our fees, charges and costs published on our website;
1.1.18 “the Service” means our managed hosting service to host the Software identified in clause 4;
1.1.19 “the Software” means our software program marketed under the name List&Send or any other name which replaces that name from time to time;
1.1.20 “these Terms” mean these Terms of Use;
1.2 A reference to:-
1.2.1 one gender includes the other genders; and
1.2.2 the singular includes the plural and the plural includes the singular.
1.3 Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
1.4 A reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision.
1.5 Headings in these Terms are used for convenience only and are to be disregarded in the interpretation of these Terms.
2. Supply of the Software etc and Payments
2.1 We will supply and install the Software on our equipment on the Installation Date.
2.2 You must use the Service, which we provide to host the Software.
2.3 You must select one of the plans identified in the Pricing Schedule.
2.4 All fees including but not limited to the Monthly Licence and Hosting Fee may be reviewed by us from time to time.
3. Licence to use Software
3.1 We hereby grant you a non-exclusive, limited, non-transferable licence to use the Software on a monthly basis subject to payment of all moneys payable under these Terms by you to us until such time as the Contract is terminated in accordance with clause 13.
3.2 You acknowledge that there is no transfer of title or ownership to you of the Software or the Documentation or any modifications, updates or new releases of the Software or the Documentation.
3.3 You may only use the Software in accordance with the normal operating procedures which we notify to you.
3.4 The Software may only be used pursuant to these Terms at the location agreed by us for delivery and installation of the Software.
3.5 The Software may not be used on equipment other than equipment approved by us save that at your sole risk it may be used on alternative equipment if:-
3.5.1 the approved equipment is temporarily inoperable due to malfunction, maintenance or change of installation site with our approval; or
3.5.2 we have otherwise given our consent in writing to such alternate use.
3.6 Except to the extent specified to the contrary in these Terms, we will not be obliged to support the Software, whether by providing advice, training, error-correction, modifications, updates, new releases or enhancements or otherwise.
3.7 You must not copy, alter, modify or reproduce the Software except to the extent otherwise authorised by these Terms or as expressly authorised under Part III Division 4A of the Copyright Act 1968 (Cth).
3.8 3.8.1 Subject to clause 3.8.2, you must not copy or reproduce the Software or the Documentation by any means or in any form without our prior written consent.
3.8.2 You may make one copy of the Software for the purpose of backup and security. You hereby acknowledge and agree that any such copy will be our property and that these Terms, with any necessary modifications, will apply to the said copy.
3.8.3 You must ensure that any copy of the Software made pursuant to these Terms bears notice of our ownership of copyright and a notice stipulating that the Software contains information confidential to us. You must comply with any directions which we give you as to the form or content of such notices.
3.8.4 You must issue a notice in a form approved by us to all employees and other authorised users of the Software under your direction or control, advising such persons of your obligations under this clause 3.8 and also advising of the possible civil and criminal consequences of a breach of this clause.
3.9 You must not merge all or any part of the Software with any other software without our prior written permission, which we may withhold in our absolute discretion.
3.10 If you modify or alter the Software with our permission:-
3.10.1 you will be solely responsible for the costs associated with the modifications or alterations and the costs arising out of the investigation of the effects of the proposed modifications or alterations; and
3.10.2 you must indemnify and keep us indemnified from and against all and any losses, loss of profits, claims, damages, actions, suits, demands, costs (including reasonable legal costs and disbursements on a full indemnity basis), interest, charges and expenses of any kind whatsoever which we may suffer or incur or be called upon to suffer or incur if such modifications or alterations infringe any Intellectual Property Rights of a third person.
3.11 3.11.1 The Software as modified or altered will remain our property in all respects, whether modified by you, us or a third party and whether or not authorised pursuant to these Terms.
3.11.2 Specifically, you must, if required by us, assign to us all Intellectual Property Rights arising out of any modifications to the Software made by you and you must procure the assignment to us of all Intellectual Property Rights arising out of any modifications to the Software made by any third party at your direction.
3.12 These Terms shall apply to the Software as modified or altered.
3.13 You must on demand by us execute and procure any third party to execute all such documents and perform all such other acts as are necessary in order to give effect to clause 3.11.2.
3.14 We will not be obliged to provide any support services in respect of the Software which has been modified by you but may at our sole discretion elect to do so.
3.15 You must not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Software.
3.16 You will be solely responsible for the use, supervision, management and control of the Software and the Documentation.
3.17 You must ensure that the Software and the Documentation are protected at all times from theft, misuse, damage, destruction or any form of unauthorised use.
3.18 3.18.1 You must keep accurate records of use, copying, modification and disclosure of the Software and Documentation.
3.18.2 You must permit us to inspect such records at any time during your normal business hours.
3.18.3 If we so require, you must furnish us with a copy of all or any part of such records.
3.19 We may from time to time update the Software for many reasons including but not limited to:-
3.19.1 maintaining security compliance;
3.19.2 fixing bugs or problems in previous versions of the Software; and
3.19.3 enhancing functionality or features.
3.20 We will not be liable to you for any costs arising from the effect any update may have on any code which is not provided by us and for any modifications to any such code to restore functionality.
3.21 In addition to any other remedies available to us under these Terms or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Software will entitle us to any available equitable remedy against you.
4. Our Managed Hosting service
4.1 We will provide the Service to you.
4.2 You must:-
4.2.1 comply with any additional terms and conditions of use (apart from those contained in these Terms) which may apply to the Service and which we notify you of from time to time and also any reasonable directions which we give you from time to time regarding its use. If any such additional terms and conditions are unacceptable to you, you will be entitled to terminate the Contract pursuant to clause 13.1;
4.2.2 keep secret and secure your identification and log-in information for accessing and using the Service;
4.2.3 keep confidential and not disclose to anyone any information belonging to us; and
4.2.4 ensure that our remote access to your systems is not blocked or prevented in any way.
4.3 You must not post any Content on or through your account:-
4.3.1 unless you hold all necessary rights, licences and consents to do so;
4.3.2 that would cause you or us to breach any law, regulation, rule, code or other legal obligation; or
4.3.3 that would bring us and the Service into disrepute.
4.4 You will be personally and solely responsible and liable for all Content which you post on or through your account and with regard to your interactions with other persons.
4.5 You must not post Content on or through your account that:-
4.5.1 promotes racism, hatred, bigotry, blasphemy, discrimination, encourages violence against any person or groups or any illegal or unlawful activities;
4.5.2 is abusive, offensive, obscene, vulgar, harmful, threatening, harassing, sexually explicit, defamatory, fraudulent or otherwise unlawful or objectionable;
4.5.3 is inaccurate, misleading or false and if any Content which you post subsequently becomes inaccurate, misleading or false, you must promptly notify us and make all necessary corrections;
4.5.4 infringes or violates another person’s legal and moral rights including but not limited to Intellectual Property Rights and rights of privacy and publicity;
4.5.5 you do not have a right to post including but not limited to Content which you are prohibited by law or under contractual or fiduciary relationships (such as insider information and proprietary and confidential information) from posting or which infringes the trade secret or proprietary rights of any person;
4.5.6 contains viruses, Trojan horses, worms, time bombs, computer codes, files or programs designed to interrupt, destroy or limit the functionality of any computer software or other harmful or disruptive mechanisms or devices which may cause financial or other loss to us and others;
4.5.7 constitutes phishing, trolling, junk mail or which breaches any legislation relating to spam emails or which amounts to similar unlawful conduct; and
4.5.8 is otherwise unlawful.
4.6 Notwithstanding clause 4.5, you must specifically not use the Service in any way:-
4.6.1 for any illegal or fraudulent activities including activities which may breach any legislation relating to intellectual property matters, discrimination, criminal activities, defamation or otherwise;
4.6.2 which is likely to interfere with or disrupt our or other internet users’ or their service providers’ activities and their respective computers or other hardware or software including but not limited to sending, distributing, publishing, reproducing and spreading computer worms, Trojans, viruses, unsolicited mass emails, promotions, advertisements, announcements or other material constituting spam and any other matters which are similar to any of the aforesaid things;
4.6.3 to send obscene, indecent, harassing, offensive or threatening emails; and
4.6.4 to access another person’s computer or network without written authorisation.
4.7 You agree to assume and accept all risk when using the Service.
4.8 You must not post on or through your account any Content that may be considered to be in competition to our business.
4.9 You hereby authorise us to remove any Content which we in our absolute discretion believe may be unlawful or not permitted under these Terms or which any third party requests us to remove on what we believe, in our absolute discretion, to be reasonable grounds.
4.10 4.10.1 We will make a full backup of your account files daily for account restoration purposes only and will retain that backup for a period of thirty (30) days after which that backup will be deleted from our servers.
4.10.1 If data is lost due to your act or omission, we will use reasonable endeavours to recover lost data from the most recent backup archive at the fee charged by us for that service.
4.11 If you exceed your permitted bandwidth or storage space under the plan you have elected to subscribe to, you must either:-
4.11.1 upgrade the plan you have subscribed to and pay us the difference in the Monthly Licence and Hosting Fee between the new plan and the previous plan; or
4.11.2 purchase additional bandwidth or storage space at the fee charged by us for the same.
4.12 If you elect to install or seek our assistance in connection with the installation of third party software, you:-
4.12.1 must pay us the fee charged by us for assisting you with the installation of the third party software;
4.12.2 represent and warrant to us that you have or will have the right to use and install that third party software, that you have paid or will pay any relevant fees pertaining thereto and that the third party software does not infringe the intellectual property rights of any person; and
4.12.3 agree to indemnify and keep us indemnified from and against all and any losses, loss of profits, claims, damages, actions, suits, demands, costs (including reasonable legal costs and disbursements on a full indemnity basis), interest, charges and expenses of any kind whatsoever which we may suffer or incur or be called upon to suffer or incur as a result of assisting you with the installation of the third party software.
4.13 If your account is the target of a Distributed Denial of Service Attack (“DDoS”) or any similar attack or threat, you agree to:-
4.13.1 we using reasonable endeavours in taking such mitigation measures including but not limited to taking your account offline, moving it to a quarantine server, implementing access control lists (“ACL”), IP filtering and IP blocking as we, in our absolute discretion, consider to be necessary, with or without prior notice to you, and without we becoming liable in any way to you for any consequential loss, delay, disruption or interruption of service; and
4.13.2 any mitigation measures taken by us remaining in place until your account experiences at least forty eight (48) hours of continuous non-malicious “normal” traffic.
4.14 Any confidential information belonging to you including but not limited to inventory information and images entered by you or your customers on your account is and will remain your property.
4.15 If your account contains links to websites of third parties including but not limited to advertisers which are not under our control (“Third Party Sites”), you agree that :-
4.15.1 we will not be responsible or liable for any content or for any updates or changes to Third Party Sites and any content posted on such Third Party Sites;
4.15.2 all dealings between you and the operators and owners of any Third Party Sites are at your risk; and
4.15.3 to the full extent permitted by law, we will not be liable for any claims, losses or damages of any kind which you may directly or indirectly incur by dealing with the operators and owners of any Third Party Sites.
4.16 4.16.1 Our payment terms are contained in our invoices.
4.16.2 Any invoice which is not paid in full by the due date will result in access to your account being blocked until the full amount of the invoice is paid.
4.16.3 If your account is blocked for non-payment of an account within our specified payment terms it may take up to forty eight (48) hours for your account to be unblocked.
5. Service Levels
5.1 We will use reasonable endeavours to make our network available for at least ninety nine point nine per centum (99.9%) of the time in each month (twenty four (24) hours per day) except where any of the following performance issues apply:-
5.1.1 where factors outside our reasonable control disrupt the network;
5.1.2 where your act or omission or any act or omission of any third party not associated with us disrupts our network e.g. where there is a DDoS attack on your account or on another person’s account hosted on the same server;
5.1.3 where the disruption is caused by your equipment or a third party’s equipment;
5.1.4 where the disruption is caused by software related issues;
5.1.5 where the disruption results from our scheduled maintenance and/or updating programs in respect of the Software, the account and our network.
5.2 For the avoidance of any doubt, the measurement of network availability expressly excludes downtime caused by any of the performance issues identified in clauses 5.1.1 to 5.1.5 inclusive.
5.3 5.3.1 In this clause 5.3, “Network Downtime” exists when your account is unable to transmit or receive data and you report such downtime to us via our support ticket system.
5.3.2 Network Downtime will be measured from the time we receive the support ticket from you to the time when the account is once again able to transmit and receive data.
5.3.3 If, subject to clause 5.2, network availability is less than ninety nine point nine per centum (99.9%) in a month, we will refund to you for each period of thirty (30) minutes of Network Downtime, five per centum (5%) of the Monthly Licence and Hosting Fee paid by you to us for that period up to but not exceeding one hundred per centum (100%) of the Monthly Licence and Hosting Fee paid by you to us for that period.
6. Search Engine Rankings
6.1 You acknowledge that as the popularity of a website or eBay listing in any major search engine is determined by a number of factors outside our control, we do not guarantee any search engine rankings.
6.2 We will, upon your request, in our absolute discretion, provide you with limited advice on how you may improve your search ranking.
6.3 Apart from the limited advice provided by us pursuant to clause 6.2, if you require us to provide search engine optimisation services, we will provide such services at the fee charged by us for that service.
7. Credit Card Processing and Sensitive information
7.1 If you choose to store credit card information or other sensitive information on your account, you do so at your own risk and we do not accept any liability for any loss suffered by you in respect thereof.
7.2 You must use a strong security protocol such as Secure Socket Layer to safeguard your sensitive cardholder data over networks.
8. Solicitation
8.1 You must not during the period of two (2) years after the Contract ends for whatever reason, solicit, interfere with or entice or endeavour to solicit, interfere or entice away from us any of our employees, contractors or agents.
8.2 In the event of you committing a breach of clause 8.1, you agree to pay us on demand liquidated damages consisting of an amount equal to all costs incurred by us in engaging a new permanent employee, contractor or agent, as the case may be, and all temporary support costs incurred or liable to be incurred by us in the interim pending we permanently filling the position.
9. Assignment and Subcontracting
9.1 Your rights, duties and obligations under the Contract are personal to you and may not be assigned or disposed of by you in any manner whatsoever.
9.2 We may assign our rights and obligations under the Contract without your consent if we obtain from the assignee a deed in your favour whereby the assignee agrees to be bound by the Contract as if the assignee were named in these Terms as the other contracting party with you in place of us.
9.3 You must accept the deed identified in clause 9.2 in full satisfaction and discharge of our obligations under these Terms insofar as the same remain to be performed.
9.4 We may subcontract all or any part of our obligations under these Terms without your consent.
10. Force Majeure
10.1 Notwithstanding any other provision in these Terms, neither you nor we will be liable for any failure to fulfil any provision in these Terms if such fulfilment is delayed, prevented, restricted or interfered with as a result of Force Majeure.
10.2 If you are unable to perform your obligations or we are unable to perform our obligations due to Force Majeure, you or we, as the case may be, must:-
10.2.1 notify the other as soon as reasonably practicable of any delay; and
10.2.2 use reasonable efforts to resume performance in accordance with these Terms as soon as possible.
10.3 If Force Majeure continues for more than one (1) month, either you or we may terminate these Terms forthwith by giving to the other a notice of termination in accordance with clause 13.1.
11. Liability
11.1 To the full extent permitted by law, we exclude all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
11.2 To the full extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those set out in these Terms.
11.3 11.3.1 these Terms must be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible and permitted, we limit our liability in respect of any claim, at our option:-
11.3.1.1 in the case of goods to:-
11.3.1.1.1 the replacement of the goods or the supply of equivalent goods;
11.3.1.1.2 the repair of the goods;
11.3.1.1.3 the payment of the cost of replacing the goods or of acquiring equivalent goods; or
11.3.1.1.4 the payment of having the goods repaired, and
11.3.1.2 in the case of services to:-
11.3.1.2.1 the supply of the services again; or
11.3.1.2.2 the payment of the cost of having the services supplied again.
11.3.2 Subject as aforesaid and otherwise to the full extent permitted by law, our liability to you for all loss or damage suffered or incurred by you from any breach by us of these Terms will be limited for each claim to the payments (excluding GST) made by you to us in respect of the Monthly Licence and Hosting Fees in the preceding period of twelve (12) months commencing on the date when your claim first arose less all amounts already paid or payable to you during that period for any other claims made by you hereunder.
12. Indemnity
To the full extent permitted by law, you must indemnify and keep us indemnified from and against all and any losses, loss of profits, claims, damages, actions, suits, demands, costs (including reasonable legal costs and disbursements on a full indemnity basis), interest, charges and expenses of any kind whatsoever which we may suffer or incur or be called upon to suffer or incur by virtue of:-
12.1.1 your use of or your inability to use the Software or the other services provided by us under these Terms;
12.1.2 any Content posted by you on or through your account;
12.1.3 any breach of or default by you of your obligations under these Terms;
12.1.4 the termination of these Terms by us as a result of your default hereunder; or
12.1.5 any violation by you of any applicable laws, rules or regulations.
13. Termination
13.1 Either you or we may at any time terminate the Contract upon giving at least one (1) month’s prior written notice to the other without being obliged to give any reason therefor and the Contract will end at the expiry of that period.
13.2 Either you or we may terminate the Contract, effective upon the delivery of written notice of such termination to the other, if:-
13.2.1 either you or we fail to pay the other any moneys payable hereunder within fourteen (14) days of receipt of a written demand for payment of the said moneys from the other; or
13.2.2 there is a continued and material breach by the other of any of these Terms, provided that you or we have given the other seven (7) days prior written notice of such breach, the other has not remedied the breach within a reasonable period thereafter and it is possible for the other to take such remedial action;
13.2.3 there is an irremediable breach by the other of any of these Terms; or
13.2.4 the other becomes insolvent, is generally not paying its debts as such debts become due, makes an assignment for the benefit of creditors or, if a corporation, shall go into administration or liquidation (otherwise then for the purpose of reconstruction or amalgamation) or has presented against it a petition for its winding up or does or omits to do any act matter or thing which constitutes a ground for a court to order that it be wound up or, if an individual, commits an act of bankruptcy or is made bankrupt.
14. Consequences of Termination
14.1 Any termination of the Contract is without prejudice to your rights against us or our rights against you in respect of any antecedent breach or nonobservance of any of these Terms.
14.2 To the full extent permitted by law, any termination of the Contract by us will not entitle you to a refund of the whole or any part of any fees or other money paid by you to us.
14.3 We will allow you a reasonable period of time following termination of the Contract to download your data before we remove your account and its contents from our servers.
14.4 You must pay to us upon demand all fees and other moneys payable by you to us under these Terms, which as at the date of termination of the Contract is or becomes due and payable by you to us.
14.5 You must return the the Software and the Documentation to us immediately on demand upon the termination of the Contract for whatever reason.
15. Notices
15.1 Any notice or other communication given by either you or us under these Terms:-
15.1.1 must be in writing and for this purpose email will constitute writing;
15.1.2 may, in addition to any other method of service by law, be sent by email to any email address of the addressee shown in any correspondence or documents between the addressee and the sender and for this purpose you and we consent to this method of communication for the purposes of any legislation governing this method of communication; and
15.1.3 will be treated as given and received if sent by email before 3.00 p.m. on a day which is not a Saturday or Sunday or a holiday in the place of receipt, on the day it is sent and otherwise on the next day at the place of receipt provided that the sender requests a delivery receipt for the email and receives a mail system delivery report giving the date and time of delivery.
15.2 Any notice sent or delivered in accordance with clause 15.1 will be treated as validly given to and received by the addressee notwithstanding that the addressee is absent from the place to which it is sent.
15.3 Any notice from either you or us may be given and signed by your lawyer or our lawyer, as the case may be, and any notice to you or us may be given to your lawyer or our lawyer, as the case may be, by any of the methods listed in this clause 15 to the lawyer’s business address or facsimile number.
16. General
16.1 If a provision of these Terms is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
16.2 You must at your expense and we must at our expense do everything reasonably necessary to give full effect to these Terms.
16.4 These Terms survive the termination of the Contract to the extent permitted by law.
16.5 These Terms will bind your and our successors in title.
16.6 None of your or our rights under these Terms will be waived or deemed to be waived except by notice in writing signed by you or by us to the other waiving the right and any such waiver by either you or us will not prejudice either your or our rights in respect of any subsequent breach of these Terms.
16.7 Apart from in clauses 13.2.1 and 13.2.2, time is not of the essence in these Terms.
16.8 The Contract and these Terms will be governed by and construed in accordance with the laws of the State of Queensland and the Commonwealth of Australia and each party hereby agrees to submit all disputes arising between them to the Brisbane Registry of any such Queensland or Commonwealth court as is competent to hear the matter.