These terms (“Terms of Service”) constitute a contract between you (“Subscriber” or “Customer” or “You”) and Progmatics PTY LTD Trading as Elemental Projects (ABN 23 003 054 724) (“Company”), regarding the terms under which the Company will provide Subscriber with access to the Services.
BY LOGGING IN, SUBSCRIBER SIGNIFIES ITS AGREEMENT TO ABIDE BY THESE TERMS OF SERVICE (“Acceptance”). Subscriber agrees that its assent, given electronically, will have the same legal effect as if it had been personally signed by Subscriber. To the extent permitted by law, these Terms of Service are intended to supersede any provisions of applicable law, which might otherwise limit their enforceability or effect, because they were entered into electronically. Please print a copy of these Terms of Service for future reference.
Subscriber shall not hold the Company liable for any delays relating to Internet usage. Subscriber further acknowledges and accepts that the Website will not be available on a continual twenty-four hour basis due to such delays, or delays caused by the Company's upgrading, modification, or standard maintenance of the Website.
The Company will use commercially reasonable efforts to enable the Services to be accessible, except for scheduled maintenance and required repairs, and except causes beyond their reasonable control including, but not limited to, any Force Majeure Event (as defined below). The foregoing undertaking shall not apply to the extent of any non-conformance caused by use of the Services contrary to the Company's instructions, or modification or alteration of the Services by any party other than the Company. If the Services are in non-conformance with the foregoing undertaking, the Company will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Subscriber with an alternative means of accomplishing the desired performance.
Subscriber agrees to maintain the confidentiality of the Company’s Confidential Information and trade secret information. For the purposes of these Terms of Service, the term “Confidential Information” means all portions of the Services, including but not limited to, the Subscription Website.
Subscribers are not permitted to redistribute or copy any materials, videos, recordings or content provided by the Company for purpose other than the purpose to which it was originally provided. Subscribers are not permitted to edit, adapt or modify content provided by the Company without express prior written consent of the Company.
This Website may contain links to other websites that are not operated by or related to Company. Company is not responsible for the content, accuracy or opinions expressed in such third party websites, and does not investigate, monitor, or check these websites for accuracy or completeness. The inclusion of any linked website on this Website does not imply approval or endorsement of the linked website by Company. A Subscriber that leaves this Website to access these third-party sites does so at its own risk.
Subscriber’s use of the services or items obtained through the services is at its own risk. The services are provided on an "as is" and "as available" basis, without any statements or warranties of any kind, either express or implied. Neither company nor any person associated with company makes any statement, warranty or representation with respect to the completeness, security, reliability, quality, accuracy or availability of the services. Without limiting the foregoing, neither company nor anyone associated with company promises that the services or items obtained through the services or any portion thereof, will be accurate, reliable, error-free or uninterrupted, that defects will be corrected, that the services or the website or the server that makes it available, are free of viruses or other harmful components, or that the services or items obtained through the services will otherwise meet subscriber’s needs or expectations. Company hereby disclaims all warranties of any kind, whether express or implied, statutory or otherwise, including but not limited to any warranties of merchantability, non-infringement and fitness for particular purpose. The foregoing does not affect any warranties which cannot be excluded or limited under applicable law. No verbal or written representations, information or advice given by company or its authorized representative shall create a warranty or in any way increase the scope of this warranty.
Subscriber agrees to compensate and defend fully Company, its officers, employees, agents, successors and assigns, from and against any damages, losses, and expenses (including reasonable attorneys’ fees) resulting from any third-party claim, action or demand arising out of any breach by Subscriber of any representation, warranty, covenant, obligation or duty of Subscriber under this Agreement.
All provisions relating to proprietary rights, payment of fees, confidentiality, disclaimer of warranty, indemnification, and limitation of liability, shall survive the expiration or earlier termination of these Terms of Service.
Except, for any provisions determining the primary contractual obligations of Subscriber and Company hereunder, Company has the right to revise and amend these Terms of Service from time to time to reflect changes in business needs including, but not limited to, changes in features and functionality, changes in market conditions, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in system capabilities. Changes are effective immediately upon posting and Subscriber’s continued use of any of the Services following the posting of revised Terms of Service means that Subscriber accepts and agrees to the changes, to the extent permitted by applicable laws.
Subscriber may not transfer these Terms of Service, in whole or in part. Company may transfer these Terms of Service and/or subcontract some or all of its obligations hereunder at any time.
Subscriber acknowledges that a breach of any confidentiality or proprietary rights provision of these Terms of Service may cause Company irreparable damage, for which the award of damages would not be adequate compensation. Consequently, Company may seek an injunction to prevent Subscriber from taking any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and Company may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which Company may be entitled at law or in equity.
These Terms of Service shall be construed and governed by the laws of the state of New South Wales, Australia, without regard to the principles of conflict of laws thereof. Subscriber agrees and accepts that any legal action or proceeding shall be brought in the federal or state courts for the State NSW, and Subscriber expressly waives any objection to personal jurisdiction, venue or forum non convenient. Additionally, in the event of any dispute or claim relating to or arising out of these Terms of Service (including, but not limited to, any claims of breach of contract, tort, infringement), Subscriber agrees that all such disputes/claims will be resolved by means of a court trial conducted by the courts in NSW, Australia, and Subscriber expressly waives any right it may otherwise have to a jury trial.
Legal notices may be sent to Progmatics Pty Ltd, Attn: Legal Department, Level 40 / 100 Miller St, North Sydney, NSW, 2060, Australia (if by conventional mail). Notices to Subscriber may be sent either to the email address supplied in Subscriber’s account or to the address supplied by Subscriber as part of its registration data. Any notices or communication under these Terms of Service will be deemed delivered to the party receiving such communication (a) on the delivery date if delivered personally to the party; (b) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (c) five business days after the mailing date, if sent by mail, return receipt requested; (d) on the delivery date if transmitted by email; or within three (3) days after Company posts a notice on the Website.
Company will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations that is caused by events outside its reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond Company’s reasonable control including, but not limited to, restrictions of law, regulations, orders, or other governmental directives, labor disputes, acts of God, third party mechanical or other equipment breakdowns, terrorist attacks, fire, explosions, fibre optic cable cuts, interruption or failure of telecommunications or digital transmission links, Internet failures or delays, storms or other similar events.
If any provision of these Terms of Service are held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms of Service will remain in full force and effect.
If Company fails to insist upon strict performance of Subscriber’s obligations under any of these terms and conditions, or if Company fails to exercise any of the rights or remedies to which it is entitled under these Terms of Service, this will not constitute a waiver of such rights or remedies and will not relieve Subscriber from compliance with such obligations. No waiver by Company of any default will constitute a waiver of any subsequent default, and no waiver by Company of any of these terms and conditions will be effective unless it is expressly stated to be a waiver and is communicated to Subscriber in writing.