5starsreputation provides a proprietary multi-product platform that includes without limitation, reputation management tools (“Reviews” and “Feedback“) messaging, and communication tools.
Client will, from time to time, enter into a proposal, quote, services/purchase agreement, order form, statement of work, or otherwise click to accept or agree to an online registration form, which references this Agreement (“Subscription Documentation/Plan/Package”) and details the Services ordered from 5starsreputation and, if applicable, the usage limits or other scope of use descriptions for the Services (including without limitation, any usage or volume limits, numerical limits on Authorised Users, and descriptions of product feature levels) (the Scope of Use). Client may be provided the option to purchase certain Services as part of a package or bundle offer (each, a “Bundle”), as detailed in the applicable Subscription Documentation. 5starsreputation has no obligation to provide any services or perform any tasks not specifically set forth in this Agreement (including any applicable Subscription Documentation).
Modification of the Services. 5starsreputation reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), or to alter the offering of the Services (including by adding, limiting or discontinuing certain Bundle offers) temporarily or permanently. 5starsreputation also reserves the right to replace certain Services and Bundles with functionally equivalent Services or Bundles, at its sole discretion. In the event 5starsreputation makes any modification or alteration to the Services or the offering thereof that has a material adverse effect on the functionality of the Services ordered under your Subscription Documentation, Client may terminate this Agreement.
Eligibility and Use by Others. By agreeing to these Terms, Client warrants that it and its employees and contractors whom Client has authorised to access the Services on its behalf (“Authorised Users”): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all applicable laws when using the Services. Client may permit its Authorised Users to use the Services provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorised Users are and will be subject to the applicable terms and conditions of this Agreement which may be communicated by posting to the Website or on a click- through basis to Authorised Users upon access to the Services and/or Website.
Responsibility for Authorised Users. Client will be responsible and liable for all Authorised Users’ use and access and their compliance with the terms and conditions herein. Client will be solely responsible for authorising and creating user IDs, passwords and other access credentials for Authorised Users. Client is solely responsible for determining its Authorised Users and restricting and/or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Provided, however, 5starsreputation may, in its sole discretion, suspend any Authorised User’s access to the Services. Client is solely responsible for ensuring that any user IDs, passwords and other access credentials (such as API tokens) for the Services are kept strictly confidential and not shared with any unauthorised person. Additionally, Client is solely responsible for complying, and ensuring its Authorised Users comply, with all laws applicable to Client. Client will be solely responsible for any and all actions taken using its and its Authorised Users’ accounts, passwords or access credentials. Client must notify 5starsreputation within twenty-four (24) hours of any breach of security or unauthorised use of its account. Use by all Authorised Users in aggregate will count towards any applicable Scope of Use restrictions.
General Restrictions. Client must not (and must not allow any third party to): (a) rent, lease, copy, transfer, sublicense or provide access to the 5starsreputation Technology (as defined below)to a third party (except Authorised Users as specifically authorised above); (b) incorporate the 5starsreputation Technology (or any portion thereof) into, or use it with or to provide, any site, product or service; (c) use the 5starsreputation Technology (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (d) publicly disseminate information regarding the performance of the 5starsreputation Technology (which is deemed 5starsreputation’s Confidential Information); (e) modify or create a derivative work of the 5starsreputation Technology or any portion thereof; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any 5starsreputation Technology or Services, except to the extent expressly permitted by applicable law and then only upon advance notice to 5starsreputation; (g) break or circumvent any security measures or rate limits for Services; (h) distribute any portion of the 5starsreputation Technology other than as specifically permitted above; (i) use the Service in violation of the Acceptable Use Policy; or (j) remove or obscure any proprietary or other notices contained in the 5starsreputation Technology including in any reports or output obtained from the 5starsreputation Technology.
Monitoring. Client understands and agrees that 5starsreputation, and any third-party platform(s) Client uses or accesses in connection with the Services, may monitor and analyse Client Data submitted by Client (including but not limited to reviews, surveys, messages, email, etc.) to improve the Website, Services or third-party platform; to improve Client’s experience using the Website, Services or third-party platform; to customize and communicate informational or product offerings and promotions to Client; and/or to make the Website, Services, or third-party platform more helpful or useful to Client and other users.
Security. 5starsreputation agrees to maintain physical, technical and organizational measures designed, in its discretion, to secure its systems from unauthorised access, use or disclosure. 5starsreputation takes no responsibility, in any circumstance, and assumes no liability for any Client Data.
Storage. 5starsreputation does not provide an archiving service. During the Subscription Term, Client acknowledges that 5starsreputation may delete Client Data no longer in active use. 5starsreputation expressly disclaims all other obligations with respect to storage.
Warranty. Client warrants and represents that it is in full compliance with all applicable local, state, territory, federal and international laws, rules and regulations and that Client will not use the Services in a manner that would violate or cause 5starsreputation to violate any obligation with respect to any such laws, rules or regulations, or amendments thereto, including but not limited to the Australian Consumer Law, the Privacy Act 1988 (Cth), the Do Not Call Register Act 2006 (Cth), and the Spam Act 2003 (Cth). Client also warrants and represents that (a) Client has sole ownership of any Client Data it provides to 5starsreputation, or otherwise has legal rights to provide such Client Data, and Client Data and 5starsreputation’s use thereof will not violate third-party rights, including intellectual property, privacy and publicity rights;; (b) 5starsreputation’s possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, or regulation; (c) any Client Data that Client and/or Client’s authorised representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, not be misleading, be transparent in disclosing commercial relationships and incentives or otherwise does not breach the Competition and Consumer Act 2010 (Cth), is the original work of Client‘s or their (as applicable) authorship, and will only concern Client or the goods and/or services that Client provides; (d) Client is authorised to provide 5starsreputation with any Customer, Client or Authorised User information it provides in connection with the Services, including any personally identifying information; and (e) Client and/or Client’s authorised representative(s) will only use the Services for interaction with actual Customers. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using these items with the Services and notify 5starsreputation immediately. Additionally, if an integration is included in the Services Client orders, Client grants 5starsreputation the right to access Client’s Information or CRM system directly or through a third-party service for the purposes of fulfilling 5starsreputation’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting 5starsreputation such right. 5starsreputation will not be held liable for any consequences of false, misleading and/or inaccurate content published to an online review or ratings website through 5starsreputation by Client or its Authorised Users.
Customer Consent; Intended Use of the Services. Client understands and agrees that the Services are intended to allow Client to send electronic communication, including but not limited to email/text messages, only to Client’s own current Customers who have consented to the receipt of such communications and are provided with necessary notices in accordance with applicable law and regulations. Client also understands and agrees that the Services are intended primarily to be used to send transactional and/or informational messages, not advertisements, marketing, telemarketing, or promotional messages, as such are defined in applicable laws, rules, and regulations (hereinafter, collectively “Marketing”), and that Client may use the Services to send Marketing messages only via 5starsreputation Campaigns. Accordingly, Client will for the duration of the Subscription Term: (a) provide all required disclosures to Customers and obtain all required consents and/or authorisations from Customers, based on applicable laws, prior to utilizing the Services; (b) obtain all necessary rights, releases and consents to allow Client Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant 5starsreputation the rights herein; and (c) send Marketing messages through 5starsreputation only via 5starsreputation Campaigns and only in compliance with all local, state, national and international laws, regulations and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable law and regulations and must not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with applicable law or regulation and 5starsreputation expressly disclaims any liability for Client’s non-compliance. 5starsreputation reserves the right to suspend or terminate Client’s access to the Services or the messaging feature if 5starsreputation believes, in its discretion, that Client has violated this Section 5.
AVAILABILITY OF SERVICES; SUPPORT.
Availability. Subject to the terms of this Agreement and any scheduled maintenance and unavailability caused by: (a) actions or omissions of Client; (b) failures, errors or defects in the facilities, hardware, software or network of Client; or (c) circumstances that constitute a force majeure event or that are beyond 5starsreputation’s reasonable control, 5starsreputation will make available access to the Services during the Term of this Agreement.
Support. 5starsreputation makes available web-based support through the helpdesk platform: https://support.5starsreputation.net.au/helpdeskz Additional support services may be available to Client subject to payment of applicable fees (if any), as specified in any applicable Subscription Documentation. Any support services are subject to this Agreement and 5starsreputation’s applicable support policies. 5starsreputation may also provide onboarding, deployment and other services under this Agreement. The scope, pricing and other terms for these additional services will be set forth in the applicable Subscription Documentation. 5starsreputation’s ability to deliver the Services will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Services.
FEES AND PAYMENT.
Fees. Unless otherwise specified on the applicable Subscription Documentation, the Services are provided on an ongoing, per license subscription-basis including automatically recurring payments for periodic charges, according to the terms and conditions referenced in the Subscription Documentation (“Subscription”). Client agrees to pay to 5starsreputation the fees for the Subscription to the Services or any Bundle (“Subscription Fees”) and any additional fees, if applicable, all as set forth in the applicable Subscription Documentation (collectively, the “Fees”). Except as otherwise specified in the applicable Subscription documentation, unless Client terminates a Free Access Subscription prior to the lapse of the Free Access Subscription term (7 days – based on the package), such Services will convert to a paid Subscription and Client agrees to pay 5starsreputation the applicable Subscription Fees according to the terms of this Agreement.
Payment of Fees. All Fees will be paid monthly. Fees are non-refundable, non-creditable and payment obligations non-cancellable. Client acknowledges and authorises 5starsreputation to charge Fees and other amounts automatically, on an auto-renew basis of your Subscription Start Date (as defined below) for each subsequent Subscription Term. For the avoidance of doubt, all additional Subscription Fees for additional Services accessed by Client will be billed when the Service is first accessed by Client and automatically, on an auto-review basis on Client’s existing Subscription Start Date. 5starsreputation may from time to time provide notice to Client regarding any Renewal Term(s) and the auto-renew processes including an opportunity to renew or opt out of the automatic renewal. Should 5starsreputation be unable to process/receive the Fees when due and owing, payment will be considered overdue. Client must pay interest to 5starsreputation on any amount that is due and payable but unpaid to 5starsreputation under this Agreement, calculated daily at the Interest Rate from the due date until the date on which it is paid. If 5starsreputation sends the account for collection and/or initiates legal action to collect overdue amounts, Client will be liable for all cost and expenses of such action, including all legal or attorney’s fees, court costs, and expenses. Additionally, after payment becomes overdue for five (5) days, 5starsreputation may suspend Client’s access to the Services until any overdue payment is paid in full by Client to 5starsreputation.
Taxes. 5starsreputation’s Fees are exclusive of all taxes, and Client must pay any applicable taxes or levies (including any applicable goods and services taxes as set out in A New Tax System (Goods and Services Tax) Act 1999 (Cth)), whether domestic or foreign, other than taxes based on the income of 5starsreputation.
Fee Increase. 5starsreputation reserves the right to increase Fees for any Services, without any written notice, effective on the start date of each Renewal Term.
TERM AND TERMINATION.
Term. This Agreement is effective until the applicable Subscription Term for the Services has expired or the Subscription is terminated as expressly permitted herein. The initial Subscription Term for any Services is 1 calendar month – ongoing until client terminate the agreement. Unless otherwise stated in Client’s Subscription Documentation, the initial term for any Subscription to the Services is 1 calendar month – ongoing until client terminate the agreement and will automatically renew for subsequent periods of equal duration (the “Subscription Term”), unless either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Client may give notice of non-renewal by sending an email to firstname.lastname@example.org. If no Subscription start date is specified on the applicable Subscription Documentation, the Subscription starts when Client first obtains access to the Services (“Subscription Start Date”). By agreeing to any Subscription Documentation, Client is agreeing to pay applicable fees for the entire Subscription Term.
Suspension of Services. 5starsreputation may suspend Client’s access to the Services if: (a) Client’s account is overdue; or (b) Client has exceeded its Scope of Use limits. 5starsreputation may also suspend Client’s access to the Services, remove Client Data or disable Third-Party Products if it determines that: Client has breached Sections (Use Rights; Restrictions) or (Client Obligations); or suspension is necessary to prevent harm or liability to other Clients or third parties or to preserve the security, stability, availability or integrity of the Services. 5starsreputation will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period. Unless this Agreement has been terminated, 5starsreputation will cooperate with Client to restore access to the Services once it verifies that Client has resolved the condition requiring suspension.
Termination for Cause. Either party may terminate this Agreement, including any related Subscription Documentation, if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding. If Client terminates during the Subscription Term for any reason, Client will be responsible for the Fees due for the entire Subscription Term. 5starsreputation may also terminate this Agreement or any related Subscription Documentation immediately if Client breaches Sections (Use Rights; Restrictions) or (Client Obligations), or for repeated violations of other Sections of this Agreement.
Effect of Termination. Upon any expiration or termination of this Agreement or any Subscription Documentation: (a) Client’s license rights will terminate and it must immediately cease use of the Services (including any related 5starsreputation Technology) and delete (or, at 5starsreputation’s request, return) any and all copies of any 5starsreputation documentation, scripts, passwords or access codes and any other 5starsreputation Confidential Information in Client’s possession, custody or control and (b) Client’s right to access any Client Data in the applicable Services will cease and unless otherwise precluded, 5starsreputation may delete any such data in its possession at any time. If 5starsreputation terminates this Agreement for cause as provided in Section (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
Obligation of Confidentiality. Except as otherwise expressly permitted in this Agreement, each party (as the receiving party) must: (a) hold in confidence and not disclose the other party’s Confidential Information to third parties; and (b) use the other party’s Confidential Information only as necessary to fulfil its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, contractors or subcontractors having a legitimate need to know, provided that such party remains responsible for any recipient’s and these recipients are bound to confidentiality obligations no less protective than this Section.
Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (a) is or becomes public knowledge through no fault of the receiving party; (b) was known by the receiving party prior to receipt of the Confidential Information; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law. 5starsreputation is never, in any circumstance, responsible for breach of confidential information and the client is the sole responsible for any breach of confidential information.
Ownership and Updates. By accepting this Agreement, Client acknowledges that it is obtaining only a limited right to use the Services and irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Client under this Agreement and, except as expressly permitted by such limited right, Client may not make any use of 5starsreputation Technology. Client agrees that 5starsreputation (or its suppliers) exclusively retains all rights, title and interest (including all intellectual property rights) in and to all Services, products, any and all related documentation, software, technology, code, know-how, logos, trademarks, service marks, and templates (including in any reports or output obtained from the Services), anything delivered as part of support, materials or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback (as defined below) (“5starsreputation Technology”) provided by 5starsreputation (which is deemed 5starsreputation’s Confidential Information) and reserves any licenses not specifically granted herein. Furthermore, 5starsreputation exclusively owns and reserves all right, title, and interest in and to 5starsreputation’s Confidential Information and any data, in anonymised or aggregated form that does not identify you, any end users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services. The Services are offered as an on-line, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Services and that 5starsreputation at its option may make updates, bug fixes, modifications or improvements to the Services from time-to-time.
Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to 5starsreputation (collectively, “Feedback”), Client hereby grants 5starsreputation a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits 5starsreputation’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.
THIRD-PARTY PRODUCTS AND INTEGRATIONS
5starsreputation may make arrangements with third-party providers, or facilitate Client making arrangements with third- party providers, that provide products or services in connection with the Services described in this Agreement. If Client elects to use applications, integrations, add-ons, software, code, online services, systems and other products not developed by 5starsreputation (“Third-Party Products”) in connection with or otherwise made available through the Services, those products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Products may require Client to enter into separate terms and conditions with such third-party. 5starsreputation is not a party to any such terms and will not be liable thereunder. Subject to 14.4 and to the extent permitted by law, Client acknowledges and agrees that 5starsreputation does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by 5starsreputation as “powered”, “verified” or otherwise) and assumes no responsibility or liability for these items and their access to the Services, including their modification, deletion, disclosure or collection of Client Data. 5starsreputation is not responsible in any way for Client Data once it is transmitted, copied or removed from the Services to the Third-Party Products. It is Client’s responsibility to ensure any products or services of third parties used in connection with the Services are of acceptable quality and fit for purpose.
LIABILITY AND EXCLUSIONS
AUSTRALIAN CONSUMER LAW
This section does not exclude, restrict, or modify the application of any provision of the Australian Consumer Law (ACL) (whether applicable as a law of the Commonwealth, or any State or Territory of Australia), the exercise of any right to remedy conferred by the ACL, or the liability of 5starsreputation for a failure to comply with any applicable consumer guarantees where to do so would contravene the ACL or cause any part of these sections to be void.
Indemnification by Client. Client will indemnify and must keep 5starsreputation and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “5starsreputation Entities”) indemnified and held harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable legal fees) or any other loss incurred by the 5starsreputation Entities arising from or in connection with (a) your unauthorised use of, or misuse of, the Services, (b) your violation of any applicable law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, (c) any dispute or issue between you and any third party (including your Customers), (d) any demand, dispute or issue (including without limitation fee disputes) between you and your Payment Processor (as defined in the applicable Additional Terms, (e) any Client Data, (f) 5starsreputation’s use, as contemplated in this Agreement, of any information provided to 5starsreputation by You, your Authorised Users or your Customers, (g) any breach or alleged breach of this Agreement by the Client (including by the Client’s Authorised Users), including Client’s Warranties and Obligations, (h) any claim made against 5starsreputation by Authorised Users or other third parties in any way relating to the Services or their use of the Services, or (i) any claim of a governmental entity or other party that you have violated any law, rule, or regulation. Client will not, however, be liable to indemnify 5starsreputation to the extent 5starsreputation was grossly negligent, fraudulent, or caused or contributed to any misuse of the Services under the Agreement. Where applicable, Client must not settle any claim arising from or in connection with this Agreement or the Services, which might impact 5starsreputation without 5starsreputation’s prior written consent if the settlement does not fully release 5starsreputation from liability or would require 5starsreputation to admit fault, pay any amounts or take or refrain from taking any action.
Indemnification by 5starsreputation. 5starsreputation will indemnify and hold Client harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to (i) 5starsreputation’s gross negligence or willful misconduct; or (ii) 5starsreputation’s infringement, misappropriation or violation of a third party’s intellectual property rights. 5starsreputation also agrees to defend Client against these claims at Client’s request, but Client may participate in any claim through counsel of its own choosing and the Parties will reasonably cooperate on any defense. 5starsreputation must not settle any claim without Client’s prior written consent if the settlement does not fully release Client from liability or would require Client to admit fault, pay any amounts or take or refrain from taking any action.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL 5STARSREPUTATION TECHNOLOGY AND RELATED SERVICES, MATERIALS AND CONTENT AVAILABLE THROUGH THE 5STARSREPUTATION TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER 5STARSREPUTATION NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. 5STARSREPUTATION MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT 5STARSREPUTATION TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT 5STARSREPUTATION TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, AND 5STARSREPUTATION DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. 5STARSREPUTATION WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-5STARSREPUTATION SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE AND DISCLOSURE OF CLIENT DATA AUTHORISED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON 5STARSREPUTATION TECHNOLOGY OR 5STARSREPUTATION’S RELATED SERVICES (INCLUDING CHANGES TO CLIENT PROPERTIES). CLIENT MAY HAVE OTHER STATUTORY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR 5STARSREPUTATION ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE 5STARSREPUTATION ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. 5STARSREPUTATION DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY 5STARSREPUTATION TO ITS CLIENT(S) WILL NOT CONSTITUTE LEGAL ADVICE. USE OF THE SERVICES DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.
LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 5STARSREPUTATION OR ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL 5STARSREPUTATION’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CLIENT TO 5STARSREPUTATION FOR THE APPLICABLE SERVICE(S) OR RELATED SERVICE(S) IN THE ONE (1) MONTH PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES PROVIDED WITHOUT CHARGE, 5STARSREPUTATION’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($49.00 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LOCAL LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED AND WHERE THE ACL APPLIES, 5STARSREPUTATION’S LIABILITY IS LIMITED AT THE OPTION OF 5STARSREPUTATION TO (A) IN THE CASE OF ANY PRODUCT, ANY ONE OR MORE OF THE FOLLOWING (i) THE REPLACEMENT OF THE PRODUCT OR THE SUPPLY OF EQUIVALENT PRODUCT, (ii) THE REPAIR OF THE PRODUCT, (iii) THE PAYMENT OF THE COST OF REPLACING THE PRODUCT OR OF ACQUIRING EQUIVALENT PRODUCT, OR (iv) THE PAYMENT OF THE COST OF HAVING THE PRODUCT REQUIRED, IF APPLICABLE; AND (B) IN THE CASE OF ANY 5STARSREPUTATION TECHNOLOGY OR SERVICES OR RELATED SERVICES PERFORMED BY 5STARSREPUTATION: (i) THE SUPPLY OF THOSE SERVICES AGAIN, OR (ii) THE PAYMENT OF THE COST OF HAVING THOSE SERVICES APPLIED AGAIN.
If a party claims that a dispute has arisen between the parties under this Agreement or the Services provided therefrom, and the dispute cannot be settled through informal negotiations within 3 months, a party must provide written notice to the other party within 3 months of the occurrence of the event(s) giving rise to the dispute or the party becoming aware of the occurrence of the event(s). The dispute notice must set out relevant information including the background of the alleged events giving rise to the dispute, the basis of the claim, and the relief or remedy (if any) that is sought. In the event that the dispute is not resolved as a result of informal negotiations following the dispute notice being received by the other party (or as such other period as agreed by the Parties’ representatives), the parties agree that a senior executive of each party must meet as soon as reasonably practicable and endeavour to resolve the dispute in good faith. If following this meeting between the Parties’ senior executives, there is no resolution, then the Parties agree to resolve their dispute (referred to herein as “Claim(s)”) as follows:
Mediation. The Parties agree to participate in mediation to settle their Claims in accordance with the rules and procedures found in the Institute of Arbitrators and Mediators Australia Mediation Rules (“Rules”) and this Agreement before a party can file a judicial action, whether in a court of law, an administrative body, government agency, or otherwise. If there are any conflicting provisions between the Rules and this Agreement, the provisions in this Agreement will govern.
Notice. Mediation will be conducted within sixty (60) days from a party receiving written notice of Claims from a complaining party. The notice must contain a detailed description of the nature of the Claims and the requested relief sought.
Mediator Selection and Mediator Fees. A neutral mediator will be selected as mutually agreed upon by the parties. The mediator’s fees and costs will be paid to the mediator at the end of mediation, with both parties equally sharing the mediation costs and paying their own legal fees and costs.
Location. Mediation will occur in Perth, Western Australia.
Judicial Action. If the parties are unable to resolve the Claim pursuant to the mandatory mediation referenced above (or if one of the parties refuses to participate in the mandatory mediation or fails to respond to a complaining party’s request for mediation), the parties may subsequently file a judicial action.
Disputes Not Subject to the Mediation Process. The following claims or actions are not subject to the mandatory mediation provisions of this Section:
A request for an order of injunctive relief and any related incidental damages;
A request for an order to prevent the disclosure of or misuse of Confidential Information or Trade Secrets; and/or
Assignment. Neither party may assign or purport to assign any of its rights or obligations under this Agreement without the advance written consent of the other party (which must not be unreasonably withheld). Additionally 5starsreputation may assign this Agreement subject to consent (which must not be unreasonably withheld) to an affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly consented to under this Section will be null and void.
Notices. Any notice or communication to 5starsreputation under this Agreement must be in writing. Client must send any notices under this Agreement (including breach notices) to 5starsreputation Headquarters and include “Attn. Legal Department” in the subject line. 5starsreputation may send notices to the e-mail addresses on Client’s account or, at 5starsreputation’s option, to Client’s last-known postal address. 5starsreputation may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of such notice on 5starsreputation’s website or the Services. Each party hereby consents to receipt of electronic notices. 5starsreputation is not responsible for any automatic filtering Client or its network provider may apply to email notifications.
Publicity. Unless otherwise specified in the applicable Subscription Documentation, 5starsreputation may use Client’s name, logo and marks to identify Client as a 5starsreputation Client on 5starsreputation’s website and other marketing materials.
Subcontractors. 5starsreputation may use subcontractors or otherwise delegate the performance of its obligations or the exercise of its rights under this Agreement in order to provide the Services and related services under this Agreement. 5starsreputation will not be required to obtain the Client’s consent or provide notice of such sub-contracting or delegation. To avoid any doubt, 5starsreputation remains responsible for the performance of its obligations or the exercise of its rights under this Agreement regardless of any subcontracting or delegation.
Subpoenas. Nothing in this Agreement prevents 5starsreputation from disclosing Client Data to the extent required by law, subpoenas, or court orders, but 5starsreputation will use commercially reasonable efforts to notify Client where permitted to do so.
Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disruption in transportation systems, disruption of labor force, national or state emergency, epidemic, pandemic, communicable disease outbreak, failure or reduction of power or telecommunications or data networks or services, or government act.
Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.
Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable, void or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect, and all other provisions remain in full effect.
No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Subscription Documentation and not any affiliates. Furthermore, Client’s affiliates are not permitted to use the Services under these Terms unless an affiliate agrees to these Terms individually and creates its own account.
Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.
Entire Agreement. This Agreement, including these Terms and any applicable Subscription Documentation, represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, understandings, agreements, representations or warranties, proposals and representations with respect to the 5starsreputation Technology or any other subject matter covered by this Agreement.
Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery will be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of Western Australia, Australia. To the extent permitted by law, the courts of Western Australia, Australia, will be the exclusive jurisdiction for disputes arising out of or in connection with this Agreement.