Effective 12 February 2020
Capitalised terms used here have the meanings set out below.
"Billing Period" means the period for which you agree to prepay the Fees under a Subscription Services Order which may be the same or shorter than the Subscription Term set out in the Subscription Services Order. For example, if your Subscription Term is for three (3) years with a 12 month upfront payment, then each Billing Period will be 12 months;
"Fees" means fees for use of the Subscription Services as set out in a Subscription Services Order;
"Personal Information" means information or an opinion about an identified individual, or an individual who is reasonably identifiable whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not;
"Privacy Act" means the Privacy Act 1988 (Cth);
"Privacy Laws" means the Privacy Act and any other legislation in force from time to time in connection with Personal Information;
"Statement of Work" means the statement of work setting out the terms for additional services made available to you by us for or in respect of the Subscription Services, Website or User Website from time to time during the Subscription Term;
"Subscription Services" includes a suite of services and tools for website design and creation, search engine optimization and digital marketing, CRM, content management, web analytics and conversion, landing page creation and management, automated web optimisation, and such other services and tools that you have subscribed to by an Subscription Services Order that are made available by us through the Website from time to time;
"Subscription Services Order" means the Sinorbis-approved form or online subscription process by which you agree to subscribe to the Subscription Services. Subscription Services Orders may be completed through our online payment process or offline via our consultants;
"Subscription Term" means the period of paid access to the Subscription Services set out in the Subscription Services Order;
"Third-Party Products" means embedded and non-embedded products and professional services that are provided by third parties that interoperate with or are used in connection with the Subscription Services and Website;
"Third-Party Sites" means third-party websites linked from or within the Subscription Services;
"User Account" means your registered account with us containing details about you and the Subscription Services you are using;
"User Content" means any content provided or uploaded by you on the User Website or for or in respect of the Subscription Services, including any data, designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials;
"User Website" means the online and mobile websites and platforms created by you;
"Website" means https://www.sinorbis.com;
"You" or "your" means the person or entity using the Subscription Service and identified in a User Account and/or Subscription Services Order.
2. User Account
User Account. In order to access and use certain sections and features of the Subscription Services and Website, you must first register and create a User Account.
Responsibility for User Account. All activities that occur under or in respect of your User Account will be attributed to you. You must keep secure and confidential all information necessary to access and operate your User Account, including, but not limited to your login and password as you will be solely and fully responsible for all activities that occur under your User Account, whether or not specifically authorised by you, and for any damages, expenses or losses that may result from such activities.
You must provide accurate and complete information when registering your User Account and using the Subscription Services. We strongly encourage you to provide your own (or your company’s) contact and billing details, including your valid e-mail address, as we may use it to identify and determine the actual and true owner of the User Account and/or User Content submitted to us.
You agree to promptly notify us in writing no more than three days after the following occurring:
- you are the subject of any voluntary or involuntary petition or proceeding, receivership, bankruptcy or similar action;
- there is an adverse change in your financial condition;
- there is a planned or anticipated liquidation or substantial change in the nature of your business or parent entity; or
- there is a change in the control or ownership of your business or parent entity.
We will use reasonable efforts to maintain the Subscription Services in a manner which minimizes the threat of introduction of malicious code, errors and interruptions in the Subscription Services and will perform the Subscription Services in a professional and workmanlike manner.
The Subscription Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control, but we will use reasonable efforts to provide advance notice by online notification of any scheduled service disruption. We will ensure the Subscription Services are provided free of known malicious code or malware and that the Subscription Services complies with Subscription Services Order and related documentation.
We may engage subcontractors to perform the Subscription Services in our absolute discretion. We will remain responsible for the Subscription Services, despite any subcontracting.
Customer Support: We provide help desk support for the Subscription Services via https://help.sinorbis.com/ between 9.00am-5.00pm AEST Monday to Friday. We attempt to respond to email questions within 2 business days but we do not promise or guarantee any specific response time.
Security: We are not responsible for any misuse or unauthorised modification, loss, transmission or disclosure of, unauthorised access to, or interference with, the User Account or User Website which results (directly or indirectly) from: (a) a security breach or incident occurring, (b) failures by you to take reasonable steps to prevent unauthorised access to the Subscription Services, the User Website or the User Account (for example, by disclosing the security credentials (such as user names and passwords) related to the Subscription Services (otherwise than as required by such Subscription Services)); or (c) events beyond our reasonable control including security incidents affecting hardware, software or services not controlled by us).
4. Your obligations
Your obligations. You are responsible for all of the following with respect to your use of the Subscription Services and you agree:
- to obtain and maintain all equipment necessary to access the Subscription Services, including ensuring that any APIs are compatible with the requirements of the Subscription Services and Website;
- that you own all rights in and to any User Content or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the User Content, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such User Content;
- that User Content is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for you to possess, post, transmit or display in the country in which you or your end users’ reside, or for Sinorbis and/or your end users to use or possess in connection with the Subscription Services;
- that you have obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of the User Content, and you will comply with all applicable laws.
- to properly handle and process any legal notices (including those required by privacy and copyright laws); and
- to determine the appropriate procedures and controls regarding the security of User Content and the User Website and for implementing those procedures and controls;
Prohibitions. You acknowledge that the User Website(s) will be hosted on one or more servers, and that computing and technology resources are shared among many customers on the same servers. You are prohibited from using the Subscription Services or Website to facilitate illegal transactions, and you may not, and may not allow others to use the Subscription Services, Website, Example Content or Sinorbis IP in any of the following ways to:
- copy, modify, create derivative works of, download, adapt, reverse engineer, emulate, migrate to another service, translate, compile, decompile or disassemble the Website, the Subscription Services (or any part thereof), any content offered by us or Third Party Sites, or publicly display, perform, transmit or distribute any of the foregoing without our prior written and specific consent and/or as expressly permitted under this Agreement;
- submit, transmit or display any User Content in a context, which may be deemed as defamatory, libelous, obscene, harassing, threatening, abusive, racist, offensive, deceptive or fraudulent, or which otherwise violates our rights or the rights of any third party (including any intellectual property rights, privacy rights, contractual or fiduciary rights);
- publish and/or make any use of the Subscription Services on any website, media, network or system other than those provided by us, and/or frame, "deep link", "page scrape", mirror and/or create a browser or border environment around any of the Subscription Services, and/or Website (or any part thereof), except as expressly permitted by us;
- use any "robot", "spider" or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Subscription Services (or its data), or in any way reproduce or circumvent the navigational structure or presentation of any of the Subscription Services to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the Subscription Services;
- act in a manner which may damage our reputation and goodwill or which may bring us into disrepute or harm;
- disable, circumvent, bypass or otherwise avoid any measures used to prevent or restrict access to the Subscription Services, Website, the account of another user(s), or any other systems or networks connected to the Subscription Services, by hacking, password mining, or other illegitimate or prohibited means;
- perform or attempt to perform any actions that would interfere with or disrupt the normal operation of the Subscription Services or Website or the servers or networks that host them or make them available or affect the use of the Subscription Services by other users;
- use any of the Subscription Services in connection with any form of spam, unsolicited mail, fraud, scam, phishing, "chain letters", "pyramid schemes" or similar conduct, or otherwise engage in unethical marketing or advertising;
- sell, license, transfer or exploit for any commercial purposes any use of or access to the Subscription Services, except as expressly permitted by this Agreement;
- impose an unreasonable or disproportionately large load on the Service; or
- breach, attempt to breach or otherwise fail to comply with any of this Agreement or any laws or requirements applicable to your use of the Subscription Services.
You agree that you are solely responsible for all products, transactions, activities and payments advertised, made available or occurring on or in respect of the User Website, and compliance with any laws applicable thereto. You shall take appropriate measures to:
- provide, update, upload, and maintain the User Website(s) and server(s);
- protect the content of the User Website(s) against any loss or damage;
- keep independent archives and backup copies of the content on the User Website(s) and server(s); and
- ensure security, confidentiality, and integrity of all website or server content that you transmit through or store on our servers.
You acknowledge and agree that your breach of this clause may result in the immediate termination of your User Account and/or any Subscription Services provided to you – with or without further notice to you, and without any refund of amounts paid on account of any such Subscription Services.
5. Fees and GST
Fees. Unless we agree otherwise, Fees shall be prepaid monthly in advance by credit card or another payment method accepted on the Website or agreed in a Subscription Services Order. All prepaid amounts and Subscription Services will be reflected in your User Account. If paying by credit card, you authorize us to charge your credit card or bank account for all Fees payable during the Term. If paying by invoice, we will invoice you in accordance with the terms set out in the relevant Subscription Services Order. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
Fee changes. The Fees will remain fixed during each Billing Period unless you (i) exceed the parameters of the Subscription Service or (ii) subscribe to additional features or products. Where a Fee change applies to you, we will charge you under the new price structure, starting with the next month in the Subscription Term. We will monitor or audit parameters and your usage of the Subscription Services.
Fees for additional services. The fees and payment terms for additional services will be set out in a Statement of Work. These fees are in addition to the Fees.
GST. Except where this Agreement expressly states otherwise, the amount payable by you in respect of any supply (including a taxable supply) made under this Agreement is expressed as a GST exclusive amount (“GST Exclusive Consideration”). You are liable to pay the GST Exclusive Consideration and we may recover the amount of any GST payable in respect of a taxable supply (if any) on the date of which:
- the GST Exclusive Consideration is due, or
- if the liability for GST (or increased liability for GST) is discovered after the date on which the GST Exclusive Consideration is due, our written demand is made to you.
Invoices and receipts. We will issue an invoice for any payment of Fees in electronic form via your User Account and/or by e-mail. For the purpose of issuing the invoice, you may be required to provide certain Personal Information in order to comply with applicable laws. We will also issue you with a receipt following payment of the Fees via your User Account and/or by email.
Auto-renewal. At the end of your Subscription Term, and unless otherwise agreed with us, your subscription will automatically renew for a renewal period equal in time to the original Subscription Term, and we will charge you the applicable recurring Fee. To prevent renewal of your subscription, you must give written notice of non-renewal no less than forty five (45) days in advance of the end of the Subscription Term.
Please note: Certain services purchased on or through the Website may be non-refundable. These include fees for Third Party Products such as domains, social media accounts, business tools and applications. The terms of each purchased service or product are indicated on the Website and/or as part of or during the process of purchasing such services or applications. It is your obligation to verify your ability to cancel a service prior to purchasing it. We will not refund any amounts paid for non-refundable services, applications or Third Party Products.
Termination for Default. Either party may terminate this Agreement immediately by written notice if:
- (a) the other party suffers an insolvency event;
- (b) the other party commits a material or persistent breach of any term of this agreement that is not capable of being remedied; or
- (c) the other party commits a material or persistent breach of this agreement and (in the case of a breach capable being remedied) has failed to remedy the breach within 30 days after receiving a notice from the other party requiring it to do so.
We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
This Agreement may not otherwise be terminated prior to the end of the Subscription Term. If you wish to terminate the Agreement other than in accordance with this clause 6, you agree that we may invoice you for and you will pay the Fees until the end of the Subscription Term and we will not provide refunds of any pre-paid Fees.
Termination by us. We reserve the right to modify, suspend or cancel the Subscription Services or any part thereof at any time with notice. We will not be liable to you or to any third party for any modification, suspension, or cancellation of the Subscription Services.
Termination will not affect any rights that accrue to a party before termination.
Effect of Termination. Upon termination of this Agreement, you agree that: (a) your rights with respect to the use of Website or Subscription Services will terminate immediately, (b) we reserve the right to cancel (but have no obligation to), cease to host and/or delete all of your User Content, User Website, information and account data stored on our servers within 30 days of expiry of the Subscription Term, (c) we will not be liable to you for any refund, compensation, reimbursement or damages relating to your use of the Subscription Services or any termination or suspension of the Subscription Services or deletion of your User Content, User Website, information and/or account information in accordance with this Clause, and (d) you remain liable for any Fees or other financial obligation incurred by you or through your use of the Subscription Services or under a Statement of Work prior to termination.
Survival. Upon termination of this Agreement for any reason, all provisions regarding indemnification, warranty, liability and limits thereon, and protection of proprietary rights and trade secrets, and any provisions which expressly or by their nature are required to survive such termination in order to achieve their purpose, will survive until it will no longer be necessary for them to survive in order to achieve their purposes.
7. Intellectual Property
Ownership of Subscription Services and Website. Sinorbis and its licensors own all rights, title and interest in the patents, copyrights, trademarks or service marks, logos and designs, data base rights, moral rights, know-how and trade secrets and other intellectual property (“IP”), whether or not registered or capable of registration, and whether subsisting in any specific country or countries or any other part of the world, in the Subscription Services, the Website, the platform used to provide the Subscription Services (technology, hardware, software etc.), any code or software which may be provided to you for your use under this Agreement and any work products created and/or delivered herein and related documentation (collectively, “Sinorbis IP”), or any copies thereof. Sinorbis reserves all rights in the Sinorbis IP not expressly granted to you under this Agreement.
Licence. We grant you a non-exclusive, non-transferable right to electronically access and use the Sinorbis IP in the manner described in this Agreement. You have no right to sub-licence the Sinorbis IP unless we give our prior written consent. We may revoke this licence at any time if you use Sinorbis IP in a manner prohibited by this Agreement. You may not, or attempt to:
- claim or register ownership of Sinorbis IP on your behalf or on behalf of others;
- sub-licence any rights in Sinorbis IP granted by us without prior written consent;
- remove or alter any copyright notices, watermarks, restrictions and signs indicating proprietary rights of any of our licensors, including copyright marks or trademarks contained in or accompanying the Subscription Services; or
- import or export any Sinorbis IP to a person or country in violation of any country’s export laws; or
- use Sinorbis IP in a manner that breaches this Agreement or applicable laws.
Bespoke IP. 'Bespoke IP' means IP we create specifically for you including any text, images or software that is not derived from Sinorbis IP or any other IP that arises independently of the Subscription Services or this Agreement. Bespoke IP does not include stock images or similar items licensed from third parties. You will own all Bespoke IP.
Your marks and User Content. You grant us a worldwide, non-exclusive, unlimited and royalty-free license to use your Bespoke IP, brands, names, logos, trademarks, trade names, service marks, User Content and User Website for the purpose of providing the Subscription Services to you. You own all rights in and to User Content and the User Website or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to User Content and the User Website, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such User Content and User Website.
Templates and Example Content. We may provide templates or other products including without limitation text, photos, images, graphics, audio, video and other materials to provide you with ideas and examples ("Example Content"). However, Example Content is for private use only (unless we tell you otherwise). You agree that you will not distribute, publicly display, publicly perform or otherwise publish any Example Content (or any portion thereof).
Publicity. You grant us the right to add your name and company logo to our customer list and Website.
8. Representations and Warranties
By using the Subscription Services, you represent and warrant that (a) you are eligible to create a User Account and use the Subscription Services and have the authority to execute and perform the obligations required by this Agreement; (b) any information you submit to us is truthful, complete and accurate; (c) you will comply with all laws applicable to your business and use of the User Content, User Website and Subscription Services; and (d) you will not use the Subscription Services or Website, directly or indirectly, for any fraudulent or illegal undertaking or to interfere in any manner with the normal operation of the Subscription Services or Website.
If you are an overseas based customer, you represent and warrant that (a) you are not an Australian tax resident for Australian income tax purposes; (b) you do not carry on or conduct a business or investment activities in Australia (whether through a permanent establishment in Australia for Australian income tax purposes or a fixed and definite place in Australia, irrespective of whether in your own name or through an agent) to which the acquisition of the Subscription Services relate; (c) you are not a foreign company registered with the Australian Securities and Investment Commission (ASIC); (d) the Subscription Services you acquire from us are not being provided to, or on behalf of, or for the benefit of another entity in Australia; (e) the effective use and enjoyment of the Subscription Services will take place outside of Australia.
9. No warranties
The Subscription Services and Website are provided on an “as is” and “as available” basis. To the fullest extent permitted by law, we expressly disclaim all warranties of any kind, whether express or implied, or statutory warranties of merchantability, fitness for a particular purpose, non-infringement or any other type of warranty or guarantee.
Without limiting Clause 11, we do not warrant (a) that the Subscription Services or Website will) meet your business needs or requirements; (b) that the Subscription Services or Website will be free from viruses, harmful code, error, interruption or external intrusion; (c) the r accuracy, reliability or content of any information contained in or provided through the Subscription Services or Website, or (d) the quality, content or accuracy associated with any Third Party Products used or received by you through or as a result of the use of the Subscription Services or Website. Subject to the disclaimer below, we are not responsible for (a) any defect in the Subscription Services or Website arising from fair wear and tear, wilful damage, negligence, or abnormal working conditions imposed by you, failure by you to follow our instructions (whether oral or in writing), misuse, alteration or repair of the Subscription Services or Website by you without our approval; and (b) any defect resulting from any unauthorised modifications or customisation of the Subscription Services or Website.
Nothing in this Agreement operates to exclude, restrict or modify the application of any implied condition, warranty or guarantee or the exercise of any right or remedy or the imposition of any liability under law where to do so would contravene that law or cause any term of this Agreement to be void. To the extent that the Australian Consumer Law allows us to limit our liability, our liability will be limited to (a) in the case of services, supplying the services again or payment of the cost of having the services supplied again, and (b) in the case of good, replacing the goods, supplying equivalent goods or repairing the goods, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
Third Party Products and Sites. We do not warrant, endorse, guarantee, or assume responsibility for any Third Party Product or product or service advertised or offered through a Third Party Site in connection with the Subscription Services of Website. You assume all risks and liabilities of any kind arising in connection with and/or resulting from any Third Party Product or Third Party Site, and we will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services.
You agree to defend, indemnify and hold harmless Sinorbis, and its respective officers, employees, service providers and agents against any claim, suit, demand, loss, liability, damage, action or proceeding damage, (including but not limited to attorneys’ fees) brought by a third party that results or arises from: (a) your use of and access to the Subscription Services and the Website; (b) your breach of any term of this Agreement; (c) your use of Third Party Products and/or Third Party Sites, (d) a claim that the User Content or User Website caused loss or damage to a third party, or (e) your breach of any third party right, including without limitation any copyright, property, or privacy right. This clause will survive the termination of this Agreement and your use of the Subscription Services and the Website.
11. Limitation of Liability
We are not liable for any indirect, punitive, incidental, special, consequential, or exemplary damages, including but not limited to, damages for lost profits, loss of goodwill, use, data, or other intangible losses (even if such damages are foreseeable and whether or not we have been advised of the possibility of these damages), resulting from your use or inability to use the Subscription Services or the Website, or the unavailability of the Subscription Services or Website.
We also deny responsibility and are not liable for any liability or damages to you or others caused by (i) your access to the Subscription Services or Website that is inconsistent with this Agreement, (ii) any unauthorised access of servers or data used in connection with the Subscription Services, (iii) interruption to the Subscription Services, (iv) any errors, inaccuracies, omissions or losses in or to any data provided to us, (v) your User Content or other content provided by you, (vi) the defamatory, illegal or offensive conduct of others, (vii) your use of Example Content or (viii) products, transactions, or activities occurring on or in respect of the User Website.
Our liability to you for any damages arising from or related to this Agreement will not exceed in the aggregate the amount of Fees paid to us by you as at the date of the event that gave rise to your claim for damages. These limitations will apply regardless of the basis upon which your claim is based, including contract, tort (including negligence), strict liability or any other basis.
Privacy. Each party must:
- a) comply with Privacy Laws in relation to any Personal Information that is collected, used or disclosed under this Agreement, and, where a party is not bound to comply with the Privacy Act, that party must comply with the Privacy Act as if it was bound to do so;
- b) use or disclose Personal Information only for the purposes of performing its obligations under this Agreement;
- c) cooperate with the other party to resolve all requests, complaints or inquiries made under a Privacy Law in relation to Personal Information that is collected, used or disclosed under this Agreement; and
- d) not do anything, or omit to do anything, with Personal Information that would cause the other party to be in breach of any Privacy Laws.
Where you provide any Personal Information to us under this Agreement, you warrant that such Personal Information has been collected, and disclosures have been made, in accordance with all Privacy Laws, including by making those persons from whom the Personal Information was collected aware of the matters required by the Privacy Laws in relation to the disclosure to, and use by, us of that Personal Information.
Insurance. We will maintain the following insurance policies for the term of this Agreement and will provide certificates of currency upon your reasonable request: (a) public liability insurance in the amount of AUD$20 million per claim or series of claims; (b) technology professional indemnity in the amount of AUD$2 million in the aggregate, irrespective of the number of claims, and (c) cyber enterprise risk management insurance in the amount of AUD$1 million in the aggregate, irrespective of the number of claims.
Applicable Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of New South Wales, and the parties consent to the exclusive jurisdiction of the courts of New South Wales.
Force majeure. Under no circumstances shall we be held liable for any delay or failure or disruption of the content or the Subscription Services resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, Internet failures, computer, computer viruses, cyber-attacks, telecommunications or any other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, changes of law, orders of domestic or foreign courts or tribunals or non-performance of third parties.
International Use. You agree to comply with all local rules and laws regarding user conduct on the Internet and acceptable content, including, without limitation, all applicable laws regarding obscene and indecent content and communications, and protection of intellectual property.
Severability. If any provisions of this Agreement are held to be invalid or unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
No Waiver. Sinorbis’ failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Sinorbis’ right to subsequently enforce such provisions or any other provisions of this Agreement. No waiver of any provision of this Agreement shall be effective unless in writing.
Precedence. In the event of a conflict between these terms and conditions and:
- a) A Subscription Services Order, the relevant terms of the Subscription Services Order will control, but only as to that Subscription Services Order; and
- b) A Statement of Work, the relevant terms of the Statement of Work will control, but only as to that Statement of Work.
Languages. This Agreement is in English language that prevails over any translations of it to other languages, which could be made by us and provided to you for your convenience. The Subscription Services and Website are designed in English language and its translations into other languages may contain inaccuracies of any kind for which we will not bear any responsibility. We recommend using the English version and resorting to versions in other languages only for reference and at your own risk.
Effective : 12 February 2020