MPGO APP ORGANISATION TERMS AND CONDITIONS
1. INTRODUCTION
1.1 These MPGO APP Organisation Terms and Conditions, together with our Privacy Policy, comprise the terms of a legal agreement between the person listed in the Access Portal (Organisation, you or your) and MPGO Pty Ltd (ACN 680 099 281) (MPGO, we, our or us) (collectively, the agreement).
1.2 By downloading, using, browsing or accessing the MPGO APP, you acknowledge that you have read, understood and accept this agreement and agree to be bound to this agreement. If you do not accept this agreement, you must not access and use the MPGO APP and the Services.
2. MPGO APP
2.1 The MPGO APP is a mobile application that allows enterprises, businesses and organisations to upload, share, publish, display or otherwise transmit data, materials and information (such as photos, video, documents, session summaries, tasks lists, business announcements and staff profiles) for clients or customers to view through the MPGO App (the Services).
2.2 We are a mere communications tools for enterprises, businesses and organisations to communicate with their clients or customers. We do not provide legal, financial, medical or taxation advice or advice of any other kind to enterprises, businesses, organisations, customers or clients. Our role in providing you with access and use of the MPGO APP should be construed strictly in this context only.
2.3 When you create an Account on the MPGO App, you are granted a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence to access and use the MPGO App and Services for the Subscription Term. You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.
3. CHANGES
3.1 We reserve the right to change any provision of this agreement in any way and we may, in our absolute discretion and without notice to you, add, change or remove any functions or features of the MPGO App, the Services, fees charged by us under this agreement, or any Third Party Products and Services offered on, or via, the MPGO App.
3.2 If we provide you with notice of changes to this agreement, we shall do so by posting details of these changes on the MPGO App, our Website or emailing you using the email address listed in the Access Portal.
4. SUBSCRIPTION TERM
4.1 This agreement commences on the date you create an Account with us on, or via, the MPGO App (Commencement Date) and shall continue until terminated in accordance with clause 16 (Subscription Term), unless you terminate the agreement during the Trial Period in accordance with clause 4.2.
4.2 If the Organisation does not wish to continue to access and use the MPGO App following the expiry of the Trial Period, you must terminate the agreement by emailing us at info@mpgo.com.au at least seven days prior to the expiry of the Trial Period. If you do not terminate the agreement at least seven days prior to the expiry of the Trial Period, the agreement will automatically continue at the end of the Trial Period for the Subscription Term.
5. REGISTRATION AND ACCESS
5.1 To access and use the MPGO App and the Services, you must:
(a) download the MPGO App from the Apple Store;
(b) register with us and setup an account (Account). Your Account will be operated by a username which will be your authorised representative’s email address (Username) and password (Password). You can change your Password any time by you accessing the [profile page on MPGO App;
(c) be over 18 years of age, and legally able to enter into contractual relations. If you are under the age of 18 years you must immediately cease and refrain from accessing or using the Account and/or accessing and using the MPGO App and the Services. Your continued use of the Account constitutes an acknowledgement by you that you are over 18 years of age; and
(d) provide only accurate, complete registration information and Personal Information (including your authorised representative’s full name and email address, business name and website address) and you will update that information if it changes. All Personal Information as well as the information you provide to register, is subject to our Privacy Policy.
5.2 You are responsible for:
(a) maintaining control over, and the confidentiality of, your Account, Username and Password;
(b) keeping your Account registration information current, complete, accurate, and truthful. You will create only one account on the MPGO App and you must not impersonate another account holder or provide false identity information to gain access to or use the MPGO App and the Services;
(c) notifying us in writing of any unauthorised access to, or use of, your Account, Username or Password; and
(d) for all activities or transactions that occur using your Account. We are not liable for any Loss arising out of, or in connection with, any unauthorised access or use of, your Account, Username and Password.
5.3 We have the right to suspend or terminate your Account or your access to or use of all or any part of the MPGO App and the Services, at any time, if, in our opinion, you misuse MPGO App and/or Services or you fail to comply with any of the provisions of this agreement.
6. YOUR OBLIGATION
6.1 When accessing and using the MPGO App and the Services during the Subscription Term, you must at all times:
(a) obtain and maintain all hardware, software and communications equipment necessary to access, and use the MPGO App;
(b) comply with all Relevant Laws with respect to your obligations under this agreement; and
(c) comply with all of our directions, policies and guidelines, advised in writing or as displayed on the MPGO App or our Website from time to time.
6.2 We will not be liable to you or anyone else if, for any reason, the MPGO App is unavailable at any time or for any period. From time to time, we may suspend or restrict access to all, or some parts of the MPGO App. You are responsible for making all arrangements necessary for you to access and use the MPGO App. You are also responsible for ensuring that all your Personnel or other persons who access the MPGO App on your behalf (such as through your internet connection, mobile phone, computer or any other device) are aware of this agreement, and that they comply with them.
6.3 The Organisation must not:
(a) introduce, access, store, distribute or transmit any viruses, worm, trojan or other malicious code into the MPGO App;
(b) violate any MPGO IP or any third party Intellectual Property Rights;
(c) copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the MPGO App, or any other third party software that you may access or use through the MPGO App, in any way;
(d) access all or any part of the MPGO App in order to build a product, service or code which competes or reproduces the MPGO App (in full or part);
(e) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the MPGO App in any way, or otherwise learn the source code or algorithms underlying the MPGO App;
(f) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the MPGO App and the Services available to any third party who is not an Authorised User;
(g) attempt to obtain, or assist third parties in obtaining, access to the Services and/or the MPGO App;
(h) publish, post or upload User Data to the MPGO App intended to harm someone in any way or that is libellous, defamatory, obscene, vulgar, offensive, pornographic, indecent, racist, harassing, threatening, seditious, violent, blasphemous, invasive of privacy or publicity rights, abusive, inflammatory, is misleading or deceptive or discriminatory or otherwise objectionable;
(i) share or disclose the Personal Information and Sensitive Information of an Authorised User provided to you through MPGO App to a third party without the Authorised User’s express written consent, and you must not use the Authorised User’s Personal Information and Sensitive Information for any purpose (other than for the purposes stipulated in this agreement or any purposes permitted, authorised or approved by your Authorised Users); and
(j) engage in any activity or conduct that is in breach of any Relevant Laws.
7. USER DATA
7.1 When you create your Account and access and use the MPGO App and the Services, you will be required to provide User Data to MPGO. You or your Authorised Users will retain ownership of the User Data uploaded or published by you (or your Authorised Users) on the MPGO App. To the maximum extent permitted by Relevant Laws, we do not warrant that any User Data displayed on the MPGO App by you or your Authorised Users (or any Content or Third Party Products or Services displayed or published on the MPGO App by a Third Party Provider) is accurate, complete, reliable, current or error-free, nor do we make any warranty about the standard or quality of any Content, User Data or Third Party Products and Services displayed on, or via, the MPGO App. You and your Authorised Users (and not MPGO) are solely responsible for the completeness, accuracy, reliability, legality and quality of any User Data published by you (or your Authorised Users) on, or via, the MPGO App.
7.2 You agree not to submit, publish or input User Data (including Personal Information and Sensitive Information) or any other information onto the MPGO App, unless you have the right to do so (and you will ensure that your Personnel and Authorised Users comply with this obligation). We are not responsible for monitoring or censoring the User Data published by you, by your Personnel or your Authorised Users on, or via, the MPGO App; however, we reserve our rights to remove the User Data in response to a complaint from an Authorised User or if we consider that such User Data does not comply with this agreement.
7.3 You grant MPGO a worldwide, non-revocable, non-exclusive, royalty-free and perpetual licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy, your User Data (including your registration information and other statistical or behavioural data derived from use of the MPGO App and the Services) for the purpose of:
(a) enabling MPGO to provide the MPGO App and the Services and otherwise perform our obligations and exercising our rights under this agreement;
(b) informing the user of other products or services that MPGO may offer from time to time or in relation to Third Party Products and Services;
(c) complying with a legal requirement, such as a law, regulation, court order, subpoena, warrant, legal proceedings or in response to a law enforcement agency request; and
(d) identifying usage patterns, trends, and other statistical or behavioural data derived from use of the MPGO App, in aggregated anonymized form, for the purposes of providing, operating, maintaining, or improving the MPGO App and for marketing purposes as further described in our Privacy Policy; and
(e) sharing User Data with an Affiliate or other third party (with whom we may contract or be affiliated with from time to time) for the purposes of performing or improving the MPGO App and the Services.
7.4 In the event of any Loss to User Data, your sole and exclusive remedy shall be for MPGO to use reasonable endeavours to restore the User Data, that is lost or damaged, from the latest back-up of User Content maintained by MPGO in accordance with our standard archiving and backup procedures.
7.5 MPGO will not be responsible for any Loss, destruction, alteration, corruption or disclosure of User Data caused by us, your or your Personnel’s acts or omissions or the acts of omissions of your Authorised Users or other users of the MPGO App or any third party.
7.6 You agree to make your own enquiries to verify the information, data, Content and User Data displayed on, or via, the MPGO App (including Third Party Products and Services) and to assess the suitability of any information, data, User Data or Content before relying upon such information, data, User Data or Content. If you choose to rely upon any information, data, User Data or Content displayed or published on, or via, the MPGO App and/or the Services (including Third Party Products and Services) you do so at your own risk. We make no representations or warranties that use of the Content, User Data and Third Party Products and Services will not infringe any third party’s Intellectual Property Rights.
8. SUBSCRIPTION FEES
8.1 Except for during the Trial Period, to access and use the MPGO App and the Services, you must pay us the Subscription Fees and other amounts owing to us under this agreement during the Subscription Term. The Subscription Fees are payable in advance (on a monthly basis) as specified on the MPGO App.
8.2 During the Trial Period, you will not be required to pay the Subscription Fees to access and use the MPGO App and the Services.
8.3 The Subscription Fees will vary depending on the number of participants within the Organisation at the time of signing onto the free trial or based on the number of users determined by the Organisation. The Subscription Plan you agree to purchase as part of your initial subscription to access and use the MPGO App and Services will vary depending on the number of active users using the MPGO App Services. If the number of active users exceeds your current Subscription Plan, you will automatically upgrade to the next Subscription Plan (and pay the corresponding Subscription Fee for the upgraded Subscription Plan) at the beginning of the next billing cycle. Subscription Plans and the Subscription Fees for each Subscription Plan is displayed on the Website.
8.4 All Subscription Fees and any other amounts owing to under this agreement are payable in Australian Dollars and are exclusive of goods and services taxes which are payable in addition. To the maximum extent permitted by Relevant Laws and unless otherwise stipulated in this agreement, the Subscription Fees are non-refundable.
8.5 Payment of the Subscription Fees are made by means of direct debit in accordance with the Direct Debit Authority in clause 9.
8.6 When setting up your Account, you will be offered payment options to pay the Subscription Fees. We use Third Party Payment Processors to process payments made to us. When making payment to MPGO of the Subscription Fees, you agree to provide our Third Party Payment Processors with accurate and complete billing information for the purpose of processing your payment. We recommend that you refer to the Third Party Payment Processor terms and conditions and privacy policy prior to using a Third Party Payment Processor to pay the Subscription Fees to us. You use the Third Party Payment Processors at your own risk.
8.7 We may, at our absolute discretion and without notice to you, change the payment methods that can be used to access and use the MPGO App and the Services at any time.
8.8 We may increase the Subscription Fees for each Subscription Plan or charge you additional fees to access premium or new functions or features of the MPGO App at any time on 21 days’ written notice to you or by posting the changes on the MPGO App. If you do not agree to these fee increases, you may terminate this agreement by emailing us at info@mpgo.com.au no later than 21 days after the date you received written notice of the fee increases.
9. DIRECT DEBIT AUTHORITY
9.1 By accepting this agreement, you authorise us to arrange for the Subscription Fees or any other amount owing to MPGO under this agreement to be debited from your credit card (as applicable) as and when such fees are due and payable under this agreement (Direct Debit Authority).
9.2 You may cancel or change your Direct Debit Authority at any time via email to info@mpgo.com.au. If you cancel Direct Debit Authority, MPGO may not be able to provide you with access to, and use of, the features and functions of the MPGO APP and the Services, unless you provide MPGO with new Direct Debit Authority.
9.3 It is your responsibility to ensure that there are sufficient funds available on your credit card to allow each debit to be made in accordance with the Direct Debit Authority. If there are insufficient funds:
(a) the transaction will be rejected and the payment will be treated as if it were never made;
(b) your financial institution may charge you a fee and/or interest; and
(c) you must arrange for the debit to be made by another financial institution or arrange for sufficient funds to be available by an agreed time so that our Third Party Payment Processors can process the debit.
9.4 It is your responsibility to check your credit card or bank account statement (as applicable) to verify that the amounts debited from your credit card or bank account are correct.
9.5 If you believe that an error has been made in debiting your credit card, you should update your credit card details by as soon as possible.
9.6 If you cancel the Direct Debit Authority, your right to access and use the MPGO App and the Services will immediately end. You may re-active your Account within 12 months after terminating this agreement or you will have to create a new Account if more than 12 months has passed since you last used the MPGO App and the Services. You will need to pay the Subscription Fees prevailing at the time you re-active your Account or create a new Account.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 You acknowledge that we, or our licensors, are the owner of the MPGO App and the Services (or any Intellectual Property Rights contained therein) including any information, Content or technology that may be provided to, or accessed by, you in connection with your use of the Services and the MPGO App (including any modifications, enhancements of the foregoing (collectively, the MPGO IP). Accessing and using the MPGO App does not give you (or anyone else) ownership of, or any right, title or interest in the MPGO IP.
10.2 Ownership of any User Data will vest in the creator of that User Data, but excluding MPGO IP.
11. OUR OBLIGATIONS
11.1 Subject to your compliance with the terms of this agreement, we will use commercially reasonable endeavours to provide you with access to and use of the MPGO App and the Services.
11.2 In the event that we fail to provide you with access and use of the MPGO App accordance with clause 11.1, we will use reasonable endeavours to correct any such non-conformance or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 11.1.
12. NO WARRANTIES
12.1 To the maximum extent permitted by Relevant Laws, we exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the MPGO App and the Services.
12.2 Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.
12.3 You acknowledge, and agree that to the maximum extent permitted by Relevant Laws, we make no representation, warranty or guarantee in relation to the availability, continuity, reliability, accuracy, currency or security of the MPGO App and the Services (or any Content, User Data or Third Party Products and Services provided in connection with the MPGO App) and we will not be liable to your, your Personnel or Authorised Users if the MPGO App and/or the Services is, or becomes unavailable for any reason, including directly, or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious, wilful acts or omissions of third parties (including Third Party Providers) or other users;
(c) maintenance (scheduled or unscheduled) carried out by us or any Third Party Provider, including in respect of any of the systems or network used in connection with the provision of the MPGO App;
(d) services provided by third parties (including internet service providers) ceasing or becoming unavailable; or
(e) a Force Majeure Event.
12.4 MPGO App shall use commercially reasonable endeavours to make the MPGO App and the Services available 24 hours a day, 7 days a week, except for:
(a) planned maintenance carried out at times advised in advance by MPGO; and
(b) unscheduled maintenance which may need to be performed from time to time. MPGO will, where practicable, use reasonable endeavours to conduct any unscheduled maintenance outside of Business Hours.
13. LIMITATION OF LIABILITY
13.1 To the maximum extent permitted by Relevant Laws, we will not be liable to you, your Personnel, your Authorised Users or any third party for:
(a) any Claims or Losses (including Consequential Loss); or
(b) Loss of, or damage to, any property belonging to the Organisation, your Personnel or your Authorised Users or any personal injury, illness or death to your Personnel or Authorised Users,
arising out of, relating or connected to, the provision or use of the MPGO App and the Services (including any Content, User Data and Third Party Products and Services provided in connection with the MPGO App and the Services) and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.
13.2 All risk in using the MPGO App and Services passes to you on creating an Account, or otherwise using the MPGO App (whichever is earlier). We do not control or direct what User Data is uploaded, shared, published, posted or otherwise transmitted by you, your Personnel or Authorised Users on, or via, the MPGO App, and we are not responsible to you, your Personnel, your Authorised Users or anyone else for any actions, activities, conduct or transactions (whether online or offline) that occur as a result of, or in connection with your access to, and use of, the MPGO App and the Services.
13.3 To maximum extent permitted by Relevant Laws, under no circumstances will our aggregate liability to you or anyone else, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the Subscription Fees paid to us by you in the one month immediately preceding the date on which the Claim giving rise to such liability arose.
13.4 You agree to defend, indemnify and hold MPGO, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims and Losses (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of:
(a) the access to, and use of, or reliance on, the MPGO App and the Services (including any Content, User Data or any Third Products and Services provided in connection with the MPGO App and the Services) by you, your Personnel, Authorised Users or any third party;
(b) any breach of any third party’s Intellectual Property Rights, privacy rights or other rights caused by you or your Personnel; or
(c) any breach by you or your Personnel of this agreement.
14. THIRD PARTY PRODUCTS AND SERVICES
14.1 You acknowledge that the MPGO App and the Services may require you to use or access Third Party Products and Services and that you do so solely at your own risk.
14.2 We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such Third Party Products and Services, or any transactions completed, and any contract entered into by you, with the owner, licensor or operator of such Third Party Products and Services.
14.3 We recommend that you refer to the Third Party Provider’s terms and conditions and privacy policy prior to using the relevant Third Party Products and Services.
14.4 MPGO does not endorse, sponsor or approve any Third Party Products and Services used in conjunction with the MPGO App and the Services. It your sole responsibility to determine that specific products or services, meet your business and are suitable for the purposes for which they are used.
14.5 Any rights you may have to access Third Party Products and Services shall be limited to:
(a) the extent of MPGO’s ability to pass on such rights to you; or
(b) the relevant Third Party Provider’s licensor terms.
15. PRIVACY
All Personal Information you provide to open an Account and any User Data (including Personal Information and Sensitive Information) you upload, share, or publish on, or via, the MPGO App, is subject to our Privacy Policy, which is incorporated into this agreement. You warrant that, in relation to any Personal Information and Sensitive Information comprising User Data or any other information disclosed to us by you, your Personnel or your Authorised Users on, or via, the MPGO App:
(a) it has been collected in accordance with Privacy Laws;
(b) you have the authority to upload, post, publish or otherwise transmit such information on, or via, the MPGO App; and
(c) you have obtained the informed consent of the individuals who are the subject of such Personal Information in order for us to use, disclose, store, transfer, process or handle it.
16. TERMINATION
16.1 Either party may terminate this agreement any time by giving the other party at least 14 days’ written notice. In this case, you will not be entitled to a pro rata refund of the Subscription Fees for the unused portion of the Subscription Term.
16.2 You agree that MPGO may, at any time and at our sole discretion, with or without cause or any notice to you, terminate, suspend or block your access to (either temporarily or permanently):
(a) your Account; and/or
(b) the MPGO App and the Services; and/or
(c) any social media pages linked to our business or the MPGO App; and/or
(d) any other products and services offered on, or via the MPGO App (including Third Party Products and Services).
16.3 Cause for such suspension or termination may include, but are not be limited to:
(a) any serious or repeated breaches or violations of this agreement, our policies and guidelines (including our Privacy Policy) and any other agreements entered into between the parties;
(b) serious or repeated breaches or violations of another person’s Intellectual Property Rights or privacy rights;
(c) you fail to pay the Subscription Fees;
(d) your activities, conduct or transactions on, or, via, the MPGO App, which brings, or has the capacity to bring MPGO and/or the MPGO App into disrepute;
(e) any alteration, modification, manipulation or disclosure of any User Data without the consent of the owner of the Use Data; and
(f) requests by law enforcement or other government agencies.
16.4 You agree that all such suspensions or terminations shall be made at our sole discretion and that we shall not be liable to you, your Personnel or your Authorised Users or any third party for any such suspension or termination.
17. EFFECT OF TERMINATION
17.1 Upon termination of this agreement for any reason:
(a) MPGO will (without liability to you, your Personnel or any Authorised User) destroy or otherwise permanently dispose of all User Data (including Personal Information and Sensitive Information) in our possession within 12 months after the effective date of termination of this agreement, unless we receive a written request from you to delete the User Data in a short time frame, in which case, we will delete your User Data within 30days of receiving your written request. However, MPGO will be required to retain Personal Information (including basic registration information) in accordance with documentation retention and destruction laws;
(b) all licences to use the Services and rights of access to the MPGO App granted under this agreement will immediately terminate; and
(c) we will delete or de-activate your Account.
18. FORCE MAJEURE EVENT
We will have no liability to you or anyone else under this agreement if we are prevented from or delayed in performing our obligations under this agreement or otherwise, or are otherwise prevented from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control. Such events include strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, acts of God, natural disasters, epidemics, pandemics, mandatory government shutdowns/lockdowns sabotage, war, riot, civil commotion, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemics, epidemics, mandatory government lock-downs or default of hosting or data centre providers or other suppliers or sub-contractors, shortage of suppliers, equipment and materials, (Force Majeure Event).
19. UPDATES AND VARIATIONS
19.1 Without notice to you, we may, at our absolute discretion, from time to time:
(a) change, add or delete the functions, features, performance, or other characteristics of the MPGO App; or
(b) apply or install updates to, or new versions of, the MPGO App.
19.2 You acknowledge that the Content on the MPGO App is subject to change at any time and may be out of date at any given time. We are under no obligation to:
(b) notify you of any changes to the Content or the MPGO App unless required by law to do so.
19.3 Some of the provisions contained in this agreement may also be superseded by provisions or notices published elsewhere on the MPGO App. Any changes are effective immediately upon posting to the MPGO App. Your continued use of the MPGO App thereafter constitutes your acceptance of all such changes to the agreement.
19.4 Please read this agreement before using the MPGO App as the agreement may have changed since the last time you accessed and used the MPGO App. If you do not agree to any change, then you must immediately stop using the MPGO App.
20. SUPPORT SERVICES
20.1 MPGO may, at our absolute discretion, provide you with customer support services during Business Hours in accordance with the MPGO’s standard support services and maintenance policy (as amended from time to time).
20.2 If you require customer support services or you are having difficulties accessing and using the MPGO App and the Services, you may contact us by email at info@mpgo.com.au.
21. DISPUTE RESOLUTION
21.1 Any party claiming a dispute exists under the agreement (excluding a dispute between you and an Authorised User) must notify the other party in writing of the nature of the dispute (Dispute Notice), except where urgent interlocutory relief is being sought.
21.2 The parties must in good faith attempt to resolve any dispute between them.
21.3 If the dispute cannot be resolved within 30 days of receipt of a Dispute Notice, either party may commence legal proceedings in relation to the dispute.
21.4 Each party must continue to perform its obligations under this agreement notwithstanding the existence of any unresolved dispute.
21.5 MPGO does not interference in any dispute between you and the Authorised User, which must be resolved between the parties themselves.
22. NOTICES
22.1 By accessing and using the MPGO APP, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the MPGO App or our Website.
22.2 You acknowledge that all contracts, notices, information and other communication (notices) we may provide electronically comply with any legal requirements that such documents be in writing.
22.3 Notice will be deemed received and properly served immediately when posted on the MPGO App or Website or 24 hours after an email is sent to you. As proof of service, it is sufficient that the email was sent to the email address specified by you in the Access Portal.
23. GENERAL
23.1 A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
23.2 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
23.3 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
23.4 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangements, understandings or agreements between them relating to the subject matter they cover.
23.5 You agree to not, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this agreement (without first seeking our written consent), except that we may assign, sell or transfer our rights or obligations under this agreement to an Affiliates or bona fide third party purchaser of our business.
23.6 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
23.7 Provisions of this agreement which are either expressed to survive its termination, or from their nature or context it is contemplated that they are to survive, will remain in full force and effect notwithstanding such termination. Without limitation, the parties agree that clauses 7.3, 7.4, 8, 10, 12, 13, 14, 16, 17, 18, 21, 22 and 23 will survive the termination of this agreement. Further, any indemnity or privacy obligations under this agreement is independent and survives termination of this agreement.
23.8 The laws of the state of New South Wales, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the courts of New South Wales, Australia.
23.9 DEFINITIONS
In this agreement, the following words shall have the following meanings:
(b) Account has the meaning in clause 5.1(b).
(c) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.
(d) Authorised Users means the clients or customers of the Organisation who have been granted a licence to access and use the MPGO App and the Services by the Organisation, and who have agreed to abide by the Authorised User Terms and Conditions.
(e) Authorised User Terms and Conditions means the authorised users terms and conditions between MPGO and an Authorised User.
(f) Business Days means each day excluding Saturdays, Sundays and public holidays in New South Wales, Australia.
(g) Business Hours means 9:00am to 5:00pm on Business Days.
(h) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
(i) Commencement Date has the meaning in clause 4.1.
(j) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties on the Commencement Date as a likely result of breach of the agreement: (i) direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense; (ii) loss of revenue, profit, income, bargain, opportunity (including marketing or advertising opportunity), use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data; (iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or (iv) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.
(k) Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the MPGO App.
(l) Direct Debit Authority has the meaning in clause 9.
(m) Organisation, you or your has the meaning in clause 1.1, and where the context permits, includes your Personnel and Affiliates.
(n) Force Majeure Event has the meaning in clause 18.
(o) Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.
(p) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including Consequential Loss.
(q) MPGO, we, our or us means MPGO Pty Ltd (ACN 680 099 281), and where the context permits, includes our Personnel and Affiliates.
(r) MPGO App means the software made available through the mobile application, and used by MPGO to provide you with Services, including the application and database software for the Services, the system and server software used to provide the Services, the computer hardware on which that application, database, system and server software is installed, and all Intellectual Property Rights contained therein, provided or otherwise made available by us on, or via, the MPGO App.
(s) MPGO IP has the meaning given to it by clause 10.1.
(t) Password has the meaning in clause 5.1(b).
(u) Personnel means any person acting for or on behalf of a party and includes any director, officer, or employee, of the party.
(v) Personal Information means data by which a person may be personally identified, including a person’s name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under any applicable Privacy Laws.
(w) Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, and any other legislation, codes and policies relating to the handling of Personal Information applicable to the jurisdiction in which the user is located.
(x) Privacy Policy means our privacy policy available at www.mpgo.com.au or any other internet site notified by us from time to time, which is incorporated into this agreement.
(y) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy laws, anywhere in the world.
(z) Sensitive Information has the same meaning that it has under Privacy Laws, namely information or opinions about your health, political affiliations, sexual preferences, religious beliefs, racial or ethnic origin, criminal history or other such private information.
(aa) Services has the meaning in clause 2.1.
(bb) Subscription Fees means the fees payable by the Organisation to access and use the MPGO App and the Services as further described on the MPGO App or our Website.
(cc) Subscription Plan means the subscription plan that the Organisation purchases to access and use the MPGO App and the Services based on the number of Authorised Users the Organisation permits to access and use the MPGO App and the Services.
(dd) Subscription Term has the meaning in clause 4.1.
(a) Third Party Payment Processor means Stripe, WooCommerce and any other a third party payment processor permitted by MPGO from time to time.
(ee) Third Party Products and Services means software, products, services or content (including all Intellectual Property Rights contained therein) that: (i) are provided by Third Party Providers; (ii) interoperate with the MPGO App; and/or (iii) may be identified as third party products or services.
(ff) Third Party Providers means a supplier of Third Party Products and Services.
(gg) Trial Period means 30 consecutive days from the date you register and setup your Account.
(hh) User Data means all data, content, material and information (including Personal Information and Sensitive Information): (i) uploaded to or stored on the MPGO App by you (or your Personnel) or the Authorised User; (ii) transmitted by the MPGO App at your (or your Personnel’s) or the Authorised User’s instigation; (iii) supplied by you (or your Personnel) or the Authorised User, for uploading to, transmission by, or storage on, the MPGO App; or (iv) generated by the MPGO App as a result of the use of the Services by you (or your Personnel) or the Authorised User, but excluding MPGO IP.
(ii) Username has the meaning in clause 5.1(b).
(jj) Website means our website located at www.mpgo.com.au and social media linked pages or any other internet site notified by us from time to time.
Yes, I have read, understood and accept this agreement.
