Please read these Terms and Conditions (T&Cs) carefully as they govern your access to, and use of, any services provided by NowInfinity Pty Ltd ACN 154 927 376 (we, us and our) to you, including those subscribed to via our website or in a subscription order form (the Services). By using the Services, you agree to be bound by these T&Cs.
INFORMATION ALERT
Liability: Our liability is limited under the T&Cs – see clauses 9 and 10 in particular.
Data: We may collect, use and disclose your data under the T&Cs – see clause 7 and our Privacy Policy for details.
Referral fees: If you use any third-party electronic signature solution that we make available for use in conjunction with our services, and you choose to purchase a higher-level or additional subscription directly with that third party, we may receive a referral fee as a result. If you use our legal advice service, through which you may seek and obtain legal advice from a legal services provider, we may charge and retain a margin on those services.
If you have any questions, please contact support@nowinfinity.com.au.
1 Services generally
(a)We offer our Services on a term-based subscription basis (a Subscription), or for some Services on an on-demand basis with no committed term (On-Demand Access).
(b) We will provide your officers, employees and individuals engaged on a contract or labour hire basis (Staff) with access to the Services, subject to these T&Cs.
(c) We may provide you with materials as part of the Services (Materials). You must not use the Services or any Materials in any way whatsoever except as permitted under these T&Cs.
(d) If the Services include the ability to download:
(i) templates and associated Materials that have been prepared for us by third party legal practitioners (Legal Templates); or
(ii) other templates and associated Materials (Non-Legal Templates),
(together, Templates) you may provide those Templates to your clients to whom you provide accounting, financial planning or other services that are substantially more than just the provision of the Templates (Clients) but only as permitted under these T&Cs.
(e) A username and password are required to access some of the Services (Login Details). Where we provide you with Login Details, those Login Details may only be used by your Staff. You must not reveal those Login Details to any other person. You are responsible for maintaining the security of your Login Details and we will not be liable for any loss or damage from a failure to do so.
(f) You are wholly responsible for the access to, and use of, the Services and any Materials by your Staff and Clients. You must at all times ensure that your Staff and Clients do not access or use the Services or any Materials other than as permitted under these T&Cs. You must ensure that your Staff comply with all of your obligations under these T&Cs, and you will be fully liable for their acts and omissions as if they were your own.
(g) You must comply with all applicable laws in relation to your use of the Services and the Materials.
(h) You must not reverse engineer or decompile any part of the Services unless permitted by law, or remove, alter or obscure any disclaimers or identification, copyright, trademark or other proprietary notices, labels or marks on any Materials.
(i) We reserve the right to, at any time, offer new services and/or features, or improve, modify or discontinue any Services or any part of them temporarily or permanently (a Change). Where you have an existing Subscription and we believe that a Change may be materially detrimental to you, we will provide you with reasonable written notice of up to 30 days of that Change. Where a Change is materially detrimental to you, you may, no later than 30 days after the Change comes into effect, terminate your Subscription by giving us notice in writing in accordance with clause 21 of these T&Cs, in which case your Subscription will terminate 30 days after your termination notice is received and we will refund you any Fees (as defined in clause 5 of these T&Cs) paid in advance for the period beyond the date of termination. Where you do not have an existing Subscription, we may make a Change at any time without notice.
2 e-Signature Solution
We may make available a third-party electronic signature solution for use in conjunction with the Services (an e-Signature Solution). The following paragraphs apply to your access and use of an e-Signature Solution depending on the licensing model it is provided under:
(a) where we offer, and you have elected to use, a “bring your own licence” option for an e-Signature Solution, you are responsible for procuring any licences necessary to use the e-Signature Solution. The contractual relationship for your use of the e-Signature Solution is solely between you and the provider of the e-Signature Solution, and you must comply with any terms applicable to the access and use of the e-Signature Solution as agreed with that provider. Any fees for such access and use will be invoiced by that provider, and not us; or
(b) in all other cases:
(i) while the e-Signature Solution is provided under, and subject to, these T&Cs, you must still comply with, where the e-Signature Solution is:
(A) DocuSign, the terms and conditions available at: www.docusign.com/company/terms-and-conditions/reseller; or
(B) PleaseSign, the terms and conditions available at: pleasesign.com.au/acceptable-use-policy,
as amended from time to time or such alternative terms which the provider of the e-Signature Solution may require us to provide to you. Any such alternative terms will apply 30 days from the date that we notify you of those terms;
(ii) if you wish to make any claim that the e-Signature Solution fails to perform as promised by either us or its provider, you agree to submit that claim to us and permit us to manage the claim with the provider of the e-Signature Solution;
(iii) your use of the e-Signature Solution is only for a limited-capability, limited-use of the e-Signature Solution solely in conjunction with the Services. Unless you otherwise agree with the provider of the e-Signature Solution, you may not use the e-Signature Solution by itself or other than in conjunction with the Services. You may only use the e-Signature Solution for so long as we offer it, and you have no on-going term-based right during which we must provide the e-Signature Solution;
(iv) we may provide reasonable information about you and your use of the e-Signature Solution to the provider of that solution, including where you inform us that you wish to upgrade your account type for the e-Signature Solution or purchase other products and services of that provider. The provider of the e-Signature Solution may use this information to provide notices to you as it deems reasonably necessary other than for marketing purposes. Any use or disclosure of such information will be in accordance with that provider’s terms and conditions and privacy policy. Where agreed with you, the provider of the e-Signature Solution may from time to time provide support and other professional services to you in relation to the e-Signature Solution; and
(v) we may refuse to provide or cease providing the e-Signature Solution to you where required to do so under our agreement with the provider of that e-Signature Solution, including where the provider reasonably objects to such use (for example, if it reasonably suspects that you are engaging in activities that violate the law).
3 Deed Stamping Service
We may offer a service for the lodgement of duty returns in relation to trust deeds and the payment of tax imposed for lodgement on your behalf in New South Wales (NSW) or Victoria (Deed Stamping Service). The following paragraphs apply to your access to and use of the Deed Stamping Service:
(a) to provide the Deed Stamping Service, we will input information provided by you into the online system of the relevant revenue office (Online System) (in the case of a NSW transaction, Revenue NSW or in the case of a Victorian transaction, the Victorian State Revenue Office);
(b) you may access and use the Deed Stamping Service only where you are the relevant taxpayer or an agent of the relevant taxpayer authorised to do so (you or that taxpayer, as applicable, being the Relevant Taxpayer). Each time you access or use the Deed Stamping Service on another person’s behalf, you warrant that you are authorised by that person to:
(i) access and disclose to us and the relevant revenue office all information, documents, records, consents and supporting evidence required to submit the relevant transaction to an Online System (including any that may be required to evidence eligibility for any duties concession) (Required Information);
(ii) carry out the relevant transaction and undertake all associated functions in connection with the transaction, including accessing and using the Deed Stamping Service on that person’s behalf; and
(iii) if your authorisation is based on you holding a certain position or accreditation, you currently hold that position or accreditation;
(c) by providing the Deed Stamping Service, we will be acting:
(i) in the case of NSW, as an agent to the Relevant Taxpayer under section 37 of the Taxation Administration Act 1996 (NSW); or
(ii) in the case of Victoria, as an agent to the Relevant Taxpayer under section 39 of the Taxation Administration Act 1997 (Vic).
You authorise us to act as the agent of the Relevant Taxpayer in dealing with the relevant revenue office in respect of each transaction for which you use the Deed Stamping Service;
(d) you agree to promptly provide us with all Required Information and all assistance reasonably required by us to perform the Deed Stamping Service and, if it is not you, the instructions of the Relevant Taxpayer. You must promptly comply with any verification of identity requirements requested by us;
(e) you must ensure that all information (including all information contained in any Required Information) provided by you in connection with the Deed Stamping Service is complete, correct and not misleading (including that it does not seek to fraudulently reduce a duty assessment), and that each other party to the transaction (if any) has agreed that the information is complete, correct and not misleading. You acknowledge that it is an offence to provide false or misleading information to a revenue office. We will not be responsible for any cost, loss, liability or penalty incurred by you or (where it is not you) the Relevant Taxpayer in connection with provision of any false or misleading information;
(f) you will be required to pay any tax payable in respect of a transaction for which you use the Deed Stamping Service, in addition to the Fees payable under clause 5, and must provide us with payment for the tax payable in respect of each such transaction, prior to our submission of such transaction to an Online System. We will not submit a transaction to an Online System prior to receiving payment from you. If a greater amount of duty is assessed as being payable by the relevant revenue office than you have paid to us, you must promptly pay us an additional amount needed to reflect that duty, unless you choose to attempt to cancel the lodgement in which case paragraphs (h) and (k) will apply. Without limiting the foregoing, you will be liable to pay any interest that accrues in respect of a tax liability caused by your failure to make a payment by a due date;
(g) submitting information in respect of a transaction to an Online System will cause the Relevant Taxpayer to incur a tax liability. Nothing in these T&Cs and no act or omission by us will, in any way, affect or limit the Relevant Taxpayer’s obligation to pay any tax liability incurred by that taxpayer, or, transfer any tax liability to us;
(h) once we submit information provided by you to an Online System, that information may not be able to be modified or cancelled and the Relevant Taxpayer will be liable for any tax liability which is incurred. We will not be liable for any tax liability, charges or other damages or loss arising in connection with the provision of any incorrect information by you;
(i) submission of a transaction to Online System for lodgement does not guarantee that you will successfully obtain the requested lodgement and we do not guarantee that you will successfully obtain any requested lodgement. A transaction may need to be manually reviewed by the relevant revenue office and this may delay the time for lodgement of a transaction or result in the submission being unsuccessful;
(j) we may refuse to provide, suspend or cease providing the Deed Stamping Service to you at any time, including if we are required to do so under our agreement with the relevant revenue office. Despite clause 18, we may also vary these T&Cs as they apply to the Deed Stamping Services or the Fees applicable to the Deed Stamping Services at any time to reflect any requirements or fees imposed on us by a revenue office, by giving you notice. Such variations will, however, only apply to any new transactions for which you use the Deed Stamping Services after the date of our notice;
(k)if a transaction is unsuccessful (including because we refuse, suspend or cease providing the Deed Stamping Services), we will refund you:
(i) any tax you have already paid to us for that transaction that we have not already submitted to the relevant revenue office or which is refunded to us by the relevant revenue office, less any fees imposed by the relevant revenue office in connection with the lodgement; and
(ii) if our error caused the transaction to be unsuccessful, any Fees paid in respect of the transaction. In all other cases, the Fees for the transaction will remain payable;
(l) you must keep records of all information held by you in connection with each transaction for which you use the Deed Stamping Service, including all Required Information, documents including all original documents such as endorsed instruments and duties statements, all records and supporting evidence and, if you are acting on behalf of the Relevant Taxpayer, the instructions of that taxpayer (Records) for not less than 5 years after a transaction has been finalised. Records may be kept electronically. You must promptly provide us with copies of any Records if requested by us; and
(m) without limiting clause 7, your attention is drawn to the fact that the revenue offices may use and disclose personal information that is disclosed to them in accordance with their respective privacy policies, including that they may publish certain personal information in a publicly available electronic register, and disclose personal information to third parties such as the Australian Taxation Office, other state and territory revenue offices and law enforcement agencies.
4 Term and termination
(a) Where you take out a Subscription, your Subscription will be for a period of twelve (12) months or such other period agreed by the parties in writing commencing on:
(i) where you Subscribe via our website, the date that you complete the subscription process on our website; or
(ii) where you Subscribe via a subscription order form, the commencement date specified in that subscription order form, or if no such date is specified then the date that both parties execute the subscription order form,
(Initial Term).
(b) Upon the expiration of the Initial Term, your Subscription will automatically extend for successive terms of twelve (12) months (Renewal Term), provided that, either party may terminate the Subscription at any time after expiry of the Initial Term by giving not less than 30 days’ notice in writing to the other in accordance with clause 21 of these T&Cs.
(i) If you terminate a Bundled Subscription, Corporate Messenger, Trust Register or Super Comply subscription pursuant to clause 4(b), you must pay all Fees relating to the Services provided by us prior to the date of termination.
(ii) If you terminate a Document Pack and Document Plan subscription pursuant to clause 4(b), you must pay all Fees which you would have been payable had the Subscription continue in effect for the remainder of the Initial Term or the then current Renewal Term (as applicable).
(c) If you materially breach these T&Cs, breach clause 6 of these T&Cs, or fail to pay any Fees (as defined in clause 5 of these T&Cs) by the due date:
(i) we may immediately suspend your Subscription or On-Demand Access by giving you notice until you remedy that breach; and/or
(ii) where that breach is capable of remedy, if you fail to remedy that breach within 14 days of receipt of a notice from us specifying the breach and requiring it to be remedied, we may immediately terminate the Subscription or On-Demand Access by notifying you accordingly.
(d) Termination of your Subscription or On-Demand Access will result in the deactivation or deletion of your account, and the forfeiture and relinquishment of all of your rights to the Services and (subject to your continuing rights under clauses 6(c) and 6(d) of these T&Cs) any Materials.
(e) If your Subscription or On-Demand Access is terminated at any time, you must pay all Fees up to and including the date of termination.
(f) You may download:
(i) Templates which you have completed for a particular Client; and
(ii) and any other materials that you have uploaded to our platform and which remain stored on our platform,
(Your Materials) during the Subscription period and for 30 business days after termination of the Subscription or at the time you use our On-Demand Access (as applicable). If you have a Subscription and we receive notice from you in accordance with clause 21 of these T&Cs within that 30 business day period that you wish for us to continue to store Your Materials, we will charge you an annual storage and access fee equal to 5% of the annual Fees paid or payable by you to us during the last 12 months of your Subscription period (Storage and Access Fee). The Storage and Access Fee must be paid annually in advance. In the absence of such notice, or if you fail to pay the Storage and Access Fee at any time, we will give you notice that you have failed to pay the Storage and Access Fee and if you do not pay the Storage and Access Fee within 10 days of our notice, we may delete Your Materials.
(g) In the unlikely event that we cease operations for any reason and you have an existing Subscription, we will use reasonable endeavours to ensure that our platform remains accessible to you for you to download Your Materials for a period of twelve (12) months. No Storage and Access Fee will be payable in such circumstances.
5 Fees
(a) Subject to paragraph (e), you may only use the Services and any Materials on the payment of:
(i) the fees set out on our website, where you have Subscribed or use On-Demand Access via our website;
(ii) the fees set out in the subscription order form, where you have Subscribed via a subscription order form; and
(iii) any excess usage fees referred to in paragraph (b),
(Fees). The Fees will be exclusive of GST, unless otherwise indicated.
(b) If you have a Subscription, any Services or Materials that you use in excess of your Subscription volume in any subscription period will be charged at the Fees payable for Document Subscriptions, Corporate Messenger, Trust Register and Super Comply set out on our website. Such excess usage fees for Corporate Messenger, Trust Register and Super Comply will be determined monthly in arrears, based on the number of entities you manage using the Services during each calendar month. Any other excess usage fees will be determined monthly in arrears. Where those Fees are periodic and are not already expressed as a per unit amount, they will be pro-rated accordingly and apply for the whole of any month in which any excess occurs.
(c) Unless otherwise specified on our website or in a subscription order form:
(i) the Fees for periodic Subscription charges and Corporate Messenger, Trust Register and Super Comply excess usage fees will be debited from your nominated account or credit card monthly in arrears at the end of any such period; and
(ii) all other charges may be debited from your nominated account or credit card at any time after they are incurred.
(d) Where additional fees are payable to ASIC or for printing or stamping of documents, you will be required to pay those fees in addition to the Fees. These fees may include ASIC registration and processing fees and will be payable at the time the document is completed, printed or stamped (as applicable). The current schedule of fees charged by ASIC to start a company may be viewed at www.asic.gov.au/for-business/payments-fees-and-invoices/asic-fees/fees-for-commonly-lodged-documents/starting-a-company/.
(e) Where you have an existing Subscription, we reserve the right to vary (including introduce) any Fees at any time after expiry of the Initial Term by giving you not less than 30 days’ notice in writing. Any such notice may be provided prior to the expiry of the Initial Term provided that the variation only takes effect after the expiry of the Initial Term. If you do not agree to the variation, you may no later than the date the variation takes effect terminate your Subscription by giving us notice in writing in accordance with clause 21 of these T&Cs, in which case your Subscription will terminate 30 days after your termination notice is received, the Fees will not be varied, and you will be entitled to a refund of any Fees paid in advance for the period beyond the date of termination. Where you do not have an existing Subscription, we may vary (including introduce) any Fees at any time without notice.
6 Intellectual property
(a) The Materials contain proprietary information that is owned by or licensed to us, and is protected by applicable intellectual property and other laws, including but not limited to copyright.
(b) We grant you a non-transferable, non-sublicensable and non-exclusive licence to access, use and distribute any Materials that are not Templates during the Subscription period or at the time you use our On-Demand Access (as applicable) for your own internal business purposes and as part of the provision of services to your Clients.
(c) We grant you a perpetual, non-transferable, non-sublicensable (except as described in paragraph (d)) and non-exclusive licence to use and modify any Templates completed and downloaded by you for a particular Client for your own internal business purposes and as part of the provision of services to that Client.
(d) We grant you a perpetual right to sublicence the licence granted to you by us under paragraph (c) to the Client for whom the Templates have been completed and downloaded.
(e) You must use and sublicence Templates completed and downloaded for a particular Client only for that Client, and may not use or provide any such Templates for any other Client at any time.
7 Privacy
(a) We may collect personal information (as that term is defined in the Privacy Act 1988 (Cth)) in our provision of the Services (Personal Information). We are committed to protecting Personal Information and our Privacy Policy contains information regarding our collection, use, disclosure and protection of Personal Information. Where you provide us with Personal Information, you must ensure that you have the right to disclose it to us, and for us to use and disclose that Personal Information as described in our Privacy Policy, including having made any notifications or obtained any consents that may be required to enable this to occur.
(b) If you become aware of or have reasonable grounds to suspect that there has been any unauthorised access to, disclosure or loss of, or any other unauthorised interference with, any data on or accessed via our platform or the Services (Data Breach), you must immediately:
(i) notify us in accordance with clause 21 of these T&Cs of the nature and details of the Data Breach and of any recommended initial steps to be taken in response;
(ii) work with us on, including by providing any requested information, assistance and cooperation, and allow us to control, the investigation and assessment of the Data Breach to allow us comply with our obligations under the Privacy Act and any other applicable privacy laws and obligations (Privacy Laws), including to allow us to understand (where relevant) the affected data, the individuals to whom that data relates, and whether any Data Breach would be likely to result in serious harm to those individuals (including any of the matters referred to in section 26WG of the Privacy Act); and
(iii) act to contain and mitigate the Data Breach, protect affected individuals and protect such data from further breaches.
(c) If we form the view that we are or may be required to notify affected individuals of a Data Breach under the Privacy Laws, you must:
(i) comply with any of our directions relating to the Data Breach and allow us to control the notification process, including deciding who will fulfil the relevant notification requirements; and
(ii) if we decide to fulfil the relevant notification requirements, you must cooperate and provide us with all reasonable assistance in relation to such requirements; or
(iii) if we decide that you should fulfil the relevant notification requirements, to the extent permitted by law, you must consult with us, take into account our reasonable considerations and obtain our approval prior to fulfilling any notification requirements and ensure that you comply with all such notification requirements in accordance with the Privacy Laws.
(d) You must allow us to undertake reasonable periodic reviews to test and validate your compliance with this clause 7.
8 Statistical data
We may collect and prepare de-identified and aggregated statistical data related to the use of our products and services to administer and monitor the use of our products and services, for our internal business improvement purposes, benchmarking, market and industry research, and for use in commentary, media releases and other publications. We agree not to take any steps which will deliberately cause de-identified information to become personal information.
9 Disclaimer
(a) We are not a legal, accounting or tax adviser. We are not the author of and have no editorial control over, any Legal Templates or any information contained in any Legal Templates. The Templates have not been prepared with regard to any of your or your Clients’ particular circumstances. You must satisfy yourself as to the content and appropriateness of any Templates for your purposes and that of your Clients, and we make no warranty as to the form, content or appropriateness of any Templates for you or your Clients. You and your Clients should obtain your own advice and rely on such advice when using any Templates.
(b) We offer a mechanism by which you may seek and obtain legal advice from a legal services provider in relation to the Services, including any Legal Templates. Most advice sought via this mechanism will be provided by DGF Morgan & Associates Pty Ltd ACN 164 257 363 and subject to its terms and conditions (available at https://www.class.com.au/dgf-morgan-general-terms-of-business-costs-agreement-legal-terms-and-conditions/). Where advice is to be provided by another legal service provider, that legal service provider’s terms and conditions will apply and the legal service provider will be responsible for providing you with a copy of them at the time. You acknowledge that we are not responsible for the provision of, or the content or appropriateness of, any legal advice provided via this mechanism for you or your Clients.
(c) You acknowledge and agree that the Services and Materials do not constitute or contain personal or general advice for the purpose of the Corporations Act 2001 (Cth) and that we, our employees and advisers do not offer any legal, accounting, tax or other professional advice or services in connection with the provision of the Services and Materials.
10 Limitation of liability
(a) All express or implied guarantees, warranties, representations, or other terms and conditions relating to these T&Cs or its subject matter, not contained in these T&Cs, are excluded from these T&Cs to the maximum extent permitted by law. To the maximum extent permitted by law, we do not warrant that the Services or Materials will be error-free, that defects will be corrected, or that they will be fit for your or your Clients’ particular purpose or suitable for use in other jurisdictions.
(b) Nothing in these T&Cs excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.
(c) If any guarantee, warranty, term or condition is implied or imposed in relation to these T&Cs under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to one or more of the following at our option:
(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
(d) Subject to our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, under no circumstance will either party be liable to the other on account of any claim under or in connection with these T&Cs, whether based in contract, negligence or other tort, breach of any statutory duty or otherwise, for any special, consequential, indirect, incidental or exemplary damages, or for any loss of profits, revenue, interest, goodwill or for any loss of or interruption to either party’s business, whether or not foreseeable and even if we have been advised of the possibility of such damages.
(e) Subject to our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, where in the performance of our Services, if we are liable to you for the loss of or damage to your data, whether based in contract, negligence or other tort, breach of any statutory duty or otherwise, your sole and exclusive remedy in relation to that loss or damage will be to require us to restore the affected data to the last available back up.
(f) Subject to our obligations under the Non-Excludable Provisions, clause 10(g), and to the maximum extent permitted by law, the aggregate liability of either party of any kind whatsoever for all causes of action arising under or in connection with this Agreement or the Services in any calendar year, whether based in contract, negligence or other tort, breach of any statutory duty or otherwise, will not exceed two times the total Fees paid or payable by you during that calendar year.
(g) The liability cap in paragraph (f) does not apply to a breach of your obligations under clause 6 (Intellectual Property).
(h) You must indemnify us and our employees, officers, agents and contractors from and against any claims, proceedings and losses arising out of a claim by a third party as a result of your wilful misuse of any Services.
(i) Each party will indemnify the other party and the other party’s employees, officers, agents and contractors from and against any claims, proceedings and losses arising out of a claim by a third party as a result of that party’s wilful breach of these T&Cs.
11 API Service Terms
Where we provide you access or use of the APIs and related services to integrate with the Services, you must comply with the API Service Terms set out in Schedule 1.
12 Severability
If any part of these T&Cs is or becomes illegal, invalid or unenforceable, it will not affect the validity or enforceability of any other provisions.
13 Usage
(a) You must comply, and must ensure that your Staff comply, with our Fair Use Policy (available at www.class.com.au/fair-use-policy, as updated and amended by us from time to time) when using the Services.
(b) The Services are for the primary purpose of servicing you and your Clients. However, you may produce Templates for clients of another firm where they carry the same brand and have at least a 50% shared ownership structure e.g. where an accounting firm and financial planning firm hold the same brand and ownership. Where this is the case, references to your Clients in these T&Cs will be taken to include clients of that other firm.
14 Waiver
The failure of a party to pursue its rights with respect to a default or breach of these T&Cs does not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.
15 Force majeure
Neither party is responsible for any delay in its performance or its failure to perform due to causes beyond its reasonable control.
16 Assignment
You must not assign your rights or obligations under these T&Cs without our prior written consent.
17 Entire Understanding
These T&Cs are the entire agreement and understanding between the parties and supersede any prior negotiation, arrangement, understanding or agreement with respect to the subject matter hereof. Notwithstanding the preceding sentence, nothing in these T&Cs limits any liability either party may have in connection with any representations or other communications (either oral or written) made in relation to the Services, where such liability cannot lawfully be excluded.
18 Variation
Any variation (including introduction) of Fees will be governed by clause 5(e). Where you have an existing Subscription, we reserve the right to amend these T&Cs at any time by giving you not less than 30 days’ written notice. If you do not agree to those amendments, you may no later than the date the amendment takes effect terminate your Subscription on written notice to us in accordance with clause 21 of these T&Cs, in which case your Subscription will terminate 30 days after your termination notice is received, any amendments to these T&Cs will not take effect, and you will be entitled to a refund of any Fees paid in advance for the period beyond the date of termination. Where you do not have an existing Subscription, we may amend these T&Cs at any time without notice. Please note that clause 3(j) provides for certain variations to apply in relation to our Deed Stamping Services, despite this clause 18.
19 Confidentiality
(a) The Receiving Party must keep confidential and must not use or disclose to any other person, any Confidential Information of the Disclosing Party.
(b) The Receiving Party may only disclose the Confidential Information of the Disclosing Party:
(i) to its officers, employees, consultants, secondees, contractors or professional advisers solely to the limited extent necessary for the purpose of performing its obligations or exercising its rights under these T&Cs;
(ii) with the prior written consent of the Disclosing Party; or
(iii) to the extent necessary for it or its shareholders to comply with any applicable law or the rules of any competent regulatory body or stock exchange.
(c) Where the Receiving Party discloses any Confidential Information of the Disclosing Party under clause 19(b)(i) or clause 19(b)(ii), the Receiving Party must take all practicable steps to ensure that the person receiving the Confidential Information from it does not disclose that information except in the circumstances permitted in clause 19(b).
(d) In this clause 19:
(i) Confidential Information means all information of whatever kind disclosed or revealed by one party (the Disclosing Party) to the other party (the Receiving Party) under or in relation to the Services or these T&Cs that is by its nature confidential, is designated by the Disclosing Party as confidential or which the Receiving Party knows or reasonably ought to know is confidential, and includes non-public or proprietary information regardless of how the information is stored or delivered, and information relating to the business, technology or other affairs of the Disclosing Party, including any Personal Information, information relating to the Services, and its customers and clients but does not include information:
(A) which is in or becomes part of the public domain other than through a breach of these T&Cs or an obligation of confidence owed under this clause 19;
(B) which the Receiving Party can prove by contemporaneous written documentation was:
- a) already known to it at the time of disclosure by the Disclosing Party (unless that knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
- b) independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; or
(C) which the Receiving party acquires from a source other than the Disclosing Party or any of its representatives where such source is entitled to disclose it on a non-confidential basis;
(ii) Disclosing Party has the meaning given in the definition of Confidential Information; and
(iii) Receiving Party has the meaning given in the definition of Confidential Information.
20 Governing law
These T&Cs will be governed by and construed in accordance with the laws in force in the State of Queensland and the parties irrevocably submit to the jurisdiction of courts sitting in the State of Queensland.
21 Notices
We may give notices to you under these T&Cs by email to the primary contact email address associated with your account. You are responsible for ensuring that your primary contact email address remains current and is monitored. You can advise us of changes to your primary contact email address by going to Portal Settings > Account Settings to update the primary contact details, or, by emailing us at accounts@nowinfinity.com.au.
Notices from by us will be regarded as having been given on the next business day (in Brisbane) after the notice is sent by us to your primary contact email address, even if we receive an out-of-office notification or bounce-back. When you need to give us a notice under these T&Cs, you must send it by email to accountmanagement@class.com.au.
Date of last revision: 18 October 2024
Schedule 1 – API Services Terms
1. Introduction
These API Services Terms describe the licence and support services which apply where you have entered into a “NowInfinity Subscription Order Form” (Agreement) with us and we make available to you the APIs and related services with which our Services will integrate (API Services). These API Services Terms form a part of the Agreement and references to the Agreement include the provisions of these API Services Terms.
If you have also entered into a “Partner Agreement” with us, then these API Services Terms will not apply and the terms set out in that Partner Agreement will apply to the API Services.
Capitalised terms not defined in these API Services Terms have the meaning given to them in the Agreement.
To the extent that any of these API Services Terms are inconsistent with the terms of the Agreement (including the T&Cs), the terms of the API Services Terms take precedence.
We may update these API Service Terms from time to time. You should check this webpage periodically as any changes to these API Service Terms will be notified to you by their posting to this webpage. If we make a material change to these API Service Terms, we will inform you. If the changes have a material detrimental effect on your use of API Services, you may notify us that you no longer want to use the API Services in writing at any time during the 30 day period after we have notified you of the change to the API Service Terms. Unless otherwise agreed by the parties, termination of these API Service Terms will not constitute a termination of the Agreement.
2. Use
(a) During the term of the Agreement, we grant you a non-transferable, non-sublicensable and non-exclusive licence to:
(i) access and use the API Services, and use any printed and electronic documentation provided to you in connection with the API Services (including manuals, specifications, training materials and collateral) (API Services Documentation), in each case for the sole purpose of integrating your systems (the Target System) with our software in accordance with the Agreement;
(ii) without limiting any other rights you have under the Agreement, access and use our software for the sole purpose of testing the integration of the Target System with our software using the API Services; and
(iii) in providing the Target System, use the API Services for your ‘Authorised Users’ that have been granted access to our software under the Agreement (Authorised Users),
provided that:
(iv) the Target System is not (in our reasonable opinion) a competitor product to our software or any of our other products or services (or any product or services which we are considering to provide); and
(v) if you are in breach of the payment terms or any other terms of the Agreement, we may notify you of this and require you to remedy the breach. If you do not remedy the breach within 14 days (or such longer period stated in our notice), we may suspend or terminate the licence (including your access of the API Services) granted under this clause.
(b) Where we provide you with API Services, you agree:
(i) to provide us with:
(A) information about the business purpose, technical architecture and general user base of the Target System on request and updates to this information during the term of this agreement; and
(B) a list of our API Services which you currently use within your organisation, upon request;
(ii) that you are responsible for, and must provide and maintain, any interface, system or service (in addition to our API Services) required for receipt of data obtained through our API Services or for the push of data from the Target System to our software.
(c) We may allow you to use a third party (or your own) identity verification software to enable Authorised Users to login and access the API Services and our software, however, if we do so:
(i) we will not be in a position to validate any access to the API Services or our software using such identity verification software; and
(ii) you are entirely responsible for any access to, or use or misuse of, the API Services or our software (whether by an Authorised User or any other person) as a result of your use of such identity verification software.
(d) Where we provide you with an access token for the API Services:
(i) you are responsible for keeping your account username and access token safe and secure, to not disclose them to any other person, and to notify us if you become aware of or suspect any unauthorised use, disclosure and / or misuse of them. We are not responsible for your failure to do so;
(ii) we are not responsible for any use of the API Services through the use of an access token; and
(iii) in relation to any misuse of your account username or access token, we have the right to terminate and/or to limit your access to the API Services at any time without prior notice and at our reasonable discretion having regard to the respective interests of the individual case, temporarily or permanently.
3. Restrictions
(a) You must not:
(i) use reverse engineering or other techniques to access logic, internal data structures or internal services utilised by our software or otherwise translate, reverse-engineer, decompile, disassemble or copy any source code or underlying ideas or algorithms of the API Services by any means;
(ii) provide, rent, lease, licence, transfer or grant any rights in the API Services, in full or in part, to or for the benefit of any third party, provided that your users may access and use the API Services via the Target System in accordance with the Agreement;
(iii) remove, alter or obscure any identification, copyright, trademark or other proprietary notices, labels or marks on or in the API Services and the API Services Documentation;
(iv) modify, adapt, incorporate into or with other websites, or create a derivative work of any part of the API Services or the API Services Documentation; or
(v) develop your application in the NowInfinity production environment. All development and testing should occur in the partner development environment.
(b) Where you use any of the API Services or our software other than as specified in the Agreement, you are in breach of your licence terms and, without limiting any of our rights or remedies, we may:
(i) require you to enter into a “Partner Agreement” with us for such use of the API Services and/or our software; and/or
(ii) charge you (including retrospectively) for such use based on our then current standard fees and charges under such “Partner Agreement” for such use of the API Services and/ or our software. Further, you agree to provide us or our authorised representatives with reasonable access to your premises during normal business hours to audit such records to the extent reasonably necessary for us to confirm your use of the API Services and to confirm that you are complying with these API Services Terms. You must provide us or our authorised representatives with any co-operation, access and information reasonably required to perform any such audit.
4. Security and suspension
(a) You must comply with our reasonable security requirements notified to you from time to time. If we change our security requirements, we will notify you at least 30 days in advance of the change coming into effect.
(b) Without limiting paragraph (a), you must take all prudent and reasonable steps to ensure that the Target System is protected against unauthorised access, use, modification, processing, disclosure or other misuse.
(c) We may from time-to-time conduct security reviews, audits or tests to verify your compliance with the Agreement and our reasonable security requirements.
(d) We may, as a part of such a security review or audit, request details of security code, measures and practices employed by you to protect the privacy and data integrity of the Target System, our software and systems, and any data transferred between those systems. You must comply with any such request from us.
(e) We may from time to time:
(i) deactivate a particular part of the API Services due to issues with the Target System, including due to security, performance or operation of the Target System. Where we do so, we will provide you with details of the issue which is to be remedied by you. Once the issue has been remedied to our reasonable satisfaction, we will reactivate the deactivated API Services; and
(ii) temporarily suspend, restrict or limit your use of our services if we believe that your use is impairing the security, performance or integrity of our services, or the use of our services by other customers (for example developing your application in the NowInfinity production environment). Where we do so, we will try and contact you prior to doing so, or as soon as practicable afterwards (however this may not be possible in all circumstances), and once such impairment has been addressed, we will cease to do so.
5. API Services availability and updates
(a) A schedule of the API Services used including settings and parameters is provided, maintained and available to you on request. We may only provide and make available to you a subset of the API Services, as those API Services are identified in the technical integrations guide published by us and updated from time to time (Technical Integrations Guide). You must notify us if you intend to use any API Services not published in the Technical Integrations Guide.
(b) Notwithstanding any other term of this Schedule, the API Services may be modified, terminated or deactivated by us from time to time without any prior notice to you, where it is necessary, in our reasonable opinion, to stop or prevent serious harm or damage to the API Services, including where we suspect fraud, privacy or data breaches, or there is otherwise a legitimate business interest to do so.
(c) We may, at our discretion, allow you to use an otherwise restricted API Service in an “unlimited” manner if you can demonstrate that such limits are enforced by the Target System.
(d) The API Services provided are primarily provided to support our software; and:
(i) that from time to time these API Services may be unavailable due to scheduled maintenance, system or software updates, upgrades, or changes and operational procedures; and
(ii) the API Services are on-demand services and should only be initiated by a user triggered event, and must not be automatically polled.
(e) We may modify the API Services from time to time, including to add or remove any component or functionality. If we modify the API Services, we will provide you with 30 days’ notice prior to the modifications taking effect. If the changes have a material detrimental effect on your use of the API Services, you may terminate your use of the API Services by notifying us in writing at any time during the 30 day period after we notify you of the modification.
(f) We provide version support for a subset of the API Services only as indicated in the Technical Integrations Guide and you must use new versions of the API Services no later than 3 months after they are made available to you. You must adapt the Target System from time to time to ensure that it properly interfaces with such new versions within that timeframe. Where we no longer support a version of the API Services we will notify you accordingly and use reasonable endeavours to deprecate any such API Services.
(g) You are solely responsible for adapting any Target System as a result of any changes we make to our software or API Services.
6. API Services support services
(a) Subject to your payment of any fees and other charges to us in accordance with the Agreement, we will provide you with support for issues associated with the supported API Services in accordance with issue classification, procedures and target timeframes published from time to time.
(b) You are responsible for:
(i) running such standard diagnostic tests as may be specified by us from time to time to confirm that the issue for which support is required is related to a defect in the API Services;
(ii) providing sufficient information and data to allow us to readily reproduce all reported issues; and
(iii) making available such remote access facilities as we require in order to provide the API Services support services (subject to us complying with any reasonable security or access restrictions you notify us in writing).
7. Acknowledgements
Where we provide you with the API Services:
(a) the API Services and all Intellectual Property Rights associated with the API Services remain our property or the property of our licensors, and no rights with respect to the API Services are granted to you other than those rights expressly granted in the Agreement;
(b) you have relied on your own skill and judgement and enquiries in deciding to use the API Services and that no promises, representations, warranties or undertakings have been given by us or anyone on our behalf in relation to the benefits to be obtained from the use of the API Services or their suitability for any particular purpose;
(c) we may monitor the use and accessing of the API Services to ensure quality, improve the API Services and verify your compliance with the Agreement. You must not interfere with such monitoring, and without limiting our other rights and remedies we may use technical measures to overcome any such interference;
(d) we cannot (and do not) guarantee that the API Services are always accurate, up-to-date or complete; and
(e) you:
(i) grant us a perpetual, irrevocable, worldwide, non-exclusive licence (with the right to sublicence) to use, copy and modify your data, in connection with our provision of the API Services and our software in accordance with the Agreement; and
(ii) warrant that:
(A) you have all rights (including Intellectual Property Rights), permissions, authorities and licences in respect of your data necessary to grant the rights under paragraph (i);
(B) our receipt and use of your data in accordance with the Agreement will not infringe the rights (including Intellectual Property Rights) of any third party; and
(C) you are authorised by applicable law, and have obtained any consents necessary, to collect the personal information in your data, and to disclose that personal Information to us for use by us in accordance with the Agreement.