Effective as of 14/04/2016 (April 14th 2016)
1. General Information Regarding These Terms of Service
This Daiodo Terms of Service (the “Agreement”) is between you and Daiodo Pty Ltd (ABN 76609812295) (“Daiodo”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. Daiodo may modify this Agreement from time to time, subject to the terms in Section 4 (Changes to the Terms) below.
2. Your Agreement to the Terms
YOUR ACCESS TO OR USE OF ANY THE SERVICES (INCLUDING THE LICENSES, PUBLIC DOMAIN TOOLS, AND CHOOSERS) SIGNIFIES THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THE TERMS. By accessing or using any Services you also represent that you have the legal authority to accept the Terms on behalf of yourself and any party you represent in connection with your use of any Services. If you do not agree to the Terms, you are not authorised to use any Services.
3. User Credentials
Use of our Services requires an autumnapp.com account. You agree to provide us with complete and accurate information when you register for an account. You will be solely responsible and liable for any activity that occurs under your username. You are responsible for keeping your user IDs and passwords secure. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Daiodo of any unauthorised use of which you become aware.
By registering for an account through any of the Services, you represent and warrant that you (1) are the age of majority in your jurisdiction (typically age 18) or, (2) are over the age of 13 and have the express permission of a legal guardian to obtain an account and to use Services in connection with the account. Services offered to registered users are provided subject to these Master Terms and any Additional Terms specified on the relevant Website(s).
Registration: You agree to (a) only provide accurate and current information about yourself, (b) maintain the security of your passwords and identification, (c) promptly update the email address listed in connection with your account to keep it accurate so that we can contact you, and (d) be fully responsible for all uses of your account. You must not set up an account on behalf of another individual or entity unless you are authorised to do so.
No Membership in Daiodo: Creating an account or using any of the related Websites or Services does not and shall not be deemed to make you a member, shareholder or affiliate of Daiodo for any purposes whatsoever,
4. Changes to the Terms
From time to time, Daiodo may change, remove, or add to the Terms, and reserves the right to do so in its discretion. In that case, we will post updated Terms and indicate the date of revision. If we feel the modifications are material, we will make reasonable efforts to post a prominent notice on the relevant Website(s) and notify those of you with a current account via email. All new and/or revised Terms take effect immediately and apply to your use of the Services from that date on, except that material changes will take effect 30 days after the change is made and identified as material. Your continued use of any Services after new and/or revised Terms are effective indicates that you have read, understood, and agreed to those Terms.
5. Prohibited Conduct
You agree not to engage in any of the following activities:
1. Violating laws and rights:
- You may not (a) use any Service for any illegal purpose or in violation of any local, state, national, or international laws, (b) violate or encourage others to violate any right of or obligation to a third party, including by infringing, misappropriating, or violating intellectual property, confidentiality, or privacy rights.
- You may not use the Services or any information provided through the Services for the transmission of advertising or promotional materials, including junk mail, spam, chain letters, pyramid schemes, or any other form of unsolicited or unwelcome solicitation.
- You may not use the Services in any manner that could disable, overburden, damage, or impair the Services, or interfere with any other party’s use and enjoyment of the Services; including by (a) uploading or otherwise disseminating any virus, adware, spyware, worm or other malicious code, or (b) interfering with or disrupting any network, equipment, or server connected to or used to provide any of the Services, or violating any regulation, policy, or procedure of any network, equipment, or server.
4. Harming others:
- You may not post or transmit Content on or through the Services that is harmful, offensive, obscene, abusive, invasive of privacy, defamatory, hateful or otherwise discriminatory, false or misleading, or incites an illegal act;
- You may not intimidate or harass another through the Services; and, You may not post or transmit any personally identifiable information about persons under 13 years of age on or through the Services.
5. Impersonation or unauthorised access:
- You may not impersonate another person or entity, or misrepresent your affiliation with a person or entity when using the Services;
- You may not use or attempt to use another’s account or personal information; and,
- You may not attempt to gain unauthorised access to the Services, or the computer systems or networks connected to the Services, through hacking password mining or any other means.
6. Hosted Services Terms.
1. Access to Hosted Services:
Subject to the terms and conditions of this Agreement, Daiodo grants you a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined below) in accordance with this Agreement. You acknowledge that our Hosted Services are on-line, subscription-based products and that we may make changes to the Hosted Services from time to time.
2. Subscription Terms and Renewals:
Hosted Services are provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account by contacting [email protected] If you cancel, your subscription will terminate at the end of then-current billing cycle. Refunds may be provided in line with the Refund Policy in 15. Miscellaneous Terms
3. Your Data:
“Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to Daiodo. Subject to the terms of this Agreement, you hereby grant to Daiodo a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and (b) for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorised Users) direct or enable through the Hosted Service. Daiodo may also access your account or instance in order to respond to your support requests.
Daiodo implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Hosted Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third party service providers.
You understand that use of the Hosted Services necessarily involves collection and transmission of Your Data from hardware and over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that Your Data will be error-free, that transmissions of Your Data will always be available or that unforeseen events won’t impact the ability of those devices and networks to communicate with our products or third party suppliers.
6. Storage Limits.
There may be storage limits associated with a particular Hosted Service. These limits are described in the services descriptions on our websites or in the Documentation for the particular Hosted Service. Daiodo reserves the right to charge for additional storage or overage fees at the rates specified on our website. We may impose new, or may modify existing, storage limits for the Hosted Services at any time in our discretion, with or without notice to you.
7. Responsibility for Your Data.
You must ensure that your use of Hosted Services and all Your Data is at all times compliant with these Terms of Service and all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to Daiodo and to grant the rights granted to Daiodo in this Agreement and (ii) Your Data and its transfer to and use by Daiodo as authorised by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 7.5 (Security), Daiodo assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
2. Sensitive Data.
You will not submit to the Hosted Services (or use the Hosted Services to collect): (i) any personally identifiable information, except as necessary for the establishment of your Daiodo account; (ii) any patient, medical or other protected health information regulated by any federal or state laws, rules or regulations; or (iii) any other information subject to regulation or protection under specific laws ((i) through (iii), collectively, “Sensitive Data”). You also acknowledge that Daiodo is not acting as your Business Associate or subcontractor. Notwithstanding any other provision to the contrary, Daiodo has no liability under this Agreement for Sensitive Data.
3. Indemnity for Your Data.
You will defend, indemnify and hold harmless Daiodo from and against any loss, cost, liability or damage, including attorneys’ fees, for which Daiodo becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Daiodo at your expense.
4. Removals and Suspension.
Daiodo has no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement or in response to takedown requests that we receive to [email protected], we may (1) remove Your Data from the Hosted Services or (2) suspend your access to the Hosted Services. We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Hosted Service or other users, we may suspend your access immediately without notice. You will continue to be charged for the Hosted Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Hosted Services as described in this section.
5. Deletion at End of Subscription Term.
We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.
8. Support and Maintenance.
Daiodo will provide the support and maintenance services for the Products described (“Support and Maintenance”) during the period for which you have paid the applicable fee. Support and Maintenance is subject to the terms of the Daiodo Support Policy and will be provided at the support level and during the support term specified in your Order. The Daiodo Support Policy may be modified by Daiodo from time to time to reflect process improvements or changing practices. Support and Maintenance for Software includes access to New Releases, if and when available. You may use any New Releases that we provide to you during a valid support term in the same way that you use Software, and New Releases are included in the definition of Software in that case. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we make generally commercially available.
8. Ownership and Feedback.
Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Daiodo and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Daiodo, including without limitation as they may incorporate Feedback (“Daiodo Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Daiodo, including sharing Your Feedback or in the course of receiving Support and Maintenance (“Feedback”). Daiodo may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Daiodo’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any Daiodo Technology and any performance information relating to the Products shall be deemed Confidential Information of Daiodo without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
10. DISCLAIMER OF WARRANTIES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DAIODO OFFERS THE SERVICES (INCLUDING ALL PRODUCTS AVAILABLE ON OR THROUGH THE SERVICES) AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE SERVICES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. DAIODO DOES NOT WARRANT THAT THE FUNCTIONS OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT CONTENT MADE AVAILABLE ON OR THROUGH THE SERVICES WILL BE ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY SERVERS USED BY DAIODO ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DAIODO DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE OF THE PRODUCTS AVAILABLE THROUGH THE SERVICES IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE.
11. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DAIODO BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR INCOME, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, COST OF SUBSTITUTE GOODS OR SERVICES, OR SIMILAR DAMAGES SUFFERED OR INCURRED BY YOU OR ANY THIRD PARTY THAT ARISE IN CONNECTION WITH THE SERVICES (OR THE TERMINATION THEREOF FOR ANY REASON), EVEN IF DAIODO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DAIODO IS NOT RESPONSIBLE OR LIABLE WHATSOEVER IN ANY MANNER FOR ANY CONTENT POSTED ON OR AVAILABLE THROUGH THE SERVICES (INCLUDING CLAIMS OF INFRINGEMENT RELATING TO THAT CONTENT), FOR YOUR USE OF THE SERVICES, OR FOR THE CONDUCT OF THIRD PARTIES ON OR THROUGH THE SERVICES.
NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
12. GENERAL REPRESENTATION AND WARRANTY
13. COPYRIGHT COMPLAINTS
Daiodo respects copyright, and we prohibit users of the Services from submitting, uploading, posting, or otherwise transmitting any Content on the Services that violates another person’s proprietary rights.
To report allegedly infringing Content hosted on a website owned or controlled by Daiodo, send a Notice of Infringing Materials to [email protected]
By Daiodo: Daiodo may modify, suspend, or terminate the operation of, or access to, all or any portion of the Services at any time for any reason. Additionally, your individual access to, and use of, the Services may be terminated by Daiodo at any time and for any reason.
By you: If you wish to terminate this agreement, you may immediately stop accessing or using the Services at any time.
Automatic upon breach: Your right to access and use the Services terminates automatically upon your breach of any of the Terms. For the avoidance of doubt, termination of the Terms does not require you to remove or delete any reference to previously-applied CC legal tools from your own Content.
Survival: The disclaimer of warranties, the limitation of liability, and the jurisdiction and applicable law provisions will survive any termination. The license grants applicable to Your Content are not impacted by the termination of the Terms and shall continue in effect subject to the terms of the applicable license. Your warranties and indemnification obligations will survive for one year after termination.
15. MISCELLANEOUS TERMS
Choice of law:
The Terms are governed by and construed by the laws of the State of Victoria in Australia, not including its choice of law rules.
The parties agree that any disputes between Daiodo and you concerning these Terms, and/or any of the Services may only brought in a federal or state court of competent jurisdiction sitting in Victoria, Australia, and you hereby consent to the personal jurisdiction and venue of such court.
If you are an authorised agent of a government or intergovernmental entity using the Services in your official capacity, including an authorised agent of the federal, state, or local government in the Australia, and you are legally restricted from accepting the controlling law, jurisdiction, or venue clauses above, then those clauses do not apply to you. For any such Australian federal government entities, these Terms and any action related thereto will be governed by the laws of the Australia (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of Victoria (excluding its choice of law rules).
Either party’s failure to insist on or enforce strict performance of any of the Terms will not be construed as a waiver of any provision or right.
If any part of the Terms is held to be invalid or unenforceable by any law or regulation or final determination of a competent court or tribunal, that provision will be deemed severable and will not affect the validity and enforceability of the remaining provisions.
No agency relationship:
The parties agree that no joint venture, partnership, employment, or agency relationship exists between you and Daiodo as a result of the Terms or from your use of any of the Services.
These Master Terms and any applicable Additional Terms constitute the entire agreement between you and Daiodo relating to this subject matter and supersede any and all prior communications and/or agreements between you and Daiodo relating to access and use of the Services.
Software delivery will be made available to the purchaser within 24hrs unless a custom package has been purchased where a customer consultation is required. In the case of a customer consolation the client will not be charged until after the service has been activated.
At Daiodo Pty. Ltd. we are committed to providing high quality products and services. In the event you are not satisfied with your purchase, this refund policy explains when we will give a refund.
We offer refunds based upon the guidelines set out by the Consumer Affairs Victoria https://www.consumer.vic.gov.au/shopping/refunds-and-returns
We are not required to provide a refund or replacement if you change your mind.
As a matter of business goodwill we are happy to refund in full the current month of a subscription within the first 15 days of a billing cycle.
EG: If you signup on the 17th of a month and wish to cancel buy the 30th you will receive a refund for that billing cycle in full.
If you cancel after this date your subscription will be canceled at the end of the billing cycle.
But you can choose a refund or exchange if an item has a major problem. This is when the item:
- Not fit for a particular purpose
- Major problem with the service
- Is significantly different from the description
- Doesn't do what we said it would, or what you asked for and can't be easily fixed
If you choose to continue with the contract, you can ask us to compensate you for any difference in the value of the services we provided and what you paid.
If the problem is not major, we will fix it within a reasonable time. If the problem cannot be fixed, we will view it as a major problem.
To help ensure that our software products are perfect for your requirements, free fully-functional trial versions of Diaodo software products are available to login to by request from our website. Comprehensive product and service information is also available. Not sure if our software is right for you feel free to contact us.
Requesting a refund, exchange or assistance
If you would like to request a refund, or would like assistance with a product or service you have purchased from us, please contact us.
Hosted services are provided by Rackspace and this agreement is bound by the terms of their service agreement: https://www.rackspace.com/information/legal/cloud/tos