Qwilr terms of use
Background
A. Qwilr is a web-based document design and automation tool for businesses.
B. These Terms of Use relate to Qwilr’s Services, which include access to Qwilr’s Platform, as well as any Additional Services
Our Disclosures
Our complete terms and conditions are contained below, but some important points for you to know before you become a customer are set out below:
- We may amend these Terms, the features of the Platform or your Subscription at any time, by providing written notice to you;
- Your Subscription may be subject to a minimum term, as set out in your Account. You may only cancel your Subscription at the expiry of the minimum term;
- Unless your Subscription is suspended or terminated in accordance with these Terms, your Subscription will roll over on an ongoing basis;
- We will handle your personal information in accordance with our privacy policy, available at Privacy Policy;
- To the maximum extent permitted by law, the Fees are non-refundable;
- You are responsible and liable for the actions of your Authorised Users;
- Our liability under these Terms is limited to repaying you the amount of the Fees paid by you to us during the 12 month period immediately preceding the event to which the Liability relates and we will not be liable for Consequential Loss, any loss that is a result of a Third Party Service, or any loss or corruption of data;
- If you do not pay the Subscription Fee, we may suspend your access to the Platform and your Account and/or charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding; and
- We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform or for featuring certain products or services on the Platform.
Nothing in these terms limits any rights you may have under Australian Consumer Law.
1 Introduction
1.1 These terms and conditions (Terms) are entered into between Qwilr Pty Ltd ABN 23 168 533 793 (we, us or our) and you, together the Parties and each a Party.
1.2 In these Terms, you means the person or entity registered with us as an Account Holder.
1.3 We provide a cloud-based, software as a service (Platform) which allows document design and automation, available at https://qwilr.com which currently allows you to:
(a) register an Account;
(b) create documents accessible via the internet with functionality and appearance of a webpage (Documents);
(c) use templates to create Documents;
(d) customise Documents using the tools and features of the Platform;
(e) track usage analytics of Documents;
(f) take advantage of such other templates, tools and features made available via the Platform from time-to-time for a particular Account type;
(g) provide third-parties with access to Documents via online links; and
(h) view and interact with Documents created by other Users in the same or connected Accounts, subject to relevant account permissions, together referred to as the services (Services).
1.4 If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.
2 Inconsistencies between these Terms and Corporate Terms
2.1 We may, at our absolute discretion, enter into written agreements with customers in relation to access to the Qwilr Platform. These agreements may take the form of a Qwilr Proposal, Master Services Agreement, Enterprise Terms of Use or any other similar agreement (Corporate Terms). All Corporate Terms must be mutually agreed with Qwilr in writing.
2.2 If you are a customer and have mutually agreed Corporate Terms in effect with Qwilr, to the extent there is any inconsistency between these Terms and Corporate Terms, the Corporate Terms will prevail.
3 Acceptance and Platform Licence
3.1 You accept these Terms by checking the box, clicking “I accept”, registering on the Platform, or using the Platform. If you do not agree to these Terms you must cease using the Platform immediately.
3.2 You and each Authorised User must be at least 16 years old to use the Platform.
3.3 We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the service (as applicable), you agree to the amended Terms. If you do not agree to the amendment, you may terminate your Subscription in accordance with the ‘Cancellation of Subscriptions’ clause.
3.4 Subject to your compliance with these Terms, we grant you and your Authorised Users a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.
3.5 When using the Platform, you and your Authorised Users must not do or attempt to do anything that is unlawful or inappropriate, including:
(a) anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual's consent) or any other legal rights;
(b) using the Platform to defame, harass, threaten, menace or offend any person, including using the Platform to send unsolicited electronic messages;
(c) tampering with or modifying the Platform (including by transmitting malicious software);
(d) using data mining, robots, screen scraping or similar data gathering and extraction tools on the Platform; or
(e) facilitating or assisting a third party to do any of the above acts.
4 Qwilr Services
4.1 In consideration for your payment of the Fees, we agree to provide you and your Authorised Users (together, Paid Users) with access to the Platform, the support services as detailed in this section, and any other services we agree to provide as set out in your Account (Paid User Account).
4.2 We agree to use our best endeavours to make the Platform available at all times. However, from time to time, we may perform such reasonable scheduled and emergency maintenance and updates in relation to the Platform in order to continue to supply the Platform to you and our other customers (Scheduled and Emergency Maintenance). You agree that access to, or the functionality of all or part of the Platform, may need to be suspended for a time in order for us to perform Scheduled or Emergency Maintenance. We will endeavour to provide you with reasonable notice, where possible, of any interruptions to access and availability of the Platform.
4.3 Should you be unable to access the Platform, or should you have any other questions or issues impacting on your use and enjoyment of the Platform, you and your Authorised Users must place a request via email (Support Services). We will endeavour to respond to any support requests within 24 hours.
4.4 You agree to the reasonable usage of the Support Services. Where we consider your usage of the Support Services to be unreasonable (compared with our other customers), we reserve the right to immediately suspend any User’s access to our Support Service. We will endeavour to notify you of any suspension of your Authorised Users under this clause, and we may provide you with a written notice detailing the unreasonable use and the action required to remedy this, under clause 17.4 (Breach Notice). Where a suspension under this clause is due to harassment or abuse of our support staff by a User, we reserve the right to permanently suspend that User’s access to our Support Services and/or the Platform.
4.5 We reserve the right to require payment of Fees for non-standard support requests prior to the provision of such support.
4.6 You acknowledge and agree that the Platform is hosted on and may be reliant on third party systems that are not provided by us, and may also integrate third party systems (Third Party Services). To the maximum extent permitted by law, we shall have no Liability for any Third Party Services, or any unavailability of the Platform due to a failure of the Third Party Services.
4.7 The Qwilr Platform may facilitate your collection of payments through third-party providers, for example, Stripe. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions. You acknowledge that the third party payment provider may charge a transaction fee & there may be additional fees associated with your use of the payment provided. Where we charge a fee associated with the use of a Third Party Service, we will explicitly outline this on the Platform.
4.8 You acknowledge and agree that we have the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Platform.
4.9 You acknowledge and agree that data loss is an unavoidable risk when using any software. To the extent you input any data into the Platform, you agree to maintain a backup copy of any data you input into the Platform.
4.10 To the maximum extent permitted by law, we shall have no Liability to you for any loss or corruption of data, or any scheduled or emergency maintenance that causes the Platform to be unavailable.
5 Additional Services
5.1 You may request additional services, including add-ons such as training (Additional Services). We may, at our absolute discretion, provide you with written notice in the form of a statement of work, setting out (amongst other things) the Additional Services requested and any further fee required for us to undertake the Additional Services (Statement of Work).
5.2 If you agree to the Statement of Work for the Additional Services, we will provide the Additional Services to you in consideration for payment of the additional fee, which will form part of the Fees.
5.3 Each Statement of Work will be subject to, and will be governed by, these Terms and any other conditions agreed to between the Parties in writing. To the extent of any ambiguity or discrepancy between a Statement of Work and these Terms, these Terms will prevail.
6 Viewers & Free User Accounts
6.1 Third-parties may access limited elements of the Platform without paying a Fee (Viewer).
6.2 A Viewer may visit the Platform and view Documents without an Account (defined below). A Viewer agrees that they access the Platform and view Documents at their own risk and have no claim against us for their use of or reliance on the Platform or Documents.
6.3 We may, at our absolute discretion, choose to make some features of the Platform available without paying a Fee (Free User), and may be required to register on the platform and create an Account (defined below) to access these features (Free User Account). A Free User must provide basic information when registering for a Free User Account including a contact name and email address, and they must choose a password.
6.4 A Free User may request that their Free User Account be closed by providing written notice via the Platform.
6.5 We may change the features associated with Free User Accounts at any time by providing 30 days’ written notice. If Free Users are not satisfied with any such change, they may request that we close the Free User Account affected by the change.
6.6 A Free User agrees that they must upgrade to a Paid User Account to access any features associated with the Paid User Account.
6.7 A Free User agrees that all data provided to us as will be treated in accordance with Clause 11 of this agreement, and agree to comply with this Clause when using the Platform.
6.8 All personal information provided by Free Users to us will be treated in accordance with our Privacy Policy
7 Accounts
7.1 You must register on the Platform and create an account (Account) to access the Platform. You must provide basic information when registering for an Account including your contact name and email address and you must choose a password.
7.2 Each Authorised User will require a unique login that is linked to your Account in order to access the Platform (Authorised User Account). All Paid Users and Free Users require an Account.
7.3 All personal information you and your Authorised Users provide to us will be treated in accordance with our Privacy Policy.
7.4 You agree to provide and maintain up to date information in your Account and to not share your Account password with any other person. Your Account is personal and you must not transfer or provide it to others with the exception of your Authorised Users.
7.5 You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details, and any activity from one of your Authorised Users. Each Authorised User is responsible for keeping their login details confidential.
7.6 You agree to immediately notify us of any unauthorised use of your Account.
8 Authorised Users
8.1 If set out in your Account, you are permitted to invite users to the Platform, and register a unique Account on their behalf (Authorised Users).
8.2 You may have a minimum number of Authorised Users you must pay Fees for, as set out in your Account, even if you reduce the number of Authorised Users that are active.
8.3 The Authorised Users will have permission to access certain features of the Platform and Account, as detailed in your Account and you may adjust these permission settings in your Account.
8.4 We may change the Services associated with the Authorised User’s Account by providing 30 days’ written notice to you. If you are not satisfied with any such change, you may terminate the Subscription of each Authorised User affected by the change.
8.5 You must ensure that each Authorised User complies with these Terms. You are responsible and liable for the acts or omissions of your Authorised Users.
8.6 You must ensure that only one Authorised User uses each Authorised User Account you register for them.
8.7 You must ensure that you pay the Fee for each Paid User when it is due.
9 Subscriptions
9.1 When you create an Account, you may choose to access our Paid User Account features through a subscription (Subscription).
9.2 Subscription may begin with a free trial. The free trial period of your Subscription will last for the period specified on the Platform. We determine free trial eligibility in our sole discretion and we may limit eligibility to prevent free trial abuse. We reserve the right to revoke the free trial and suspend your Account at any time in the event that we determine that you are not eligible. Free trials are only available for new Account Holders.
9.3 Payment Date. If you do not cancel during the free trial period, we will raise a charge, using your chosen payment method, for the Subscription you have chosen and its corresponding Subscription fee (The Fees) on the day your free trial ends (which will be the first Payment Date). The date that The Fees are collected by us (the Collection Date) shall be determined in our absolute discretion and in accordance with clauses 9.4 and 9.5, unless otherwise agreed in writing.
9.4 Online Payments. We may offer you an online payment method, for example credit card, debit card or direct debit payments. If your chosen payment method is an online payment method the Collection Date will be the Payment Date.
9.5 Offline Payments. We may, at our absolute discretion, offer you an offline payment method, for example bank transfer or wire transfer. If you are offered and choose to use an Offline payment method, the Collection Date will be on or before 10 days after the Payment Date. Payment via Offline Payment methods is subject to minimum contract values.
9.6 The Fees apply to each Paid User, including your Authorised Users.
9.7 All fees are quoted in US dollars.
9.8 Tax Responsibility. Unless otherwise agreed, all Fees shall be deemed exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction (collectively, “Taxes”).You shall be responsible for and bear Taxes associated with your purchase of, payment for, access to or use of the Services. If we are required to remit Taxes associated with your purchase of, payment for, access to, or use of the Services, we will add the amount of those Taxes, itemized where required by law, to the payment due. Taxes may be applied without notice. Taxes shall not be deducted from the payments to us, except as required by law, in which case you shall increase the amount payable as necessary so that after making all required deductions and withholdings, we receive and retains (free from any Tax liability) an amount equal to the amount we would have received had no such deductions or withholdings been made.
9.9 You hereby confirm that we can rely on the name and address (if any) set forth in your registration for a Subscription Plan as being the place of supply for Tax purposes. If applicable, you shall provide to us with your VAT, GST, or similar tax identification number(s) to avoid application of taxes. You shall use the Services for your business use in the foregoing location(s) in accordance with the provided VAT or GST identification number(s). The parties’ obligations under this Section shall survive the termination or expiration of these Terms
9.10 You may choose between different tiers of Subscription with different services and different Subscription periods as set out on our Platform, including the choice to be billed annually or monthly, or as otherwise agreed between the Parties or listed in your Account.
9.11 Billing Period: Unless otherwise agreed between both Parties, or your Subscription is suspended or terminated in accordance with these Terms, your Subscription will be charged based on the billing period set out in your Qwilr account (found at: https://app.qwilr.com/#/settings/subscription) and will roll over on an ongoing basis, and you will be charged the same Fees, upfront, on an ongoing basis from the Payment Date. Without limiting your rights under the Australian Consumer Law, you can cancel your Subscription at any time in accordance with the ‘Cancellation of Subscriptions’ clause of these Terms.
9.12 The payment methods we offer for the Fees are set out on the Platform. We may offer payment through a third-party provider, for example, Stripe. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions. You acknowledge that your use of a third party payment provider may be subject to a transaction fee.
9.13 You must not pay, or attempt to pay, the Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment.
9.14 You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us (whether under these Terms or otherwise).
9.15 Changes to your Subscription: If you wish to change your Subscription (for example, by upgrading to a different Subscription tier, or varying the number of Authorised Users associated with your Account), you must provide notice to us through your Account that you wish to vary your Subscription at least 48 hours before the next Payment Date. If you vary your Subscription and the Fees increase, we will charge you for the increase in the Fees on a pro-rata basis for the remainder of the period until your next Payment Date, and you will have access to the additional Subscription features from the date you make such payment.
9.16 To the extent permitted by law, the Fees are non-refundable and non-cancellable once paid.
9.17 We may need to change what is available as part of your Subscription (for example, the inclusions, exclusions, updated features) from time to time. If we change what is available as part of your Subscription, we will provide you with 30 days’ notice of the change. After 30 days, we will apply the changes to your Subscription. If the changes substantially and adversely affect your enjoyment of the Subscription, you may cancel your Subscription in accordance with the ‘Cancellation of Subscriptions’ clause.
9.18 We may need to change the Fees from time to time. If we change the Fees, we will provide you with 14 days’ notice of the change. After 14 days, we will apply the updated Fee to your Subscription, and the updated Fee will take effect from your next Payment Date. If the updated Fee is not acceptable to you, you may cancel your Subscription in accordance with the ‘Cancellation of Subscriptions’ clause.
9.19 Late payment: You agree to pay the Subscription Fee on the Payment Date. If you do not pay any outstanding fee within 30 days of the Payment Date, you agree that we may suspend your access to the Platform and your Account and/or charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per month (or the maximum permitted by law, whichever is lower), calculated daily and compounding, plus all expenses of collection and may result in immediate termination of Service
9.20 If you dispute any amounts owed, you must notify us within 5 business days of the Payment Date.
9.21 We will provide billing and usage information in a format we choose, which may change from time to time. We reserve the right to correct any errors or mistakes that we identify even if we have already issued an invoice or received payment. You agree to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice. If you do not bring such problems/discrepancies to our attention within thirty (30) days, you agree to waive your right to dispute such problems or discrepancies.
9.22 Credit card disputes: You agree that, if we are notified of an official credit card dispute in relation to your payment of Fees to us, we may immediately suspend access to your account. If your account is suspended due to a Credit Card dispute, you agree that we may not restore access until the dispute has been resolved and we may, at our own discretion, charge a reactivation fee in addition to any unpaid Fees.
10 Our Intellectual Property
10.1 You acknowledge and agree that any Intellectual Property or content (including copyright and trademarks) available on the Platform, the Platform itself, and any algorithms or machine learning models used on the Platform (Our Intellectual Property), except for Your Data (defined below), will at all times vest, or remain vested, in us.
You must not, without our prior written consent:
(a) copy, in whole or in part, any of Our Intellectual Property;
(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party; or
(c) breach any intellectual property rights connected with the Platform, including (without limitation) altering or modifying any of Our Intellectual Property, causing any of Our Intellectual Property to be framed or embedded in another website, or creating derivative works from any of Our Intellectual Property.
10.3 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and license, to use Your Materials, solely for the performance of our obligations under these Terms, and as otherwise contemplated by these Terms. If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with these Terms, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights for the purpose of providing the Services.
10.4 This clause will survive the termination or expiry of your Subscription.
11 Your Data
11.1 You own all data, information or content you and your Authorised Users upload into the Platform (Your Data), as well as any data or information output from the Platform using Your Data as input (Output Data). Note that Output Data does not include the Analytics (as described below).
11.2 You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data and the Output Data to:
(a) communicate with you (including to send you information we believe may be of interest to you);
(b) supply the Platform to you and otherwise perform our obligations under these Terms;
(c) diagnose problems with the Platform;
(d) maintain the security or integrity of the Platform;
(e) enhance and otherwise modify the Platform;
(f) perform Analytics;
(g) develop other services, provided we de-identify Your Data; and
(h) as reasonably required to perform our obligations under these Terms.
11.3 You agree that you are solely responsible for all of Your Data that you and your Authorised Users make available on or through the Platform. You represent and warrant that:
(a) you are either the sole and exclusive owner of Your Data or you have all rights, licenses, consents and releases that are necessary to grant to us the rights in Your Data (as contemplated by these Terms); and
(b) neither Your Data nor the posting, uploading, publication, submission or transmission of Your Data or our use of Your Data on, through or by means of our Platform will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
11.4 You agree that you will not upload any of Your Data (and ensure your Authorised Users do not upload) which:
(a) is defamatory, fraudulent, unlawful, threatening, intimidating, harassing, harmful, hateful, abusive, tortious, vulgar, obscene, invasive of another's privacy, sexist, racist, homophobic, violent, discriminatory or degrading;
(b) infringes the intellectual or other proprietary interests of third parties;
(c) attempts to solicit personal information from another user, except in a way that is compliant with the law;
(d) impersonates another person or entity;
(e) contains sexually explicit language or images, advertises or promotes the sale of products or services the Company considers to be inappropriate;
(f) contains spam, chain letters, pyramid and other such selling and marketing schemes, computer viruses, computer code, files or programs or other harmful components that are designed to interrupt, destroy, change or limit the functionality of the Platform or any other computer software, hardware or other electronic equipment, information which in any way impinges on another user's use or enjoyment of the Platform or otherwise breaches or encourages other users to breach of these Terms;
(g) violates any law, statute or regulation;
(h) forges information to disguise the origin of any of Your Data; or
(i) encourages or incites any other person to engage in any of the above behaviour.
11.5 We do not endorse or approve, and are not responsible for, any of Your Data.
11.6 Enforcement. We do not undertake to screen, review, edit, censor or otherwise filter and/or control Your Data or the behavior of users of Your Data and/or the Services. We may, at our discretion, review by manual or automated means, all data which is uploaded on the Platform, and monitor any areas of this Service where users transmit or post communications or communicate with each other or us (as applicable). We reserve the right (at our sole discretion) to investigate and take appropriate action against you if you violate the Terms or otherwise create liability for us or any other person. Such retained right shall be interpreted as coming under Your documented instruction for the processing of Personal Data. Such action may include, removing or modifying Your Data, terminating your Account, and/or reporting you to law enforcement authorities.
11.7 You acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Platform, in an aggregated and anonymised format (Analytics). You acknowledge and agree that we own all rights in the Analytics, and that we may use the Analytics for our own internal business purposes, provided that the Analytics do not contain any identifying information.
11.8 We are authorised to permanently delete Your Data where outstanding Fees remain unpaid in accordance with these Terms.
11.9 You acknowledge and agree that the Platform and the integrity and accuracy of the Output Data is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Platform.
11.10 You agree that we may use any feedback you provide, whether directly to us or on a third party platform, in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any feedback.
11.11 This clause will survive the termination or expiry of your Subscription.
12 Security & Storage
12.1 Security: You agree that you or your Authorised Users shall not do anything to prejudice the security or integrity of the Platform.
12.2 Vulnerabilities and defects: We agree to use reasonable commercial efforts to supply the Services free from defects and vulnerabilities. To the extent commercially feasible and reasonable, we further agree to remediate any such defects and vulnerabilities (with the exception of Third Party Services) within a reasonable time of us becoming aware of them.
12.3 Storage: We may limit the amount of data that you store on the Platform if your use of the Platform is deemed to exceed fair use, having regard to the Services and the Fees.
12.4 Feature Limitations: We reserve the right to prevent or stop you or your Users’ use of any features that appears to be abusive, puts the platform at risk or is unduly burdensome to the Platform. Features include, without limitation, CRM integrations, API usage, document automations, and some integrations such as Zapier. For more information on how this policy may apply to your Account, please contact customer support.
13 Warranties
13.1 You represent, warrant and agree that:
(a) you will not use our Platform, including Our Intellectual Property, in any way that competes with our business;
(b) you will provide us with any information that we require in order to provide the Services to you (for example, information that we need to set up the Account or get you onboarded);
(c) there are no legal restrictions preventing you from entering into these Terms;
(d) all information and documentation that you provide to us in connection with these Terms is true, correct and complete; and
(e) you have not relied on any representations or warranties made by us in relation to the Platform (including as to whether the Platform is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
(f) you are not and have not been insolvent;
(g) if applicable, you hold a valid ABN which has been advised to us; and
(h) if applicable, you are registered for GST purposes.
14 Australian Consumer Law
14.1 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).
14.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
14.3 Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
14.4 This clause will survive the termination or expiry of your Subscription.
15 Liability
15.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) you agree to indemnify us for any Liability we incur due to your breach of the Acceptance and Platform Licence clause and the Intellectual Property clause of these Terms;
(b) neither Party will be liable for Consequential Loss;
(c) each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party or any of that Party’s personnel (including a Party’s Authorised Users), including any failure by that Party to mitigate its losses; and
(d) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us repaying you the amount of the Fees paid by you to us in the 12 months immediately preceding the event to which the Liability relates.
16 Exclusions to liability
16.1 To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) any interruptions or downtime to the Platform as a result of any Scheduled or Emergency Maintenance;
(b) your Computing Environment;
(c) your, your Authorised Users’, or your Personnel’s acts or omissions;
(d) any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
(e) any works, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;
(f) any Third Party Services; and/or
(g) any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Your Data).
16.2 This clause will survive the termination or expiry of these Terms
17 Termination
17.1 Cancellation of Subscriptions: You may not cancel your Subscription until the expiry of the minimum term. After the minimum term you may request to cancel your Subscription at any time, with the following minimum notice periods applying:
Business Plans: 5 days prior to your next Payment Date
Enterprise Plans: 30 days prior to your next Payment Date
Once processed, your cancellation will take effect immediately & we will not refund any unused Fees previously paid. If you cancel your Subscription because we have changed the Subscription inclusions and the change has a substantial and adverse impact on you, or we have changed the Fees, then the termination of the Subscription will be immediate, and we will refund you for any Fees that you have paid upfront but have not been used on a pro-rata basis.
17.2 Minimum Period: Your account may be subject to a minimum term. Any such minimum term will be set out in your Account. Any alteration of your minimum term must be agreed in writing with us.
17.3 We may terminate these Terms at any time by giving 60 days’ written notice to you (Qwilr Termination). Where we exercise this right, we will refund, on a pro-rata basis, any Fees paid in advance by you.
17.4 Breach: Where a party is in breach of these Terms, the other party may issue a written notice (Breach Notice) outlining the nature of the breach, the actions required to remedy the breach and a reasonable time frame to remedy the breach (no less than 10 days). Failure to remedy a Breach Notice shall be a material breach of this Agreement (Material Breach).
17.5 A Subscription will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a)the other Party (Defaulting Party) is in Material Breach of these Terms;
(b)the Defaulting Party is insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth); or
(c) the Defaulting Party is unable to pay its debts as they fall due.
17.6 Should we suspect that you are in breach of these Terms, we may suspend your access to the Platform while we investigate the suspected breach. We may notify you that we have suspended your access, however, we are under no obligation to do so.
17.7 Upon expiry or termination of your Subscription:
(a) we will immediately cease providing the Services and remove your access to the Platform;
(b) we will be entitled to anonymise or permanently delete all Your Data after 1 month from expiry or termination of these Terms;
(c) you will be entitled to request that we permanently delete all of of Your Data, excluding that which has been aggregated and anonymised (e.g. for use in Analytics), and we will use all commercially reasonable efforts to comply with this request as required by applicable data protection law and technical feasibility;
(d) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms; and
(e) upon request by us, you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or Intellectual Property owned by us that is in your possession or control.
(f) you agree that other than where termination is due to a Qwilr Termination or our breach of these Terms, and to the maximum extent permitted by law, any payments made by you to us (including any Fees) are not refundable to you;
(g) where we terminate your Subscription for any reason other than a Qwilr Termination, you also agree to pay us our reasonable additional costs directly arising from such termination.
17.8 Termination of a Subscription will not affect any rights or liabilities that a Party has accrued under these Terms.
17.9 This clause will survive the termination or expiry of your Subscription.
18 General
18.1 Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
18.2 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
18.3 Confidentiality: Each receiving Party agrees to (and agrees to ensure that its Personnel do) keep confidential and not use or permit any unauthorised use of all Confidential Information of a Disclosing Party. This clause does not apply where the information is already in the public domain, the Receiving Party has the prior written consent of the Disclosing Party, the disclosure if required by law, the disclosure is required in order for the Receiving Party to comply with its obligation under these Terms or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with these Terms and provided the Receiving Party ensures the adviser complies with the terms of this clause. This clause will survive the termination or expiry of your Subscription.
18.4 Disputes: A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
18.5 Entire Terms: Subject to your Consumer Law Rights, these Terms (together with any Qwilr Proposal) contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
18.6 Force Majeure: To the maximum extent permitted by law, we shall have no Liability for any event or circumstance outside of our reasonable control.
18.7 Governing law: These Terms are governed by the laws of New South Wales, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales, Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
18.8 Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
18.9 Privacy: Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
18.10 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
18.11 Third party sites: The Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a third party website linked from the Platform, such third party provides the goods and services to you, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform (Affiliate Link) or for featuring certain products or services on the Platform. We will make it clear by notice to you which (if any) products or services we receive a benefit to feature on the Platform, or which (if any) third party links are Affiliate Links.
19 Definitions
19.1 Account Holder means the legal entity that has the Account with Qwilr.
19.2 Confidential Information includes information which is disclosed to the Receiving Party in connection with these Terms at any time, is prepared or produced under or in connection with these Terms at any time, relates to the Disclosing Party’s business, assets or affairs, or relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms, whether or not such information or documentation is reduced to a tangible form or marked in writing as ‘confidential’ and howsoever the Receiving Party receives that information.
19.3 Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and systems.
19.4 Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
19.5 Disclosing Party means the party disclosing Confidential Information to the Receiving Party.
19.6 Intellectual Property means copyright, registered or unregistered designs, patents or trademarks, any domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
19.7 Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.
19.8 Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
19.9 Personnel means in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
19.10 Qwilr Proposal: a linked document describing the Services and pricing purchased by you and which incorporates these Terms of Service.
19.11 Receiving Party means the party receiving Confidential Information from the Disclosing Party.
19.12 Third Party Services means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
19.13 Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned or licensed by you or your Personnel before creating an Account and/or developed by or on behalf of you or your Personnel independently of these Terms.
Please note that Qwilr does not accept red lines or changes to our Terms of Use by customers.
Redline requests will only be considered for Enterprise subscription plans and subject to minimum annual contract value limits.
Please contact a Qwilr sales representative for further information.
For any questions or notices, please contact us at:
Qwilr Pty Ltd ABN 23 168 533 793
Email: [email protected]
Last update: March 2023