Terms - Documently

INTRODUCTION

Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation to our Documently platform and services. You will be asked to agree to these terms and conditions before becoming a customer.

You should print a copy of these terms and conditions for future reference. We will not file a copy specifically in relation to you.

These terms and conditions are available in the English language only.

If you have any questions or complaints about our services, please contact us through the Contact Form on our website https://www.documently.com, or by writing to Documently Limited.

AGREEMENT:

1. Definitions and interpretation

1.1. In the Agreement:

“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

“Agreement” means the agreement between the Provider and the Customer for the provision of the Platform as a service, incorporating these terms and conditions (including the Schedules) and the Statement of Services, and any amendments to the Agreement from time to time;

“Anniversary Date” means the date of commencement of chargeable Services. Where the Charges are monthly, the Anniversary Date will be the same day as the immediately following month. Where Charges are Annual the Anniversary Date will be the same day as the immediately following year. The Anniversary Date will be deemed to be the last day of the same month for monthly Anniversary Dates between 28th and 31st where the month does not contain the applicable number of days;

“Business Day” means any week day, other than a bank or public holiday in the USA

“Business Hours” means between 09:00 and 17:30 USA Standard Time on a Business Day;

“Charges” means the amounts payable by the Customer to the Provider under or in relation to the Agreement;

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);

“Customer” means the person and/or entity identified as the owner of a registered account on the Platform;

“Customer Confidential Information” means

any information disclosed (whether disclosed in writing, orally, or otherwise) by the Customer to the Provider during the Term that is marked as “confidential”, described as “confidential” or should have been understood by the Provider at the time of disclosure to be confidential;
the Customer Materials; “Customer Materials” all works and materials:
1. uploaded to, stored on, processed using, or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer’s account; and
1. otherwise provided by the Customer to the Provider in connection with the Agreement;

“Documentation” means the documentation made available on the Platform to the Customer specifying how the Platform should be used;

“Effective Date” means the date that the Agreement comes into force as specified in Clause [3];

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, viruses, or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, and wars);

“GST” means USA Goods and Services Tax and is chargeable in the context where a Customer is within the USA

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

“Permitted Purpose” means the transmission of Content between parties in accordance with this Agreement and the Acceptable Use Policy set out in Schedule [1];

“Personal Data” has the meaning given to it in the USA Privacy Act 1993;

“Platform” means the software platform known as Documently that is owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under the Agreement;

“Provider” means Documently Limited, a company incorporated in the USA

“Schedule” means a schedule attached to the Agreement;

“Services” means all the services provided or to be provided by the Provider to the Customer under the Agreement;

“Statement of Services” means the online information made available by the Provider to the Customer during the order process that specifies the identity of the Customer, and other matters relating to the Agreement;

“Term” means the term of the Agreement; and

“Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug, or another issue in the Platform or enhancing the functionality of the Platform.

1.2. In the Agreement, a reference to a statute or statutory provision includes a reference to:

that statute or statutory provision as modified, consolidated, and/or re-enacted from time to time; and
any subordinate legislation made under that statute or statutory provision.

1.3. The Clause headings do not affect the interpretation of the Agreement.

1.4. The general rule is not intended to be used in the interpretation of the Agreement.

2. Changes

2.1 The Provider can change the Agreement at any time by providing the Customer at least 30 days prior notice of the change, whether via the Provider’s website or by sending the Customer an email. The Customer’s continued use after that notice means that the Customer agrees to the changed Agreement. If the Customer has paid Charges for a subscription that is due to expire after that 30-day notice period and the Customer does not wish to continue to use the Services under the new agreement, the Customer may terminate their subscription before the new agreement comes into force. The Provider will then (but not otherwise) refund the unexpired portion of the Customer’s subscription payment within 30 days and close the Customer’s account.

3. Agreement and Term

3.1. The advertising of the Platform and the Services on the Provider’s website constitutes an “invitation to treat”; and the Customer’s order for the Platform and the Services constitutes a contractual offer. No contract will come into force between the Provider and the Customer unless and until the Provider accepts the Customer’s order in accordance with the procedure detailed in this Clause [3].

3.2. The Provider’s privacy policy applies to all personal information provided to the Provider and forms part of the Agreement. By creating an account the Customer agrees to the Provider’s privacy policy. https://www.documently.com/privacy.

3.3. In order to enter into the Agreement, the Customer must take the following steps:

the Customer must create an account with the Provider’s website by supplying an email address and password;
once the Customer is logged in, the Customer must update their personal details, and consent to the terms of this Agreement;
after an account has been created, the Provider will send to the Customer an initial acknowledgment (at which point the Agreement will come into force)

3.4. Once in force, the Agreement will continue in force indefinitely, unless terminated in accordance with Clause [14].

4. The Platform

4.1. The Platform will automatically generate an account for the Customer enabling the Customer to access the Platform.

4.2. Subject to the limitations set out in Clause [4.3] and the prohibitions set out in Clause [4.4], the Provider hereby grants to the Customer a non-exclusive license to use the Platform for the Permitted Purpose via any standard web browser in accordance with the Documentation during the Term.

4.3. The license granted by the Provider to the Customer under Clause [4.2] is subject to the Customer complying at all times with the terms of the Acceptable Use Policy set out in Schedule [1], and must ensure that all users of the Platform agree to and comply with the terms of that Acceptable Use Policy.

4.4. Except to the extent mandated by applicable law or expressly permitted in the Agreement, the license granted by the Provider to the Customer under this Clause [4] is subject to the following prohibitions:

the Customer must not sub-license its right to access and use the Platform or allow any unauthorized person to access or use the Platform;
the Customer must not frame or otherwise re-publish or re-distribute the Platform;
the Customer must not alter or adapt or edit the Platform save as expressly permitted by the Documentation;

4.5. For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.

4.6. All Intellectual Property Rights in the Platform and any suggestions, enhancements, requests, recommendations, corrections, or other feedback provided by the Customer relating to the Platform shall, as between the parties, be the exclusive property of the Provider.

4.7. The Customer shall ensure that no unauthorized person will or could access the Platform using the Customer’s account.

4.8. The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.

4.9. The Customer must not use the Platform:

in any way that is unlawful, illegal, fraudulent, or harmful; or
in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.

5. Upgrades and Maintenance

5.1. During the Term the Provider may apply Upgrades to the Platform, and such Upgrades may result in changes in the appearance and functionality of the Platform

5.2. The Provider may from time to time suspend access to the Platform in order to carry out scheduled maintenance or Upgrades.

5.3. The Provider will endeavor to give the Customer advance notice of scheduled maintenance affecting access to the Platform, including details of the expected Platform downtime. The Customer acknowledges that advance notice from the Provider may not always be possible in the case of urgent maintenance.

6. Customer Materials

6.1. The Customer grants to the Provider a non-exclusive license to store, copy, transmit, and otherwise use the Customer Materials for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement.

6.2. Subject to Clause [6.1], all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.

6.3. The Customer warrants and represents to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of the Agreement, will be in accordance with the Acceptable Use Policy set out in Schedule [1] and will not:

breach any laws, statutes, regulations, or legally-binding codes;
infringe any person’s Intellectual Property Rights or other legal rights; or
give rise to any cause of action against the Provider, the Customer, or any third party, in each case in any jurisdiction and under applicable law.

6.4. Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause [6], the Provider may:

delete or amend the relevant Customer Materials; and/or
suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.

6.5. Any breach by the Customer of this Clause [6] will be deemed to be a material breach of the Agreement for the purposes of Clause [13].

7. Charges

7.1. The Charges in respect of access to and use of the Platform shall be made up of two elements, a fixed Charge, and a variable Charge.

7.2. The fixed Charge will be determined by the selected membership tier as outlined on the pricing page of the Provider’s website at https://www.documently.com/pricing plus GST (if any) per month, which shall be invoiced by the Provider on the Anniversary Date.

7.3. The variable Charges will be determined by the Customer’s selection of optional additional Services as outlined on the pricing page of the Provider’s website at https://www.documently.com/pricing. The variable Charges will be plus GST (if any) and invoiced by the Provider on the earlier of,

the time of selection and order by the Customer; or
when the available Customer balance falls below the Customer’s selected top-up threshold

7.4. The Customer will be liable to pay the Charges on the Anniversary Date. Charges must be paid by credit card and will be automatically deducted by the Provider on the Anniversary Date, or at the timing, as outlined in Clause [7.3].

7.5. All Charges stated in or in relation to the Agreement are stated exclusive of GST unless the context requires otherwise. GST will be payable by the Customer to the Provider in addition to the principal amounts.

7.6. The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under the Agreement are overdue.

8. Helpdesk

8.1. The Provider will make available, during Business Hours, an email helpdesk facility for the purposes of:

assisting the Customer with the proper use of the Platform; and/or
determining the causes of errors and fixing errors in the Platform.

8.2. The Customer must make all requests for support services through the helpdesk.

9. Warranties

9.1. The Customer warrants to the Provider that it has the legal right and authority to enter into and perform its obligations under the Agreement.

9.2. The Customer acknowledges that:

complex software is never wholly free from defects, errors, and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors, and bugs;
the Provider does not warrant or represent that the Platform will be compatible with any application, program, or software not specifically identified as compatible in the Statement of Services; and
the Provider will not and does not purport to provide any legal, taxation, or accountancy advice under the Agreement or in relation to the Platform, and the Provider does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.

9.3. All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.

9.4. The Customer agrees that it is using the Services for the purposes of a business and the Consumer Guarantees Act 1993 (NZ) and any other similar consumer protection legislation in any jurisdiction does not apply to the Services or the Agreement and that it is fair and reasonable that the parties are bound by this clause.

10. Indemnities

10.1. The Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs, and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause [6.3].

11. Limitations and exclusions of liability

11.1. Nothing in the Agreement will:

limit or exclude the liability of a party for death or personal injury resulting from negligence;
limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
limit any liability of a party in any way that is not permitted under applicable law; or
exclude any liability of a party that may not be excluded under applicable law.

11.2. The limitations and exclusions of liability set out in this Clause [11.2] and elsewhere in the Agreement:

are subject to Clause [11.1];
govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence), and for breach of statutory duty; and

11.3. The Provider will not be liable in respect of any loss of profits, income, revenue, use, production, or anticipated savings.

11.4. The Provider will not be liable for any loss of business, contracts, or commercial opportunities.

11.5. The Provider will not be liable for any loss of or damage to goodwill or reputation.

11.6. The Provider will not be liable in respect of any loss or corruption of any data, database, or software.

11.7. The Provider will not be liable in respect of any special, indirect, or consequential loss or damage.

11.8. The Provider will not be liable for any losses arising out of a Force Majeure Event.

11.9. The Provider’s liability in relation to any event or series of related events will not exceed the lesser of:

USD$500; and
the total amount paid and payable by the Customer to the Provider under the Agreement during the 12-month period immediately preceding the event or events giving rise to the claim.

12. Data protection

12.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.

12.2. The Provider warrants that it has in place applicable security measures against unauthorized processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer.

13. Confidentiality

13.1 The Provider will:

keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause [13];
protect the Customer Confidential Information against unauthorized disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and
without prejudice to the generality of Clause [13.1(b)], deploy and maintain security systems and technologies in relation to the Customer Confidential Information held on the Platform.

13.2. Customer Confidential Information may be disclosed by the Provider to its officers, employees, agents, insurers, and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Customer Confidential Information disclosed.

13.3. The obligations set out in this Clause [13] shall not apply to:

Customer Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer;
Customer Confidential Information that is received by the Provider from an independent third party who has a right to disclose the relevant Confidential Information; or
Customer Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange, or regulatory body.

14. Termination

14.1 The Provider may terminate the Agreement immediately by giving written notice to the Customer if the Customer:

commits any material breach of any term of the Agreement;
persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach); or
becomes insolvent, liquidated, or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.

14.2. The Customer may terminate the Agreement at any time by giving written notice of termination to the Provider, or following the account closure procedure outlined on the Provider’s website.

14.3. The Provider may terminate the Agreement by giving two (2) months’ written notice of termination to the Customer.

15. Effects of termination

15.1. Upon termination of the Agreement, all the provisions of the Agreement will cease to have an effect, save that the following provisions of the Agreement will survive and continue to have the effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 10, 11, 13, 15 and 18].

15.2. Termination of the Agreement will not affect either party’s accrued liabilities and rights as at the date of termination.

16. Notices

16.1. Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be sent by post, or sent by email, (or as notified by one party to the other in accordance with this Clause).

17. Force Majeure Event

17.1. Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

17.2. A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will:

forthwith notify the other; and
will inform the other of the period for which it is estimated that such failure or delay will continue.

17.3. The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

18. General

18.1. No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

18.2. If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

18.3. The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

18.4. The Provider may freely assign any or all of its contractual rights and/or obligations under the Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time.

18.5. The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to the Agreement are not subject to the consent of any third party.

18.6. Subject to Clause [11.1]:

the Agreement and the Acceptable Use Policy set out in Schedule [1] herein constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and supersede all previous agreements, arrangements, and understandings between the parties in respect of that subject matter; and
neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

18.7. The Agreement will be governed by and construed in accordance with the laws of the USA, and the courts of the USA will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

These terms were last updated on [27.06.2019]

SCHEDULE 1

ACCEPTABLE USE POLICY

(1) This Policy

This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of our web services available via https://app.documently.com (the “Service”) and any content that you may submit to the Service (“Content”).

By using the Service, you agree to the rules set out in this Policy.

(2) General restrictions

You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.

You must not use the Service:

in any way that is unlawful, illegal, fraudulent, or harmful; or
in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.

(3) Licence

You grant us a worldwide, irrevocable, non-exclusive, royalty-free license to publish and distribute your Content on and in relation to the Service.

(4) Unlawful and illegal material

You must not use the Service to store, host, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party’s legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).

Content (and its use on the Service) must not:

be libelous or maliciously false;
be obscene or indecent;
infringe any copyright, moral rights, database rights, trademark rights, design rights, rights in passing off, or other intellectual property rights;
infringe any rights of confidence, rights of privacy, or rights under data protection legislation;
constitute negligent advice or contain any negligent statement;
constitute an incitement to commit a crime;
be in contempt of any court, or in breach of any court order;
be in breach of racial or religious hatred or discrimination legislation;
be blasphemous;
be in breach of official secrets legislation; or
be in breach of any contractual obligation owed to any person.

You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaints.

(5) Data mining

You must not conduct any systematic or automated data collection activities (including scraping, data mining, data extraction, and data harvesting) on or in relation to the Service.

(6) Harmful software

You must not use the Service to promote or distribute any viruses, Trojans, worms, rootkits, spyware, adware, or any other harmful software, programs, routines, applications, or technologies.

You must not use the Service to promote or distribute any software, programs, routines, applications, or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.

(7) Marketing and spam

Content must not constitute spam.

You must not use the Service to transmit or send unsolicited commercial communications.

You must not use the Service to market, distribute or post chain letters, Ponzi schemes, pyramid schemes, matrix programs, “get rich quick” schemes, or similar schemes, programs, or materials.

(8) Gambling

You must not use the Service for any purpose related to gambling, gaming, betting, lotteries, sweepstakes, prize competitions, or any gambling-related activity.

(9) Hyperlinks

You must not link to any website or web page containing material that would be it posted on the Service, breach the preceding terms of this Policy.

(10) Breaches of this Policy

We reserve the right to edit or remove any Content in our sole discretion for any reason, without notice or explanation.

Without prejudice to this general right and our other legal rights, if you breach this Policy in any way, or if we reasonably suspect that you have breached this Policy in any way, we may:

delete or edit any of your Content;
send you one or more formal warnings;
temporarily suspend your access to a part or all of the Service; and/or
permanently prohibit you from using a part or all of the Service.

(11) Banned users

Where we suspend or prohibit your access to the Service or a part of the Service, you must not take any action to circumvent such suspension or prohibition (including without limitation using a different account).

(12) Monitoring

Notwithstanding the provisions of this Policy, we do not actively monitor Content.

(13) Report abuse

If you become aware of any material on the Service that contravenes this Policy, you must notify us by email.