Updated October 2023.
The following terms and conditions of use (“Terms”) apply to the access and use of the Platform and Services (including all Content) (together, the “VenueSumo Services”) by you as the customer (“You”, “Your”) and VenueSumo Pty Limited ACN 667 285 145 of 1/597 Church Street, RICHMOND VIC 3121 and its related bodies corporate and associates (as these terms are defined in the Corporations Act 2001 (Cth)) as the supplier (“We”, “Us”, “Our”). These Terms constitute a legally binding agreement between You and Us. By clicking to accept or agree to these Terms where and if this option is made available to You when registering for or logging in to the Platform, You are accepting and agreeing to be bound by these Terms. These Terms take precedence over any terms contained in any document of Yours or included elsewhere.
1. Eligibility
You represent and warrant to Us that Your access and use of the VenueSumo Services are wholly or predominantly for business purposes and not for personal, domestic or household use or consumption. You further represent and warrant that You have the power and authority to bind the company, organisation, association or agency on whose behalf You access and use the VenueSumo Services to these Terms.
2. Accessing the VenueSumo Services
Right to use
Subject to these Terms and for the duration of the relevant Subscription Plan, We grant You a non-exclusive, limited, revocable, non-assignable and non-sublicensable right to access and use the VenueSumo Services and the Documentation (as that term is defined below), for the sole purpose of enjoying the benefits of the VenueSumo Services as intended under these Terms. Except for the rights expressly granted to You under these Terms, no other licence, right, or interest in any Intellectual Property Rights in and to the VenueSumo Services and the Documentation, or any part of them is granted to You.
System Requirements
You must meet the minimum system specifications and requirements for accessing and using the VenueSumo Services as set out on the Platform (as amended or updated from time to time) or otherwise notified to You (“System Requirements”). You release and indemnify Us from and against any Claims arising directly or indirectly from You failing to meet the System Requirements.
Third Party Programs
Certain services available on the Platform may, from time to time, contain or be accompanied by other programs, including open source programs, which are the property of third parties (“Third Party Programs”). Any terms for the use of Third Party Programs will be provided with or accessible through the Platform or the Third Party Program. By using the VenueSumo Services, You are taken to have accepted the terms for use of such Third Party Programs.
Third Party Components
If You install or use any third party component or product on or in conjunction with the VenueSumo Services, including to integrate the Platform with any other application or software used by You (“Third Party Component”), You are solely responsible for such Third Party Components and release Us from any Claim arising in connection with the use of such Third Party Components.
If You use a Third Party Component in conjunction with the VenueSumo Services, You acknowledge that We may allow the providers of those Third Party Components to access such of the Data as required for the interoperation of such Third Party Components with the VenueSumo Services. We are not responsible for any disclosure, modification or deletion of the Data resulting from any such access by Third Party Component providers. At all times, We reserve the right to decide which Third Party Components are used and supported for integration with VenueSumo Services and may discontinue or disallow such use and support of these Third Party Components by providing to You 30 days email notification, unless agreed otherwise.
Documentation
The VenueSumo Services may be provided with a user manual or other explanatory documentation relating to the use of the VenueSumo Services in either printed or electronic form (“Documentation”). You must ensure that Your use of the VenueSumo Services complies with the Documentation. You may copy any Documentation only on the basis that the copies are used solely in connection with Your use of the VenueSumo Services and not for any other purpose, including for distribution to any third party.
3. Support, maintenance and enhancements
No obligation to provide
Unless otherwise expressly agreed in writing or referenced in these Terms, We will have no obligation to provide any:
(a) installation, support or maintenance services; or
(b) updates, upgrades or new releases (each an “Enhancement”),
with respect to the VenueSumo Services.
If We do offer any such services or Enhancements, as a condition of so doing, You may be required to execute a separate services agreement with Us or Our affiliates (“Services Agreement”).
Internet and Enhancements
You acknowledge and agree that the Platform may incorporate code which automatically checks for Enhancements using Your Internet connection.
Maintenance
You acknowledge that We may carry out scheduled or unscheduled maintenance from time to time in order to provide the VenueSumo Services. We reserve the right to suspend access to the VenueSumo Services during any scheduled or unscheduled maintenance. We shall notify You via email or via our website at least 24 hours in advance of any scheduled maintenance that exceeds the time limit of 60 minutes and shall use our best efforts to do the same for any unscheduled maintenance, where it is possible.
Technical Support
We may provide technical support to You and Your Users at Your reasonable request. We will endeavour to respond to enquiries of support received through the contact methods below as soon as reasonably possible or as advertised on the Platform from time to time.
The contacts for all enquiries of support are:
(a) built-in live-chat application on the Platform,
(b) phone: +61 1800 431 500
(c) e-mail: support@venuesumo.com
(d) Call-back Critical support: +61 1800 431 500
All Subscription Plans include the above described technical support with the exception of the “Junior Sumo” Subscription Plan, which does not include any Call-back critical phone support.
Defects and rectifications
You agree to report any Defect to Us as soon as reasonably practicable after becoming aware of any such Defect in respect of the VenueSumo Services.
We will evaluate Defects based on their impact to Our user base and will prioritise the rectification of such Defects at Our sole discretion. We will use reasonable endeavours to rectify any Defect that We consider a priority within a reasonable period of time after notification.
You acknowledge and agree that We are not required to make the VenueSumo Services function in a way that may be preferred by You or which is not a Defect included in the VenueSumo Services and that is used satisfactorily by other users of the VenueSumo Services.
Modifications
From time to time, and in Our sole discretion, We will have the right to suspend, add to, modify, or remove any part of the VenueSumo Services (including in relation to any Subscription Plan) without liability under these Terms. If We do so, We will use reasonable endeavours to replace any part of the VenueSumo Services with an equivalent where practicable. You agree to accept such modification(s) (if any) as part of these Terms. We shall provide You with notice of any such suspension, addition, modification or removal of any part of the VenueSumo Services.
4. Using the VenueSumo Services
Subscription Plans
We provide different Subscription Plans to support Your needs in accessing the VenueSumo Services. We may permit changing of Subscription Plans in accordance with these Terms subject to You agreeing to pay any relevant charges relating to such change and any increase or difference in Fees (which may be pro-rated depending on timing of change).
Details of each Subscription Plan are provided on the Platform and may include:
(a) Paid monthly subscription, including the below (as amended or replaced from time to time in Our sole discretion):
(i) Junior Sumo – Entry Tier subscription;
(ii) Big Sumo – Regular subscription;
(iii) Enterprise – Enterprise subscription with custom terms.
Reference to the VenueSumo Services include the features of each Subscription Plan You subscribe to from time to time, including the maximum number of Users that You are allowed to authorise to access and use the VenueSumo Services on Your behalf. You may request for Us to add additional Users to Your Subscription Plan.
Waiver Management
VenueSumo Services has a waiver management feature which allows You to collect legal waivers from Your customers. You understand that any use of the waiver management feature is Your sole responsibility, and You shall seek independent legal advice on any waiver releases you use on the VenueSumo Services.
3rd Party Payment Processors
In order to use and access VenueSumo Services, We may require you to open and maintain a 3rd party payment processor provider, in order for You to process payments from Your customers. You agree to familiarise and comply with all such applicable terms of use with respect to these 3rd party payment processor providers. We will provide with a list of approved 3rd party payment processors which We support and VenueSumo is compatible with. We reserve the right to remove or replace any 3rd party processors from our approved list at any given time in our sole discretion.
Registration
The access to and use of the VenueSumo Services may require You to register with Us or open an account. To do so, You must complete the registration process in the manner described on the Platform. By registering with Us, You agree that all information (including Data) You provide is accurate and up to date and does not infringe any person’s rights. Your registration may be subject to Us specifically approving Your registration in the manner set out on the Platform or as otherwise determined by Us in Our absolute discretion. We may also, in Our discretion, impose additional due-diligence requirements after Your account has been opened in circumstances where We consider such requirements to be necessary, including in order to verify Your details or identity. You must also update Your details if any of them change. We reserve the right to periodically request additional and up-to-date documentation or details from You, in order to ensure that Your records are up to date.
Registration is non-transferable. You are responsible for all of the activities that occur under Your account, including the activities of any and all Users (as that term is defined in this clause 4). You should carefully choose Your, and must procure that Your Users carefully choose their, individual password and username. You must protect, and must procure Your Users protect, such passwords and usernames from unauthorised use. You must let Us immediately know of any unauthorised use of Your account or any other breach of security. We are not liable for, and You release and indemnify Us from and against any Claims arising directly or indirectly if someone else, other than You or Your Users, uses Your account.
Limited access to Users
You must limit access to the VenueSumo Services to Your Personnel, and other persons that have been authorised by You to access and use the VenueSumo Services on Your behalf, in accordance with the applicable Subscription Plan (“User”). You must use all reasonable efforts to prevent unauthorised access to or use of the VenueSumo Services by any person who is not a User and must promptly notify Us if You discover any such unauthorised access or use.
You must ensure all Users who access and use the VenueSumo Services are made aware of and comply with these Terms as if they were You. We may at any time require You to ensure that any and all Users accept a separate agreement (such as an online “click-wrap” agreement) with Us, which substantially gives effect to these Terms, prior to the User accessing or using the VenueSumo Services.
Restrictions on use of the VenueSumo Services
You must not, and must not cause, permit or assist any User or any other third party directly or indirectly, to:
(a) copy, record, replicate, translate, reverse engineer, decompile, disassemble the VenueSumo Services (or any part of the VenueSumo Services); or
(b) otherwise attempt to determine the source code, object code, ideas or algorithms of or included in any computer program or software forming part of, or that is used in connection with, the VenueSumo Services.
You must not, and must not permit any User or any other third party, to:
(a) use the VenueSumo Services for any unlawful purposes or other purpose that We reasonably determine is inappropriate or unintended;
(b) infringe any laws, third party rights or Our policies, procedures or guidelines (including Our privacy policy);
(c) circumvent or manipulate the fee structure, billing process, or Fees owed to Us;
(d) post, upload or provide false, misleading, inaccurate, defamatory or offensive content or information on the VenueSumo Services or to Us;
(e) take any action which causes or may cause the provision of the VenueSumo Services to other users to be interrupted or degraded;
(f) use the VenueSumo Services in connection with any commercial endeavours except for those that have been specifically permitted under these Terms or approved by Us;
(g) upload or download, copy, modify or distribute files that contain software or other material protected by Intellectual Property Rights (or by rights of confidentiality or privacy, where applicable) unless You own or control such Intellectual Property Rights or have received all necessary consents;
(h) remove any copyright notices, titles, trademarks, logos, trademark notices or any other proprietary marks on, or that are part of, the VenueSumo Services; or
(i) alter, merge, modify, adapt or enhance the VenueSumo Services (unless and to the extent this is enabled on the Platform or that We have expressly agreed in writing).
We may remove from, or refuse to display on, the Platform anything that We think is inappropriate or in breach of these Terms in Our absolute discretion. You indemnify Us from any Claims that arise out of any action We may take in accordance with this paragraph.
Except to the extent expressly permitted under these Terms, You must not, nor permit others to, lend, sell, rent, lease, license, commercialise, publish or otherwise create any Security Interest in the VenueSumo Services (or any part of the VenueSumo Services).
Compliance with applicable laws
You are responsible for ensuring that Your and all Users’ use of the VenueSumo Services complies with all applicable laws and regulations, and You must not use, or allow any User to use, the VenueSumo Services for any illegal purpose.
5. Your warranties and responsibilities
Without limiting anything else in these Terms, You acknowledge and agree that You:
(a) will cooperate with Us, including by making available information and Personnel as reasonably required by Us, so that We can provide access to and enable use of the VenueSumo Services;
(b) are responsible for all networks, systems, Internet services, telecommunications and any other facilities (including any associated fees and charges) used or required for You (and any User) to access and use the VenueSumo Services; and
(c) are responsible for backing up any data (including Data) You may have on any computer or storage device which is to be the subject of, or otherwise used in the performance of, the VenueSumo Services or any other services provided by Us.
6. Security and integrity
While We endeavour to adhere to best practice policies and procedures to prevent data loss, We do not guarantee that there will be no loss of data and We expressly exclude liability for any loss of data unless caused by Our negligence, fraud, dishonesty or wilful misconduct.
You must not violate the security of the VenueSumo Services in any way. We may suspend or terminate Your rights under these Terms and Your access to the VenueSumo Services if We suspect any security violation in accordance with clause 16.
We may also inform any law enforcement body of any suspected unauthorised or criminal activity. Examples of security violations include:
(a) attempting to gain unauthorised access to any part of the VenueSumo Services, servers or system infrastructure You were not intended to have access to;
(b) using or attempting to use any engine, software, tool, agent, or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the VenueSumo Services for any purpose, including use on third party websites;
(c) attempting to probe, scan, or test the vulnerability of the VenueSumo Services or any associated system or network, or breaching security or authentication measures without proper authorisation;
(d) interfering with or otherwise circumventing mechanisms in the VenueSumo Services intended to limit Your use;
(e) using the VenueSumo Services in a way that was not intended by Us;
(f) interfering with or disrupting (or attempting to interfere or disrupt) any servers or networks connected to the VenueSumo Services; or
(g) sending to or storing on the Platform any harmful code (including, for example, any computer virus, trojan, worm or other code that is harmful or disabling or which assists in or enables unauthorised access to or corruption of data).
7. Payment
Access to, and use of, the VenueSumo Services or any part or feature of the VenueSumo Services, may be subject to payment of certain Fees by You.
You may be entitled to a Free Trial. If the period of Free Trial has expired, Your account will be automatically placed on hold and be accessible on a ‘read only’ basis. In order to reactivate Your account, You will be required to select a suitable Subscription Plan and pay the applicable Fee.
You must pay the Fees in advance and at the rate and in the manner specified for Your Subscription on the Platform, or as otherwise notified to You by Us. Different rates may apply to different Subscription Plans. You also agree to reimburse Us or any of Our affiliates for any additional expenses or charges as notified to You, including charges for changing Subscription Plans, initial set up costs, or adding additional Users to Your Subscription Plan (if and as relevant). You must pay the expenses or charges (if any), without set-off or deduction, within the timeframe set out on Our or Our affiliates’ invoice.
You acknowledge that the continued availability of any part or feature of the VenueSumo Services may be conditional upon continued payment of the Fees. You also acknowledge and agree that We may change the Fees at any time, subject to the terms relevant to the variation of these Terms contained in clause 17. We will use our best endeavours to notify You of any changes to the Fees before they come into effect. In addition to Your rights contained in clause 17 with respect to the variation of these Terms, if You do not accept the Fees or any changes to the Fees, You must not access or use the VenueSumo Services or any part of the VenueSumo Services and may terminate these Terms in accordance with clause 16.
Unless specifically stated otherwise, the Fees are exclusive of GST (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth)) and other similar taxes imposed in any jurisdiction in connection with the supply of the services performed or provided by the VenueSumo Services to You (“Taxes”). Where applicable, You agree to pay such Taxes imposed in connection with Your use of the VenueSumo Services.
8. Refunds
To the maximum extent permitted by law, and except as expressly provided otherwise in these Terms, We are not obligated to provide refunds of any Fees paid by You, however We may offer a refund where We determine that extenuating circumstances apply.
9. Confidential Information
Any information that has been identified as being proprietary or confidential or that by the nature of the circumstances surrounding disclosure of such information ought to be treated as proprietary or confidential (“Confidential Information”) disclosed or otherwise made known to any person under these Terms must only be used to enjoy the rights and carry out the obligations granted or required under these Terms.
You must take all reasonable measures to protect the secrecy of and avoid unauthorised disclosure or use of any of Our Confidential Information. You agree to immediately notify Us in writing of any unauthorised disclosure, misuse or misappropriation of such Confidential Information. You will ensure that Your Personnel will comply with such confidentiality obligation as if they were You.
If You become legally obligated to disclose any of Our Confidential Information to any judicial, governmental or regulatory entity with jurisdiction over You, You will give Us prompt written notice sufficient to allow Us to seek a protective order or other appropriate remedy. You will disclose only such information as is required by the judicial, governmental or regulatory entity and will use Your best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.
All Our Confidential Information will remain the exclusive property of Us, and You will have no rights, by license or otherwise, to use Our Confidential Information except as expressly provided in these Terms. You will promptly return or destroy all tangible material embodying Our Confidential Information (in any form and including all summaries, copies and excerpts of Our Confidential Information) on Our written request or if We terminate Your rights under these Terms and Your access to the VenueSumo Services.
You acknowledge that the VenueSumo Services contain Our (and where applicable, Our licensors’) valuable Confidential Information and other proprietary information. You agree that any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of such Confidential Information and other proprietary information, or any actual or threatened breach of these Terms, may cause Us immediate, irreparable harm for which monetary damages alone would be an inadequate remedy and that, to the extent permitted by law, We are entitled to seek any alternate relief (including injunctive or equitable relief) in relation to any such actual or threatened breach.
We will not disclose Your Confidential Information to any third party without Your prior written consent except if We become legally obligated to so disclose. We will take all reasonable measures to avoid unauthorised disclosure or use of Your Confidential Information and will notify You of any such disclosures.
For the purposes of this clause 9, Our Confidential Information includes without limitation any of Our or Our affiliates’ (as relevant) proprietary materials, trade secrets, technical data and Intellectual Property Rights (including with respect to the VenueSumo Services and the Documentation).
10. Privacy
When You use the VenueSumo Services, You may send personal information (as that term is defined in the Privacy Act 1988 (Cth)) to Us. We will use, store and handle this personal information in accordance with the requirements of the Privacy Act 1988 (Cth) that apply to Us and Our privacy policy which is accessible at https://venuesumo.com/privacy-policy/. Our privacy policy applies to You and Your use of the VenueSumo Services at all times.
We will not provide Your or any of Your User’s personal information to any third parties without Your or Your respective User’s explicit consent, unless We are required to by law. We may use Your or any of Your User’s personal information only as described in Our privacy policy. You can access and modify any of Your or Your Users’ information under Your account.
You authorise Us to conduct credit checks and risk assessments through third parties and allow us to make enquiries to verify Your identity and information You have provided to Us is accurate, complete, not misleading, or deceptive. We reserve the right to decline to You access to VenueSumo Services and terminate these Terms in the event You have any adverse credit history or ratings as a result of Our checks.
11. Your Data
Uploading Data to the Platform
If You upload or enter Data to the Platform, any processing of such Data will be in accordance with these Terms and applicable law. All rights, title and interest in and to the Data belong to You or third persons (including Users or Your licensors) whether posted or uploaded by You or made available on the VenueSumo Services by Us. By uploading Data to the Platform, You authorise Us to process that Data and generate other data and information from that Data in accordance with these Terms.
You are responsible for ensuring that any Data you post, upload or display on or through the Platform:
(a) does not violate any of these Terms, Our rights, the rights of other users or third parties;
(b) is not harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful;
(c) is accurate, complete and up-to-date;
(d) is not misleading or deceptive;
(e) does not contravene any applicable laws or infringe any Intellectual Property Rights of third parties, including the rights of confidentiality or privacy; and
(f) You or Your Users have the necessary rights to enter the Data and use the Data, including to insert it into the Platform and process it under Your account and to allow Us the right to use that Data subject to these Terms and Our privacy policy.
No liability
You understand that all use of Data is Your sole responsibility and We are not responsible for any Data that is uploaded, entered, transmitted, or otherwise made available on or through the VenueSumo Services, as well as for any reasonable actions taken by Us based on or as a result of such Data.
You acknowledge and agree that any Claim made in respect of ownership of, title to, or use of Data by any third party is Your sole responsibility and We will not be liable for any such Claim. You agree to indemnify Us from any such Claims arising in relation to Data under this clause 11.
12. Intellectual Property Rights
Our Intellectual Property Rights
The VenueSumo Services and the Documentation, (including all Intellectual Property Rights in and to VenueSumo Services and the Documentation) are owned by, and remain with, Us (or Our third party licensors as the case may be) and, other than as expressly set out in these Terms, You do not have any rights or licence to use any or part of the VenueSumo Services, and the Documentation, nor to copy, reproduce or provide to any third party in any medium or manner without Our prior written consent. All rights not expressly granted under these Terms are reserved by Us.
New products
You acknowledge that:
(a) We may develop and market new or different software applications, enhancements, modifications or adaptations that may use or contain portions of the VenueSumo Services (or any associated source code), which may have some or all of the functionality of the VenueSumo Services; and
(b) nothing in these Terms automatically affords You any rights in relation to such applications, enhancements, modifications or adaptations, unless these form part of Your Subscription Plan.
Your Data and Intellectual Property Rights
You (or Your licensors, as applicable) will continue to own any and all Intellectual Property Rights in the Data. However, You agree to grant Us a perpetual, non-exclusive, assignable, worldwide and royalty free licence (with a right to sub-license) to use, store, reproduce, adapt, communicate, publish, display and distribute the Data in connection with Your access and use of the VenueSumo Services under these Terms.
You acknowledge and agree that We may use the Data (including all Intellectual Property Rights in the Data) in the marketing and promotion of the VenueSumo Services, provided that:
(a) such use is in compliance with Your branding guidelines as provided to Us from time to time;
(b) We will not modify or adapt Your name, logo or trademarks in any way without Your prior written consent (other than by way of reduction or enlargement in size in compliance with Your branding guidelines);
(c) We will provide You with samples of all advertising, literature, brochures, and other material prior to actual use or publication; and
(d) We will not distribute any advertising, literature, brochures or other material without Your prior written approval.
You represent and warrant to Us that You are authorised to grant the rights and licence, as described in this clause, to Us.
Aggregated Data
You acknowledge that We may de-identify results, data, trends, and other information generated with respect to the VenueSumo Services or aggregate it in such a way that it cannot be used to identify You or any of Your Users or any individual (“Aggregated Data”). We may disclose Aggregated Data for any purpose We see fit, including to advertisers and other third parties for commercial, marketing, research, and promotional purposes. We will not re-identify, or permit the re-identification of, any Aggregated Data.
To the extent the Aggregated Data contains any Data, You grant to Us a non-exclusive, worldwide, royalty-free, perpetual, and irrevocable licence (including the right to sublicense) to such Data for the purposes of Us using, adapting, storing, communicating, commercialising and otherwise exploiting the Aggregated Data as we see fit.
13. Reliance on the VenueSumo Services
Our responsibilities
We represent and warrant that:
(a) We will provide the VenueSumo Services with reasonable care and skill and in compliance with applicable laws;
(b) We are able to lawfully grant the rights expressly set out in these Terms; and
(c) the VenueSumo Services will not infringe the Intellectual Property Rights of any person.
No warranty
You acknowledge and agree that:
(a) the VenueSumo Services are provided “as is” and “as available”;
(b) We exclude, to the maximum extent permitted by law, all warranties, conditions, claims and representations with respect to the VenueSumo Services, except to the extent expressly set out in these Terms;
(c) We do not warrant:
(i) against interference with Your enjoyment of the VenueSumo Services;
(ii) that the functions contained in or services performed or provided by the VenueSumo Services will meet Your requirements or will be fit for a particular purpose;
(iii) that the operation of the VenueSumo Services will be uninterrupted or error free;
(iv) without limiting clause 4, that the VenueSumo Services will be free from viruses or anything else that has contaminating or destructive properties including where such results in loss of or corruption to any data (including Data) or information; or
(v) subject to clause 3, that any defects in the VenueSumo Services will be detected or corrected; and
(d) without limiting the above, We do not represent, warrant or undertake that any Content that may be inaccurate or incomplete will be detected or corrected.
Release and indemnity
1. Subject to Our responsibilities listed in this clause 13, and without limiting any other indemnities specified elsewhere in these Terms, You release and indemnify Us and Our Personnel from and against any and all Claims that arise directly or indirectly as a result of:
(a) You or Your Users accessing or using the VenueSumo Services;
(b) any activity which You or Your Users engage in with or through the VenueSumo Services;
(c) any breach of these Terms by You or Your Users;
(d) any breach of any rights of a third party by You or Your Users;
(e) any breach of any applicable law by You or Your Users; or
(f) any Claims made against Us by any third party due to or arising out of Your or any of Your User’s breach of these Terms, or Your or any of Your User’s infringement of any law or the rights of a third party in the course of using the VenueSumo Services.
2. We release and indemnify You and Your Personnel from and against any and all Claims that arise directly or indirectly as a result of Our negligence, fraud, dishonesty or wilful misconduct.
14. Exclusion and limitation of liability
Exclusion of liability
To the maximum extent permitted by law, neither party is liable (whether in contract, tort or otherwise) to the other for Consequential Loss arising out of or in connection with these Terms or the VenueSumo Services however caused, even if that party or either party’s Personnel knew of the possibility of such Claims or it was otherwise foreseeable.
Limitation of liability
If any exclusion or limitation of any liability or warranty contained in these Terms, is ineffective, or if a condition, warranty or term is implied in relation to these Terms or the VenueSumo Services, to the maximum extent permitted by law, Our liability will be limited, at Our election, to the resupply of any services performed or provided by the VenueSumo Services or the payment of the cost of having such services resupplied.
Total liability
Notwithstanding any other provision of these Terms, to the maximum extent permitted by law, in no event shall the liability of a party or that of it’s Personnel’s exceed the aggregate of Fees You have paid to Us for the preceding 12 months.
15. Force majeure
Neither We nor You will be responsible for failure or delay of performance of these Terms if the failure or delay is caused by an event outside Our or Your reasonable control. We will use and You must use reasonable efforts to mitigate the effect of a force majeure event.
16. Termination and suspension
Suspension
We may, at Our discretion, suspend Your access to the VenueSumo Services (or any part of the VenueSumo Services), or otherwise suspend Your rights under these Terms, if We suspect that You are in breach of any provision of these Terms until such time as We are satisfied that no breach has occurred. We undertake to act reasonably with respect to any suspension.
Termination by You
You agree that Your subscription to the VenueSumo Services will renew at such intervals as applicable to Your Subscription Plan unless You terminate Your Subscription Plan in accordance with this paragraph prior to the relevant renewal date. You may terminate Your Subscription Plan by providing at least 30 days written notice to Us prior to the renewal date, or by other means specified by Us, You may terminate Your access to all or part of the VenueSumo Services, including by way of terminating Your then current Subscription Plan in order to subscribe for or upgrade to another Subscription Plan. We will provide you notice reminding you of the renewal period prior to the end of any Subscription Plan renewal dates.
Termination for cause
Without prejudice to any other rights We may have at law, We may terminate Your rights under these Terms and Your access to all or part of the VenueSumo Services immediately by notice in writing if:
(a) You are in breach of these Terms and such breach is not:
(i) remedied within 15 days of receiving written notice of the breach from Us; or
(ii) capable of being remedied;
(b) You become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration;
(c) You cease or threaten to cease conducting Your business in the normal manner; or
(d) You have any adverse credit history or rating as a result of Our authorised credit checks in accordance with clause 10.
Effect of termination
Subject to the below, upon termination of Your rights under these Terms and Your access to all or part of the VenueSumo Services for any reason, You must (and must ensure that all Users) immediately cease all access to and use of the VenueSumo Services. Termination will not affect any accrued rights or liabilities that You may have at the effective date of termination.
Your subscription will continue until the end of Your then current Subscription Plan and any Fees paid in advance by You will not be refunded to You but will be applied to Your subscription in accordance with the terms of Your Subscription Plan. If You have terminated Your then current Subscription Plan in order to subscribe for or upgrade to another Subscription Plan, the Fees paid in advance by You under Your terminated Subscription Plan will be refunded to You on a pro-rated basis. In addition, We may, at Our sole discretion, negotiate an exit period in excess of Your remaining subscription during which Your rights under these Terms and Your access to all or part of the VenueSumo Services will continue to allow You to retrieve any Data. Upon Your written request. We will return any Data that is in Our possession or control to You in json file format. If the Data exceeds 2GB compressed file size or if You require the Data to be returned in a different format, or requires additional assistance with the return of such Data, You agree to pay Us such additional fees as advised by Us.
Survival
Each provision of these Terms which by its nature is intended to survive termination will so survive.
17. General
Relationship
We are a contractor independent of Your control and nothing in these Terms gives rise to any fiduciary, agency, trust, employment or other relationship recognised at law or in equity as giving rise to forms of specific rights and obligations.
Notices
Any notice in relation to these Terms must be in English and in writing.
Notice is deemed to have been received:
(a) if delivered personally, when left at the person’s address;
(b) if sent nationally by mail, 3 business days after it is posted;
(c) if sent internationally by mail, 5 business days after it is posted; and
(d) if sent by facsimile or email, at the time and date it was successfully sent without the sender subsequently receiving a delivery failure notice.
Notices to Us must be emailed to info@venuesumo.com.
For the purposes of this clause, a “business day” means any day that is not a Saturday, Sunday or public holiday in Victoria, Australia.
Entire agreement
These Terms (together with any Services Agreement) constitutes the entire understanding between You and Us as to its subject matter and supersedes all prior agreements, understandings and communications, whether written or oral, in relation to such subject matter. In accepting these Terms, You have not relied on any warranty, representation or statement, whether oral or written, made by Us or any of Our Personnel relating to or in connection with the subject matter of these Terms.
Variations
We reserve the right to amend these Terms from time to time. We may amend these Terms by publishing an updated, amended or revised version on the Platform or by providing it to You by email (each defined as “Amended Terms”). You will have 30 days to decide whether You accept or do not accept any Amended Terms (“Acceptance Period”). If You do not accept the relevant Amended Terms, You will have the right to terminate Your rights under these Terms during the relevant Acceptance Period at no additional cost to You, unless otherwise stated. Your continued use of the VenueSumo Services after the relevant Acceptance Period has lapsed will be deemed acceptance of the relevant Amended Terms.
Exclusion of implied terms
To the extent permitted by law, and except as expressly provided in these Terms, all terms, conditions and warranties that would otherwise be implied by law regarding these Terms or the VenueSumo Services are excluded.
Severability
If any provision of these Terms is void, invalid or unenforceable for any reason, that provision must be read down to the extent necessary to be valid. If the provision cannot be read down, it must be severed from these Terms and does not affect the validity, operation or enforceability of any other provision of these Terms.
Waivers
A failure or delay to exercise a power or right under these Terms does not operate as a waiver of that power or right.
Subcontract
You agree that We may subcontract to any person to perform all or part of Our obligations under these Terms without seeking Your consent or approval.
Assignment
You may assign Your rights or obligations under these Terms to any third party with Our prior written consent.
We may assign these Terms in their entirety without Your consent to Our affiliate or as part of a merger, acquisition, corporate reorganisation, or sale of all or substantially all Our assets.
Rights cumulative
Except as expressly stated otherwise in these Terms, Our rights under these Terms are cumulative and are in addition to any other rights We may have under law or equity.
Governing law
These Terms are governed by the laws of Victoria. The parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria.
Rules of interpretation
In these Terms, unless the context otherwise requires:
(a) headings do not affect interpretation;
(b) singular includes plural and plural includes singular;
(c) “including”, or similar words, does not limit what else might be included;
(d) where a word or phrase is defined in these Terms, each of its other grammatical forms will have a corresponding meaning;
(e) reference to a person includes a corporation, joint venture, association, government body, firm, and any other entity;
(f) reference to a party includes that party’s personal representatives, successors and permitted assigns; and
(g) reference to a thing includes a part of that thing.
Definitions
In these Terms, capitalised terms have the following meaning, unless defined elsewhere or the context requires otherwise:
(a) Acceptance Period has the meaning given to that term in the fourth paragraph of clause 17.
(b) Aggregated Data has the meaning given to that term in the fourth paragraph of clause 12.
(c) Amended Terms has the meaning given to that term in the fourth paragraph of clause 17.
(d) Claim includes any:
(i) claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, or award whether based in contract, civil, common law, tort (including negligence) or statute and whether involving a party to these Terms, a third party or otherwise; and
(ii) loss, cost, damage, expense or liability arising directly or indirectly from any claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, or award referred to in paragraph (i) of this definition.
(e) Confidential Information has the meaning given to that term in clause 9.
(f) Consequential Loss means any consequential or indirect loss suffered or incurred under or in connection with these Terms (whether arising in contract or tort (including negligence), under an indemnity or otherwise) including loss of anticipated savings,loss of income, loss of profits, loss of goodwill, loss of contract, loss of business, loss of reputation, loss of use, partial or total loss or corruption of data, any form of business interruption, increased cost of working, and loss suffered as a result of claims by any third party.
(g) Content means any and all data and information available through or contained on the Platform or Services, including articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments.
(h) Data means any and all files and any other data and information, including personal information (as that term is defined in the Privacy Act 1988 (Cth)), which is posted, uploaded to, or inserted into the Platform by You or on Your behalf.
(i) Defect means an unintended behaviour of the Platform that detrimentally impacts its use.
(j) Documentation has the meaning given to that term in the fifth paragraph of clause 2.
(k) Enhancement has the meaning given to that term in the first paragraph of clause 3.
(l) Fees means any fee charged by Us for Your use of the VenueSumo Services (including as part of any Subscription Plan).
(m) Free Trial means, if applicable, a trial for 14 days or such other period specified by Us under which temporary access is granted to a user for the purposes of that user trialling the VenueSumo Services under the relevant Subscription Plan but without paying a Fee for the duration of the trial.
(n) Intellectual Property Rights includes any and all registered or unregistered rights in, including rights to apply for registration, renewal or extension in, any copyrights, patents, inventions, discoveries, trade secrets, processes, methodologies, know-how, specifications, computer programs or software, source or object codes, trademarks, logos, designs, confidential information, or any rights of a similar nature under the laws of Australia or anywhere else in the world.
(o) VenueSumo Services has the meaning given to that term in the opening paragraph of these Terms.
(p) Personnel means a party’s affiliates, officers, directors, employees, agents and independent contractors and their affiliates.
(q) Platform means the web-based software platform known as VenueSumo and any associated applications (including mobile applications) and Websites designated by Us to form part of that platform through which the Services are provided by Us, together with any modifications, developments, enhancements or improvements from time to time.
(r) Security Interest means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of an obligation, or that gives a creditor priority over unsecured creditors.
(s) Services includes CRM and sales, lead tracking, process automation, estimating, digital take-offs, project management, customer invoicing, cashflow forecasting (as these are described on the Platform) as released and made available on or through the Platform from time to time.
(t) Services Agreement has the meaning given to that term in the first paragraph of clause 3.
(u) Subscription Plan means a paid subscription as defined under clause 4 that includes such features and functionalities (including any Services) that are designated for that subscription on the Platform and/or under these Terms.
(v) System Requirements has the meaning given to that term in the second paragraph of clause 2.
(w) Taxes has the meaning given to that term in clause 7.
(x) Third Party Component has the meaning given to that term in the fourth paragraph of clause 2.
(y) Third Party Programs has the meaning given to that term in the third paragraph of clause 2.
(z) User has the meaning given to that term in the third paragraph of clause 4.
(aa) Websites means the website www.venuesumo.com and any subdomains associated with it from time to time.