PROPLY TERMS AND CONDITIONS
Last Updated: 2023-06-01
Welcome to proply!
These terms and conditions (Terms) govern your use of and subscription to proply (Subscription), a proposal creation and management solution (proply) available from our website located at auth.proplyapp.com.au (Website).
Your Subscription is for the tiered package selected by you and set out on our Website, or as otherwise agreed between you and us, and includes the Software, the Hosted Services and (if applicable) the Customisations (Subscription Tier).
By clicking the tick box, paying for your Subscription or otherwise accepting the benefit of any part of proply, you agree to be bound by these Terms which form a binding contractual agreement between you or the company you represent (the ‘you’) and Jaden Digital Pty. Ltd. (ABN 66 160 378 058) (‘our’, ‘we’ or ‘us’). You represent and warrant that you have valid authority to enter into these Terms on behalf of any entity you may represent.
Your Subscription will continue to renew indefinitely on a month by month basis, and you will continue to incur Subscription Fees, unless you notify us that you want to cancel your Subscription in accordance with clause 8.2.
We may change these Terms at any time by notifying you, and your continued use of proply following such an update will represent an agreement by you to be bound by the Terms as amended.
In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.
Please read these Terms carefully before agreeing to proceed with your Subscription.
- ACCOUNT REGISTRATION
- You will be required to sign up for an account (Account) to use proply.
- When you register for an Account, you must provide true, accurate and complete information as requested and keep this information up to date after registration.
- You agree that you’re solely responsible for:
- maintaining the confidentiality and security of your Account information and your password; and
- any activities and those of any third party that occur through your Account, whether those activities have been authorised by you or not.
- You also agree to let us know if you detect any unusual activity on your account as soon as you become aware of it.
- We won’t be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your Account information or your password.
- If a Subscription Tier allows your Account to create teams (Teams), you may create Teams and invite other Accounts to your Team.
- Any Account may also join a Team.
- The number of Teams that can be created and the features and functions available to each Team will be based on the Subscription Tier of the Account that created the Team.
- THE SOFTWARE
- During your Subscription, we grant to you a revokable, non-exclusive, non-transferable licence to use the Software.
- We may from time to time release enhancements to the Software, where enhancements means any upgraded, improved,modified or new versions of the Software. Any enhancements to the Software will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time.
- We may also change any functions and features of the Software at any time without notice to you.
- HOSTED SERVICES
We will store data and information you upload to proply using third party hosting service selected by us (Hosting Service), subject to the following terms:
- (hosting location) You acknowledge and agree that we may use storage servers to host the Software through cloud-based services, and potentially other locations outside Australia.
- (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Service will be free from errors or defects or that your data and information will be accessible or available at all times.
- (security) We will use our best efforts to ensure that data and information is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to data and information, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
- (backups & disaster recovery) In the event that data and information is lost due to a system failure, we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.
- THIRD PARTY SOFTWARE, TERMS & CONDITIONS
- You acknowledge and agree that third party terms & conditions (Third Party Terms) may apply to your use of proply, including Stripe Connect, currently located at https://stripe.com/en-au/connect, as updated from time to time.
- You agree to any Third Party Terms applicable to any third party goods and services that are used in providing proply, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
- Without limiting clause 1.5(b), we will take reasonable steps to notify you of Third Party Terms.
If a Subscription Tier includes any services to customise the Software and integrate the Software with other software (Customisation), you acknowledge and agree that:
- while we take reasonable steps to ensure that Customisations we agree to are possible, we make no guarantee that any Customisation will be successful or satisfy an intended use case;
- any failure of a Customisation, whether caused or contributed to by us or a third party, will not be our responsibility or a breach of these Terms; and
- the maximum remedy available for the failure of a Customisation will be a reduction in the total Subscription Fees equal to the amount of Subscription Fees charged specifically for the Customisation.
- SUBSCRIPTION FEES AND PAYMENT
- You must pay fees to us in the amounts specified in the pricing section of the Website for your Subscription Tier (Subscription Fees).
- All Subscription Fees must be paid in advance and are non-refundable for change of mind.
- Unless otherwise agreed in writing, the Subscription Fees are due and payable on a monthly basis for the duration of your Subscription.
- (Automatic Recurring Billing) Your Subscription will continue to renew on a monthly basis, automatically and indefinitely and you must pay Subscription Fees for each monthly period, unless you cancel your Subscription before your next payment date. Otherwise, we will continue to debit the Subscription Fees from your account each month. We will not pay any charge back amount if you fail to cancel your Subscription in accordance with this clause. You acknowledge that your Subscription has a recurring payment feature and you accept responsibility for all recurring charges prior to your cancellation of your Subscription.
- Unless otherwise indicated, the Subscription Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.
- We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
- We reserve the right, from time to time, to change the Subscription Fees. We will notify you in advance if we do this.
- YOUR OBLIGATIONS
- You must comply with these Terms at all times.
- You acknowledge and agree that we will have no liability in respect of any damage, loss or expense which arises in connection with your, your Personnel’s or any Users’ (you give access to proply to via a Proposal) breach of these Terms, and you indemnify us in respect of any such damage, loss or expense.
- You must not, and must not encourage or permit any User, your Personnel or any other third party to:
- not use proply for any purpose other than for the purpose for which it was designed;
- upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material;
- upload any material that is owned or copyrighted by a third party;
- intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User;
- distribute unsolicited commercial content, junk mail, spam, bulk content or harassment;
- make copies of the Software;
- adapt, modify or tamper in any way with the Software;
- remove or alter any copyright, trade mark or other notice on or forming part of the Software;
- create derivative works from or translate the Software;
- sell, loan, transfer, sub-licence, hire or otherwise dispose of the Software to any third party;
- decompile or reverse engineer the Software or any part of it, or otherwise attempt to derive its source code;
- attempt to circumvent any technological protection mechanism or other security feature of the Software; or
- act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us.
- If you become aware of misuse of your Account by any person, any errors in the material on your Account or any difficulty in accessing or using your Account, please contact us.
- We may cancel your Account at any time if we consider, in our absolute discretion, that you are in breach or are likely to breach this clause 3.
- MATERIALS FOR PROPOSALS
By providing or posting any information, materials or other content for a Proposal (Proposal Material), you represent and warrant that:
- you are authorised to provide the Proposal Material (including by being authorised to provide any goods or services that you represent you provide);
- the Proposal Material is accurate and true at the time it is provided;
- the Proposal Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
- the Proposal Material is not “passing off” of any product or service and does not constitute unfair competition;
- the Proposal Material does not infringe any Intellectual Property Rights;
- the Proposal Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of proply or any network or system; and
- the Proposal Material does not breach or infringe any applicable laws.
- You grant, to us a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Proposal Material in order for us to use, exploit or otherwise enjoy the benefit of such Proposal Material.
- If it is determined that you retain moral rights (including rights of attribution or integrity) in any Proposal Material, you forever release us from any and all claims that you could assert against us by virtue of any such moral rights, and you must ensure that all Users grant an equivalent release.
- You indemnify us against all damages, losses, costs and expenses incurred by us arising in connection with any third party claim that Proposal Material infringes any third party’s Intellectual Property Rights.
- PROPLY INTELLECTUAL PROPERTY
- OUR OWNERSHIP
We retain ownership of all materials provided to you via proply (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Software Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us not expressly granted to you.
- LICENSE TO YOU
You are granted a licence to the Software Content and you may make a temporary electronic copy of all or part of any materials provided to you for the sole purpose of using proply. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish any Software Content.
You must comply with:
- your obligations under the Privacy Act 1988 (Cth); and
- WARRANTIES AND LIMITATIONS
- (Service Limitations) proply is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that we cannot guarantee that:
- proply will be free from errors or defects;
- proply will be accessible at all times;
- messages sent through proply will be delivered promptly, or delivered at all; or
- information you receive or supply through proply will be secure or confidential.
- (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these Terms are excluded.
- (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
- LIMITATION OF LIABILITY
To the maximum extent permitted by law, our liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with these Terms, proply or a Subscription:
- is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
- is limited, insofar as concerns other liability, to the total money paid to us as Subscription Fees for the 3 months immediately prior to the date the event giving rise to the relevant liability occurs (or, where there are multiple events, the date of the first such event).
You indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise in connection with:
- any breach of these Terms by you, your Personnel or any User you give access to proply to via a Proposal; or
- any act or omission of you, your Personnel or any User you give access to proply to via a Proposal.
- UPGRADES, DOWNGRADES AND CANCELLATION OF YOUR SUBSCRIPTION
- UPGRADE AND DOWNGRADES
- You may notify us that you would like to upgrade or downgrade your Subscription Tier at any time. If you do, we will:
- take reasonable steps to promptly provide you with access to the new Subscription Tier; and
- upon providing such access, apply the new, relevant Subscription Fees, in the monthly billing cycle immediately following the month in which your access to the new Subscription Tier was provided, and you will be charged at the new Subscription Fee in that subsequent month (subject to clause 8.1(b)).
- For the avoidance of doubt, if you choose to downgrade your Subscription, the new Subscription Fees will kick in at the start of the next billing cycle, unless we notify you otherwise. We generally don’t pro-rate downgrades in between billing cycles, however we reserve the right to do so from time to time.
- If you choose to downgrade your Subscription, we will maintain all of your current Proposals with the features and functions originally available to them until they are completed, removed or expire. All new Proposals created will only have the features and functions available to them under your new Subscription Tier.
- If you choose to downgrade your Subscription, you acknowledge and agree that we are not liable for, and you release us for all claims arising in connection with, any loss of content, features, or capacity in relation to a downgrade in your Subscription.
- If you are on a paid Subscription Tier you can cancel your Subscription at any time. Your Subscription will end in the then current billing cycle, and you will be charged for that billing cycle.
- At the end of your current billing cycle you will then be automatically downgraded to a free Subscription Tier and the terms of clause 8.1 will apply.
- DELETION OF ACCOUNT
- If you would like to delete your Account, please contact us.
- We may delete your Account or restrict access to your Account at any time if we consider, in our absolute discretion, that you are in breach or are likely to breach these Terms.
- TEAM OWNERS
- If you have created a Team, there may be restrictions on cancelling your Account or downgrading your Account to a Subscription Tier that doesn’t allow the creation of Teams.
- In addition, any Teams you have created may be deleted.
- REPORT A BUG
A software bug is an error, flaw or fault in computer software that causes it to produce an incorrect or unexpected result, or to behave in unintended ways.
The following terms apply to the proply Report A Bug offer:
- This offer will only be valid while proply is in beta v2.0.
- The terms of this offer are subject to change without notice.
- To be eligible for 1 free month of proply premium, the following requirements must be satisfied:
- You will provide step by step instructions to firstname.lastname@example.org, which we are able to reproduce the bug on our end.
- The bug needs to be new and not known to us.
- We will need to assess the bug and confirm that it is in fact a bug.
- We might email you to assist us in reproducing the bug.
- A party claiming that a dispute has arisen under or in connection with these Terms must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
- A party that requires resolution of a dispute which arises under or in connection with these Terms must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
- Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
- A notice or other communication to a party under these Terms must be:
- in writing and in English; and
- delivered via email to the other party, to the email address, in our case, set out on our Website or in your case associated with your Account (Email Address). The parties may update their Email Address by notice to the other party.
- Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
- 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern these Terms, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
- when replied to by the other party, whichever is earlier.
- FORCE MAJEURE
- We will not be liable for any delay or failure to perform its obligations under these Terms if such delay or failure arises out of a Force Majeure Event.
- If a Force Majeure Event occurs, we must use reasonable endeavours to notify the Customer of:
- reasonable details of the Force Majeure Event; and
- so far as is known, the probable extent to which we will be unable to perform or be delayed in performing its obligations under these Terms.
- Subject to compliance with clause 11(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
- For the purposes of these Terms, a ‘Force Majeure Event’ means any:
- act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
- strikes or other industrial action outside of the control of us; or
- war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
- any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.
- GOVERNING LAW AND JURISDICTION
These Terms is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to these Terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of these Terms which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of these Terms is not limited or otherwise affected.
- JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of the other party.
- ENTIRE AGREEMENT
These Terms embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of these Terms.
- (singular and plural) words in the singular includes the plural (and vice versa);
- (currency) a reference to $; or “dollar” is to Australian currency;
- (gender) words indicating a gender includes the corresponding words of any other gender;
- (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
- (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
- (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
- (these Terms) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of these Terms, and a reference to these Terms includes all schedules, exhibits, attachments and annexures to it;
- (document) a reference to a document (including these Terms) is to that document as varied, novated, ratified or replaced from time to time;
- (headings) headings and words in bold type are for convenience only and do not affect interpretation;
- (includes) the word “includes” and similar words in any form is not a word of limitation; and
- (adverse interpretation) no provision of these Terms will be interpreted adversely to a party because that party was responsible for the preparation of these Terms or that provision.
|Customisations||has the meaning given in clause 1.6.|
|Hosted Services||has the meaning given in clause 1.6.|
|Intellectual Property Rights||means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of these Terms.|
|Proposal||means a proposal created using proply.|
|Personnel||means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.|
|Software||means the proply software as described on our Website, and which is licenced to you in accordance with clauses 1.2.|
|Subscription||has the meaning given in the first paragraph of these Terms.|
|Subscription Fees||has the meaning set out in clause 2(a).|
|Subscription Tier||has the meaning given in the first paragraph of these Terms.|
|User||means an end user of proply including any users viewing, accepting or otherwise interacting with a Proposal.|
|Website||has the meaning given in the first paragraph of these Terms.|