1. Definitions and interpretation
‘Commencement Date’ means the date on which you access the True Dialogue Services and/or Licenced Materials.
‘Confidential Information’ means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:
(a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and
(b) information developed independently by a party.
‘Documentation’ means any and all proprietary documentation made available to you by the Licensor for use with the True Dialogue Services, and/or the Licenced Materials or Programs including any documentation available online.
‘Fees’ means cost of the True Dialogue Services and/or Materials or Programs.
‘Force Majeure Event’ means any event beyond the control of the relevant party. ‘GST’ has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax. ‘Intellectual Property Rights’ means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
‘Licenced Downloads’ means the True Dialogue Services and/or Licenced materials or Programs owned by the Licensor, and accessed by you or demonstrated to you by the Licensor pursuant to this Agreement.
‘Moral Rights’ has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
Unless the context requires otherwise:
(a) a reference to a person includes a corporation or any other legal entity;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience, and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
(d) the term “includes” (or any similar term) means “includes without limitation”; and
(e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
2. Grant of Licence
The Licensor grants you a personal, non-exclusive, world-wide, non-transferable, perpetual licence to use the True Dialogue Services and/or Licenced Materials or Programs, and the Documentation, subject to, and in accordance with the terms and conditions set out in this Agreement.
You must not:
(a) use the Licenced Downloads for any purpose or in any manner other than as set out in clause 2.1;
(b) use the Licenced Downloads in any way that could damage the reputation of the Licensor or the goodwill or other rights associated with the Licenced Downloads;
(c) permit any third party to use the Licenced Downloads;
(d) reproduce, make error corrections to or otherwise modify or adapt the Licenced Downloads or the Documentation or create any derivative works based upon the Software or the Documentation;
(e) de-compile, disassemble or otherwise reverse engineer the Licenced Downloads or permit any third party to do so; or
(f) modify or remove any copyright or proprietary notices on the Licenced Downloads or the Documentation.
3. Intellectual Property Rights
3.1 Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
3.2 You acknowledge that the Licensor owns all Intellectual Property Rights in the Licenced Downloads.
3.3 You must not directly or indirectly do anything that would or might invalidate or put in dispute the Licensor’s title in the Licenced Downloads or any of the Licensor’s Trade Marks
3.4 You must comply with the Licensor’s reasonable usage guidelines and directions with respect to the Licenced Downloads and the Trade Marks as notified to you from time to time.
You must pay the Licensor the Fees.
5.1 All amounts payable under this Agreement are expressed exclusive of GST.
5.2 In respect of any taxable supply, you must pay to the Licensor an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by you of a valid tax invoice.
You must permit the Licensor (or its nominated auditor) to audit the records and premises of you at any time during the Term and for 3 years following the end of the Term, on at least 5 days written notice, for the purpose of confirming your compliance with this Agreement.
7.1 A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
7.2 A party may:
(a) use the Confidential Information of the other party solely for the purposes of complying with its obligations, and exercising its rights under this Agreement; and
(b) disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
7.3 Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the receiving party’s possession or control.
7.4 Each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of the Licensor’s request or on termination of this Agreement for any reason.
8.1 To the full extent permitted by law, the Licensor excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
8.2 To the full extent permitted by law, the Licensor excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
8.3 The Licensor’s total aggregate liability for all claims relating to this Agreement is limited to the Fees payable under this Agreement.
8.4 Either party’s liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
Limitation of liability
8.5 You acknowledge that you use the Licenced Downloads at you own risk, and you act on the basis of any advice given by the Licensor at your own risk. You agree that any employee or agent of the Licensor providing advice on behalf of the Licensor is not liable for any loss, damage or injury occasioned to the you arising from or caused by the provision of the Licenced Downloads, advice or support under this Agreement or the use made by you.
8.6 This Agreement is to be read subject to any legislation, which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible, the Licensor limits its liability in respect of any claim to, at the Licensor’s option:
(a) in the case of goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of having the goods repaired, and
(b) in the case of services:
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again.
9.1 A party may terminate this Agreement by written notice to the other if any of the following events has occurred in respect of the other party:
(a) a material breach of this Agreement which is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice;
(b) an insolvency event occurs, other than an internal reconstruction with notice to the other party.
10. Consequences of Termination
10.1 If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) the parties are immediately released from their obligations under the Agreement except those obligations in clauses 6, 7, 8 and 10, and any other obligations that, by their nature, survive termination;
(b) each party retains the claims it has against the other;
(c) your right to use the Licenced Downloads and the Trade Marks immediately ceases and the licences granted under this Agreement terminate;
11.1 You must not assign, sub-licence or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of the Licensor.
11.2 Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.
11.3 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
11.4 Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
11.5 The True Dialogue refund policy is compliant with the PayPal Acceptable Use Policy and the Paypal Buyer Protection Policy: Refund Policy
(a) True Dialogue will be able to refund a payment within 60 days of the date of the transaction. This may be limited or not permitted in some circumstances, for example where you access the Licenced Module or a Chargeback has been filed.
(b) If a transaction is refunded, both the payment and the corresponding portion of applicable fees will be refunded. If you return funds through the “Send Money” tab, this will not be considered a refund and transaction fees will not be refunded.
(c) In some circumstances, you may refuse a payment. True Dialogue are not liable for any damages resulting from your decision to not accept a payment made through our Services.
(d) If a payment is unclaimed, the funds will be returned to sender, usually 30 days after they were sent.
(e) If your payment is refused or refunded the funds will be returned to you, usually one business day after the funds were refused or refunded, in the following ways:
(i) Payments funded by Credit Card are returned to that Credit Card;
(ii) Payments funded by a Nominated Bank Account or account balance are returned to your account balance.
11.7 This Agreement may be amended only by a document signed by all parties.
11.8 A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.
11.9 A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
11.10 Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party’s performance under this Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Agreement by written notice.
11.11 All stamp duties and other government charges in relation to this Agreement must be paid by you.
11.12 This Agreement is governed by the laws of Victoria and each party submits to the jurisdiction of the courts of Victoria, Australia.