Menda Software Terms of Service


Last modified: 1 January 2020

Thankyou for considering using Menda Software. These Menda Software Terms of Service (Terms) describe your rights and responsibilities as a customer of Menda Software.


Warning

This software (referred to in these Terms as the Software) is owned and operated by Menda Software, who is referred to in these Terms as “Menda”, “we”, “us”, “our” and similar grammatical forms.

Permission to use this Software is conditional upon you agreeing to the terms set out below. This software is only offered to you on condition that you read and accept all the terms of this licence and wish to become a licensee of the software. Acceptance will bind you and all of your employees to the terms of the licence. By clicking “I Accept”, you will be deemed to have accepted the following terms and they will become effective. If you do not wish to accept the terms, you must not click “I Accept” and you may not use the Software.

You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I Accept” (or similar button or checkbox) that is presented to you.

PLEASE NOTE THAT IF YOU SIGN UP FOR THIS SOFTWARE USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.

1. Subscription


Pursuant to this agreement, you acquire a non-exclusive right to:

(a) use the Software on the basis of a fourteen (14) day trial licence commencing on the date these Terms are accepted; and

(b) following the fourteen (14) day trial, continue usage of the Software on the basis of a monthly subscription licence,

subject to the terms and conditions set out below (the Subscription).

2. Subscription fee


(a) Following the fourteen (14) day free trial, you are not entitled to use the Software until the Subscription fee has been paid in accordance with your selected plan.

(b) Your Subscription will automatically renew each month without notice until you cancel. You authorize us to store your payment method(s) and to automatically charge your payment method(s) every month until you cancel. We will automatically charge you the then-current rate for your plan, plus applicable taxes (such as GST if the rate does not include it), every month upon renewal until you cancel.

(c) We may change your plan’s rate each monthly renewal term, and we will notify you of any rate change with the option to cancel. If the applicable GST rate (or other included tax or duty) changes during your one-month term, we will accordingly adjust the tax-inclusive price for your plan on your next billing date.

(d) If your primary payment method fails, you authorize us to charge any other payment method in your account. If you have not provided us a backup payment method(s) and you fail to provide payment, or if all payment methods in your account fail, we may suspend your subscription. You can edit your payment information anytime in your Adobe Account page.

3. Cancellation


(a) You can cancel your Subscription anytime via your account page or by contacting Customer Support.

(b) If you cancel during the free trial period, you will not be charged.

(c) If you cancel after the expiry of the free trial period, your payment for that month is non-refundable, and your service will continue until the end of that month’s billing period.

4. Documentation


This Subscription extends to any accompanying documentation. The documentation may not be copied, modified or used in any way not contemplated or expressly authorised by this agreement.

5. Your obligations


You undertake the following obligations:

(a) to not copy, reproduce, translate, adapt, reverse engineer, decompile, vary or modify the Software without the express consent of Menda, except as expressly authorised by this agreement or part III division 4A of the Copyright Act 1968 (Cth);

(b) to supervise and control the use of the Software in accordance with the terms of this Subscription;

(c) to ensure your employees, sub-contractors and other agents who have authorised access to the Software are made aware of these Terms;

(d) to not provide or otherwise make available the Software in any form to any person other than those referred to in paragraph 4(c) without the written consent of us;

(e) to not give, lease, assign, licence, sub-licence, transfer, distribute, disclose, disseminate or publish the Software in any form to any other person or attempt to do any of these acts; and

(f) to not use the Software for or in connection with a service bureau operation.

6. Warranty


(a) You acknowledge that the Software cannot be guaranteed error free and further acknowledge that the existence of any such errors must not constitute a breach of this agreement.

(b) We do not warrant, guarantee or make any representation that:

(i) the Software, or the server that makes the site available on the Internet are free of software viruses;

(ii) the functions contained in any software contained on the Software will operate uninterrupted or are error-free; and

(iii) errors and defects in the Software will be corrected.

(c) We are not liable to you for:

(i) errors or omissions in the Software;

(ii) delays to, interruptions of or cessation of the services provided in the Software; and

(iii) defamatory, offensive or illegal conduct of any user of the Software,

whether caused through our negligence or the negligence of our employees, independent contractors or agents, or through any other cause. and that you have availed yourself of that opportunity.

(d) You agree to accept the full cost of any necessary repair, correction and maintenance of any of your computer software or hardware, which may be necessary as a consequence of you accessing the Software.

(e) Nothing in this agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this agreement or protected by law to the extent that such exclusion, restriction or modification would render this agreement or any provision of this agreement void, illegal or unenforceable. Subject to the previously mentioned exclusion, restriction and modification, any condition, warranty, right or liability which would otherwise be implied in this agreement or protected by law is excluded.

(f) You acknowledge that:

(i) prior to entering into the Subscription, a reasonable opportunity has been provided, in the form of the trial period, to assess the suitability of the program;

(ii) at no time prior to entering into this agreement have you relied on any representation by Menda regarding the Software which you have not been able to verify, or had the opportunity to verify, independently;

(iii) you are not obliged to continue use of the Software beyond the trial period, and will do so only after having evaluated the Software during the trial period; and

(iv) prior to entering into the monthly subscription licence, you have been given a reasonable opportunity:

(A) to satisfy yourself that the Software corresponds with any representation made by Menda; and

(B) to examine the Software for any apparent defects,

and that you have availed yourself of that opportunity.

7. Copyright and trademarks


(a) You acknowledge that the Software and documentation are the subject of copyright. You will not during or any time after the expiry or termination of your Subscription permit any act which infringes that copyright and, without limiting the generality of the previously mentioned copyright, you specifically acknowledge that you may not copy the Software except as otherwise expressly authorised or acknowledged by this agreement.

(b) You must not during or at any time after the expiry or termination of your Subscription permit any act which infringes Menda’s trademarks used in connection with the Software.

(c) You will indemnify Menda fully against all liabilities, costs and expenses which Menda may incur to a third party as a result of your breach of the copyright provisions of this agreement.

8. Term of subscription


(a) The trial period commences upon the licensee's acceptance of these terms and conditions. The Subscription will continue beyond the trial period upon commencement of payment of the monthly subscription fee until cancelled or terminated in accordance with these Terms.

(b) This Subscription may be terminated in the following circumstances:

(i) if you are in breach of any term of this agreement;

(ii) if you, being a corporation, become the subject of insolvency proceedings;

(iii) if you, being a firm or partnership, are dissolved; or

(iv) if you cause harm to the Software and/or documentation for any reason.

(c) Upon termination, you or your representative will destroy any copies of the Software and documentation or otherwise return or dispose of such material in the manner directed by us.

(d) Termination pursuant to this clause will not affect any rights or remedies which Menda may have otherwise under this agreement or at law.


9. Uploading information


(a) You represent and warrant in relation to any material or information you provide to the Website that:

(i) you are authorised to provide the material or information;

(ii) the material or information is not defamatory or a malicious falsehood in relation to any product, service, person or corporation;

(iii) the material or information is not the “passing off” of any product or service and does not constitute unfair competition or infringe the rights of any person or corporation;

(iv) the material or information does not infringe any intellectual property right including, but not limited to, trade marks, service marks or business names (whether registered or unregistered), confidential information and copyright; and

(v) the material or information does not infringe any legislation or regulations of the Commonwealth of Australia and the State of New South Wales including, but not limited to, the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law (ACL) and any other parliament competent to legislate in relation to the Website or any law in any country where the material or information is or will be available electronically to users of this Website.

(b) By uploading any material that is protected by intellectual property rights including, but not limited to, copyrighted works and material other than works, trademarks and service marks (Intellectual Property) on to the Software, you are granting us a perpetual, non-exclusive and payment-free licence throughout the world to:

(i) reproduce, use and exploit the Intellectual Property, as part of the Software, to the full extent permitted by Intellectual Property law in any jurisdiction in which the Software is available to users; and

(ii) allow us to sub-licence others the same rights granted to us in this clause.

(c) In relation to any material or information included on the Software, we may remove any material or information, including but not limited to links to other sites on the Internet, at any time without giving any explanation or justification for removing the material or information.

10. Privacy Policy


(a) By using our Software, paying your subscription fee to us or registering for an account with us, you are accepting the terms of this privacy policy, and you are consenting to our collection, use, disclosure, retention and protection of your personal information as described in our privacy policy.

(b) Our privacy policy is to be read in conjunction with these Terms as by agreeing to these Terms you agree that you have read, understood and accepted our privacy policy.

(c) If we decide to change our privacy policy, we will post those changes on the privacy policy page, and update the policy modification date accordingly.

11. Alteration of terms


(a) We reserve the right to change these Terms:

(i) with or without further notice to you; and

(ii) without giving you any explanation or justification for such change.

(b) If these Terms are changed, they will be modified here and the Terms modification date above will be updated.

12. Assignment


The benefit of this agreement will not be dealt with in any way by you (whether by assignment, sub-licensing or otherwise) without our written consent.

13. Waiver


Failure or neglect by either party to enforce at any time any of the provisions of this agreement will not be construed or deemed to be a waiver of that party's rights under this agreement.

14. Governing law


This agreement will be governed by and construed according to the law of the State of New South Wales, Australia.