- Governing document
- Vortilla offers the Software and Services to eligible Users on the condition that the User reads the terms set out in this document (User Terms) and agrees to be bound by its terms.
- A User is considered to have accepted these User Terms when the User does any of the following:
- installs, uses or accesses the Software or Services; or
- acknowledges the User Terms when using the Software or Services (for example, as part of a registration or login screen).
- A User's eligibility is subject to being granted access by a Customer who creates a User Account for the User. The User's access to the Software and Services may be withdrawn or restricted at any time, including if:
- the Customer deletes the User Account or restricts its access permissions; or
- the Customer's licence to use the Software and Services ends.
- Each User Account is linked to a specific User and may not be used by any other person.
- Each User must ensure that its User Account is protected at all times from misuse or any form of unauthorised use or access. The User shall be responsible for the use, supervision, management and control of its User Account, including all activities that occur under the User Account with access to the relevant login details. The User must notify its authorising Customer immediately if the User believes an unauthorised third party may be using or attempting to use its User Accounts. Vortilla is not responsible for unauthorised access to a User Account.
- Licenced Material including Software
- Vortilla grants the User a limited, non-exclusive, non-transferable licence to access and use Licenced Material for the Term, solely for the Permitted Purpose and in accordance with these User Terms.
- A User may only access the Software using the allocated User Account.
- Users must follow any instructions or directions given by Vortilla or within the Software or Documentation in relation to the use of the Software.
- Use of the Software may require an internet connection. Users will be responsible for all internet connection costs.
- Users may be required to install the Software, or parts of it, on your hardware in order to utilise the Software. Users should check the Documentation to determine whether the Software will be compatible with the hardware it intends to use the Software on.
- Any copies of the Software must be removed from a Device before the User sells or otherwise disposes of, transfers or assigns the Device.
- The User must not:
- copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, tamper with or create derivative works of the Software, or any part thereof, except as permitted under the Copyright Act;
- make any part of the Software available to any third party;
- copy, rent, lease, lend, sell, resell, distribute, transfer or transfer all or any part of the Software or Licenced Material except as permitted under the Copyright Act;
- provide access to the Software or Licenced Material to any other person;
- allow any person other than the nominated User to use or access a User Account;
- sub-license or sub-contract any of its rights under these User Terms without the written consent of Vortilla, which may be withheld in its absolute discretion;
- attempt to circumvent usage limits or quotas;
- merge all or any part of any software contained in or provided in connection with the Software with any other software without Vortilla’s prior written permission;
- commercially exploit the Software;
- distribute or transmit any part of the Software by any means.
- link to, frame or mirror any part of the Software without Vortilla's written consent;
- remove, obliterate or alter any proprietary notice on the Licenced Material; or
- use or encourage, promote, facilitate or instruct others to use Software or any other software provided in connection with Software for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive.
- The User shall notify Vortilla immediately if the User becomes aware of any unauthorised use of the whole or part of the Software by any person.
- Third-party software
- In order to obtain, install, update, access, use, or continue to access or use the Software and Services, the User may also be required to update third-party software (such as the operating system and web browser) on the Device. The User acknowledges and agrees that:
- Vortilla is not responsible for such third-party updates;
- such third-party updates may be subject to their own terms and conditions, which Vortilla strongly recommends the User review prior to implementing the third-party update; and
- if the User is unable or unwilling to obtain or install such third-party updates, the User may be unable to obtain, install, update, access, use, or continue to access or use the Software and/or Services.
- Any Bundled Software provided by Vortilla is generally subject to a licence from the third-party manufacturer. In the absence of a discrete licence from the manufacturer to the User:
- the User is permitted to use the Bundled Software under the same terms as the licence for Software in clause 3 (Licence Terms); and
- the User agrees to be legally bound by the provisions of the Licence Terms for the use of the Bundled Software.
- Vortilla may, at its discretion:
- provide Updates to Users; and
- withdraw or disable previous versions of Software, Bundled Software or Documentation from being used by Users.
- is under no obligation to provide any Updates;
- can offer optional paid Updates;
- can use Updates to add, remove, modify or otherwise alter features of the Software at its sole discretion, and that such changes will not be a breach of this document;
- can require the Customer and/or the User to install Updates to the Software in order to continue using the Software and Services; and
- can provide Updates in such a manner that the Software is unable to be reverted to its previous state.
- The terms of these User Terms will govern any Updates, unless such an Update is accompanied by a separate licence supplied by Vortilla, in which case the terms of that licence will govern to the extent provided for.
- Unless otherwise agreed in writing, Vortilla will not be obliged to support the Software or the Service, whether by providing advice, training, error-correction, Updates or otherwise, or to provide any hosting, telecommunication, internet or other services in relation to the use of the Software or the Service by the Customer or any User.
- User interaction
- The Software and/or Services may enable the User to communicate with other users, or to post materials that may be made available publicly or to specific Users.
- The User acknowledges and agrees that:
- any information or material submitted by the User will be treated by Vortilla as non-confidential and non-proprietary and Vortilla can use such material without restriction or compensation;
- the User grants Vortilla a perpetual, irrevocable, licence-fee free, royalty free, worldwide, non-exclusive, sub-licensable right to use any Intellectual Property and other information or material created or submitted by the User using the Software and/or the Services;
- the User will not use the Software or Services to create, post or transmit:
- any Intellectual Property or other material owned by another person or entity that is contrary to their rights;
- any unsolicited advertising or promotional material;
- any material or information which is offensive, defamatory, obscene, unlawful, vulgar, harmful, threatening, abusive, amounts to harassment or is otherwise objectionable; or
- any material which contains viruses or other computer code, files or programs which are designed to limit or destroy the functionality of other computer software or hardware;
- any Content may be removed by Vortilla without notice at any time, for any reason including no reason;
- Vortilla does not accept any responsibility or liability for the accuracy of Content made by other users of the Software or Services, and Vortilla is not liable for any loss or damage of any kind, or any claim, resulting from any action taken or reliance made by the User regarding any Content; and
- Vortilla is not responsible for resolving any disputes the User may have with other users of the Software or Services.
- collect and analyse data relating to the provision, use and performance of various aspects of the Software, Services and related systems and technologies, including:
- technical information about the Software, Services, Devices, system and application software, peripherals;
- information concerning data provided by the Customer to Vortilla; and
- data derived from (i) and (ii);
- use such data to improve and enhance the Software and Services and for other development, diagnostic and corrective purposes in connection with Vortilla's offerings; and
- disclose such data in aggregate or other de-identified form in connection with Vortilla's business.
- Intellectual property
- The Vortilla retains all right, title and interest to all Intellectual Property subsisting in the Licensed Material, and any part thereof.
- This document does not constitute a transfer or conveyance of any Intellectual Property owned by Vortilla, including but not limited to Intellectual Property associated with the Licensed Material, and its functionality, features and content.
- Users acknowledge that the Licensed Materials are protected by copyright and may also be protected as other forms of Intellectual Property owned by Vortilla. Users undertake not to do or permit any act, either during or at any time after the termination of these User Terms, which infringes or attempts to infringe those Intellectual Property rights and, without limiting the generality of the foregoing, Users specifically acknowledge that they must not copy the Software except as otherwise expressly authorised or acknowledged by these User Terms.
- In relation to any Content, the User:
- grants Vortilla a limited, non-exclusive, transferable, irrevocable, royalty-free licence to use the Content for the purposes of Vortilla performing its obligations (including under these User Terms and any other agreement with the Customer) and facilitating the operation of the Software and Services;
- represents and warrants that the Content does not violate the law (including privacy laws), misappropriate the rights of any third party, or otherwise violate a term of these User Terms;
- represents and warrants that the user owns all Intellectual Property in the Content or is otherwise authorised to add or upload the Content to the Software; and
- acknowledges that Vortilla reserves the right to remove any Content without notice.
- Effective date and termination
- The licences granted under these User Terms are effective on the date the User enters into these User Terms, and will remain in force until terminated in accordance with its terms.
- The User may terminate these User Terms by deleting its User Account and discontinuing use of the Software and Services.
- Vortilla may terminate these User Terms or suspend the User's access to the Software and Services immediately if:
- the User is in breach of any term of these User Terms, or threatens to breach any term of these User Terms; or
- the licence granted to the Customer who authorised the User is suspended or terminated.
- Upon termination, the User must destroy any remaining copies of the Software and any Documentation, or otherwise return or dispose of such material in the manner directed by Vortilla.
- Termination pursuant to this clause 9 will not affect any rights or remedies which either party may have otherwise under these User Terms or at law.
- Acknowledgement and warranties
- The User acknowledges that:
- it is the User's responsibility to ensure its systems will be compatible with, and suitable for its use of, the Software and Services;
- the Software and Services cannot be guaranteed to be error free and uninterrupted;
- the Software and Services may be temporarily unavailable for maintenance, and although Vortilla will endeavour to provide advance notice of any scheduled service disruption, this will not be possible for unscheduled emergency maintenance or unexpected disruptions;
- no data transmission over the internet can be guaranteed as totally secure;
- the User must take precautions to ensure that their processes for accessing the Software and Services do not expose them to the risk of viruses, malicious computer code or other forms of interference which may damage their Devices or interrupt access to the Software; and
- any errors or disruptions outside Vortilla's reasonable control will not constitute a breach of these User Terms by Vortilla.
- Except as expressly provided to the contrary in this document, and to the full extent permitted by applicable law, Vortilla will not be liable for any loss, including special, indirect or consequential damages (such as loss of profits), or claim, arising out of breach of these User Terms or arising out of the supply of defective Software or Services.
- Without limiting clause 10.2, to the full extent permitted by applicable law, Vortilla's liability for any term, condition, guarantee or warranty that is implied by law and cannot lawfully be excluded by Vortilla, including the consumer guarantees set out in the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and all similar or equivalent legislation, rules and regulations is limited to (at Vortilla's option):
- in the case of goods, including the Software (to the extent the Software is considered a good under applicable law) – repairing, replacing or supplying equivalent goods, or paying the cost of any of those remedies to You; or
- in the case of services, including the Services – supplying the services again or paying the cost of having the services supplied again.
- Without limiting or affecting any other provision of this document, to the full extent permitted by applicable law, Vortilla's maximum aggregate liability to the User for any losses it incur or claims it makes against us is limited to $10.
- The User acknowledges that it has not relied on any representation made by Vortilla which has not been stated expressly in these User Terms.
- The User will indemnify and keep indemnified Vortilla, its successors in title, their Related Bodies Corporate and their respective officers, employees and agents (those indemnified) from and against any loss (including reasonable legal costs and expenses) or liability incurred by any of those indemnified arising from any action, claim, demand, suit, action or proceeding whatsoever, whether presently existing or arising at any time in the future and whether referable to events or circumstances which have already occurred or which may occur in the future, where such loss or liability arose from:
- any breach of these User Terms by User;
- any act or omission of the User contrary to these User Terms or which would constitute a breach if it was done or omitted to be done by the User; or
- any warranty given by the User proving to have been false, misleading or inaccurate when made.
Vortilla is entitled to enforce any indemnity as trustee on behalf of those indemnified.
- Vortilla may assign these User Terms at any time. The User may assign these User Terms only with the prior written consent of Vortilla, which consent shall not be unreasonably withheld.
- Vortilla may subcontract any of its obligations under these User Terms to any person and may permit any of its rights under this Agreement to be exercised by its Related Bodies Corporate. Vortilla holds the benefit of this Agreement on trust for any of its Related Bodies Corporate.
- The failure or delay by a party to exercise any right under these User Terms will not be taken as a waiver of the right. No waiver of any right is effective unless made in writing. Waiver of any particular right does not in any way release any other party from strict compliance in the future with the same or any other obligation.
- These User Terms is governed by and is to be construed under the laws in force in the State of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with these User Terms. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.
- If a provision in these User Terms is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from this document for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of these User Terms.
- Clauses 3.6, 3.7, 3.8, 8.3, 8.4, 9.4, 9.5, 10 and this clause 11.6 survive termination of these User Terms.
- Definitions and interpretation clauses
In these User Terms:
- Bundled Software
means third-party software provided by Vortilla as part of a bundle of utility software relating to Vortilla's Software.
means any information and material in any form entered or uploaded into the Software by the User.
- Copyright Act
means the Copyright Act 1968 (Cth).
means a customer of Vortilla who has accepted a proposal to provide the Software and Services under these User Terms.
means a single device owned or controlled by the User and used to access or use the Software and Services.
means any instruction manuals and other supporting documentation provided by Vortilla in relation to the Software.
- Intellectual Property
means any and all intellectual and industrial property rights anywhere in the world (including present and future intellectual property rights) including (but not limited to) rights in respect of or in connection with:
- any related confidential information, trade secrets, know-how or any right to have information kept confidential;
- copyright (including future copyright and rights in the nature of or analogous to copyright);
- trade marks, service marks and other related marks; and
- all associated goodwill,
whether or not existing at the date You agree to these terms and whether or not registered or registrable and includes any and all variations, modifications or enhancements to each of them together with any application or right to apply for registration of those rights and includes all renewals and extensions.
- Licensed Material
- the Software;
- any Bundled Software licensed in accordance with clause 4.2(a);
- any Documentation; and
- any Updates to any of (a)–(c) provided by Vortilla.
- Permitted Purpose
means the use of functions within the Software for the creation and management of data and content created by and published within the Software.
- Related Body Corporate
has the meaning given to that term in the Corporations Act 2001 (Cth).
means services offered by Vortilla for use in conjunction with the Software (if any).
means the software application licensed by Vortilla to which this document applies.
means an update, modification, alteration, enhancement or new releases of Software or Documentation supplied by Vortilla that replaces or supplements a previous version.
means a natural person permitted by a Customer to use the Software or Services.
- User Account
means an account associated with a particular User.
means Vortilla Holdings Pty Ltd ABN 23 087 711 993 of Suite 13.15, 401 Docklands Drive, Docklands VIC 3008, Australia.