Terms and Conditions

1. Definitions
Client

Means the company with whom Swift Digital has agreed to enter into this Agreement for the provision of Swift Digital Marketing Automation Platform.

Data

Means the data that the Client inserts into the Software (including names, addresses and other details of the Client’s customers) for the purpose of using the Software.

Email Credits

Means credits for emails weighing up to and including 300k as described in clause 7 for use in conjunction with the Software.

Email Fee

Means the fee for purchasing Email Credits as specified by Swift Digital as agreed in the terms of the contract at the date of this Agreement, and as varied by Swift Digital in accordance with clause 9.6.

Fees

Mean the License Fee, On-Boarding Fee, Set-Up Fee, SMS Fee, Email Fee, User Fee, Contact Fee.

GST

Means GST as defined in clause 10.

Intellectual Property Rights

Includes all existing and future rights in patents, designs, copyright, know-how, moral rights, trade secrets, confidential information, trademarks, service marks, trade names, goodwill and other rights arising from the provision of the License and performance of the Services.

Keyword

Means the words and numbers notified in writing to the Client by Swift Digital, which controls the Client’s access to the Software, including but not limited to the Client’s password and user name.

License

Means the license referred to in clause 5.1.

License Fee

Means the license fee for the Software as specified by Swift Digital at the date of this Agreement, and as varied by Swift Digital in accordance with clause 9.6.

Netiquette

Means generally accepted standards for use of the Internet, including standards as to the sending of bulk unsolicited email, mail bombing, misrepresentations involving false third party authorisations or the impersonation of other persons.

Swift Digital

Means Leapfrog Publishers Pty Ltd (ABN 70 91 393 627) trading as Swift Digital.

Privacy Act

From 12 March 2014, the Australian Privacy Principles (APPs) replaced the National Privacy Principles and Information Privacy Principles and will apply to organisations, and Australian Government (and Norfolk Island Government) agencies. To ensure that all Swift Digital Client data is held in line with the new privacy principles all data is held in our Australian Data Centre and no data ever leaves Australian shores and jurisdiction. This is designed to make it easier for Swift Digital clients to meet APP 8 in relation to cross border disclosure of personal information.

Registration Date

Means the date notified in writing to the Client by Swift Digital.

Server

Means the computer servers owned or used by Swift Digital Platform to operate, and provide the Client with access to the Software.

Services

Mean the internal maintenance, repair and upgrade of the Software (including the Software modules) and the Server.

Set up Date

Means the date on which a Software Packages is to be set up.

Set up Fee

Means the fee for setting up access to a Software Module.

Software

Means the software application known as Swift Digital Suite, which consists of the Software Modules.

Software Module

Means a module of the Software as described in the Website, including but not limited to each of Newsletter, Office, Events , Campaign, Composer, Triggers, Campaign Automation, Survey, SMS.

Spam

Means unsolicited emails as defined by the Spam Act 2003 often of a commercial nature, sent indiscriminately to multiple mailing lists, individuals, or newsgroups.

Term

Means the period referred to in clause 3 and includes the Initial Term and the Subsequent Term and:

Website

Means the website at www.SwiftDigital.com.au or such other website as Swift Digital notifies in writing to the client.

2. Interpretation

2.1 A notice will be in writing if it is provided in an email.

2.2 All references to Fees are reference to Fees payable in Australian dollars.

3. Term

3.1 This Agreement is for 12 months or such shorter period as is agreed in writing by the parties (Initial Term), after which the Term is extended automatically for such further period(s) equal to the length of the Initial Term (Subsequent Term) unless either party terminates this Agreement in accordance with clause 12 after the expiration of the Initial Term.

4. Privacy

4.1 Swift Digital will:

(a) at all times comply with the Australian Privacy Principles (APPs) and the Privacy Act

(b) at all times comply with the Spam Act;

(c) take all appropriate steps to protect the Personal Information it collects

(d) not store Personal Information outside of Australia without consent of the client

5. Grant of License

5.1 Swift Digital grants the Client a non-exclusive, non-transferable license to use the Software and any Software Module, via the Server, for the Term:

(a) subject to the restrictions pursuant to clause 5.2; and

(b) subject to, and on, the terms and conditions of this Agreement in its entirety.

5.2 The Client acknowledges and agrees that:

(a) the License is restricted so that use of the Software is limited to its use in relation to a Software Module for which the Client has paid a Set Up Fee.

(b) at the time of entering this Agreement, a client must select at least one Software Module to be used in conjunction with the Software, and must pay the Set Up Fee for that Software Module.

(c) it is a condition of the License that throughout the Term, at least one Software Module is used in conjunction with the Software; and

(d) the Client may replace the Software Module referred to in this clause 5.2 with another Software Module, in accordance with clause 5.3.

5.3 Swift Digital may replace the Software Module (referred to in clause 5.2) or the Client may request access to any other Software Module in addition to access to a Software Module currently used by it provided that:

(a) the Client makes a written request to Swift Digital and Swift Digital agrees to the request; and

(b) the Client pays Swift Digital the Set Up Fee and related license for the replaced or additional Software Module in accordance with clause 9.4.

5.4 The Client acknowledges and agrees that the Set Up Fee is a payment for setting up access to a Software Module for an ongoing period. If access to the Software Module is terminated by the client for a period exceeding 30 days for any reason, the Client must pay the Set Up Fee again in order to set up the access to the Software Module.

5.5 In the event that the Client cancels access to the Software or a Software Module, the Client acknowledges and agrees that it will not be entitled to any refund whatsoever.

5.6 The Client acknowledges and agrees that the License does not confer any rights (proprietary or otherwise) to the Client in relation to the Software.

6. Client’s Obligations

6.1 The Client must:

(a) only use the Software for the purposes of marketing the Client’s business to the Client’s customers and in accordance to Spam Act 2003 via electronic mail.

(b) pay the Fees in accordance with clause 9.

(c) comply with and observe Netiquette.

(d) provide all information reasonably required by Swift Digital to grant the License and provide the Services.

(e) ensure that all information provided by the Client to Swift Digital is accurate, complete and up to date at all times.

(f) comply with the Privacy Act in the handling of all personal information (including making the necessary disclosures to, and obtaining the relevant consents from, the Client’s customers in relation to the handling of the Data).

(g) not allow any third party to use or access the Software and/or Servers.

(h) immediately notify Swift Digital if it becomes aware of any unauthorised use of the Software and/or Servers.

(i) not share, re-sell or attempt to share or re-sell the License, the Software or access to the Software to any third party.

(j) not assign or attempt to assign this Agreement or any of the rights or obligations of this Agreement to any third party without the prior written consent of Swift Digital.

(k) not permit or allow any third party to use or access the Software for any purpose, without the prior written consent of Swift Digital.

(l) in order to make proper use of the Software, have a basic knowledge of how the Internet functions and what types of uses are, and are not acceptable.

(m) not use the Software and/or Servers for any unlawful purpose or for the publication, linking to, issue or display of any unlawful material (including but not limited to any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights of any third party or which is or encourages a criminal act or contains any virus, worm, Trojan horse or other harmful code) whether under Australian law or regulation, the laws or regulations of any other place where the results of such purpose or such material can be accessed.

(n) not use the Software and/or Servers for the publication, linking to, issue or display of any material which may harm Swift Digital or any of its clients or bring Swift Digital into disrepute

(o) not provide any technical or other information obtained from Swift Digital and/or relating to the Software and/or Services to any person, company, firm or government.

(p) ensure that all Data and other material operated by the Client and communicated via, or hosted on the Server is free of viruses and other harmful code.

(q) keep backups of all Data provided by the Client to Swift Digital.

(r) promptly notify Swift Digital of any change to its communication address; and

(s) not reverse engineer, de-code or in any way disassemble the Software or any part of the Software.

7. Purchase of Email Credits

7.1 The Client may purchase Email Credits for use in conjunction with the License for the Email Fee.

7.2 The Client acknowledges and agrees that:

(a) any unused Email Credits will accumulate for the Term.

(b) all unused Email Credits will expire on termination of this Agreement.

(c) Email Credits are not transferable or refundable for cash or any other type of payment.

(d) Email Credits are not assignable to any third party.

(e) the minimum amount of Email Credits which can be purchased at one time is 1000 Email Credits.

(f) for the purposes of this Agreement, an Email Credit means an email weighing up to and including 300k. If an email weighs greater than 300k, each additional 300k of the email or part thereof greater than the initial 300k will be charged as a separate Email Credit. The email size of each email will be determined by Swift Digital and will be based on all files and images that form part of the email, including any downloadable files.

7.3 The Client must pay the Email Fee in accordance with clause 9

8. Services

8.1 Swift Digital will:

(a) provide access to the Software and Server.

(b) maintain the Software and Server so that it is in working order.

(c) repair the Software and Server as and when required.

(d) host the Software on the Server.

8.2 The Client acknowledges and agrees that Swift Digital may from time to time, modify, improve or correct the Software (or any part thereof) with or without notice to the Client. In such circumstances, Swift Digital may temporarily be unable to provide access to the Software. The Client agrees that Swift Digital will not be liable in any way whatsoever for any loss or damage suffered by the Client should such circumstances arise.

8.3 In the event that Swift Digital is temporarily unable to provide access to the Software, it will endeavour to restore the access as soon as reasonably practicable.

8.4 The Client acknowledges and agrees that Swift Digital has no obligation to manipulate any of the Data or validate or vet the Data for usability, legality, content or correctness.

9. Fees

9.1 In consideration for the grant of the License, the Client must pay Swift Digital the License Fee in accordance with this clause 9.

9.2 The Client must pay Swift Digital:

(a) for the License for the Initial Term:

(i) the whole License Fee for the Initial Term on or before the Registration Date; or

(ii) if agreed by Swift Digital, the License Fee in equal monthly instalments in advance on or before the monthly anniversary of the Registration Date; and

(b) for the License for each Subsequent Term:

(i) the License Fee on or before the first day of that Subsequent Term; or

(ii) if agreed by Swift Digital, the License Fee in equal monthly instalments in advance on or before the monthly anniversary of the first day of that Subsequent Term.

9.3 If the Client fails to pay the License Fee in accordance with clause 9, Swift Digital may:

(a) suspend access to the Software or any part of the Software until the License Fee is paid; or

(b) terminate this Agreement immediately with written notice to the Client.

9.4 In consideration for access to a Software Module, the Client must pay Swift Digital the Set Up Fee for the relevant Software Module:

(a) where the Software Module is the one referred to in clause 5.2, on or before the Registration Date;

(b) where the Software Module is an additional Software Module referred to in clause 5.3, on or before the Set Up Date.

9.5 In consideration for the purchase of a batch of Email Credits, the Client must pay Swift Digital the Email Fee upon the purchase of that batch of Email Credits.

9.6 The fees specified in the agreement are for the Initial Term. Swift Digital may vary the Fees from time to time during any Subsequent Term by providing the Client with at least one month’s notice upon expiry of the Initial Term.

9.7 Payment will only be deemed to be received by Swift Digital upon receipt of cleared funds. Payment must be made in full without any abatement, set off or deduction on any goods.

9.8 The Client will be responsible for any and all expenses incurred by Swift Digital in recovering overdue amounts and the Client must pay interest on them (before and after judgment) at the annual rate of 5% above the base lending rate of the Commonwealth Bank of Australia calculated daily until payment is made in full.

9.9 If payment is not made within 45 days from the date of invoice, there will be an interest charge at the rate of 9% per annum compounded daily, unless otherwise agreed upon through written documentation signed by the directors of Swift Digital. The charge will include interest accrued from the date of invoice, not the due date.

Failure to settle all amounts by their due date may result in the withholding of access to the Software and/or Services.

10. GST

10.1 GST law and other terms used in this clause 10 (except Recipient) have the meanings ascribed to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time) or any replacement or other relevant legislation and regulations, except that GST law also includes any applicable rulings.

10.2 If GST becomes payable by a party to this Agreement (Supplier) in relation to any supply that it makes under or in connection with this Agreement, the parties agree that:

(a) unless clearly stated in this Agreement to the contrary, any consideration (including the value of any non-monetary consideration) provided for that supply (Agreed Amount) is exclusive of GST;

(b) an additional amount will be payable by the party providing consideration for that supply (Recipient) equal to the amount of GST payable by the Supplier in relation to that supply;

(c) the additional amount is payable at the same time as any part of the Agreed Amount is to be first provided for that supply To the extent, if any, that any consideration for a supply is specified in this Agreement to be inclusive of GST, that consideration will be excluded from the Agreed Amount for the purposes of this clause 10.

11. Security

11.1 Whilst Swift Digital will reasonably endeavour to ensure that the Servers and the Data contained in the Software and on the Server is safeguarded from damage, accident, fire, theft and unauthorised use, the Client acknowledges and agrees that Swift Digital will not be liable for any loss or damage suffered by the Client for any such damage, accident, fire, theft or unauthorized use.

11.2 The Client may, with Swift Digital’s consent, and subject to satisfying certain security checks, change its Keyword by making a written request to Swift Digital or by administering the User’s own account via their set access role.

11.3 The Client acknowledges and agrees that:

(a) it is responsible for the security and proper use of all Keywords provided to the Client;

(b) the Client must take all necessary steps to ensure that all Keywords:

(i) are kept confidential and not disclosed to unauthorised people;

(ii) used properly and only for the purpose for which the Keywords are provided;

(c) it will inform Swift Digital immediately if it has any reason to believe that:

(i) any Keyword has become known to an unauthorized person; or

(ii) any Keyword is being or is likely to be used in any unauthorised way; or

(iii) there has been or will be any other breach of security;

(d) Swift Digital is not, and will not be held, liable in any way, for any expense, loss or damage suffered by the Client arising from or in any way relating to a breach of security or failure by the Client to comply with this clause 11;

(e) it is entirely liable for all activities conducted and charges incurred under the Keyword whether authorized by the Client or not;

(f) if the Client forgets or misplaces any Keyword, the Client must immediately notify Swift Digital. Swift Digital will re-issue a new Keyword to the Client via the Client’s email address.

12. Termination

12.1 Neither party may terminate this Agreement during the Initial Term of the Agreement except in respect of any of the circumstances specified in clauses 12.3 (a) or (c), 12.4 or 12.8.

12.2 Subject to clause 12.1 and 12.3(b) the Client may terminate this Agreement during any Subsequent Term by providing one month’s written notice to Swift Digital.

12.3 The Client may terminate this Agreement:

(a) by written notice to Swift Digital no later than 30 days prior to the expiration of the Initial Term but the Client shall remain liable for all Fees in respect of the whole of the Initial Term

(b) by written notice to Swift Digital no later than 30 days prior to the expiration of any Subsequent Term but the client shall remian liable for all Fees payable of the whole of the Subsequent Term.

(c) immediately, with written notice to Swift Digital if Swift Digital is in material breach of this Agreement and has failed to rectify that breach within 7 days of written notice requiring remedy of that breach; or

(d) if Swift Digital increases the Fees in accordance with clause 9.6 in any Subsequent Term, and the Client provides Swift Digital with written notice of termination within 1 month of receiving the notice of variation from Swift Digital.

12.4 Swift Digital may terminate or suspend this Agreement immediately with written notice to the Client if:

(a) the Client is in breach of any of its obligations or warranties in this Agreement;

(b) the Client does anything which may impact the License, access to the Software, or the Services, or the ability of Swift Digital to provide access to the Software to its other clients;

(c) Swift Digital reasonably suspects or believes that the Client has not provided accurate, complete and up to date information in relation to this Agreement;

(d) Swift Digital considers in its reasonable opinion, that the Client has said, written or done anything which will or tends to bring Swift Digital into public disrepute;

(e) Swift Digital considers in its reasonable opinion that the Client’s use of the Software or access to the Software will, or tends to, bring Swift Digital into public disrepute;

(f) Swift Digital becomes unable to provide the License, the Services or access to the Software for any reason; or

(g) the Client goes into liquidation, or makes a composition or arrangement with creditors generally, or takes advantage of any statute for the relief of insolvent debtors.

12.5 Upon the termination of this Agreement, the Client must immediately pay to Swift Digital all amounts for which the Client is liable under this Agreement.

12.6 Termination of this Agreement will not prejudice any other rights or remedies which a party may be entitled to under law.

12.7 If Swift Digital suspends this Agreement in accordance with clause 9.3 or this clause 12, such suspension will not prejudice Swift Digital’s rights to receive all amounts outstanding under this Agreement, and for the period of suspension, the Client will remain obligated to fulfil all aspects of this Agreement.

12.8 Notwithstanding any other provision of this Agreement, Swift Digital may terminate this Agreement immediately with written notice to the Client if Swift Digital believes that the service is misused for spam. The Client acknowledges and agrees that where the Agreement in terminated in accordance with this clause 12.8, the Client will not be entitled to any refund of the Fees or any part of the Fees and all Email Credits will expire.

13. Indemnity

13.1 The Client will indemnify and keep indemnified Swift Digital, its subsidiaries, affiliates, officers, partners, employees and agents and other related bodies corporate against any action, loss, liability, damage, claim, penalty, cost or expense (including but not limited to legal fees) suffered directly or indirectly by Swift Digital, arising from:

(a) any breach by the Client of any of its warranties or obligations under this Agreement; and

(b) any claims made against Swift Digital in relation to the Client’s use of the License or access to the Software.

14. Limitation of Liability

14.1 The Client acknowledges and agrees that Swift Digital’s liability under this Agreement is limited to granting the License, providing access to the Software and providing the Services in accordance with this Agreement.

14.2 The Client acknowledges and agrees that Swift Digital will not be liable to the Client for any action, loss, liability, damage, claim, penalty, cost or expense, which the Client may suffer or incur as a result of its failure to comply with the terms and conditions in clause 6 or the use of any software module connected with the Swift Digital Suite.

15. Warranties

15.1 Each party warrants that:

(a) it is able to enter into and fulfil its obligations pursuant to this Agreement;

(b) it is not under any obligation or restriction that would interfere with or restrict the performance of its obligations under this Agreement;

(c) the entry into this Agreement or the performance of this Agreement will not put it in breach of any obligation to any third party as at the date of execution of this Agreement, and throughout the Term; (d) all representations, warranties and undertakings are true and correct to the best of its knowledge.

16. Intellectual Property

16.1 The Client acknowledges and agrees that at all times, Swift Digital owns all the right, title and interest in:

(a) the Software and any modifications to the Software;

(b) the Intellectual Property Rights in the Software;

(c) the Intellectual Property Rights in all other names, images, pictures, logo and icons identifying Swift Digital, the License, the Software or the Services; and

(d) the Intellectual Property Rights in the design and arrangement of the Website, text and graphics and all software compilations, underlying source code, and all other material on the Website.

17. Data

17.1 The parties acknowledge and agree that the Client owns all the right, title and interest in the Data.

17.2 The Client acknowledges and agrees that Swift Digital may access the Data for the purposes of providing the License, access to the Software, or the Services and other services pursuant to clause 5.

17.3 On the termination of this Agreement, Swift Digital will, at the Client’s instruction and expense, download the Data from the Servers onto a CD Rom and provide that CD Rom to the Client.

17.4 At the completion of this agreement, Swift Digital will physically or electronically destroy beyond all ability to recover all original data provided to them. This includes any and all copies of the data such as backup copies created.

18. Confidentiality

18.1 The Client must not use or disclose to any person any confidential information (including but not limited to documents, information, strategies and know how;

(a) relating to the affairs or business of Swift Digital, its subsidiaries, affiliates, officers, partners, employees and agents and other related bodies corporate; or

(b) which come into the Client’s possession in the course of or by reason of this Agreement; or

(c) relating to, or evidencing, this Agreement itself ; either during the Term or any time thereafter, except in the proper course of the Client’s obligations under this Agreement or as required by law or by Swift Digital.

The Client must use reasonable endeavours to prevent the unauthorised use or disclosure of such confidential information by third parties.

19. General

19.1 This Agreement is governed by and will be construed according to the laws of Australia.

19.2 Swift Digital may assign this Agreement and any of its rights or obligations under this Agreement without the prior consent of the Client. The Client may not assign this Agreement or any of its rights or obligations under this agreement without the prior consent of Swift Digital. 19.3 To the extent permitted by law, this Agreement:

(a) embodies the entire understanding of the parties, and constitutes the entire terms agreed by the parties.

(b) supersedes any prior written or verbal or other agreements between the parties.

19.4 A notice, approval, consent or other communication in connection with this Agreement must be in writing to the address stated in this Agreement or such other address as notified by the relevant party.

19.5 This Agreement does not constitute any party the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and no party has the power to bind any other party in any manner whatsoever.

19.6 Any failure or delay by either party in exercising any rights or remedy will not constitute a waiver.

19.7 If any part of this Agreement is deemed to be illegal, void or unenforceable, that part of the Agreement will be severed to the extent of that illegality, voidness or unenforceability, without invalidating the remaining provisions.

19.8 Clauses 8.2, 9.8, 11.3(d), 12, 13, 14 and 18 will survive the termination of this Agreement.