Terms - Users of the Tribal Habits Subscription Service and Marketing Website

(a) have agreed with us that this Agreement governs your subscription for and use of the Service, by signing a paper copy, signing a digital copy via e-signature, advising us that you agree with this Agreement or the Quote or making payment on the Quote; or

(b) agree with us that this Agreement governs your subscription for and use of the Service immediately upon the first instance of you: receiving any Service from us; accessing the Tribal Habits website; or, accessing any page, or other resource through the website.

Operative Terms

In this document:

“Associate” when used in relation to a Party means any one or combination of the following who has an enforceable obligation of confidence to the relevant Party:

1. An employee;
2. A contractor;
3. A director;
4. A shareholder;
5. A principal or partner;
6. A financial, accounting, legal, or insurance advisor.

“Authorised User” means an individual user authorised to access the Service by a subscribing organisation.

“Business Day” means a day on which banks are open for business in Brisbane, Queensland, Australia.

“Confidential Information” means all information in any form, including verbal, written or electronically stored information, belonging or relating to a Party, and includes, without limitation: 

1. any kind of technical, financial or business information;
2. details of employees, suppliers, or customers;
3. material developed by either Party under this Agreement;
4. Intellectual Property, concepts, know-how and trade secrets;
5. features of the website and Service, which are not determinable or viewable without logging in,

but excludes information in the public domain (other than by default under this Agreement or information independently known to the other Party.

“Content” means any media capable of being streamed, text, data, documents, code, content, software, or other files on the website, including user generated content and content uploaded from any third party, but excluding any part of the website whatsoever, the Service, or related templates, media, modules, or data.

“Durability,” in relation to digital data, means data that is not permanently lost or corrupted.

“Fee” means the fees for the Services set out in the Quote, as may be varied or updated in accordance with this Agreement.

“Force Majeure Events” means any natural disaster, fire, flood, war, riot, terrorism, vandalism, government sanction, industrial action, pandemic or event caused by, or relating to the threat of communicable disease, or other significant event outside the reasonable control of a party.

“Intellectual Property” means all industrial and intellectual property rights including, without limitation, trade marks, patents, copyrights, circuit layout rights, right to extract information from databases, design rights, trade secrets, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them) other than moral rights. 

“Monthly Active User” means an Authorised User who logs into your portal at least once during a calendar month. The Authorised User then becomes a monthly active user for the remainder of that calendar month. Only the first login each calendar month is counted and there are no other limits to the number of logins by that Authorised User for the remainder of the calendar month. All Authorised Users, regardless of access level, are counted for this purpose.

“Other Policies” means any one or combination of the policies that we publish from time to time at https://tribalhabits.com/policies or https://security.tribalhabits.com/ as the case requires, if any.

“Party” means a party to this Agreement, being either you or us.

“Quote” means the document to which this Agreement is attached or incorporated and includes any additional Quotes which may be agreed.

“Service” means the provision of access to our software known as “Tribal Habits,” as further particularised under the subscription service plan described in the Quote.

“Term” means the initial term set out in your Quote, including any renewals or extensions in accordance with this Agreement.

“TH Content” means any Content provided by us for consumption as training materials including images, text, sounds, videos, animations, other Content, or other files on the website, including Content uploaded from any third party Content provider as the case requires, but excluding your data, or any part of the codebase of the website, or related templates, media, or modules.

“Website” means the Tribal Habits website available through the domain https://tribalhabits.com or any subdomain.

2. Term and Automatic Renewals

2.1.  Annual and extended subscription: Where you are on an annual subscription of 1 year, 2 year or 3 year terms, or an Annual Renewal Term, provided you have paid all Fees owing, this Agreement and your subscription will be automatically renewed for recurring 12 monthly periods (each of which will be considered an Annual Renewal Term) and at the then current Fee.

2.2.  Monthly subscription: Where the Term of your subscription is month to month, at the end of each month, provided you have paid all Fees owing, this Agreement will be automatically renewed for recurring monthly periods (each of which will be considered a Monthly Renewal Term) and at the then current Fee.

2.3.  If you wish to cancel your Annual Renewal Term or Monthly Renewal Term, you may do so by notifying us in writing via your Account no later than 14 days prior to your current Term expiring. Cancellation will take effect at the end of your current Term and you will need to continue paying all Fees due up until your current term ends. We will provide you with a renewal reminder together with the applicable Fee at least 25 days prior to your current Term expiring.

3. Access to the Software as a Service

3.1.  In return for payment of the Fee, we will provide your users with access to the “Tribal Habits” software as a service on a subscription basis.

3.2.  We may update or vary this Agreement, including the Fees (Variation), at any time, by providing written notice to you at least 30 days before your next billing cycle. The Variation will take effect on and from your next billing cycle (Effective Date). If you do not agree to the Variation, you may cancel your subscription by providing us with written notice at any time before the Effective Date and your subscription will terminate on the Effective Date. By continuing to use the Services after the Effective Date, you agree to the Variation. 

3.3.    If you are:

(a) an individual, you must be at least 18 years old to subscribe for the Service, and we are entitled to assume you are at least 18 years old;

(b) a company or other organisation, we are entitled to assume entry into this Agreement for and on your behalf is properly authorised by you.

3.4. We may associate a Fee with any particular functionality in your Service plan.  You are not entitled to access functionality for which you have not paid (or agreed to pay) the applicable Fee.  All such functionality and associated fees will be described in the Quote.  To the extent that we agree to vary the functionality available to you in your Service plan, we may vary the Fee payable accordingly.  Without limiting the generality of the foregoing, we may charge additional Fees for providing additional functionality to you.

3.5. We may impose limitations on particular functionality of the Service or provide warnings or disclaimers to you in relation to any TH Content, by publishing a notice to you about any particular matter.  You acknowledge that if you continue to use or access the relevant functionality, or TH Content, that such use is subject to the relevant limitation, warning, or disclaimer, as the case may be; and you must determine the suitability of the functionality or TH Content for your purposes.  

3.6.    The Services are subject to the following limitations:

(a) The website is hosted by a third-party service provider and we do not guarantee that your access to it will be continuous or error free.

(b) Each payment processor that we use is a third party and we do not guarantee that the payment processing service will be persistently available, continuous or error free.

(c) The Service includes functions provided by third parties and licensed to us, and we cannot guarantee that such functions, or software, will continue to be available in the future. Examples of such functions includes, without limitation, uploading and playback of SCORM and other external learning modules via our SCORM Cloud Integration; creation, sharing and access to your content within your Tribal Habits subdomain via LMS Link via our Rustici Cross Domain Integration; embedding external links via our Embed block and iFramely integration; upload and playback of videos via our Wistia integration, and others. Such software may be substituted for alternatives with equivalent or similar functionality, but Tribal Habits makes no warranties or representations about the availability or suitability of alternative software that may be used within the website in the future.

(d) We are not responsible for any defects, delays or interruptions to the Service caused by the delays, action or inaction of any third parties and without limitation such as hardware suppliers or installers, internet service providers, telecommunications companies or service providers or Force Majeure Events.

3.7. We use industry standard security protocols and methods to secure the website and the Service. If you would like further information, please see our security portal at https://security.tribalhabits.com.

4.1. We will provide the Service for you to use for your own internal business purposes.  You must not resell, resupply, lease, license, sub-license, or otherwise permit third parties (other than Authorised Users) to use the Service, unless otherwise agreed by us in writing. For clarity, you receiving payment from a person who you nominate as an Authorised User to access our Service is permitted.

4.2. You must provide your full legal name, a valid email address, and any other information required by us to complete the initial subscription process.  Your full name or organisation name will be used in the provision of the Service, for example, in documents and materials generated by the Service for use by you.

4.3. If you subscribe to the Service as an organisation, you may allow Authorised Users to access the Service on your behalf.  You must ensure each Authorised User complies with these terms as if they were you.  You acknowledge that you are responsible for all use of the Service by you and your Authorised Users.  We are entitled to assume that use of the Service through your account or your Authorised Users accounts is use by you or your Authorised Users respectively.  You indemnify us and our related companies, officers and employees and keep them indemnified from and against any claim, demand, suit or liability arising from any use of the Service through your account or any of your Authorised User accounts.

4.4. You must manage the currency and security of each Authorised User account.  For example, you must ensure (using the user administration facilities provided by the Service) that accounts issued to Authorised Users which are no longer required are deleted, so that those Authorised Users do not have ongoing access to the Service.  In any event you are liable for all costs which arise in relation to your account relating to each Authorised User.

4.5. You must not upload or publish any Content that is unlawful, threatening, libellous, defamatory, pornographic, misleading, persecutory or prejudicial (and whether bias-motivated or otherwise), obscene, in breach of any advertising standards, in breach of any copyright or any other intellectual property rights,  in breach of any person’s privacy or other human rights, or unsuitable for general consumption.  You further agree that we may remove any material that we reasonably deem to be unsuitable or otherwise in breach of this Agreement,  which includes Content that we deem to be inappropriate, offensive or that may affect our reputation, goodwill, or brand, or in breach of copyright or any other intellectual property rights.   We may also suspend your account in accordance with this Agreement until you remove such Content and agree not to republish, any similar Content. Nothing in this clause is to be read as limiting any of our rights under this Agreement, or to imply that we have any obligation to monitor, review, or screen any Content. You indemnify us and our related companies, officers and employees and keep them indemnified from and against any claim, demand, suit or liability arising from your breach of this clause 4.5. 

4.6. Your access to the website is conditional on your continued compliance with the provisions of this Agreement.

5.1.  As between you and us:

(a) we own, or are licensed to use, all copyright and other intellectual property rights in and related to the Service and the software that underlies it; and

(b) we own, or are licensed to use, all copyright and other intellectual property rights in the TH Content; and

(c) you own all copyright and intellectual property rights in and related to any Content or information uploaded by you using the Service.

5.2. No part of the Service, the TH Content, or our website may be stored, used, reproduced, or transmitted by you, other than in the normal use of the Service and only for the duration of the Term, without our prior written consent. For the avoidance of doubt, you must not at any time download, extract or use the TH Content outside of the Service. For the Term:

(a) we grant to you a revocable, non-exclusive, royalty free licence to access the website and any functionality included in your Service plan;

(b) or such shorter period agreed between the parties from time to time, we grant to you a revocable, non-exclusive, royalty free licence to access the TH Content included in your Service plan.

5.3. You must ensure, and you irrevocably warrant to us that you are entitled to use any Content or information that you upload or use in relation to the Service.  You grant us an irrevocable non-exclusive, royalty-free licence to store, use, reproduce, transmit and publish any such material, data or information for the purpose of providing the Service to you and each of your Authorised Users.

5.4. Any rights not expressly conferred in these terms are reserved by us.

5.5. For clarity:

(a) the licence granted to you by us under clause 5.2(b) in relation to the TH Content includes the right to edit, amend, supplement, and refer to a copyright work included in the TH Content for use solely by your Authorised Users, on the strict condition that such use does not limit, curtail, waive, or derogate from, our rights in relation to the relevant copyright work; and

(b) we agree that any new copyright works created by you are owned by you (but in no event will such works include or comprise the TH Content or any part of it), and all such Content is licenced to us under clause 5.3; and

(c) nothing in this clause 5 permits you to use any of the TH Content in any way other than as provided to you through the website under this Agreement.

5.6 Nature of Third-Party Content

Some TH Content available through the Service is provided by third-party content providers with whom we have commercial arrangements (“Third-Party Content”). Third-Party Content forms part of TH Content and all terms of this Agreement relating to TH Content apply to Third-Party Content, in addition to the specific provisions below. We act as a distribution platform for Third-Party Content.

5.7 Our Role and Responsibilities

In relation to Third-Party Content:

(a) we select third-party content providers and enter into commercial arrangements with them for the distribution of their content through our Service;

(b) we have no ability or obligation to edit, modify, or independently verify the technical accuracy, subject matter expertise, or compliance of Third-Party Content;

(c) we rely on third-party content providers’ expertise, warranties, and representations regarding content quality, accuracy, currency, and compliance with applicable standards and laws;

(d) we will pass on to the relevant third-party content provider any concerns you raise about Third-Party Content; and

(e) we maintain contractual arrangements with third-party content providers that include warranties and indemnities relating to their content.

5.8 Rights to Modify or Remove Third-Party Content

We may, at our discretion:

(a) remove, suspend, or discontinue access to any Third-Party Content at any time, including where we become aware of quality, accuracy, compliance, or intellectual property concerns;

(b) replace Third-Party Content with alternative content from the same or different providers where our commercial arrangement with a provider ends or changes;

(c) modify the availability or scope of Third-Party Content based on changes to our commercial arrangements with providers; or

(d) terminate our relationship with any third-party content provider.

Where practicable, we will provide you with reasonable notice before removing Third-Party Content that forms a material part of your Service plan, except where immediate removal is necessary due to legal, compliance, or intellectual property concerns.

5.9 Intellectual Property in Third-Party Content

Third-party content providers retain all ownership and intellectual property rights in Third-Party Content. We hold a licence to distribute such content through the Service during the term of our commercial arrangements with each provider. Third-party content providers may enforce their intellectual property rights directly against you for any unauthorised use of their content.

5.10 Technical Support for Third-Party Content

Technical issues with Third-Party Content will be handled as follows:

(a) you must report issues through the Admin Support Chat feature in accordance with clause 7.1;

(b) we will provide first-line support and attempt to diagnose whether the issue relates to our platform or the Third-Party Content itself;

(c) if the issue relates to the Third-Party Content, we will refer the matter to the relevant content provider;

(d) resolution timeframes depend on the third-party content provider’s response and actions;

(e) we will provide you with updates on the status of issues referred to third-party content providers where such updates are provided to us; and

(f) if a critical issue with Third-Party Content cannot be resolved within a reasonable timeframe, we may remove the affected content.

5.11 Liability for Third-Party Content

We are not responsible for and our liability does not extend to:

(a) the accuracy, quality, currency, completeness, or compliance of Third-Party Content with any applicable laws, standards, or regulations;

(b) the technical content, subject matter expertise, pedagogical approach, or educational effectiveness of Third-Party Content;

(c) whether Third-Party Content meets or maintains any particular accreditation, CPD values, or regulatory recognition;

(d) delays in resolving Third-Party Content issues that are caused by the third-party content provider’s action or inaction;

(e) Third-Party Content that becomes outdated or non-compliant between updates by the content provider;

(fi) your assessment of whether specific Third-Party Content is suitable for your particular business requirements or learner needs;

(g) any errors, omissions, defects, or technical issues within the Third-Party Content itself;

(h) any intellectual property infringement or other legal claims relating to Third-Party Content; or

(i) any loss or damage arising from your use of or reliance on Third-Party Content.

5.12 Removal of Third-Party Content

We may remove, suspend, or replace any Third-Party Content at any time for any reason, including where our commercial arrangement with a content provider ends or changes. Where we permanently remove Third-Party Content that forms a material part of your Service plan, we will use reasonable endeavours to provide replacement content of equivalent value. If suitable replacement content is not available, we will discuss appropriate remedies with you, which may include credits, refunds, or other arrangements. During any notice period, we will continue to provide access to the affected Third-Party Content where our licence from the content provider permits.

6. Service Availability and Data Durability

6.1.    Our aim is for the Service to be available for use by you 24 hours per day, 7 days per week. However, the Service and Service availability may be affected by factors outside our control including the unavailability of third-party systems and infrastructure (including our core infrastructure providers, AWS and Cloudflare), or for urgent maintenance activity by us. You acknowledge that the availability aim in this clause is not an assurance, representation or warranty, except as expressly provided in clause 6.5. Real-time service status and historical availability records are publicly available at https://status.tribalhabits.com.

6.2.   Although we will endeavour to address issues and problems reported to us as quickly as possible, we do not have any liability for any temporary unavailability of the Service, or for any other circumstance or event outside our control, including any outage caused by AWS, Cloudflare, or other third-party infrastructure providers. If the Service will be unavailable for a longer period than we would normally expect, we will publish outage details and anticipated duration at https://status.tribalhabits.com.

6.3.    We use industry-standard approaches to the Durability of data uploaded and stored by you using the Service.  However, you must keep backup copies of any data uploaded or used in relation to the Service.  We do not guarantee the Durability of any data uploaded by you, and you acknowledge that your uploaded data may be permanently lost or corrupted for various reasons including without limitation infrastructure failure or human error.  We do not have any liability to you for any corruption or loss of data.

6.4.  If the Service expires or is terminated for any reason, or if you downgrade your Service plan or functionality, then on or before the effective date of expiry, termination or downgrade, as the case may be, you must ensure you retrieve any data or information uploaded by you in relation to the Service.  We will retain such data and information for a period of 30 days after expiry, termination or downgrade (as applicable) to facilitate this retrieval by you. Following the 30-day retention period, customer portal data will be securely deleted, with database backups retained for a further 35 days before final purging (maximum total retention period of 65 days). We do not guarantee that we will store your data for more than 365 days after expiry or termination of the Service or downgrade of your Service plan, and any data stored by us in relation to the Service or your account on our systems may be deleted immediately by us after that time. You may also request earlier deletion of your data where such deletion is permitted by law, subject to our legal and operational requirements. 

6.5.    Subject to the other terms of this Agreement, if the website is unavailable, or users cannot login and access TH Content for more than 48 hours due to circumstances within our reasonable control, then upon application from you within 7 days of the Service unavailability, we will credit you with an equivalent amount of time (being the time the Service was unavailable) for each of the Authorised Users related to your Organisation to access and use the Service. This credit does not apply to unavailability caused by AWS, Cloudflare, third-party integration providers, Force Majeure Events, or scheduled maintenance. This may be delivered by us as an extension of the term of this Agreement or as additional time that each Authorised User may consume at our discretion.

7. Technical Support

7.1.    We will provide you with technical support in relation to the Service.  We provide technical support to Admin users only by the Admin Support Chat feature within the platform (available by clicking the circular orange chat icon in the lower right of the screen to Admin users) only.  For clarity, support is not available via phone or email. We will only provide support for issues reported by you that we can reproduce.  You must investigate and attempt to diagnose problems before contacting us for support.  When requesting support, you must provide full and accurate details of the support issue and provide all further information and take all diagnostic steps that we request.  We will endeavour to prioritise urgent issues; however we do not represent that any issue will be addressed in a particular timeframe.  You acknowledge that the provision of support by us does not imply that all issues will be diagnosed or corrected, either within any timeframe or at all. This clause 7.1 is subject to clause 7.2.

7.2.    If you access the Service through a sub-domain (such as http://reseller_name.tribalhabits.com) or you have paid a third party to access the Service, then you must contact that third party in relation to technical support, and we have no obligations to you in this regard.

8. Policy Obligations

8.1.    Your use of the Service is subject to our Acceptable Use Policy, and our Other Policies.  Each reference to “Policies” in this clause 8 is a separate and additional reference to our Acceptable Use Policy, and each of our Other Policies as published by us from time to time, or any of them as the case requires.

8.2.    Our Acceptable Use Policy does not create any enforceable contractual rights that you may enforce against us.

8.3.    None of our Other Policies create any enforceable contractual rights that you may enforce against us.

8.4.    You must not, and must ensure your Authorised Users do not, use or upload any data or information in breach of any of our Policies, and:

(a) we may at our discretion edit or remove data or information, issue a warning, or suspend or terminate the Service immediately, in response to any breach of this Agreement, or any of our Policies.

(b) We may refer to a relevant law-enforcement authority any data or information, or your use of our Service, which in our view may breach Australian criminal law.

8.5.    We may update any of our Policies from time to time.  Updates are effective on and from publication of the updated Policies on our website.

9. Acceptable Use Policy

9.1.    You must comply with the following (“Acceptable Use Policy”), and you must ensure all your Authorised Users comply with it, in relation to the Service:

(a) you must not upload or use Content that breaches your obligations under clause 4.5 or which may expose us to liability for breach of criminal or civil law or any regulatory obligation;

(b) you must not infringe anyone’s intellectual property rights, moral rights, or information privacy rights in the course of using the Service.  This means you must ensure you have the right to use any material or Content you upload or use in relation to the Service;

(c) you must not use the Service for the purpose of commercial advertising or promotion, including the publication of unsolicited commercial messages (“spam”);

(d) you have a discretion as to what data you submit and use for the Service, what topics you develop, and what information you and your Authorised Users provide and exchange.  You acknowledge that we have no responsibility for the content of the topics developed or used by you and your Authorised Users;

(e) you must take reasonable steps to ensure you do not, even accidentally, upload or use malicious software or data such as viruses, worms, trojans, vulnerability scanners, or phishing attempts in relation to the Service, and you must take reasonable steps to ensure no such malicious software exists on the equipment you use in relation to the Service;

(f) you must not share your user id or password with any other person.  You must keep your password secure and advise us immediately if your password is compromised. Multiple individual Authorised Users must have individual identifiers and passwords – for clarity, identifiers and passwords must not be shared.

10. Payment of Fees

10.1.    You must pay us the agreed Fee, together with all amounts due and payable under this Agreement in accordance with this clause 10.

10.2.    The Fee is non-refundable, and no refunds or credits will be given for any partial use within the Term.

10.3.    Lite Plan:

Where you are on a Lite Plan (as indicated on your Quote – formerly known as a Starter Plan), the following terms apply:

(a) You must provide payment authority through one of the following methods:

(i) valid credit card information and authorisation to process payment with that card;

(ii) direct debit authority from your nominated bank account;

(b) You agree that we may charge your credit card (or other payment method) for the payment of our invoices for the Service. You further agree that we may charge your credit card (or other payment method) for additional fees relating to Monthly Active Users from time to time as contemplated by this Agreement.

(c) We will notify you if we cannot charge your credit card (or other payment method), in which case you must provide updated payment details, and authorise us to process the payment.

(d) If we cannot successfully charge your credit card (or other payment method) as provided to us, we may suspend the Service until we have received payment from you, or we may terminate the Service.

10.4.    Business Plan:

Where you are on a Business Plan (as indicated on your Quote – formerly known as an Active Plan), we will issue invoices to you on an annual basis and on a monthly basis for any additional Monthly Active Users. You must pay to us all amounts due and payable under this Agreement, using the payment method set out in our invoice, within 15 days from the date of our invoice, or as otherwise agreed between the Parties. If you fail to make payment, we may suspend

the Service until we have received payment from you, or we may terminate the Service.

10.5.    You must pay us for any costs that we incur for failed payments, including without limitation any: fees we incur relating to chargebacks initiated by your payment card issuer; fees we incur relating to declined credit card payments (or other payment methods); fees we incur relating to failed payment processing.

10.6.    In addition to any other rights we have, we may:

(a) charge interest on overdue invoices, at the rate of 10% per year, calculated and accrued monthly; and

(b) charge any expenses and costs (including legal and collection costs) incurred by us in obtaining payment of our invoices; and

(c) offset any amounts that we owe to you at any time, if any, against amounts outstanding under any invoice;

(d) set-off any amounts that you owe to us at the relevant time, against any funds that we hold (including amounts that we are required to refund or remit to you) and owe to you; and

(e) use any means at our disposal to suspend the Service, which includes without limitation: locking Authorised User accounts, preventing access to any sub-domain associated with you or this Agreement, or locking any functionality of the website or any sub-domain.

10.7.    This clause 10 survives termination of this Agreement.

11. Information Privacy Compliance and Confidentiality

11.1. We will comply with our obligations under the Australian information privacy laws, if any, in relation to any personal information of yours that we collect in the course of providing the Service.  We will also comply with our privacy policy (as available on our website from time to time) in respect of such information.  By accepting these terms, you acknowledge that information that we hold about you and your Authorised User is subject to the provisions of our privacy policy. In addition to our privacy policy, confidential customer data and personal information will also be handled in accordance with our Data Retention and Disposal Policy. In addition to our privacy policy, confidential customer data and personal information will also be handled in accordance with our Data Retention and Disposal Policy.

11.2.    You must comply with Australian information privacy law in relation to any personal information you upload or use while using the Service.

11.3.    You must promptly report to us any allegation, claim or complaint from another person relating to information privacy which involves us or the Service.

11.4.    A Party (the “Discloser“) may disclose Confidential Information to the other Party (the “Recipient“). Reference to Recipient in this Agreement includes all Associates to whom Recipient discloses any Confidential Information. Subject to clause 11.5 the Recipient must, and must ensure that its Associates:

(a) keep the Confidential Information confidential; and

(b) not use or permit any unauthorised use of all Confidential Information.

11.5.    The Recipient is not liable for breach of clause 11.4 where:

(a) the relevant Party has the prior written consent of the disclosing Party;

(b) the disclosure is required by law;

(c) the disclosure is required to comply with this Agreement, provided that the Party disclosing the Confidential Information ensures the Recipient complies with the terms of this clause 11.

11.6.    Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause 11. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach, potential breach, (or continuing breach) of this clause 11.

11.7.    This clause 11 will survive the termination or expiry of this Agreement.

12. Liability

12.1.    While we endeavour to ensure that the information provided on our website and the information provided in connection with the Service is complete and correct, we do not represent or warrant the correctness or completeness of any such material.  We may make changes to the material on our website or to the Service, or to the products and prices described on our website, at any time and without prior notice.

12.2.   The Service, and all material available using the Service and on our website (including any TH Content), is provided “as is.”  We do not warrant that the Service is error-free or will be available continuously.  We provide the Service, and access to our website and material, on the basis that we exclude all representations and warranties except those expressly stated in these terms.

12.3.    You acknowledge that the Service has not been provided or developed to meet your individual requirements.  It is your responsibility to ensure the Service meets your requirements and those of your organisation.  If you are not satisfied with the Service for any reason, your sole remedy is to cease using and terminate the Service.

12.4.    We have no liability to you for any consequential loss, lost revenue or profits, lost data, access or productivity, interference with privacy, business interruption, or any special, indirect or incidental loss, related to the Service or this Agreement, and whether in contract, negligence or otherwise.  These exclusions apply even if we knew or should have known that you might suffer loss.

12.5.    If any term is implied by law in this Agreement and cannot be excluded, then we limit our liability under that term to the maximum extent permitted by law.

12.6.    Without limiting any other term of this Agreement, and where clauses 12.7 or 12.8 do not apply, our total aggregate liability to you in respect of any claims by you against us related to the Service or this Agreement will in no circumstances exceed the actual Fee paid by you and received by us in the 12 months prior to the claims arising.

12.7.    In some jurisdictions, you may have guarantees, rights or other remedies provided by law (Consumer Law Rights), and this Agreement does not restrict your Consumer Law Rights. We will only be bound by your Consumer Law Rights and the express wording of this Agreement. Our liability for a breach of your Consumer Law Rights is, unless the laws of your jurisdiction state otherwise, limited to either resupplying our services or paying the cost of having our services resupplied.

12.8.    If you accept this Agreement in Australia, nothing in this Agreement should be interpreted to exclude, restrict or modify the application of, or any rights or remedies you may have under, any part of the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)). If our platform is not ordinarily used for personal, household or domestic use, our liability for a breach of your Consumer Law Rights is limited to either resupplying our services or paying the cost of having our Services resupplied.

13. Termination

13.1.    We may cease providing the Service to you and terminate this Agreement by giving at least sixty (60) business days’ notice.  We will provide at least 30 days of written notice of our reasons for such termination. Once notice is given, you will not be able to renew your subscription should it become due during the notice period. Despite any other provision of this Agreement if we terminate this Agreement under this clause 13.1, then we will provide a pro-rata refund of any Fees paid in advance by you and received by us, and which are not subject to our rights to set-off amounts under this Agreement.

13.2.    We may cease providing the Service to you and terminate this Agreement by giving at least fifteen (15) business days’ notice if you are in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, you have failed to remedy the breach within 15 Business Days of receipt of written notice from Tribal Habits describing the breach and calling for it to be remedied. We may immediately terminate this agreement if we notify you of a breach of your obligations, and you do not remedy such breach within 15 days. Further, we may suspend your access to the Website until you remedy the breach notified to you by us.

13.3.    We may cease providing the Service to you and terminate this Agreement immediately if:

(a) you are unable to pay your debts as they fall due;

(b) you undergo a change of control to a competitor of Tribal Habits as determined by Tribal Habits;

(c) an insolvency event occurs in relation to you;

(d) you fail to provide Tribal Habits with clear or timely instructions or information to enable Tribal Habits to provide the Service;

(e) there is verbal, physical, written, or other abuse (including threats of abuse or retribution) of any Tribal Habits customer, employee, member, or officer by you or any of your Authorised Users;

(f) you permit any person other than you to access your account, or any Services through your account;

(g) you gain access, or attempt to gain access to any Content or our servers, for which you have no right to access;

(h) you breach the terms of any licence granted to you by us, and without limitation for distributing any content to third parties;

(i) you have used any incorrect registration information, and we reasonably determine that you are seeking to commit fraud, identity theft, or are seeking to knowingly mislead any person, including us;

(j) you (or any of your Associates) breaches clauses 4, 8.4 or 9 of this Agreement; or

(k) a Force Majeure Event or other factors outside the control of Tribal Habits prevent us from providing the Service.

13.4.    Subject to clause 3.2, on termination for any reason, we will cease providing the Service and you must pay:

(a) any of our then outstanding invoices relating to the Service; and

(b) the Fee for the Service for the remainder of the unexpired Term,

and we are not required in any circumstances to refund any amount to you paid in advance for the Service, except if we terminate this Agreement under clause 13.1. For example, and without limiting the generality of the foregoing, if you have subscribed for a monthly plan, and you give notice to unsubscribe from the Service, then the Service will expire at the end of the then current calendar month, and you are liable to pay our Fees until the end of the then current calendar month.

13.5.    Upon termination:

(a) you no longer have any rights to receive our Service;

(b) any licence granted to you by us under this Agreement immediately ends;

(c) we may take any step necessary to prevent you from accessing the Service, or the website, or any sub-domain;

(d) we will retain customer data only as required to meet legal, operational, or contractual obligations in accordance with our Data Retention and Disposal Policy and as set out in clause 13.6 below. 

13.6. Unless otherwise required by law or agreed in writing with you:

(a) data stored on our platform will be retained for 30 days after account expiry to support potential account reactivation; 

(b) following the 30-day retention period, data will be securely deleted, with database backups retained for a further 35 days before final purging (maximum total retention period of 65 days); 

(c) you are responsible for exporting your data via the platform or API before account closure; and

(d) support records will be retained for 2 years for business use and dispute resolution purposes.

13.7. For avoidance of doubt, if a termination notice is sent by us under this clause 13 and expiry of the notice period occurs after expiry of the then current term, termination will occur at the date of expiry of this Agreement.

14. Notices

14.1.    Communications under or relating to this Agreement must be in writing in English.

14.2.    Our details for delivery of notices are given on our website, as updated by us from time to time.  Your details for delivery of notices are the contact details provided by you when you initially subscribe for the Service (or as updated by you through our website from time to time).

14.3.     A notice under or related to this document may be given to a party by:

(a) being personally delivered to the party.  Such a notice is taken to be received on the day it is delivered;

(b) being sent by pre-paid mail to the party’s address for notices.  Such a notice is taken to be received three Business Days after it is posted; or

(c) being sent by email to the party’s current email address as recorded in your account preferences from time to time.  Such a notice is taken to be received on the date indicated on the report produced or log maintained by the sender’s email system.

14.4.    If a notice is received in the place of receipt after 5pm or on a non-Business Day, the notice is taken to be received at 9am on the following Business Day.

14.5.    This clause does not affect the validity of methods by which documents relating to litigation may be served under an applicable law or any Court rules.

15. General

15.1.    Legal costs.  Each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under this Agreement.

15.2.   Amendment.   You may not vary, amend, or modify the terms of this Agreement.

15.3.    Assignment.  You may not assign or transfer any of your rights or obligations under this Agreement without our prior written consent.  We may assign or transfer this Agreement to another entity that is in our view capable of providing the Service by giving written notice to you.  Any purported dealing in breach of this clause is of no effect.

15.4.    Governing law and jurisdiction.  This Agreement is governed by the law of Queensland, Australia.  Each party submits to the jurisdiction of the courts of Queensland, Australia, and the courts of appeal from those courts.

15.5.    Digital document.  This Agreement may consist only of a digital document made available to you during the subscription process, and evidence of your acceptance of the terms in that document.  You waive any right to require a tangible form of this Agreement.

15.6.   Entire understanding.  This Agreement contains the entire understanding between the parties as to its subject matter.  Any prior negotiations, representations or documents concerning the subject matter of this Agreement are superseded by this Agreement and are of no effect.

15.7.    Relationship of parties.  The parties are independent contractors.  This Agreement does not create a relationship of employment, trust, agency or partnership between the parties.  Each party is responsible for its own obligations arising under this Agreement and is not liable for any other party’s obligations.

15.8. Marketing. You grant us a royalty-free licence to publish your logo, trademark, and business name on our website and in our marketing materials to identify you as a customer of Tribal Habits. If you wish to withdraw this licence, you may do so at any time by providing written notice to us.

15.9. Insurance. Each Party is responsible for obtaining and maintaining is own prudent insurance policies. Each Party has the right to require the other party to provide certificates of insurance to prove currency and scope of cover, once per annum.