Terms - Users of the Tribal Habits Subscription Service and Marketing Website
These terms apply to organisations and users of the Tribal Habits software, provided as a subscription service (yourorganisation.tribalhabits.com), or marketing website visitors (at tribalhabits.com). Click here for Terms related to On-Demand training (purchased at tribalhabits.com/store).
Version 2.1 - Last updated 13 March 2020
These terms govern the use of the “Tribal Habits” software, provided as a subscription Service by Tribal Habits Pty Ltd (ABN 74 603 171 820). These terms apply to subscribers for the Service (“you,” “your”). Subscribing for or using the Service indicates an acceptance of these terms and forms an Agreement between you and Tribal Habits Pty Ltd (“Agreement”). If you do not accept these terms, you must not subscribe for or use the Service.
A We provide the “Tribal Habits” software as a subscription Service.
B You wish to subscribe for the Service.
C You either:
(a) have agreed with us that these terms govern your subscription for and use of the Service, by signing a paper copy; or
(b) agree with us that these terms govern 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.
In this document:
“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.
“Durability,” in relation to digital data, means data that is not permanently lost or corrupted.
“Fee” means the fee we charge you in relation to provision of the Service under this Agreement.
“Force Majeure Events” means any natural disaster, fire, flood, war, riot, terrorism, vandalism, government sanction, industrial action or other significant event outside the reasonable control of a party.
“Initial Term” means the period from the time that you register for a trial period, until one calendar month (or such longer period agreed by us) after the expiry of the trial period.
“Other Policies” means any one or combination of the policies that we publish from time to time at https://tribalhabits.com/policies as the case requires, if any.
“Renewal Term” means a period of equal duration to the Initial Term (minus the duration of any trial period that applies), unless otherwise agreed by us.
“Service” means the provision of access to our software known as “Tribal Habits,” made available to you as a subscription service. The functionality of the Service will depend on the Service plan selected by you. For example, some Service plans may involve higher Fees and a greater level of functionality. The various Service plans and functionalities are set out on our Website.
“Service Addendum” means a set of terms and conditions that we publish from time to time, that you must accept in order to access, or use particular functionality on the Website as determined by us from time to time; and which are in addition to these terms.
“Term” means the period comprising the Initial Term and each Renewal Term, unless terminated earlier 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 Access to the software as a Service
2.1 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.
2.2 We may update these terms by providing the updated version to you or by publishing the updated version on our Website. The updated terms become applicable to you when you extend or renew your subscription, unless:
(a) you or any of your personnel with administrative account access accept the updated terms by clicking a button, checking a checkbox or by another method indicating that you agree to the updated terms that we publish from time to time, in which case the updated terms apply to the Service and your use of it immediately from that time; or
(b) you request access to one or more new Services which are introduced at or about the same time as the relevant updated terms, in which case the Service immediately becomes subject to the updated terms.
2.3 The Service, and any amendments, modifications, enhancements or changes to the Service, made available by us to you are subject to these terms as updated by us from time to time.
2.4 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.
2.5 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 your Service Plan. 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.
2.6 We may supplement these terms from time to time, by publishing a Service Addendum to govern your use of particular functionality on the Website. Upon the earliest of the following you will be bound to the additional terms contained in a Service Addendum (and which are incorporated by reference from that time):
(a) you request the relevant functionality from us in writing;
(b) you indicate your acceptance of the Service Addendum within your account, for example by checking a checkbox that contains a link, which allows you to view the relevant Service Addendum; or
(c) you receive or access any functionality that is governed by a Service Addendum.
2.7 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.
2.8 The Services is 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. 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 Services 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 Rights to use the Service
3.1 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.
3.2 You must provide your full legal name, a valid email address, and any other information required by us in order 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.
3.3 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.
3.4 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 Intellectual property
4.1 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 material, data or information uploaded by you using the Service.
4.2 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, without our prior written consent. 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.
4.3 You must ensure, and you irrevocably warrant to us that you are entitled to use any material, data or information that you upload or use in relation to the Services. 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 Services to you and each of your Authorised Users.
4.4 Any rights not expressly conferred in these terms are reserved by us.
5 Service availability and data Durability
5.1 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, or for urgent maintenance activity by us. You acknowledge that the availability aim in this clause is not an assurance, representation or warranty.
5.2 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. If for any reason the Service will be unavailable for a longer period than we would normally expect, we will endeavour to publish outage details and anticipated duration on our Website.
5.3 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.
5.4 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 do not guarantee that we will store your data 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 may be deleted immediately by us or our systems on expiry or termination of the Service, or downgrade of your Service plan.
6 Technical Support
6.1 We will provide you with technical support in relation to the Service. We provide technical support by the Admin Support Chart feature (available by clicking the circular orange chat icon in the lower right of the screen) only. For clarify 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 particular 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 particular timeframe or at all. This clause 6.1 is subject to clause 6.2.
6.2 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.
7 Policy obligations
7.1 Your use of the Service is subject to our Acceptable Use Policy, and our Other Policies. Each reference to “Policies” in this clause 7 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.
7.2 Our Acceptable Use Policy does not create any enforceable contractual rights that you may enforce against us.
7.3 None of our Other Policies create any enforceable contractual rights that you may enforce against us.
7.4 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.
7.5 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.
8 Acceptable Use Policy
8.1 You must comply with the following (“Acceptable Use Policy”), and you must ensure all of your Authorised Users comply with it, in relation to the Service:
(a) you must not upload or use content that us threatening, defamatory, offensive, or which could expose you or 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.
8.2 Despite any other provision of this Agreement, we may update the Acceptable Use Policy by publishing amended wording on our Other Policies page (instead of updating the wording of this Agreement), and the amended wording will supersede paragraph 8.1, from the time we publish the amended wording on our Website.
9 Registration and trial period
9.1 When you first subscribe for the Service, we will provide you a 14 day free trial of the Service. If you choose to continue using the Service after the free trial period, you must pay our Fee in accordance with this Agreement.
10 Payment of Fees
10.1 You must pay us the agreed Fee prior to expiry of the trial period, if any, for the remainder of the Initial Term, and then in advance for each Renewal Term .
10.2 The Fee is non-refundable, and no refunds or credits will be given for any partial use within the Initial Term or any Renewal Term.
10.3 We may vary the Fee from time to time by notifying you or by publishing our updated fee schedule on our Website. Updated Fees are payable on and from our next invoice to you after the update.
10.4 You must provide a valid credit card (or arrange other payment method agreed with us) when you subscribe for the Service.
10.5 You agree that we may charge your credit card (or other payment method) for the Initial Term and for each subsequent Renewal Term for payment of our invoices for the Service.
10.6 We will notify you if we cannot charge your credit card (or other payment method), and you must provide updated payment details, and authorise us to process the payment. This clause 10.6 survives termination of this Agreement.
10.7 If we cannot successfully charge your credit card (or other payment method) as provided to us in accordance with clause 10.6 above, we may suspend the Service until you have paid our invoices, or we may terminate the Service. This clause survives termination of this Agreement.
10.8 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; fees we incur relating to failed direct debit payments. This clause survives termination of this Agreement.
10.9 In addition to any other rights we have, we may:
(a) charge interest on overdue invoices, at the rate of 18% 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; and
(d) 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.
11 Information privacy compliance
11.2 You must comply with Australian information privacy law in relation to any personal information you upload or use in the course of 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.
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, 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.
13.1 We may cease providing the Service to you and terminate this Agreement effective at the end of any calendar month during the Term. We will provide written notice of our reasons for such termination.
13.2 You may terminate this Agreement at the end of the Initial Term, or at the end of any Renewal Term, by following the service termination or account cancellation instructions on our Website. The Agreement is not terminated until you receive confirmation from us to that effect.
13.3 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 Initial Term or Renewal Term, as the case may be,
and we are not required in any circumstances to refund any amount to you paid in advance for the Service. 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.
13.4 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) in addition to any other rights we have we may at our discretion permanently delete all of your data, your account, and your Authorised Users’ Accounts, if any.
14.1 Communications under or relating to this document 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.
15.1 Legal costs. Each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under this document.
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 document 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 document contains the entire understanding between the parties as to its subject matter. Any prior negotiations, representations or documents concerning the subject matter of this document are superseded by this document and are of no effect.
15.7 Relationship of parties. The parties are independent contractors. This document 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 document and is not liable for any other party’s obligations.