Philboss Design Copyright 2020

Terms and Conditions

1. Terms of Service

1.1 The following terms and conditions (agreement) between Philboss Design (ABN 68 570 251 622) and you as an individual and where appropriate, as an authorised employee or agent of a legal entity that you represent, govern the use of Philboss Editor (the service). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.

1.2 By ‘accepting’ this agreement, or by using the service, you are confirming your eligiblity and authority to access the service and your agreement to these terms and conditions. The service is offered to you conditional upon your acceptance of this agreement. If you do not agree to be bound by this agreement, you may not use the service.

1.3 Where acceptance is indicated electronically, you agree to waive any claim or right that you may have to assert that electronic acceptance is not the equivalent of, or deemed as, a valid signature to this agreement.

1.4 For reference and interpretation, a definitions section is included at the end of this agreement.

2. User Rights and Service Ownership

2.1 The service is owned by us and is copyrighted and licensed under subscription — not sold. We do not transfer any ownership rights and reserve all rights not expressly granted or required by law.

2.2 Philboss Design grants you a revocable, non-exclusive, non-transferable worldwide right to use the service during the subscription period, provided that you comply with the terms of this agreement.

3. Service Use – Restriction and Requirements

3.1 The service is offered under subscription. You are entitled to use the service as it applies to your subscription level.

3.2 Unless expressly permitted in writing by the founder of Philboss Design, detailing the nature of the exception, you may not, nor will you allow any third party to:

  1. Reverse engineer, de-compile, disassemble or alter the service, or otherwise attempt to discover the source code of the service.
  2. Transfer, sub-license, sell, rent, lease, lend, duplicate, or otherwise translate the service.
  3. Copy any ideas, functions, features or graphics from the service for any purpose, including but not limited to development of a similar service.
  4. Provide commercial hosting using the service, including charging for access to the service.
  5. Access the service if you are a direct competitor.
  6. Remove or obscure any trademarks, notices, source code or similar components, including the Philboss Design icon and web-link, that appear as part of the service.
  7. Use the service for a purpose where the failure of the service or a part of the service could lead to personal injury, death or severe physical or environmental damage.
  8. Tamper with or attempt to bypass functionality that operates to enforce this agreement, including the prevention of software piracy, unauthorised use, or to enforce the subscription level and subscription period of the service.
  9. Use, post, transmit or introduce any software, routine or device that interferes or attempts to interfere with the operation, integrity or performance of the service, or attempts to gain unauthorised access to the service.
  10. Use the service to track, collect, or otherwise use personally identifiable information of visitors or users of your website(s) that is in breach of privacy laws relating to your jurisdiction or otherwise applicable to your use of the service.
  11. Store infringing, obscene, threatening, libellous or otherwise unlawful or tortious material, including material harmful to children or violating third party privacy rights.
  12. Send or store material containing software viruses, worms, or other harmful computer code, files, scripts, agents or programs.

3.3 You are required to:

  1. Operate the service under the terms of this agreement and in a manner consistent with the operational instructions relevant to your subscription level and access rights.
  2. Comply with all applicable laws and regulations in your use and access of the service.
  3. Protect your password(s) and take responsibility for all activities that occur under your account(s). You agree to notify Philboss Design immediately upon learning of any misuse of your account or similar breach of security.
  4. Consent to access of the service by Philboss Design support staff for the purpose of maintaining, improving or providing assistance with the service.
  5. Publish and reproduce only such material as you are legally permitted and authorised to publish and remove any unauthorised or disputed content.
  6. Enforce payment obligations and this agreement in relation to other users provided access to your service, where you are responsible for administration of the service.
  7. Acknowledge and consent to our right to suspend or terminate this agreement and your access to the service should your account become delinquent (fall into arrears).

4. Warranties and Representations

4.1 Philboss Design warrants that the service will, under normal use and circumstances, perform in a manner consistent with industry standards applicable to web publishing services and substantially in accordance with our description of the service for the specified subscription level. This warranty is valid during the subscription period and does not apply if the failure has resulted from your breach of the agreement or the actions of a third party. If you notify us in writing, we will at our option, either repair, or refund the price paid for the service. To the maximum extent permitted by law, this is your exclusive remedy for any failure.

4.2 You represent and warrant that you have the legal power and authority to enter into this agreement and that you have not falsely identified yourself.

4.3 The service is provided ‘as is’ and to the full extent permitted by law, we disclaim and exclude all representations, warranties and conditions, whether express, implied or statutory, other than those identified expressly in this agreement, including but not limited to warranties, timeliness, quality, accuracy, merchantability and fitness for purpose.

4.4 Philboss Design may make improvements or changes to the service at any time, with or without notice. Other than as expressly identified in this agreement, Philboss Design does not represent or warrant that the service will be uninterrupted or error free, that defects will be corrected, or that the service is free of viruses or other harmful components. Philboss Design does not warrant or represent that the use of the service will be correct, accurate, timely or otherwise reliable. You specifically agree that Philboss Design shall not be responsible for unauthorised access to, or alteration of, any data on your website(s) or stored in the service.

4.5 Philboss Design does not guarantee that the service will be operable at all times or during any down time caused by outages to any public internet backbones, networks or servers, caused by any failures of your equipment, servers, or local access, for scheduled maintenance, or relating to events beyond our control, including but not limited to strikes, riots, insurrection, fires, floods, explosions, war, government action, labour conditions, earthquakes, natural disasters, or interruptions to internet services to an area where Philboss Design or your servers are located.

5. Privacy and Marketing Policy

5.1 Philboss Design reserves the right to modify our privacy policy at our reasonable discretion or as required by law.

5.2 By accepting the service, you agree to us storing your contact information and sending marketing, notifications, instructional and other service related items. You may opt out of non-critical communications at any time by changing your user account settings or notifying us by email, however we reserve the right to send important user communication at our absolute discretion.

5.3 Philboss Design reserves the right to disclose client business names and subscription levels, including the publishing of publicly available summary information on our website and in other Philboss Design marketing material.

5.4 You may market the nature of your service use during the subscription period.

6. Service Identification Marks

6.1 The service includes identification marks in the source code and a ‘Powered by Philboss Editor’ icon and web link included on at least the primary page of each domain published using the service. These marks identify the ownership of the service and provide marketing that ultimately improves the quality of the service for all subscribers.

6.2 Philboss Design may at our discretion remove identifying marks for certain service installations. Any such exemption must be in writing and is subject to the payment of a scheduled identification removal fee.

7. Intellectual Property Ownership

7.1 Philboss Design alone (and component licensors where applicable) own all right, title and interest, including all intellectual property rights in the service. This agreement does not constitute a sale, and does not convey any transfer of property or rights. We retain all service ownership, copyright, moral rights and other intellectual property rights pertaining to all components of the service unless otherwise stated or exempted in writing and signed by the founder of Philboss Design. All rights not expressly granted to you in this agreement are hereby expressly reserved and retained by Philboss Design without restriction.

7.2 We provide support and feedback mechanisms to improve service quality. By using any such mechanism or providing ideas, suggestions, requests, feedback or other similar recommendations, whether solicited or not, you agree that all such content is not confidential and becomes the sole property of Philboss Design without compensation or attribution.

7.3 Ownership, copyright, moral rights and all other intellectual property rights pertaining to content entered into the service for publication, storage, manipulation or other purposes rests with the legal owner of the content and is in no way altered by the terms of this agreement or the nature of the service.

7.4 We warrant that any intellectual property embodied in the service is either the sole property of Philboss Design or that we are legally entitled to use such intellectual property for the provision of the service.

7.5 You warrant that you are the owner or otherwise legally entitled to use content stored in or delivered by the service. Furthermore, you indemnify us against any action, claim, suit or demand for, or liability to pay compensation or damages and costs or expenses arising from any breach by you of any third party’s intellectual property and related rights.

7.6 Philboss Design does not own any data, information, or material that you submit, store or publish in the course of using the service. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and usage rights for all such material. Philboss Design shall not be responsible or liable for deletion, correction, destruction, damage, loss or failure to store any such material. In the event of termination, other than by reason of your breach, Philboss Design will make available within 30 days, at your request, a file or files of your material in the available condition at the time of the request. Upon termination for cause, your right to access any material using the service immediately ceases and Philboss Design shall have no obligation to maintain or forward any such material.

8. Limitation of Liability

8.1 To the maximum extent permitted by law, our liability for direct damages will be limited to the amount you have paid for the product. The limitation contained in this paragraph will not apply with respect to:

  1. our obligations to defend third party claims of patent, copyright, trademark or intellectual property infringement;
  2. our liability for gross negligence or willful misconduct, to the extent caused by us and awarded by a court of final adjudication;
  3. our confidentiality obligations.

8.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, PHILBOSS DESIGN WILL NOT BE LIABLE TO ANY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF PHILBOSS DESIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.3 By using the service, you may directly or indirectly enter into agreement or relationship with third parties. Any such activity is solely between you and the third party, and Philboss Design shall have no liability, obligation or responsibility for any such agreement or relationship. We do not endorse any Internet sites that are linked through the service and are provided as a matter of convenience; in no event shall Philboss Design be responsible for any products, services or other material available from such sites.

9. Termination

9.1 This agreement will terminate immediately if you fail to comply with the terms contained herein. Upon such termination, you must cease further use of the service unless you have obtained the express written consent of Philboss Design. Otherwise, this agreement will remain in effect until terminated as detailed below.

9.2 This agreement may be terminated by supplying 30 days advanced written notice. Upon termination, Philboss Design will cease providing the service at the end of the next 30 day period. You will not be entitled to any refunds of any fees, and any unpaid amounts for the remainder of the current subscription period will be immediately due and payable.

9.3 Philboss Design may terminate this agreement at the completion of a subscription period, by providing 60 days notice in writing and continuing to provide the service for a further 90 days after termination. At your request, during this 150-day period, we will provide a single copy of content stored using the service, in a manner determined by us, and provide unused support or paid support as required to assist transition to an alternative service. This transitional support will not be provided if you are in breach or your subscription is delinquent. We do not warrant that another service will perform in replacement of the service.

10. Billing, Renewal and Suspension

10.1 Philboss Design charges and collects monthly in advance for use of the service (subscription). The billing period (subscription period) is per month, unless adjusted by mutual agreement in writing.

10.2 The payment amount is determined by the subscription level, the subscription period, and any added expansion modules, custom work and other commissioned elements, technologies, functionality and services. The payment amount will be calculated from the Philboss Design schedule of services or ‘as-quoted’.

10.3 Philboss Design reserves the right to modify the schedule of fees and charges at any time, and any such change will come into effect immediately for new service installations and upon the subscription anniversary (renewal) for existing services.

10.4 Where you are responsible for payment, you agree to provide Philboss Design with complete and accurate billing and contact information and pay all fees and charges as they become due and payable.

10.5 If any authority imposes a duty, tax, levy or fee upon the service, then you agree to pay the amount specified or supply us with exemption documentation.

10.6 In so far as the subscription is not delinquent and this agreement remains in force, your subscription will be automatically renewed upon the completion of the subscription period, and where you are responsible for payment, you will be invoiced in accordance with the schedule of fees in force at that time, excepting the case where your service is subject to a quotation or pricing agreement signed by the founder of Philboss Design. Any such negotiated pricing terms are confidential and may not be disclosed to a third party.

10.7 If you believe your invoice is incorrect, you must contact us in writing within 30 days of the invoice date to be eligible to receive an adjustment or credit.

10.8 Whether you are responsible for payment or not, you hereby acknowledge and accept that payment control mechanisms form part of the service and that we may exercise, at our discretion, reduced service delivery or service cancellation for delinquent accounts. You are responsible for ensuring the continuance of your account and compliance with this agreement. Unless otherwise notified and agreed, Philboss Design will restrict content publishing on accounts that are delinquent by 45 days, restrict storage and editorial access on accounts that are delinquent by 60 days, and remove websites from public access that are delinquent by 90 days (suspension). Services and related accounts that are suspended (delinquent by 90 days) are in breach of this agreement and we reserve the right to impose a reconnection fee in the event that you thereafter request renewed service access.

11. Specified Operating Environment

11.1 Philboss Design provides hosting, deployment and support as scheduled for your subscription level. Where you forgo these services in favour of a third party hosting provider, we reserve the right to charge for time and materials involved in supporting your decision and we also reserve the right at our absolute discretion to reject third party service provision for any reason, including but not limited to jurisdiction, competitive risk, quality and operating environment.

11.2 It is a condition of this agreement that where third party hosting provider(s) or internal hosting is selected, the underlying software is deployed and used in conjunction with the specified operating environment relevant at the time of deployment. Failure to meet this condition is a breach of this agreement, specifically voiding any service warranty.

12. Upgrades

12.1 The service includes annual functional upgrades and ad hoc maintenance upgrades at no additional charge, including relevant training and transitional services subject to the terms of this agreement.

12.2 Where you are authorised to act on behalf of the entity that acquired the service (parent account), you may elect to upgrade your service subscription level (lite, professional, premium or platinum) or add expansion modules at any time for payment of the pro-rata difference in scheduled fees. Installed upgrades require extension of the minimum subscription term by a further twelve months from the date of the upgrade.

13. Confidential Information

13.1 Confidential information means information identified in writing as proprietary or confidential, and includes non-public information regarding either party’s products, marketing, promotions, business processes, financial data and negotiated terms of agreement. Confidential information does not include information:

  1. the recipient developed independently,
  2. the recipient knew before receiving it under the relevant agreement, or
  3. information which becomes public other than by a breach of the obligations in this agreement.

13.2 Neither party will use the other’s confidential information without the other’s written consent except:

  1. in the furtherance of this business relationship,
  2. to obtain advice from legal or financial consultants,
  3. as required by law.

13.3 Both parties will take reasonable precautions to safeguard each other’s confidential information, at least equivalent to those used to safeguard their own confidential information. In the event of discovery of unauthorised disclosure of information, the discovering party will notify the other and cooperate in any reasonable way to regain possession of the information and minimise potential loss.

14. Assignment

Neither party may assign this agreement in whole or in part without the written consent of the other.

15. Modifications to the Terms of Service

Philboss Design reserves the right to change or modify any of the terms and conditions of this agreement, by posting this agreement within the service and requiring your renewed acceptance, or by email to the address provided within your service account.

16. Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SITE EDITOR WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; THIS INCLUDES, BUT IS NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE SITE EDITOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (I) THE USE OF SERVICES OR THE INABILITY TO USE SERVICES, (II) THE COST OF OBTAINING SUBSTITUTE GOODS AND/OR SERVICES RESULTING FROM ANY TRANSACTION ENTERED INTO ON THROUGH SERVICES, (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA TRANSMISSIONS, (IV) STATEMENTS BY ANY THIRD PARTY OR CONDUCT OF ANY THIRD PARTY USING SERVICES, OR (V) ANY OTHER MATTER RELATING TO SERVICES.

In some jurisdictions, it is not permitted to limit liability and, therefore, such limitations may not apply to you.

17. Indemnification

You agree to indemnify and hold harmless the site editor and the site editor’s representatives, subsidiaries, affiliates, related parties, officers, directors, employees, agents, independent contractors, advertisers, partners, and co-branders, from any claim or demand, including reasonable legal fees, that may be filed by any third party, arising out of your conduct or connection with this web site or service, your provision of content, your violation of these Terms of use, or any other violation by you of the rights of another person or party.

18. Disclaimer and Warranties

YOU UNDERSTAND AND AGREE THAT YOUR USE OF THIS WEB SITE AND OF ANY SERVICES OR CONTENT PROVIDED (THE “SERVICE”) IS AT YOUR OWN RISK. SERVICES AND CONTENT ARE PROVIDED TO YOU “AS IS”, AND THE SITE EDITOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER IMPLIED OR EXPRESS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

THE SITE EDITOR MAKES NO WARRANTY, EITHER IMPLIED OR EXPRESS, THAT ANY PART OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, TIMELY, SECURE, ACCURATE, RELIABLE, OR OF ANY QUALITY, NOR IS IT WARRANTED EITHER IMPLICITLY OR EXPRESSLY THAT ANY CONTENT IS SAFE IN ANY MANNER FOR DOWNLOAD. YOU UNDERSTAND AND AGREE THAT NEITHER THE SITE EDITOR NOR ANY PARTICIPANT IN THE SERVICE PROVIDES PROFESSIONAL ADVICE OF ANY KIND AND THAT ANY ADVICE OR ANY OTHER INFORMATION OBTAINED VIA THIS WEB SITE MAY BE USED SOLELY AT YOUR OWN RISK, AND THAT THE SITE EDITOR WILL NOT BE HELD LIABLE IN ANY WAY.

Some jurisdictions may not allow disclaimers of implied warranties, and certain statements in the above disclaimer may not apply to you as regards implied warranties; the other terms and conditions remain enforceable notwithstanding.

19. Reservation of Rights

The site editor reserves all of the site editor’s rights, including but not limited to any and all copyrights, trademarks, patents, trade secrets, and any other proprietary right that the site editor may have in respect of this web site, its content, and goods and services that may be provided. The use of the site editor’s rights. and property requires the site editor’s prior written consent. By making services available to you, the site editor is not providing you with any implied or express licenses or rights, and you will have no rights to make any commercial use of this web site or provided services without the site editor’s prior written consent.

20. Notification of Copyright Infringement

If you believe that your property has been used in any way that could be considered a copyright infringement or a violation of your intellectual property rights, please contact the site administrator.

21. Applicable Law

You agree that these terms of use and any dispute arising out of your use of this web site or products or services provided will be governed by and construed in accordance with local laws applicable at the site editor’s domicile, notwithstanding any differences between the said applicable legislation and legislation in force at your location. By registering for a user account on this web site, or by using this web site and the services it provides, you accept that jurisdiction is granted to the courts having jurisdiction over the site editor’s domicile, and that any disputes will be heard by the said courts.

22. Miscellaneous Information

(i) In the event that any provision of these Terms of use is deemed to conflict with legislation by a court with jurisdiction over the parties, the said provision will be interpreted to reflect the original intentions of the parties in accordance with applicable law, and the remainder of these Terms of use will remain valid and applicable; (ii) The failure of either party to assert any right under these Terms of use will not be considered to be a waiver of that party’s right, and the said right will remain in full force and effect; (iii) You agree that any claim or cause in respect of this web site or its services must be filed within one (1) year after such claim or cause arose, or the said claim or cause will be forever barred, without regard to any contrary legislation; (iv) The site editor may assign the site editor’s rights and obligations under these Terms of use; in this event, the site editor will be relieved of any further obligation.