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Terms and Conditions

These Terms & Conditions apply to Emertel Services, including resale or promotion of Emertel Client Products and Services.

 

Emertel End-User Terms of Use

1.1  Accuracy of Information

Emertel shall be entitled to rely upon the accuracy of all information provided by you, or by third parties on your behalf, without necessarily having to independently verify it. Emertel shall be entitled to rely upon the timely receipt of all such information when committing to timely delivery of the Services.

1.2  Verification of Account Information

 We reserve the right to conduct a review, at any time, to validate your account information and/or to ensure that your participation in Emertel and/or use of the Services does not breach these Terms and/or any applicable law. You authorise us and our agents to make any inquiries of you and for us to use and disclose to any third party we consider necessary to validate this information. To facilitate the foregoing validation, you agree to provide sufficient information or documentation as we may request. We reserve the right to terminate the license granted by these terms and your account if you do not provide such information within thirty (30) days of our request, if your responses are incomplete or otherwise insufficient, or if we cannot verify the information applicable to your account.

You acknowledge that we are entitled to detect your Internet access location and may use techniques that are intended to block or restrict access from a jurisdiction in which participation in the Emertel Services is illegal or restricted.

You must not mask your identity in any way, including without limitation, IP masking or accessing Emertel over any type of proxy server.

1.3  Proprietary Rights

Emertel owns all present and future intellectual property rights of any nature whatsoever (as defined in Article 2 of the Constitution of July 1967 establishing the World Intellectual Property Organisation) subsisting in Emertel Services, including associated collateral and software, and in all derivative works of, and improvements and enhancements to, any of the foregoing created or developed by or on behalf of Emertel.  Emertel shall be entitled, in its absolute discretion to incorporate into the Emertel product and similar products and services and any and all ideas, enhancements, and/or other information that it acquires through providing the Services and otherwise acquiring your use data through the Emertel (collectively, Acquired Information), all in accordance with the provision of Emertel’s privacy policy which is available for review here: www.emertel.com/privacy  You hereby grant to Emertel a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use the Acquired Information to: (i) provide the Services, and (ii) continually improve, and otherwise develop and/or modify the Emertel and the Emertel platform, service offering and/or the Software.

You must not decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the executable code supplied under this Agreement or use it to create a derivative work.

1.4  Title

Except for the rights expressly granted under this Agreement, Emertel retains all rights, titles, and interest in and to the intellectual property subsisting in the Emertel Services and Products.

1.5  Promotions and Comparisons

 As part of your use of the Emertel Services, Emertel shall be entitled, and you authorise Emertel, to offer to you to: (i) provide benchmarking analysis, (ii) participate in promotions from third parties. Any offers or recommendations made through the Emertel are personal to the end-user and may not be transferred to, or relied upon, by any other person. Emertel is not liable for the performance by any third party introduced to you a Emertel end-user through Emertel and hereby disclaims all liability therefor.

 

2. Security and Confidentiality of Data

 Emertel shall:

(a) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the data that you generate through the use of the Emertel Services and that is transmitted to a server under Emertel's power or control, in accordance with Emertel’s security systems and privacy measures; and

(b)  protect the confidentiality and privacy of the data that you generate through use of the Emertel and that is transmitted to a server under Emertel's power or control, in accordance with the provision of Emertel’s privacy policy which is available for review here: www.emertel.com/privacy, and which is incorporated herein by reference.

 3.  Fees

 3.1 Fee for Service  

Emertel reserves the right to charge monthly fees for the Services that Emertel provides to you.

3.2  Payment Terms

You will pay Emertel a monthly Services fee and success fees as specified during a Services Agreement. 

 3.3  Manner of Payment 

You agree that payment will be affected by Emertel upon invoice.

4. Warranties, Limitation of Liability, and Indemnification  

 4.1 Warranties

Subject to Section ‎5.2, Emertel represents and warrants that: the Services will be performed in a professional manner and in accordance with generally acceptable industry standards.

4.2  Limitation on Emertel’s Warranties

(a)   The accuracy of the data generated by the Emertel will depend on the quality of information and product collateral received.

(b)   Emertel is not liable to the End-User if any of the information supplied by the Client is incorrect or not up to date.

4.3  Remedies under the Warranty

To the fullest extent permitted by law, Emertel’s liability for breach of any warranty or condition that cannot be excluded is restricted, at Emertel’s option to: (i) the re-supply of services.

 4.4 Limitation of Liability

Except to the extent prohibited by law and notwithstanding anything to the contrary in this Agreement, Emertel shall not be liable for indirect, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from Client access to, or use of, or inability to use the Emertel Services, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Emertel knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise and whether or not you shall have been made aware of the possibility of such loss. You agree that you use the Emertel Services at your own risk.

You agree to indemnify Emertel for any loss, damage, cost, or expense that Emertel may suffer or incur as a result of or in connection with your use of or conduct in connection with the Emertel, including any breach by you of these Terms.

Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted, or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability to the End-user shall be limited to the amount paid by the End-user in connection with the Emertel Services.

 

5. Term, Suspension, Renewal and Termination

The term of the Service shall commence from the time that you execute a Services Agreement with Emertel and will continue for as long as you continue to use the Emertel in accordance with the Services Agreement.

The Services can be terminated by either you or Emertel by providing notice at least 60 days before the End Date, whereupon Emertel will no longer provide the Services.

Upon termination, you will cease to have access to the Services.

 

6. General

 6.1  Assignment

Neither party may assign any of the rights arising from this Agreement without the written permission of the other party, which will not be unreasonably withheld, delayed, or conditioned.  Notwithstanding the foregoing, either party may assign all its rights and obligations under this Agreement without the other’s prior written approval (i) to a successor-in-interest because of a merger or consolidation or in connection with the sale or transfer of all or substantially all of it business or assets to which this Agreement relates, or (ii) to an affiliate.       

6.2  Relationship

The parties intend that nothing in this Agreement constitutes any relationship of employer and employee, principal and agent or partnership between Emertel and you.

6.3  Waiver

Failure by either party to enforce a provision of this Agreement shall not be construed as in any way affecting the enforceability of that provision or of the Agreement as a whole.

6.4  Subcontracting

Emertel reserves the right to subcontract any portion of the Services and acknowledges that if it exercises this right Emertel shall not be relieved of any of its liabilities or obligations under this Agreement.

6.5  Entire Agreement

The parties have read and understand this Agreement and agree that it constitutes the complete and exclusive statement of the agreement between them.

6.6  Delay out of Party’s Control

Neither party shall be liable for any delay in meeting or failure to meet any of its obligations under this Agreement due to any cause outside its reasonable control.

6.7 Force Majeure

If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer-related attacks, hacking, or acts of terrorism (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.

6.8  Governing Law

This Agreement and the parties’ respective performance hereunder will be governed by the laws of the State of Victoria, Australia without regard to its conflicts of laws rules.    

 

Last updated on the 12.06.2023 

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