IntroductionA. VideoMy Pty Ltd (ACN 608 089 112) (VideoMy) is a provider of a video software application called ‘VideoMyJob’ (Software).
B. You wish to engage VideoMy to provide access to the Software for the Permitted Use (Services) on the terms and conditions set out in this agreement.
C. These terms and conditions constitute an agreement between You and VideoMy.
All capitalised terms used in this agreement have the meaning given to them in the body of this agreement or at clause 14.2. Grant of Licence
- You appoint VideoMy to provide the Services from the Commencement Date for the subscription term notified to you (Term) unless this agreement is terminated earlier or extended in accordance with its terms.
- Subject to Your compliance with this agreement, VideoMy grants You a non-exclusive, non-transferable and non-sub-licensable licence to use the Services during the Term (Licence). You acknowledge that VideoMy have not granted You any licence or access to the source code of the Software.
- VideoMy can assign its rights under this agreement to third parties by giving You a written notice.
- You acknowledge and agree that the appointment is non-exclusive and that VideoMy may be engaged by other people to provide services (including services similar to or the same as the Services).
- You will be notified of the fees and the currency for payment of fees applicable to the delivery of the Services (Fees). The Fees may include a once-off set up fee (Set Up Fee).
- In consideration of VideoMy providing the Services to You, by agreeing to these terms and conditions, You agree to pay VideoMy the Fees on the terms and conditions of this Agreement, regardless of whether or not it is VideoMy, its agent or reseller that provides you with a tax invoice for payment.
- VideoMy, its agent or reseller will provide you with a tax invoice for the Set Up Fee and you must pay the Set Up Fee by the due date and by the method set on on the invoice. If you have provided VideoMy, its agent or reseller with your credit card details, your credit card will be charged for the Set Up Fee on the due date for payment.
- In the event that You request additional Services (including a request for additional Seats or a new Dashboard after the Commencement Date) or utilise additional Services (including providing unauthorised access to a Seat) without notifying VideoMy, You agree to pay the Fees that apply to those additional Services. If you have provided VideoMy with your credit card details, VideoMy will charge your credit card for the Fees upon becoming aware of your use of additional Services.
- In the event that a dispute arises in respect of the payment of the Fees, You agree to pay the undisputed amount payable. You may withhold the disputed amount of the Fees and VideoMy may withold delivery of the Services (where applicable) pending the resolution of the dispute. If You refuse to pay the undisputed amount of the Fees, VideoMy may elect to immediately cease providing the Services to You.
- You agree and understand that for as long as the Services are active, VideoMy, its agent or reseller will continue either to render a new tax invoice for the applicable Fee or charge the Credit Card held on file for the applicable Fee.
- You will at all times indemnify, and agree to keep indemnified, VideoMy and its directors, officers, employees and agents from and against any loss or liability incurred or suffered by VideoMy (including reasonable legal costs and expenses on a full indemnity basis) arising from your failure to make payment of Fees to VideoMy, its agent or reseller in connection with your use of the Software or the Services.
- Unless otherwise stated, all amounts payable under this Agreement are expressed to be exclusive of, but subject to, GST.
- Both parties acknowledge that if GST applies to a taxable supply made under this Agreement the party to which the taxable supply is made must pay GST on that taxable supply, in addition to any consideration (excluding GST) that is payable for that taxable supply. It must do so at the same time and in the same way as it is required to pay the consideration for the taxable supply.
- This clause 4 is applicable to Australian registered entities only.
5. Acceptance and Risk
- You are deemed to have accepted the Services on the Start Date.
- Subject to clause 110, all risk associated with Your use of the Software passes to You, on the Commencement Date.
- Either party may terminate this agreement:
- immediately if the other party commits a material breach of this agreement and fails to remedy that breach within seven days of notice requiring it to do so; or
- immediately in the event that the other party becomes incapable of continuing by reason of death, bankruptcy or insolvency (as defined by the Corporations Act 2001 (Cth)).
- VideoMy may terminate this agreement:
- immediately if You use the Software or the Services for any purpose other than the Permitted Purpose; and
- on providing one month’s written notice to you at any time.
- You may terminate this agreement by providing Us with at least one month’s notice.
- Upon termination of this agreement for any reason:
- Your access to the Services will cease and You must not use the Services; and
- You must pay VideoMy any Fees outstanding in respect of Services delivered up to and including the date of termination regardless of whether or not it is VideoMy, its agent or reseller that provides you with a tax invoice for payment of the Fees. If any Fees have been paid in advance, such fees will be refunded pro rata up to the date of termination.
- You agree not to, and You agree to procure that any Administrators, End Users and or Applicants do not:
- use the Software or its content for any purpose, other than the Permitted Purpose;
- resell, resupply or repackage the Software;
- allow anyone else to appear in any footage You create using the Services, unless You appear in that footage and/or a Seat has been allocated to the person;
- use another person’s name, account, identity or password without VideoMy’s written consent, or use the Services while impersonating another person or allow any other person or third party to use Your name, account, identity or password without VideoMy’s written consent, or any other person or third party to use the Services whilst impersonating another person;
- access, monitor or copy any content or information of the Software using any robot, spider, scraper or other automated means or any manual process for any purpose without VideoMy’s express written permission;
- "frame", "mirror" or otherwise incorporate any part of the Software into any other website or software without VideoMy’s prior written consent; or
- attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer the Software.
- You agree that You are responsible for all video and content created using the Services including the video and content created by the Applicant (if applicable). You agree that VideoMy takes no responsibility for any content either displayed, used and/or disseminated in any videos. For the avoidance of any doubt this includes any and all social platforms, any and all communications via text message, and any other forms of communication.
- You agree to comply with any and all terms and conditions of any third party service provider upon which You rely to publish content created using the Software and warrant to Us that Your use of the Services will not infringe the rights of any third party service provider.
- We use YouTube API Services. You agree to comply with the YouTube Terms of Service when using the YouTube API found here at https://www.youtube.com/t/terms.
- You agree that You will not and You agree to procure that any Administrators, End Users and or Applicants will not use the Services to create any of the following (“Infringing Content”):
- content that may infringe the Intellectual Property Rights of any person;
- content that impersonates any person or entity or otherwise misrepresents Your and/or Your End User’s relationship with Us or any other person;
- content that is false, unlawful, misleading, libellous, defamatory, slanderous, obscene, pornographic, indecent, lewd, harassing or advocates harassment of another person, threatening, invasive of privacy, abusive, inflammatory, fraudulent or otherwise objectionable;
- content that can be reasonably be considered to be offensive, such as content that promotes racism, bigotry, hatred or physical harm, of any kind against any group or individual;
- content that would constitute, encourage, promote or provide instructions for the conduct of an illegal act or omission, any criminal activity, or violate the rights of any person;
- content which contains the private and/or personal information of any person;
- content which contains viruses, malware or any other malicious software or data; and/or
- content that may infringe the terms and conditions of a third party service provider upon which You rely to publish content created using the Services.
- You acknowledge and agree that:
- VideoMy have no responsibility or liability for any content or Infringing Content created using the Services, or for any loss or damage suffered by You or any other person as a result of the Services storing, holding or making available, any content or Infringing Content to third parties; and
- VideoMy are under no obligation to review content to determine its accuracy, truthfulness, or whether it is defamatory, slanderous or contains falsehoods.
- You agree to indemnify VideoMy and keep VideoMy indemnified, as well as VideoMy’s agents, employees and officers against all loss which VideoMy, its agents, employees and officers suffer or incur, as a direct result of:
- You, Your Administrator, Your End Users or Applicants creating any Infringing Content using the Services or any breach of this Agreement; or
- any legal proceedings or any claim made against VideoMy by a third party, which arises directly from any Infringing Content created by You or Your End User using the Services or any breach of this Agreement.
- You agree and understand that any and/or all videos made using the Services will contain a compulsory tail at the end of the Video which states ‘powered by VideoMyJob’. You agree and understand that this tail cannot be removed in any instance.
- You agree and understand that any video created by You and switched to ‘public’ will automatically appear in the VideoMy Video library. You agree and understand that these ‘public’ videos may be utilised by VideoMy on its company website and all relevant social media platforms.
- You agree and understand that a Seat will be held for a minimum of 30 days whereby it can then be transferred to another user, which then starts the engagement from inception.
- You acknowledge that You, Your Administrator, Your End Users and Applicants, are required to create usernames, passwords or other identification or authentication information in order to access the Services (Access Identification) and that each Licence requires a unique Access Identification to be assigned to it. You acknowledge and agree that Access Identification is personal and unique to a single End User per Licence and that Access Identification must not be used by more than one operator of the Services.
- You agree to ensure that You, Your Administrator, Your End Users and Applicants keeps all Access Identification safe and secure and protects it from unauthorised access, use or copying. You agree to notify Us immediately in the event that the safety or security of Access Information is compromised or breached.
- VideoMy may suspend the access of any End User to the Services if VideoMy have reason to suspect that the safety or security of the Access Information is breached, until the breach is rectified and any reasonably necessary back up, protection and/or security assurance testing is completed. VideoMy consider that fair use of the Licence includes the creation of up to 60 videos a month per Seat per Licence. If more than 60 videos are created a month per Seat using a Licence in a particular year, VideoMy will suspect that there has been a breach of the safety and security of the Access Identification until VideoMy has ascertained with You the cause of such excessive use by You. VideoMy reserves the right to agree to revised payment terms with You in order to continue Your Licence in circumstances where fair use conditions are exceeded.
- If VideoMy upgrades the Software (Upgrade), You will be given access to the Upgrade. VideoMy will provide You with support for Your use of the Upgrade via email. You agree and understand that charges may apply for this additional support at VideoMy’s discretion.
- Except for the warranty services set out in clause 11 and the services set out in this clause 9, VideoMy will not provide any other maintenance or support services in respect of the Services or the Software under this agreement. If You require additional maintenance or support, VideoMy will enter into a separate software support agreement with You.
- VideoMy may conduct maintenance and repair of the Services at any time, and will aim to do so at times that cause minimum impact to You.
- If VideoMy provide You with any hardware, You are solely responsible for the maintenance of that hardware.
- You acknowledge and agree that the Licence is a licence to use the Services only and that nothing in the Licence will be deemed to convey any title or ownership of the Services to You. All Intellectual Property Rights in the Software and the Services are owned or licensed by Us and are protected by Australian laws, other applicable laws and international treaty provisions. Except for the rights to use the Software and the Services granted to You under the Licence, VideoMy retains all rights in the Software and the Services the Software remains VideoMy’s exclusive property.
- You acknowledge that:
- VideoMy and the VideoMy logo are all trade marks or pending trade marks of VideoMy regardless of whether or not they are registered; and
- You are not granted any rights to use, remove or sub-license the use of the trade marks under the Licence or at all.
- You acknowledge and agree that the Software is confidential to and valuable property of VideoMy. You undertake and undertake to procure that Your End Users treat as confidential and keep secret all information including ideas and concepts contained in or embodied in the Software or the Services.
- You warrant that Your End Users, employees and any other persons having access to the Software will:
- be advised that the Software is confidential and subject to limitations and obligations set out in this agreement;
- comply with the limitations and obligations set out in this agreement as if those persons were You under this agreement.
- The obligations as to confidentiality will remain in force and effect despite termination of the Licence.
- In submitting video and any other content to VideoMy as part of the Services, the Client will provide personal information of individuals to VideoMy (Personal Information).
- The parties agree to comply with all applicable laws, rules and regulations, whether federal, state or other jurisdiction in relation to data protection/privacy in the jurisdiction where VideoMy stores the personal information and, to the extent required by the Data Protection Requirements in the jurisdiction where the Client uses the Services (“Data Protection Requirements”) in relation to the collection, handling, processing, storage, disclosure and use of personal information.
- VideoMy must only use Personal Information for the purpose of providing the Services to the Client and for no other purpose.
- VideoMy will endeavor to ensure all Personal Information stored is not accessible by any other third party and not combined with any other data or database of VideoMy or any third party.
- VideoMy continually warrants and represents to You that it will provide the Software and the Services exercising all due care and skill and will comply with all applicable laws in performing its obligations under this agreement.
- To the fullest extent permitted by law and subject to the Consumer Guarantees contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth), VideoMy makes no further warranties, either express or implied, about the Services. The Services are provided "as is.".
- No agent or employee of VideoMy is authorised to make any modification or addition to this warranty. VideoMy makes no warranty whatsoever in relation to any hardware that it may elect to provide to you from time to time.
- You continually warrant and represent to VideoMy that You:
- have the authority to bind any body corporate that you represent in relation to your entry into this agreement and have obtained all necessary approvals in order to create legally binding relations with VideoMy on behalf of any relevant body corporate;
- are able to pay Your debts as and when they fall due;
- will comply with all applicable laws in your use of the Services; and
- will not copy, transfer, transmit, or otherwise provide access to the Software to any unauthorised party and will not seek to reverse-engineer or reproduce any component of the Software (including source code) for your own benefit or for any other purpose.
- You acknowledge and agree that in entering into this agreement, You have relied on Your own skill and judgment in selecting the Services and in the use and result You intend to obtain from them.
- The Services are inherently complex and may not be completely free of errors. Subject to clause 11(i) VideoMy does not warrant to You that the functions contained in the Services will meet Your requirements or that the operation of the Services will be uninterrupted or error free or that all errors will be corrected. You are advised to verify and to make backup copies of all work performed in connection with the Services.
- To the extent lawfully permitted:
- VideoMy will not be liable to You whether in contract, tort or otherwise for indirect, special, incidental, economic, cover or consequential losses or damages including without limitation for loss of profits, business, goodwill, data arising in connection with this agreement; and
- VideoMy’s liability will not exceed the Fees paid by You under this agreement.
- Where the Consumer Guarantees contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) apply to the supply of the Services, VideoMy limits its liability under the Consumer Guarantees, at its discretion, to:
- the replacement of the Services or the supply of equivalent software and manuals;
- the repair of the Services;
- the payment of the cost of having the Services replaced or of acquiring equivalent software and manuals; or
- a payment of the cost of having the Services repaired.
- VideoMy is not responsible in any way for any loss or damage caused as a result of Your use of any hardware that VideoMy may elect to provide You. VideoMy is not liable to replace any hardware it has provided to You in the event of damage, error or failure.
- Any variations to these terms will be agreed by the parties in writing.
- Nothing in this agreement creates any partnership, joint venture, employment or similar relationship between You and Us.
- If any provision of this agreement is invalid, the parties agree that the invalidity will not affect the validity of the remaining portions of the agreement.
- This agreement will be governed by the laws of the Victoria, Australia and you irrevocably submit to the jurisdiction of the Courts of that jurisdiction.
Administrator means an End User that VideoMy has authorised as part of the Services to create templates and nominate and create new licenses.
Applicant means an external user authorised by You to create a video using the Software.
Commencement Date means the date of VideoMyJob account activation.
Dashboard means the dashboard housing all videos linked on a single YouTube channel.
End User Includes You or any user of the Services authorised by this agreement to use the Services.
Intellectual Property Rights means any intellectual property right whether registered or unregistered and including, without limitation, any patent, design right, invention, copyright, trade mark, moral right, right to use any image, voice or likeness or other right whether arising under statute or at common law.
Permitted Use means to use the Software to create, edit and post branded video job advertisements and general communications to Your corporate website, social media, online services, job board websites, email communication and text communication.
Seat means a single user of the Software identified by a unique login and password, subject always to the VideoMy fair use requirements and the terms and conditions of this agreement.