Last modified on 29-December-2021
Your Agreement to these Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION WHICH (IF YOU ARE RESIDENT IN AUSTRALIA OR ELSEWHERE IN THE WORLD, BUT NOT IF YOU ARE A CONSUMER IN THE EUROPEAN UNION) REQUIRES THAT DISPUTES ARE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL AND NOT A CLASS-WIDE OR CONSOLIDATED BASIS.
Welcome to the SmartCare Agent Service operated by Dunnsmart Technology Pty Ltd. (“Dunnsmart Technology”) consisting of the web site available at the URL http://www.dunnsmart.com and all related services, software applications and networks that allow for the authorized installation and function of the Dunnsmart Technology SmartCare Agent (the ” Dunnsmart Technology Services “). The Dunnsmart Technology Services also includes any other sites or services that link to these terms of service (the ” Terms of Service “). Other services offered by Dunnsmart Technology may be subject to separate terms (in which case we will let you what terms will apply to those services).
The following Terms of Service for the Dunnsmart Technology Services is a legal contract between you, an individual user of at least 13 years of age (see section 2 below about minors using Dunnsmart Technology) or a single entity (“you”), and Dunnsmart Technology regarding your use of the Dunnsmart Technology Services.
Dunnsmart Technology may offer certain additional services for which you can agree to pay fees to Dunnsmart Technology. The applicable terms will be made available on the applicable Dunnsmart Technology web page and will supplement these Terms of Service. If you register and/or use any such paid fee services, you will be asked to agree to and comply with the Dunnsmart Technology Terms of Sale. The Dunnsmart Technology Terms of Sale is hereby incorporated by reference (this means legally that they form a part of these Terms of Service).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, DOWNLOADING FROM OR USING THE DUNNSMART TECHNOLOGY SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE DUNNSMART TECHNOLOGY SERVICES OR, IF YOU ARE A CONSUMER RESIDENT IN THE EUROPEAN UNION, CONTACT US AT [email protected] TO DISCUSS ANY CONCERNS YOU MAY HAVE REGARDING THESE TERMS OF SERVICE.
IF YOU ARE USING OR OPENING AN ACCOUNT WITH DUNNSMART TECHNOLOGY ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A ” SUBSCRIBING ORGANIZATION “) THEN YOU REPRESENT AND WARRANT THAT YOU:
(I) ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS OF SERVICE;
(II) HAVE READ THE FOREGOING TERMS;
(III) UNDERSTAND THESE TERMS OF SERVICE, AND
(IV) AGREE TO THESE TERMS OF SERVICE ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.
Use of Dunnsmart Technology by Minors and Blocked Persons.
The Dunnsmart Technology Services is not available to persons under the age of 13. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your country of residence), you may only use the Dunnsmart Technology Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service. BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE DUNNSMART TECHNOLOGY SERVICES, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE DUNNSMART TECHNOLOGY SERVICES.
The Dunnsmart Technology Services is also not available to any users previously suspended or removed from the Dunnsmart Technology Services by Dunnsmart Technology (see section 16 below for more about suspension or removal).
The Dunnsmart Technology Services is owned and operated by Dunnsmart Technology Pty Ltd. Unless otherwise indicated, all Content and other materials on the Dunnsmart Technology Services, including, without limitation, Dunnsmart Technology’s logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files and the selection and arrangement thereof (collectively, the ” Materials “) are protected by Australian copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws (including in your country of residence). All Materials contained on the Dunnsmart Technology Services are the proprietary property of Dunnsmart Technology or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Dunnsmart Technology or its affiliates and/or third-party licensors. Dunnsmart Technology reserves all rights not expressly granted in these Terms of Service.
Unless otherwise expressly stated in writing by Dunnsmart Technology, you are granted a limited, non-sublicensable license (i.e. a personal and limited right) to access and use the Dunnsmart Technology Services for your personal or internal business use only.
This license is subject to these Terms of Service and does not include any of the following:
(a) any resale or commercial use of the Dunnsmart Technology Services or the Materials;
(b) the distribution, public performance or public display of any Materials (except for Broadcaster Content by the Broadcaster posting the Broadcaster Content – this is all explained further below);
(c) modifying or otherwise making any derivative uses of the Dunnsmart Technology Services or the Materials, or any portion of them;
(d) use of any data mining, robots or similar data gathering or extraction methods;
(e) downloading (except page caching) of any portion of the Dunnsmart Technology Services, the Materials or any information contained in them, except as expressly permitted on the Dunnsmart Technology Services; or
(f) any use of the Dunnsmart Technology Services or the Materials except for their intended purposes.
Any use of the Dunnsmart Technology Services or the Materials except as specifically authorized in these Terms of Service, without the prior written permission of Dunnsmart Technology, is strictly prohibited and your failure to comply with them may have legal consequences which may include violating applicable laws, including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated in these Terms of Service, nothing in them shall be interpreted as conferring any license to intellectual property rights, whether by estoppel, implication or other legal principles. This license can be terminated (see further section 15).
Individual Features and Services.
When using the Dunnsmart Technology Services, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted online and notified to you from time to time (the ” Guidelines “). All these Guidelines are hereby incorporated by reference into these Terms of Service (i.e. they are made part of these Terms of Service).
Modification of these Terms of Service.
Dunnsmart Technology reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms of Service at any time (for example to reflect updates to the Dunnsmart Technology Services or to reflect changes in the law). If Dunnsmart Technology changes these Terms of Service, we will provide you notice of these changes, such as by sending an email, posting a notice on the Dunnsmart Technology Services or updating the “Last Updated” date above. Please check these Terms of Service and any Guidelines periodically for those changes. Your continued use of the Dunnsmart Technology Services after the posting of changes constitutes your binding acceptance of such changes. For any material changes to these Terms of Service, the amended terms will automatically be effective thirty days after they are initially posted on the Dunnsmart Technology Services unless you contact us to discuss any questions or comments during that time period. We will always make a reasonable effort to notify you if we do change these Terms of Service.
Australian Copyright Act 1968.
Please note that since we respect designer, publisher, music, and other Content (as defined below) owner rights, it is Dunnsmart Technology’s policy to respond to notices of alleged infringement that comply with the Australian Copyright Act 1968. If you believe that anything in the Dunnsmart Technology Services infringes upon any copyright that you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Designated Agent: Helen Dunn
Address of Designated Agent: Unit 14, 42-44 Old Barrenjoey Rd, Avalon Beach, NSW, Australia. 2107
E-mail Address of Designated Agent: [email protected]
Please see Australian Copyright Act 1968 for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
Other Intellectual Property Rights Infringement Systems in the EU and Rest of the World.
If you believe that your copyright or other intellectual property rights have been infringed and they are not subject to Australian law and jurisdiction (for example, if you consider the infringement is subject to the E-Commerce Directive of the European Union), then we invite you to contact us at [email protected] if you wish to discuss this further with us.
Repeat Infringer Policy.
In accordance with the Australian Copyright Act 1968 and other applicable laws around the world, Dunnsmart Technology has adopted a policy that it will promptly terminate without notice any user’s access to the Dunnsmart Technology Services if that user is determined by Dunnsmart Technology to be a ” repeat infringer.” A repeat infringer includes, without limitation, a user who has been notified by Dunnsmart Technology of infringing activity violations more than twice and/or who has had their Broadcaster Content or any other user-submitted content removed from the Dunnsmart Technology Services more than twice. Dunnsmart Technology may also at our sole discretion limit access to the Dunnsmart Technology Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
In addition, Dunnsmart Technology accommodates and does not interfere with standard technical measures used by intellectual property rights owners to protect their materials.
DUNNSMART TECHNOLOGY, the Dunnsmart Technology logos and any other product or service name or slogan contained in the Dunnsmart Technology Services are trademarks of Dunnsmart Technology or our suppliers or licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of Dunnsmart Technology or the applicable trademark holder. Any authorized use of these trademarks must be in accordance with any guidelines that Dunnsmart Technology may provide you from time to time.
You may not use any meta-tags or any other hidden text utilizing “Dunnsmart Technology” or any other name, trademark or product or service name of Dunnsmart Technology without our prior written permission. In addition, the look and feel of the Dunnsmart Technology Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Dunnsmart Technology and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Dunnsmart Technology Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us or any other affiliation.
The Dunnsmart Technology Services may include interactive areas or services (” Interactive Areas “), such as chat boxes or web forums, in which you or other users may create, post or store content, messages, materials, data, information, text, music, sound, photos, video, graphics, applications, code or other items or materials on the Dunnsmart Technology Services. You are solely responsible for your use of such Interactive Areas and use them at your own risk. BY USING THE DUNNSMART TECHNOLOGY SERVICES, INCLUDING THE INTERACTIVE AREAS, YOU AGREE NOT TO violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while on the Dunnsmart Technology Services.
You agree that you will comply with these Terms of Service and Rules of Conduct and will not:
- use the Dunnsmart Technology Services for any purposes except to disseminate or receive original or appropriately licensed content and/or to access the Dunnsmart Technology Services;
- rent, lease, loan, sell, resell, sub-license, distribute or otherwise transfer the licenses or materials granted in these Terms of Service;
- post, upload, or distribute any defamatory, libelous, or inaccurate Content;
- impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Dunnsmart Technology Services accounts of others without permission, forge another persons’ digital signature, misrepresent the source, identity, or content of information transmitted via the Dunnsmart Technology Services, or perform any other similar fraudulent activity;
- delete the copyright or other proprietary rights notices on the Dunnsmart Technology Services or Content;
- make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Dunnsmart Technology Services, including, without limitation, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, petitions for signatures, or any of the preceding things related to promotional giveaways (such as raffles and contests), and other similar activities;
- harvest or collect the email addresses or other contact information of other users from the Dunnsmart Technology Services for the purpose of sending spam or other commercial messages;
- use the Dunnsmart Technology Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
- defame, harass, abuse, threaten or defraud Users of the Dunnsmart Technology Services, or collect, or attempt to collect, personal information about Users or third parties without their consent;
- remove, circumvent, disable, damage or otherwise interfere with security-related features of the Dunnsmart Technology Services or Content, features that prevent or restrict use or copying of any content accessible through the Dunnsmart Technology Services, or features that enforce limitations on the use of the Dunnsmart Technology Services or Content;
- reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Dunnsmart Technology Services or any part thereof, except and only to the extent that this activity is expressly permitted by the law of your country of residence;
- modify, adapt, translate or create derivative works based upon the Dunnsmart Technology Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- intentionally interfere with or damage operation of the Dunnsmart Technology Services or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
- relay email from a third party’s mail servers without the permission of that third party;
- use any robot, spider, scraper, crawler or other automated means to access the Dunnsmart Technology Services for any purpose or bypass any measures Dunnsmart Technology may use to prevent or restrict access to the Dunnsmart Technology Services;
- manipulate identifiers in order to disguise the origin of any Content transmitted through the Dunnsmart Technology Services;
- interfere with or disrupt the Dunnsmart Technology Services or servers or networks connected to the Dunnsmart Technology Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Dunnsmart Technology Services; use the Dunnsmart Technology Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Dunnsmart Technology Services, or that could damage, disable, overburden or impair the functioning of the Dunnsmart Technology Services in any manner;
- use or attempt to use another user’s account without authorization from that user and Dunnsmart Technology;
- attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of the Dunnsmart Technology Services that you are not authorized to access; or
- attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services for any purpose.
Further, BY USING THE DUNNSMART TECHNOLOGY SERVICES, INCLUDING THE INTERACTIVE AREAS YOU AGREE NOT TO post, upload to, transmit, distribute, store, create or otherwise publish through the Dunnsmart Technology Services any of the following:
- Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law or regulation;
- Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any Content, you represent and warrant that you have the lawful right to distribute and reproduce such Content;
- Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- viruses, corrupted data or other harmful, disruptive or destructive files; and
- Content that, in the judgment of Dunnsmart Technology, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or the Dunnsmart Technology Services, or which may expose Dunnsmart Technology or our users to any harm or liability.
Dunnsmart Technology takes no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Dunnsmart Technology liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of the Dunnsmart Technology Services is at your own risk. Enforcement of the user content or conduct rules set forth in these Terms of Service is solely at Dunnsmart Technology’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Dunnsmart Technology Services will not contain any content that is prohibited by such rules. As a provider of interactive services, Dunnsmart Technology is not liable for any statements, representations or content provided by our users in any public forum, personal home page or other Interactive Area. Dunnsmart Technology does not endorse any content or any opinion, recommendation or advice expressed therein, and Dunnsmart Technology expressly disclaims any and all liability in connection with content. Although Dunnsmart Technology has no obligation to screen, edit or monitor any of the content posted in any Interactive Area, Dunnsmart Technology reserves the right, and has absolute discretion, to remove, screen or edit any content posted or stored on the Dunnsmart Technology Services at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any content you post or store on the Dunnsmart Technology Services at your sole cost and expense. Any use of the Interactive Areas or other portions of the Dunnsmart Technology Services in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Interactive Areas and/or the Dunnsmart Technology Services.
Rights in User Content.
If you submit or post User Content to the Dunnsmart Technology Services you grant Dunnsmart Technology a worldwide, nonexclusive, royalty-free, perpetual, irrevocable and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content in any form, format, media or media channels now known or hereafter developed or discovered. You grant Dunnsmart Technology and our sub-licensees the right to use the name that you submit in connection with such content, if we or they choose.
By submitting or posting User Content to the Dunnsmart Technology Services, you agree that: (a) such User Content is non-confidential; (b) you own and control all of the rights to the User Content that you post or you otherwise have all necessary rights to post such User Content to the Dunnsmart Technology Services; (c) the User Content is accurate and not misleading or harmful in any manner; and (d) the User Content, and your use and posting of that User Content in connection with the Dunnsmart Technology Services, does not and will not violate these Terms of Service or any applicable law, rule or regulation in your country or elsewhere.
Account and Password.
You may wish to open a Dunnsmart Technology account with us for a number of reasons, including a more personalized Dunnsmart Technology experience or to upload and/or download or purchase content or any products, services, or information from Dunnsmart Technology.
Once you have a Dunnsmart Technology account you can purchase products and services (including subscriptions) via Dunnsmart Technology. The Dunnsmart Technology Terms of Sale explain how this works – please read carefully this important document, which is incorporated by reference into these Terms of Service (this means they legally form part of this document).
While Dunnsmart Technology uses reasonable security precautions, you are solely responsible for maintaining the confidentiality of your account and password, for restricting access to your computer and for all activities that occur under your account or password. Please make sure you provide to Dunnsmart Technology on registration and at all other times information which will be true, accurate, current, complete and kept up to date to the best of your ability.
If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you must immediately notify Dunnsmart Technology at [email protected].
Third Party Accounts.
Dunnsmart Technology may permit you to register for and log onto the Dunnsmart Technology Services via certain third party social networks, such as by using Facebook Connect. If you log in via such social networks, the profile information connected to the account you use to log into the Dunnsmart Technology Services, including your name, may be used by Dunnsmart Technology in order to provide and support your account. You also acknowledge and agree that Dunnsmart Technology may publish information regarding your use of the Dunnsmart Technology Services to and in connection with any such third party social network with which you use the Dunnsmart Technology Services (unless you tell us otherwise).
Dunnsmart Technology reserves the right, without notice and in our sole discretion, to terminate your license to use the Dunnsmart Technology Services and to block or prevent your future access to and use of the Dunnsmart Technology Services. This includes Dunnsmart Technology having the ability to terminate or to suspend your access to any purchased products or services. Your only remedy with respect to any dissatisfaction with (i) the Dunnsmart Technology Services, (ii) any term of these Terms of Service, (iii) any policy or practice of Dunnsmart Technology in operating the Dunnsmart Technology Services, or (iv) any content or information transmitted through the Dunnsmart Technology Services, is to terminate your account and discontinuing use of any and all parts of the Dunnsmart Technology Services. In serious cases of breach of these Terms of Service (for example, infringement of Dunnsmart Technology’s intellectual property rights or actions causing it financial loss), Dunnsmart Technology may consider it appropriate to take legal action against you (though we will try to resolve matters amicably with you if possible).
The following section only applies to you if you are resident in Australia or elsewhere in the world (but does not apply if you are a consumer resident in the European Union):
You agree to indemnify, defend, and hold harmless Dunnsmart Technology, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Dunnsmart Technology Services, any Content you post, store or otherwise transmit in or through the Dunnsmart Technology Services, your violation of the rights of any third party, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Dunnsmart Technology reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Dunnsmart Technology, and you agree to cooperate with Dunnsmart Technology’s defense of these claims. Dunnsmart Technology will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
Disclaimers; No Warranties.
The following section only applies to you if you are resident in Australia or elsewhere in the world (but does not apply if you are a consumer resident in the European Union):
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE DUNNSMART TECHNOLOGY SERVICES AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY DUNNSMART TECHNOLOGY; (B) DUNNSMART TECHNOLOGY, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS (” DUNNSMART TECHNOLOGY PARTIES “) DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE DUNNSMART TECHNOLOGY SERVICES, INCLUDING ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN; (C) DUNNSMART TECHNOLOGY DOES NOT REPRESENT OR WARRANT THAT CONTENT OR MATERIALS ON THE DUNNSMART TECHNOLOGY SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE; (D) DUNNSMART TECHNOLOGY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) WHILE DUNNSMART TECHNOLOGY ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE DUNNSMART TECHNOLOGY SERVICES SAFE, DUNNSMART TECHNOLOGY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE DUNNSMART TECHNOLOGY SERVICES OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DUNNSMART TECHNOLOGY OR THROUGH THE DUNNSMART TECHNOLOGY SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 17, THE TERM “DUNNSMART TECHNOLOGY” INCLUDES DUNNSMART TECHNOLOGY’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
Limitation of Liability and Damages.
Users in Australia and rest of the world (non-EU):
The following section only applies to you if you are resident in Australia or elsewhere in the world (but does not apply if you are a consumer resident in the European Union):
Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL DUNNSMART TECHNOLOGY OR THE DUNNSMART TECHNOLOGY PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE DUNNSMART TECHNOLOGY SERVICES, THE CONTENT OR THE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM DUNNSMART TECHNOLOGY, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO DUNNSMART TECHNOLOGY’S RECORDS, PROGRAMS OR SERVICES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF DUNNSMART TECHNOLOGY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE DUNNSMART TECHNOLOGY SERVICES EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE DUNNSMART TECHNOLOGY SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN DUNNSMART TECHNOLOGY AND RECEIVED THROUGH OR ADVERTISED ON THE DUNNSMART TECHNOLOGY SERVICES OR RECEIVED THROUGH ANY REFERENCE SITES.
Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT DUNNSMART TECHNOLOGY HAS OFFERED THE DUNNSMART TECHNOLOGY SERVICES, MATERIALS AND OTHER CONTENT AND INFORMATION, SET ITS PRICES, AND ENTERED INTO THESE TERMS OF SERVICE IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND DUNNSMART TECHNOLOGY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND DUNNSMART TECHNOLOGY. DUNNSMART TECHNOLOGY WOULD NOT BE ABLE TO PROVIDE THE DUNNSMART TECHNOLOGY SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
Users in the European Union.
The following section only applies to you if you are a consumer resident in the European Union: Neither Dunnsmart Technology and its affiliates and partners in all cases, nor you (if you are an individual customer), will be responsible for: (i) losses that were not caused by any breach on their or your part; (ii) any indirect or consequential losses (including loss of profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure); or (iii) any indirect or consequential losses that were not foreseeable by both you and us when the Terms of Service were agreed or updated as applicable. If you are a Subscribing Organization (as defined in section 1 of these Terms of Service) then you are not granted any rights under this section.
Applicable Law and Venue
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH DUNNSMART TECHNOLOGY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM DUNNSMART TECHNOLOGY.
You and Dunnsmart Technology agree to arbitrate any dispute arising from these Terms of Service or your use of the Dunnsmart Technology Services, except that you and Dunnsmart Technology are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Dunnsmart Technology agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Dunnsmart Technology shall be sent to Service Support, Attn: Legal, Unit 14, 42-44 Old Barrenjoey Road Avalon Beach NSW, 2107. You and Dunnsmart Technology further agree: to attempt informal resolution prior to any demand for arbitration; that any arbitration will occur in Sydney, New South Wales, Australia; that arbitration will be conducted confidentially by a single arbitrator in accordance with the NSW Commercial Arbitration Act 2010; and that the state and federal courts in NSW, Australia have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by this Agreement and the laws of the State of New South Wales and applicable Australian law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and Dunnsmart Technology will not commence against the other a class action, class arbitration or other representative action or proceeding.
Dunnsmart Technology may provide you with notices, including those regarding changes to Dunnsmart Technology’s terms and conditions, by email, regular mail or postings on the Dunnsmart Technology Services Website. Notice will be deemed given twenty-four hours after email is sent, unless Dunnsmart Technology is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Dunnsmart Technology Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Dunnsmart Technology Services is deemed given 30 days following the initial posting.
The failure of either you or us to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms of Service will be effective only if in writing and signed by the relevant party.
If any provision of these Terms of Service or any guidelines is held to be unlawful, void, or for any reason unenforceable, then for both you and us that provision will be limited or eliminated from these Terms of Service to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
These Terms of Service and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Dunnsmart Technology without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.
Upon termination of these Terms of Service, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 7, 8, 11(b)(ii), 11(c), 11(d), 12, 15-20.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms of Service, and will not be deemed to limit or affect any of the provisions of it.
If you are a consumer resident in the European Union and you disagree with the above, we encourage you contact us as soon as possible after you start using the Dunnsmart Technology Services at [email protected] since otherwise they will be binding on you after a reasonable time period (usually 30 days unless there are exceptional circumstances).
YOU AND DUNNSMART TECHNOLOGY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE DUNNSMART TECHNOLOGY SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The Dunnsmart Technology Services is offered by Dunnsmart Technology Pty Ltd, located at: Unit 14, 42-44 Old Barrenjoey Rd, Avalon Beach, NSW, Australia 2107 and email: [email protected].