Terms Of Use

1. Background

Oncord Pty Ltd ACN 116 347 909 (Oncord) operates the Platform and provides access to End Users on the terms and conditions contained in this Agreement.
The terms and conditions contained in this Agreement govern the relationship between the Parties and the use of the Platform.
By using the Platform, the End User agrees to the terms and conditions contained in this Agreement.
Words in this Agreement which are capitalised are defined within this agreement at clause 15.1

2. Agreement

2.1 Accepting this Agreement

By subscribing to the Platform, the End User agrees to:
1. comply with and be bound by the terms and conditions of this Agreement;
2. pay, in accordance with the terms set out on the Oncord Website:
  1. the Subscription Fee;
  2. and any excess data charges.
Oncord may amend this Agreement at any time by posting with fourteen (14) days’ notice the new terms and conditions on the Website.
The version of this Agreement, at the time you conclude the purchase of the current Subscription, is the version which will apply to that transaction.

2.2 Licence

Oncord grants the End User a revocable, non-exclusive, non-transferable, limited licence to use the Platform for the Term in exchange for the Subscription Fee.

2.3 Data Use Limits

Each of Oncord’s Packages have data use limits.
Where the End User exceeds data limit uses they will be required to upgrade their Package to obtain a higher usage plan and pay the associated Subscription Fee.
Data limits are provided at http://www.oncord.com/pricing/.
Oncord may automatically upgrade the End User’s Package if the End User exceeds the data limits for their then current Package.

3. Term

3.1 Subscription Term

Subscription Term This Agreement will commence on the day the End User Subscribes to the Platform and will continue: for the Term; or until the date of termination of this Agreement in accordance with clause 13. Automatic renewal If this Agreement is not terminated at least fourteen (14) days prior to the expiry of the then current Term, this Agreement will automatically renew for a period equal to the current Term, on the terms and conditions of the latest version of this Agreement published on Oncord’s Website.
The End User may cancel its Subscription at any time via their dashboard or by contacting Oncord. The cancelation will come into effect at the end of the then current Term.

3.2 Automatic Renewal

If this Agreement is not terminated at least fourteen (14) days prior to the expiry of the then current Term, this Agreement will automatically renew for a period equal to the current Term, on the terms and conditions of the latest version of this Agreement published on Oncord’s Website.
The End User may cancel its Subscription at any time by contacting Oncord. The cancelation will come into effect at the end of the then current Term.

4. Platform

4.1 Platform hosting

The End User acknowledges and agrees Oncord has the right to have the Platform or any part of it hosted by a third party.

Oncord reserves the right to nominate a different server at any time in its sole discretion.

4.2 Software not locally available

The End User acknowledges and agrees the Platform will only be accessible using the Internet (or other connection to third party servers) and will not be available "locally".

4.3 Software not locally available

The End User acknowledges and agrees the Platform or parts of it may be operated from servers owned and controlled by a third party. As such, certain functions are out of Oncord’s control, which may include aspects of hardware maintenance, network administration, data storage, backups and disaster recovery.

4.4 Oncord can change the Platform at discretion

Oncord reserves the right to upgrade, maintain, tune, backup, amend, add to or remove items from, redesign, improve or otherwise alter the Platform (including offering new features) at its sole and absolute discretion.

4.5 Unintentional inaccessibility

From time to time, without notice, access to all or part of the Platform may be disrupted or limited. During such an interruption, Oncord will use reasonable endeavours to restore access to the Platform as soon as practicable.

4.6 Intentional inaccessibility

Oncord:

reserves the right to make some or all of the Platform inaccessible from time to time as required for Upgrades, maintenance and updates.
will use reasonable endeavours to provide End Users with advance notice, via the Oncord Website, of any inaccessible period but the End User accepts this may not always be possible.
is not liable for any harm or damage End Users may suffer during either intentional or unintentional interruptions.

4.7 Errors

The End User acknowledges and agrees there may be technical or administrative errors in the Documentation or the Platform.
Oncord reserves the right to do any of the following, at its absolute discretion, without notice:

correct any errors in the Documentation or Platform; or
update the Documentation or Platform;

4.8 Security Responsibilities

Oncord will use reasonable endeavours to ensure:

the Platform is secure from unauthorised access consistent with generally accepted industry standards; and
no viruses or other malicious code is introduced into the Platform.

4.9 Service Level

Oncord will provide a service level of 99.982% network uptime per month excluding Permitted Down Times. In the event that the Service Level is not met for any given month, upon request by the End User a pro-rata rebate will be applied against the Licence Fee payable at the commencement of the next term. No rebate applies nor is payable if the Licence is terminated.

5. Support

5.1 Support obligations

Provided that the Platform functions and is fit for purpose, Oncord has no obligation to provide support, maintenance, Upgrades, modifications or new releases of the Platform.
Without limiting this Oncord will, to the extent required by this Agreement:

provide such support as is necessary to ensure the Platform performs in accordance with the Documentation or other representations made on Oncord’s Website;
backup the End User's Website on request; and
provide Platform status updates as reasonably required.

Oncord does not provide technical support on non-server issues. Oncord will not respond to emails pertaining to such requests. This includes but is not limited to, all 3rd party software, PHP, Java, CGI, scripts, Real Audio/Video, HTML, MySQL, Telnet, FTP, and Email clients.

5.2 Backups

Oncord will make back-up copies of the End Users data daily and retain back-up copies for a minimum period of seven (7) days.
If the End Users stored data is lost or altered, the End User will bear the direct and indirect costs of restoring the data.

6. Prohibitions on use

The End User agrees they must not:

use the Platform for any purpose or in any manner other than as reasonably anticipated in this Agreement;
use the Platform in any way that could damage Oncord’s reputation or goodwill;
reproduce, make error corrections to or otherwise modify or adapt any part of the Platform;
create any derivative works based on the Platform;
transfer, sublicence, rent, lease, lend or use the Platform for commercial time sharing or service bureau use;
modify or remove any copyright or proprietary notices associated with the Platform;
cause email to be sent using the Platform that is not compliant with the Spam Act 2003 (Cth); and
in using the Platform, breach local laws in Oncord’s or the End User’s jurisdiction.

7. Submitted Material

7.1 Submitted Material

The End User must not submit or cause to be submitted to the Platform whether in text or graphic format, any Content:
1. in breach of any advertising code or regulation;
2. which is misleading or deceptive or likely to mislead or deceive; which is the confidential information of any third party without the express consent of the third party;
3. which is illegal, unlawful, improper, harmful, threatening, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable;
4. promoting illegal activity, racism, hate or pyramid schemes;
5. that infringes the Intellectual Property Right of a third party;
6. or any other content deemed inappropriate by Oncord in its sole discretion.
The End User grants Oncord a non-exclusive, royalty free license to use any material submitted by it to the Platform for purposes reasonably anticipated by this Agreement, including presenting the End User’s Website from its servers.

7.2 Take down procedure

Oncord reserves the right to remove any content from an End User’s Website which it reasonably believes does not comply with this clause.

8. Warranties

8.1 Exclusion of warranties
The End User agrees they must not:

the Platform will be accessible at all times, uninterrupted or error free;
the Platform is without bugs or viruses;
any of the technical information is without error or inaccuracy;
the Platform is immune to unauthorised access or security breach; or
in respect of the retention of, or continued accessibility of, any data.

8.2 Warranties as to capacity
Each party represents and warrants to the other:

it has full power and authority to execute this Agreement and observe and perform all of its obligations;
it is not aware of any thing, matter or circumstance which may prevent it from fulfilling its obligations under this Agreement;
and it is not insolvent and no receiver, receiver and manager, provisional liquidator, liquidator or other officer of the court has been appointed in relation to all or any of its affairs or material assets.

9. Limitation of liability

The End User acknowledges and agrees it is entering into and acquiring services under this Agreement for commercial purposes and not for domestic, personal or household use.
To the maximum extent permitted by law, Oncord excludes all liability for any negligence or other losses suffered or incurred directly or indirectly, including in connection with:
1. computer virus, trojan and other malware;
2. an Event of Force Majeure;
3. the End User’s inability to access, data, the End User's Website or the Platform;
4. any Consequential Loss regardless of whether the loss is direct or indirectly caused by use of the Platform;
5. security vulnerabilities in the Platform or any breach of security that results in unauthorised access to, or corruption of data;
6. the End User’s breach of this Agreement; or any act or omission by the End User.

Where a Non-Excludable Condition is deemed to apply, to the fullest extent possible under the law, Oncord limits its liability for any breach to:
1. in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; an
2. in the case of services: the resupply of the services; or the payment of the cost of having the services resupplied.
Oncord excludes all implied guarantees, conditions and warranties from this Agreement except any Non-Excludable Condition.

10. Indemnity

10.1 Indemnities
The End User indemnifies, defends and holds harmless Oncord in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with the End User’s:

breach of this Agreement;
libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
breach of clause 7 (Submitted Material);
infringement of any Intellectual Property Rights;
piracy, counterfeiting, plagiarism, or unfair competition;
nvasion of the right of privacy;
provision of incorrect, fraudulent or false information;
negligent acts or omissions; and
any use of the Platform which brings about a claim by a third party.

10.2 Survival
The End User indemnifies, defends and holds harmless Oncord in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with the End User’s:

11. Privacy

11.1 Privacy Policy

The End User agrees and consents to Oncord’s handling of personal information in accordance with its Privacy Policy.
Oncord may amend its Privacy Policy in its sole discretion. If Oncord amends its Privacy Policy, it will post the new Privacy Policy on Oncord’s Website.

11.2 Survival
This clause will survive the termination of this Agreement.

12. Intellectual Property

12.1 Oncord’s Intellectual Property Rights

All title, ownership rights and Intellectual Property Rights, including copyright in relation to the Platform is owned or used under licence by Oncord.
Without Oncord’s express prior written consent, the End User must not and will not permit any person to:
1. directly or indirectly alter, replicate, copy, recreate, create derivative work from, decompile, reverse engineer, reverse assemble, reverse compile, enhance, interfere with (or with part of) the Platform;
2. obtain, modify or use any source or object code, architecture, or algorithms contained in the Platform;
3. interact with any Oncord trade mark (whether registered or not) that could cause any adverse effect to Oncord’s ownership and/or rights to the Intellectual Property;
4. copy or reproduce, or create an adaptation or translation of, all or part of the Platform in any way, except to the extent that reproduction occurs automatically through its ordinary use;
5. incorporate all or part of the Platform in any other webpage, site, application or other digital or non-digital format;
6. (subject to other rights explicitly granted under this Agreement) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Platform on any medium;
7. do anything that will infringe the Intellectual Property Rights of any third party; or
8. attempt to do any of the above.

12.2 The End User’s Intellectual Property

Nothing in this Agreement will transfer ownership of the Submitted Material to Oncord.

12.3 Threats and action

If the End User becomes aware of any infringement or threatened infringement of any Intellectual Property Rights, it must give notice to Oncord including full particulars of the infringement. Oncord may, in its absolute discretion, may institute and prosecute an action against the infringer.

12.4 Provide all assistance
The End User must execute all documents and do all things reasonably necessary to aid and co-operate in the prosecution of any actions brought by Oncord under this clause.

12.5 Survival
The operation of this clause survives the termination of this Agreement.

13. Termination

13.1 Termination by Notice

Either party may terminate this Agreement by providing the other party fourteen (14) days’ notice.
If this Agreement is terminated in accordance with this clause 13.1, this Agreement will terminate at the expiry of any then current Term.

13.2 Termination by Oncord

Oncord may terminate this Agreement without notice if:
1. it no longer has the right to provide the Platform to End Users for any reason whatsoever;
2. the Subscription Fee is not paid within fourteen (14) days of the due date;
3. the End Users Account’s nominated credit card or direct debit account is unable to be charged the Subscription Fee on two successive attempts; or
4. the End User commits a breach of any of the material terms of this Agreement.
If this Agreement is terminated in accordance with this clause 13.2, this Agreement will terminate immediately.

13. 3 Effect of Termination
On termination of this Agreement:

the End User will no longer have access to the Platform or the Submitted Material;
Oncord will no longer present the End User’s Website; and
Oncord may on the provision of a reasonable period of notice (being not less than fourteen (14) days), remove the End User's Website after providing the End User with the opportunity of migrating its data.

13.4 End User’s Website and Submitted Material
Although export and backup mechanisms exist in the Software, the End User’s Content is stored on the server using a proprietary system. Consequently, no guarantees are given their Website or Submitted Material can be migrated to any other system.

14. Miscellaneous provisions

14.1 Assignment
Oncord may assign this Agreement by notifying the End User of the Assignment. The End User cannot assign the terms and conditions contained in this Agreement without the express consent of Oncord.

14.2 Entire Agreement
This Agreement contains the entire Agreement between the Parties in connection with its subject matter and supersedes all previous agreements or understandings between the Parties.

14.3 Event of Force Majeure
A Party who is prevented from performing any obligation under this Agreement (except an obligation to pay an amount of money) by the occurrence of an Event of Force Majeure is excused from the performance of any such obligation until they are no longer affected by the Event of Force Majeure.

14.4 Governing law and jurisdiction
This Agreement is governed by the law applicable in the State of Queensland, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of Queensland, Australia.

14.5 Notices
Any communication under or in connection with this Agreement must be in writing and sent to:

where the notice is addressed to the End User, the email address it specifies on its account;
or where the notice is sent to Oncord, to our email address (info@oncord.com).

14.6 Reliance
Neither party has entered into any contract under this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.

14.7 Severability
Part or all of a provision in this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining parts of the provision or provisions of this Agreement continue in force.

14.8 Waiver of rights
A right may only be waived in writing, signed by the Party giving the waiver, and:

no other conduct of a Party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;
a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and
the exercise of a right does not prevent any further exercise of that right or of any other right.

15. Definitions and interpretation

15.1 Defined terms

Add-on Services means optional features which are made available to the End User, as set out on Oncord’s Website, at the prices specified.

Agreement means the terms and conditions contained herein.

Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.

Content means text, data, speech, music or other sounds, visual images (animated or otherwise) in any form, or in any combination of forms as defined in Schedule 7 of Broadcasting Services Act 1992 (Cth).

Documentation means any user manual, support sites, FAQs, videos or other media supplied by Oncord in relation to the Platform.

End User means a person who subscribes to the Platform.

End User's Website means the website hosted on the Platform for the End User.

Event of Force Majeure means an unforeseen event beyond the control of the affected party, including an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, hacking, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, ransomware or other malicious code.

Hosting means the provision of computer infrastructure, associated with the Platform, which is necessary to host the End User's Website.

Intellectual Property Rights (IP) means all copyright, patents, design rights, trademarks and service marks and computer programs, together with all trade secrets, know-how, database rights, rights to confidentiality, intellectual and industrial property rights and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration anywhere in the world.

Non-Excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.

Package means the Platform and Add-on Services selected by the End User.

Party or Parties means Oncord and the End User.

Platform means the Oncord website management system used as a software solution to enable users to edit, promote and host websites.

Submitted Materials means any material including documents, Content or data provided by the End User to the Platform.

Subscription means the licence to use the Platform on the terms and conditions set out in this Agreement.

Subscription Fee means the amount of money paid on acceptance of this Agreement by an End User in exchange for the right to use the Platform for the Term.

Oncord’s Website means the website located at https://www.oncord.com/.

Term means the duration of the Subscription, during which the End User is licenced to use the Platform for the selected Package.

Upgrades means any modifications, changes to the Platform’s features and new or revised versions of the Platform’s source code which may be applied by Oncord at its sole discretion.

15.2 Interpretation
In this Agreement:

a reference to:
1. one (1) gender includes the others;
2. the singular includes the plural and the plural includes the singular;
3. a person includes a body corporate;
4. a document or instrument includes the document or instrumented as novated, altered, supplemented or replaced from time to time;
5. a Party includes the Party’s executors, administrators, successors and permitted assigns;
6. a statute, regulation or provision of a statute or regulation (Statutory Provision) includes:
  1. that Statutory Provision as amended or re-enacted from time to time; and
  2. a statute, regulation or provision enacted in replacement of that Statutory Provision;

including and similar expressions are not words of limitation;
where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation;
where a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day; and
a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.