1.2 In these User Terms of Service:
(i) “we”, “us” or “Qualife” means Qualife Pty Ltd ACN 622 146 436, a proprietary limited company incorporated in Queensland, Australia;
(ii) “Website” means www.toppako.com; www.toppako.com.au and/or www.my.toppako.com;
(iii) “Services” means the services described in clause 2;
(iv) “Software” means “Toppako” a software application enabling users to filter, send, receive and store SMS and email communications, that is developed and maintained by Qualife, which is accessed via the Website; and
(v) “you” means you and anyone acting on your behalf or with your authority.
2.1 The Services comprise access to, and the right to use, the Website and the Software as updated by Qualife from time to time. Qualife may also expand the Services to incorporate any new software or services that it develops from time to time, at its absolute discretion.
2.2 For the avoidance of doubt, the Services do not include technical support services in relation to third-party software or hardware, or your use of the Services or Software via that third-party software or hardware.
2.3 You acknowledge that the Software is designed to place limits on communication, and that any communications, comments or contributions that you upload via the Software may not be made publically available or otherwise sent to an intended recipient, or may only be made available or sent after being filtered and/or reviewed and moderated edited or moderated by third parties or the Software itself.
3.1 You will be required to pay a membership fee to enjoy continued access to the Services. The membership fee will be payable on the basis that you have selected (monthly, quarterly, half yearly or annually) in advance, or otherwise as notified by us. Failing to pay the fees will result in you losing access to the Services.
3.2 We will also charge you other fees in respect of specific components of the Services. If we do so, we will notify you of those fees prior to permitting you to utilise those components.
3.3 The current fees at any given time will be available at www.toppako.com. All fees will be subject to change from time to time, as notified to the email address linked to your user account and on the Website, however, any changes will only apply from the future date set out in our notice to you.
3.4 All fees are expressed in Australian dollars. The fees may be subject to foreign exchange fees and differences based on prevailing exchange rate if you choose to pay them via a credit card or account using foreign currency.
3.5 You agree to indemnify us in respect of any fees that we are charged as a result of your payments being dishonoured, rejected or recovered from us. You acknowledge that we may seek reimbursement for such expenses.
4.1 No credit card or payment information is entered or stored on the website. All payments are securely handled by certified third party payment gateways, and the full details of any credit cards utilised for payments will never be available to us. However, this means that we have limited control over the payment gateways. For the terms and conditions of these payment gateways, please visit – Stripe Payments Australia Pty. Ltd – www.stripe.com/au
4.2 You will be sent a receipt for your payment promptly after the payment gateway confirms to us that your payment has completed successfully.
5. Refund policy
5.1 Refunds will not be provided unless we are satisfied that you have not been charged the correct amount, or that the Services provided to you are sufficiently defective to justify providing a refund.
5.2 In order to request a refund, you must first contact us at firstname.lastname@example.org and provide the following:
(i) evidence of the amount of the payment and that your payment was made via this website (for example, the invoice); and
(ii) the reason you are disputing the payment or requesting a refund (for example, why the Services provided were faulty).
5.3 If the Services are assessed to be defective or unfit for its intended use, all refunds will be issued via the payment method.
5.4 We reserve the right to refuse to grant refunds at our absolute discretion.
6.1 You acknowledge that you have an obligation to take appropriate precautions against viruses and malicious computer code and that we are not liable for any damage to your computer or data as a result of your use of our Services.
6.2 The Software or the Website may contain links to third party websites or resources. You acknowledge and agree that we have no control over and are not liable for the availability, content, products, or services on or available from such websites or resources, and you accept all risk arising from the use of these resources.
6.3 Access to the Software may depend on the use of third-party software or hardware. You acknowledge and agree that we have no control over the third-party software or hardware or your use of third-party software or hardware, and are not liable to any extent where your access to the Software or the Services is interrupted or affected by third-party software or hardware.
6.4 To the maximum extent permitted by law, Qualife, its directors, employees, contractors and agents will not be liable to you for any claim arising out of or in any way connected with your use of the Services for any direct, indirect, special or consequential loss, loss of profit, loss of income, loss of business or loss of opportunity, howsoever arising and whether caused by breach of statute, breach of contract, negligence or any other tort.
6.5 If any guarantee or warranty under the Competition and Consumer Act 2010 (Cth) or comparable state or territory legislation cannot be excluded, you agree that our liability is limited, to the extent permitted by law, to the re-supply of the relevant Services, or the payment of an amount equal to the cost paid for those Services, during the period in which the Services were provided in breach of the relevant guarantee or warranty.
6.6 Without limiting clause 6, you agree that in no event shall the maximum aggregate liability of Qualife, its directors, employees, contractors and agents exceed the amount that you have paid for the Services over the past 12 months.
7. Access and registration
7.1 Access to the Services is provided on a temporary “as is” and “as available” basis. We will not be liable if for any reason the Services are unavailable at any time or for any period.
7.2 From time to time, we may restrict access to some or all of the Services as required for ongoing development and maintenance. We will endeavour to provide you with reasonable notice of such downtime, but you acknowledge and agree that this will not always be possible.
7.3 You warrant that any information that you provide during the registration process is true and accurate.
7.4 We reserve the right to immediately suspend or disable your access to the Services if, in our reasonable opinion, you have failed to comply with any of the provisions of User Terms of Service.
8. Log-in information
8.1 You agree that your account and registration are provided to you personally, and must only be accessed by you. If you are provided with log-in details or a password or any other piece of information as part of our security procedures (“log-in information”), you must treat such information as confidential and keep it secure, and you must not:
(i) disclose it to any third party;
(ii) allow or enable a third party to freely access the Website or the Services via your log-in information; and
(iii) store the log-in information in such a manner that it could be copied, utilised or distributed by any virus, software or third party.
8.2 If you are aware of any unauthorised access of the Website or the Services with your log-in information, or if you become aware that your log-in information has become known to a third party, you must immediately notify us.
9. User Content and Intellectual Property
9.1 You are responsible for any information, text, images, photos or other materials uploaded to the Website and/or processed by the Software in your use of the Services (User Content) and any feedback or suggestions you provide to us relating to the Software (User Feedback), and you warrant that you own all intellectual property rights in any User Content processed by the Software or User Feedback that you upload.
9.2 You will continue to own any User Content processed by the Software or User Feedback you upload, but you grant us a perpetual, non-exclusive, sub-licensable, royalty free, worldwide license to use, copy, modify, distribute, publish and process any User Content or User Feedback that you upload, including making the information available via the Services (either in its original form or in an edited form), in our marketing material or providing copies to other entities in the course of our business dealings. You consent to us using the User Content and User Feedback in this manner without attributing you as the author.
10.1 This agreement may be terminated by you or us at any time without notice. Upon termination, you will no longer have any right to use or access the Services.
10.2 Except where this agreement is terminated for breach of these User Terms of Service, if Qualife terminates this agreement, you will be entitled to a pro-rata refund for future periods in respect of which you have paid fees.
10.3 For the avoidance of doubt, if you terminate this agreement, you will not be entitled to a pro-rata refund for future periods in respect of which you have paid fees.
10.4 Clauses 3, 6, 9, 10 and 11 shall survive termination.
11.1 We may change these User Terms of Service at any time without prior notification to you. You agree that if we do so, those changes will come into effect the next time you use the Services after receiving notification of the changes to the User Terms of Service. Your continued use of the Services will constitute acceptance of the updated User Terms of Service. The latest version of these User Terms of Service will always be available at www.toppako.com.
11.2 If any provision of these User Terms of Service is found by any court or body of competent jurisdiction to be wholly or partially illegal, invalid, void, voidable, unenforceable or unreasonable, it shall be deemed severable to the extent that the remaining provisions of these User Terms of Service shall continue in full force and effect.
11.4 Queensland law governs these User Terms of Service. Each party irrevocably submits to the non-exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts.