"Applicable Functionality" means the features of the Platform to which you have subscribed under this Agreement as it is generally available and provided by Benojo.
"Benojo Platform Use Guidelines" means the online information and guidelines for the proper use of the Platform and the Applicable Functionality accessible via the Benojo website.
"Benojo Space" means the area within the Platform that is set aside for your use under this Agreement. Only you have access to your Benojo Space for the purpose of editing it and updating it.
"Benojo User" means any person who has created his, her or its own Customer Account on the Platform. Benojo Users other than yourself cannot edit your Benojo Space or your Customer Account details.
"Confidential Information" of a party means any information, maintained in confidence by such party and communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and any information that by its form, nature, content or mode of transmission would to a reasonable recipient would understand to be confidential or proprietary and, in your case, includes Customer Data and, in the case of Benojo, includes the Applicable Functionality, the Benojo Platform Use Guidelines and the Platform.
"Customer Account" means your Account information entered into the Platform by you and the Fees applicable to such subscription in accordance with the Licensing [and Services] Agreement signed by you and attached in Attachment 1, as amended from time to time.
"Customer Data" means all information provided by you and your personnel to Benojo, in your Customer Account and in your Benojo Space on the Platform.
"Fees" means the fees payable by you to use the Platform in accordance with the Licensing [and Services] Agreement signed by you, as amended from tie to time and as specified in your Account from time to time.
"Platform" means the online, web-based altruistic sharing and connection environment described in the Benojo Platform Use Guidelines and as made available by Benojo from time to time with the Applicable Functionality for access to and use by you as described in the Benojo Platform Use Guidelines.
"Privacy Laws" means the Privacy Act 1988 (Cth) and all rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued thereunder, and "Personal Information" has the same meaning as defined therein.
In consideration of the timely payment of the Fees by you, Benojo will make the Platform available for access and use by you to create a single Benojo Space of your own in accordance with these Terms of Service. You acknowledge and agree that your subscription to the Platform is not conditional upon the delivery of any future functionality or features.
Benojo hereby provides you a non-transferable, nonexclusive right to access and use the Platform for the sole purpose of sharing your vision and activities in your Benojo Space with other Benojo Users. The permission hereby granted depends upon the truth of, and you warrant the truth of, the statements that you have made to Benojo, and the continuing truth of all representations made in your Benojo Space.
You may use the Platform in order to enable your personnel to connect with other Benojo Users of the Platform. Your personnel wishing to use the Platform will be required to set up their own Customer Accounts but their Customer Accounts will be connected to your Benojo Space. You will be responsible for their behaviour in using the Platform and to use your reasonable efforts to update their Customer Accounts when they are no longer connected with your organisation. If you cease to subscribe to use of the Platform, the Customer Accounts of those personnel will remain unaffected by your departure.
You are entitled to promote the objectives of your organisation only within your Benojo Space and may connect with other Benojo Users and their personnel that make contact with you through the Platform for such purpose. You will not insert advertisements or offers to sell goods or services in your Benojo Space, or make unsolicited single or multiple direct approaches to market your goods or services to other subscribers to the Platform. You must comply with the applicable anti-spam legislation.
You acknowledge that other Benojo Users as well as other members of the public will be able to see your Benojo Space using the Platform and therefore it is your responsibility to ensure that your Benojo Space is correct and up-to-date at all times, and contains no misleading, unlawful, defamatory, confronting or even unpleasant material that is directed against anyone else, or any material of an overtly sexual kind. You and we understand that sometimes charitable causes may involve confronting material – that is not what we mean. You must exercise good judgment and recognise the legitimate concerns of all those reasonable people who may access the Platform, whether Benojo Users or not.
Benojo is entitled to upon reasonable notice to you, (a) suspend or terminate your access to and use of the Platform and/or (b) delete any content in your Benojo Space if you or any of your personnel (i) fail to comply with any of your obligations under this Agreement; (ii) in accordance with Benojo’s Complaints Handling Policy; (iii) fail to provide Benojo with information, or accurate and complete information, reasonably deemed by Benojo to be necessary to assist Benojo in the achievement of the objectives of the Benojo Platform; or (iv) any external delay, prevention or interference with Benojo’s performance under this Agreement. Benojo will have no liability to you for its decision in good faith to exercise any of its rights under this clause.
Benojo or those authorized by it to do so may gather information from your Benojo Space and from all other areas of the Platform in a depersonalized form, aggregated for the purpose of research and the provision of services and information regarding other goods or services to you and other Benojo Users. Benojo, with your prior consent, may display other information of third parties provided by them for such purpose visible in your Benojo Space and elsewhere in the Platform from time to time. Under no circumstances will any such Benojo or third party information be presented in a manner that makes it appear to be endorsed by or connected with you in any way.
Benojo may change the features and functionalities of the Platform from time to time and may introduce the requirement to pay subscription fees for the access to and use of any such new or existing features of functionalities of the Platform. If any such fees are introduced, you will pay those fees for the features and functionality of the Platform that you wish to use or continue to use that are subject to such fees.
You will pay the Fees for the use of the Platform for which you are currently subscribed in accordance with the Licensing [and Services] Agreement signed by you, as amended from time to time and under your Account from time to time and not actual usage. However, at any time you may cancel your subscription to the Platform through your Customer Account. You will not be entitled to any refund of Fees already paid.
The Fees are payable annually in advance. Subject to the terms of the Licensing [and Services] Agreement each year during the term of this Agreement, Benojo may adjust the Fees payable by you for renewal of your subscription to the Platform. You will pay GST in addition to the fees as shown on Benojo’s tax invoice. You acknowledge and agree that your use of the Platform may be suspended or terminated at Benojo’s sole option and discretion if the Fees are not paid on time and, in addition, Benojo may charge interest of one per cent (1%) per month compounded for the entire overdue period or the maximum amount allowed by law if undisputed fees are not paid by the due date.
Benojo is not responsible for any transactions carried out through any payment portal, such as Stripe, Paypal, BPay or other means to which Benojo may in its sole discretion provide access from time to time. The responsibility for those transactions rests solely with the service provider providing them.
Benojo’s grant to you of the right to use the Platform is personal. You may not give access to the Platform or transfer any rights under this Agreement to any other person.
YOU MAY NOT MAKE ANY COMMERCIAL USE OF THE PLATFORM OTHER THAN USE OF THE PLATFORM TO MANAGE YOUR OWN BENOJO SPACE – THAT IS, YOU MAY NOT OFFER ACCESS TO THE PLATFORM TO ANY OTHER PERSON’S CUSTOMERS FOR THE PURPOSE OF PROVIDING A SERVICE TO THAT PERSON.
You must provide all equipment, software communications necessary to use the Platform, as specified by Benojo from time to time at the Benojo Website and suitable internet and/or messaging services with a telecommunications provider. You will comply with any technical guidelines given by Benojo in this regard to enable the proper operation and use of the Platform and will promptly implement any updates provided by Benojo at no charge for this purpose.
You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Platform.
During the set up and use of the Platform for your use, you may be required to select one or more usernames and passwords ("Login Information"). The following rules govern the security of your Login Information:
you must not share your Login Information, let anyone else access your Customer Account, or do anything else that might jeopardize the security of your use of the Platform;
if you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify Benojo and modify your Login Information;
you are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, whether or not authorized by you; and
you are responsible for anything that happens through your Customer Account with the Platform.
Benojo reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.
Interfere or attempt to interfere with the proper functioning of the Platform or connect to or use the Platform in any way not expressly permitted by these terms;
Use any unauthorized third party software that accesses, intercepts, "mines", or otherwise collects information from or through the Platform or that is in transit from or to the Platform, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Platform to store information about Benojo or its licensees;
Intercept, examine or otherwise observe any proprietary communications protocol used by the Platform, whether through the use of a network analyzer, packet sniffer or other device;
Use, facilitate, create, or maintain any unauthorized connection to the Platform, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Platform; or (2) any connection using programs, tools, or software not expressly approved by Benojo;
Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for the app or any software underlying the Platform or the Benojo website or other intellectual property used to provide the Platform, or to obtain any information from the Platform using any method not expressly permitted by Benojo; or
upload or transmit or attempt to upload or transmit, without Benojo’s express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats ("gifs"), 1x1 pixels, “spiders”, “crawlers” or other data-mining code, web bugs, cookies or other similar devices (sometimes referred to as "spyware," "passive collection mechanisms" or "pcms").
The Platform includes information confidential to Benojo. You may not modify, alter, translate, dump, decompile, extract from, reverse engineer, disassemble, or otherwise reduce the Platform to a human perceivable form. This restriction is to protect that confidential information.
All rights in the copyright in the Platform and any trade marks used in association with the Platform are retained by Benojo or its licensors (as appropriate). You may not reproduce any part of the Platform or the Benojo website and will not use any trade marks or service marks of Benojo or any of its licensors without the express permission of such trade mark or service mark owner.
comply with any requests for information, recommendations and guidelines with respect to access to and use of the Platform, including any adjustments or replacements required in respect of your equipment and software used by you from time to time;
ensure that your operators are adequately trained and informed so as to use the Platform effectively and in accordance with the Benojo Platform User Guidelines;
promptly report errors in the operation of any aspect of the Platform, in accordance with Benojo’s fault reporting procedures from time to time;
utilize the Benojo website, or other site or notification mechanism as Benojo may designate from time to time, to notify Benojo of Service availability issues, request other in- scope technical support assistance, or for your designated Technical Contact to provide approvals or other responses.
You will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all your Customer Data and accept sole responsibility for errors in the operation of the Platform arising from failure to maintain the accuracy of your Customer Data; (ii) prevent unauthorized access to, or use of, the Platform, and will notify Benojo promptly of any unauthorized access or use; and (iii) comply with all applicable local, state, federal and territorial laws in accessing and using the Platform.
Technical support consists of operational assistance and support as described in Benojo Support website at https://hub.benojo.com/
. Benojo provides technical support as long as you are current in payment of applicable Fees under the Licensing and Support Agreement signed by you and attached as Attachment 1, as amended from time to time and your Account from time to time and are otherwise materially compliant with the terms of this Agreement.
You may be required to upgrade to third-party-supported applications, and operating systems as specified by Benojo from time to time in order to continue receiving technical support services from Benojo.
In order to receive technical support, your technical support requests must contain all available information including, but not limited to, your Technical Contact details or site identification, problem severity, service/software name, operating system/release, platform, area of Service at issue and problem description.
Your Technical Contact provided from time to time must be available to provide Benojo with relevant and requested information, data gathering and testing necessary to assist with the resolution of any issue. You must use your best efforts to execute diagnostic routines, if provided by Benojo, and to inform Benojo promptly of the results. You must use all reasonable efforts to communicate with Benojo to verify the existence of the problem and to provide information about the conditions under which the problem could be duplicated.
Professional services are out of scope, including the following, which are available at Benojo’s then current rates at the time the services are requested, pursuant to a separate services agreement(i): recovery or restoration of data deleted by you; (ii)assistance with configuration or other implementation of the Applicable Functionality; Applicable Functionality(iii) instruction or other education or training;(iv) termination and migration assistance.
Benojo represents and warrants that (a) it owns or otherwise has sufficient rights in the Platform to grant to you the rights to access it and use the Platform as provided herein; (b) it will provide the Platform in a manner consistent with general industry standards reasonably applicable to the provision thereof; (c) the Platform will perform materially in accordance with the Benojo Platform Use Guidelines; (d) it validly exists under the laws of its place of incorporation and has power and authority to execute this Agreement and carry out its obligations under this Agreement; (e) it has full capacity and all necessary licences, permits and consents to enter into and comply with its obligations under this Agreement; (f) it has the necessary skills, experience, qualifications, resources, technology and know-how to provide the Services in accordance with the terms of this Agreement and the Services will be provided by appropriately skilled, qualified and experienced representatives; (g) the Services, documentation, anything used in providing the Services and any materials supplied by the Licensor to the Licensee, and the use of the same by the Licensee and its Subsidiaries in accordance with this Agreement, will not infringe the rights, including the intellectual property rights, of any person, breach any law or constitute a misuse of any third party’s Confidential Information; (h) that it owns or is licensed to use all intellectual property rights required to be used to provide the Services and where such intellectual property rights are owned by third parties, it has the necessary permissions to grant the Licensee the rights contemplated by this Agreement; (i) it will maintain and enforce privacy, safety and security procedures and safeguards as required by applicable law and otherwise as would reasonably be expected by a service provider in the Licensee’s industry to protect against the destruction, loss, disclosure, alteration or unauthorised use of Customer Data; and (j) all statements and representations made to the Licensee are, to the best of the Licensor’s knowledge and belief, true and accurate and the Licensor will notify the Licensee of any fact or circumstance of which the Licensor becomes aware that may render any such statement or representation false or misleading.”
Benojo is not responsible for (a) the conduct of any Benojo User, (b) to ensure the truth, accuracy, currency or completeness of any information placed on the Platform by any Benojo User or for the proper conduct of any Benojo User, including but not limited to fulfilment of promises or use of funds, and (c) for the content of any third party website linked, or goods or services offered by any advertiser, on the Platform. You are responsible to ensure all your information in your Benojo Space, and that posted by your personnel is accurate and up-to-date, and not in breach of this Agreement or any of the Benojo Platform Use Guidelines. Except insofar as any Complaint will be handled by Benojo in accordance with the Benojo Complaints Policy, any grievance concerning the conduct of another Benojo User must be handled directly by you with that Benojo User, and Benojo will have no other liability whatsoever.
The Service Levels to be provided by Benojo as described on the Benojo Support website from time to time will be your sole and exclusive remedy for any failure or lack of performance of the Platform, including damages for breach of contract.
BENOJO DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS WILL BE CORRECTED OR THAT THE AVAILABLE FUNCTIONALITY WILL RUN ERROR FREE OR UNINTERRUPTED. EXCEPT AS EXPRESSLY SET OUT ABOVE AND ON THE BENOJO SUPPORT WEBSITE, TO THE EXTENT PERMITTED BY LAW, NO OTHER WARRANTIES OR GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION MERCHANTABILITY, SUITABILITY OR ACCEPTABLE QUALITY, OR AS TO FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY BENOJO AND BENOJO MAKES NO WARRANTIES HEREUNDER WITH RESPECT TO ANY HARDWARE EQUIPMENT OR THIRD PARTY SOFTWARE WHICH BENOJO MAY USE TO PROVIDE THE SERVICE.
Important note: In the event that performance by either party of any obligation under this Agreement constitutes a supply of goods or services to a consumer as defined in the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended) or relevant State or Territory legislation (“the Acts”) nothing contained in this Agreement excludes restricts or modifies any condition, warranty or other obligation in relation to this Agreement and any goods and services to be supplied hereunder which pursuant to the Acts or any of them is applicable or is conferred on you where to do so is unlawful, in which event Benojo’s sole liability for breach of any such condition, warranty or other obligation will be limited (except to the extent specifically set forth herein) to:
in relation to goods: (A) the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or (B) the repair of the goods or payment of the cost of having the goods repaired;in relation to goods: (A) the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or (B) the repair of the goods or payment of the cost of having the goods repaired;
in relation to services: (A) the supplying of the services again; or (B) the payment of the cost of having the services supplied again as in each case Benojo may select.
Mandatory statement under Regulation 90 of the Competition and Consumer Regulations: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. These rights may be lawfully limited in respect of goods or services not ordinarily acquired for personal, domestic or household use or consumption. To request a replacement or a refund, please send your written request to Benojo by letter or email to email@example.com.
Other than in respect of personal injury or damage to tangible property, Benojo’s liability to you for direct damages, loss or liability for any cause whatsoever, and regardless of the form of action, will be limited to the total amount of Fees paid by you over a period of 12 months prior to the date that the damage, loss or liability occurred for the Platform that caused the damage or gave rise to the cause of action.
THE REMEDIES PROVIDED IN THIS AGREEMENT ARE THE EXCLUSIVE REMEDIES OF THE PARTIES. IN NO EVENT SHALL BENOJO BE LIABLE TO YOU, TO ANY USER OR TO ANYONE ELSE, WHETHER IN CONTRACT OR TORT, OR OTHERWISE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR UNFORESEEABLE LOSS, DAMAGE OR EXPENSE, INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY,OR ANY OTHER FORM OF EXPECTED BENEFIT, OR FOR LOSS OR CORRUPTION OF DATA, HOWEVER ARISING, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED. While Benojo maintains regular backups of data entered into or generated by the Platform, you acknowledge that these backups don't guarantee full recovery in case of a disaster and will be restored based on the most recent backup.
You represent and warrant that you and those providing data and information to you have the right to transmit to Benojo, and receive from Benojo, any data, material or records that are required to enable Benojo to perform the Platform and any other of Benojo’s obligations under this Agreement.
Your Customer Data, other than that displayed in your Benojo Space, is deemed your Confidential Information under this Agreement. Benojo will not access your Customer Account, or your Customer Data, except (i) in the course of data centre business operations, (ii) in response to service or technical issues; (iii) as permitted by this Agreement; or (iv) at your request. Recovery of any of your Customer Data deleted by you will be your responsibility and not the responsibility of Benojo.
Subject to Benojo’s responsibilities as set out in clause 10, entitled “Confidentiality”, Benojo will not be responsible for any unauthorized access to or alteration, theft or destruction of your Customer Data through accident, fraudulent means or devices, or any other method, unless such access, alteration, theft or destruction is caused as a direct result of Benojo’s or its personnel’s misconduct or omission, in which case Benojo’s liability will be limited to commercially reasonable efforts to restore or recover your Customer Data willfrom the most recent back-up of your Customer Data.
Benojo is not responsible for loss of any Customer Data arising from: (i) a transmission from you not in accordance with the Benojo Platform Use Guidelines; or, (ii) your failure to act on any Benojo provided communication.
For purposes of this Agreement, the “Disclosing Party” means the party that transmits or otherwise communicates Confidential Information to the other party (the “Receiving Party”).
The following is not considered to be Confidential Information: (i) information which the Receiving Party has been authorized in writing by the Disclosing Party to use without restriction; (ii) information which was rightfully in the Receiving Party’s possession or rightfully known to it prior to receipt of such information from the Disclosing Party; (iii) information which was rightfully disclosed to the Receiving Party by a third party having proper possession of such information, without restriction; (iv) information which is part of or enters the public domain without any improper action or inaction by the Receiving Party; (v) information which is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information; and (vi) any suggestions, enhancement requests, recommendations or other feedback provided by you or your personnel relating to the operation or use of the Platform.
The Receiving Party must use the Disclosing Party’s Confidential Information only for the purposes set forth in this Agreement, and must cause its personnel and any adviser to whom it discloses such information to maintain such Confidential Information in complete confidence. The Receiving Party may disseminate such Confidential Information only on a need-to-know basis. The Receiving Party shall be permitted to disclose Confidential Information in connection with a judicial or administrative proceeding to the extent that such disclosure is required under applicable law or court order, provided that the Disclosing Party will be given prompt and timely written notice of any such proceeding and shall offer reasonable cooperation in any effort of the other party to obtain a protective order.
The Receiving Party agrees, at any time upon request of the Disclosing Party (being a request that does not prevent the propoer use of the Platform as permitted by this Agreement) or upon any termination of this Agreement, to return to the Disclosing Party all Confidential Information in its possession or confirm its destruction.
You must not (i) modify, copy or create derivative works based on the Applicable Functionality or the Platform; (ii) frame or mirror any content forming part of the Applicable Functionality or the Platform, other than on your own intranets or otherwise for your own internal business purposes in accordance with the provisions of this Agreement; (iii) reverse engineer the Applicable Functionality or the Platform; or (iv) access or use the Applicable Functionality or the Platform in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Applicable Functionality or the Platform.
You may terminate your use of the Platform at any time. Benojo may terminate this Agreement: (i) as permitted under any term of these Terms of Service; (ii) for cause upon 30 days written notice to you of a breach of this Agreement if such breach remains uncured at the expiration of such period (or if such cure is not reasonable within the 30 days, and commercially reasonable steps have not been taken to cure the situation); or (iii) if you become insolvent or if bankruptcy or receivership proceedings are initiated by or against you other than for the purposes of solvent reconstruction. You may be charged for the Platform being made available to you unless you cancel your subscription through your Customer Account. Under no circumstances will you be entitled to any refund of any part of the Fees paid hereunder.
The Agreement will be construed and governed in accordance with the laws of the State of New South Wales.
This Agreement constitutes the entire terms and conditions between you and Benojo with respect to this Platform and supercedes any other agreement, written or oral. If any provision of this Agreement is held to be unenforceable, that provision will be enforced to the maximum extent permissible so as to give effect to the intent of this Agreement, and the remainder of this Licence will continue in full force and effect.
Benojo will be excused from performance of its obligations pursuant to this Agreement for any period and to the extent that it is prevented from performing such obligations, in whole or in part, as a result of delays caused by you or a third party, or an act of God, severe weather, hurricanes, earthquakes, flood, war, civil disturbance or civil commotion, court order or any other cause over which Benojo does not have direct control, including internet or communication problems (including internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Benojo’s possession or reasonable control), third party hardware or software errors, computer viruses or similar harmful programs or data, or unauthorized access or theft.
If any of the circumstances described in clause 12.3 cause a delay for a continuous period of 30 days (or for an aggregate period of more than 60 days in any 12 month period), you may terminate this Agreement and Benojo shall refund you a pro-rata amount of the Licence Fee paid for the remaining Term of the Agreement (as set out in the Licence and Services Agreement).