1. About the Software
1.1 Welcome to the Inkerz Collaboration Solution https://inkerz.com/
). The Software enables users to collaborate online in real-time using handwriting on real and digital paper simultaneously with video and audio as well as record, retrieve and share sessions, upload files, work offline and a range of other services (the “Services”
).1.2 The Software is operated by Inkerz Pty Ltd (ACN 168 890 999) (“Inkerz”
). Access to and use of the Software, or any of its associated products or Services, is provided by Inkerz. Please read these terms and conditions (the “Terms”
) carefully. By using, browsing and/or reading the newcontents Software, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Software, or any of its products or Services, immediately.1.3 Inkerz reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Inkerz updates the Terms, it will use reasonable endeavours to provide you with notice of same. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
2. Acceptance of the Terms
2.1 You accept the Terms by registering for the Services and/or making any payment as required under the Terms. You may also accept the Terms by clicking to accept or agree to the Terms where and if this option is made available to you in the user interface.
3. Subscription to use the Services
3.1 In order to access the Services, you must first register for an account through the Software (the “Account”
).3.2 As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
- an email address and/or preferred username;
- a mailing address;
- a telephone number;
- a password;
- whether you intend to use the Services as an individual or as a business entity; and
- a nominated administrator who will operate the Account on your behalf (only where you nominate that you will be using the services as a business entity).
3.3 As part of the registration process, you will also be given the opportunity to subscribe for the use of the Software (the “Subscription”
). The Lowest Subscription is offered at no cost to you (the “Lowest Subscription”
). However, Inkerz reserves the right to vary or remove the Lowest Subscription. When Inkerz varies or removes the Lowest Subscription, it will provide you with one (1) months’ notice of the same. You will be then given the opportunity to upgrade your Lowest Subscription to a paid Subscription, which will include the payment of a monthly subscription fee (the “Subscription Fee”
) and/or a transaction to transaction fee for each individual use of the Software (the “Transaction Fees”
). You may upgrade your Subscription at any time.3.4 You acknowledge and agreed that the Subscription Fees and/or Transactions Fees will vary based on the Services Description as defined in clause 4.1 below).3.5 Inkerz will provide a variety of Subscription options to you following your registration as a User. Each Subscription option will provide different benefits and will have a different Subscription Fee and in purchasing the Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription you elect to purchase is suitable for your use.3.6 You warrant that any information you give to Inkerz in the course of completing the registration process will always be accurate, correct and up to date.3.7 Once you have completed the registration process you will be a registered user of the Software (“User”
) and agree to be bound by the Terms. As a User you will be granted immediate access to the Services.3.8 You may not use the Services and may not accept the Terms if:
- you are not of legal age to form a binding contract with Inkerz; or
- you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
4. Licence to use the Services
4.1 Only registered Users of the Software (“Members”
) may access the Services, a description of which is set out on the “Services Description” section of the Software (the “Services Description”
).4.2 In registering as a Member, Inkerz will grant you a non-exclusive, non-transferrable licence to use the Software in line with the terms and conditions of these Terms (the “Licence”
). For the avoidance of doubt, you acknowledge and agree that the Software is not sold to you and, without the express written consent of Inkerz, you must not nor allow any third party to:
- decompile, disassemble or reverse engineer the Software;
- remove or alter any product identification or proprietary rights notice contained in the Software or its documentation;
- lease, sublicense, resell, or otherwise transfer the Software;
- modify or create derivative works of the Software;
- use the Software to perform services for third parties; or
- otherwise use the Software for any unlawful purposes, and/or in any manner that breaches these Terms.
4.3 You acknowledge and agree that where you, as an individual, represent a business entity (the “Business Entity”
- you are subscribing to the Services on behalf of and with the authority and consent of the Business Entity; and
- the Licence granted pursuant to this clause 4 shall also include a non-exclusive, non-assignable, non-sublicensable, revocable right granted to the Business Entity, to access the Services, for the purposes expressly described in the Services Description.
For the avoidance of doubt, the arrangement contemplated by this clause 4.3 may include but is not limited to the Licence extending to any students or other test takers using the Services through the Business Entity.4.4 You acknowledge and agree that you are responsible for the payment of all costs associated with accessing the Software, including but not limited to internet access costs, web browser and computer and smartphone equipment costs, telecommunications costs, data costs, roaming charges and, if you are a Member, service charges.4.5 The Licence granted to these Terms will include any upgrades that Inkerz may provide to the Software or the Services. Notwithstanding, Inkerz reserves the sole right to set further terms to any such upgrades where it is accompanied by a separate agreement.
5. The Member Data
5.1 As a Member, you will own all data that you transmit through or upload into the Services (“Member Data”
) and you provide Inkerz with an irrevocable, non-exclusive, royalty-free, worldwide licence to use your de-identified Member Data for benchmarking and data analytic purposes.5.2 You acknowledge and agree that:
- the Services and/or Member Data may be hosted by Inkerz or third party suppliers on hardware or infrastructure located in or outside Australia; and
- Inkerz may not own or operate the infrastructure upon which the Services and/or the Member Data is hosted.
5.3 Each time a Member uses the Services the Member warrants that:
- they will only upload, input and transfer Member Data into and/or via the Services or disclose Member Data to Inkerz, which the Member is fully entitled and authorised to upload, input, transfer and disclose; and
- the Member Data and Inkerz’s collection, use, storage and/or disclosure of same in the course of performing the Services, will not breach any applicable law or right of any person.
5.4 The Member is solely responsible for the accuracy, legality and quality of all its Member Data and for obtaining any permissions, licenses, rights and authorisations necessary for Inkerz to use, host, transmit, store and disclose the Member Data in connection with the provision of the Services.5.5 While Inkerz will make reasonable efforts to back up Member Data, you acknowledge and agree that you are solely responsible for backing up and archiving all Member Data and that Inkerz will not be responsible for any loss, corruption or hacking of any Member Data.5.6 You indemnify Inkerz in respect of any loss and damage Inkerz or any of the third party suppliers they use may incur in respect of any claim that any of the Member Data is lost, unavailable or corrupted or the transmission, storage, disclosure, hacking or access of any Member Data infringes the intellectual property rights or other rights of any person or breaches any law, regulation, code or standard.
6. Your obligations as a User
6.1 As a User, in addition to the obligations set out in clause 5 above, you agree to comply with the following:
- you will, at all material times, remain compliant with Inkerz’s policies and guidelines available through the Software, which you acknowledge and agree may be changed from time to time at Inkerz’s sole discretion.
- you will use the Services only for purposes that are permitted by:
- the Terms; and
- the Member Data and Inkerz’s collection, use, storage and/or disclosure of same in the course of performing the Services, will not breach any applicable law or right of any person.
- you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
- (d) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Inkerz of any unauthorised use of your password or email address or any breach of security of which you have become aware;
- access and use of the Software is limited, non-transferable and allows for the sole use of the Software by you for the purposes of Inkerz providing the Services;
- you will not use the Services or the Software in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Inkerz;
- you will not use the Services or Software for any illegal and/or unauthorised use which includes collecting email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Software;
- you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Software without notice and may result in termination of the Services. Appropriate legal action will be taken by Inkerz for any illegal or unauthorised use of the Software; and
- you acknowledge and agree that any automated use of the Software or its Services is prohibited.
7.1 Where the option is given to you, you may make payment of the Subscription Fees and/or Transaction Fees, or any other payment to be made through the Software by way of:
- Electronic funds transfer (“EFT”) into our nominated bank account; or
- Credit Card Payment (“Credit Card”).
7.2 All payments made in the course of your use of the Services are made using Stripe Payments Australia Pty Limited, eWAY (Global Payments Inc.) and/or PayPal Australia Pty Limited (the “Payment Gateways”). In using the Software, the Services or when making any payment in relation to same, you warrant that you have read, understood and agree to be bound by the Payment Gateways’ terms and conditions which are available on their website.7.3 You acknowledge and agree that where a request for the payment is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the same.7.4 Inkerz reserves the right to terminate or suspend your access to the Services in the event that you fail to pay any payment pursuant to the Services or any invoice sent by Inkerz from time to time.
8.1 For the purposes of this clause, the following expressions shall have the following meanings:
- GST means any tax imposed on the supply of goods or services which is imposed or assessed under GST Act.
- GST Act means A New Tax System (Goods and Services Tax) Act 1999 (as amended) and all related ancillary legislation which provides for a broad based consumption tax on the supply of Goods and Services which becomes operative in respect of the provisions of these Terms.
8.2 If these Terms or any supply under or in respect of these Terms becomes subject to GST, and if the recipient of the consideration is liable to GST in relation to any supply under these Terms, the parties agree that the amount payable for any supply under or in respect of these Terms by any party shall be adjusted by the amount of the GST. The GST shall be payable at the same time and in the same manner as the Subscription Fees.
9. Foreign Currency and Tax
In using the Services and making any payment pursuant to these Terms, you acknowledge that the currency and/or any country based taxes are calculated based on your geographical location. Accordingly, if we detect that your Internet Protocol address is within Australia, then all amounts expressed and described are listed in Australian dollars and that the Australian GST shall apply. If we detect that your Internet Protocol address is outside Australia, then all amounts expressed and described are listed in United States dollars.
10. Refund Policy
Inkerz will only provide you with a refund of any monies paid through the use of the Services in the event they are unable to continue to provide the Services or if the manager of Inkerz makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances.
11. Copyright and Intellectual Property
11.1 The Software, the Services and all of the related products of Inkerz are subject to copyright. The material on the Software is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Software (including but not limited to text, graphics, logos, button icons, video images, audio clips, Software, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Inkerz or its contributors.11.2 All trademarks, service marks and trade names are owned, registered and/or licensed by Inkerz, who grants to you a worldwide, non-exclusive, revocable license whilst you are a User to:
- use the Software pursuant to the Terms;
- copy and store the Software and the material contained in the Software in your device’s cache memory; and
- print pages from the Software for your own personal and non-commercial use.
Inkerz does not grant you any other rights whatsoever in relation to the Software or the Services. All other rights are expressly reserved by Inkerz.11.3 Inkerz retains all rights, title and interest in and to the Software and all related Services. Nothing you do on or in relation to the Software will transfer any:
- business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
- a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
- a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process),
to you.You may not, without the prior written permission of Inkerz and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Software which are freely available for re-use or are in the public domain.
13. General Disclaimer
13.1 You acknowledge and agree that Inkerz will use its best endeavours to ensure that the Software and Services are available ninety five percent (95%) of the time each calendar month. Inkerz does not guarantee that the Software, Services or Member Data or access thereto will be uninterrupted or error-free and you release and indemnify Inkerz in respect of any loss and damage in respect of any interruption, error or unavailability of the Software, Services or Member Data.13.2 Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.13.3 Subject to this clause, and to the extent permitted by law:
- all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
- Inkerz we will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
13.4 Use of the Software and the Services is at your own risk. Everything on the Software and the Services is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Inkerz make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of Inkerz) referred to on the Software. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
- failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
- the accuracy, suitability or currency of any information on the Software, the Services, or any of its Services related products (including third party material and advertisements on the Software);
- costs incurred as a result of you using the Software, the Services or any of the products of Inkerz; and
- the Services or operation in respect to links which are provided for your convenience.
14. Limitation of liability
14.1 Inkerz’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you during the preceding one (1) month.14.2 In using the Services you acknowledge that Inkerz holds no liability in any capacity for your failure to meet any obligations contemplated by the Terms, including but not limited to any liability arising as a result of your failure to comply with the Inkerz policies and guidelines.14.3 You expressly understand and agree that Inkerz, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
15. Termination of Contract
15.1 The Terms will continue to apply until terminated by either you or by Inkerz as set out below.15.2 If you want to terminate the Terms, you may do so by:
- providing Inkerz with thirty (30) days’ notice of your intention to terminate; and
- closing your accounts for all of the services which you use, where Inkerz has made this option available to you.
Your notice should be sent, in writing, to Inkerz via the ‘Contact Us’ link on the Inkerz wesbite.15.3 Inkerz may at any time, terminate the Terms with you if:
- you have breached, or intend to breach, any provision of these Terms, including but not limited to your obligations set out in clause 6 above;
- Inkerz is required to do so by law; or
- the provision of the Services to you by Inkerz is, in the opinion of Inkerz, no longer commercially viable.
15.4 Subject to local applicable laws, Inkerz reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Software or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Inkerz’s name or reputation or violates the rights of those of another party15.5 Inkerz may maintain Member Data for a period of sixty (60) days following termination under this clause 15, after which time it will automatically be destroyed unless otherwise agreed to in writing.
You agree to indemnify Inkerz, its affiliates, employees, agents, contributors and licensors from and against any breach of the Terms.
17. Dispute Resolution
17.1 CompulsoryIf a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute (except where urgent interlocutory relief is sought).17.2 NoticeA party to the Terms claiming a dispute (“Dispute”
) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.17.3 ResolutionOn receipt of that notice (“Notice”
) by that other party, the parties to the Terms (“Parties”) must:
- Within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
- If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of New South Wales or his or her nominee;
- The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
- The mediation will be held in Sydney, Australia.
17.4 ConfidentialAll communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.17.5 Termination of Mediation:If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
18.1 In the event that the Dispute is not resolved at the conclusion of the mediation, both parties are prohibited from instituting legal proceedings concerning the subject matter of the Dispute and the Dispute, controversy or claim arising out of, relating to or in connection with these Terms and Conditions, including any question regarding its existence, validity or termination, will be resolved by arbitration in accordance with the ICC Rules of Arbitration (or any rules which supersede these rules). The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one. This clause 18 may be used as a bar to legal proceedings issued in any Court in any country which has ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
19. Venue and Jurisdiction
In the event of any dispute arising out of or in relation to the Software, you agree that the exclusive venue for resolving any dispute shall be in accordance with clause 18 above.
20. Governing Law
The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
21. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If any part of these Terms is found to be void or unenforceable, that part shall be severed and the rest of the Terms shall remain in force.
23. Cancellation Policy
You cannot cancel a plan during the first year of your subscription. However, to cancel after the first year email; firstname.lastname@example.org.