iBodyshop Software as a Service
ABN 64 602274359
Last Updated 9th November, 2017
Thank you for selecting the Services offered by iBodyshop Pty. Ltd., (“iBodyshop”, “we”, “our”, or “us”).
Please read these Terms of Service (“Agreement”) carefully.
This Agreement is legally binding between you and us. By accepting (that is, by clicking “I Agree”) or otherwise by installing, accessing or using the iBodyshop Software as a Service (“SaaS”, or “the Services”), you agree to the Terms of Service below. If you do not agree, then you cannot use the Services.
Revisions to terms. Note that these Terms may be updated from time to time. You will be bound by the updated version of the Terms when you use the Services after the Terms have been updated. By accepting these Terms, you acknowledge that it is your responsibility to regularly review our website for such updates, and you further acknowledge that by continuing to use the Services, you agree to be bound by the then current Terms of Service.
A. GENERAL TERMS
This Agreement sets out the terms governing your use of the iBodyshop services provided to you on this website (the “Services”).
2. LICENCE TO USE THE SERVICES
2.1 You are hereby granted a licence to use the Services and only for the purposes described by iBodyshop, until termination of the Agreement. This licence is not transferable and is non-exclusive.
2.2 You agree not to use, nor permit any third party to use, the Services or content in a manner that violates any applicable law, regulation or this Agreement. You also agree you will not:
a. Provide access to or give any part of the Services to any unauthorized third party.
b. Reproduce, modify, copy, deconstruct, sell, trade or resell the Services.
c. Make the Services available on any file-sharing or application hosting service.
3.1 Payments will be billed to you by iBodyshop and/or its supplier(s) in Australian Dollars or New Zealand Dollars (plus any and all applicable taxes, including GST) as shown in the product ordering and subscription terms, and your account or credit card will be debited when you subscribe and provide your payment information, unless stated otherwise in the program ordering or payment terms on the website for the Services. iBodyshop is only available by monthly Direct Debit to your nominated Bank or Credit Card account.
3.2 If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate your licence to use the Services.
3.3 iBodyshop and/or its supplier(s) will automatically renew your monthly Services at the current rates, unless the Services are cancelled or terminated under this Agreement.
3.4 Except for pro-rata Subscription fees as outlined in 3.5, all payments are deducted from your nominated account on the 1st day of each month.
3.5 After the expiration of your 30 day Free Trial period, the first payment deducted will be on a pro-rata basis, for the remaining days, from the date of expiration of the Free Trial period until the 1st of the next month. Thereafter, normal monthly billing on the 1st day of each month will commence for the full monthly Subscription fee.
4. INTERNET ACCESS
Use of these Services may be available through a range of devices using Internet access and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees for SMS messages, data plans, and general usage, as well as the terms of your agreement with your mobile device and telecommunications provider.
iBodyshop makes no warranties or representations of any kind as to the availability of your telecommunication services from your provider, or any loss or damage you may incur by use of your telecommunication services.
5. YOUR PERSONAL INFORMATION
6.1 You are responsible for your content. You are responsible for all materials (“Content”) uploaded, posted or stored through your use of the Services. You grant iBodyshop a worldwide, royalty-free, non-exclusive license to host and use any Content provided through your use of the Services. You agree not to use, nor permit any third party to use, the Services to upload, post, distribute, link to, publish, reproduce or transmit any of the following, including but not limited to:
a. Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, or criminal or civil liability under any local, state, federal or foreign law;
b. Content that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy;
c. Except as permitted by iBodyshop in writing, investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
d. Virus, Trojan horse, worm or other disruptive or harmful software or data; and
e. Any information, software or Content which is not legally yours and without permission from the copyright owner or intellectual property rights owner.
6.2 You agree that iBodyshop may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant iBodyshop a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to iBodyshop in any way, including but not limited to any suggestions for improvements submitted by you through the iBodyshop Wish List function. For the avoidance of doubt, it is your responsibility to ensure that any information which you wish to protect as Confidential Information, or any information which contains Intellectual Property which you wish to protect, is not provided to iBodyshop for use in connection with general product development and improvement. iBodyshop will assume that any confidentiality or intellectual property rights in material provided for this purpose have been waived.
6.3 You agree that iBodyshop may mine the data contained within your company data file, and any related data or content, for the purpose of creating statistical or analytic based informational services which may be offered to other iBodyshop customers for free, or for a fee, so long as the data collected in this way does not contain personal information about any individual or any confidential or identifiable information about your business, or your customers.
6.4 iBodyshop may monitor your Content. We may disclose any information necessary to satisfy our legal obligations, protect iBodyshop or its customers, or operate the Services properly. iBodyshop, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in breach of this Agreement.
7. PASSWORDS AND UPDATES
You will manage your passwords and accept updates. You are responsible for securely managing your password(s) for the Services and to immediately contact iBodyshop if you become aware of any unauthorized access to your account. The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve the Services.
8. DISCLAIMER OF ADDITIONAL WARRANTIES
8.1 Except as provided under clause 9, your use of the Services and Content is entirely at your own risk. To the maximum extent permitted at law iBodyshop, its officers, agents, suppliers and affiliates disclaim from all warranties, express or implied, or any kind, including whether the Services are fit for purpose, secure from bugs, viruses or errors.
9. WARRANTIES, LIMITATION OF LIABILITY AND INDEMNITY
iBodyshop commits to achieving a system up-time of not less than 95%, calculated and averaged over a period of any 12 calendar months from the commencement of your subscription to the iBodyshop Software as a Service (SaaS). This guarantee excludes scheduled and published maintenance down times.
If this commitment is not realized, iBodyshop will refund your payment for the final month of the relevant 12 month period. This refund represents your sole remedy, and iBodyshop’s sole liability, in respect of the service failure.
There is no entitlement to a refund or pro rata refund in respect of any subscription period of less than 12 months.
Any claim for a refund as set out above must be made within 60 days of the end of the 12 month period in question.
Any other claim against iBodyshop in respect of a failure to comply with its obligations under this Agreement must be made within 60 days of you becoming aware of the alleged breach.
No attempt is made to exclude or limit your rights in respect of warranties or consumer guarantees implied by law where and to the extent it is prohibited by statute to exclude or limit such liability. iBodyshop’s liability and responsibility in respect of a breach of any such implied warranty or guarantee is, however, limited to the maximum extent permitted by the relevant statute in each instance.
Except as provided above, iBodyshop’s liability will in no circumstances exceed a sum in excess of one months’ subscription fees, and iBodyshop, its employees, agents, affiliates and suppliers shall not be liable for any indirect or consequential loss or damage incurred by you in any way. You agree to indemnify, keep indemnified and hold iBodyshop and its affiliates and suppliers harmless from any and all claims, liability and expenses, including legal costs, arising out of your use of the Services or breach of this Agreement.
We reserve the right to change this Agreement at any time, and the changes will be effective when posted through the Services, on our website for the Services or when we notify you by other means. We may also change or discontinue the Services, in whole or in part. Your continued use of the Services indicates your agreement to the changes.
iBodyshop may immediately, in its sole discretion and without notice terminate this Agreement or suspend the Services if you fail to comply with this Agreement. Upon termination you must immediately stop using the Services and any outstanding payments will become due. Any termination of this Agreement shall not affect iBodyshop’s rights to any payments due to it. iBodyshop may terminate a free account at any time. Relevant provisions as appropriate will survive and remain in effect even if the Agreement is terminated.
12. GOVERNING LAW
This Agreement will be governed by the laws of Victoria, Australia and its Courts. You acknowledge that a breach of any provisions of this Agreement, or any infringement of iBodyshop’s or its suppliers’ intellectual property rights may cause iBodyshop irreparable damage for which recovery of money damages would be inadequate. Accordingly, you agree that iBodyshop shall be entitled, in addition to any other remedies available to it, to seek in any court of competent jurisdiction any relief (whether equitable or otherwise) to prevent or restrain any such breach or infringement. iBodyshop does not represent that the Services and/or content within the Services is appropriate or available for use in all jurisdictions or countries. You are responsible for compliance with all applicable laws pertaining to your use and access to the Services in your jurisdiction.
This Agreement, including the Additional Terms below, is the entire agreement between you and iBodyshop and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. If any court of law, having jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. You cannot assign or transfer ownership of this Agreement to anyone without the written approval of iBodyshop. iBodyshop may assign or transfer it without your consent.
14. PERMITTED USAGE
This Service (SaaS) is intended for use by businesses where repairs to the bodywork of vehicles are carried out (Bodyshop). If you are not operating a genuine Bodyshop, you are not permitted to use the software and the Service, even though you may be willing to pay for it, unless explicitly authorized to do so, in writing.
B. ADDITIONAL TERMS AND CONDITIONS FOR THE SERVICES
Your use of the Services provided by iBodyshop are subject to the general Terms of Service above including these Additional Terms and Conditions which govern your use of the Services indicated below. To the extent of any conflict or inconsistency with the general Terms of Service above, these Additional Terms and Conditions shall prevail.
iBodyshop Service Supplemental Agreement and Terms of Service
Thank you for selecting iBodyshop (“iBodyshop Service”). This licence agreement in addition to the iBodyshop Terms of Service (the “Agreement”) is a legal agreement between the you as described in the registration process provided as part of the start-up process, and iBodyshop Pty. Ltd. and/or its subsidiaries and affiliates (“iBodyshop,” “we”, “our” or “us”).
By selecting “ACCEPT,” You indicate that you have read and understood, and assent to be bound by, the terms of this Agreement. If the person selecting “ACCEPT” is an individual working for you (“Agent”), such person is agreeing to the terms and conditions of this Agreement on behalf of you and represents and warrants to iBodyshop that he/she has full power and authority to enter into this Agreement on your behalf.
If you do not agree to the terms of the Agreement, you are not granted any rights whatsoever in the Services.
The iBodyshop Service is licenced on a monthly, quarterly, or yearly subscription basis, as selected by you or your Agent.
If you registered for a trial use of the iBodyshop Service (“Trial Period”), you must decide to purchase a license to the iBodyshop Service, at the current rate, within the Trial Period in order to retain any content that you have entered through the iBodyshop Services, created within the data files, posted or uploaded during the Trial Period. If you do not purchase a license to the iBodyshop Services by the end of the Trial Period, your content will no longer be available to you. Your use of the iBodyshop Service during the Trial Period is on an “as is” basis, meaning that, to the maximum extent permitted by law, use of the services and the Content is at your own risk.
From time to time, iBodyshop may, at its sole discretion, include new and/or updated beta features (“Beta Features”) in the iBodyshop Service for your use and which permit you to provide feedback (fees may apply). You understand and agree that your use of the Beta Features is voluntary and iBodyshop is not obligated to provide you with any Beta Features. You understand that once you use the Beta Features, you may be unable to revert back to the earlier non-beta version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Beta Feature back to the earlier non-beta version. The Beta Features are provided on an “as is” basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from any connected device. You acknowledge and agree that all use of the Beta Features is at your sole risk.
3. PERMITTED DISCLOSURES AND USE OF DATA
You acknowledge and agree that in order to provide you with access to and use of the iBodyshop Services, iBodyshop may provide your access information and account data to (i) your employee or agent who is identified in the registration data as the current system administrator for your account (the “Current Administrator”), and (ii) such other employee or agent who may be designated by you as a replacement administrator for the your account by following the procedures required by iBodyshop to effectuate such replacement. Any other person you identified as an authorized user of the iBodyshop Services will have access to the account data subject to the access permissions you or the system administrator assigned to them.
4. ACCESS TO YOUR FINANCIAL INSTITUTION SERVICES DATA
4.1. In connection with your use of the iBodyshop Service and as part of the functionality of certain versions of the iBodyshop Services, you may wish to have access to your online account(s) and financial information, including your account access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information used to access your financial institution(s) (collectively, your “FI Login Data”) and the data made available by your financial institutions(s) with such data, which may include bank balances, transaction activity, credit card charges, debits and deposits, and any messages or notices between you and the financial institution(s) (“FI Account Data”). The iBodyshop Services are designed to allow you to access and download your FI Account Data through the iBodyshop Services, to allow iBodyshop to access your financial institution account(s) using your FI Login Data, to allow iBodyshop to download and use your FI Account Data, and to allow iBodyshop to aggregate and combine your FI Account Data with other data. If you lose or forget your user name or password, it will be necessary for you to return to the appropriate financial institution if you have any problems with respect to that user name or password. You acknowledge and agree that except as set forth in this Agreement, iBodyshop has no control over your FI Login Data and no control over the access to your FI Account Data, does not guarantee that you will be able to use the iBodyshop Service with your financial institution(s), and will have no liability whatsoever for any actions or inactions on the part of the financial institution(s) resulting in your inability to use the iBodyshop Service to access your accounts, obtain data, download transactions, or otherwise use or access your FI Account Data.
4.2. Collection of FI Login Data and FI Account Data. By agreeing to these terms and conditions, you:
4.2.1 acknowledge that in accessing your financial institution account(s) through the iBodyshop Service, your FI Login Data and FI Account Data may be collected, converted, stored in encrypted form and used by iBodyshop in Australia or New Zealand for the purpose of providing the iBodyshop Service;
4.2.2 authorize iBodyshop to (i) collect and store in encrypted form your FI Login Data, (ii) access the financial institution(s)’ websites using your FI Login Data, from time to time; (iii) download and store your FI Account Data; (iv) reformat and manipulate your FI Account Data; (v) create and provide hypertext links to your financial institution(s) FI Account Data; (vi) enhance the type of data and services we can provide to you in the future, and (vii) take such other actions as are reasonably necessary to perform the actions described in this Agreement as it relates to your use of the iBodyshop Service;
4.2.3 hereby represent that the financial institution(s)’ account(s) and FI Login Data belong to you, you have the right to use the FI Login Data and FI Account Data as set out above and that you have the authority to appoint, and hereby expressly do appoint, iBodyshop as your agent with all necessary power and authority to use your FI Login Data and to access and retrieve your FI Account Data, as described above, on your behalf;
4.2.4 acknowledge that iBodyshop does not review your FI Account Data and agree that iBodyshop is not responsible for its completeness or accuracy;
4.2.5 acknowledge that any transactions or informational activities performed at any financial institution(s)’ website are not made through the iBodyshop Service and iBodyshop assumes no responsibility for any such transactions or activities; and
4.2.6 acknowledge that you are solely responsible for any charges, fees or costs associated with your financial institution account(s) when accessed through the iBodyshop Service by you or by iBodyshop.
4.3. You acknowledge that (i) some financial institution(s) may not permit iBodyshop or other third parties to have access to FI Login Data or to allow the iBodyshop Service to access your FI Account Data; (ii) financial institution(s) may make changes to their websites, with or without notice to you or iBodyshop, that may affect the overall performance of the iBodyshop Service and prevent or delay aggregation of data from such websites; and (iii) the iBodyshop Service refreshes your iBodyshop Service account data by collecting the FI Account Data automatically or manually (depending on your financial institution(s) or any changes by you that may require an update), so your most recent transactions may not always be reflected in the account balances or other account information presented to you by iBodyshop through the iBodyshop Services. If you see a discrepancy in your iBodyshop Service account data as compared to your FI Account Data, and in any case before making any transactions or decisions based on such account data presented in the iBodyshop Services, you should check the last refresh date for your financial institution account(s) and confirm the accuracy of the iBodyshop Service account data against your FI Account Data and manually update such data as necessary.
6. iBODYSHOP SERVICE USE, STORAGE AND ACCESS
iBodyshop shall have the right, in its sole discretion and with reasonable notice posted on the iBodyshop Service site and/or sent to you at the Current Administrator’s email address provided in the Registration Data, to revise, update, or otherwise modify the iBodyshop Service and establish or change limits concerning use of the iBodyshop Service, temporarily or permanently, including but not limited to (i) the amount of storage space you have on the iBodyshop Service at any time, and (ii) the number of times (and the maximum duration for which) you may access the iBodyshop Service in a given period of time. iBodyshop reserves the right to make any such changes effective immediately to maintain the security of the system or User Access Information or to comply with any laws or regulations, and to provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of the iBodyshop Service to which such changes relate. Your continued use of the iBodyshop Service will constitute your acceptance of and agreement to such changes. iBodyshop may, from time to time, perform maintenance upon the iBodyshop Service resulting in interrupted service, delays or errors in the iBodyshop Service. iBodyshop will attempt to provide prior notice of scheduled maintenance but cannot guarantee that such notice will be provided.
Upon cancellation you will have full access to the iBodyshop Services and your data and content but only through the end of the paid subscription term, as specified in the product or product program pages. Thereafter, access to your data and content will be governed as specified in clause 5 DATA. There are no refunds upon cancellation. Please follow product instructions to cancel your account.
8. SOCIAL MEDIA SITES
9. THIRD PARTY PRODUCTS AND SERVICES
iBodyshop may tell you about third party products or services, including via the Service. iBodyshop may offer products and services on behalf of third parties who are not affiliated with iBodyshop (“Third Party Products”) and/or provide access or links to third party websites (“Third Party Sites”). If you decide to use any Third Party Products or access any Third Party Sites, you are solely responsible for your selection, review of separate product terms, website terms and privacy policies. You agree iBodyshop will not be liable for any damages, claims or liabilities arising from the third parties, Third Party Products or Third Party Sites.
10. COUNTRY SPECIFIC TERMS
In the event of a conflict between the above Terms of Service and the Country Specific Terms below, the following Country Specific Terms shall apply if you are accessing or using the Services in New Zealand.
Affiliate Definition. An “Affiliate” means a Related Company as defined in section 2(3) of the Companies Act 1993 (read as if the expression “company” in that subsection included any body corporate of any jurisdiction).
New Zealand Consumer Guarantees Act 1993. The New Zealand Consumer Guarantees Act 1993 does not apply.
Contracts (Privity) Act 1982. For the purposes of the Contracts (Privity) Act 1982, iBodyshop’s affiliates and subsidiaries are third party beneficiaries and shall be entitled to enforce the terms of this Agreement against you but any changes may be made to this Agreement by iBodyshop without their consent.