1. This Agreement
1.1 Accepting this Agreement
(a) By using the Service, you agree to comply with and be bound by the terms and conditions of this Agreement. These terms govern your access to and use of the Service.
(b) By using the Service you consent to receive periodic email or other communications regarding the Services, relating to new product offers and services, promotions, how to use the Services, and other related matters.
(c) If you do not agree to these terms, you have no right to obtain information from or otherwise continue using the Service.
(d) These terms are binding on any use of the Service and apply from the time you first access the Service and continue until terminated in accordance with this Agreement.
(e) You must not use this Service if you are not able to form legally binding contracts or are under the age of 18.
(f) It is your obligation to ensure that you have read, understood and agree to the most recent terms available on the Website.
(g) We may amend this agreement by notifying you of the new terms and posting them on the Website. If you do not agree with the new terms, this agreement will terminate and you must cease using the Service.
(a) this Service is not suitable for your use, without medical supervision, if you are pregnant, breastfeeding, have an eating disorder or prone to developing an eating disorder, have a serious health condition or possess a physical disability;
(b) we do not guarantee the accuracy or completeness of the Proprietary Data contained in or delivered with the Service, therefore errors may arise in calculations and the results generated by the Service;
(c) there are limitations and variances associated with the scientific and computerized nutritional analysis;
(d) our use of third party data with the Service does not represent an endorsement of the accuracy or reliability of those data sources;
(e) our Service may from time to time contain bugs and errors which do not substantially interfere with its normal operations;
(f) all data and results from or generated by the Service should be expertly reviewed before relying on them in any important matter;
(g) nothing in our Service should be construed as medical advice; and
(h) using the Service is no substitute for obtaining medical advice.
1.3 Contacting us
Please email us at email@example.com if you have any questions relating to these terms and conditions.
Unless the terms and conditions of the Agreement explicitly state otherwise, expressions used in the Agreement have the following meanings:
Account means your account to use the Service.
Account Page means the section of the Service which allows you to view and modify the details of your Account, including your Subscription Type and payment method.
Agreement means this document and any additional policies available on the Website.
Intellectual Property Right means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, circuit layouts, computer software, Proprietary Data, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, academic, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
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.
Personal Information takes its meaning from the Privacy Act 1988 (Cth).
Privacy Law means:
(a) the Privacy Act 1988 (Cth); and
(b) any code registered under the Privacy Act or Australian Privacy Principles.
Proprietary Data means the food composition tables, nutritional data and other information provided with the Software and includes third-party data.
Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or related entity of that person or of a related body corporate of that person.
Service means the software accessible via https://connect.easydietdiary.com/, the Proprietary Data and Product Information.
Subscription Fee means the amount payable by you to us to access the Service for the Subscription Period, as set out on the Website at time of purchase.
Subscription Period means period of time you obtained the subscription for, whether or not a fee was paid for access to the Service.
Subscription Type means the plan selected by you as set out on your Account Page.
Support Website means the website located at https://easydietdiaryconnect.zendesk.com/hc/en-us.
You means a person or entity using the Service.
Us, we, our or Xyris means Xyris Software (Australia) Pty Ltd ACN 010 953 312.
Unforeseen Event means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, 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, a ransomware attack or other malicious code.
Website means the website located at https://connect.easydietdiary.com/.
3. Agreement length
3.1 Subscription Period
This Agreement will commence on the day you subscribe to the Service and will continue for the Subscription Period unless terminated earlier in accordance with clause 14.
3.2 Automatic renewal
If this Agreement is not terminated prior to the expiry of the then current Subscription Period, this Agreement will automatically renew for a period equal to the current Subscription Period.
4. Payment and Subscription Fee
(a) You must pay the Subscription Fee on the first day of each Subscription Period for the Subscription Type selected on your Account Page at that time.
(b) You are solely responsible for:
(i) selecting the Subscription Type when you initially subscribe to this Service; and
(ii) altering that Subscription Type on your Account Page prior to the end of the Subscription Period in order for the change to take effect at the end of the then current Subscription Period.
(c) We will collect payment from you, in accordance with this clause 4, via the payment method selected by you on your Account Page.
4.2 Changes to Subscription Fee
We may change the Subscription Fee from time to time and will communicate any changes to you in advance. Price changes for paid subscriptions will take effect at the start of the next Subscription Period following the date of the price change.
5.1 Service not locally available
You acknowledge and agree the Service will only be accessible using the Internet (or other connection to our servers) and will not be available "locally".
5.2 Parts of the Service controlled by third parties
You acknowledge and agree that the Service is operated from servers owned and controlled by a third party. As such, you acknowledge that certain functions are out of our control, including data storage and backup.
5.3 We can change the Service at our discretion
We reserve the right to upgrade, maintain, tune, backup, amend, add to or remove items from, redesign, improve or otherwise alter the Service at our sole and absolute discretion.
5.4 Data storage with third party
We may subcontract the storage of any data to a third party (or multiple third parties) without notification to or consent from you.
We provide support for the Service via the Support Website.
5.6 Unintentional inaccessibility
From time to time, without notice, access to all or part of the Service may be disrupted or limited. During such an interruption, we will use reasonable endeavours to restore access to the Service as soon as practicable.
5.7 Intentional inaccessibility
We reserve the right to make some or all of the Service inaccessible from time to time as is required for upgrades, maintenance and updates.
(a) You acknowledge and agree that there may be technical or administrative errors in the information provided via the Service.
(b) We reserve the right to do any of the following, at our absolute discretion, without notice:
(i) correct any errors in the Service; or
(ii) update the Service.
6. User Account
6.1 Accessing the Services
You acknowledge and agree that to receive the benefit of the Services, you may be required to:
(a) provide us with Personal Information; and
(b) create an Account with us.
6.2 Provision of information
You agree to provide any information reasonably requested by us for the purpose of setting up your Account and operating the Service. You warrant that:
(a) all of the information you provide to us is accurate and complete in all respects;
(b) you will inform us by updating your Account details whenever any such information changes; and
(c) you will not provide false or misleading information.
6.3 Declining your Account
We reserve the right to reject any new Account in our absolute discretion.
6.4 Right to suspend
We reserve the right to:
(a) limit or suspend your access to the Service; and
(b) alter the Account information entered by you via the Service,
if in our reasonable opinion:
(a) you are in breach of any of the obligations or undertakings in this Agreement;
(b) your Account is not used for a period of greater than 1 month; or
(c) we suspect a security breach associated with your Account.
6.5 Security responsibilities
(a) We will take reasonable steps to ensure the Service is secure from unauthorised access consistent with generally accepted industry standards.
(b) You must take all reasonable steps to ensure usernames and passwords are not disclosed to third parties.
(c) If you become aware the security of your Account may be compromised, you must immediately notify us.
7. Your use of the Service
7.1 Lawful use
You undertake not to upload, store, alter, configure or access any data on the Service if such use or access would result in a breach of:
(a) any Intellectual Property Right;
(b) any Privacy Law;
(c) the Spam Act 2003 (Cth);
(d) any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory); or
(e) any other law or applicable code in the jurisdiction in which you are operating.
7.2 Prohibited conduct
You must not:
(a) grant access to your Account to any other person;
(b) set up more than one account for any one person;
(c) use the Service for sending unsolicited commercial electronic messages;
(d) provide false or misleading information;
(e) in any way tamper with, hinder or modify the Service;
(f) knowingly transmit any viruses or other disabling features to the Service or via the Website;
(g) intentionally disable or circumvent any protection or disabling mechanism related to the Service;
(h) install or store any software applications, code or scripts on or through the Service;
(i) use the Service in any way which could be reasonably expected to interfere with or damage our' Service or another user's use of the Service; or
(j) attempt any of the above acts or facilitate or assist another person to do any of the above acts.
8. Submitted material
You must not submit or cause to be submitted to the Service, whether in text or graphic format, any content:
(a) which includes nudity, sex, pornography, or adult-oriented content;
(b) any confidential information of any third party without the express consent of the third party;
(c) which is illegal, unlawful, improper, harmful, threatening, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable;
(d) that infringes the Intellectual Property Right of a third party; or
(e) any other content deemed inappropriate by us in our sole discretion.
9.2 Your privacy obligations
You warrant you will:
(a) comply with all Privacy Laws (whether or not you are bound by the Privacy Act 1988 (Cth)); and
(b) not sell, license or transfer any Personal Information to any third party without the express consent of the individual to who the Personal Information relates.
10. Intellectual Property
10.1 Our intellectual property
(a) We warrant we own or have a licence to the Intellectual Property Rights in the Service.
(b) Nothing in this Agreement is intended to transfer our Intellectual Property Rights in the Service or Proprietary Data to you.
10.2 Your intellectual property
You grant us, a non-exclusive, royalty free, perpetual licence to use any material submitted by you to us via the Service for the purposes of operating the Service.
10.3 Undertakings regarding intellectual property
You warrant that you will not do any of the following, or permit any person over whom you have effective control to do so:
(a) copy or reproduce, or create an adaptation or translation of, all or part of the Service, including the Proprietary Data, in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Service in accordance with this Agreement;
(b) 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 Service on any medium; or
(c) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Service or any documentation associated with it.
Subject to any applicable Non-Excludable Condition, we make no warranties or guarantees:
(a) the Service is of acceptable quality and fitness for a particular purpose;
(b) Proprietary Data contained in or delivered via the Service is free of errors or omissions;
(c) the information delivered via the Service will be free from errors in calculations;
(d) your clients will have access to, or be granted a licence to, software necessary to submit information via the Service; or
(e) regarding your access to, or the results of, the Service including its correctness, accuracy, timeliness, completeness, reliability or otherwise.
12. Limitation of liability
You acknowledge and agree, you are acquiring the Software under this Agreement for commercial purposes and not for domestic, personal or household use.
12.1 Implied conditions
We exclude all implied guarantees, conditions and warranties from this Agreement except any Non-Excludable Condition.
12.2 Limitation of liability
To the maximum extent permitted by law, we exclude all liability for any consequential loss, negligence or other losses suffered or incurred directly or indirectly, including in connection with:
(a) the Service being inaccessible for any reason;
(b) incorrect or corrupt data, lost data, or any inputs or outputs of the Service;
(c) computer virus, trojan and other malware in connection with the Service;
(d) security vulnerabilities in the Service or any breach of security that results in unauthorised access to, or corruption of data;
(e) any unauthorised activity in relation to the Service;
(f) your breach of this Agreement; or
(g) any act or omission by you under or in relation to this Agreement.
12.3 Limitation of liability
Where a Non-Excludable Condition is deemed to apply, to the fullest extent possible under the law, we limit our liability for any breach to:
(a) in the case of goods:
(i) the re-supply of the goods or payment of the cost of the re-supply of the goods; or
(ii) the replacement or repair of the goods or payment of the cost of replacement or repair of the goods;
(b) in the case of services:
(i) the resupply of the services; or
(ii) the payment of the cost of having the services resupplied.
You indemnify us and our Representatives, on a full indemnity basis, for all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly in connection with this Agreement or your use of the Service, including any costs arising from:
(a) your breach of this Agreement;
(b) your failure to obtain medical advice about you or your client’s health;
(c) your failure to include correct information on your Account;
(d) your infringement of any third party Intellectual Property Rights while using the Service; or
(e) your breach of any Privacy Law or the Spam Act 2003 (Cth).
14.1 Termination by us
We may end this Agreement immediately if:
(a) in our reasonable opinion you are in breach of this Agreement;
(b) we cease to provide the Service; or
(c) for any other reason by notifying you 28 days in advance.
14.2 Termination by you
You may terminate this agreement immediately by cancelling your Account.
14.3 Actions upon termination
(a) you must immediately stop using the Service;
(b) we reserve the right to permanently erase any data associated with your Account; and
(c) you will no longer have access to your Account.
15. General and interpretation
We may assign, encumber, declare a trust over or otherwise create an interest in our rights under this document without your consent, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.
15.2 Governing law
The laws of Queensland, Australia govern this Agreement. The parties submit to the non exclusive jurisdiction of courts exercising jurisdiction there.
15.3 Operation of this document
(a) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
(b) Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.
(c) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.
Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties.
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.
15.6 Unforeseen Event
If a party is affected by an Unforeseen Event, they must immediately notify the other party of the circumstances. The parties' obligations under this Agreement are suspended for the duration of and to the extent they are affected by the Unforeseen Event. However, either party may end this Agreement if the Unforeseen Event continues for more than 30 days.
Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows:
(a) a reference to a party includes that party's permitted assigns, administrators, successors, executors, legal representatives and any novated party;
(b) any reference to a trustee includes any substituted or additional trustee;
(c) unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
(d) "including", "includes" or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
(e) where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
(f) headings are for convenience and will not affect interpretation;
(g) words in the singular will be taken to include the plural and also the opposite;
(h) "$" means the Australian dollar;
(i) a reference to a document will be to that document as updated, varied or amended;
(j) a document referenced by the Agreement will not take precedence over the referencing document;
(k) when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;
(l) any referenced digital resource may be replaced with another digital resource that is a "copy" of the original resource;
(m) a reference to a party's conduct includes omissions as well as acts; and
(n) if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute.
Xyris Software (Australia) Pty Ltd
ACN 010 953 312
Published July 2019