Effective starting: 1 July 2019
These Terms of Service (“Terms”) describe your rights and responsibilities as a customer of Our Cat Herder. If you are being invited or added to an Our Cat Herder account set up by an Our Cat Herder customer, the User Notice governs your access and use of Our Cat Herder (and not these Terms).
These Terms are between you and Better Boards Australasia Pty Ltd the company that owns and operates the Our Cat Herder (“Our Cat Herder”, “Better Boards” “we” or “us”) application (“Application” or “Service”).
“You” means the entity you represent in accepting these Terms or, if that does not apply, you individually.
If you are accepting on behalf of your employer or another entity, you represent and warrant that:
(i) you have full legal authority to bind your employer or such entity to these Terms;
(ii) you have read and understand these Terms; and
(iii) you agree to these Terms on behalf of the party that you represent.
If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you.
PLEASE NOTE THAT IF YOU SIGN UP FOR OUR CAT HERDER USING THE NAME OF AN ORGANISATION OR OTHER ENTITY THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK OR TICK TO ACCEPT WILL BIND THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO THAT ENTITY.
These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access Our Cat Herder, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by clicking “I agree” (or similar button or checkbox) at the time you register for Our Cat Herder, create an Our Cat Herder account, or place an Order.
For Trial or Complimentary Access (“No-Charge Account”) to the Our Cat Herder Service, you also indicate your assent to these Terms by accessing or using the No-Charge Account.
What these Terms cover
1 Administration of Our Cat Herder
Our Cat Herder allows you to assign certain End Users the role of Administrators (“Admin” in the application), who will have have important rights and controls of your use of Our Cat Herder and End user Accounts. This may include creating, de-provisioning or modifying End User Accounts, and setting End User usage permissions; and managing access to, modifying or deletion of Your Data by End Users or others.
Without limiting Section 2.4 (Responsibility for End Users), which fully applies to Administrators, you are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of Our Cat Herder for you.
1.2. Reseller as Administrator.
1If you order Our Cat Herder through a Reseller, then you are responsible for determining whether the Reseller may serve as an Administrator and for any related rights or obligations in your applicable agreement with the Reseller. As between you and Our Cat Herder, you are solely responsible for any access by Reseller to your accounts or your other End User Accounts.
1.3. End User Consent.
1.4. Responsibility for End Users.
You are responsible for compliance with these Terms by all End Users, including for any payment obligations. Please note that you are responsible for the activities of all your End Users, including Orders they may place and how End Users use Your Data, even if those End Users are not from your organisation. We may display our User Notice to End Users at sign up, account creation, or in-product.
You must require that all End Users keep their user IDs and passwords for the Application strictly confidential and do not share such information with any unauthorised person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorised use of which you become aware.
1.6. Age Requirement for End Users.
The Application is not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all End Users are at least 18 years old.
2. Our Cat Herder Service Subscriptions Inclusions and Restrictions
2.1. Access to the Our Cat Herder Service.
Subject to these Terms and during the applicable Subscription Term, you may access and use the Our Cat Herder Service for your own business purposes or personal use, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.
During the Subscription Term, we will provide Support for the Our Cat Herder Service in accordance with the Support Policy and the applicable Order.
Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the Our Cat Herder Service; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Our Cat Herder Service to a third party; (c) use the Our Cat Herder Service for the benefit of any third party; (d) incorporate the Our Cat Herder Service into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Our Cat Herder Service intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Our Cat Herder Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in the Our Cat Herder Service; (h) use the Our Cat Herder Service for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Our Cat Herder Service; or (j) encourage or assist any third party to do any of the foregoing.
3 Our Cat Herder security and data privacy
We implement security procedures design to help protect Your Data from security attacks. For more information on this topic please see Security.
3.3. Improving Our Cat Herder.
3.4. Subpoenas. Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, subpoenas or court orders, but we will use commercially reasonable efforts to notify you where permitted to do so. Our Cat Herder strives to balance your privacy rights with other legal requirements.
4 Terms that apply to Your Data
4.1. Using Your Data to provide the Our Cat Herder Service to You.
You retain all right, title and interest in and to Your Data in the form submitted to the Our Cat Herder Service.
Subject to these Terms, and solely to the extent necessary to provide the Our Cat Herder Service to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in the Our Cat Herder Service constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts and End User Accounts in order to respond to your support requests.
4.2. Your Data Compliance Obligations.
You and your use of the Our Cat Herder Service (including use by your End Users) must comply at all times with these Terms, the Acceptable Use Policy and all Laws. You represent and warrant that:
(i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the Our Cat Herder Service and to grant the rights granted to us in these Terms and
(ii) Your Data and its submission and use as you authorise in these Terms will not violate
(1) any Laws,
(2) any third-party intellectual property, privacy, publicity or other rights, or
(3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Our Cat Herder Service.
4.3. No Personal Sensitive Data, Sensitive Information or Health Information (“Personal Sensitive Data”).
You will not submit to the Our Cat Herder Service (or use the Our Cat Herder Service to collect) any Personal Sensitive Data.
Personal Sensitive Data includes, but is not limited to, the following:
- personal data revealing racial or ethnic origin;
- patient, medical or other protected health information;
- genetic data, biometric data processed solely to identify a human being;
- criminal record (inc. ‘spent convictions’);
- electoral roll information;
- surveillance information;
- credit history of individuals;
- data concerning a person’s sex life or sexual orientation.
- credit, debit or other payment card data subject to PCI DSS
- Passports, social security numbers, driver’s license numbers or other government IDs or ID numbers
- Any data regulated by legislation including or similar to the Privacy Act (both in Australia or New Zealand) or European Union Regulation 2016/679, Article 9(1) or any successor legislation;
- Data regulated by HIPAA
- or any data similar to the aforementioned that is protected under foreign or domestic laws or regulations.
You also acknowledge that we are not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA). The Our Cat Herder Service is neither HIPAA nor PCI DSS compliant. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Data.
4.4. Your Indemnity.
You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable laywers’ fees and costs) resulting from any claim arising from or related to (i) your breach of Section 2.3 (End User Consent) or any claims or disputes brought by your End Users arising out of their use of the Our Cat Herder Service, (ii) your breach (or alleged breach) of Sections 5.2 (Your Data Compliance Obligations) or 5.3 (No Sensitive Data). This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.
4.5. Removals and Suspension.
We have no obligation to monitor any content uploaded to the Our Cat Herder Service.
Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, or in response to takedown requests that we receive, we may (1) remove Your Data from the Service or (2) suspend your access to the Service. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Service or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to the Our Cat Herder Service as described in this Section 4.5.
5 Billing, renewals, and payment.
5.1 Monthly and Annual Plans.
Except for No-Charge Accounts, the Our Cat Herder Service is offered either on a monthly subscription basis or an annual subscription basis.
Except as otherwise specified in your Order, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in the Our Cat Herder Application or contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Our Cat Herder Service continuing to be offered and will be charged at the then-current rates.
You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable.
If you elect to pay your fees via Electronic Funds Transfer or Bank Transfer you acknowledge that you are responsible for providing us with remittance advice to email@example.com and that failure to do so may result in a delay activating or providing you or your End Users with access to your account(s). You agree that Our Cat Herder will have no liability to you in respect to such a delay occurring due to your not providing remittance advice in a timely manner.
We will deliver the login instructions for the Our Cat Herder Service to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.
6 If you purchased through a Reseller.
If you make any purchases through an authorised partner or reseller of Our Cat Herder (“Reseller”): (a) Instead of paying us, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use the Our Cat Herder Service if we do not receive the corresponding payment from the Reseller. (b) Your order details (e.g., the number of End Users, the Subscription Term, etc.) will be as stated in the Order placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of any such Order as communicated to us. (c) If you are entitled to a refund under these Terms, then unless we otherwise specify, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you. (d) Resellers are not authorised to modify these Terms or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in these Terms.
7 No contingencies on other products of future functionality.
You acknowledge that the Our Cat Herder Service referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products. You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of the Our Cat Herder Service beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.
8 Evaluations, trials, and betas.
At our sole discretion, we may offer the Our Cat Herder Service to you at no charge, including free accounts and trial use as defined below (collectively, “No-Charge Products”).
Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in accordance with these Terms).
Except as otherwise set forth in this Section 8, the terms and conditions of these Terms governing the Our Cat Herder Service, including Section 2.3 (Restrictions), fully apply to No-Charge Products. We may modify or terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. All information regarding the characteristics, features or performance of any No-Charge Products constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE $100 AUD.
9 IP Rights in the Our Cat Herder Service and Feedback.
The Our Cat Herder Service is made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology. From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
10 Term and Termination.
These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.
10.2. Termination for Cause.
Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
10.3. Termination for Convenience.
You may choose to stop using the Our Cat Herder Service and terminate these Terms (including all Orders) at any time for any reason upon written notice to us, but, (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
10.4. Effects of Termination.
Upon any expiration or termination of these Terms, you must cease using the Our Cat Herder Service and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the export functionality of the Our Cat Herder Service during the applicable Subscription Term.
If we terminate these Terms in accordance with Section 10.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity), 6.3 (Payment), 9 (Evaluations, trials, and betas) (disclaimers and use restrictions only), 10 (IP Rights in the Our Cat Herder Service and Feedback), 11 (Term and Termination), 12.4 (Warranty Disclaimer), 13 (Limitations of Liability), 15 (Dispute Resolution) and 18 (General Provisions).
11 Warranties and Disclaimer.
11.1. Mutual Warranties.
Each party represents and warrants that it has the legal power and authority to enter into these Terms.
11.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Our Cat Herder Service (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).
11.3. Warranty Remedy.
We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Our Cat Herder Service for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorised modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 11.
11.4. Warranty Disclaimer. Except as expressly provided in this section 11, the Our Cat Herder service and support are provided “as is,” and we and our suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality or merchantability, whether express, implied or statutory. Without limiting our express obligations in these terms, we do not warrant that your use of the service will be uninterrupted or error-free, that we will review your data for accuracy or that we will preserve or maintain your data without loss. you understand that use of the Our Cat Herder service necessarily involves transmission of your data over networks that we do not own, operate or control, and we are not responsible for any of your data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third party service providers. We will not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside our reasonable control. You may have other statutory rights, but the duration of statutorily required warranties, if any, will be limited to the shortest period permitted by law.
12 Limitation of Liability.
12.1. Consequential Damages Waiver. Except for excluded claims (as defined below), neither party (nor its suppliers) will have any liability arising out of or related to these terms for any loss of use, lost or inaccurate data, lost profits, failure of security mechanisms, interruption of business, costs of delay, or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of the possibility of such damages in advance.
12.2. Liability Cap.
Except for excluded claims, each party’s and its suppliers’ aggregate liability to the other arising out of or related to these terms will not exceed the amount actually paid or payable by you to us under these terms in the twelve (12) months immediately preceding the claim.
12.3. Excluded Claims.
“Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in these Terms, and (3) your breach of Section 3.3 (Restrictions).
13 Publicity Rights.
We may identify you as an Our Cat Herder or Better Boards customer in our promotional materials. We will promptly stop doing so upon your request sent to firstname.lastname@example.org.
14 Dispute Resolution.
14.1. Informal Resolution.
In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognising their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 14.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 14.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
14.2. Governing Law; Jurisdiction.
These Terms will be governed by and construed in accordance with the applicable laws of the state of Victoria, Australia.
Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Victoria, Australia, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in State or Federal court in Victoria, Australia, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
14.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 14.1 (Informal Resolution) and 14.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
15 Changes to these Terms.
We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 17.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.
15.1. No-Charge Products.
You must accept the modifications to continue using the No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products.
15.2. Paid Subscriptions.
Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 5.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the Our Cat Herder Service for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.
15.3. Our Policies.
We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
16 Changes to the Our Cat Herder Service.
You acknowledge that the Our Cat Herder Service is an on-line, subscription-based products and that in order to provide improved customer experience we may make changes to the Service, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Our Cat Herder Service under existing Orders, we can discontinue the Our Cat Herder Service, or any portion or feature of the Service for any reason at any time without liability to you.
17 General Provisions.
Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it.
You will provide notice to us by post to Our Cat Herder c/o Better Boards Australasia Pty Ltd, PO Box 275, Romsey 3434 Victoria, Australia.Your notices to us will be deemed given upon receipt.
17.2. Force Majeure.
Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorised above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
17.4. Entire Agreement.
These Terms are the entire agreement between you and us relating to the Our Cat Herder Service and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Our Cat Herder Service or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
Where conflict may arise between these Terms, Our Policies and any additional copyright, terms, conditions and licensing notices then you must immediately notify us. It will be at our sole discretion as to how any conflicts between these Terms and Our Policies, additional copyright, terms, conditions and licensing notices shall be interpreted and applied.
17.6. Waivers; Modifications.
No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 17 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorised representative of each party.
As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
17.9. Independent Contractors.
The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
Certain capitalized terms are defined in this Section 18, and others are defined contextually in these Terms.
“Administrators” mean the personnel designated by you who administer the Our Cat Herder Service to End Users on your behalf.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
“Our Cat Herder” means our hosted or cloud-based solutions including any client software we provide as part of the Our Cat Herder Service.
“Documentation” means our standard published documentation for the Our Cat Herder Service, currently located at https://ourcatherder.helpdocs.io/.
“End User” means an individual you or an Affiliate permits or invites to use the Our Cat Herder Service. For the avoidance of doubt: (a) individuals invited by your End Users, (b) individuals under managed accounts, and (c) individuals interacting with a Our Cat Herder Service as your agent are also considered End Users.
“End User Account” means an account established by you or an End User to enable the End User to use or access the Our Cat Herder Service.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Our Cat Herder Service or Support.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
“Notification Email Address” means the email address(es) you used to register for an account with the Our Cat Herder Service. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.
“Order” means Our Cat Herder’s applicable online order page(s), flows, in-product screens or other Our Cat Herder approved ordering document or process describing the products and services you are ordering from us and, as applicable, their permitted scope of use. As applicable, the Order may identify: (i) the number of End Users, Subscription Term, domain(s) associated with your use of the Our Cat Herder Service, storage capacity or limits, or other scope of use parameters and (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Orders may also include No-Charge Products.
“Our Technology” means the Our Cat Herder Service (including all No-Charge Products), their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
“PCI DSS” means the Payment Card Industry Data Security Standards.
“Subscription Term” means your permitted subscription period for the Our Cat Herder Service, as set forth in the applicable Order.
“Support” means support for the Our Cat Herder Service, as further described in the Support Policy.
“Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to the Our Cat Herder Service. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Our Cat Herder Service.