Software Terms and Conditions

These terms and conditions (Terms) govern your access to and use of the Tellisto platform and services. They form a contract between you and Tellisto (Rohan Hinton trading as Tellisto, ABN 53 050 194 779) (Tellisto, we, us or our). Please read them carefully.

Tellisto provides software for professional photographers and videographers in Australia and New Zealand including:

1. a business platform for managing leads, bookings, quotes and invoices;
2. hosting and delivery of client galleries;
3. a set of client-facing tools;
4. a website builder; and
5. a consumer photo and video storage product (the Client Vault).

You accept these Terms when you register for, or use, the Service. If you are accepting on behalf of a business, you confirm you are authorised to bind it.

1. 1.1

   Your agreement with us is made up of these Terms, our Acceptable Use Policy, our Privacy Policy, and the plan and pricing details shown to you when you subscribe. Together these are the Agreement. If there is any inconsistency, these Terms prevail, then the Acceptable Use Policy, then the Privacy Policy, then the plan details, unless a document says otherwise.

2. 1.2

   The Client Vault is a separate product with its own terms, which apply between us and the consumer who buys it. Nothing in these Terms affects those Client Vault terms, and where your Client buys a Client Vault keepsake, that is a separate contract between them and us.

3. 1.3

   These Terms are for photographers who use the Service for their business. They are not the terms on which your Clients deal with you - that relationship is yours, as explained in clause 11.

1. 2.1

   In these Terms:

   Acceptable Use Policy means our acceptable use policy, which sets out the same Content Standard as clause 7 and applies to your use of the Service.

   ACL means the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth).

   Client means a client, lead or other person of yours who interacts with the Service through you, including anyone who views a Gallery, submits a form, signs a document, pays an invoice, or buys from your in-gallery store.

   Client Data means the personal information about your Clients, leads, Gallery viewers and Depicted Persons that you enter into, upload to, or collect through the Service.

   Client Vault means the Tellisto consumer photo and video storage service, provided under its own terms.

   Content means anything you upload, store, create, deliver or make available through the Service, including photographs, videos, website content, quotes, questionnaires, messages and listings.

   Content Standard means the standard set out in clause 7.

   Depicted Person means a person shown in a photograph or video uploaded to the Service.

   Fees means the subscription and other fees for the Service, as shown to you when you subscribe.

   Free Plan and Pro Plan mean our free subscription tier and our paid subscription tier respectively.

   Gallery means a private online gallery through which you deliver photographs and videos to your Clients.

   Intellectual Property means all intellectual property rights, including copyright, trade marks, designs, patents, and rights in confidential information and know-how.

   Privacy Policy means our privacy policy, available at https://app.tellisto.co/privacy, as updated from time to time.

   Service means the Tellisto platform and all features and services we make available to you, other than the Client Vault.

   Stripe means Stripe Payments Australia Pty Ltd and its related bodies corporate.

   Stripe Connect means the Stripe Connect service, through which card payments from your Clients are processed on your own Stripe account and settle directly to you.

   you or your means the photographer or business that registers for or uses the Service.

2. 2.2

   In these Terms, unless the context requires otherwise:

   1. the singular includes the plural and the reverse;
   2. a reference to a document is to that document as amended or replaced;
   3. a reference to legislation includes any amendment to or replacement of it, and any subordinate legislation;
   4. including and similar words are not words of limitation;
   5. headings are for convenience only;
   6. A$ and dollars mean Australian dollars;
   7. personal information has the meaning given in the Privacy Act 1988 (Cth) and, in New Zealand, the Privacy Act 2020 (NZ); and
   8. a reference to a clause is to a clause of these Terms;
   9. a reference to photography includes videography, a reference to a photographer includes a videographer, and a reference to a photograph includes a video.

1. 3.1

   To use the Service you must register an account, be at least 18 years old, and use the Service for your business. You must give accurate account information and keep it up to date.

2. 3.2

   You are responsible for your account and for all activity under it. You must keep your login credentials secure, and tell us promptly if you suspect any unauthorised use. We may require multi-factor authentication or other reasonable security measures.

3. 3.3

   The Service is offered on a Free Plan and a Pro Plan. The features of each plan, and any usage limits, are as described to you when you subscribe and may be updated in line with clause 24.

4. 3.4

   The Service is offered only to persons carrying on a photography or videography business in Australia or New Zealand. By registering for or using the Service, you confirm that you carry on such a business.

1. 4.1

   The Free Plan is provided at no charge. The Pro Plan is charged at the Fees and on the billing cycle shown to you when you subscribe. We bill the Pro Plan through Stripe, and you authorise us (through Stripe) to charge your payment method for the Fees when they fall due.

2. 4.2

   Automatic renewal. Your Pro Plan renews automatically at the end of each billing cycle for a further cycle of the same length, and we charge the payment method on file, until you cancel. We do this so that your Service, your Galleries and your website do not lapse by accident. You can cancel at any time before a renewal, in the Service or by emailing us at [email protected], and clause 5 explains what happens when you do. If you are billed annually, we also send a reminder to your email address at least 14 days before each renewal, telling you the renewal date, the amount we will charge and how to cancel.

3. 4.3

   Unless stated otherwise, Fees are exclusive of GST. Where GST applies to a supply we make to you, you must pay the GST in addition to the Fee, and we will give you a tax invoice.

4. 4.4

   We may change the Fees or introduce new charges, giving you reasonable notice before the change takes effect. A change to recurring Fees takes effect from your next billing cycle after the notice. If you do not accept a Fee change, you may cancel before it takes effect.

5. 4.5

   If we have offered you founding-member or grandfathered pricing, we will honour it while you keep a continuous paid subscription on the applicable plan. Founding-member pricing may end if you cancel, downgrade, or materially change your plan. We may change it where we reasonably need to, on reasonable notice, and you may cancel before the change takes effect.

6. 4.6

   We may offer promotional, introductory or discounted pricing from time to time. The conditions of each offer are as stated in the offer and form part of the Agreement.

7. 4.7

   Except where the law requires otherwise or these Terms say otherwise, Fees already paid are non-refundable.

1. 5.1

   You can upgrade at any time; the upgrade takes effect promptly and we adjust your billing accordingly. You can downgrade or cancel at any time, effective at the end of your current billing cycle.

2. 5.2

   Downgrading or cancelling may reduce or remove access to features, storage and your hosted website. Where a downgrade takes you below the storage or feature limits of the lower plan, we will tell you and give you a reasonable opportunity to export or reduce your Content before any change to access.

3. 5.3

   After cancellation, we retain your account data and Galleries for a reasonable period to allow export, and then delete or de-identify them in accordance with our Privacy Policy, subject to any legal hold. You are responsible for exporting anything you want to keep before the end of that period.

4. 5.4

   Cancellation of your account does not affect any Client Vault keepsake your Clients have bought. Those keepsakes are separate contracts with us and continue independently of your account.

1. 6.1

   As between you and us, you own your Content. We do not claim ownership of it.

2. 6.2

   You grant us a non-exclusive, worldwide, royalty-free licence to host, store, copy, process, adapt (for technical purposes such as resizing and format conversion), transmit and display your Content, to the extent needed to provide and support the Service, to operate features you use (such as Galleries, the website builder and the client tools), and to meet our legal and safety obligations. This licence ends when your Content is deleted, except for copies we must retain by law or under a legal hold, and except to the extent your Content has been shared with or stored by others through features you used.

3. 6.3

   You are responsible for your Content and for backing up anything important to you. We are not your sole record of your Content.

1. 7.1

   This clause sets out the Content Standard that applies to all Content and to your use of the Service. The same standard is set out in our Acceptable Use Policy. You must comply with it, and you are responsible for your Clients and anyone acting for you complying with it.

2. 7.2

   Prohibited content

   You must not upload, store, deliver, sell, distribute or otherwise use the Service in connection with any of the following:

   1. child sexual abuse material, and any sexualised depiction of a minor or of any person who appears to be a minor;
   2. intimate or sexual images of a person created or shared without that person’s consent (non-consensual intimate imagery);
   3. content that depicts or promotes extreme violence, gore, cruelty, or abuse of people or animals;
   4. terrorist or violent extremist content;
   5. content that infringes another person’s Intellectual Property or other rights;
   6. content that harasses, bullies, threatens or defames another person;
   7. spam, or malicious code, malware, or anything designed to disrupt or gain unauthorised access to any system.
3. 7.3

   Adult content

   The Service is for professional photography and videography, and not for adult entertainment. The following distinctions apply to adult and sensitive content:

   1. Legitimate professional photography that is sensual or includes nudity is permitted, including boudoir, fine-art and artistic nude, glamour, lifestyle and cosplay photography (including suggestive or “sexy” content), provided every person depicted is a consenting adult.
   2. Ordinary professional photography of children is permitted, including newborn, maternity, family and child portraiture. What is prohibited is the sexualisation of a minor, not the depiction of a minor.
   3. Pornographic and sexually explicit material is prohibited. This means content that depicts actual or simulated sexual activity, or whose primary purpose is sexual arousal, and any use of the Service to store, deliver, sell or distribute adult-entertainment content. The line is explicit sexual activity and pornographic purpose - not nudity or sensuality.

   The prohibition on any sexualisation of a minor applies absolutely and without exception, regardless of anything else in this clause.

4. 7.4

   You must also comply with all laws that apply to you, your Content and your use of the Service.

1. 8.1

   You warrant that, for all of your Content:

   1. you own it or hold all rights and licences needed to use it and to grant us the licence in clause 6;
   2. you hold all consents, model releases and permissions needed from each Depicted Person, including, for any minor, the consent of a parent or guardian;
   3. it complies with the Content Standard and with all applicable laws; and
   4. its use through the Service does not infringe any person’s rights or breach any law.
2. 8.2

   You indemnify us against all loss, damage, liability, costs and expenses (including reasonable legal costs) that we suffer or incur arising out of or in connection with:

   1. your Content;
   2. your breach of the Content Standard, these Terms or any law;
   3. your dealings with your Clients; and
   4. any claim by a Client or third party relating to any of those things.
3. 8.3

   This indemnity is reduced to the extent our own negligence or breach caused the loss, and does not apply to liability we cannot lawfully shift to you.

1. 9.1

   We scan Content uploaded to the Service, including by matching it against databases of known abuse imagery. Only a mathematical hash of an image is used for that matching - never the image itself. For a video, we sample frames from it and match a hash of each sampled frame in the same way, and only the hash is ever used, never the video itself.

2. 9.2

   We may also review, monitor and moderate Content, both automatically and manually, where we reasonably consider it necessary for safety, security or legal compliance, or to handle a report. We do not, however, undertake to monitor, review or pre-screen all Content, we do not guarantee that we will identify all prohibited Content, and our reviewing or moderating Content does not make us responsible for it or reduce your responsibility for it under these Terms.

3. 9.3

   We may, at our discretion where we reasonably consider it necessary, quarantine, restrict access to, remove or delete any Content; restrict, throttle or disable features; and suspend or limit your account. We will usually give you notice, but we may act without notice where required to comply with the law, to protect any person’s safety, or to address a serious or urgent risk.

4. 9.4

   We may preserve Content and records where we reasonably consider it necessary, including for a safety matter, a legal hold, a dispute, or a request from a court, regulator or law enforcement agency, even where they would otherwise be deleted.

5. 9.5

   We may disclose Content and information to, and refer matters to, law enforcement agencies, regulators and other authorities where we are required or permitted to, or to protect any person’s safety. Where we identify apparent unlawful content, we may report it to the appropriate authorities. We comply with our obligations under applicable laws, including online safety and criminal laws.

6. 9.6

   Anyone can report Content to us, whether or not they hold an account, using the reporting facility in the Gallery or at [email protected]. We handle reports through a graduated enforcement process that may range from a warning, through feature restriction, content removal and suspension, to termination, depending on the seriousness of the matter and any history.

1. 10.1

   We respect Intellectual Property rights and require you to as well. Your Content must not infringe anyone’s rights (clause 7).

2. 10.2

   If you believe Content on the Service infringes your copyright or other rights, you can send us a notice at [email protected] setting out your contact details, the material concerned and where it is, the right you say is infringed, and a statement that your complaint is made in good faith. On receiving a notice we reasonably consider valid, we may remove or disable access to the Content and tell the person who uploaded it, who may respond to us.

3. 10.3

   We may remove Content and suspend or terminate the accounts of people who repeatedly infringe others’ rights.

4. 10.4

   The Service is a hosting service and does not have the benefit of any statutory “safe harbour” under the Copyright Act 1968 (Cth). These Terms and our takedown process do not depend on any safe harbour. You remain responsible for your Content, and your indemnity in clause 8.2 covers claims that your Content infringes another person’s rights.

1. 11.1

   The Service includes tools that let you create commercial and legal relationships with your Clients, including online quotes, public booking and waitlist pages, questionnaires, a contract e-signing feature, and an in-gallery store. We provide these tools only. We do not give legal advice, and we are not a party to any quote, booking, questionnaire, contract or order between you and your Client. You are responsible for the content, accuracy, legality and enforceability of your own quotes, forms, agreements and listings, and for your dealings with your Clients.

2. 11.2

   You must not represent that we are a party to, or responsible to your Clients for, your dealings with them. Where relevant, you must make clear to your Clients (including in your own terms with them) that their agreement for the shoot, and for any products and services, is with you and not with us, and your own terms with your Clients must not be inconsistent with these Terms. Your indemnity in clause 8.2 covers claims by your Clients.

3. 11.3

   You author your quotes, booking and waitlist pages and questionnaires, and you are responsible for them and for handling the information you collect through them (see clause 16).

4. 11.4

   The contract e-signing feature lets you send an agreement you have authored for your Client to sign electronically. We keep signing evidence - the signer’s typed signature and consent confirmation, and the IP address and browser user-agent at the moment of signing - and the signed document. Electronic signatures can be legally effective under the Electronic Transactions Act 1999 (Cth) and equivalent State and Territory legislation in Australia, and under Part 4 of the Contract and Commercial Law Act 2017 (NZ), where the applicable requirements are met. Whether a particular agreement is validly formed and enforceable depends on its content and the circumstances, which are your responsibility. Some documents cannot be validly signed by electronic means under these laws (for example, wills, statutory declarations and certain statutory notices), and it is your responsibility to check that electronic signing is available and appropriate for your agreement. We provide the signing tool and the evidence record, not advice on validity.

5. 11.5

   Through the in-gallery store, your Clients can buy prints and digital downloads from you, using any discount codes you create, with GST calculated on each order and shipping details collected for physical goods. You are the seller of record for these orders. You are responsible for fulfilment, delivery, returns and refunds, and for meeting the consumer guarantees and other legal obligations that apply to what you sell. We provide the storefront only. Payment is handled as described in clause 12.

1. 12.1

   We are not a party to payments between you and your Clients. When your Client pays you, whether for an invoice or a store order, the payment is made to you, not to us. We generate the invoice or payment link; the money is paid directly to you. We take no part of, and never hold, those funds.

2. 12.2

   We provide software that lets you invoice your Clients and be paid. We do not provide any banking, payment, money-transfer, money-remittance or other financial service to you or your Clients, we are not a payment intermediary, and we do not hold, receive or deal with your Clients’ funds. Payments are made directly between you and your Clients.

3. 12.3

   Card payments from your Clients are processed on your own Stripe account through Stripe Connect and settle directly to you. Your Clients may also pay you by bank transfer or PayID. Your Stripe Connect account is a matter between you and Stripe and is subject to Stripe’s terms. You are responsible for it, including identity verification, compliance, chargebacks, refunds and any fees Stripe charges.

4. 12.4

   You are responsible for issuing correct invoices and receipts to your Clients, for charging and remitting any GST or other taxes on your sales, and for meeting your obligations to your Clients.

1. 13.1

   You can send email and other messages to your Clients through the Service, and on the Pro Plan you can send from your own domain. You author and authorise those messages, and you are the sender of them.

2. 13.2

   You are responsible for complying with the Spam Act 2003 (Cth) and the Unsolicited Electronic Messages Act 2007 (NZ), and equivalent laws, for messages you send through the Service. This includes holding the necessary consent from your recipients, correctly identifying yourself as the sender, and including a functional unsubscribe facility. You warrant that you hold that consent. We transmit your messages on your behalf and are not responsible for their content.

3. 13.3

   We may send you service and account messages, and (with your consent) marketing, as described in our Privacy Policy.

1. 14.1

   The website builder lets you publish a marketing website that we host. On the Free Plan, your site is published on a subdomain of our neutral gallery domain (for example, your-studio.picport.co). On the Pro Plan, you can publish it on your own custom domain.

2. 14.2

   Your website content is your Content and is subject to the Content Standard and these Terms.

3. 14.3

   A custom domain belongs to you. Registering and renewing it, and configuring its DNS, are your responsibility. We are not responsible for your domain registration or for any loss of, or problem with, your domain.

4. 14.4

   If you downgrade to the Free Plan or cancel, your custom-domain site will come down or revert to a subdomain site, and clause 5 applies.

1. 15.1

   We may offer a limited application programming interface (API), for example a Lightroom plugin, that authenticates using access tokens you create.

2. 15.2

   Your access tokens are credentials. You must keep them secret and secure, and you are responsible for everything done using them. We may expire or revoke tokens at any time, including for security reasons.

1. 16.1

   These Terms include the data-protection terms in this clause. We do not enter a separate data-processing agreement.

2. 16.2

   For the personal information in your Client Data, you decide the purposes for which it is used and you are responsible for it, and we hold and process it on your behalf as part of providing the Service. For your own account, business and billing information, and for things we do across the platform (such as security, fraud prevention and legal compliance), we decide the purposes for which it is used and are responsible for it. This is consistent with our Privacy Policy.

3. 16.3

   Nothing in these Terms displaces either party’s obligations under the Privacy Act 1988 (Cth) or the Privacy Act 2020 (NZ).

4. 16.4

   You are responsible for having the right to provide the Client Data to us, for giving the notices and obtaining the consents required for us to process it as described (including under the Privacy Act 1988 (Cth) and the Privacy Act 2020 (NZ)), and for the accuracy of the Client Data.

5. 16.5

   We process the personal information in your Client Data to provide the Service, in accordance with these Terms, your reasonable documented instructions, and our Privacy Policy. We keep it confidential, apply reasonable security, and use the sub-processors listed in our Privacy Policy. We give you reasonable assistance, taking into account the information available to us, to respond to requests from individuals (such as access, correction or deletion) and to meet your own security and data-breach obligations.

6. 16.6

   If a data breach affects personal information we hold on your behalf, we will notify you as soon as practicable, and in any event within 48 hours of becoming aware of it, and we will provide reasonable assistance to help you meet your own notification obligations. If a data breach affects information for which we are responsible, we will handle the required notifications. This allocation of responsibility follows the roles set out in clause 16.2. Our own notifiable-breach obligations are described in our Privacy Policy.

7. 16.7

   On termination, we return or delete the Client Data as described in clause 5 and our Privacy Policy, subject to any legal hold.

1. 17.1

   From time to time, we may operate a referral or ambassador program under which people who refer new photographers to us can earn a revenue share. Participation is subject to our prior written approval and to any conditions we impose.

2. 17.2

   We may change or end a program, or the revenue-share rates, on reasonable notice. If you earn any amount under this clause, you are responsible for any tax on it. Participating does not make you our employee, agent or partner.

3. 17.3

   You may also earn a revenue share under other programs we operate from time to time, including where a Client of yours buys a Client Vault keepsake. The eligibility, rate and conditions of each program are as set out in that program’s conditions, which form part of the Agreement.

4. 17.4

   If you are on the Pro Plan and a Client of yours buys a Client Vault keepsake, your Client Vault revenue share is 50% of the amount charged for it, net of payment-processing costs. This share is available on the Pro Plan only.

5. 17.5

   Amounts you earn become payable after a hold period of 30 days. If a charge that generated an amount is later refunded or charged back, we reduce your accrued earnings, or claw back an amount already credited, to reflect it.

6. 17.6

   Amounts you earn are credited to your account and, unless you ask us otherwise, applied against your upcoming Fees. You can ask us to pay out your available balance instead. Payouts are made through our payment provider and are net of that provider’s transfer costs; applying your balance against your Fees as a credit carries no such cost, which is why it is the default.

1. 18.1

   We and our licensors own the platform, the software, and all Intellectual Property in the Service, other than your Content. We grant you a non-exclusive, non-transferable, revocable licence to use the Service during your subscription, for your business, in accordance with these Terms.

2. 18.2

   You must not copy, modify, adapt, reverse-engineer, resell, sublicense or create derivative works from the Service, or attempt to gain unauthorised access to it, except to the extent the law says we cannot prevent you.

3. 18.3

   If you give us feedback or suggestions, we may use them without any obligation or payment to you.

1. 19.1

   We work to keep the Service available and reliable, but, subject to clause 20, we do not guarantee it will be uninterrupted, timely, secure or error-free. We may carry out maintenance and will try to minimise disruption.

2. 19.2

   We may add, change, or remove features, or change how the Service works. Where a change is material and adverse to you, we will give you reasonable notice where practicable.

1. 20.1

   To the maximum extent permitted by law, and subject to clause 20.2, the Service is provided on an “as is” and “as available” basis, and we exclude all warranties, conditions, guarantees and representations not expressly set out in these Terms.

2. 20.2

   Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy you have under a law that cannot be excluded, including the ACL and, in New Zealand, the Consumer Guarantees Act 1993 (NZ) and the Fair Trading Act 1986 (NZ). If a term of these Terms is inconsistent with such a law, that law prevails to the extent of the inconsistency.

3. 20.3

   This clause applies only if you acquire the Service in trade in New Zealand. Because these Terms are in writing, we supply the Service in trade, you acquire it in trade, and each of us is in trade, we agree as follows. To the extent permitted by section 43 of the Consumer Guarantees Act 1993 (NZ), that Act does not apply to our supply of the Service to you. To the extent permitted by sections 5C and 5D of the Fair Trading Act 1986 (NZ), sections 9, 12A and 13 of that Act do not apply to that supply. Each of us acknowledges that it is fair and reasonable to be bound by this clause.

4. 20.4

   Clause 20.3 does not apply if you do not acquire the Service in trade, and it does not affect the Commerce Commission’s ability to take action under the Fair Trading Act 1986 (NZ).

1. 21.1

   Nothing in these Terms excludes or limits any liability that cannot be excluded or limited by law, including under the consumer guarantees referred to in clause 20.2, or for fraud or for death or personal injury caused by our negligence. The rest of this clause is subject to this.

2. 21.2

   Where the ACL applies to our supply and section 64A of the ACL permits us to limit our liability for failure to comply with a guarantee (because the Service is not of a kind ordinarily acquired for personal, domestic or household use), our liability for that failure is limited, at our option, to re-supplying the Service or paying the cost of having it re-supplied. In New Zealand, our position is dealt with by clause 20.2 and clause 20.3 rather than by this clause.

3. 21.3

   Subject to clause 21.1, and to the maximum extent permitted by law, we are not liable for any loss of profits, revenue, business, goodwill or anticipated savings, for any loss or corruption of data (except to the extent caused by our failure to take reasonable care), or for any indirect or consequential loss, however arising.

4. 21.4

   Subject to clause 21.1, and to the maximum extent permitted by law, our total aggregate liability in connection with these Terms and the Service (whether in contract, tort including negligence, under statute or otherwise) is limited to the greater of the Fees you paid us for the Service in the 12 months before the event giving rise to the liability, and A$100.

1. 22.1

   These Terms apply from when you first accept them or use the Service, and continue until your subscription ends.

2. 22.2

   You may cancel as described in clause 5. We may suspend or terminate your account or these Terms if you materially breach them (including the Content Standard) and, where the breach can be remedied, you do not remedy it within a reasonable period after we ask you to; or if you do not pay Fees when due and do not pay within a reasonable period after we remind you. We may also act as described in clause 9. We may suspend or terminate immediately where we are required to by law, where it is necessary to protect any person’s safety, or where the breach is serious and cannot be remedied.

3. 22.3

   On termination:

   1. your right to use the Service ends;
   2. we handle your data and stored Galleries as described in clause 5 and our Privacy Policy; and
   3. any amounts owing become payable.
4. 22.4

   Any Client Vault keepsakes your Clients have bought continue independently as separate contracts with us.

5. 22.5

   Clauses that by their nature should survive termination do so, including the clauses on your warranties and indemnity, liability, our Intellectual Property, confidentiality, data protection, and general terms.

1. 23.1

   Each of us may receive confidential information of the other. Each of us will keep the other’s confidential information confidential, use it only for the purposes of the Agreement, and protect it with reasonable care. These obligations do not apply to information that is or becomes public other than through a breach of these Terms, that the receiver already knew free of any obligation of confidence, that the receiver independently develops without using the other’s confidential information, or that the receiver lawfully obtains from a third party who is free to disclose it.

2. 23.2

   Confidential information includes the terms of the Agreement and each party’s non-public business, technical, financial, product and customer information, whether or not marked as confidential, that a reasonable person would understand to be confidential given its nature or the circumstances of its disclosure.

3. 23.3

   Each of us may disclose the other’s confidential information to our personnel, professional advisers and contractors who need it for the purposes of the Agreement, provided they are bound by obligations of confidentiality no less protective than those in this clause, and each of us remains responsible for their compliance with this clause.

4. 23.4

   If a party is required by law, or by a court or regulator, to disclose the other’s confidential information, it may do so, but will, where lawful and practicable, give the other prior notice and reasonable assistance so that the other may seek a protective order or other relief, and will disclose only that part of the information it is legally required to disclose.

5. 23.5

   On the other party’s request, or on termination of the Agreement, each of us will return or destroy the other’s confidential information in its possession or control, except for copies required to be kept by law or held in routine backups made in the ordinary course of business, which remain subject to this clause for so long as they are retained.

6. 23.6

   Nothing in this clause transfers ownership of, or grants any licence or other right in, a party’s confidential information, except as expressly set out in the Agreement.

7. 23.7

   Each of us acknowledges that damages may not be an adequate remedy for a breach of this clause, and that the other party may seek injunctive or other equitable relief in addition to any other remedy available at law.

8. 23.8

   The obligations in this clause continue despite the expiry or termination of the Agreement and, for any information that is a trade secret, for so long as the information remains a trade secret.

1. 24.1

   We may change these Terms where it is reasonably necessary to do so to reflect a change in the Service or its features, in our third-party providers, or in the law, or to protect the security or proper operation of the Service. We may also update our Acceptable Use Policy and our plan details from time to time on reasonable notice. We will give you reasonable prior notice, by email or in the Service, of any change to these Terms that is more than minor or administrative, before it takes effect.

2. 24.2

   If you keep using the Service after a change takes effect, you accept it. If a change to these Terms materially and adversely affects you and you do not accept it, you may cancel before the change takes effect; despite clause 4.7, we will refund a proportionate part of any Fees you have paid in advance for the period after your cancellation, and clause 5 applies.

1. 25.1

   These Terms are governed by the laws of New South Wales, Australia, and you and we submit to the non-exclusive jurisdiction of the courts of New South Wales. If you are in New Zealand, nothing in these Terms prevents you from bringing proceedings in New Zealand, or affects your rights under New Zealand law that cannot be excluded, and those laws apply to you to the extent they must.

2. 25.2

   Before starting court proceedings (except for urgent or injunctive relief), each of us will try in good faith to resolve any dispute by discussion.

3. 25.3

   We may transfer our rights and obligations under these Terms to another entity, including on a sale or restructure of our business (such as the transfer of the business to Tellisto Pty Ltd), on notice to you. You may not transfer your rights or obligations without our consent. We may use subcontractors and sub-processors to help provide the Service.

4. 25.4

   Neither of us is liable for failure or delay caused by events beyond our reasonable control, for as long as the event continues.

5. 25.5

   We give notices to you by email or in the Service; you give notices to us at [email protected]. If any part of these Terms is invalid or unenforceable, it is read down or severed and the rest continues. A failure or delay in exercising a right is not a waiver of it.

6. 25.6

   We are independent contractors. Nothing in these Terms creates any partnership, joint venture, agency or employment between us, and a person who is not a party to these Terms has no right to enforce them. These Terms (together with the Acceptable Use Policy, the Privacy Policy and your plan details) are the entire agreement between us about the Service, and replace any earlier understanding about it.

1. 26.1

   For any question about these Terms or the Service, contact us at [email protected].