Terms of Service

1.    INTERPRETATION

Reference in these terms to:-
a)    “ACL” means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
b)    “pivotworks” refers to Giles C Stead trading under ABN 64 669 170 570 as “pivotworks”.
c)    “NetSuite” refers to the Business Management Software provided by NetSuite Inc., a software company.
d)    “You” means the person trading in the capacity of Customer with pivotworks.
e)    "Service" or "Services" refers to software or software services provided by pivotworks to You.

Terms used in these Terms and Conditions which have defined meanings in the ACL have the same meanings in these Terms and Conditions

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2.    PRICE

a)    The "price" of any Services will be the then current price as determined by pivotworks and notified to You.
b)    All prices are GST exclusive unless otherwise stated.

3.    LIABILITY
a)    Where You comprise more than one person, each such person shall be jointly and severally liable to pivotworks under these Terms and Conditions.
b)    Any data stored by or for You on the software or service provided by NetSuite or pivotworks is stored at your risk.

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4.    RESPONSIBILITY

a)    pivotworks will use reasonable measures to make the Service available to you 24 hours a day, 7 days a week. However, it may be unavailable at times, due to factors including but not limited to system maintenance, peak congestion, equipment or line failure. You acknowledge that pivotworks do not guarantee the speed, performance or quality of the any internet service or the NetSuite software.
b)    pivotworks will provide a fault reporting facility, accessible online at pivotworks.au. You are responsible for all use of the Service including use that is not authorised by you.
c)    You must not interfere with the normal operation of any software or Service or make either unsafe.
d)    You must not use the Service:
i.    for any illegal activity,
ii.    for the transmission of unsolicited e-mail or spam,
iii.    to abuse, harass or annoy any person,
iv.    for any resale purpose,
v.    to host other software,
vi.    for any activity that may cause damage or loss to, or compromise the security of, NetSuite or pivotworks, or the equipment or service of NetSuite or pivotworks, or
vii.    for any activity that exposes the You, NetSuite or pivotworks to civil liability.

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5.    PAYMENT

a)    The price shall be paid by You in advance of any services provided by pivotworks to You.
b)    If You fail to make any payment when due all other amounts whether then due or not will become immediately due and payable.
c)    pivotworks reserves the right to recover from You a default charge on overdue amounts calculated on a daily basis at the rate which is of 4% above the Westpac Reference lending rate as published from time to time upon the outstanding balance of the price and to be payable by way of liquidated damages for breach of contract.
d)    You must pay all costs and expenses (including debt collection and solicitor-client based costs) reasonably incurred by pivotworks arising out of any breach by you of these Terms and Conditions.

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6.    PROVISION OF SERVICE

a)    Every endeavour will be made by pivotworks to provide the Service within the period, if any, requested by You but no liability is accepted by pivotworks for delay in provision or non-provision.
b)    pivotworks reserves the right at its discretion to discontinue trading with You at any time.

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7.    EXAMINATION 

You are responsible for examination of the Service upon provision and any alleged damage, deficiency or non-conformity with order must be reported to pivotworks in writing within two (2) business days of such provision otherwise no claims shall be considered.

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8.    INDEMNITY

a)    You hereby indemnify pivotworks against all liability, costs, loss or damage, suffered or incurred by pivotworks, NetSuite, employees, contractors and assigners arising from any breach by you of this Agreement.
b)    Unless instructed by pivotworks, you may only contact pivotworks, not NetSuite, for faults related to the Service.

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9.    FORCE MAJEURE

A force majeure is an event or circumstances beyond reasonable control of any part, except an inability to pay money when due. pivotworks and You are not responsible for any delay in performing or failure to perform any obligation under this Agreement, other than an obligation to pay money, as a result of force majeure.

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10.    SECURITY AND PRIVACY

a)    You are responsible for maintaining the security of your assets and any devices using NetSuite or any software provided by pivotworks. You agree to install and maintain Anti-Virus software and to ensure any passwords used are secure and not easily guessed. Any software and Services provided by pivotworks come as is and provide no guarantees.
b)    pivotworks will handle any and all of Your personal information in accordance with pivotworks’ Privacy Policy, as available at pivotworks.au.
c)    pivotworks will always act in accordance with any and all relevant data protection laws.

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11.    PROPRIETARY RIGHTS

a)    Title in any software or Intellectual Property provided as the Service or part of any Service shall remain with pivotworks without exclusion.
b)    pivotworks does not convey or transfer, nor does Client obtain any right or interest in, any of the software or services provided by pivotworks in the performance of this Agreement. While you are not in breach of any of these terms of trade, pivotworks grants to You a non-exclusive, worldwide right to use the technology imbedded in the Services.
c)    Title in any software not provided as a Service shall remain with pivotworks until You have paid all monies due to pivotworks on any account whatsoever. Until that time You must:
i.    Except as mentioned in clause 8(a) not purport to mortgage, charge, transfer, convey or otherwise deal with any software without the prior consent of pivotworks;
ii.    At all times allow pivotworks access to the software to inspect and to re-take possession at its discretion and indemnify pivotworks against all claims whatsoever (including claims of trespass) arising out of the exercise or purported exercise of rights under this clause;
iii.    Account to pivotworks for all proceeds of arising from use of or access to software including any insurance proceeds.
d)    You shall be entitled to sell or receive software or Services in the ordinary course of your business, except if You:
i.    breach any provision of these conditions of sale,
ii.    cease to or threaten to cease to carry on Your business, or
iii.    become the subject of any form of insolvency administration whether formal or informal.

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12.    CONSUMER GUARANTEES

a)    Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
i.    to cancel your service contract with us; and
ii.    to a refund for the unused portion, or to compensation for its reduced value; and
iii.    You are also entitled to choose a refund for major failures with the service where the failure is not partially or wholly attributable to misuse or misappropriation of the service. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the service and to cancel any contract for the service and obtain a refund of any unused portion.
iv.    You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the service provided that the failure is not reasonably deemed the responsibility of You due to misuse or misappropriation of the service.
b)    To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms and Conditions are excluded and pivotworks is not liable in contract, tort (including, without limitation, negligence statutory duty) or otherwise to compensate You for:
i.    any increased costs or expenses,
ii.    any loss of profit, revenue, business, contracts or anticipated savings,
iii.    any loss or expense resulting from a claim by a third party, or
iv.    any special, indirect or consequential loss or damage of any nature whatsoever;
arising out of the pivotworks’ supply of Services to You or caused by pivotworks' failure to provide or delay in providing the Service.

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13.    VARIATION

pivotworks reserves the right to alter the terms of this Agreement by giving at least 14 days’ notice of such alterations. In the event that pivotworks exercises this right, You may terminate this Agreement on condition that pivotworks receives Your termination notice by e-mail within 14 days of the original notification to You.