Software and Services Disclaimer
1.1. In this Disclaimer unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(b) Client: the person, reseller, business or company that is the purchaser of the Third Party Software and/or Third Party Services.
(c) Loss: any loss, liability, cost, charge, expense, tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(d) Third Party Provider: the owner of the Third Party Software or provider of Services.
(e) Third Party Services: any services provided by a Third Party Provider and supplied to the Client by go5plus and described in go5plus’ invoice.
(f) Third Party Software: any goods that are not owned and operated by go5plus (including software subscriptions, software and maintenance) supplied to the Client by go5plus and described in go5plus’ invoice.
(g) Third Party Terms: those terms applicable to Third Party Software and Third Party Services, including any Third Party Terms set out in this document or which are otherwise contained in the Third Party Software.
2.1 The Woolstencroft Family Trust trading as go5plus ABN 90 798 244 057 (go5plus) may from time to time supply Third Party Software and Third Party Services to the Client.
2.2 Such Third Party Software and Third Party Services are supplied to the Client in accordance with the terms of this Disclaimer and any terms set out on our proposal, quote or invoice to you as well as the Third Party Terms (defined below). By using the Third Party Software or requesting the provision of the Third Party Services the Client agrees to be bound by this Disclaimer and the Third Party Terms. If the Client does not agree to be bound by this Disclaimer or Third Party Terms, the Client must not use the Third Party Software.
2.3 This Disclaimer may be updated by go5plus from time to time, and the updated Disclaimer will apply from the date it is published at this location. Each time the Client uses the Third Party Software the Client should revisit this Disclaimer.
3. Third Party Providers
3.1 Where go5plus provides Third Party Software to the Client, such Third Party Software is owned (or licenced) and operated by Third Party Providers (who are unrelated to go5plus). To the extent permitted by law such Third Party Providers will be deemed to supply the Third Party Software to the Client and not go5plus. Where go5plus provides Third Party Services to the Client, such Third Party Services will be deemed to be supplied by that Third Party Provider and not go5plus.
4. Third Party Terms
4.1 Third Party Providers may have their own terms that apply to such Third Party Software and Third Party Services(Third Party Terms). The Client will be required to agree to such Third Party Terms including the Third Party Provider’s End User Licence Agreement. Such Third Party Terms are solely between the Client and the Third Party Provider, go5plus is not a party to such arrangements.
4.2 The Client acknowledges and agrees that they are solely responsible for:
(a) ensuring that they have read and understood any applicable Third Party Terms; and
(b) the Client’s compliance with such Third Party Terms.
go5plus will not be liable for any Loss suffered by the Client in connection with such Third Party Terms.
5. No representations and warranties
5.1 As a result of the foregoing, go5plus has no control over and does not ensure, guarantee or provide any warranty or representation in respect of the quality, suitability, reliability, availability, fitness for purpose, legality, accuracy, completeness or otherwise of:
(a) the Third Party Software;
(b) the Third Party Services; or
(c) the Third Party Provider’s ability to undertake their respective obligations.
5.2 Subject to the other terms of this clause and to the maximum extent permitted by any applicable laws, Third Party Software and Third Party Services are supplied by go5plus without warranty of any kind and go5plus expressly exclude such warranties. The Client acknowledges and agrees that:
(a) Third Party Software and Third Party Services are provided subject to the terms of the applicable Third Party Provider;
(b) Third Party Software and Third Party Services are covered by the applicable Third Party Provider’s warranty and the Client must refer to the warranty details of such Third Party Provider. go5plus does not provide any warranties in addition to the Third Party Provider’s warranty;
(c) the Client is solely liable for the Client's compliance with any copyright, trade mark and any other proprietary restrictions relating to such Third Party Software;
(d) the Client assumes all responsibility and risk of use of any Third Party Software and provision of any Third Party Services;
(e) go5plus does not make any representations in relation to the continuing availability of the Third Party Software and will not be liable for the Third Party Software being unavailable or discontinued;
(f) go5plus does not promise that the Third Party Software will be error-free, or that the Client’s use of the Third Party Software will provide any specific results;
(g) go5plus does represent or warrant that the Third Party Services will provide any specific results;
(h) go5plus does not represent or warrant that the Third Party Software will be virus free or free of performance anomalies or be operational without interruption.
6. Payment Terms
6.1 If credit is granted payment terms are strictly fourteen (14) days or as shown on the invoice for the purchase. go5plus reserves right to review, change and cancel payment terms with written notification.
7. Limitation of Liability
7.1 Subject to the other terms of this clause, go5plus excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Third Party Software and the Third Party Services that are not expressly set out in this Disclaimer to the maximum extent permitted by law.
7.2 Without limiting the generality of clause 7.1, and to the maximum extent permitted by law go5plus will not be liable to the Client for any Loss suffered by the Client as a result of or in connection with the Third Party Software and the Third Party Services.
7.3 Subject to the other terms of this clause, go5plus's maximum aggregate liability to the Client for any Loss or damage or injury arising out of or in connection with this Disclaimer or the Third Party Software or the Third Party Services, however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by the Client to go5plus in connection with the Third Party Software or the Third Party Services (as appropriate) in the 1-month period preceding the matter or event giving rise to the claim.
7.4 Nothing in this Disclaimer is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of go5plus in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of the Third Party Software.
7.5 If go5plus is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, go5plus's total liability to the Client for that failure is limited to, at the option of the go5plus to:
(a) in the case of services, the resupply of the services or the payment of the cost of resupply; and
(b) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
7.6 Without limitation to the other terms of this clause, go5plus excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Disclaimer or the Third Party Software or the Third Party Services.
7.7 Notwithstanding anything else in this clause, go5plus's liability will be reduced to the extent the loss or damage is caused by or contributed to by the Client or its employees, contractors or agents.
8.1 The Client indemnifies go5plus against, and holds go5plus harmless from, any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by go5plus arising out of or in connection with:
(a) the Client’s breach of the terms contained in this Disclaimer or any applicable Third Party Terms;
(b) the Client’s use of the Third Party Software;
(c) the provision of the Third Party Services;
(d) any claim made against go5plus by a Third Party Provider arising out of or in connection with the Client’s use of the Third Party Software or the Third Party Services;
(e) the Client’s violation of any law or the rights of a third party;
(f) the Client’s acts or omissions in respect of the Third Party Software or the Third Party Services.
9.1 This Disclaimer is governed by the laws of South Australia and the Commonwealth of Australia which are in force in New South Wales and the parties submit to the jurisdiction of the Courts of New South Wales, relevant Federal Courts and Courts competent to hear