Terms of Service

These Terms of Service (these “Terms”), together with the applicable Order Form(s) and Statement(s) of Work, each as defined below, referencing these Terms (collectively, the “Agreement”), are made and entered into by and between eCommify Apps Pty Ltd, with a registered office at 78 Herald Street, Cheltenham VIC 3192 AU (“eCommify Apps”), and the customer identified in the applicable Order Form or Statement of Work (“Customer”) as of the effective date of the first Order Form or Statement of Work (the “Effective Date”).

By executing an Order Form or Statement of Work that references this Agreement (as applicable, an “Order Form” or “Statement of Work”), or indicating acceptance of this Agreement via click-through, electronic signature, or other electronic means offered by eCommify Apps, Customer agrees to be bound by the Agreement. Any individual accepting the Agreement on behalf of Customer (where Customer is an organisation or entity) represents and warrants that they have the authority to bind Customer to the Agreement.

IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT, CUSTOMER IS NOT PERMITTED TO USE THE ECOMMIFY APPS SERVICES (as defined below).

1. eCommify Apps Services

1.1 Scope. This Agreement governs (a) Customer’s access to and use of eCommify Apps’ proprietary, web-based software solution(s) as described in the applicable Order Form (the “eCommify Apps Services”); and (b) eCommify Apps’ performance and Customer’s receipt of managed services or other professional services as described in the applicable Statement of Work (the “Professional Services”). eCommify Apps grants Customer and its authorised employees and agents (“End Users”) a limited, non-transferable, non-exclusive right during the applicable Order Term to access and use the Services for Customer’s business purposes.

1.2 Professional Services. If Customer elects to have eCommify Apps perform consulting, training, or other professional services, the parties will enter into a Statement of Work governing such services. Each Statement of Work will be subject to this Agreement and will include: (a) a description of the Professional Services; (b) the performance schedule; and (c) applicable fees. Deliverables created under a Statement of Work are licensed to Customer for internal business purposes during the Order Term, subject to payment and compliance. All deliverables are deemed eCommify Apps’ Confidential Information.

1.3 Passwords. Customer is responsible for safeguarding all passwords, API keys, user IDs, or other credentials (“Passwords”). Customer must not disclose Passwords to unauthorised third parties and must use best efforts to prevent unauthorised access. Customer is responsible for all activities undertaken with its Passwords and must promptly notify eCommify Apps of any unauthorised use.

2. Restrictions

2.1 Acceptable Use. Except as expressly authorised by this Agreement, Customer will not:

• (a) modify, disclose, or create derivative works of the Services;
• (b) license, sublicense, resell, or otherwise distribute the Services;
• (c) attempt to reverse-engineer the Services;
• (d) use the Services to store or transmit unlawful or infringing content;
• (e) introduce malware or harmful code;
• (f) copy, frame, or mirror content;
• (g) access the Services to build a competitive product;
• (h) interfere with the performance of the Services;
• (i) attempt unauthorised access;
• (j) disclose performance benchmarks; or
• (k) remove or obscure proprietary notices.

2.2 APIs. Use of application programming interfaces (“APIs”) may be subject to limits set out in an Order Form. eCommify Apps may enforce usage limits by technical means.

3. Support

eCommify Apps will use commercially reasonable efforts to provide the Services in material conformance with this Agreement and to provide updates available to customers on the same package, excluding new features which may incur additional fees.

4. Ownership and Reservation of Rights

4.1 Customer Materials. Customer owns all rights in and to the “Customer Materials” (data, content, etc.) provided for use in the Services. Customer grants eCommify Apps a limited right to use such materials solely to provide the Services.

4.2 eCommify Apps IP. eCommify Apps owns all rights, title, and interest in the Services, related technology, analytics, and deliverables. Customer Feedback, anonymised data, and Service Data may be freely used by eCommify Apps to improve its offerings.

4.3 Reservation of Rights. Each party reserves rights not expressly granted.

4.4 Third-Party Providers. The Services may rely on third-party hosting or software.

5. Fees and Payment Terms

5.1 Fees. Subscription Fees, as detailed in the Sales Order, are payable in advance (monthly, quarterly, or annually). Fees remain fixed during the Initial Term unless hosting upgrades or additional services are requested.

Any changes to the Customer’s plan or pricing tier requested by Customer or made by eCommify Apps as part of standard business practice (e.g., pricing structure changes, new feature bundles) will be communicated with at least thirty (30) days’ notice. Any such pricing or plan changes will take effect from the next renewal cycle following the notice period unless otherwise agreed in writing.

5.2 Late Fees. Overdue amounts accrue interest at 3% + Reserve Bank of Australia Base rate per month (or the maximum permitted by law). If any payment remains unpaid for fourteen (14) days after the due date, eCommify Apps will issue a formal Notice to Suspend Services – Non Payment. If payment is not received within one (1) day after such notice, eCommify Apps reserves the right to suspend or restrict access to Services until all overdue amounts are settled, following written notice to Customer.

5.3 Taxes. All fees are exclusive of taxes (including GST). Customer is responsible for applicable taxes but not for taxes based on eCommify Apps’ income.

6. Security and Data

eCommify Apps will use commercially reasonable efforts to prevent unauthorised use, access, or disclosure of Customer Materials. In the event of a confirmed security incident, eCommify Apps will notify Customer promptly.

7. Confidentiality

Each party will protect the other’s confidential information with reasonable care and only disclose as necessary under this Agreement or as legally required. Confidentiality obligations survive termination. Injunctive relief is available for breaches.

8. Data Protection

Each party will comply with applicable Australian data protection laws, including obtaining required consents and registrations.

9. Representations, Warranties and Remedies

eCommify Apps warrants that Services will be provided in a manner consistent with this Agreement but does not guarantee uninterrupted or error-free operation. Exclusive remedy for breach is correction/re-performance or, if not feasible, termination with a refund of prepaid unused fees.

All other warranties (merchantability, fitness for purpose, non-infringement) are disclaimed to the maximum extent permitted by law.

10. Indemnification

10.1 By eCommify Apps. eCommify Apps will defend Customer against third-party claims alleging IP infringement by the Services, subject to exclusions (combinations, modifications, misuse, continued use after notice). Remedies include obtaining rights, substitution, modification, or termination with refund.

10.2 By Customer. Customer will indemnify eCommify Apps against third-party claims arising from Customer’s use of the Services, Customer Materials, or Customer’s gross negligence/wilful misconduct.

10.3 Process. Indemnification is subject to prompt notice, control of defence, and cooperation.

11. Limitation of Liability

11.1 eCommify Apps is not liable for indirect, incidental, special, or consequential damages.

11.2 Aggregate liability is capped at fees paid by Customer in the twelve (12) months before the claim.

12. General

12.1 Relationship of the Parties. The parties are independent, separate entities. Nothing in this Agreement creates an employment, partnership, joint venture, agency, or fiduciary relationship between the parties. Each party acts solely on its own behalf and has no authority to bind the other party.

12.2 Non-Solicitation. Neither party will solicit the other’s staff during the Agreement and for one year after. A fee equal to 12x annual subscription applies if Customer hires eCommify Apps staff.

12.3 Marketing & PR. Customer agrees eCommify Apps may issue announcements, go-live updates, and a case study (3 months post-launch).

12.4 Assignment. Customer requires prior consent to assign; eCommify Apps may assign freely.

12.5 Choice of Law. Governed by Australian law; courts of Australia have jurisdiction.

12.6 Compliance with Laws. Both parties must comply with applicable laws.

12.7 Severability. Invalid provisions will be modified to achieve original intent; remainder enforced.

12.8 Force Majeure. Non-payment aside, no liability for events beyond reasonable control. If such events last over 30 days, the unaffected party may terminate.

13. Term & Termination

The Agreement commences on the Effective Date for an initial one (1) year term (“Initial Term”). It automatically renews for successive one (1) year periods (“Renewal Term”). Customer may terminate during any Renewal Term with ninety (90) days’ written notice.

Either party may terminate for:
(i) unauthorised assignment;
(ii) material breach uncured within 30 days of notice;
(iii) cessation of business; or
(iv) insolvency, bankruptcy, or similar proceedings.