Formbay – Originator Terms of Use

Last modified: September 21, 2017

ORIGINATOR TERMS OF USE

IMPORTANT NOTICE: These Terms of Use form a legal agreement between Formbay (ABN 30 602 434 533) of Level 1, 275 Clarence Street, Sydney, NSW 2000 (Formbay) and You with respect to the access and use of the Software and the Services. Before You can log in and use the Software or access the Services, You must read and agree to these Originator Terms of Use.

Formbay as Owner of the Software provides to You, as Originator and/or Recipient, this Service subject to You agreeing to these Originator Terms of Use. The Service (as defined below) enables Originators to create, share, update, sign and execute Transactions online via a safe and secure platform alleviating the need for postage costs and paper. Recipients are those parties to whom a Created Document is sent (i.e. a Sent Document) by an Originator using the Formbay platform to review, update, execute and complete.

The Services are NOT a document management system: whoever, the Software/Services can be linked into most document management systems if required. The Services/Software can be integrated with other software/service either through Application Programming Interfaces (APIs) or other direct links or via integration within the Originator’s system. Formbay is not responsible for resolving problems in respect of interoperability of systems or hardware with the Software/Services.

Additional Services provided by Formbay include assistance with Software/Service integration and/or improved user services at additional rates.

In order to access and use the Software and utilise our Services, You will require a licence from Formbay. These Originator Terms of Use set out the terms on which Formbay agrees to grant to You a limited non-exclusive non-transferable licence to use and access the Software/Services and the terms on which You may use the Software/Services within the Territory

You agree to these Originator Terms of Use by applying to Formbay for an Account and/or use the Software/Services.

In consideration for accessing the Services/ Software, You agree to be bound by these Originator Terms of Use. If You do not agree to these Originator Terms of Use, You must not use (or allow a third party to use) the Services or access the Software save as set out below.

This introduction forms part of these Originator Terms of Use.

1. DEFINITIONS AND INTERPRETATION

DEFINITIONS

In these Terms of Use, the following expressions have the following meanings:

ACCOUNT means the account established by Formbay for Your Transactions in accordance with clause 2 of these Originator Terms of Use.

ADDITIONAL INFORMATION means such information that is sufficient to enable the identification of the following:

1. The origin of the Electronic Communication;
2. The destination of the Electronic Communication;
3. The time when the Electronic Communication was sent;
4. The time when the Electronic Communication was received.

APP TERMS OF USE means the terms of use agreed to by an Originator and/or Recipient granting access to use the Device Application.

AUTHORISED PERSON means You and/or your nominated authorised user of the Software and Services.

AUTHORISED SIGNATORY means a person that is nominated by a party as being the person with legal authority to sign a Created Document in accordance with the Corporations Act and/or the company’s constitution.

BENEFITS means certain pricing structures, discounts, features, promotions, and other benefits provided to you under a Business Agreement.

BUSINESS AGREEMENT means a separate and/or ancillary business or government agreement between you and Formbay to use these Services.

BUSINESS DAY means a day that is not a Saturday, Sunday or any other day which is a public holiday in Sydney, New South Wales.

CONFIDENTIAL INFORMATION means all information (regardless of its form) disclosed to a party (or its related body corporate or Representatives) under or in connection with these Originator Terms ofUse. The term does not include information which: is in the public domain other than through breach of these Originator Terms of Use or an obligation of confidence owed to the disclosure or any related body corporate of the discloser; was already known to the receiver at the time of that disclosure (unless that knowledge arose from a breach of an obligation of confidentiality); or the receiver acquires from a source other than the discloser (or any related body corporate or Representative of the discloser), where that source is entitled to disclose it;

CONTACT DETAILS mean the true, correct and active mobile phone, email, postal, DX; Post Box and banking details of the Authorised Person provide in Formbay in writing.

CREATED DOCUMENT means a document created by the Originator using the Software/Services but not yet sent to a Recipient as a Sent Document.

CORPORATIONS ACT means the Corporations Act 2001 (Cth).

COSTS means costs, charges and expenses, including those incurred in connection with advisers.

DATA means all data, photos, documents, Updates, Created Documents, Sent Documents, Electronic Communication and/or other information required by the Originator, uploaded using the Device Application or otherwise by or on behalf of You onto the Software.

DATA JURISDICTION means for the purposes of Privacy and sovereignty of Data, the jurisdiction of these Originator Terms of Use and all Data, information submitted by the parties to one another via the Software and Services as governed by the laws of the Commonwealth of Australia and the Privacy Act.

DATA STORAGE means the storage by any article or material by which Data is capable of being reproduced with or without the aid of any other article or device.

DISCRIMINATORY CHANGE IN LAW means a change in law, regulation, rule, code or sub-code being introduced, amended or repealed in whole or in party or new or increased Tax or fee imposed on Formbay after the date of these Originator Terms of Use.

DEVICE APPLICATION means an application that enables the creation, population, updating, execution and submission/uploading of Data and/or Created Documents in respect of a Transaction by or on behalf of You to the Software, known as the “Formbay App”, or any other application specified by Formbay and notified to You from time to time and subject to the App Terms of Use.

DOCUMENTATION means the technical, operating, user videos and manuals supplied by Formbay to you, including the documentation provided with any Updates

ECONOMIC LOSS means loss other than damage to Your physical property and includes corruption of Data losses, business interruption losses, loss of revenue and loss of profits;

ELECTRONIC COMMUNICATION means a communication of information in the form of Data, text or images by means of guided and/or unguided electromagnetic energy or a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy where the speech is processed at its destination by an automated voice recognition system.

ELECTRONIC SIGNATURE means a signature used on an Electronic Communication, Created Document, Transaction or transmission in accordance with the Electronic Transactions Act and/or these Originator Terms of Use

ELECTRONIC TRANSACTIONS ACT means the Electronic Transactions Act 1999 (Cth) Australia.

ELECTRONIC TRANSACTIONS REGULATIONS means the Electronic Transactions Regulations 2000 (Cth).

ERROR MESSAGE means an automated electronic message indicating to the Originator that the Sent Document has not been received by the Recipient.

EVENT OF DEFAULT means the occurrence of any one or more of the following events:

1. A party fails to comply with any of its obligations under these Originator Terms of Use;
2. A party becomes Insolvent;
3. A notice of deregistration in relation to a party is given under sections 601AA(5) or 601AB(5) of the Corporations Act;
4. Any representation, warranty or statement made or repeated by a party in or in connection with these Originator Terms of Use is untrue or misleading in any material respect (including by omission) when so made or repeated;
5. You fail to insure and/or adequately insure and/or fail to make a claim on such insurance and/or fail to provide to us the proceeds of such insurance;
6. The parties fail to agree to a variation following a Discriminatory Change in Law;
7. A party is unable to perform all of its obligations and take all actions contemplated under these Originator Terms of Use;
8. Formbay claim that any Created Document, Sent Document, Executed Document and/or Transaction is in fact an Invalid Transaction; and/or
9. a material provision of these Originator Terms of Use that purports to impose an obligation on a party is or becomes void, voidable, illegal or unenforceable or of limited effect (other than because of equitable principles or law affecting creditor’s rights generally)9,

EXECUTED DOCUMENT means a Sent Document that has been executed by a Recipient and returned to the Originator using the Software/Services.

FINANCING STATEMENT has the same meaning as provided for in the Personal Property Securities Act 2009 (Cth).

FORCE MAJEURE means an act of God, fire, lightning, explosions, flood, subsidence, network failures/interruptions/outages or Data Storage or disc failures, act of terrorism, Malware use/impact on Your and/or Formbay’s Software and/or hardware, insurrection or civil disorder or military operations, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected party’s control.

FREE TRIAL PERIOD means a free trial, promotional offer or other type of limited offer to use the Services in accordance with clause 3.4.

GST means the goods and services tax payable under or imposed by the GST Law.

GST LAW has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

INDUSTRY GUIDANCE means guidance, rulings, best practice suggestions, information, Data and materials that the electronic communication and payment industry commonly uses to assess the creation, sending and execution of documents and Transactions and payments of services similar to the Services provided for under these Originator Terms of Use.

INFORMATION SYSTEM means a system operated independently by an Originator, Recipient and/or Formbay for which each party takes sole responsibility for their own system used for generating, sending, receiving, storing or otherwise processing Electronic Communications in the usual course of business.

INSOLVENT means in relation to a party, one or more of the following events or circumstances:

1. A winding up, dissolution, liquidation, provisional liquidation, or bankruptcy;
2. Having a Controller (as that term is defined in the Corporations Act) or analogous person appointed to it or any of its property;
3. Being unable to pay any of its debts as and when due and payable or being deemed to be insolvent under any provision of the Corporations Act or any other law; or
4. Any analogous event or circumstance to those described in paragraphs (a)-(c) above under any law, but does not include where a resolution is passed to wind up a party pursuant to section 436A Corporations Act or where such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation approved by the other party;

INVALID TRANSACTIONS means a Voidable Transaction and/or an Excluded Transaction;

LEGISLATION means the Electronic Transaction Act, Electronic Transaction Regulations, Privacy Laws, and subordinated legislation, guidance, rulings and similar including any relevant State based legislation in respect of electronic communications.

LIABILITY means a liability under contract, tort (including negligence) or any other basis, including where caused by that party’s or its Representative’s negligence, wilful act or omission;

LOSS(ES) means includes any and all damages, losses (including loss of reputation and Economic Loss), actions, claims, suits, Liabilities, compensation, expenses, diminution in value or deficiencies of any kind or character (including all interest and other amounts payable to third parties), Costs, fines, penalties, Liabilities, injuries or death incurred by the person concerned, all Liabilities on account of Taxes and all legal (on a full indemnity basis) and other expenses reasonably incurred in connection with investigating or defending any claims, actions, suites and/or proceedings and all amounts paid in settlement of such claims, actions, suites and/or proceedings however they arise and whether present or future, fixed or unascertained, direct and/or indirect, actual or contingent and whether or not resulting in any liability

MALWARE includes but is not limited to hacking, defects, worms, Trojan horses, spyware, adware, corrupted files, hoaxes, viruses, blended threats and/or unauthorised access, denial of service events or other items of a destructive/deceptive nature in existence or to be developed in the future;

ORIGINATOR TERMS OF USE means these terms of use between Formbay and You permitting and governing the use by You of the Software/Services as an Originator.

ORIGINATOR means a user granted a restrictive non-exclusive licence to use the Software and Services whereby such user uses the Software and Services to enable it to provide the Service to the customers of that user under these Originator Terms of Use but does so branding such Software and Services with its own branding allowing its customers to commence and complete Created Documents, Sent Documents, Executed Documents and/or Transactions directly to the Originator under its licence.

PMSI means a purchase money security interest under the Personal Property Securities Act 2009 (Cth).

POTENTIAL BREACH means instances where Formbay is notified by a recognised industry body or Formbay becomes aware that:

1. You or a Created Document/Sent Document/Executed Document and/or Transaction You have undertaken is under investigation by a recognised government and/or industry body;
2. You or a Created Document/Sent Document/Executed Document and/or Transaction may be an Invalid Transaction and/or a Voidable Document;
3. Formbay notifies You that, in Formbay’s reasonable opinion, You or a Transaction may be in breach of these Originator Terms of Use.

PPSR means the personal property securities register;

PRIVACY LAWS means the Australian Privacy Act 1988 (Cth), associated regulations and the National Privacy Principles.

RECIPIENT means the party receiving the Sent Document and/or Electronic Communication from the Originator.

REPRESENTATIVES means persons and/or entities nominated as such and/or carrying on the business of an entity with the implied authority of such entity, including agents, employees, contractors, assigns etc.

SECURITY INTEREST has the same meaning as provide for in the Personal Property Securities Act 2009 (Cth).

SENT DOCUMENT means a Created Document that is sent by the Originator to the Recipient and which the Subscription Fee is charged based on your Subscription Plan. For the avoidance of doubt, payment of the Subscription Fee is not conditional on the Recipient agreeing, finalising, signing and/or completing the Transaction.

SERVICES means the services provided by Formbay to You which facilitates the creation, sharing, population, amendment, execution and completion of a Created Document, Sent Document, Executed Document and/or Transaction.

SERVICE FEE means the hourly rate/fee for any Additional Services requested by You for Formbay to provide as otherwise agreed between the parties.

SHARE means the access, preservation, storage, usage, compilation, adaptation, disclosure, transfer or dealing with your data by Formbay in accordance with clause 5.4.

SOFTWARE means:

1. the computer software program known as "Formbay" or generally known as Formbay;
2. the .php file that enables You to access the “Formbay” software via the Website;
3. the Device Application;
4. any Updates; and
5. the Documentation,
6. and for the avoidance of doubt, the Software does not include any third-party software.

SUBSCRIPTION FEE means the fees payable to Formbay by You from time to time as detailed in clause 3.3 and as agreed between the parties in SCHEDULE 3: SUBSCRIPTION PLAN & SUBSCRIPTION FEE based on the number of Sent Documents and Authorised Users and other such rights including any deductions and/or set-offs.

SUBSCRIPTION PLAN means the plan purchased by you to use all or some of the services in accordance with clauses 3.1, 3.2 and 3.3 and agreed between the parties prior to execution of these Originator Terms of Use in SCHEDULE 3: SUBSCRIPTION PLAN & SUBSCRIPTION FEE;

TAXES all applicable taxes, levies, duties, charges, deductions and withholdings and similar imposts imposed by law or by any government agency or statutory body including income tax, valued added tax, GST, value added tax or similar consumption tax (VAT), sales tax, business tax, withholding tax, fringe benefits tax, undistributed profits tax, financial institutions duty, stamp duties and any interest or penalty imposed about any of the preceding items.

TERRITORY means Australia.

TIME OF RECEIPT means the time/date that the Created Document enters the addressees Information System by electronic means as a Sent Document or if no such Information System is in operation, then the time when the Created Document comes to the attention of the addressee as a Sent Document.

TRANSACTION means a Created Document(s) created by the Originator and sent to a Recipient as a Sent Document to complete and is in fact completed and returned to the Originator as an Executed Document.

UPDATES means any patches and minor modifications, adaptations, enhancements, improvements, revisions and substitute products of the Software that enables You to access the Software made available by Formbay to You at its sole discretion from time to time.

VOIDABLE DOCUMENT means a Created Document and/or Sent Document that has been fraudulently and/or illegally created by an Originator or third party.

VOIDABLE TRANSACTION means a Transaction induced by fraud, illegality, deception or other means.

WEBSITE means the Formbay website at https://api.Formbay.com.au or such other URL as notified by Formbay to You from time to time.

YOU (or you) is you as counterparty to these Originator Terms of Use and includes for the avoidance of doubt Your employees, contractors, and assignees.

YOUR BANK ACCOUNT means the bank account you nominate for the purposes of payment by Formbay to You.

INTERPRETATION

1. A reference to a person includes any other entity recognised by law and vice versa.
2. Headings, underlinings, marginal notes and indexes are only included for ease of reference and do not affect interpretation.
3. A reference to any legislation or legislative provision includes any modifying, consolidating or replacing legislation or legislative provisions from time to time, and includes all regulations, rules and other statutory instruments issued under the legislation.
4. A reference to a document (including these Originator Terms of Use) is to that document as varied, novated, ratified or replaced from time to time.
5. References to parties, clauses, schedules, annexures or exhibits are references to parties, clauses, schedules, annexures or exhibits to these General Terms of Use unless otherwise stated.
6. References to months and years mean calendar months and years.
7. Words denoting the singular number include the plural, and vice versa.
8. Where any word or phrase is given a defined meaning any other grammatical form of that word or phrase has a corresponding meaning.
9. No rule of construction or interpretation applies to the disadvantage of a party because that party prepared these Originator Terms of Use.
10. If any part of these Originator Terms of Use is void or unenforceable in any jurisdiction, then for the purposes of that jurisdiction if possible, that part is to be read down so as to be valid and enforceable. If this is not possible, and that part does not go to the essence of these General Terms of Use, that part will be severed from these Originator Terms of Use and the rest of these Originator Terms of Use continues to have full force and effect so as to give effect to the intention of the parties.

2. THE FORMBAY ACCOUNT

TO CREATE A FORMBAY ACCOUNT

To utilise the Services, the Originator will need to create an Account with Formbay by completing an online registration form made available by Formbay at the Website. To be eligible for an Account, You must:

1. be over 18 years old;
2. if an individual, provide the Your full name, date of birth and residential address;
3. If an Australian business and/or company provide;
   • the full name of the company as registered by ASIC;
   • the full address of the company’s registered office;
   • the full address of the company’s principal pace of business, if any;
   • the ACN issued to the company;
   • whether the company is registered by ASIC as a proprietary or public company; and
   • if the company is registered as a proprietary company, the name of each director of the company.
4. Have one/two director(s) sign the registration form and send to Formbay the hard copy of the executed form by post/email to comply with execution of documents under the Australian Corporations Act 2001 (Cth) and in addition, if in the sole opinion of Formbay, Formbay requires You to provide a personal guarantee to Formbay guaranteeing Your performance of all obligations owing to Formbay, sign the guarantee document with such document to be presented in a form satisfactory to Formbay; and accurately complete all required information on the online registration form, including the full name of the legal entity of the applicant of the Account.
5. You must not use a false identity to create an Account, or falsely state, impersonate or otherwise misrepresent your identity when creating the Account.

ACCEPTANCE OF YOUR ACCOUNT

Formbay may at its sole discretion accept or deny your application to create an Account. Once Your application is accepted by Formbay, You may use the Software and access the Services in accordance with these Originator Terms of Use. You must not:

1. sell, lease, license, rent, loan, trade, share, timeshare or otherwise transfer or deal with Your Account to another party unless you receive written confirmation from Formbay’s CEO; or
2. allow any third party to access Your Account, save an Authorised Person.

CHANGE OF AUTHORISED PERSON

1. You must notify Formbay in writing within 24 hours of a change in Authorised Person(s).
2. You represent and warrant that only the Authorised Person(s) will use Your Account and You indemnify Formbay for any direct and/or indirect loss and/or any damage caused by any unauthorised person or access to Your Account.

RECIPIENT ACCEPTANCE

1. The Recipient will be sent an Electronic Communication from the Originator’s information System that will enter the Recipients information System on the Time of Receipt.
2. Once the Recipient “clicks” on the Electronic Communication they will be notified that by doing so they agree to be bound by the Originator Terms of Use and then they will complete an online registration form to create a Formbay Account.
3. If the Originator receives an Error Message, then the Recipient is taken to not received the Electronic Communication and/or Created Document and/or Executed Document.

TERM OF ORIGINATOR TERMS OF USE

These Originator Terms of Use commence when Your Account is approved by Formbay and cease on the earlier of termination by Formbay of Your Account or the completion of Your Transaction/Trial Period.

If You have not been terminated by Formbay under these Originator Terms of Use, these Originator Terms of Use automatically refresh each time you create and a new Created Document.

3. THE SERVICES, SUBSCRIPTION FEE & TAXES

SERVICES

Subject to You paying the Subscription Fee and/or Service Fee, Formbay will provide to You the following functionality, namely the ability to:

1. access the Software and Services;
2. create Created Documents online;
3. send/share Sent Documents to Recipients online and/or inter-related parties for contribution prior to sending;
4. populate Created Documents and Sent Documents online;
5. review and amend Created Documents and Sent Documents online;
6. sign/execute Sent Documents online so that they become Executed Documents;
7. complete Transactions directly related to Sent Documents using the Services/Software online;
8. And/or any other Additional Services offered by Formbay and agreed with you pursuant to SCHEDULE 2: ADDITIONAL SERVICES

ADDITIONAL SERVICES

You may instruct Formbay to provide Additional Services to You for the Service Fee. Such Additional Services & Service Fee will be agreed between the parties at the time and will be incorporated into these Originator Terms of Use as SCHEDULE 2: ADDITIONAL SERVICES.

SUBSCRIPTION FEE

1. The prices, features, and options of the Services and/or Additional Services depend on the Subscription Plan purchased by you as well as any changes instigated by you. For example:
   1. if you add Authorised Users, Formbay will charge the applicable Subscription Fee for each additional Authorised User; and/or
   2. if you send more Sent Documents than are included in the Subscription Plan, Formbay may charge for additional Sent Documents; and/or
   3. if you purchase Additional Services on a periodic or per-use basis at the Service Fee; and
   4. Formbay may change the prices for or alter the features and options in a Subscription Plan without notice.
2. You will in a timely manner pay Formbay all Subscription Fees and/or Service Fees associated with your Subscription Plan, Account or use of Formbay, including, but without limitation, by Authorised Users. Your payments are non-refundable. Charges for pre-paid and standard Subscription Plans will be billed to you in advance. Charges for per-use services will be billed in arrears.
3. When you register for an Account, you must provide accurate and complete information for a valid credit card that you are authorised to use. You must promptly notify us of any change in your invoicing address and must update your Account with any changes related to the credit card used for payment. By completing your registration for the Subscription Plan, you authorise Formbay or its agent to charge your credit card on a recurring (e.g. monthly or yearly) basis (“Authorisation”) for:
   1. the applicable Subscription Plan charges including Subscription Fee/Service Fee;
   2. all applicable Taxes; and
   3. any other charges incurred regarding your use of Formbay.
4. If Formbay does not receive payment from your credit card provider, you agree to pay all amounts due upon demand. Any amount not paid when due will be subject to finance charges equal to 5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Formbay to collect any amount that is not paid when due. Formbay may accept payment in any amount without prejudice to Formbay’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Formbay may not be withheld or offset by you for any reason against amounts due or asserted to be due to you from Formbay.
5. Formbay will provide an invoice in a format we choose, which may change from time to time. Formbay reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. You agree to notify us about any billing problems or discrepancies within 30 days after they first appear on your invoice. If you do not bring such problems/discrepancies to our attention within 30 days, you agree to waive your right to dispute such problems or discrepancies.
6. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. You agree that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle, and that we may delay obtaining payment from your credit card issuer until submission of the accumulated charge(s).
7. You may receive or be eligible for Benefits through a Business Agreement. All such Benefits are provided to you solely because of the corresponding Business Agreement and such Benefits may be modified or terminated without notice. If you use Formbay where a business or government entity pays your charges or is otherwise liable for the charges, you authorise us to share your account information with that entity and/or its authorised agents. If you are enrolled in a Subscription Plan or receive certain Benefits tied to a Business Agreement with us, but you are liable for your own charges, then you authorise us to share enough account information with that entity and its authorized agents to verify your continuing eligibility for those Benefits and the Subscription Plan.

FREE TRIAL AND SPECIAL OFFERS

If you register for a Free Trial Period, Formbay will make available to you a free or discounted version of the Software and/or Services until the earlier to occur of the following:

1. the end of the Free Trial Period;
2. the start date on which you purchase Formbay; or
3. termination of your use of Formbay, either by you or Formbay in its sole discretion.

You may be presented with additional terms and conditions when registering for a Free Trial Period, and any such additional terms and conditions are incorporated into these Originator Terms of Use.

The version of Formbay that is available for a Free Trial Period may not include or allow access to all features or functions.

Notwithstanding the warranties described in Section 9, during a Free Trial Period the Software and/or Services are provided “as is” without any warranty that may be set forth in these Originator Terms of Use.

RECIPIENTS

You will be solely responsible for the actions/omissions of the Recipients of Your Created Documents, Sent Documents, Executed Documents and/or Transactions and will indemnify Formbay against any Liability and/or Loss they or You may claim against Formbay.

TAXES

You are responsible for all Taxes about the provision of Services and/or Additional Services by Formbay to You. The parties agree as follows in respect of GST:

1. Unless GST is expressly included, the consideration expressed to be payable under any other paragraph of these Originator Terms of Use for any supply made under or about these Originator Terms of Use does not include GST, which must be paid as an additional amount.
2. Each party agrees to do all things, including providing Tax invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any input taxcredit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or about these Originator Terms of Use. A party is not obliged to make a payment under these Originator Terms of Use if the other party does not provide a valid Tax invoice.
3. If a payment to a party under these Originator Terms of Use is a payment by way of reimbursement or indemnity and is calculated by reference to the GST inclusive amount of a loss, cost or expense incurred by that party, then the payment is to be reduced by the amount of any input tax credit to which that party is entitled in respect of that loss, cost or expense before any adjustment is made for GST.

EVENT OF DEFAULT BY YOU - INVALID TRANSACTIONS

If for any reason Formbay claims you are subject to an Event of Default and in Formbay’s sole opinion, such Event of Default is not rectifiable within 2 Business Days, then in Formbay’s sole opinion and without notice to you or without limiting Formbay’s rights and remedies:

1. You grant to Formbay a Security Interest and/or PMSI (which Formbay may register a Financing Statement on the PPSR) over any current/future Subscription Fees paid and/or not paid by You to Formbay (plus any indirect costs and/or Losses) that maybe owed in the future in respect of and/all Created Documents, Sent Documents, Executed Documents, Transactions, Voidable Documents, Invalid Transactions, affected by a Potential Breach;
2. the Subscription Fees, Service Fees or other amounts paid by You with respect to Sent Documents are not refundable to You;
3. Formbay will be entitled to charge You interest on the total amount owing to Formbay (including Subscription Fees, Service Fees and any associated fees owing) at the rate of the then current cash rate of the Reserve Bank of Australia plus 4%, calculated daily from the date the amount was invoiced to You by Formbay and payable as a debt immediately due and owing;
4. You are solely responsible to claim a refund or rebate of any Taxes (if applicable) from relevant taxation authorities;
5. If Formbay acts under this clause 3.7, Formbay may demand immediate payment of any unpaid Subscription Fees and/or Service Fees in accordance with these Originator Terms of Use and/or under any personal guarantee provided about these Originator Terms of Use.

SUSPENSION AND TERMINATION OF ACCOUNT AND/OR SERVICES TO YOU

Formbay reserves the right, at any time, to modify, restrict, suspend, discontinue, terminate or close Your Account or any part of the Services without notice if Formbay is of the reasonable opinion that you have triggered an Event of Default and/or a Potential Breach and/or You have made defamatory comments about Formbay on any media platform and without any Liability to You for any Loss you may suffer, Formbay may:

1. suspend or terminate Your Account and/or access to the Software/Services, if it determines, in its sole discretion, that doing so is necessary to enforce these Originator Terms of Use and/or the App Terms of Use;
2. suspend or cancel a Created Document, Executed Document, Transaction or Your Account; and
3. In the event Your Account is terminated, to the extent permissible, all Created Documents, Sent Documents, Executed Documents and/or Transactions will be returned to You or Your nominated third party (at Your cost).

YOUR OBLIGATION TO NOTIFY FORMBAY OF SUSPICIOUS BEHAVIOUR

If You and/or Formbay become aware of any Invalid Transactions and/or Voidable Documents or in Your or Formbay’s reasonable opinion any suspicious behaviour by a Recipient that may result in any Loss and/or Liability to Formbay, then:

1. You must notify Formbay of such behaviour within 24 hours of becoming aware;
2. Formbay only (unless otherwise agreed) may notify the Recipient and/or third party of such Invalid Transactions and/or Voidable Documents or suspicious behaviour;
3. Formbay may agree in writing with You to allow You to process specific existing Created Documents and/or Transactions from the suspect Recipient and/or third party subject to You suspending and/or restricting access to the Recipient’s Accounts and/or Your account and/or restricting Your and/or the Recipient’s access to the Software/Services and Device Application so that no new Created Documents, Sent Documents, Executed Documents and/or Transactions can be submitted by that Recipient and once the agreed Created Documents, Sent Documents, Executed Documents and/or Transactions have been processed, terminate the Recipient’s Account unless otherwise directed by Formbay;
4. Formbay may at any time suspend and/or terminate the Recipient’s Account and/or their access to the Software/Services under these Originator Terms of Use and/or the App Terms of Use;
5. Formbay may direct You to immediately suspend or terminate that Recipient’s Account and/or their access to the Software/Services pursuant to these Originator Terms of Use and/or App Terms of Use and/or other contractual arrangement You may have with such Recipient granting access to the Software/Services;
6. You will suspend or terminate the Recipient’s Account and/or access to the Software/Services immediately upon receipt of Formbay’s direction;
7. If a Recipient’s Account and/or access to the Software/Services is suspended and/or terminated in accordance with these Originator Terms of Use, then You indemnify Formbay from any Loss, and/or Liability flowing from such action and from any Claims from You and/or the Recipient or You against Formbay in respect of such Claim and/or Liability.

OBLIGATION TO KEEP UP TO DATE WITH LEGISLATION & PRIVACY LAWS

1. You must keep up to date with any changes to the Legislation and all relevant laws and implement any reasonable changes to Your processes and systems in respect of You or Your customers and/or Recipients use of the Software and/or Services.
2. You must rely on Your own investigations and not rely on information provided to you by Formbay for which Formbay excludes any Liability to you for any Loss sustained by You and/or Your customers/Recipients.

CONSENT

You as the Originator have granted consent to the Recipient and the Recipient has also granted You consent for each of you to:

1. receive information electronically and
2. in all circumstances both parties agree it is reasonable to provide the Service by electronic means and
3. to the exchange of Electronic Signatures; and
4. to produce a Created Document, Executed Document and/or Transaction by electronic means;
5. Store the information and Additional information as set out in these Originator Terms of Use so that such information and/or Additional information is readily accessible so as to be useable for subsequent reference;
6. that the Software and Services is a reliable means of assuring the maintenance and integrity of the information contained in the Created Document and/or Transactions; and
7. no breach of Copyright has occurred due to the provision of the Services via the Software.

4. ACCESSING AND USING THE SOFTWARE

LICENCE OF SOFTWARE

Upon Formbay’s acceptance of Your application for an Account and provided You are complying with Your obligations under these Originator Terms of Use, including paying all necessary fees (e.g. Subscription Fee, Service Fee etc.), Formbay grants to You from the creation date of Your Account a limited, non-exclusive, non-transferable licence to access and use the Software via the Website solely for using the Services within the Territory.

ACCESS TO THE SOFTWARE

The Software will be made available for access via the Website subject to these Originator Terms of Use and/or the App Terms of Use. You should be aware and agree that Formbay may from time to time without notice suspend access to the Software and/or Services or disconnect or deny You access to the Software/Services in the event of technical failure, modification, event of Force Majeure or maintenance of the Software/Services or the Website. Formbay will use its reasonable endeavours to procure the resumption of access to the Software/Services or the Website as soon as reasonably practicable.

FORMBAY APP

You must ensure the Device Application is used to upload all relevant Data onto the Software. Additional terms of use will apply to use of the Device Application. If the Device Application is not used to upload the Data, Formbay may be unable to provide the Services.

USE OF THE SOFTWARE AND SERVICES

You agree always to access and use the Software and/or the Services:

1. in accordance with these Originator Terms of Use and all variations as notified by Formbay from time to time, and the notices sent to You or otherwise made available on the Website concerning the Software or the Services;
2. making Your own enquiries into the laws applying in each jurisdiction including the Legislation in which You use the Software and the Software/Services and ensure Your access and use of the Software and the Services comply with all applicable laws and all relevant regulatory requirements including the Legislation;
3. professionally and not do anything that will or is likely to, in Formbay’s sole opinion, bring Formbay into disrepute or make defamatory and/or derogatory comments about Formbay on any media platform (including for the avoidance of doubt, social media platforms); and
4. in accordance with Formbay’s Privacy Policy.

You must promptly notify Formbay if You believe or suspect that the Software or the Services have been compromised or are being used in a matter that breaches these Originator Terms of Use.

UPDATES

Formbay may, at its discretion, provide Updates to the Software on the Website or otherwise from time to time at no additional charge. Formbay may give you reasonable notice for the provision of Updates. You must keep up-to-date with the operation of and any Updates of the Software. Use and access to all Updates are subject to these Originator Terms of Use.

RESTRICTIONS ON USE

During the term of these Originator Terms of Use and following termination or expiry, You must not, and must not authorise or encourage any third party to, use the Software or the Services in any way causes You to breach these Originator Terms of Use or in any way that violates any of the items described in the list of ‘Prohibited Actions' and ‘Spam' as outlined in SCHEDULE 1.

5. YOUR DATA

OWNERSHIP

All Data uploaded onto the Software by You or on Your behalf remain, as between You and Formbay, Your property. You grant to Formbay an irrevocable exclusive licence to use the Data for the purposes of these Originator Terms of Use.

OBTAINING THE DATA

If You:

1. take photographs;
2. take photographs of the Recipient for witnessing purposes, recording the Recipient’s signature on a Created Document; or
3. electronically record the signature of the Recipient,

You must obtain or ensure You and/or Your employee, agent or contractor obtains the Recipient’s written consent with respect to the taking or recording of such Data or signature prior to using such Data or signature in the Software or otherwise for the Services.

UPLOADING THE DATA IN THE SERVICES

You agree and acknowledge that:

1. You are solely responsible for the content of any Data and/or Created Document and/or Sent Document and/or Executed Document that is upload by You or on Your behalf or by the Recipient via the Software and Formbay takes no responsibility for the accuracy or the content of the uploaded Data;
2. If any of the Data and/or Created Documents, Sent Documents and/or Executed Documents submitted by You are not correct, Formbay shall have no Liability to You;
3. it is Your responsibility to ensure that the Data on Your screen is refreshed and up-to-date and that You have access to a valid/active internet connection;
4. You will not upload any Data via the Software and/or Device Application that is of a pornographic or unsavoury nature; and
5. If Data You upload contains any Malware, Formbay will not be responsible for any costs and/or Losses sustained by You and/or the Recipients and You indemnify Formbay against any such Losses and/or Claims. You further indemnify Formbay against Losses and/or Claims that Formbay and/You may sustain flowing from Your breach of this clause; and
6. Formbay expressly assumes no responsibility for, without limitation, backing up Your Data or damage to Your Data. You are responsible for ensuring that you have any necessary back up of all Data and Created Documents.

USING THE DATA IN THE SERVICES

You agree that Formbay may Share Your Data if required to do so by law or by any judicial or regulatory body, or when such Sharing is reasonably necessary in Formbay’s sole opinion to:

1. provide the Software/Services to You;
2. analyse and verify the accuracy of the Data or a Transaction;
3. enforce these Originator Terms of Use and/or the App Terms of Use;
4. comply with legal process, including but not limited to civil and criminal subpoenas, court orders or other compulsory and/or non-compulsory disclosures;
5. comply with required or commercially prudent record keeping practices; or
6. otherwise fulfil the purpose for which the Data is provided.

You warrant that Formbay's use of the Data pursuant to this clause does not infringe the rights of any third party, and any documents or reports generated by Your use of the Software must only be used by or on behalf of You for the purposes for obtaining the Services. You acknowledge that Formbay may share such Data with a Government body and/or enforcement agency if, in Formbay’s sole opinion, such Sharing of Data is necessary.

6. SECURITY

USER NAME AND PASSWORD

You must create a user name and password only for the Authorised Person to gain access to Your Account. You are responsible for the security of Your password, log-in or access details or other security measures. You are responsible for all activities that occur under Your user name. Where the correct user name and password are provided for the purpose of accessing or using the Software or the Services, Formbay is entitled to assume that the access is by You, or the Authorised Person, and You indemnify Formbay completely against any Claim and/or Losses, that results from wrongful, fraudulent or other access (using the correct user name or password) to the Software or the Services.

SECURITY

You must maintain the confidentiality of Your user name and password. You must not disclose any security measures to any other person and must keep those details confidential. To help ensure the security of Your password or Account, You must sign out from Your Account at the end of each session. You must promptly notify Formbay of any actual or suspected breach of security related to the Services, including, but not limited to, unauthorised use of Your password or Account.

7. INTELLECTUAL PROPERTY RIGHTS

OWNERSHIP

All intellectual property in and to the Software (including any Updates) and all trademarks (registered and unregistered), service marks, logos, domain names, and other distinctive brand features used by Formbay in connection with the Software, the Website or the Services belong to Formbay. Apart from the permitted use under these Originator Terms of Use, You acquire no right, title or interest in or to Formbay’s intellectual property by virtue of these Originator Terms of Use. The Software is a web based application and apart from accessing the Software on the Website, none of its source or object codes will be made available to You.

INFRINGEMENT

Without limiting any other provision of these Originator Terms of Use, if any of the Software infringes the intellectual property rights of any third party, Formbay, may at its discretion, modify or re-work the Software so that such infringement is removed; procure the right for You to continue enjoying the benefit of the Software in accordance with these Originator Terms of Use; or terminate these Originator Terms of Use upon immediate written notice to you, in each case You agree that this will be Formbay’s sole liability to You to the extent permitted by law. In the event these Originator Terms of Use are terminated, You must nominate within thirty (30) days of termination, an address/email etc. where Your Transactions/Documents can be delivered to.

OWNERSHIP/SECURITY INTEREST

1. You represent and warrant that You have no rights to the Software other than as under the licence granted pursuant to these Originator Terms of Use;
2. You will not register a Security Interest over the intellectual property or other personal property of Formbay (or another company/trust etc. related to Formbay) and
3. Formbay and/or or a company/trust directly/indirectly related to the directors of Formbay and/or a related party may register a Financing Statement securing their ownership of the intellectual property.

8. DISCLOSURE OF INFORMATION AND PRIVACY

CONFIDENTIALITY

You must keep all Confidential information obtained from the Software or the Services in strict confidence.

PERMITTED DISCLOSURE

If disclosure of any information provided by You to Formbay, or by Formbay to You, is or may be required by law or regulatory authority, the party under the obligation must immediately notify the other party of that fact. If the other party objects to the disclosure on the basis that it is not required by law, the party must act in accordance with any reasonable written legal opinion provided to it by the other party, or the other party's legal advisors.

PRIVACY

Formbay’s Privacy Policy governs how it collects, uses, handles and discloses any personal information You provide or disclose to Formbay and forms part of these Originator Terms of Use. You should carefully read and review Formbay’s Privacy Policy in full before uploading or otherwise disclosing to Formbay any personal information.

9. REPRESENTATIONS, WARRANTIES AND INDEMNITY

YOUR REPRESENTATION & WARRANTY

You represent and warrant to the best of Your knowledge that the Data provided by You to Formbay for the purposes of using the Services:

1. is true, correct and current;
2. can be disclosed by You;
3. does not infringe the rights of any third party; and
4. can be legally provided to Formbay and their disclosure does not breach any law or any obligation (whether of confidence or otherwise) owed to any person.

You further warrant that you have all necessary right, power and authority to enter these Originator Terms of Use and to perform the acts required of You under these Originator Terms of Use.

ACKNOWLEDGEMENT

Subject to clause 9.1, You acknowledge and agree that:

1. You have not relied upon or been induced by any representation by Formbay and Formbay makes no warranty or representation as to the results that may be obtained through the Services or the Software and the accuracy, reliability or otherwise of any information obtained through the Services or the Software;
2. the Software and the Services are provided on an AS IS and AS AVAILABLE basis and You use the Services or the Software entirely at Your own risk; and
3. use of the Software or the Service may be subject to technical limitations such as network coverage and third-party service availability.

INDEMNITY

You release and indemnify Formbay its Representatives, associated entities and their respective officers, employees, consultants and agents from and against all Liability and/or Losses which may be brought against it or them, whether on their own or jointly with You and whether at common law, in equity or pursuant to statute or otherwise arising out of or regarding:

1. An Event of Default triggered by You or Your Representatives;
2. a breach of Your warranties or obligations contained in these Originator Terms of Use;
3. any illegal or wrongful act by You or Your Representatives about the use of the Services or the Software including for the avoidance of doubt Voidable Documents and/or Invalid Transactions;
4. the failure of Your Representatives and Recipients to use reasonable care in carrying out Your obligations under these Originator Terms of Use;
5. the use of the Services or the Software by You or by Your Representatives; or
6. breach of intellectual property rights of third parties arising out of the use of the Data,
7. and from and against all damages, Costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.

NON-EXCLUDABLE TERMS

Nothing in these Originator Terms of Use excludes, restricts or modifies the application of any legislation which by law of any jurisdiction cannot be excluded, restricted or modified. Without limiting the foregoing, where You are considered a “consumer” within the meaning of the Australian Consumer Law (ACL), Formbay gives the guarantees to the extent required by the ACL (Consumer Guarantees) with respect to the Software and the Services.

NO EXPRESS WARRANTY

Subject to this clause 9and in addition to (where applicable) any Consumer Guarantees and any other rights and remedies You may have under applicable law which cannot be excluded, to the extent permitted by law, all representations, warranties, guarantees, terms and conditions which would otherwise be implied in or imposed on these Originator Terms of Use in connection with any goods or services supplied by Formbay or otherwise relating to the performance of Formbay’s obligations under these Originator Terms of Use, the Software, the Legislation or the performance of any goods or the Services, are excluded. Without limiting the foregoing, to the extent permitted by law, Formbay does not represent and/or warrant that:

1. Your use of the Software will not infringe the intellectual property rights of third parties;
2. the Software will be error and/or Malware free or that its use or availability will be uninterrupted, continuous or the Software will be accessible always;
3. the Software complies with the Legislation;
4. the Software will operate in combination with other software or any equipment, or other system; or
5. the Software will provide any function other than as set out in the Documentation.

10. LIMITATION OF LIABILITY

To the extent permitted by law, in the event Formbay has any Liability to You:

1. for any failure of performance, error, omission, interruption, deletion, defect, Malware or delay in transmission or operation;
2. for any Event of Default triggered by Formbay or its Representative;
3. for any Loss and/or Liability to You;
4. for any reliance on the information or materials available via the Software (including Your Data); and/or
5. otherwise arising out of provision of the Services,

whether at common law, equity, under contract, tort (including negligence), pursuant to statue or otherwise; Your sole remedy is limited to repayment of the Subscription Fee and/or Service Fee in respect of that Created Document, Sent Document, Executed Document and/or Transaction but expressly excluding any Voidable Document and/or Invalid Transaction for which Formbay shall have no Liability whatsoever to You or Your Representatives or any Recipients for any Losses sustained by You or others.

PERMISSIBLE LIMITATION ON NON-EXCLUDED TERMS

To the extent permitted by law, Formbay’s Liability for any breach arising from a breach of any obligation or warranty under these Originator Terms of Use or any term, condition or guarantee implied or imposed by statute, which by law cannot be excluded (including any Consumer Guarantees), is limited, at the option of Formbay, to the re-supply the Software or the Services or where applicable, the payment of the cost of re-supplying the Software or the Services.

CONSEQUENTIAL LOSS

To the fullest extent permissible at law, Formbay is not Liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the Services or the Software, or otherwise arising out of the Services using the Software, whether based on contract, tort (including negligence), strict liability or otherwise, even if Formbay has been advised of the possibility of damages.

WAIVER

A failure or delay by Formbay to exercise a power or right under these Originator Terms of Use does not operate as a waiver of that power or right, and the exercise of a power or right by Formbay does not preclude its future exercise or the exercise of any other power or right.

11. NOTICES

A notice or other communication connected with these General Terms of Use (Notice) has no legal effect unless in writing and Your Contact Details are true, correct and valid.

In addition to any other method of service provided by law, the Notice may be sent to Your Contact Details as follows:

1. sent by prepaid ordinary mail to the address for service of the addressee in the Contact Details, if the address is in Australia and the Notice is sent from within Australia;
2. sent by email to the address stated in the Your Account;
3. Formbay does not have a facsimile so no Notices shall be sent and/or received by facsimile; or
4. delivered to the address for service of the addressee in the Your Account.

If the Notice is sent or delivered in a manner provided by clause 11.2, it must be treated as given to and received by the party to which it is addressed:

1. if mailed from within Australia to an address in Australia, on the 3rd Business Day (at the address to which it is mailed) after mailing;
2. if sent by email before 5.00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt;
3. if otherwise delivered before 5.00pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.

If a Notice is served by a method which is provided by law but is not provided by clause 11.2, and the service takes place after 5.00pm on a Business Day, or on a day that is not a Business Day, it must be treated as taking place on the next Business Day.

A Notice sent or delivered in a manner provided by clause 11.2 must be treated as validly given to and received by the party to which it is addressed even if:

1. the addressee has been liquidated or deregistered or is absent from the place at which the Notice is delivered or to which it is sent; and/or
2. the Notice is returned unclaimed.

A party may change its address for service by giving Notice of that change to each other party.

You indemnify Formbay for any Notice is issued by You and/or Formbay but fails to be received by either party if Your Contact Details are not true, correct and/or valid.

12. DISPUTE RESOLUTION

All questions or disputes by You relating to the Services including these Originator Terms of Use should be communicated by You to Formbay in writing. The parties’ CEOs (or other nominated person with authority to resolve the dispute) shall meet or discuss by phone/email the dispute within 14 Business Days of the date of the written notification of dispute (unless provided for otherwise in these Originator Terms of Use). If the dispute is not resolved by the parties within 28 Business Days of the date of the written notification of dispute, then either party may only seek further redress in the Courts of Australia.

FORCE MAJEURE

If the performance of this agreement or any obligations under this agreement, except the making of required payments, is prevented, restricted, or interfered with because of a Force Majeure event, the affected party, upon giving prompt notice to the other party, is excused from such performance to the extent of such prevention, restriction, or interference. The affected party must use its best efforts to avoid or remove the Force Majeure event or to limit the impact of the event on its performance and must continue performance with the utmost dispatch when the Force Majeure event is removed.

AMENDMENTS

Formbay may vary these Originator Terms of Use at any time by general notice on a page of the internet referred to on the home page of the Website. Any variation of these Originator Terms of Use will take effect on the date specified on the notice. If You do not wish to accept the amendments, please notify us before the date the amendments take effect and Formbay will terminate Your Account. If You continue to use or access the Software or the Services after the amendments come into effect, You will be deemed to have accepted the amendments

These Originator Terms of Use constitute the entire agreement with respect to its subject matter in its entirety and supersede prior agreements.

15. GOVERNING LAW

The laws of the Commonwealth of Australia govern these Originator Terms of Use and the parties submit to the non-exclusive jurisdiction of the Federal courts of Australia.

16. SECURITY INTEREST

You grant to Formbay a Security Interest over all Subscription Fees and/or Services Fees owed by You to Formbay and acknowledge that Formbay may register a Financing Statement on the PPSR to protect such interest.

You grant to Formbay a PMSI in respect of any Subscription Fees and/or Service Fees owed by You to Formbay and acknowledge that Formbay may register a Financing Statement on the PPSR to protect such interest.

17. FORMBAY COMMUNICATION & INSPECTION OF TRANSACTION DOCUMENTS/PARTIES

You acknowledge that:

1. Formbay may, at its sole discretion, telephone, email, write to the Recipient;
2. You indemnify Formbay for any Liability and/or Losses claimed against Formbay due to any Voidable Documents and/or Invalid Transactions; and
3. Formbay may set-off any Liability and/or Losses claimed against Formbay in accordance with this clause against any future Subscription Fees and/or Service Fees payable by You.

18. RUNNING ACCOUNT & SET-OFF

1. You represent and warrant that any indebtedness owed by You to Formbay under these Originator Terms of Use (e.g. You have unpaid Subscription Fees and/or Service Fees owing) may be satisfied, at any time and without notice to You and to the fullest extent permitted by law, by means of the cancellation of Your indebtedness to Formbay by Formbay offsetting and being reimbursed such indebtedness from any other existing and/or future Subscriptions Fees and/or Service Fees payable by You to Formbay for any valid Created Document, Executed Document and/or Transaction submitted by You to Formbay and any other monies owed to You.
2. You represent and warrant that Formbay may at any time and without notice to You and to full fullest extent permitted by law set-off and apply any all other indebtedness at any time owed by Formbay to You against any indebtedness (whether such indebtedness arises before and/or after any administration, insolvency and/or receivership crystallising resulting from dealings before such proceedings commence) owed by You to Formbay irrespective of whether or not Formbay shall have made any demand under these Originator Terms of Use or App Terms of Use or other relevant transaction document.

19. LIMITATION PERIOD

The parties agree that such limitation period in respect of any Liability is to be three months following termination of these Originator Terms of Use and the Originator agrees 3 months is a suitable limitation period.

20. NON-SOLICITATION OF FORMBAY PERSONNEL

You agree not to entice, poach or otherwise encourage an employee and/or contractor employed and/or engaged on a contracted basis by Formbay to cease providing services to Formbay and provide such services to you for the term of these Originator Terms of Use.

SCHEDULE 1

PROHIBITED ACTS

You must not (and must ensure Your contractors, agents, Recipients and employees do not), even after the termination or expiry of these Originator Terms of Use:

1. Take and/or send to a third party any screen shot/print screen of the Software;
2. sell, lease, license, sub-license, rent, loan, timeshare, encumber, provide, disclose, distribute or otherwise transfer or make available to, or permit use of the Software or any material created by You using the Software or the Services, in whole or in part, to any third party;
3. acquire, download, reproduce, or install the Software, in whole or in part, on any computer equipment other than during use permitted under these Originator Terms of Use;
4. use the Software or the Services for (or to promote or encourage) any illegal, fraudulent or inappropriate purpose, or about any violation of the legal rights (such as rights of privacy and publicity) of others;
5. use the Software or the Services for providing legal or financial services or advice or for any purpose requiring continuous or fail-safe operation or for the avoidance of personal injury, death or illness of any person;
6. alter, remove or otherwise interfere with any Created Document/Sent Document/Executed Document/Transaction applied by or created in the account of another user;
7. construct Your own system to access the information on the Software;
8. send, upload, distribute or disseminate onto or via the Software or the Services or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content;
9. intentionally distribute Malware via the Software;
10. transmit content or use the Software or the Services that in the opinion of Formbay acting reasonably may be considered harmful to or inappropriate for minors;
11. impersonate another person (via the use of an email address, account and/or Contact Details) or otherwise misrepresent yourself or the source of any email or communication when using the Software or the Services;
12. interfere without cause in the reasonable enjoyment by other Formbay users of the Services;
13. create multiple user accounts, create user accounts by automated means or otherwise engage in false, fraudulent, deceptive or misleading conduct in respect of user identity;
14. sell, trade, resell, transfer or otherwise attempt to dispose of, or otherwise exploit any content on the Software (including Your Data) for any unauthorised commercial purpose;
15. decompile, disassemble, reverse engineer, attempt to derive the source code for, modify, adapt, translate or copy the Software, in whole or in part; or develop any software or create derivative works based upon the Software;
16. remove, tamper with, seek to override or otherwise interfere with any security or technological protection measure forming part of the Software;
17. remove any copyright, trade mark or other proprietary rights notices contained in or on the Software or Services;
18. reformat or frame any portion of any web page that is like the Software or the Webpage;
19. create a deep-link to the Website for any purpose unless expressly authorised in writing by Formbay;
20. use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages contained in the Website;
21. access, via automated or manual means or processes, the Software for purposes of monitoring its availability, performance or functionality or for any competitive purpose;
22. attempt to or access the Software by any means other than through the interfaces provided by the Website or via the Device Application;
23. engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on Formbay’s infrastructure, including but not limited to unsolicited communications to other users or our personnel, attempts to gain unauthorised access, or transmission or activation of computer viruses/Malware;
24. interfere with or disrupt the availability of the Software, including but not limited to any servers or networks connected with the Website; or
25. misrepresent Formbay or the Software or the Services as being associated with content with another website, web service, software service, software or other service without Formbay's prior permission.

SPAM

You are prohibited from generating or facilitating unsolicited commercial communication (spam). Such activity includes, but is not limited to:

1. sending communication in violation of Australia's Spam Act 2003 (Cth) or any other applicable anti-spam law;
2. imitating or impersonating another person or email address or Formbay's account, or creating false accounts and/or Contact Details for the purpose of sending spam;
3. data mining any web property (including Formbay’s web property) to find email addresses, accounts and/or Contact Details;
4. sending unauthorised mail or communication via open, third-party servers;
5. sending emails or communication to users who have requested to be removed from a mailing list or Your contact list;
6. selling, exchanging or distributing to a third party the email addresses of any person without such person's knowing and continued consent to such disclosure; and
7. sending unsolicited emails or communications to significant numbers of email addresses or accounts belonging to individuals and/or entities with whom You have no pre-existing relationship.

SCHEDULE 2: ADDITIONAL SERVICES

No.	Additional Service	Service Fee

SCHEDULE 3: SUBSCRIPTION PLAN & SUBSCRIPTION FEE