Terms and Conditions of Use
1. Acknowledgement and Acceptance
1.1. These terms and conditions (Terms) apply to all services provided by Fuse LMS Pty Ltd (ACN 156 307 578) ATF Fuse LMS Unit Trust trading as Kademi (Kademi) including the Online Kademi Platform (Platform Services) and all other professional services provided by Kademi (Professional Services) collectively referred to as the services (Services). In these Terms as Kademi may also be referred to as "we", "us," "our" or other similar expressions.
1.3. We may, at our sole discretion, modify these Terms at any time. If you do not wish to be bound by these Terms, you must immediately discontinue your use of the Services. Your subsequent or continued use of the Services will constitute your acceptance of any changes.
2. Description of the Services
Online Kademi Platform
2.1. The Platform Services provide an online software platform for registered users (Users) to create and manage their own website and allow end users to access this website. We reserve the right to refuse to provide the Platform Services to any person for any reason and/or to discontinue the Platform Services in whole or in part at any time, with or without prior notice.
2.2. We provide back up of our user’s websites, however, we do not warrant that the back-up will be free of errors or satisfy your requirements. For this reason we advise you provide your own back-up of important information.
2.3. Kademi will update the Platform Services to improve features. When an update occurs this may result in the temporary unavailability of the Platform Services.
2.4. The use of the Platform Services is dependent on you obtaining and maintaining a suitable internet connection. The speed of the Platform Services is dependent on the speed of the internet connection.
2.5. Any Professional Services provided by Kademi will be in accordance with those described in the scope of work outlined in the Production Estimate provided to you. The fees in the Production Estimate are based on the specific scope of work provided to Kademi and any changes or alterations to the scope of work may also result in changes the fee estimate.
2.6. Should changes to the Production Estimate be necessary, Kademi will discuss this with you at the earliest possible opportunity to confirm and agree upon any variations to the Production Estimate.
2.7. Following the presentation of the initial concept, unless otherwise specified in the Production Estimate, the Professional Services include one (1) round of reasonable creative changes. These changes do not include any functional changes previously approved in the scope of work. Any further revisions will be charged in accordance with Kademi’s hourly rates.
2.8. Kademi will not be liable for any delay or failure to perform their obligations where such delay or failure to perform arises from circumstances outside Kademi’s reasonable control.
2.9. Timely delivery of the Professional Services is dependent on Kademi receiving any requested information and content from you necessary to perform the Professional Services (Materials) in a prompt manner. Kademi will not be liable for any delay or failure to perform their obligations where such delay or failure arises from circumstances outside Kademi’s reasonable control.
2.10. Kademi will assume all Materials provided are accurate and complete and takes no responsibility for errors or omissions caused as a result of the Materials supplied by you. Any changes required as a result of errors or omissions in the Materials will be charged in accordance with standard rates.
2.11. All Materials must be supplied in a suitable digital format unless agreed otherwise beforehand. Images should be supplied as jpeg, gif, tif, png or psd format. Text should be supplied as a Microsoft Word or an ASCII text file. Failure to supply Materials in digital format may result in extra charges. Where the Materials are provided is in a form where a significant amount of copy writing is required, a further charge may be made.
Online Kademi Platform
3.1. The scope of use of the Platform Services is limited in accordance with the Subscription Plan you subscribe to. If you wish to upgrade your Subscription Plan you can contact Kademi through Kademi website http://www.kademi.co/ (Website).
3.2. All Users are responsible and legally liable for their (or their client’s) activity, behaviour, use of and conduct on the Platform Services.
3.3. Your use of the Platform Services is subject to all applicable laws and regulations, and you are solely responsible for the substance of your communications through the Platform Services.
3.4. Use of the Platform Service is conditional on payment of the subscription fees (Fees)
3.5. The Fees are subject to change from time to time. It is your responsibility to confirm the Fees for your Subscription Plan as specified on the pricing page available here.
3.6. Kademi provide free access to the Platform Services on a Free Subscription (Free Subscription).
3.7. Where your Free Subscription limits are exceeded, Platform Services will commence in accordance with the Fees for that Subscription Plan and will be invoiced at the end of each month. You may upgrade and downgrade your Subscription Plan at any time by contacting Kademi through the Website. Downgrading the Platform Service may result in loss of features.
3.8. Failure to pay Fees may result in the suspension or cancellation of your access to the Platform Services, at the sole discretion of Kademi.
3.9. No refund of Fees will be payable on any account whatsoever save that a refund may be granted, in Kademi’s sole discretion, of Fees paid for the unexpired term of a users account in the event that the online data & content of the user is lost due to the fault of Kademi and the user does not request the continued use of the Platform Services.
3.10. You do not have the right to set off any money you may claim from Kademi against anything you may owe Kademi for Services. You shall indemnify and keep indemnified Kademi against all expenses and liabilities Kademi may incur (directly or indirectly and including legal and debt-recovery costs on a full indemnity basis) following any breach by you of any of your obligations under these terms.
3.11. Any quotations mentioned in Kademi’s Production Estimate for Professional Services are valid for 15 days from the date of the Production Estimate.
3.12. Should you wish to terminate a Professional Services agreement prior to the commencement of work, Kademi will be entitled to a penalty of 15% of any quotations mentioned in the Production Estimate. Should the project be terminated after work has commenced, you will be invoiced the 15%, or for work already completed, whichever is greater.
3.13. Kademi will notify you if the estimate in the Production Estimate is reached before the Professional Services are completed and is likely to be exceeded materially.
3.14. All hourly rates, quotations and fee estimates mentioned in the Production Estimate are quoted in Australian Dollars.
3.15. You will pay 50% of the Production estimate before the Professional Services are commenced and the remaining 50% of the Fees within 14 days of completion of the Professional Services.
3.16. Kademi reserve the right to charge interest on invoices that are not paid within that time at the rate of 18% per annum.
3.17. Kademi may, unless you instruct us otherwise, seek such specialist services on areas outside our expertise. The costs of such services will be passed on to you with a loading of 10%.
3.18. Kademi’s Production Estimate is exclusive of any third party costs including photography, illustration, video production and sound recording. Unless specifically included in the Production Estimate no third party costs are included with the Professional Services.
4. Use of the Services
4.1. You must provide your legal full name, valid email address, and any other information requested in order to complete the signup process. Not all parts of the Services may be available to you or other authorised Users of the Services. You must keep your contact details up to date with us.
4.2. You must keep your user ID and password secure and confidential at all times. Kademi is not liable for any damages (including damages relating to you not being able to restore backup data or the disclosure of confidential information) resulting from loss/corruption/compromise of your user ID and/or password.
4.3. You must not use your account to breach security of another User’s account or attempt to gain unauthorised access to another network or server. You must not interfere with anyone else’s use and enjoyment of the Services. Users who violate systems or network security may incur criminal or civil liability.
4.4. You must not use any robots, spiders, or similar data mining, data gathering or extraction tools or manual processes to collect, gather or copy any content or data on or related to the Services in a manner not authorised by Kademi in writing. You must not engage in practices of "screen scraping," "database scraping" or any other practice or activity the purpose of which is to obtain lists of users, portions of a database, or other lists or information from the Services, in any manner and any quantities not authorised by Kademi in writing. You must not frame or utilise framing techniques to enclose any trademark, logo or other proprietary information (including images, text, page layout or form) of Kademi or its affiliates without express written consent of Kademi. You must not use metatags or any other "hidden text" utilising Kademi’ name or trademarks without the express written consent of Kademi.
4.5. You agree that you will not upload, share, post, or otherwise distribute or facilitate distribution of any Content — including text, communications, software, images, sounds, data, or other information — or use the Services in any way that:
4.5.1. is unlawful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals);
4.5.2. violates any laws, regulations or our rules or policies;
4.5.3. is false or misleading;
4.5.4. victimises, harasses, bullies, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; infringes on any patent, trademark, trade secret, copyright, right of publicity, or other intellectual property or proprietary right of any party;
4.5.5. constitutes unauthorised or unsolicited advertising, junk or bulk email (Spamming), chain letters, any other form of unauthorised solicitation, or any form of lottery or gambling;
4.5.6. imposes an unreasonable load on our infrastructure or interferes with the proper working of the Services; contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorised access to any data or other information of any third party;
4.5.7. copies, modifies, or distributes any other person's content without their consent;
4.5.8. impersonates any person or entity, including any of our employees or representatives;
4.5.9. harvests or otherwise collects information about others, including email addresses, without their consent; or
4.5.10. bypasses measures used to prevent or restrict access to the Services.
4.6. You agree that we may at any time, and at our sole discretion, terminate your membership, account, or other affiliation with the Service without prior notice to you for violating any of the above provisions or for non-payment of Fees or for any reason whatsoever, at our own discretion.
4.7. Kademi may remove and destroy all of your data and content 90 days after the termination date.
4.8. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.
5. User License
5.1. The Service, the Kademi Software and all other services or software provided by Kademi is provided on an "as is" basis with no warranties of any kind and Kademi will not be liable for any damages of any kind arising from use of the Services. Kademi further disclaims all warranties, express and implied to the maximum extent permitted by applicable law, including without limitation, any implied warranties of merchantability or fitness for a particular purpose.
5.2. Kademi grants you a non-exclusive, non-transferable, royalty-free, limited license to use the application form of the software provided in the Platform Services by Kademi for business or personal use. Such software may not be sublicensed or assigned or otherwise distributed by you unless agreed by Kademi.
5.3. Kademi reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice.
6. User Content
6.1. Content uploaded or submitted by Users for inclusion in the Platform Services (Content), whether published or not, will be subject to these Terms.
6.2. Kademi does not guarantee any confidentiality with respect to Content, regardless of whether or not it is published. You are solely responsible for your own Content and the consequences of posting it.
6.3. You represent and warrant that you own or have the necessary licences, rights, consents and permissions to your Content (and all content included therein), including the right to authorise Kademi to use the Content in the manner contemplated by the Services and these Terms.
6.4. You hereby grant to Kademi a non-exclusive, royalty-free, worldwide, perpetual license to use the Content to create case studies for the purpose of advertising and promotion.
6.5. It is not Kademi’s intent or obligation to regulate or moderate online content. Kademi is not liable for any Content uploaded or posted by any User to the Platform Services. Kademi reserves the right to alter or remove content that we become aware of and determine to be in breach of these Terms or otherwise harmful or inappropriate in our absolute discretion. Termination or suspension of your account may occur as a consequence of the violation of these Terms or as a result of the need to alter or remove content under this clause.
6.6. You authorise Kademi to view all online Content for the purpose of providing the Platform Services.
7. NO LIABILITY AND INDEMNITIES
7.1. YOU USE THE SERVICES AT YOUR OWN RISK. WE ARE PROVIDING THE SERVICES AS IS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT THE SERVICES WILL ALWAYS BE SAFE OR SECURE OR THAT THE SERVICES WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS.
7.2. YOU RELEASE US FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM ARISING FROM YOUR USE OF THE SERVICES OR YOUR ASSOCIATION WITH OR INTERACTION WITH Kademi OR THE SERVICES. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS STATEMENT OR YOUR USE OF THE SERVICES OR Kademi OR YOUR ASSOCIATION WITH OR INTERACTION WITH Kademi, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR THE SERVICES OR Kademi WILL NOT EXCEED THE TOTAL FEES PAID TO Kademi (EXCLUDING INSTALLATION AND SET-UP FEES) FOR THE RELEVANT INVOICE. IF APPLICABLE LAW DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF DAMAGES, Kademi’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
7.3. IN THIS CLAUSE THE PHRASE "YOUR" INCLUDES YOUR CUSTOMERS AND CLIENTS WHO MAY BE USING THE SERVICES.
7.4. Kademi IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES INCLUDING OTHER Kademi’ USERS.
7.5. Kademi IS NOT RESPONSIBLE FOR ANY UNAUTHORISED ACCESS TO THE SERVICES WHICH MAY RESULT IN YOUR OR YOUR CUSTOMER’S DETAILS BEING ACCESSED AND/OR MADE PUBLICLY AVAILABLE.
7.6. IF ANYONE BRINGS A CLAIM AGAINST US RELATED TO YOUR ACTIONS, CONTENT OR INFORMATION YOU PROVIDE TO THE SERVICES OR Kademi, YOU WILL INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE LEGAL FEES AND COSTS) RELATED TO SUCH CLAIM.
7.7. YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY OFFENSIVE, INAPPROPRIATE, OBSCENE, UNLAWFUL OR OTHERWISE OBJECTIONABLE CONTENT OR INFORMATION YOU MAY ENCOUNTER WHILE USING THE SERVICES. YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES.
7.8. YOU WARRANT THAT YOU ARE OVER 16 YEARS OF AGE.
8.1. Neither Kademi nor its directors, employees, partners, representatives or associated agents are liable to you or any third party for any loss in connection with the use of the Services. This general disclaimer is not restricted or modified by any of the specific warnings and disclaimers contained in these Terms.
8.2. You acknowledge and agree that by using the Services you doing so at your own risk.
8.3. Neither Kademi nor its related companies represent or warrant:
8.3.1. that your use of the Services will meet your requirements;
8.3.2. that your use will be uninterrupted, timely, secure or free from error;
8.3.3. the accuracy of any information obtained by you as a result of your use of the Services; and
8.3.4. that defects in the operation or functionality of any part of the Services will be corrected;
8.3.5. that any third party software, services or products utilized by our Services will be free from error or meet your requirements.
8.4. Any material downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and you will be solely responsible for any damage to your mobile phone, computer system or other device or loss of data that result from the download of any such material.
8.5. We are not responsible for any material downloaded or otherwise obtained by you through the use of the Services that may be passed on to third parties or otherwise dealt with inappropriately.
9. Intellectual Property
9.1. You acknowledge and agree that all content and intellectual property included on the Website and online Platform (other than your Content), including text, graphics, logos, button icons, images and software or any other form of intellectual property rights derived from aesthetics or functionality of the Services is the property of Kademi and is protected by international copyright, trade mark and other intellectual property laws. All programs used on the Website are the property of Kademi or its software suppliers. Any attempt to copy, amend, adapt, reverse engineer, disassemble, or decompile any such programs, unless explicitly permitted, is prohibited by law.
9.2. You warrant that you own the intellectual property rights in or are entitled to use any Content and Materials which are submitted, uploaded or transmitted when using the Services. You warrant that the uploading and provision of this Content and Material by you does not breach any third party’s intellectual property rights.
9.3. You indemnify and will at all times keep Kademi indemnified against any action, claim, suit or demand, including a claim, suit or demand for or liability to pay compensation or damages and costs or expenses arising out of or in respect of any breach of any third party's intellectual property rights.
9.4. You acknowledge and agree that if you require us to develop a bespoke feature for you, we own the intellectual property in that feature, including text, graphics, logos, button icons, images and software or any other form of intellectual property rights derived from aesthetics or functionality of that feature. You further acknowledge and agree that as owner of the intellectual property in these bespoke features created for you, we retain the right to commercially exploit any of these bespoke features.
9.5. You grant Kademi permission to utilise logos and any other company branding for the purposes of creating the Services.
9.6. Kademi owns the intellectual Property Rights in the Production Estimate, proposals and any other documents provided by Kademi and these Intellectual Property Rights are not assigned to you.
9.7. You grant us a non-exclusive, worldwide, royalty-free, perpetual, licence to use, reproduce, edit and exploit the Services provided to you for marketing and promotional purposes.
9.8. Kademi may develop or use for other clients any ideas, concepts, source code, information or know how reflected in any of the materials provided to you (in whatever form) or otherwise developed during the course of providing the Services to you.
9.9. All products, creative works, plans for designs, unique campaign ideas, slogans, copy themes, preliminary sketches, layouts, copy, artwork, production services, public and other marketing material (whether on paper, computer disk, by email or in some other digital format) accepted by Kademi, shall, upon receipt of full payment by you for the Professional Services, be your property, except to the extent that any intellectual property rights therein have been reserved by Kademi or third parties engaged or employed by Kademi.
10.1. Kademi undertakes to take all due care with any information provided by you when accessing the Services. However Kademi does not warrant and cannot ensure the security of any information which you may provide. Information you transmit is entirely at your own risk.
11. Third Party Websites
11.1. Content on our Services may link to third party websites which are not owned or operated by Kademi. We are not responsible for the content on, and the terms and conditions pertaining to, these external sites. We recommend that you investigate these sites own terms and conditions.
12. Technical Assistance and Support
12.2. Kademi does not guarantee any level of support or response times.
12.3. Support will only be provided to a user who is our direct client (the entity who pays the Fees). Support will not be provided to a user who may be using the Platform Services through one of our clients.
12.4. We will only provide support for our Platform Services. We will not provide support relating to any content or third party software, service or product issues.
12.5 Kademi takes no responsibility or liability for the configurations or code we provide when supporting you.
12.6 No refund will be given for unused time that has been previously paid for on a support plan if cancelled.
12.7 All paid support plans are additional to your monthly platform subscription.
13.1. Kademi is entitled to assign or transfer its rights or obligations under these Terms without your consent.
14.1. If any of the provisions set out in these Terms are determined to be void or unenforceable then that provision must be read down to avoid that result or if the provision cannot be read down then it must be severed and the rest of the Terms will remain in full force and effect.
14.2. The failure of Kademi to enforce any provision of these Terms at any time or for any period of time will not be construed to be a waiver of such provision or of the rights of Kademi to enforce each and every provision of the Terms. A waiver of a power or right shall in ineffective unless in writing and executed by Kademi.
15. Governing Law
15.1. These Terms will take effect and be construed in all respects in accordance with and governed by the laws of New South Laws Australia. The parties irrevocably submit to the jurisdiction of New South Wales for all proceedings arising in connection with these Terms.