Terms & Conditions

1. Definitions and interpretation

1.1.  In these terms of use, the following definitions apply:

Additional Services means any services provided to you in addition to your access to and use of Factory, including any consulting services or training.

Administrator means a natural person who is authorised by you to access and use Factory under your customer account and who is nominated by you as an Administrator during your registration for a Subscription with Factory or otherwise during your Subscription with Factory. You may nominate more than one Administrator.

Authorised User means a natural person invited by an Administrator to access and use Factory under your customer account.

Confidential Information of a party is information of a party or its customers which the party identifies as confidential or which would reasonably be regarded as confidential and includes without limitation information relating to the party’s Intellectual Property Rights, organisational structure, financial position, personnel, policies and business strategies.

Corporations Act means the Corporations Act 2001 (Cth).

Factory means the Factory platform accessible through this website, being an internal order management service that enables manufacturers to efficiently manage and track orders from customers.

Customer means the party whose details have been entered as the customer during the registration process for Factory and any parent company of that party and each subsidiary of that party (being an entity in which the party holds at least 50% of the ordinary shares or common stock) as may be notified by the party to us, and only for so long as the parent company or subsidiary remains a parent company or subsidiary of the party.

Data means the data which is input into Factory through your account when using Factory.

Force Majeure means any event or circumstance beyond the reasonable control of a party.

GST has the meaning given to that term in the GST Act.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Indirect Loss means any one or more of the following:

• economic loss, loss of actual or anticipated profits, loss of revenue, loss of savings, loss of production, loss of business, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of credit, loss of publicity, loss of data, loss of use, loss of interest or loss arising from business interruption; and
• any special, indirect, consequential, incidental, punitive, exemplary or unforeseeable loss or any similar loss.

Intellectual Property Rights means all present and future intellectual, industrial or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trade marks, designs, trade secrets, know-how, confidential information and circuit layouts.

Personal Information has the meaning given to that term in the Privacy Act.

Privacy Act means the Privacy Act 1988 (Cth).

Stay means a stay on enforcing rights against a party which arises under the Corporations Act if:

• an administrator or a receiver, receiver and manager, judicial manager, liquidator, administrator, controller or like official is appointed to the party or to the whole or a substantial part of the undertaking or property of the party, including any of its assets; or
• it enters into, or takes steps or proposes to enter into, an arrangement, compromise or composition with its creditors or a class of them, or an assignment for the benefit of its creditors or a class of them.

Subscriptions has the meaning given to that term in clause 6.1.

Subscription Fees means the service fee payable by you for the Subscription you choose.

1.2.  In these terms of use, unless the context otherwise requires:

(a)  words denoting any gender include all genders;

(b)  headings are for convenience only and do not affect interpretation;

(c)  the singular includes the plural and vice versa;

(d)  any schedule or annexure attached to these terms of use forms part of them;

(e)  a reference to a party includes its legal personal representatives, successors and permitted assigns;

(f)  a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;

(g) a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(h) unless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar inclusive expressions; and

(i) a reference to these terms of use means this document and includes any variation or replacement of this document.

1.3 Acceptance of these terms of use

(a)  These terms of use apply to your use of and access to Factory from the date you first accept these terms of use and continue until terminated in accordance with clause 24. Before you use Factory, it is important that you read, understand, and agree to these terms of use.

(b)  You must not use Factory if you are not of a legal age or capacity to form a binding contract with us.

2. Right to use Factory

2.1.  Subject to our acceptance of your online registration for provision of Factory and your payment of the relevant Subscription Fees, we grant you a limited, non-exclusive, non-transferable, revocable right to access and use Factory for your internal business operations on the terms set out in these terms of use and our online registration form.

3. Access Credentials

3.1.  We will provide each Administrator with a username and password, which will enable that Administrator to access and use Factory on your behalf. Each Administrator must select his or her own username and password at the time of first use of Factory. You can add, remove or replace Administrators through your account with Factory.

3.2. Factory allows each Administrator to invite another person to access and use Factory under your customer account.  An Administrator inviting another person to use your customer account will constitute authorisation of that other person by you to use your account.  A username, linked to your account, will be created for each new or additional Authorised User and provided directly to each Authorised User.  Each Authorised User must select his or her own username and password at the time of first use of Factory.

3.3. You must:

(a) ensure that each Administrator and Authorised User keeps his or her username and password confidential and does not disclose it to any other person (and in order to improve the security of their account, amends his or her password from time to time);

(b) ensure that you can identify and manage each Authorised User entrusted with a username and password combination for your customer account;

(c) refrain from authorising anyone to use your customer account who is not either employed by you or under contract with you to perform functions similar to those commonly performed by employees;

(d) notify us of the names of each Authorised User if requested by us; and

(e) immediately notify us of any unauthorised use of your password or account or any other breach of security.

3.4. You are responsible for:

(a) authorising any person who is given access to Factory using your customer account and to the Data; and

(b) all activities that occur under your account, including all fees and charges in connection with that use.

3.5. You agree that we have no obligation to provide any person access to Factory through your customer account or to the Data without your authorisation.

4. Your use of Factory

4.1. You must ensure that your access and use of Factory is not illegal or prohibited by laws that apply to you.

4.2. You must not, nor cause or permit a third party to:

(a) use Factory in a manner or for a purpose which is improper, immoral or fraudulent, which infringes any person’s Intellectual Property Rights, or which restricts or interferes with our provision of Factory to any other customers or users;

(b) reverse engineer, reverse assemble or reverse compile or copy or duplicate or modify or make derivative works of or re-sell all or part of Factory (or any of our Intellectual Property Rights in Factory)

(c) enter into any transaction relating to:

(i) access or use of Factory;

(ii) any part of your customer account information or access credentials; or

(iii) any of our Intellectual Property Rights in Factory, with anyone other than us, without our written consent;

(d) gain or attempt to gain unauthorised access to Factory, computer systems or networks connected to Factory, including through hacking, password mining or any other means; or

(e) harass, impersonate, stalk or threaten another Shipper or Carrier (Where interaction with other customers is made available to you through Factory);

(f) use data mining, robots, screen scraping or similar data gathering and extraction tools on Factory for establishing, maintaining, advancing or reproducing information contained in Factory, on your own website or in any other publication, or for your own personal use or benefit (other than as expressly set out in these terms of use), except with our prior written consent.

4.3. You indemnify, and will defend and hold us and our affiliates, representatives, successors and assigns, including their applicable officers, directors, employees and agents, harmless in relation to any loss, claim or damage in connection with any claim by a third party related to your Data, your content or any of your users’ use of Factory where such use is not authorised by these terms of use

5. Subscription

5.1. There are different subscription plans for Factory, with different inclusions and pricing, details of which are available at [insert link] (Subscriptions).

5.2. If you require any further customisation of Factory for your specific needs, you may request us to provide Additional Services in accordance with clause 11.

6. Managing orders

6.1.  You can use Factory to manage orders submitted by your customers, including to automate pricing and fees charged to your customers.

6.2.  Subject to our obligations under clause 23, if you choose to manage customer orders through Factory you acknowledge that:

(a) you are ultimately responsible for checking and ensuring that each order is inputted and processed correctly and that pricing for each order is calculated correctly through Factory;

(b) we are not responsible for the calculation, creation or processing of any order, including:

(i) incorrect pricing calculations;

(ii) incorrect values in an order (eg quantity of products);

(iii) any glitches or bugs within Factory which result in any of the incorrections described under (i) or (ii) above; and

(c) you release and indemnify us (as well as our affiliates, supplier, directors, officers, employees and agents) from any and all claims, liabilities, costs and expenses (including legal fees) arising in any way from these matters.

7. Your Data

7.1.  You are responsible for all Data which you input into Factory through your account or otherwise provide to us.  You are solely responsible for determining the purposes and means of processing that Data, including Personal Information, by us under these terms of use, and must ensure that processing conducted according to your instructions will not place us in breach of any laws (including applicable data protection or privacy laws).

7.2. You warrant that:

(a) you have obtained all consents necessary to collect, store, disclose, use and transfer the Data, including any Personal Information included in the Data;

(b) the Data will not violate or infringe the rights (including Intellectual Property Rights) of any other person;

(c) the Data will not contain a virus or other harmful component; and

(d) the Data will comply with any guidelines we notify to you from time to time on this website.

7.3. You are responsible for and must adopt reasonable measures to limit your exposure to the potential loss and damage of the Data, including secure storage of the source material.  We expressly exclude liability for any loss of Data no matter how caused.

7.4. You acknowledge that we may not be able to provide Factory if the Data is not of a quality or condition suitable for processing based on our applicable standards, specifications and procedures or is otherwise not in the format we require.

7.5. You acknowledge that we may use the Data and information derived from the Data to produce a compilation of aggregated data and information for use in enhancing the functionality of Factory. We will ensure that the Personal Information disclosed by you to us cannot be ascertained from the aggregated data and information.

7.6. You agree that we may, at our sole discretion, disclose, transfer and store the Data, including Personal Information, to or with our third party service providers and affiliates outside Australia for the purpose of providing Factory or any part of it. The jurisdictions in which those Data transfers may occur are included in our Privacy Policy available at [insert link to privacy policy]. You consent to us providing Personal Information to those third party service providers and affiliates in those jurisdictions and (before submitting any Data to us) are solely responsible for ensuring that any disclosure, transfer or storage of Data, including Personal Information, across a country border under these terms of use complies with applicable data protection and privacy laws, including the Privacy Act.

8. Viruses

8.1.        You must take your own precautions to ensure that the process which you use for accessing Factory does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system.

8.2.        We do not accept responsibility for any interference or damage to your own computer system which arises in connection with your use of Factory or any linked website or service.

9. Service Availability

9.1.        While we intend to use reasonable endeavours to make Factory available for your use on a 24 hour a day, seven days a week basis, you expressly acknowledge and agrees that service continuity is not assured and that Factory is provided on an ‘as is’ basis. In particular, you agree that on occasions Factory may be unavailable or have limited availability including:

(a) to permit routine or emergency maintenance to take place;

(b) to permit upgrades or other development activity to take place;

(c) due to technical malfunctions of Customer’s software, equipment or infrastructure (e.g. telecommunications connectivity, network congestion or delays);

(d) due to a Force Majeure event; or

(e) due to clause 10.3 applying.

9.2.  In the case of technical problems which adversely affect your use of Factory, you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need technical help, you must notify us promptly via email to support@factory.app.

9.3.  We may temporarily limit or suspend the availability of all or part of Factory if it is necessary for reasons of public safety, security or maintenance of Factory, interoperability of services, data protection or to perform work that is necessary for operational or technical reasons.

10. Additional services

10.1.  You may ask us to provide Additional Services to you.  If we agree to provide Additional Services to you, we may charge you for providing the Additional Services at our prevailing rates for those services as notified by us to you.

11. Fees and payment

11.1. You agree to pay us the Subscription Fees for the Subscription you choose, as set out at [insert link to pricing].

11.2. We will send you an invoice at the end of each calendar month for your usage of Factory in the previous month.

11.3.  The Subscription Fees for the Subscription you choose will be billed from your account at the beginning of each calendar month for your usage of Factory in the previous month, through a third party payment platform.

11.4.  We may change the Subscription Fees by giving you 30 days’ notice of the change.

12. Failure to pay

12.1.     If you fail to pay any amount due under these terms of use by the due date, then:

(a) all money owing to us by you becomes immediately payable;

(b) we may suspend your access to Factory and may charge a reactivation fee to reactivate your customer account; and

(c) you must pay all reasonable expenses incurred by us in enforcing these terms of use, including all expenses of any legal proceeding and all reasonable legal fees incurred in connection with any such action.

13. GST and taxes

13.1. You must reimburse us for all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transactions contemplated under these terms of use, excluding, however, income taxes on profits which may be levied against us.

13.2. Without limiting clause 15.1, all consideration provided for any taxable supply under these terms of use is exclusive of GST unless the contrary is clear.  The amount of that consideration must be increased by an additional amount equal to the GST on that taxable supply.  The party who has to pay the additional amount must pay it at the same time as the consideration in respect of that taxable supply becomes due.

13.3.  If at any time an adjustment is made or required to be made between a party and the relevant taxing authority on account of any amount paid as GST under these terms of use:

(a) a corresponding adjustment must be made;

(b) adjustment notes must be issued; and

(c) any payment must be made,

between the parties as may be necessary to give effect to the adjustment.

14. Intellectual Property Rights

1.1. Except for the limited licence to access and use Factory under clause 3, all ideas, concepts, know-how, data processing techniques, data compilations, software, documentation, trade marks, trade secrets, copyright and inventions and other Intellectual Property Rights comprised in or in connection with the Factory (including its underlying technology, software, programs, as well as all its respective modifications, developments, updates and enhancements) are owned by us or our licensors. You agree that no transfer of our (or our licensors’) Intellectual Property Rights occurs at any time by access and use by you (or your users’) use of Factory.

14.1. You do not own or use, and must not claim any right or title to own or use, the Intellectual Property Rights in Factory, except to the extent such use is permitted under these terms of use. You must not dispute or challenge our (or our licensors’)  entitlement to own, use or licence the Intellectual Property Rights in Factory (including its underlying technology, software, programs, as well as all its respective modifications, developments, updates and enhancements) or join any third parties to challenge or contest the validity of those Intellectual Property Rights.

14.2. You agree to notify us promptly of any infringement, or suspected or threatened infringement, of the Intellectual Property Rights in Factory and reasonably co-operate with us in relation to such infringement.

15. Confidentiality

15.1.  Each party must not without the written consent of the other:

(a) use any Confidential Information of the other party, except in performing its obligations under these terms of use; or

(b)  disclose any Confidential Information of the other party to any person except to its approved employees, officers, directors and other representatives, who need to review the Confidential information in connection with performance under these terms of use, and then only to those who need to know the same and who agree to be bound by similar obligations of confidentiality. Despite the foregoing, we may disclose certain Confidential Information of yours to our third party suppliers, subject to the obligation of confidentiality, as necessary to (i) provide you with Factory or obtain support for Factory, (ii) obtain information specifically requested by you, (iii) perform back-office functions or administrative services, or (iv) as necessary to comply with legal and/or accounting requirements.

15.2. Clause 17.1 does not apply where:

(a) disclosure is required by law or required to respond to requests by a regulatory or judicial body;

(b) the Confidential Information is in the public domain through no fault or action of the recipient, its employees or subcontractors; and

(c) the Confidential Information was received by the recipient on a non-confidential basis from a third party who is not prohibited from disclosing it.

15.3.  These obligations of confidentiality survive termination of these terms of use.

16. Privacy

16.1. Each party must comply with the Privacy Act and any other applicable laws and codes dealing with privacy

16.2. Each party warrants to the other that:

17. Indemnity

17.1. You agree to hold harmless and indemnify us and our officers, agents and employees against any loss, damage, costs or expenses that we, or any of our officers, agents and employees, may incur in connection with your breach of these terms of use or any other legal obligation, your use of Factory or any use of Factory using an account registered in your name.

17.2. Each indemnity in these terms:

(a) is a continuing obligation, separate and independent from the other obligations of the parties;

(b) will not be affected by any matter including without limitation, the termination, renewal or extension of these terms of use or any indulgence, waiver or other concession given by us unless we agree in writing; and

(c) includes legal costs and disbursements on a full indemnity basis.

17.3. It is not necessary for us to incur expense or to make any payment before enforcing the right of indemnity conferred by this clause.

17.4. You must pay on demand any amount you must pay under the indemnity in this clause.

18. Force Majeure

1.3. You acknowledge that making Factory available for access is dependent on a number of factors outside our control, including for example, the telecommunication connections and infrastructure.

18.1. Except for any payment obligations, neither party is liable for any delay or failure to perform any of its obligations under these terms of use to the extent that the delay or failure is caused by reason of Force Majeure.

19. Warranties

19.1. Each party represents and warrants to the other that:

(a) it has the power and authority to enter into and perform its obligations under these terms of use;

(b) it has taken all necessary steps, including any corporate action necessary if it is a corporation, to authorise its entry into and performance of all of its obligations under these terms of use and to carry out the transactions contemplated by these terms of use.

20. Disclaimer

20.1. We make no representation or warranty:

(a) that your use of Factory will be error-free, uninterrupted or compatible with the with your equipment, devices and software configurations;

(b) that Factory will be fit for your purposes; or

(c) that your use of Factory will improve the financial performance or profitability of your business or any other party.

1.2. You agree that:

(a) the provision of, access to, and use of, Factory is on an “as is” basis and at your own risk;

(b) among other things, the operation and availability of the systems used for accessing Factory, including telecommunication services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to Factory. We are not in any way responsible for any interference or prevention of your access or use of Factory caused by these types of things;

(c) it is your sole responsibility to determine that Factory meets the needs of your business and is suitable for the purposes for which it is used; and

(d) you remain solely responsible for complying with all applicable accounting, tax and other laws in connection with your access and use of Factory.

21. Limitation of liability

21.1. Nothing in these terms of use is or should be interpreted as an attempt to modify, limit or exclude any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by legislation which cannot be modified, limited or excluded.

21.2. You agree that you do not rely on any guarantee, term, condition, warranty, undertaking, inducement or representation made by us or on our behalf which is not expressly stated in these terms of use.

21.3.  Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to these terms of use and we are not able to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (Non-Excludable Provision), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to (at our election):

(a) in the case of goods, the repair or replacement of the goods or the supply of equivalent goods (or the payment of the cost of doing so); and

(b) in the case of services, the supplying of the services again (or the payment of the cost of doing so).

21.4. Subject to our obligations under the Non-Excludable Provisions:

(a) our maximum aggregate liability to you in respect of any one claim or series of connected claims in connection with these terms of use or your use of this website or Factory, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, or under an indemnity or otherwise during each calendar month while you have access to Factory is limited to the minimum Subscription Fees payable by you to us in respect of that calendar month; and

(b) we are not liable to you or any third party for any Indirect Loss arising in connection with any use or access, or any inability to use or access, or misuse by you or any other party, of this website or Factory or otherwise in connection with any Content, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, breach of warranty or guarantee, under an indemnity or otherwise and whether or not that loss was foreseeable, even if we have been advised of the possibility of such loss.

21.5. The liability of a party for loss or damage sustained by the other party will be reduced proportionately to the extent that:

(a) such loss or damage has been caused by the other party’s failure to comply with its obligations and responsibilities under these terms of use; or

(b) the negligence of the other party has contributed to such loss or damage, regardless of whether a claim is made by the other party.

22. Suspension

22.1. We may without notice suspend your access to Factory if:

(a) you (or your Administrators or any of your Authorised Users) breach these terms of use; or

(b) we reasonably believe that your access and use of Factory will cause technical incapacity to Factory which will continue unless access or use is suspended.

22.2. We will act promptly to restore access when it is satisfied that the reason for suspension has been removed.

22.3. If within 30 days of suspension under clause 24.1 we are not reasonably satisfied that the reason for suspension has been removed, we may terminate your subscription to Factory upon written notice.

23. Termination

23.1. In addition and without prejudice to any other rights or remedies, either party may terminate these terms of use as follows:

(a) by giving the other party 30 days written notice of termination; or

(b) immediately upon giving written notice to the other party, if the other party becomes or threatens to become subject to any form of insolvency administration and that insolvency administration:

(i) does not give rise to a Stay; or

(ii) gives rise to a Stay, but a court makes an order to lift that Stay.

24. Effects of termination

24.1. On termination of these terms of use for any reason, you must:

(a) subject to clause 26.3, immediately cease accessing and using Factory; and

(b) immediately pay any and all outstanding invoices or any charges or fees incurred as a result of your access and use of Factory before the date of termination.

24.2. Termination of these terms of use does not affect any accrued rights or liabilities of any party under these terms of use nor does it affect any provision of these terms of use which is expressly or by implication intended to operate after termination.

24.3. Subject to clause 26.4, for a period of 30 days after termination of these terms of use, we will continue to provide you with access to Factory, solely for the purposes of allowing you to extract any Data that you have saved in Factory, following which we will permanently delete any Data you have saved in Factory.

24.4. Clause 26.3 will not apply if we reasonably believe that your continued access and use of Factory will cause technical incapacity to Factory.

25. Notices

25.1. Notices given under these terms of use must be in writing and delivered to a party by hand or by email to that party’s address shown below or to an alternate address notified to the party giving the notice. Your address for delivery of a notice is the address notified to us when you register to use Factory. Our address for delivery of a notice is:

Company Secretary
Factory Technologies Pty Ltd
Level 16, 168 Walker St
North Sydney, NSW. 2060
AUSTRALIA

Email: support@factory.app