Terms and conditions

1. 1.1In 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.

Committed Fees

means the Total Commitment for a Fixed Term plus any Implementation Fees payable under the same Order.

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).

Customer

means the party whose details have been entered as the customer during the registration process for Factory, or in an Order, 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.

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.

Factory Contact

means the Factory staff member named in your Order as your Factory contact, or anyone we later tell you in writing has replaced them.

Fixed Term

means any period stated in an Order during which neither party can end your Subscription for convenience, including an Initial Term.

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.

Initial Term

means the initial fixed term of a Subscription set out in an Order.

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.

Order

means a quote, order form or purchase order for Factory that you accept, including through our online quote page.

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 5.1.

Subscription Fees

means the fees payable for your Subscription, as set out in your Order or online registration form.

Total Commitment

means the total Subscription Fees payable for a Fixed Term, as set out in or calculated under the Order.

1. 1.2In 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, as updated in accordance with clause 1.5.

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 or accept an Order, and continue until terminated in accordance with clause 23. 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.

1.4 Orders and precedence

If you accept an Order, the Order and these terms of use together form the agreement between us. If an Order and these terms of use are inconsistent, the Order prevails to the extent of the inconsistency.

1.5 Changes to these terms of use

We may update these terms of use by publishing a new version on our website with a new version date and giving you at least 30 days' notice by email. The version in effect on the date you accept an Order continues to apply to that Order until the end of its Fixed Term, except that during a Fixed Term we may make an update that is required by law, or that does not adversely affect your rights or obligations, by giving you at least 30 days' notice (or any shorter notice the law requires). Otherwise, an updated version applies to you from the later of the end of that Fixed Term and the end of the notice period. Each version remains available at https://www.factory.app/terms/archive.

1. 2.1Subject to our acceptance of your online registration or your acceptance of an Order, and your payment of the relevant 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 your Order or online registration form.

1. 3.1We 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.
2. 3.2Factory 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. 3.3You 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.
4. 3.4You 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.
5. 3.5You agree that we have no obligation to provide any person access to Factory through your customer account or to the Data without your authorisation.

1. 4.1You must ensure that your access and use of Factory is not illegal or prohibited by laws that apply to you.
2. 4.2You 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;
   • (e)harass, impersonate, stalk or threaten any other user of Factory (where interaction with other users is made available to you through Factory); or
   • (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.
3. 4.3You indemnify, and will defend and hold harmless, us and our affiliates, representatives, successors and assigns, and their officers, directors, employees and agents, against any loss, claim or damage arising from a claim by a third party about your Data, your content, or any of your users' use of Factory that these terms of use do not authorise. This indemnity is reduced to the extent the loss was caused by our breach of these terms of use or our negligence.

1. 5.1There are different subscription plans for Factory, with different inclusions and pricing (Subscriptions). The details of your Subscription, including any Fixed Term, the features listed for your plan and the applicable Subscription Fees, are set out in your Order or online registration form.
2. 5.2As part of your initial Subscription, we will provide you with the implementation services agreed with you as part of your Subscription (Implementation Services) and the applicable Implementation Fees for those Implementation Services will be set out or otherwise made available in your Order or online registration form.
3. 5.3If you require any further customisation of Factory or other services for your specific needs, you may request us to provide Additional Services in accordance with clause 10.
4. 5.4Subject to clause 21.1, your Subscription gives you access to Factory as it is from time to time. We develop Factory continuously and may add, change or remove features, but during a Fixed Term we will not remove, or materially reduce, a feature listed for your plan in your Order without giving you a reasonable alternative. Features that are planned, in development, or discussed in demonstrations or sales conversations are not part of your Subscription unless they are listed in your Order. Not having a feature you want, or a delay in releasing one, is not a breach of these terms of use and does not entitle you to end your Subscription early, withhold or reduce any fees, or receive a refund.
5. 5.5Any implementation timeline we give you is an estimate. A Fixed Term and the Committed Fees are not paused or extended by the progress of implementation, including where implementation takes longer because information, documents or decisions we need from you are delayed. Subject to clause 21.1, Implementation Fees are not refundable once the Implementation Services have started, except as set out in clauses 22.3, 23.6 and 23.7. Wherever these terms of use refer to Implementation Services that have, or have not, been delivered:
   • (a)Implementation Services are delivered when we have performed them, as shown in our records of your onboarding (such as your onboarding plan, meeting notes and support tickets);
   • (b)Implementation Services we have been ready to perform for at least 30 days, but could not because you had not provided information, documents, access or decisions we reasonably asked for, count as delivered; and
   • (c)the amount of Implementation Fees for Implementation Services not delivered is worked out in proportion to the Implementation Services not delivered, as reasonably determined by us from those records.

1. 6.1You can use Factory to manage orders submitted by your customers, including to automate pricing and fees charged to your customers.
2. 6.2If you choose to manage customer orders through Factory:
   • (a)you are responsible for checking each order, including its quantities and pricing, before you send it to your customer or rely on it;
   • (b)subject to clause 21.1, we are not liable for loss caused by an incorrect order or price that you could reasonably have found by checking it; and
   • (c)our liability for an incorrect order or price caused by a fault in Factory is subject to clause 21.4.

1. 7.1You 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).
2. 7.2You 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.
3. 7.3You must take reasonable steps to limit your exposure to loss of Data, including keeping copies of your source material. We take reasonable steps to back up the Data. If Data is lost or corrupted because of our breach of these terms of use or our negligence, we will use reasonable efforts to restore it from our most recent backup at no charge and, despite clause 21.4(b), you may recover your reasonable direct costs of re-entering it, within the limit in clause 21.4(a). Subject to clause 21.1, we are not otherwise liable for loss of Data.
4. 7.4You 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.
5. 7.5You 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.
6. 7.6You 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. 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.

1. 8.1You 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.
2. 8.2Subject to clause 21.1, 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.

1. 9.1Subject to clause 21.1, 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 agree 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 22 applying.
2. 9.2In 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.
3. 9.3We 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.

1. 10.1You 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.
2. 10.2Some features of Factory, such as the AI Importer, are paid add-ons. Add-ons are optional and are not part of your Subscription unless your Order says so. If you choose to use an add-on, you agree to pay the price shown in Factory, or otherwise notified to you, at the time you use it, charged in the way shown there. We may change add-on prices at any time; a new price applies only to use after it has been shown to you. Add-on fees are not Committed Fees, are not fixed during a Fixed Term, and clause 11.4 does not apply to them.

1. 11.1You agree to pay the Subscription Fees, Implementation Fees and any other fees set out in your Order or online registration form.
2. 11.2Subscription Fees are payable in advance, and Implementation Fees are payable, on the dates and in the instalments set out in your Order. Fees for Additional Services are invoiced monthly in arrears unless we agree otherwise.
3. 11.3You authorise us to charge each amount to the payment method you nominate when it falls due, through a third-party payment platform or another method we agree with you. You must keep a valid payment method in place while your Subscription continues. Cancelling or changing a payment method does not end your Subscription or reduce what you owe.
4. 11.4We may change the Subscription Fees by giving you at least 30 days' notice. A change does not apply to an Order you have already accepted until its Fixed Term ends. If you do not agree to a change that applies to you, you may end your Subscription by written notice given before the change takes effect, and the change will not apply to you during your notice period.
5. 11.5You agree to pay the Committed Fees for a Fixed Term, and you owe them from the date you accept the Order. Where your Order lets you pay them in instalments, the instalments set out only when they are paid. They do not change the amount you owe or make your Subscription month to month, except as set out in clauses 22.3, 23.6 and 23.7, or where your Order releases them.
6. 11.6If you dispute an invoice or charge in good faith, you must tell us in writing within 14 days of receiving it and pay any undisputed amount by the due date. This clause does not limit any right you have to dispute an amount later.

1. 12.1If you do not pay any amount by its due date and it remains unpaid 14 days after we give you written notice that it is overdue:
   • (a)we may suspend your access to Factory until all overdue amounts are paid, and may charge a reasonable reactivation fee to restore it;
   • (b)we may end your Subscription by written notice, and if we do, amounts that have already fallen due remain payable in full, and the rest of the Committed Fees, reduced by 10% to reflect the costs we save and the benefit of early payment, becomes immediately payable; and
   • (c)you must pay our reasonable costs of recovering overdue amounts, including reasonable legal and collection agency fees.

1. 13.1You 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.
2. 13.2Without limiting clause 13.1, 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.
3. 13.3If 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.

1. 14.1Except for the limited licence to access and use Factory under clause 2.1, 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.
2. 14.2You 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.
3. 14.3You 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.

1. 15.1Each 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.
2. 15.2Clause 15.1 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.
3. 15.3These obligations of confidentiality survive termination of these terms of use.

1. 16.1Each party must comply with the Privacy Act and any other applicable laws and codes dealing with privacy.
2. 16.2Each party warrants to the other that:
   • (a)any Personal Information that it discloses to the other under these terms of use, or when using the Service, has been collected in accordance with the Privacy Act;
   • (b)the individual to whom the information relates has been made aware of the recipient's identity, of how to contact the recipient, and of the other matters of which the recipient is required to inform a person about whom it collects information under the Privacy Act; and
   • (c)the other is authorised to collect the information for the disclosure and use the information for the purposes of these Terms of Use.

1. 17.1You 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 them, incur in connection with your breach of these terms of use, your breach of any law in using Factory, or a claim by a third party about your Data or your use of Factory. This indemnity is reduced to the extent the loss was caused by our breach of these terms of use or our negligence.
2. 17.2Each 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.
3. 17.3It is not necessary for us to incur expense or to make any payment before enforcing the right of indemnity conferred by this clause.
4. 17.4You must pay on demand any amount you must pay under the indemnity in this clause.

1. 18.1You 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.
2. 18.2Except 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.

1. 19.1Each 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; and
   • (c)the person who accepts an Order on its behalf is authorised to do so.

1. 20.1Subject to clause 21.1, we make no representation or warranty:
   • (a)that your use of Factory will be error-free, uninterrupted or compatible 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.
2. 20.2Subject to clause 21.1, 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.

1. 21.1Nothing 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 (including the Australian Consumer Law) which cannot be modified, limited or excluded.
2. 21.2Subject to clause 21.1, 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.
3. 21.3Where 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).
4. 21.4Subject to our obligations under the Non-Excludable Provisions:
   • (a)our maximum aggregate liability to you for all claims in connection with these terms of use, this website or Factory, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, under an indemnity or otherwise, is limited to the greater of (i) the Committed Fees for your current or most recent Fixed Term, and (ii) the total fees paid by you, or that fell due, in the 12 months before the event giving rise to the most recent claim; 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.
5. 21.5The 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.

1. 22.1We may suspend your access to Factory:
   • (a)under clause 12.1;
   • (b)immediately and without notice, if we reasonably believe your use of Factory poses a security risk, breaches the law, or will cause technical incapacity to Factory; or
   • (c)if you materially breach these terms of use and do not remedy the breach within 14 days after we give you written notice.
2. 22.2We will act promptly to restore access when we are satisfied that the reason for suspension has been removed.
3. 22.3If, 30 days after a suspension under clause 22.1, we are not reasonably satisfied that the reason for it has been removed, we may end your Subscription by written notice. If the suspension was under clause 22.1(a) or (c), or under clause 22.1(b) because of your breach, clause 23.5 applies as if we had ended your Subscription under clause 23.3(a). Otherwise, clause 23.6 applies as if you had ended it under clause 23.3(a).
4. 22.4Your fees continue to be payable during a suspension under clause 22.1(a) or (c), or a suspension under clause 22.1(b) caused by your use of Factory.

1. 23.1During a Fixed Term, neither party may end your Subscription for convenience. If either party gives written notice to end it, the notice takes effect at the end of the Fixed Term or, if later, at the end of the first monthly billing period that ends at least 30 days after the notice is received. Until then you keep access to Factory (subject to clauses 12 and 22), and the remaining Committed Fees remain payable when due.
2. 23.2When your Subscription is not in a Fixed Term (for example, after a Fixed Term ends and your Subscription continues month to month, or if your Subscription never had a Fixed Term), either party may end these terms of use and your Subscription by giving the other party at least 30 days' written notice. The notice takes effect at the end of the first monthly billing period that ends at least 30 days after the notice is received.
3. 23.3At any time, in addition and without prejudice to any other rights or remedies, either party may end these terms of use and your Subscription immediately by written notice if the other party:
   • (a)materially breaches these terms of use or an Order and does not remedy the breach within 30 days after receiving written notice asking it to do so; or
   • (b)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.
4. 23.4Subject to clause 21.1, the absence of a feature or function that is not listed in your Order, or a delay in releasing a planned feature, is not a breach of these terms of use.
5. 23.5If we end your Subscription during a Fixed Term under clause 12.1(b) or clause 23.3(a), amounts that have already fallen due remain payable in full, and the rest of the Committed Fees, reduced by 10% to reflect the costs we save and the benefit of early payment, becomes immediately payable.
6. 23.6If you end your Subscription under clause 23.3(a), you pay Subscription Fees only up to the date it ends, and you do not have to pay Implementation Fees for Implementation Services we have not delivered. We will refund any Subscription Fees you have prepaid for the period after that date, and any Implementation Fees you have prepaid for Implementation Services we have not delivered.
7. 23.7If you end your Subscription under clause 23.3(b), clause 23.6 applies as if you had ended it under clause 23.3(a). If we end your Subscription under clause 23.3(b), you pay Subscription Fees only up to the date it ends and Implementation Fees for Implementation Services delivered by then, subject to any Stay.

1. 24.1On termination of these terms of use for any reason, you must:
   • (a)subject to clause 24.3, immediately cease accessing and using Factory; and
   • (b)subject to clauses 21.1, 22.3, 23.6 and 23.7, immediately pay all outstanding invoices, all fees that fell due before the date of termination, and any amount payable under clause 12.1(b), 22.3 or 23.5.
2. 24.2Termination 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.
3. 24.3Subject to clause 24.4, 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.
4. 24.4Clause 24.3 will not apply if we reasonably believe that your continued access and use of Factory will cause technical incapacity to Factory.

1. 25.1Notices given under these terms of use must be in writing and sent by email.
   • (a)Our notice addresses are customers@factory.app and support@factory.app. A notice you email to your Factory Contact is treated as received by us when it reaches your Factory Contact.
   • (b)Your notice address is the email address of the person who accepted your Order, or another address you notify to us in writing. You must keep your notice address up to date. We may also send a notice to your billing contact.
   • (c)A notice is received when it is sent, unless the sender receives a delivery failure message.
   • (d)Comments made in calls, meetings or chat messages are not notices under these terms of use.

1. 26.1If you provide a mobile telephone number to us and opt in to receive text messages, we may send you text messages relating to meetings you have scheduled with us and to your Factory account and the services you use, including service, maintenance and security notices and follow-ups on support requests.
2. 26.2You consent to receiving those messages by providing your mobile number and giving your express consent through our web forms or otherwise in writing. Consent to receive text messages is not a condition of your Subscription or of any purchase, and withdrawing it will not affect your access to Factory.
3. 26.3You may expect 1-2 messages for each meeting you schedule with us, and not more than approximately 4 account and service notices in a month. Message and data rates may apply, charged by your mobile carrier.
4. 26.4You may withdraw your consent at any time by replying STOP to any message, or by emailing privacy@factory.app. Reply HELP for assistance. We will action opt-out requests promptly. Withdrawing consent to text messages does not withdraw consent to receive communications that we are required or entitled to send you by other means under these terms of use, including notices under clause 25.
5. 26.5You warrant that any mobile number you provide to us is a number you own or are authorised to provide, and that you are at least 18 years of age. You must notify us promptly if a mobile number you have given us is reassigned or is no longer yours. You indemnify us against any claim arising from your provision of a mobile number that you were not authorised to provide.
6. 26.6Message delivery depends on your mobile carrier and network. We do not warrant that messages will be delivered, or delivered on time, and carriers are not liable for delayed or undelivered messages. You must not rely solely on a text message reminder, and you remain responsible for your own attendance at any meeting.
7. 26.7We handle your mobile number and your messaging consent in accordance with our Privacy Policy at https://www.factory.app/privacy. We do not share, sell or provide your mobile number or messaging consent data to third parties or affiliates for marketing or promotional purposes.

1. 27.1The agreement between us (your Order and these terms of use) is the entire agreement about its subject matter. It replaces all earlier proposals, presentations, demonstrations, discussions and representations about that subject matter.

1. 28.1These terms of use and every Order are governed by the laws of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts of New South Wales and the courts competent to hear appeals from them.
2. 28.2Before starting court proceedings about a dispute, a party must give the other written notice of the dispute, and senior representatives of each party must meet (in person or by video) within 14 days to try in good faith to resolve it. This clause does not prevent a party from seeking urgent interim relief or from recovering an amount that is due and payable.

1. 29.1You may not assign or transfer your rights or obligations under these terms of use or an Order without our written consent, which we will not unreasonably withhold. We may make our consent conditional on the person taking the assignment or transfer agreeing in writing to be bound by these terms of use and the Order, including any unpaid Committed Fees.
2. 29.2We may assign or transfer our rights and obligations under these terms of use and any Order to a person who acquires all or part of our business and agrees to perform our obligations under them, by giving you written notice.
3. 29.3Unless we release you in writing, you remain liable for the Committed Fees after any assignment or transfer.

1. Program overview

The Factory Referral Program enables current customers to share Factory with their network and receive rewards. For every qualified business you refer that becomes a paying Factory customer, you will be eligible for a reward paid in relevant currency.

2. Eligibility and participation

• Participants must be current Factory customers in good standing
• Must be 18 years or older and legally able to participate
• Available where the referred business is located in Australia, New Zealand, Canada, the United Kingdom, or the United States, and where permitted by law.
• All referrals must be registered through the official Factory Referral Program platform

3. Referral qualification

A qualified referral must:

• Be a new business not previously registered in Factory's database
• Not be engaged in any existing sales discussions with Factory
• Not have been previously referred by another participant
• Successfully sign up for and maintain an active Factory subscription for at least 30 days
• Be a separate legal entity from the referrer

4. Rewards

• A $400 reward per qualified referral, paid in the referrer's local currency:
  • AUD $400 for referrers in Australia or New Zealand
  • CAD $400 for referrers in Canada
  • GBP £200 for referrers in the United Kingdom
  • USD $400 for referrers in the United States
• Payment will be processed within 45 days of the referred customer's completed 30-day paid subscription period
• Participant is responsible for any applicable taxes or VAT/GST on rewards
• Rewards are not transferable or exchangeable

5. Program terms

Factory reserves the right to:

• Modify or terminate the program at any time
• Deny participation to any individual
• Make final determinations about any program disputes
• Suspend or terminate participation if any abuse is suspected

6. Compliance requirements

Participants must comply with:

• All applicable Australian laws and regulations
• Factory's Terms and conditions

Sharing of referral links must not involve:

• Spam or deceptive practices
• Misrepresentation of Factory's products or services
• Paid advertising or unauthorized promotional methods

7. Privacy

• All referral activities are subject to Factory's Privacy Policy
• Factory may disclose referrer's name to their referees
• Participant agrees to only share referral links with professional connections

8. General conditions

• This program is void where prohibited by law
• Factory may amend these terms without notice
• Participation constitutes acceptance of these terms
• Previous referrals made prior to program launch are not eligible
• Reward amounts are paid in the referrer's local currency as set out in clause 4

For questions about the program, please contact hello@factory.app

Not to be combined with any other offer.