1.1. This Agreement is between You and Future Pass Australia Pty Ltd (ACN: 627 705 944) (Future Pass or our or we) and governs the use of the Platforms, Products and Services offered by Future Pass.
1.2. Future Pass is in the business of:
b) providing information services in connection with productivity, identity, authentication and establishing trust between parties;
c) providing and integrating with application programming interfaces (“API”) in its products and services; and
d) associated products and services.
1.3. Any Service Description displayed on the Platforms is incorporated into this Agreement by reference. In the event of inconsistency, this Agreement prevails.
1.4. From time to time other terms and conditions may be referenced or displayed on the Platforms sometimes referred to as ‘end use licence agreements’ (Other Terms and Conditions). Whilst both this Agreement and the Other Terms and Conditions will apply to you, in the event of any inconsistency of the Other Terms and Conditions with this Agreement, then this Agreement shall apply.
1.5. By using, browsing, reading, downloading, installing and/or purchasing the Platforms and/or Products and/or Services, this signifies that You have read, understood and agree to be bound by this Agreement. If You do not agree with the terms of this Agreement, You must cease usage of the Platform or any of the Products and Services immediately.
2.1. In order to use the Platforms and to transact through the Platforms, You may be required to register for an account through the Platforms (Account).
2.2. As part of the registration process, or as part of Your continued use of the Platforms, You may be required to provide personal information about Yourself (such as identification or contact details), including:
b) an email address;
c) preferred username;
d) a mailing address;
e) a telephone number;
f) a password (secured as ‘one way’ derived hashes); and
g) such other data as Future Pass deems necessary to securely identify you and provide you with access to the Platforms, Products and Services.
2.3. You warrant that any information You give to Future Pass in the course of completing the registration process will always be accurate, correct and up to date.
2.4. You may not use the Platforms and transact the Products and Services if:
b) You are a person barred from receiving the Products and/or Services under the laws of Australia or other countries including the country in which You are resident or from which You use the Products and/or Services.
2.5. Following registration of an Account you authorise and consent to subscribe to Future Pass’s “Welcome” mailing list which will send up to 10 emails with details about your account, features and tips for using the Products and/or Services.
3.1. You may be able to
b) purchase the Products and/or Services from a TPS;
c) integrate and/or share Data between the Products and Services with a TPS.
3.2. Future Pass does not guarantee the availability or ability of users to access the Platforms using TPS or the TPS using the Platforms.
3.3. Future Pass does not guarantee the accuracy or suitability of data, information or services provided by a TPS.
3.4. As part of the functionality of the Platforms, You may connect the Platforms with a TPS by:
b) allowing Future Pass to access Your TPS in accordance with its terms and conditions of service.
3.5. You may disconnect the connection between the Platforms and the TPS at any time.
3.6. Where You connect and or register a profile using a TPS, You authorise Future Pass to use Data from that TPS to provide the Products and Services to You.
3.7. Future Pass has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.
3.8. You are responsible for complying with the terms and conditions imposed by any TPS.
4.1. As a user of the Platform, in addition to clause 7, You agree to comply with the following:
ii. any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
b) You are responsible for all costs and expenses associated with downloading, installing, running, accessing or using the Platforms, Services and any Products You purchase, including, without limitation, any costs associated with computing hardware, maintenance, server and data storage and internet access;
c) You are responsible for your own configuration and use of biometric identification devices including but not limited to fingerprint scanners and face identification;
d) You have sole responsibility for protecting the confidentiality of Your Data. Use of Your password by any other person may result in the immediate suspension or cancellation of Your Account;
e) any use of Your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Future Pass of any expected or actual unauthorised use of Your password or email address or any breach of security of which You have become aware;
f) You must not expressly or impliedly impersonate another user or use the profile or password of another user at any time;
g) any Content or Data that You broadcast, publish, upload, transmit, post or distribute on the Platforms will always be accurate, correct and up to date and You will maintain true, accurate and up to date records of Your Content and Data;
h) You agree not to harass, impersonate, stalk, threaten another user of the Platforms (where interaction with other users is made available to You);
i) You agree not to broadcast, publish, upload, transmit, post or distribute on the Platforms abusive or objectionable content, including but not limited to discriminatory, racists, pornographic, threatening or abusive material;
j) access and use of the Platforms is limited, non-transferable and allows for the sole use of the Platforms by You;
k) You will not use the Platforms in connection with any commercial endeavours except those that are specifically endorsed or approved by Future Pass;
l) You will not use the Platforms for any illegal and/or unauthorised use which includes collecting email addresses of users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Platforms;
m) You agree that commercial advertisements, affiliate links and other forms of solicitation may be removed from user profiles without notice and may result in termination of Your Account. Appropriate legal action may be taken by Future Pass for any illegal or unauthorised use of the Platforms;
n) You acknowledge and agree that any automated use of the Platforms and/or Products and/or Services is prohibited; and
o) You agree that we may charge You for all Products and Services that we agree to supply to You that have been ordered by You or using Your account through the Platforms.
4.2. You must not tamper with or hinder the operation of the Platforms, Products or Services, nor transmit any viruses, worms, defects, trojan horses or similar disabling or malicious code to the Platforms or via the Products or Services.
4.3. You must keep records of Your Data. You have the sole responsibility to make sure Data is kept in a safe and secure place. Future Pass shall not be liable for any damages (including damages for inability to restore backup data or the disclosure of confidential information) resulting from loss/corruption/compromise of Your Data.
4.4. Breach of this clause 4 may result in immediate termination or suspension of the User Licence without liability to You.
4.5. Future Pass may make use of the capabilities (including encryption) provided by your device, its hardware, operating system, and/or provided software APIs (including web browsers and other software you may have installed). As a result, Future Pass depends on you providing a secure and up-to-date environment for the software to run, and provides no warranty of the effectiveness of your device, its hardware, operating system or software APIs in keeping your data secure. You are responsible for ensuring the device, operating system, web browser and any software or browser extensions installed on the device are free of malware and other malicious software before using Future Pass.
b) payment of the license fee for the Products and/or Services at the point of purchasing the licence for the Products and/or Services;
c) downloading, installing or using the Products and/or Services; or
d) executing a Registration Form with Future Pass (whichever comes first),
You are granted a revocable, non-transferable, non-sub licensable, non-exclusive and limited licence to use the Products and/or Services strictly in accordance with this Agreement (User Licence).
5.2. If You do not agree to this Agreement, You must not install, use, or copy the Products and/or Services
5.3. The User Licence will be:
b) for the number of users applicable to the particular Products and/or Service; and
c) subject to any other terms and conditions applicable to the particular Products and/or Service,
as detailed on the Platforms, Registration Form, Invoice or otherwise notified to You prior to or at the point of Your order being accepted (Licence Term).
5.4. Subject to the Registration Form, the applicable Licence Term will expire automatically at the conclusion of the Licence Term, unless terminated earlier in accordance with this Agreement.
5.5. Each and any recurring subscription payment for Products or Services received by Future Pass will constitute an offer by You to enter into a new User Licence on Future Pass’s then terms and conditions.
6.1. Delivery will occur via electronic means in the manner Future Pass deems appropriate in its sole discretion. This may include, without limitation, delivery by way of Future Pass making a download link available to You to download the Products and/or Services to Your computer or similar device. You may also receive an activation key or similar product licence descriptor via a separate communication which may be required to active or use the Products and/or Services. For the avoidance of doubt, delivery will be completed and Future Pass’s obligations in respect thereof satisfied upon Future Pass making the Products and/or Services available.
7.1. This Agreement entitles You to:
b) install and make an archival copy of the Products on a storage medium other than a hard drive, and may only be used for the reinstallation of the Products.
7.2. This Agreement entitles You to use the Products and/or Services as specified on a Registration Form, Invoice or at the point of sale if the Products and/or Services were purchased on the Platforms, as applicable.
7.3. You may not assign Your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer Your rights to the Products or Services.
7.4. You may not:
b) copy, install or use the Products on any system other than your personal devices;
c) permit the use, copying or installation of the Products by more than one user; or
d) permit the use of the Services by more than one user, unless You hold multiple valid licenses (which will be detailed on the Platforms in respect of the Product and/or Service that you select).
You may not:
e) decompile, “reverse engineer”, disassemble, decompile, or otherwise attempt to derive the software or source code for the Platforms, Products and/or Services
f) broadcast, transmit or otherwise display in a public forum or any venue not restricted to You, the Products and Services or any part of the Products and Services;
g) post the Products and or Services or part of the Products and or Services on any website;
h) use the Products or Services for commercial purposes, including a service bureau;
i) modify the Products or create any derivative work of the Products and Services or its accompanying documentation. Derivative works include but are not limited to translations;
j) alter any files or libraries in any portion of the Products; or
k) copy any part of the Products and/or Services except to the extent that the licensed use inherently demands the creation of a temporary copy stored in the computer memory and not permanently affixed on storage medium.
8.1. The price of access to the Platforms and/or Products and/or Services (if any) is stated in the Registration Form, or, where You have purchased from the Platforms, the price stated at the point of sale.
8.2. We may change our subscription prices at any time, which will become effective at the end of Your current billing cycle.
8.3. We may use third party payment providers including the Apple App Store, Google Play Store, and Squareup.com (a secure 3rd party payments provider) to provide payment processing and you consent to us providing Your billing information to such third parties.
8.5. Future Pass will invoice You for Products and Services supplied, or where purchased via the Platforms You will be provided with a receipt.
8.6. Unless otherwise expressly stated at the time of purchase, The subscription price of the Products and Services is in Australian dollars and is inclusive of GST, or any other tax or charge imposed by any governmental entity upon the sale, use or receipt of the Products and Services.
8.7. Where You have purchased Products or Services in any way that does not use automated payment, You must pay invoices within 7 days of receipt or as otherwise directed by Future Pass.
8.8. You must pay all amounts due to the Future Pass:
b) in available cleared funds.
8.9. If You owe any amount to Future Pass, Future Pass may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:
b) set-off that amount against any amount owing by Future Pass to You; and/or
c) immediately demand all amounts due and payable under this Agreement.
8.10. If an amount due under this Agreement is paid after the due date You must pay Future Pass, in addition to the overdue amount:
b) all costs and expenses incurred by the Future Pass in collecting the overdue amount.
8.11. Your obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Products and/or Services.
9.1. The Platforms, the Products and Services of Future Pass are subject to copyright. The material on the Platforms is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in connection with the compilation of the Platforms (including but not limited to text, graphics, logos, button icons, video images, audio clips, code, scripts, design elements and interactive features) are owned or controlled for these purposes, and are reserved by Future Pass and other lawful owners of intellectual property (including users).
9.2. All trademarks, service marks and trade names are owned, registered and/or licensed by Future Pass, who grants to You a worldwide, non-exclusive, royalty-free, revocable license whilst You are a user to:
b) copy and store any Platform and the material contained in the Platforms in Your device’s cache memory; and
c) print pages from the Platform for Your own personal and non-commercial use.
9.3. Future Pass does not grant You any other rights whatsoever in relation to the Platforms, Products and/or Services. All other rights are expressly reserved by Future Pass.
9.4. Future Pass retains all rights, title and interest in and to the Platforms, Products and Services.
9.5. Nothing you do on or in relation to the Platforms, Products and/or Services will transfer any:
b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process),
9.6. You may not, without the prior written permission of Future Pass (such permission is implied if the functionality of the Platforms, Product or Services allows) and the permission of any other relevant rights owners broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Platforms, Products or Services for any purpose, unless otherwise provided by this Agreement. This prohibition does not extend to materials on the Platforms or incorporated into the Products and/or Services which are freely available for re-use or are in the public domain.
9.7. Where you broadcast, publish, upload, transmit, post or distribute Content on the Platform or in connection with the Products and/or Services, then you assign all your title right and interest in that Content to Future Pass and hereby consent to Future Pass varying, publishing and otherwise using that Content, with or without credit or payment to You.
9.8. Where you upload or permit Future Pass to collect Your Data, you grant to Future Pass a non-exclusive, non-transferrable, royalty-free, worldwide licence to use your Data as necessary to provide the Platforms, Products and/or Services.
9.9. Despite clause 9.8, nothing in this Agreement prevents you from deleting or requesting Future Pass to delete Your Data from the Platform, in which case Future Pass will use its reasonable endeavours to delete and remove Your Data.
9.10. To the extent permitted by law, Future Pass accepts no liability for the accuracy of any information made available using the Platforms, Products and/or Services. Any reliance on the information available is at Your own risk.
9.11. You are wholly responsible for maintaining suitable back-ups of Your Content and Data.
9.12. You agree to release, indemnify and hold Future Pass harmless for any loss, damage, cost or expense that Future Pass may suffer or incur as a result of or in connection with Your Content and Data transmitted, posted, distributed, shown or played in connection with the Platforms, Products and/or Services.
10.2. Some functions of the Products and/or Services such as inviting, connecting or sharing with other users or third parties may require the sharing of some of your Data (such as name, email and Future Pass ID) with the recipient in order to provide that function. Each time you use these types of functions you authorise and consent to the sharing of your information to the extent necessary for those functions.
11.1. Everything on the Platforms and incorporated in the Products and/or Services is provided to You “as is” “with all faults” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Future Pass make any express or implied representation or warranty about the Platforms, Products or Services. This includes (but is not limited to) Claims or Loss or damage you might suffer as a result of any of the following:
b) the accuracy, suitability or currency of any information on the Platforms, the Products, the Services, or any of its related products and services (including third party material and advertisements on the Platforms).
11.2. Notwithstanding the allocation of scores to any passwords, no password is 100% impregnable and Future Pass gives no warranties and makes no representations in this respect.
11.3. Provisions of the Competition and Consumer Act 2010 and other laws in force from time to time in Australia may imply guarantees, warranties, conditions, and impose obligations on Future Pass and its subsidiaries, affiliates, and suppliers (“Implied Terms”). If these Implied Terms apply, Future Pass’s liability will be limited at its option to resupply, repair or replacement of the Products or Services, or the cost of such resupply, repair or replacement, to the extent permitted by law.
11.4. Nothing in this clause excludes, restricts or modifies Your rights under an Implied Term.
12.1. Subject to any Implied Term, and to the extent permitted by law, Future Pass or any of its officers, employees, contractors or agents will not be liable to You for any Losses incurred by You or Claims made by You as a result of using the Platforms, Products, Services and any documentation provided to You.
12.2. Future Pass’s liability is reduced proportionately in the event that the You contributed to any Claim or Loss suffered by You.
12.3. In addition to the limitations in clauses 12.1 and 12.2, Future Pass’s liability in connection with this agreement, the Platforms, Products, Services and any documentation provided to You is limited to the price of the Products and Services charged under this Agreement.
12.4. In addition to the limitations in clauses 12.1 and 12.2, Future Pass’s liability in connection with this Agreement, the Platforms, Products, Services and any documentation provided to You does not extend to any consequential loss (including loss of opportunity profits).
13.1. To the extent permitted by law, You agree to indemnify Future Pass, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
b) all Claims and Loss (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with you accessing, using or transacting on the Platforms or attempts to do so; and/or
c) any breach of this Agreement.
Future Pass reserves the right to amend this Agreement from time to time. Such amendments will be either:
b) published on the Future Pass website at www.futurepass.com;
c) notified to You via email directing You to a link; or
d) notified to You by post.
15.1. Future Pass may at any time, terminate this Agreement and the User Licence:
b) if you have breached any provision of this Agreement or intend to breach any provision;
c) if Future Pass is required to do so by law;
d) if Future Pass is transitioning to no longer providing the Platforms, Products or Services to users in the country in which you are resident or from which you use the service.
15.2. Future Pass reserves the right at any time to modify or discontinue, temporarily or permanently, the Platforms, Products and/or Services (or any part thereof) with or without notice, in which event You shall be given a pro rata refund for that portion of the fee already paid for at the time of discontinuation and which cannot be used after discontinuation.
15.3. On termination, You must permanently remove and return or destroy all software Products from Your computers.
15.4. Subject to any Registration Form, You will provide Future Pass with at least one month written notice should You wish to change your User Licence in any way, including cancellation of the User Licence. You will be charged a pro-rata amount up until the date of termination, where you terminate part way through a billing period.
15.5. Subject always to clauses 11, 12 and 13 Future Pass will delete, without back-up, your Data from any and all Platforms within 90 days of cancellation or termination of a User Licence.
15.6. Upon cancellation or termination of the User Licence, and where requested by You within 60 days, Future Pass will provide any Data on our servers which was uploaded via Your account to you through a secure, time restricted download link. The link will be provided to You upon final payment of the account and an administration fee equal to 1 month’s subscription charge.
16.1. Future Pass will not be liable for any Claim or Loss incurred as a result of delay or failure to observe any of these terms and conditions due to a Force Majeure Event. Future Pass’ obligations under this agreement will be suspended and will resume as soon the Force Majeure Event has ceased to have effect.
16.2. Any provision of, or the application of any provision of this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
16.3. Any provision of, or the application of any provision of this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
16.4. The failure, delay, relaxation or indulgence by a party in exercising, in part or whole, any power, right or remedy conferred upon that party by this Agreement shall not operate as a waiver of that power, right, or remedy.
16.5. This Agreement contains the entire Agreement between the Parties and supersedes any previous understandings, commitments or agreements, oral or written.
16.6. If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
16.7. This Agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia.
If a dispute arises out of or relates to this Agreement, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sort).
A party to this Agreement claiming a dispute (Dispute) has arisen, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
On receipt of that notice (Notice) by that other party, the parties to this Agreement (Parties) must:
b) If for any reason whatsoever, 10 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the Chair of the Resolution Institute (ABN 69 008 651 232);
c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The parties must each pay their own costs associated with the mediation;
d) The mediation will be held in Sydney, Australia.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
17.5. Termination of Mediation
If 8 hours have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
In this Agreement unless the context otherwise requires:
Agreement means this agreement, all schedules and, if the Products or Services were not purchased on the Platforms, a Registration Form;
Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown;
Content means all qualitative information provided by you to Future Pass, that is not Data, including but not limited to opinions, feedback, survey responses,
Data means all data provided by You to Future Pass in connection with the Platforms, including but not limited to:
b) details in respect of devices used by You;
c) passwords, encryption keys and security information;
d) system usage data;
e) data in connection with Your TPS;
f) IP addresses;
g) location data.
Default Rate means 10% per annum, or the maximum rate allowed by applicable law, whichever is lower;
Force Majeure Event means an act of God, fire, lightning, earthquake, explosions, flood, subsidence, insurrection or civil disorder or military operations or act of terrorism, expropriation, strikes, lock-outs or other industrial disputes of any kind not relating solely to the party affected, and any other event which is not within the reasonable control of the party affected but does not include any act or omission of the other party.
Invoice means an invoice issued by Future Pass to You;
Loss means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental.;
Platforms means any Future Pass website, social media accounts, applications, software and other technological platform;
Products means the Future Pass products as detailed on the Platforms or Registration Form;
Registration Form means an order form agreement (including physical or electronic) signed by the Parties for the purchase of Products and/ or Services;
Services means the Future Pass software as a service provided by Future Pass as detailed on the Platform Platforms or Registration Form;
TPS means a third party service or information provider;
You means the person named on the Registration Form, or where the Products are purchased via the Platforms, the person who has purchased the Products and/or Services.
In this Agreement unless the context otherwise requires:
b) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
c) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
d) a reference to any thing is a reference to the whole and each part of it;
e) a reference to a group of persons is a reference to all of them collectively and to each of them individually; and
f) a reference to a document includes all amendments or supplements to, or replacements or novation of, that document.