Terms of Service, EULA, Personal Data Policy, Partner Agreement
Last Updated 13th January 2019
YOU ACKNOWLEGE AND AGREE THAT BY REGISTERING FOR AN ACCOUNT ON THE SERVICE, DOWNLOADING THE APPLICATION OR ANY APPLICATION UPGRADES, USING THE APPLICATION ON YOUR DEVICE, OR ACCESSING OR USING THE SERVICE, OR BY DOWNLOADING, SUBMITTING OR POSTING ANY CONTENT FROM, OR ON, OR THROUGH THE KOALABRAIN SERVICE OR BY ENTERING INTO A STATEMENT OF WORK WITH KOALABRAIN, YOU ARE INDICATING THAT YOU HAVE READ , UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE APPLICATION, SERVICE OR SITE CONTENT. If you accept or agree to these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service and, in such event, “you” and “your” will apply to that company or legal entity.
· “Content” text, graphics, photos, music, software, audio, video, information or other materials
· “Corporate Member” Member that is a company or other legal entity, rather than an individual
· “KoalaBrain Content” Content that KoalaBrain makes available through the Service, including any Content licensed to KoalaBrain from a third party, but excluding Member Content
· “Member” person or entity who completes the Service account registration process as described under “Account Registration”
· “Member Content” means Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Service.
· “Professional Services” software consulting and management services, information technology services, installation services, or other stipulated services provided to you as identified in a Statement of Work
· “Statement of Work” or “SOW” a written description of Professional Services to be performed by KoalaBrain under this Terms of Service, which shall specify, as applicable, the fees associated with the work and other responsibilities of the parties. Each SOW will be included as an attachment to this Terms of Service and will be incorporated herein by reference, and will be deemed accepted and binding on the parties upon execution thereof. Each SOW shall remain in effect until the earlier to occur of: (a) termination of such SOW by either party in accordance with this Agreement and/or the terms of the SOW; or (b) expiration or termination of the Term or term of professional services identified in the SOW.
· “Customer” means the legal entity or individual that enters into a SOW
KoalaBrain Reserves the right, at its sole discretion, to modify, discontinue or terminate the Service, or to modify these Terms of Service at any time and without prior notice. If we modify these Terms of Service, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms of Service or on the Site or Application. By continuing to access or use the Service after we have posted a modification on the Site or Application or have provided you with notice of a modification you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the Service.
Certain portions of the Service may, or may in future, have different terms and conditions posted on the Site or may require you to agree with and accept additional terms and conditions. We may, in our sole discretion, make premium or different applications, software or services available to you that is subject to different terms and conditions and narrower licenses than as set forth in these Terms of Service. If there is a conflict between these Terms of Service and terms and conditions posted for a specific portion of the Service, the latter terms and conditions shall take precedence with respect to your use of or access to that portion of the Service.
KoalaBrain may update, upgrade or modify the Service at any time including the removal or modification of previously available functionality.
Statement of Work
In the event that Customer request Professional Services that KoalaBrain desires to render, KoalaBrain shall prepare a Statement of Work covering such Professional Services. If agreed upon and executed, each Statement of Work shall form a separate contract governed by this Agreement and the terms of the Statement of Work.
Unless stated otherwise in an applicable Statement of Work, any estimates of time provided in connection with deliverables or services, are good faith projections, but are not guarantees. Unless otherwise agreed to by the parties in writing, in the event that KoalaBrain provides Professional Services on a “time and materials” rate basis, KoalaBrain shall charge Customer at KoalaBrain’s standard rates then in effect. In the event that KoalaBrain provides Professional Services hereunder on a “fixed fee” rate basis, such fixed fee will cover only the specific tasks, expenses, and deliverables that the Statement of Work defines as included within the fixed fee. Unless otherwise agreed to by the parties in writing, any and all deliverables that Customer requests that fall outside the Statement of Work or are otherwise not expressly included within such fixed fee payment schedule will be provided on a time and materials basis at KoalaBrain’s standard rates then in effect.
Customer shall pay KoalaBrain for the Professional Services in accordance with the payment terms set forth in the applicable Statement of Work. Licensor shall invoice Customer for all such fees when due, which shall be paid by the Customer within thirty (30) calendar days of receipt.
KoalaBrain shall be entitled to reimbursement from Customer for all documented, reasonable, out-of-pocket expenses incurred in connection with the provision of Professional Services under this Agreement, including, without limitation, travel, lodging, meals and transportation. Licensor shall provide estimates of such expenses in each Statement of Work. Such expenses are to be billed to Customer in KoalaBrain’s invoices as they are issued, and are to be paid by Customer accordingly.
Unless otherwise indicated therein, all Statements of Work may be terminated by either party if the other breaches a material term of the Statement of Work or this Agreement and such breach is not cured within fifteen (15) calendar days’ notice.
Upon termination of any Statement of Work, KoalaBrain shall cease all work being performed thereunder and issue Customer a final invoice. Termination of a Statement of Work shall not eliminate Customer’s obligation to pay for time or deliverables incurred or performed prior to termination. In the event that Customer terminates a fixed fee Statement of Work before deliverables are completed but after they have been commenced by KoalaBrain, such Statement of Work shall be converted to a time-and-materials Statement of Work for such commenced but incomplete deliverables, and KoalaBrain shall invoice Customer for the reasonable time incurred in connection with such incomplete deliverables.
By accessing or using the Service you represent and warrant to that: (i) you are of legal age to form a binding contract, or, if you are a minor, you have your parent's permission to use the Service, and your parent has read and agrees to these Terms of Service on your behalf; (ii) all registration information you submit is accurate, current and complete; (iii) you will maintain the accuracy and completeness of such information; (iv) if you are accepting these Terms of Service on behalf of a company or other legal entity, you have the authority to bind that company or legal entity to these Terms of Service. You also certify that you are legally permitted to use and access the Service and take full responsibility for the selection and use of and access to the Service. These Terms of Service are void where prohibited by law, and the right to access the Service is revoked in such jurisdictions.
In order to access the Service, you must register to create an account ("Account") and become a Member. When registering with KoalaBrain you agree to: (a) provide true, accurate, current and complete information about yourself (or, if applicable, the Corporate Member you represent) as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
By providing us with your email address, you agree to receive all required notices electronically, to that email address. From time to time, we will use this email address to send you notifications about product updates and improvements, company news and events, and updates from our community.
Fees and Payment
Signing up for a Service account is free and limited free trials and trial periods are offered. In the event you choose to upgrade to paid services or to provide payment information to Koalabrain after being prompted to do so, you agree to the pricing, payment and billing policies as set forth (a)herein, (b) on the Site and/ or (c) if applicable, in a separately executed or accepted purchase order. All fees paid for the Service or Application are non-refundable and non-transferrable except as expressly provided in these Terms of Service. All fees and applicable taxes, if any, are payable in Pounds Sterling. You are solely responsible for the payment of, and shall pay when due, all applicable sales and use taxes and similar fees now in force, enacted or imposed in the future on the delivery of the Service and/or any related transactions (except for taxes assessed on KoalaBrain’s net income or personal property). If for any reason KoalaBrain pay any such taxes, duties or excises, you will reimburse us for such taxes, duties or excises, other than taxes on KoalaBrain’s net income.
KoalaBrain Application Licenses and Service Subscriptions have a minimum term of 1 month. If your selected Service package requires a recurring subscription fee, your Service package will automatically renew unless you terminate it, we terminate it, or you notify us by email () of your decision to terminate your current Service package. You must cancel any automatically renewing Service package before it renews in order to avoid billing of subscription fees for the renewal term to your credit card. All fees and charges are non-refundable and there are no refunds or credits for partially used periods. Any charges incurred prior to cancellation or downgrade are non-refundable. I
KoalaBrain may use a third-party payment processor (the “Payment Processor”) to charge Members through an online account for use of the Service and Application. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor.
Member agrees to pay KoalaBrain, through the Payment Processor, all charges for purchases made by Member, and Member authorizes KoalaBrain, through the Payment Processor, to charge Member chosen payment provider or method (your “Payment Method”).
At your discretion, the Service may place phone calls, emails or text messages which may incur fees with the Member’s carrier or with KoalaBrain. You agree that KoalaBrain is not responsible for such fees, which may not be deducted or offset against the fees due to KoalaBrain
License granted by KoalaBrain
Subject to your compliance with these Terms of Service, KoalaBrain grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on your device and run such copy of the Application solely for your own personal or business use. KoalaBrain reserves all rights in the Application not expressly granted to you by these Terms of Service.
· KoalaBrain Service and Application KoalaBrain shall own and retain all right, title, and interest in and to the KoalaBrain Service and Application (except for any licensed content and software components included therein). Member agrees not to reverse engineer, decompile, distribute, license, sell, transfer, disassemble, copy, alter, modify, or create derivative works of the KoalaBrain Service or otherwise use the KoalaBrain Service in any way that violates the use restrictions contained in these Terms of Service. KoalaBrain does not grant to Member any license, express or implied, to the intellectual property of KoalaBrain or its licensors. Member further acknowledges and agrees that any information regarding the design, "look and feel", specifications, components, functionality or operation and payment terms and pricing (if applicable) of the KoalaBrain Service is considered the confidential and proprietary information of KoalaBrain (collectively "KoalaBrain Confidential Information").
· Member Data Subject to the section below labeled "Assignment of Certain Member Data", Member shall retain all right, title and interest in and to (a) all graphics, images, files, data and other information transmitted by Member to KoalaBrain in connection with its use of the KoalaBrain Service and (b) reports and other materials generated by the KoalaBrain Service following such transmission (collectively, "Member Data"), provided, however, that Member hereby grants to KoalaBrain a worldwide, royalty-free, non-exclusive license to use (i) data generated as a result of Member's use of the KoalaBrain Service solely for purposes of (x) maintaining and improving the KoalaBrain Service and (y) providing Member with access to special product offers and promotions and (ii) non-identifiable, anonymous, aggregated data regarding Member's use of the KoalaBrain Service compiled by KoalaBrain solely for marketing purposes or distribution to third party research firms.
· Assignment of Certain Member Data Notwithstanding the foregoing, upon your submission of data to a Corporate Member or any other Member, you hereby transfer all right, title, and interest in and to any transferred Member Data to the applicable Corporate Member or Member, provided, however, that such Corporate Member or Member hereby grants to you a worldwide, perpetual, royalty-free, non-exclusive license to maintain and utilise copies of such transferred Member Data (including any expense reports) for personal record keeping purposes.
· KoalaBrain Logos, Artwork and Designs KoalaBrain's graphics, logos, artwork, designs, page headers, button icons, scripts and service names are protected by international copyright law.
· Member Art Member shall retain all right, title and interest in and to all of Member's logos, promotional graphics and related marketing designs (collectively, the "Member Art"), provided, however, that Member hereby grants to KoalaBrain a worldwide, royalty-free, non-exclusive license to use the Member Art, as well as Member's corporate and/or trade name, for purposes of fulfilling its obligations hereunder and marketing KoalaBrain's products and services to third parties, subject to Member's right in each instance to approve the manner and form of such use (which approval shall be in writing and shall not be unreasonably withheld or delayed).
· Derived Data You shall own and retain all right, title, and interest in and to any data derived from your use of the KoalaBrain Service or that of any individual authorized by you to utilize the KoalaBrain Service (your "Users"), as defined below)(collectively, the "Derived Data"); provided, however, that you hereby grant to KoalaBrain a worldwide, royalty-free, non-exclusive license to use data generated as a result of your use of the KoalaBrain Service solely for purposes of (x) maintaining and improving the KoalaBrain Service, (y) providing you and/or your Users with access to and information about customized features, new functionality, and partner integrations, and (z) sharing with our partners such data in anonymized, aggregated form.
· The Application, Service, Site, and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of KoalaBrain. KoalaBrain reserves all rights in and to the Application, Service, and Site not expressly granted to you herein.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the KoalaBrain Service ("Feedback"). You may submit Feedback by emailing us at email@example.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of KoalaBrain and you hereby irrevocably assign to KoalaBrain and agree to irrevocably assign to KoalaBrain all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At KoalaBrain's request and expense, you will execute documents and take such further acts as KoalaBrain may reasonably request to assist KoalaBrain to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of KoalaBrain and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify KoalaBrain in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever. The term "Confidential Information" shall mean any and all of Company's trade secrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to Company's business, operations and properties, including information about Company's Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
Your Customers’ Data
Certain aspects of the Service may permit tracking of individuals and items. You acknowledge and agree that it is your sole responsibility to alert individuals interacting with, using or being tracked by the Service of such abilities. You shall comply with all applicable laws relating to such notifications
The Application and Service are a productivity tool, not a backup solution. Although KoalaBrain may provide copies of your data on occasion. You understand that it is yours/Member’s responsibility to back up your data in a manner and at intervals of your choosing, and that KoalaBrain does not have the obligation to maintain copies or backups of your data.
While documentation, functions and/or tools may be provided to assist in backing up in the manner and at intervals of your choosing, this in no way guarantees the integrity of files generated using these methods, it is the Members responsibility to oversee and check the integrity of all data backups and KoalaBrain has no obligation to check the integrity of the data or backups produced by the Application or Service.
You agree not to do any of the following:
· Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
· Use, display, mirror or frame the KoalaBrain Service, or any individual element within the KoalaBrain Service, KoalaBrain's name, any KoalaBrain trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without KoalaBrain's express written consent;
· Access, tamper with, or use non-public areas of the KoalaBrain Service, KoalaBrain's computer systems, or the technical delivery systems of KoalaBrain's providers;
· Attempt to probe, scan, or test the vulnerability of any KoalaBrain system or network or breach any security or authentication measures;
· Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as of privacy and publicity) of any other use of the KoalaBrain Service or staff member of KoalaBrain.
· Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by KoalaBrain or any of KoalaBrain's providers or any other third party (including another user) to protect the KoalaBrain Service or Site Content;
· Attempt to access or search the KoalaBrain Service or Site Content or download Site Content from the KoalaBrain Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by KoalaBrain or other generally available third party web browsers;
· Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail or junk messages, spam, chain letters or other form of solicitation (including sending invitations to use the KoalaBrain Service to the mobile numbers of people you do not know);
· Use or disclose any KoalaBrain Confidential Information, except as otherwise explicitly set forth herein.
· Use any meta tags or other hidden text or metadata utilizing a KoalaBrain trademark, logo URL or product name without KoalaBrain's express written consent;
· Use the KoalaBrain Service or Site Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms of Service;
· Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the KoalaBrain Service or Site Content to send altered, deceptive or false source-identifying information;
· Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the KoalaBrain Service or Site Content;
· Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the KoalaBrain Service;
· Collect or store any personally identifiable information from the KoalaBrain Service from other users of the KoalaBrain Service without their express written permission;
· Impersonate or misrepresent your affiliation with any person or entity;
· Violate any applicable law or regulation; or
· Encourage or enable any other individual or entity to do any of the foregoing.
· Use any part of the Service to send any unsolicited or unauthorized messages in any format
KoalaBrain will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. KoalaBrain may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that KoalaBrain has no obligation to monitor your access to or use of the KoalaBrain Service, or to review or edit any Member Content, but has the right to do so for the purpose of operating the KoalaBrain Service, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
Links to Third-Party Websites and Services
You acknowledge that KoalaBrain may require and use third party products and/or services in relation to this Agreement (“Third Party Services”). You acknowledges and agree that Third Party Services are not provided by KoalaBrain and that KoalaBrain provides no warranty and accepts no liability in relation to Third Party Services. Any referral for Third Party Services that may be made by KoalaBrain is provided for the convenience of the Member only and shall not constitute any warranty or guarantee of any kind from KoalaBrain. If Member elects to use Third Party Services, Member understands and agrees that there may be additional terms and conditions in relation to Third Party Services.
Termination and Account Cancellation
If you breach any of these Terms of Service, KoalaBrain will have the right to suspend, disable or terminate your Account or terminate these Terms of Service, at its sole discretion and without prior notice to you. KoalaBrain reserves the right to revoke your access to and use of the KoalaBrain Service at any time, with or without cause. In the event KoalaBrain terminates these Terms of Service for your breach, you will remain liable for any and all amounts due hereunder. You may cancel your Account at any time from https://online.koalabrain.com, or by sending an email to firstname.lastname@example.org.
If you are party to a Statement of Work, you may terminate your obligations under these Terms of Service (a "Termination for Cause") in the event KoalaBrain fails to perform or observe any material term or condition under these Terms of Service and fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
THE KOALABRAIN SERVICE AND SITE CONTENT ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, KOALABRAIN EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. KOALABRAIN MAKES NO WARRANTY THAT THE KOALABRAIN SERVICE OR SITE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. KOALABRAIN MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, KOALABRAIN SERVICE OR SITE CONTENT PURCHASED OR OBTAINED THROUGH THE KOALABRAIN SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE KOALABRAIN SERVICE. KOALABRAIN DOES NOT WARRANT THE RESULTS OF USE OF THE KOALABRAIN SERVICE, AND CLIENT ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. CLIENT SHOULD NOTE THAT IN USING THE KOALABRAIN SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER KOALABRAIN'S CONTROL (SUCH AS A THIRD PARTY SERVERS AND THE INTERNET). KOALABRAIN MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KOALABRAIN OR THROUGH THE KOALABRAIN SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE KOALABRAIN SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE KOALABRAIN SERVICE. YOU UNDERSTAND THAT KOALABRAIN DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE KOALABRAIN SERVICE, NOR DOES KOALABRAIN MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE KOALABRAIN SERVICE. KOALABRAIN MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE KOALABRAIN SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE KOALABRAIN SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE KOALABRAIN SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE KOALABRAIN SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold KoalaBrain, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the KoalaBrain Service, or your violation of these Terms of Service, including without limitation any breach of any representations or warranties herein, any infringement by you of KoalaBrain's intellectual property rights, and any claim by a third party that the Member Data or Member Art infringes such third party's intellectual property rights.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE KOALABRAIN SERVICE AND SITE CONTENT REMAINS WITH YOU. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER KOALABRAIN OR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE KOALABRAIN SERVICE OR SITE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, KOALABRAIN SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR KOALABRAIN SERVICE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF KOALABRAIN SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SITE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE KOALABRAIN SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE KOALABRAIN SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KOALABRAIN HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT WILL KOALABRAIN'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF KOALABRAIN SERVICE OR FROM THE USE OF OR INABILITY TO USE THE KOALABRAIN SERVICE OR SITE CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO KOALABRAIN FOR USE OF THE KOALABRAIN SERVICE OR CONTENT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KOALABRAIN AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
This software is not licensed for distribution or use in the United States of America or Canada.
Controlling Law and Jurisdiction
These Terms of Service and any action related thereto will be governed by the laws of the United Kingdom of Great Britain and Northern Ireland without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the courts located in the United Kingdom of Great Britain and Northern Ireland and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms of Service constitute the entire and exclusive understanding and agreement between KoalaBrain and you regarding the KoalaBrain Service and Site Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between KoalaBrain and you regarding the KoalaBrain Service.
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without KoalaBrain's prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. KoalaBrain may assign or transfer these Terms of Service, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Service, will be in writing and given: by KoalaBrain (i) via email (in each case to the address that you provide) or (ii) by posting to the Application or Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of KoalaBrain to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of KoalaBrain. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
No joint venture, partnership, employment, or agency relationship exist between Member and KoalaBrain as a result of this Terms of Service or use of the Service.
If you have any questions about these Terms of Service, please contact KoalaBrain at help@KoalaBrain.com. You acknowledge and agree that when contacting KoalaBrain, whether by email, chat, or otherwise, you will not include any personally identifiable information in your communications, and that if such information is included in your communications with KoalaBrain, KoalaBrain will have no legal obligation or liability with regard to such information.
Open Source Notices
Certain components of the Software may be subject to open-source software licenses ("Open-Source Components"), which means any software license approved as open-source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format. The Software documentation includes copies of the licenses applicable to the Open-Source Components.
To the extent there is conflict between the license terms covering the Open-Source Components and this EULA, the terms of such licenses will apply in lieu of the terms of this EULA. To the extent the terms of the licenses applicable to Open-Source Components prohibit any of the restrictions in this Agreement with respect to such Open-Source Component, such restrictions will not apply to such Open-Source Component. To the extent the terms of the licenses applicable to Open-Source Components require Licensor to make an offer to provide source code in connection with the Product, such offer is hereby made, and you may exercise it by contacting
No support services are offered with the Site, Service, or Application. Support must be provided by third parties. No support is offered or guaranteed by KoalaBrain via any format including telephone, chat, or emails.
Personal Data Policy
You and your Customers and Contacts
Certain aspects of the Service may permit tracking of individuals and items. You acknowledge and agree that it is your sole responsibility to alert individuals interacting with, using or being tracked by the Service of such abilities. You shall comply with all applicable laws relating to such notifications
1. Introduction and Scope
KoalaBrain considers the protection of your Personal Data a paramount corporate responsibility.
This Personal Data Protection Policy (“Policy”) describes the privacy practices of KoalaBrain’s websites, web applications, mobile applications and desktop applications (“Products and/or Services”). This Policy sets out important information to assist you with a transparent understanding of the Personal Data we collect from you, why we collect it, how it is used and shared and your choices regarding the use of Personal Data we collect.
In order to provide our Products and/or Services to you, we need to collect, use and disclose to certain third parties information that may identify you personally. Simply put, all the information we collect is related to providing you with KoalaBrain Product and/or Services.
By utilising KoalaBrain Products and/or Services, you consent to the privacy practices described in this Policy. If you do not agree with any part of this Policy, please do not provide your Personal Data to us.
If you do not provide us with your Personal Data, or if you choose to exercise any of your rights in relation to this Policy including withdrawing consent that you have given under this Policy (in accordance with clause 11) then this may affect our ability to provide our Products and/or Services to you or it may negatively impact the Products and/or Services we can provide to you.
KoalaBrain operates in Australia and the United Kingdom and accordingly, we may disclose your Personal Data between our locations which may or may not be located in your country of residence. All KoalaBrain related entities are subject to the privacy practices set out in this Policy and any applicable jurisdictional legislation.
For the purposes of the General Data Protection Regulations 2016/679 (“GDPR”) in the European Union KoalaBrain is both a “data controller” and a “data processor” of Personal Data you provide to us for the primary purposes of providing you with Products and/or Services.
3. What is Personal Data?
3.1. Personal Data
Personal Data is data which contains any information relating to:
a. An identified or identifiable living person - an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name; or
b. An identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
We will only control and/or process Personal Data where the collection of Personal Data is necessary to deliver our Products and/or Services to you. Specifically, we only collect Personal Data under the following circumstances:
c. As part of the provision of KoalaBrain Products and/or Services which includes, any Products and/or Services provided to any customer by KoalaBrain under an agreement;
d. Any enquiry received by KoalaBrain directly from an individual through our website or as a result of an authorised marketing activity; and
e. Any other data collection, processing or usage practice that KoalaBrain considers necessary as part of the ordinary course of providing the Products and/or Services or conducting their business.
4. What type of Personal Data do we Collect?
We may collect the following types of Personal Data from you:
4.1 Information required to establish your customer account with us, such as:
a. Your name (or title);
b. Contact information such as your residential/mailing address, telephone or mobile number and email address;
c. Business and industry information such as your business name, the industry your business is in and the size of your business;
d. Financial billing information that we require to process payment for our Products and/or Services. For example; we may require financial information for the purposes of invoicing you for payment or to provide to third party payment processors if you have provided us with a direct debit authority.
Example: We may collect Personal Data such as your name, address, email or phone number so that we can provide you with a product demonstration through our website or issue you with a product proposal.
4.2 Information collected to monitor how you interact with our Products and/or Services such as; device type, operating system information or network information. It also includes IP (internet protocol) address’s and regional settings.
5. What Personal Data do we Process?
We will always process Personal Data lawfully, fairly and in a transparent manner. Processing means any operation we perform on Personal Data that is considered collection, storage, transfer, dissemination or erasure of the Personal Data.
We will only process Personal Data, where:
a. The action of processing is a result of your direct instruction;
b. You have provided us with explicit consent to undertake the processing;
c. The processing is necessary to provide our Products and/or Services to you; or
d. The processing is necessary for us to comply with any legal obligations.
Example: If you sign up to a KoalaBrain and enter a customer’s personal contact details into a job, KoalaBrain will only use the Personal Data (contact details) you enter to store the Personal Data or to enable KoalaBrain to carry out the tasks you request it to do such as create an invoice or run a report. KoalaBrain will not control or use that Personal Data.
6. How do we use your Personal Data?
6.1 Primary Purposes
The primary purpose for which we control and process your Personal Data is to provide you with our Products and/or Services or to assist you with determining whether or not you would like to use our Products and/or Services.
This includes using your Personal Data for the following purposes:
a. Preparing a proposal (quote document) for you or sending you a demonstration;
b. Determining which or if any of our Products and/or Services are suitable for you;
c. Establishing your account, account integration or providing you with the Products and/or Services you have elected to purchase;
d. Notifying you of new features to our Products and/or Services or providing you with training;
e. Performing internal operations necessary to provide our Products and/or Services to you such as troubleshooting software;
f. Processing or facilitating payment for the Products and/or Services, including internal accounting or administration;
g. Providing your Personal Data to our related entities for the purposes of administration, storage, advisory or technical services; and
h. Any other purposes as authorised or required by law (e.g. to prevent a threat to health or safety, or to enforce our legal rights).
6.2 Secondary Purposes
We may also (upon obtaining your express permission) utilise your Personal Data for secondary purposes, such as:
a. Evaluating your satisfaction and seeking feedback regarding our Products and/or Services; or
b. Sending you targeted marketing activities (including email mail outs or electronic marketing materials) in relation to events, our Products and/or Services.
On occasion we use customer’s names, organisations and testimonials on our websites or on our social media. Your consent will always be obtained prior posting a testimonial.
6.3 Purposes Outside of Our Control
Any Personal Data that you choose to submit or post on our social media pages or any other public forum (“Forums”) may be read, collected, or used by others who visit these Forums and may be used to send you unsolicited messages. We are not responsible for the Personal Data you choose to submit in these Forums.
7. How do we collect your Personal Data?
7.1 Information collected from you directly
We will only collect Personal Data directly from you with your consent and through:
a. Forms you submit on our website (for example; online enquiry forms and order forms);
b. Other communication we have with you, which may include meetings, telephone conversations, paper forms and other documents you give us;
c. Your interaction with our Products and/or Services (for example; receiving error notifications or usage data from our software); or
d. Your contact with our customer support team; or
7.2 Information collected from you indirectly
We may also collect Personal Data from you when you interact with our websites or social media accounts.
We may collect this data by using Cookies (small files that are stored on your computer or mobile device). We utilise Cookies so that we can record how many times you have visited our website and which parts of our website you have visited before. Cookies may be used to provide you with information that you are interested in or to deliver our advertisements on other web sites and services.
Many web browsers allow you to manage your preferences regarding Cookies. You can set your browser to block cookies or delete certain Cookies. You may be able to manage other technologies in the same way that you manage Cookies using your browser’s preferences.
8. Do we ever disclose your Personal Data to third parties?
We may disclose your Personal Data to third parties in accordance with this clause, however any disclosure must be directly in relation to the primary purpose of providing Products and/or Services to you in accordance with this Policy. Please note that we do not engage in the sale or trade of Personal Data under any circumstance.
For the purposes of this Policy, “Disclose and Disclosure” means to transfer, share (including verbally and in writing), send, or otherwise make available or accessible your personal data to another person or entity. Third Party/Parties mean a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process your Personal Data.
We may Disclose your Personal Data to third parties performing services for us for the purposes described in this Policy. These services include processing and storing information on servers that may be located in jurisdictions outside of your country of residence.
Other instances where we might be required to Disclose your Personal Data to a third party:
a. To respond to a legal process such as a court order or subpoena or to comply with the requirements of applicable law;
b. To protect the safety of any person; or
c. To address fraud, security, or technical issues;
Your Personal Data may therefore be subject to privacy laws that are different from those in your country of residence. Personal Data collected within the European Union (including the United Kingdom and Switzerland) may be transferred to and processed by third parties, located in a country outside of these areas, where your Personal Data may be subject to reduced rights. All third parties engaged by us must deal with the information we Disclose in accordance with our legal obligations (including entering into vendor agreements), privacy, confidentiality and security standards.
Under no circumstances are third parties authorised by us to use or control the Personal Data they receive from us for any other purpose for which we engaged them.
If you have concerns about the transfer of your Personal Data to third parties for the purpose of Processing, please contact us in accordance with clause 13 below.
9. How do we keep Personal Data safe?
We have an obligation to ensure that your Personal Data is protected from unauthorised processing, accidental disclosure, access, loss, destruction or alteration. Accordingly, we have a range of technical security measures and procedures in place to ensure that your Personal Data is protected appropriately. These measures have been implemented and are reviewed regularly to protect your Personal Data from scenarios which may result in the accidental or unauthorised disclosure of your Personal Data as mentioned above.
In the unlikely event there is a data breach, we will (without delay) notify the relevant data protection authority, unless the breach is not likely to present any risk to your rights.
10. How long do we keep your Personal Data for?
We will only keep your Personal Data for as long as necessary to fulfil the purposes for which we are processing your Personal Data unless the law requires us to retain it for longer. For example, if required by local legislation or in the event we required it to defend legal proceedings.
11. What are your rights in relation to the Personal Data we collect?
You have rights in respect of your Personal Data. Specifically, you may exercise your right to:
a. Request access to and obtain copies of any Personal Data we have collected from you;
b. Request that your Personal Data be provided to you in a format that can be easily read;
c. Modify or rectify your Personal Data if it is no longer accurate;
d. Request the erasure of your Personal Data (more commonly referred to as the “Right to be Forgotten”) if you believe it is no longer necessary for the purposes of which it was originally collected; and/or
e. Restrict or object to the collection or processing of the Personal Data we have collected from you. This includes, your ability to withdraw consent previously given at any time.
If you wish to exercise any of the above rights, please send your request to our Data Protection Officer using the contact details set out below.
If you are in the European Union, you may also have the right to complain to the Information Commissioner or to your local data protection supervisory authority if you are unhappy with our privacy practices.
12. Contact Us
If you have any questions or complaints in relation to this Policy or our use of your Personal Data, or if wish to inform us of a change or correction to your personal information or would like a copy of the information we collect on you in relation to this Policy or our use of your Personal Data, please contact our Data Protection Officer using the following details:
Name: Data Protection Officer
Post: Attention: Data Protection Officer
PO Box 351
If you are not satisfied with KoalaBrain’s response the regulatory body that governs privacy in your jurisdiction, may be able to help you. Please contact our Data Protection Officer for details of the regulatory body that applies to you.
We will ensure that your question, concern or complaint is dealt with as soon as practicable. We reserve the right to verify your identity before complying with the request.
13. Changes to this Personal Data Protection Policy
We may amend this Policy from time to time in order to continue ongoing compliance with applicable Privacy regulations. Changes will be published to this website and publishing of those changes will be considered notification of said changes.
The definitions for this agreement align with those defined in the above Terms if Service.
· “Customer” The end user of the KoalaBrain software and Services
· “Partner” The user providing support services to the customer
As a partner, you will have access to your customers data and configurations. Your role as a partner is to provide technical support, maintenance and consulting services to users of the KoalaBrain Application and Service.
By becoming a partner, you agree to the following:
· All agreements and relationships between you and the customer are separate to your agreements and relationships with KoalaBrain.
· You agree to always act in your customers interest and maintain the confidentiality of their data under the same terms of the KoalaBrain Terms of Service.
· You will not misrepresent the capabilities, costs, or features of the KoalaBrain Service.
· You will not reproduce advertising matererials, logos, etc without approval from KoalaBrain.
· You agree to be bound by the KoalaBrain Terms of Service and to notify your customers of their acceptance of those terms and the EULA.
· KoalaBrain may terminate your partner status at any time, and contact your users directly for any reason.
· KoalaBrain may alter the partner agreement at any time.
· Certain aspects of the Service may permit tracking of individuals and items. You acknowledge and agree that it is your sole responsibility to alert individuals interacting with, using or being tracked by the Service of such abilities. You shall comply with all applicable laws relating to such notifications
Partners reselling our product should aim to sell our product at a reasonable price to their customers, reflecting the conditions of their local market - or roughly equivalent to the exchange rate price listed for consumer KoalaBrain pricing
Desktop Application End User License Agreement
The definitions for this agreement align with those defined in the above Terms if Service.
This End-User License Agreement (EULA) is a legal agreement between you and KoalaBrain regarding your use of the Application and any associated documentation (the “Software”), including KoalaBrain for Mac and Windows and all associated documentation. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EULA, DO NOT INSTALL, USE OR COPY THE SOFTWARE.
This EULA grants you the right to use the Software only for its intended purpose. You may not sell, resell, licence, rent, lease, lend, or otherwise transfer for value, the use of or installation of the Software. You may not redistribute the Software in any form or broadcast it in any media.
All title and copyrights in and to the Software, and any copies of the Software, are owned by KoalaBrain. All rights not expressly granted are reserved by KoalaBrain. In particular, this EULA does not grant you any rights in connection with any trademarks or service marks of KoalaBrain. Use of the Software for any purpose other than expressly permitted in this EULA is prohibited, and may result in severe civil and criminal penalties.
Without prejudice to any other rights, KoalaBrain may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the Software.
KoalaBrain makes no representations about the suitability of the software for any purpose. This software is provided by the author “as is” and any express or implied warranties, including, but not limited to, the implied warranties or merchantability and fitness for a particular purpose are disclaimed. In no event shall the author be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of use of this software, even if advised of the possibility of such damage.
You agree that all information or data of any kind, whether text, software, files, code, music or sound, photographs or graphics, video or other materials (“Content”), publicly or privately provided, shall be the sole responsibility of the person providing the Content or the person whose user account is used. KoalaBrain shall not be responsible to you in any way for the Content that appears in the Software nor for any error or omission nor liable for any breaches of any copyright in the content stored in the Software by you and your users.
Goods and services of third parties may be advertised and/or made available on or through this Software. Representations made regarding products and services provided by third parties are governed by the policies and representations made by these third parties. KoalaBrain shall not be liable for or responsible in any manner for any of your dealings or interaction with third parties.
You warrant that you own or have the right and licence to use any and all information uploaded to the KoalaBrain Service. You indemnify KoalaBrain against any loss or damage (including consequential loss) that may result from any information uploaded to the KoalaBrain Service, including but not limited to copyright breach.
You are responsible to maintain the confidentiality of your password and shall be responsible for all uses via your registration and/or login, whether authorised or unauthorised by you. You agree to immediately notify KoalaBrain of any unauthorised use or your registration, user account or password.
By downloading, installing, using, or copying the Software you accept and agree to be bound by the terms of this EULA. If you do not agree to all of the terms of this EULA you may not download, install, use, or copy this Software.
This EULA entitles you to install as many copies of the Software as your purchased licenses expressly allow for, and use the Software for any lawful purpose consistent with this EULA. Your license to use this software is expressly conditioned upon your agreement to all of the terms of this EULA. This software is licensed, not sold. KoalaBrain reserves all rights not granted by this EULA and the associated Terms of Service.
A license is required to operate the software, can only be used once after it has been purchased, and will undergo an online activation process which will verify that it has not been previously installed.
You may not remove any proprietary marks or notices on the Software.
The Software automatically communicates with KoalaBrain servers for four purposes: (1) updating the Software; (2) sending error reports; (3) sending anonymized usage data so we may improve the Software; (4) Activating and confirming the input license to operate the Software is valid. If you do not want the Software to update automatically, send anonymized usage data, send error reports, or perform online activation, you must uninstall the Software.
· Automatic Software Updates The Software may communicate with KoalaBrain to determine whether there are any patches, bug fixes, updates, upgrades or other modifications to improve the Software. You agree that the Software may automatically install any such improvements to the Software on your computer without providing any further notice or receiving any additional consent. This feature may not be disabled. If you do not want to receive automatic updates, you must uninstall the Software.
· Error Reports In order to help us improve the Software, when the Software encounters certain errors, it may automatically send some information to KoalaBrain about the error. This feature may not be disabled. If you do not want to send error reports to KoalaBrain, you must uninstall the Software.
· Anonymized Usage Data KoalaBrain may collect anonymized data about your usage of the Software to help us make improvements. If you do not want to send anonymized usage data to KoalaBrain, you must uninstall the Software.
· Software Activation in order to confirm you have a valid, unused license, the Software will communicate with KoalaBrain to validate the license input during the installation process. If you do not want to send activation data to KoalaBrain, you must uninstall the Software.
Usage of the Software is also governed by the Terms of Service outlined Above and acceptance of this EULA indicates your acceptance of those Terms of Service also.
This EULA may be modified or revoked at any time.