Terms and Conditions of Service (“Terms”) for Australia and New Zealand
These Terms govern your access to and use of the technology support services and software provided by or on behalf of PlumChoice, Inc. of Cross Point, 900 Chelmsford Street, Lowell, MA 01851, U.S.A., its subsidiaries, affiliates and contractors (“we”, “us”, “our” or “PlumChoice”) by telephone, through our or your Device (as defined below) provider's website (“Website”) or during the performance of remote support services (such support services are collectively referred to as the “Services”).
By accessing, ordering or using the Services via telephone or online, you agree to the current version of these Terms (“you” means you or, for services designed for businesses, the legal entity that you are authorised to represent and on whose behalf such services are procured). These Terms (including all documents referred to in these Terms) form a legally binding contract between you and us. If you do not agree to these Terms, you should not access or use the Services.
Your personal information
We may collect personal information about you for the purpose of:
• processing an order and providing our Services to you;
• improving the features, performance and support of our Services and software;
• offering you additional information, opportunities and functionalities;
• sending you electronic newsletters and promotional emails; and
• conducting our internal business operations (including meeting any relevant legal requirements).
If you do not give us the requested personal information, or if the information you give us is incomplete or inaccurate, we may be delayed or prevented from providing you any Services, providing information to you or otherwise meeting our obligations to you.
We may disclose your personal information for the purposes set out above, to the following parties:
• internally to our staff;
• to our professional advisers, including auditors, accountants and lawyers, consistent with normal business practice;
• to third party contractors who assist us providing the Services;
• to business partners who provide services or software in connection with our Services; or
• to other third parties when you consent to the disclosure or the disclosure is: authorised by law; reasonably related to the sale or other disposition of all or part of our business; reasonably necessary to establish legal claims or to protect the rights, property or safety of PlumChoice or others; or in order to apply or enforce these Terms.
You may contact our Privacy Officer at firstname.lastname@example.org or at Privacy Officer, PlumChoice, Inc., Cross Point, 900 Chelmsford Street, Lowell, MA 01851, U.S.A. for further information.
Scope of Services
You may initiate the Services via telephone, via a Website, or by other means made available by or on behalf of PlumChoice. We will use commercially reasonable efforts to answer your technology question and resolve your technology problem for a fee as set forth on the Relevant Websites (www.ts.avast.com/en-au if you are an Australian resident or www.ts.avast.com/en-nz) if you are a New Zealand resident) as quoted on the telephone or during an online chat session or as otherwise communicated to you (whether via email communication or otherwise), as applicable. We may provide certain portions of the Services via remote control session, online chat or e-mail. We may set limits to the technology we support. Certain Services may have minimum system, bandwidth or other technology requirements. Certain Services may only be available on a one-time basis for a fee (“Individual Services”). Other Services can be accessed and used more than once over a period of time, for a one-time or recurring fee (“Subscription Services”).
We may also, from time to time, act as agent for our manufacturer and technology supplier partners to offer you the option to purchase additional software, support or other IT products and/or services (including subscriptions) that we think may be of interest to you.
We provide you with access to and use of the Services subject to your compliance with these Terms. Details of the Services available to you are either set out at the Website via which you access the Services or at another website communicated to you by our staff on the telephone, during an online chat session or via email. Please read those details carefully before you contact us to request and/or purchase the Services.
Who may use the Services
You represent and warrant to us that:
• you are at least 18 years old;
• you have the right, capacity and authorisation necessary to legally bind yourself to these Terms or, if you are accepting these Terms on behalf of your employer or another entity, that you have the legal right, capacity and authorisation to bind such entity to these Terms;
• you will comply with all laws, rules and regulations applicable to your access to and use of the Services; and
• any information you submit to us is true, correct and complete (including payment or credit card information).
Your right to access and use the Services will terminate immediately if you are in breach of any of these Terms.
We may, but have no obligation to, monitor and record your access to and use of the Services, including telephone calls and online sessions, for the purposes of quality control, improving customer service, internal training and internal market research.
By agreeing to these Terms, you grant permission to PlumChoice to:
• monitor and record the Services as explained above, and to use or disclose any related information as necessary or appropriate to satisfy any law, regulation or other governmental request; to provide the Services to you and our other Users; to enhance the types of Services we may provide to you in the future; and to protect ourselves and/or our Users; and
• combine your information with that of others in a way that does not identify you or any individual personally to improve the Services, for training, for marketing and promotional purposes, and for other business purposes.
Authorisation to access your Device
By agreeing to these Terms, you authorise us to access and control your computer or device (collectively, a “Device”) for the purposes of providing Services and/or Software (as defined below) to you.
In connection with delivering the Services, we may also download, install and use software, gather system data, take remote control of your Device and access or modify your Device settings. By accepting these Terms, you grant us the right to connect to your Device, download, install and use software on your Device to gather system data, repair your Device, take remote control of your Device and change the settings on your Device while performing the Services.
Except as expressly set out otherwise in these Terms and to the extent permitted by law, PlumChoice has no responsibility or liability under any circumstance at any time for any loss or harm that may arise from or may be related to the Services or any Software provided.
You are solely responsible for maintaining and backing up all information, data, text or other materials (collectively, “Data”) and software stored on your Device and storage media before ordering the Services. You acknowledge and agree that neither PlumChoice nor your Device provider has any responsibility or liability for any loss or corruption of Your Data, software or hardware that may arise out of the Services, except as set out in the liability section below.
Use of software and tools
In connection with delivering the Services, we may need to download, install and/or run software on your Device, including software that:
• provides Device system information to PlumChoice which helps us diagnose and resolve your technology problem;
• allows us to remotely control your Device and modify its settings or software; and
• generally consists of utilities and other tools to improve Device performance and help resolve your technology problem.
You acknowledge and agree that access to and use of all proprietary software and tools and all third party software and tools accessed, downloaded, installed, used or otherwise provided or made available with the Services (collectively “Software”) are subject to these Terms as well as the licence agreements that may appear or be referenced in connection with your access, download, installation and/or use of such Software (“Additional Third Party Software Licences”). You may not access, download, install or use any Software without agreeing to these Terms and the terms and conditions of any such Additional Third Party Software Licences without modification.
Third party Software
You authorise us to download, install and utilise certain third party Software and accept the terms and conditions of any applicable Additional Third Party Software Licences on your behalf. Alternatively, we may instruct you to review and accept such terms if they are acceptable to you. You acknowledge and agree that certain Software may include trial versions that will expire and cease to function after a certain period of time (usually 30 days) unless you purchase a separate licence to continue using such Software. You agree that we may, but are not obliged to, remove any Software downloaded to your Device during the Services after we have completed or terminated the Services.
With regard to any Software and related end-user documentation (including any corrections, updates and upgrades of the foregoing made available to you) for which your acceptance of a separate licence agreement is not required (collectively, “PlumChoice Software”), we grant you a revocable, non-exclusive, non-transferable licence to access and use the PlumChoice Software for the sole purpose of receiving the benefit of the Services purchased by you.
You may not make any copies of the PlumChoice Software. The PlumChoice Software is the confidential information of PlumChoice and/or our licensors, providers or suppliers, which you must not disclose to others or use except as expressly permitted by these Terms.
The PlumChoice Software contains copyrighted material, trade secrets, trademarks, patented or patentable inventions and/or methods, and other proprietary information owned or licensed by PlumChoice and/or our licensors, providers or suppliers. You may not:
• de-compile (except to the limited extent permitted by mandatory law), reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the PlumChoice Software or otherwise reduce the PlumChoice Software to a human readable form;
• modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sub-license or distribute copies of the Software, or otherwise transfer the PlumChoice Software to any third party; or
• remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the PlumChoice Software.
You are not granted any title or rights of ownership in the PlumChoice Software. You acknowledge that the licence granted under these Terms is not a sale of intellectual property and that PlumChoice or our licensors, providers and suppliers continue to own all right, title and interest, including all copyright, patent, trademark, trade secret, and moral rights, to the PlumChoice Software. The PlumChoice Software may be accessed and used in the United States, Canada (other than Quebec), Spain, Mexico, the United Kingdom, Australia and New Zealand only, and any export of the PlumChoice Software to any country, or access or use of the PlumChoice Software from any other country, is strictly prohibited.
You may use the Software only in connection with the Services and for no other purpose. Your right to access and use the Software under these Terms will remain in full force and effect unless and until terminated by PlumChoice, our licensors, providers or suppliers (as applicable), or until your customer account is terminated. On termination of the Services for any reason, you must stop using the Software and immediately delete the Software from your Device(s).
Third party services
Upgrades and other products
From time to time, we may offer you the option over the phone to purchase upgrades to your existing Devices and/or software, additional software, subscriptions or other products that we think may be of interest to you (“products”).
If you tell us over the phone that you wish to purchase a product, we will facilitate your purchase from the relevant product provider by taking your payment details over the phone or via online chat and submitting them directly to the product provider via a secure server. Any payments for products are made directly to the product provider and we do not take any payments from you.
Separate terms and conditions will apply to your purchase of any product from the relevant product provider. The applicable terms and conditions, together with information about the purchase (such as product details and price) will be made available to you by the product provider before you purchase the product. Those terms will form a legally binding contract between you and the product provider in relation to the purchase of the product, so you should read those terms and conditions carefully before agreeing to purchase the product.
We are not a party to any contract between you and a product provider for the supply of any product, and our role is limited to acting as agent for the product provider to facilitate the transaction as described above. The product provider will be solely responsible to you in relation to the supply of that product.
Any disputes in relation to the supply of any products should be raised and resolved directly with the relevant product provider.
Any dealings with any advertiser appearing on any Relevant Website are solely between you and the advertiser or other third party. We are not responsible or liable for any part of any such dealings or promotions.
If you use any communication tools available through our Website (such as any forum, online chat room or message centre), you agree only to use such communication tools for lawful and legitimate purposes. You must not use any communication tool for posting or disseminating any material unrelated to the use of our Website, including (without limitation) offers of goods or services for sale, files that may damage any other person’s computing devices or software, content that may be offensive to any other Users of our Website, or material or data in violation of any law (including data or other material that is protected by copyright or trade secrets which you do no have the right to use). When you make any communication on our Website, you represent that you own the content of the communication. We are under no obligation to ensure that the communications on our Website are legitimate and we are not able to monitor communications at all times. We reserve the right to remove any communication at any time in our sole discretion. Please report any objectionable information to us at email@example.com.
You must cooperate with us, promptly respond to our requests for information and comply with our requests to take actions to resolve your technology problem.
You must promptly notify us whenever your personal information changes (including for example, your name, address and telephone number, and credit card number and expiration date). We rely on the information you supply to us and providing false or incorrect information, or failing to notify us of a change of information, may result in Services being withheld or delayed, or in the suspension or termination of your customer account.
We reserve the right to update or change the Software from time to time. You must cooperate in performing such steps as may be necessary to install any updates, corrections or upgrades to the Software.
We will not be responsible or liable to you to the extent that we are unable to provide Services as a result of your failure to do any of the things required in these Terms.
Pricing and payment
Fees and charges for the Services you select are supplied to you during the ordering process and may be available on the Website. You agree to pay the charges applicable to your selected Services, as well as any applicable taxes and other charges including activation fees, minimum service fees, no-show fees, fail to cancel fees, termination fees, other non-recurring charges and set-up fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including due to insufficient credit or insufficient funds. Set up fees, activation fees, installation fees and other non-recurring fees, if applicable, will be included in your first bill. Whether you are accessing the Services from your home or away from your home, you are responsible for all telephone, internet and other communication charges.
Monthly recurring charges for certain Subscription Services will be billed one month in advance; usage charges will be billed in arrears; and Individual Services and certain Subscription Services will be billed and paid in advance. PlumChoice or its agent will bill you directly, or charge your credit card, as you request and as approved by PlumChoice.
The Services may be denied or discontinued without notice to you if:
• your credit card provider denies or discontinues providing credit to you for any reason;
• you fail to make a payment when due; or
• you fail to provide us with a new credit card expiration date before the existing one expires.
If any portion of your bill is not paid by the due date, PlumChoice may charge you a late fee on unpaid balances and may also terminate or suspend your Services without notice. If PlumChoice uses a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including legal fees.
By authorising PlumChoice to charge your credit card for your Subscription Services, you further authorise PlumChoice, to the maximum extent permitted under applicable law, to continue to charge your credit card (or a replacement card, if the credit-issuing entity informs PlumChoice that a replacement card has been issued) for all fees associated with the Subscription Services, including renewals. You must contact PlumChoice if you do not wish to renew your Subscription Services. If you do not contact PlumChoice, the Subscription Services that you selected will automatically renew for the same subscription duration that you initially selected, at PlumChoice’s then-applicable fees. PlumChoice reserves the right to charge Service fees to your credit card for a period of time determined by PlumChoice after the conclusion of the Service(s), where such fees are properly chargeable to you in relation to Services purchased by you.
Registration, passwords and security
In order to access or use certain Software or Services, we may require that you register as a member or user of such Software or Services. During the registration process, you may be asked to designate, or we may designate for you, a user name and password. You are responsible for maintaining the confidentiality of any password or account information you receive from PlumChoice, and are responsible for all activities that occur using that password or other account information (“ID”). You must provide complete and accurate identification, contact, and other information required as part of the registration process.
You must notify us immediately if you become aware of any unauthorised disclosure or use of your ID. Unless you have notified us that something has happened to cause a risk of unauthorised use of your ID, then any activities that occur under your ID will be treated as if they were carried out by you. You must not transfer your account to another User or maintain more than one account with us without our consent.
We are not liable for any unauthorised use of the Software or any Services under your account or on your Device.
Availability of Services
The Services may not always be available in your time zone or geographic location. The Services may not always be available due to system maintenance or internet service disruptions, and may not be available in the format generally marketed. Moreover, some Devices may be unable to receive the Services even if initial testing shows that your connection was qualified or your Device environment was suitable. PlumChoice or your Device provider(s) may, at any time, without notice or liability, restrict the use of the Services or limit their time of availability in order to perform maintenance activities and to maintain session control.
To the extent permitted by law, we will not be liable to you or to any third party for any unavailability, modification, suspension or withdrawal of Services, or any parts of the Services.
Use of the Services and Software
Your access and use of the Services and Software is only for your personal and internal business purposes on your Device(s), and not for commercial use, including resale or transfer to others. You may not sell, lease or rent access to or use of the Services or the Software. You may not allow manufacturers, suppliers or vendors of your Device(s), or providers of services relating to such Device(s), to access or use the Services or the Software.
You may not use, download, copy or print any information, data, text, photographs, graphics, video, or other materials provided with the Services (“Content”) unless:
• you use the Content solely for personal, informational and non-commercial purposes;
• if applicable, PlumChoice’s trademarks and copyright symbol and statement set out on each page of the relevant Website appears on each downloaded or copied page; and
• no modifications are made to the Content.
PlumChoice reserves the right to revoke the authorisation to view, download, copy and print the Content available through the Services at any time. You will discontinue any such use immediately on notice from PlumChoice that it has revoked your authorisation. Except as expressly provided in these Terms, you may not use, download, upload, copy, print, display, perform, reproduce, publish, license, post, transmit or distribute any Content from the Services in whole or in part without our prior written permission. We reserve any rights not expressly granted in these Terms.
You must not:
• “mirror” any Content or Software on any other server without our prior written permission;
• use the Services, Content or Software for any illegal purpose;
• misuse, abuse or make any unauthorised use of any property, network, website, personnel or equipment of PlumChoice or our customers, partners or suppliers, including interfering with or otherwise disrupting networks connected to the Services and/or the Software;
• engage in any activities or actions in connection with the Content, Services and/or Software that infringe or misappropriate the intellectual property rights of others, including copyright, patent, trademark, trade secret and confidential information, or that are defamatory or breach any laws relating to child protection, pornography and obscenity as well as classification and censorship, or that amount to passing off;
• engage in any activities that violate the personal privacy or publicity rights of others;
• access, monitor or use data, traffic, computers, systems, facilities or networks provided with or accessible from the Services and/or the Software without proper authorisation, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network;
• send unsolicited commercial messages (e.g. “SPAM”), advertising, informational announcements or communications in any form in connection with the Services or the Software; or
• interfere with the Services, the Software or any system, service, network, or person accessible from the Services or the Software, including deliberate attempts to overload a system by the multiple postings of messages.
Modifications to the Services
We may, for any reason, and without notice to you, modify, terminate, change, suspend or discontinue any and all aspects of the Services, including Content, Software, features and/or hours of availability, and, except as expressly set out in these Terms, we will not be liable to you or to any third party for doing so.
You agree that your access and use of the Services, the Software and the internet is your sole responsibility and risk. You will comply with all applicable laws and regulations in relation to your use of the Services and Software.
You acknowledge that the internet is not owned, operated or managed by, or in any way affiliated with PlumChoice, and we are not responsible and have no control over the information, content or other materials, some of which may be offensive, malicious or destructive in nature, which may be accessed through use of the Services and/or the Software. You further acknowledge that PlumChoice does not own or control all of the various facilities and communications lines through which Services and the Software may be provided.
We do not guarantee uninterrupted access to or through websites, servers or other facilities on the internet, whether or not such facilities are owned or controlled by PlumChoice.
We cannot and do not guarantee that data available for downloading through the Services or the Software will be free of defects, infection or viruses, worms, Trojan horses or other code that may have contaminating, malicious or destructive elements. You are responsible for implementing adequate safeguards (including anti-virus and other security checks) to satisfy your particular requirements as to the safety and reliability of data, and for maintaining a means external to the Services and the Software for the reconstruction of any lost data.
You acknowledge that the internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information you transmit or receive over the internet. PlumChoice is not responsible for invalid destinations, transmission errors, or corruption or security of your data.
Currently, the Services are only available for residents of the United States, Canada (other than Quebec), Spain, Mexico, the United Kingdom, Australia and New Zealand. We may, from time to time, offer access to and use of the Services, and/or other promotions to residents of other countries. You must comply with all applicable laws in relation to your use of the Services, Software and Content, including United States export laws and regulations. You represent and warrant that you are not on the United States' prohibited party list and are not located in or a national resident of any country on the United States' prohibited country list.
We respect the proprietary rights of software and hardware manufacturers and will not install or support unlicensed materials. The Services, and the Software and Content provided with the Services are protected by law, including copyright, trademark, service mark, patent or other proprietary rights and laws. PlumChoice is the copyright owner or licensee of the Services, Software, and Content, unless otherwise indicated. If you use the Services, Software or Content otherwise than as expressly allowed by these Terms, you may breach copyright and other laws and may be subject to liability for such unauthorised use. Except as expressly set out in these Terms, we do not grant any licence or other authorisation to any user of our trademarks, registered trade marks, service marks, other copyrightable material, patents or any other intellectual property by including them with the Services, the Software and/or the Content.
PlumChoice, the PlumChoice logo and all other product names, service names, slogans, and related logos are registered trademarks or trademarks of PlumChoice in the United States and other countries. Except as expressly permitted by these Terms, you are not permitted to use these trademarks, or any other PlumChoice trademarks, without our prior written consent. All other trademarks, product names, trade names, and logos used or displayed through the Services are the property of their respective holders. Use of other company trademarks, trade names, product names and logos or images of the same does not necessarily constitute: (1) an endorsement by such company of PlumChoice and its products and services; or (2) an endorsement of the company or its products or services by PlumChoice.
Third party websites
Any third party Website you access the Services from will be subject to separate terms that apply to your use of the Website. We are not responsible for those external Websites. You will be responsible for ensuring that you read, accept and comply with the Website terms before using any Website.
We may refer other third party services and software to you in connection with the Services and/or the Software. Although we may link or otherwise refer you to such products and services offered by third parties, unless expressly stated to the contrary, such references, links and/or displays in no way mean, imply, suggest or constitute any evaluation or approval by us of those merchants or their products or services. We are not responsible in any way for any other websites, products, services or information. Your dealings with other entities promoted on or through the Services and/or the Software, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such other entity. PlumChoice will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the promotion of such other entities on a Website or otherwise in connection with the Services and/or Software. Likewise, any third parties that may refer you to the Services and/or the Software have no responsibility or liability for the Services and/or the Software provided by PlumChoice.
Termination; consequences of termination
We may stop providing the Services and Software for any reason at any time. If we do then, subject to any mandatory requirements of local laws applicable to you, your sole and exclusive remedy will be a refund of any pre-paid, unused fees paid by you for the applicable Services and Software for the period following termination, if applicable.
We may terminate your Subscription Services, upon notice, if we determine, in our sole business judgement, that your Subscription Services are being used: (a) fraudulently, (b) maliciously; (c) by any person other than you; (d) for any Device other than a registered Device; (e) unreasonably; or (f) in excess of five (5) completed, in-scope Service incidents per any 90 day period. If your Subscription Services are terminated, we will refund to you a pro rata portion of any fees that you have prepaid for the Subscription Services. Subscription Services may be subject to additional requirements, limitations, and restrictions depending on the subscription level you purchased. Please refer to the applicable Website for information about those restrictions.
To the extent permitted by law, we will not be liable to you or any third party for termination of the Services for any reason.
On termination, we may immediately deactivate or delete your user account and all related information and files in your user account and/or bar any further access to the Services.
You acknowledge and agree that any Software that is installed as part of any of the Services may cease to operate, update or function properly after termination of the Services.
Warranties; exclusion of warranties
We warrant that we will provide any Services with reasonable care and using appropriately trained personnel. We will use our reasonable efforts to help resolve the relevant IT problem, but cannot guarantee that the Services and the Software will be successful, because the problem may be beyond our ability to resolve.
If you have purchased an Individual Service, and you experience a problem with the resolution we provided you must notify PlumChoice within five (5) days after the day you originally received the Individual Service.
The following exclusions will only apply to the extent permitted by applicable laws in your country. Except as set out in any manufacturer warranty for any equipment or software provided by PlumChoice (but only if such warranty is included with such equipment or software), no other warranties, undertakings, conditions or terms of any kind, whether express or implied, statutory or otherwise, will apply to the Services or the Software, and all warranties, conditions, terms or other undertakings implied at law as to the condition, quality, performance, satisfactory quality or fitness for purpose of the Services or Software are excluded to the fullest extent permitted by applicable law.
To the extent permitted by law, and without prejudice to the Liability section below, neither PlumChoice nor our licensors, suppliers, contractors, partners and providers or any directors, officers, employees, agents and representatives of any of them (each a “PlumChoice Party”) warrants that the Services or Software will perform at a particular speed, bandwidth or data throughput rate, or will be uninterrupted, error-free, secure, or free of viruses, worms or similar. No PlumChoice Party makes any warranty regarding any transactions executed using the Services or the internet, or regarding the content and information accessed by using the Services or any links displayed.
You expressly assume all risk and responsibility for use of the Services, the Software and the internet generally. Do not use the Services or the Software in any high risk activities where damage or injury to person, property, environment or business may result if an error occurs.
(a) Subject to paragraph (g) below, no PlumChoice Party will be liable to you, to the fullest extent permitted by law (and in each case unless the failure results from our breach of these Terms): (i) for any failure to resolve an IT problem or to resolve the IT problem within any particular time;(ii) for loss of your Data; or (iii) if changes in operation, procedures or Services require modification or alteration of your Device, render the same obsolete or otherwise affect its performance.
(b) No PlumChoice Party will be liable to you for any: (i) losses which arise as a result of your unauthorised use of the Services, Software or Content (including any breach by you of these Terms); or (ii) losses that were not caused by our breach of these Terms or applicable law.
(c) If you are using the Services as a consumer, we will not be liable to you for any: (i) losses which are not a foreseeable or likely result of your use of the Services; (ii) loss of Data or loss of use of Data; or (iii) loss of profits, loss of revenue, loss of anticipated savings, loss of business or sales, cost of substitute services or any other loss connected with a trade or business. This will not affect any statutory rights that you may have as a consumer.
(d) If you are using the Services as a business then, subject to any statutory rights you may have, we will not be liable to you for any: (i) loss of profits; (ii) loss of revenue; (iii) loss of anticipated savings; (iv) loss of business or sales; (v) cost of substitute services; or (vi) loss of data or loss of use of data (in each case whether such loss is direct or indirect); or (vii) indirect, consequential or special loss or damage whether such loss or liability arises due to negligence, breach of contract, breach of statute, misrepresentation or for any other reason, and whether or not we have been advised of the possibility of such loss.
(e) Subject to paragraphs (c), (d), (f) and to the extent permitted by law, our total aggregate liability under these Terms and in relation to anything that we may have done or not done in connection with the Services, Content or Software (and whether the liability arises because of breach of contract, negligence or for any other reason) for all events or series of connected events in a 12 month period will be limited to AUD1,000 for Australian residents or NZD1,000 for New Zealand residents.
(f) If the Services or Software fail to comply with any statutory guarantees applicable to the Services or Software, and those Services or Software are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then PlumChoice’s liability for a failure to comply with any such guarantee will (to the extent permitted under the relevant statute) be limited to our choice of the following remedies:
• the replacement of the Services or Software or the supply of equivalent services or software;
• the repair of the Services or Software;
• the payment of the cost of replacing the Services or Software or acquiring equivalent services or software;
• the payment of the cost of having the Services or Software repaired;
• the supplying of the Services or Software again; or
• the payment of the cost of having the Services or Software supplied again.
(g) Nothing in these Terms will in any way limit or exclude our liability for negligence causing death or personal injury, for fraudulent misrepresentation or for any liability that may not be legally excluded or limited.
Paragraphs (a) to (f) also apply to each PlumChoice Party as third party beneficiaries.
The remedies set out in these Terms are your sole and exclusive remedies. If you are using the Services as a consumer, you may have additional rights under certain laws which do not allow the exclusion or limitation of liability. If these laws apply to you, our exclusions or limitations apply to you to the maximum extent allowed by applicable law.
You will indemnify and keep indemnified PlumChoice, its parents, subsidiaries and affiliates and their respective officers, directors, employees and agents from and against all liabilities, costs and expenses, including reasonable lawyer's fees, in connection with or arising from:
• any breach of applicable laws or these Terms by you (or any parties who use your account, with or without your permission, to access the Services or the Software);
• the use of the Services, the Software or the internet or the placement or transmission of any message, information, software or other materials on the internet by you (or any parties who use your account, with or without your permission, to access the Services);
• negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Services or the Software);
• injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with these Terms, except to the extent that such liabilities arise from our negligence or wilful misconduct; or
• claims for infringement of any intellectual property rights arising from your use of the Services, Software or the internet.
Notices; electronic communications
Notices and communications to PlumChoice must be sent to the applicable address given in these Terms or to firstname.lastname@example.org. Notices by PlumChoice to you will be given: (i) when sent to your email address maintained in our records; (ii) when sent by mail addressed to you at the postal address maintained in our records; or (iii) when hand delivered to your home.
The information communicated via the Website constitutes an electronic communication. When you communicate with us through the Website or other forms of electronic media, such as email, you are communicating with us electronically. PlumChoice, on behalf of itself and others who may be involved with delivering the Services (as applicable), may communicate with you electronically by email and/or may make communications available to you by posting them on the Relevant Website. Such communications, as well as notices, disclosures, agreements and other communications that we provide to you electronically, are equivalent to communications in writing and will have the same force and effect as if they were in writing and signed by us.
You acknowledge and agree that: (i) the user ID or alias of a sender, contained in an email is legally sufficient for us to verify the sender’s identity and the authenticity of the communication; (ii) an email sent containing your user ID or alias establishes you as its originator and has the same effect as a document with your written signature on it; and (iii) an email or any computer printout of it, is a valid proof of the validity of the original content of the electronic communication.
Governing law and jurisdiction
These Terms and your access and use of the Services or Software is governed by Australian law if you are an Australian resident and by New Zealand law if you are a New Zealand resident (within the meaning of each country’s taxation laws). Any dispute regarding the Services, the Software or these Terms will be dealt with by the courts of your Australian State or Territory of residence or the courts of New Zealand, as applicable.. Nothing will prevent us from bringing proceedings to protect our confidential information or intellectual property rights before any competent court.
The original of these Terms has been written in English. Any translation of these Terms by you into any other language will have no legal effect.
Any changes by you to these Terms, or any additional or different terms in your purchase orders, acknowledgements or other documents, whether written or electronic, have no legal effect.
If any part of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, all the other provisions of the Terms will remain in full force and effect.
If we do not exercise or enforce any of our rights, that does not mean that the rights concerned has been waived.
We may assign or transfer our rights or obligations under these Terms in whole or part, without restriction. You may not assign your rights or obligations in respect of these of the Terms without our prior written consent.