Terms of Use

Definitions

In these terms, the following expressions have the following meanings:

Account Holder: the person in whose name your account is registered, being either you or any person to which you transfer ownership as set out in the “Transfer of Account” section.

Authorised User: any person who is authorised to use the Service on your behalf pursuant to paragraph 3.

Content: any and all data and other material that is created, stored or processed by you on or by means of the Service.

Data Protection Law: means, in relation to the obligations on each of us, applicable data protection law in our respective jurisdictions. In our case this means (i) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018. Any terms or words defined in Data Protection Law and used in a provision of terms relating to personal data shall, for the purposes of that provision, have the meaning set out in Data Protection Law.

Fees: the fees payable by you for the Service.

Service: the Sonderplan service made available by us, at a subdomain on sonderplan.com

Website: our website at sonderplan.com.

Agreement

In consideration of your agreeing to pay the Fees, we agree to make the Service available to you and your Authorised Users, and grant you a non-exclusive, non-transferable licence to access the Service at the Website or by any other means we make available (including without limitation mobile device applications).

Authorised Users

You are permitted to provide access to the Service to the number of Authorised Users specified in your account details from time to time. Each Authorised User will have their own login, and all logins must be used by only one person and not shared with anyone else.

You must not charge any person for being an Authorised User or making use of the Service. All Authorised Users must be aged over 18.

Each Authorised User will be required to agree to our acceptable use policy before they are able to access the System.

You are permitted to designate any Authorised User as having administration rights, which will enable that Authorised User to exercise any of the administration functions available through the System, other than termination of your account. We accept no liability for any acts or omissions of any such Authorised User.

Account Security

You are responsible for maintaining the security of your and your Authorised Users’ logins and passwords. Sonderplan will not be liable for any loss or damage arising from any failure by you or your Authorised Users to comply with this obligation.

Permitted Use

You are only permitted to use the Service for your own internal business purposes, for the Service’s intended purpose and in accordance with the Service’s intended functionality. All other use without our consent is prohibited, including without limitation:

• using the Service for any purpose relating to the design, programming, implementation or operation of any alternative or competing product or service, whether used for internal purposes or made available to others;
• making the Service available to any other person (other than an Authorised User) or incorporating the Service into any other service or website operated by you or by any other person; or
• using the Service to provide similar functionality or similar bureau-type service to any other person.

Content

You warrant that any Content will comply with our acceptable use policy. We do not pre-screen Content, but reserve the right to remove any Content that we consider to be in breach of our acceptable use policy or otherwise unlawful.

Support

Technical support is available via email and in our Help Center.

Payment (Flexible Billing Model)

The Fees for use of the Service under our “Flexible Billing” model are payable either yearly or monthly, and are always paid in advance. You must provide valid credit card details for paying the Fees as a yearly or monthly recurring payment. The Fees will be charged for the first time immediately once you choose to create a subscription.

For any subsequent plan upgrades, your credit card will immediately be charged a pro rata amount for the additional cost, and you will automatically be charged the new rate of Fees on your next billing cycle.

If users or resources are added or removed during your billing cycle, your account will be immediately charged/credited a pro rata amount. Account credits are automatically used as deductions on future invoices. We do not issue refunds for unused account credits.

The Fees are exclusive of GST, which will be payable (if your business is domiciled in Australia) in addition to the Fees.

All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You are also responsible for any international transfer fees.

Payment (Enterprise Customers)

Enterprise customers can request custom pricing with fixed User / Resource allocations. Additional administration fees may be applicable. All payments are final and we do not issue refunds in the event of cancellation of the subscription before the renewal period.

Suspension

If you fail to pay the Fees when due then we may suspend your (and your Authorised Users’) access to the Service following notice to you and five (5) business days’ opportunity to cure such nonpayment until all outstanding Fees have been paid in full.

Preservation of Content

In the event that we suspend the Fees for non-payment, or you choose to downgrade the level of Service, then you will lose access to affected Content, features or capacity of your Account.

We will use best endeavours to preserve affected Content for a period of six months, but we will have no liability (whether in contract, tort including negligence, or otherwise) for any loss or damage to Content to which access is lost or suspended under this paragraph.

Usage

If your bandwidth significantly exceeds the average bandwidth usage (as determined by us) of our other customers, we shall notify you of such excess usage and work with you to determine the cause and correct such excess usage. We reserve the right to immediately suspend or throttle your account if your usage is disrupting our service or if you fail to cooperate in such matters.

Transfer of Account

You may transfer your account to a new Account Holder. The new Account Holder must set up an account on the System, agree to these terms of use, and ensure that they have provided their credit card details to pay the Fees, starting from the first payment due upon or immediately after the transfer of the account. Upon that transfer, this agreement will apply between us and the new Account Holder, and all references to “you” will be deemed to be references to the new Account Holder.

Termination

If you wish to terminate your account then you must do so by using the means provided for account cancellation on the Service.

We may terminate our agreement with you in any of the following circumstances:

• if you fail to pay any Fees within 14 days of them falling due; or
• if you have breached any other provision of these terms of use; or
• if we are required to do so by law; or
• if we withdraw the Service;

Consequences of Termination

We will delete all of your Content from the Service thirty days after termination, unless your account is reactivated during that period (which we may agree to at our discretion and upon payment of any outstanding Fees). We will delete all of your Content before that if you request in writing that we are to do so. Your Content cannot be recovered once deleted.

Data Protection

To the extent that any Content constitutes personal data within the meaning of Data Protection Law, you and we shall comply with Data Protection Law in our respective processing of that personal data. Where we act as a processor on your behalf, the Data Processing Appendix at https://www.sonderplan.com/dpa (which forms part of these terms) will apply, and you agree to indemnify us in respect of any claim by a third party that any processing of such personal data by means of the Service does not comply with Data Protection Law.

We produce anonymised and aggregated statistical data regarding the use of the Services to use for our own businesses purposes (including to improve and promote the Services). This data will not constitute personal data.

Information and Intellectual Property Rights

You acknowledge that all intellectual property rights in the Service throughout the world belong to us or to our licensors, that rights in the Service are licensed (not sold) to you, and that you have no rights in, or to, the Service other than the right to access it in accordance with these terms.

We acknowledge that (as between us and you) all Content belongs to you or your licensors. You agree that we can use, reproduce, modify, display and distribute your Content on and through the Service (including any third-party infrastructure). This licence is non-exclusive, perpetual, irrevocable, royalty-free, sub-licensable and worldwide, but only extends to what is reasonably necessary for us to provide and manage the Service.

You agree that we may identify you or your employer on our Website and in marketing materials as a customer of Sonderplan and you hereby grant us a non-exclusive, royalty-free license to do so on our Website or in any media now or later developed in connection with any marketing, promotion or advertising of the Service. You agree that we may use your or your employer’s logo for such purposes. If, however, you prefer to remain anonymous, please contact us and we will ensure that you are not mentioned on our Website or in any marketing materials.

If you provide suggestions, ideas, feedback or recommendations to us regarding our Service (Feedback), we will be free to use, disclose, reproduce, license or otherwise distribute and exploit such Feedback as we see fit, without any obligation or restriction to you of any kind.

Warranty

We will provide the Service with reasonable care and skill, and will make reasonable endeavours to ensure the Service is available at all times during normal working hours, except for scheduled maintenance which we will notify on the Website.

No Implied Terms

These terms set out the full extent of our obligations and liabilities in respect of the supply of the Service. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us except as specifically stated in these terms. Any condition, warranty, representation or other term concerning the supply of the Service which might otherwise be implied into, or incorporated in, these terms, or any collateral contract, whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.

You acknowledge that the Service has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Service meet your requirements.

You acknowledge that the Service may not be free of bugs or errors, and may not be available at all times or without interruption, and you agree that the existence of any such bugs or errors or the occurrence of any such interruptions in availability will not constitute a breach of these terms.

Our Liability

Nothing in these terms will limit or exclude our liability for death or personal injury resulting from negligence, or for fraud or fraudulent misrepresentation, or any other liability which may not by law be excluded or limited.

Except as set out above:

• we will not under any circumstances be liable, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any (i) loss of income, loss of business profits or contracts, business interruption, loss of the use of money or anticipated savings, loss of information, loss of opportunity, goodwill or reputation, or loss of, damage to or corruption of data, or (ii) any indirect or consequential loss or damage of any kind however arising; and
• our maximum aggregate liability under or in connection with this agreement, or any collateral contract, whether in contract, tort (including negligence) or otherwise, for any and all claims arising during any calendar year, will in all circumstances be limited to a sum equal to the Fees which fall due during that calendar year.

Events Outside Our Control

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these terms that is caused by an event outside our reasonable control.

Variation

We may alter or replace these terms, or revise any Fees, by posting the changes to the Website or to the Service or by giving notice to you by email. Revised Fees will take effect from the start of your next billing cycle, and any other revised terms will take effect 30 days following the updated terms being posted to the Website or notified to you by email. If you do not terminate your account before any such revision in the terms or Fees takes effect then you will be deemed to have accepted the revised terms or Fees.

Waiver

If we fail, at any time during the term of this agreement, to insist on strict performance of any of your obligations under these terms, or if we fail to exercise any of the rights or remedies to which we are entitled under these terms, this will not constitute a waiver of those rights or remedies and will not relieve you from compliance with such obligations.

A waiver by us of any default will not constitute a waiver of any subsequent default.

No waiver by us of any of these terms and conditions will be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

Severability

If any of these terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, that term will to that extent be severed from the remaining terms, which will continue to be valid to the fullest extent permitted by law.

Entire Agreement

This agreement and any document expressly referred to in it constitute the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us relating to the System.

Law and Jurisdiction

This agreement, its subject matter or its formation (including non-contractual disputes or claims) will be governed by and construed in accordance with Australian law, and you and we submit to the exclusive jurisdiction of the Australian courts.