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Theme Terms & Conditions

Paul B
  • Updated

1

Our Disclosures
  Our complete terms and conditions are contained below, but some important points for you to know before you access the Theme are as follows:
  • We will handle your personal information in accordance with our privacy policy, available here;
  • Our liability under these Terms is limited to us resupplying the Theme to you, and we will not be liable for Consequential Loss, any loss that is a result of a Third Party Service, or any loss or corruption of data.

2

Introduction
2.1 These terms and conditions (Terms) are entered into between SuccessCX Pty Ltd ABN 37 621 183 640 (we, us or our) and you, together the Parties and each a Party.
2.2 We provide access to a theme on the Zendesk Marketplace (zendesk.com/marketplace/themes) (Theme).
2.3

In these Terms, you means the person or entity using the Theme. If you are agreeing to these Terms not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or governmental official), then you means your entity and you are binding your entity to these Terms.

3

Acceptance and Theme Licence
3.1 You accept these Terms by purchasing the Theme from the Zendesk Marketplace.
3.2 You may purchase either a:
 
  1. Standard Licence, which provides you with a pre-built theme that you can enable directly in the Zendesk Help Center, but does not provide you with access to the source code of the Theme and only allows you to access preconfigured settings; or
  2. Developer Licence, which provides you with access to the source code of the Theme, in addition to the features of the Standard Licence.
3.3 Subject to your compliance with these Terms and payment of the relevant fees set out on the Zendesk Marketplace, we grant you a single, personal, non-exclusive, royalty-free, revocable, worldwide, non-sublicensable and non-transferable licence to download and use our Theme in accordance with these Terms.  All other uses are prohibited without our prior written consent.
3.4

When using the Theme, you must not do or attempt to do anything that is unlawful or inappropriate, including: 

  1. anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual’s consent) or any other legal rights;
  2. using the Theme to defame, harass, threaten, menace or offend any person, including using the Theme to send unsolicited electronic messages;
  3. if you have only purchased a Standard Licence, tampering with or modifying the Theme;
  4. using data mining, robots, screen scraping or similar data gathering and extraction tools on the Theme; or
  5. facilitating or assisting a third party to do any of the above acts.

4

SuccessCX Services
4.1 We agree to use our best endeavours to make the Theme available at all times. However, from time to time we may perform reasonable scheduled and emergency maintenance, and the Theme may be unavailable during the times we are performing such maintenance.
4.2 You acknowledge and agree that the Theme may be reliant on, or interface with third party systems that are not provided by us (for example, Zendesk,cloud storage providers, email clients, CRM systems, and internet providers) (Third Party Services). To the maximum extent permitted by law, we shall have no Liability for any Third Party Services, or any unavailability of the Theme due to a failure of the Third Party Services.
4.3 You acknowledge and agree that data loss is an unavoidable risk when using any software. To the extent you input any data into the Theme, you agree to maintain a backup copy of any data you input into the Theme.
4.4 To the maximum extent permitted by law, we shall have no Liability to you for any loss or corruption of data, or any scheduled or emergency maintenance that causes the Theme to be unavailable.
4.5 We do not offer a refund for a change of mind or change in circumstance.
4.6 If you experience issues with the Theme, you may contact us using the contact details set out below.

5

Our Intellectual Property
5.1 You acknowledge and agree that any Intellectual Property or content (including copyright and trademarks) subsisting in the Theme, and any algorithms or machine learning models used in the Theme (Our Intellectual Property) will at all times vest, or remain vested, in us.
5.2 We authorise you to use Our Intellectual Property solely for your limited commercial use. You must not exploit Our Intellectual Property for any other purpose, nor allow, aid or facilitate such use by any third party.
5.2

You must not, without our prior written consent:

  1. copy, in whole or in part, any of Our Intellectual Property; 
  2. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party (including by publishing the Theme source code on any code repositories such as GitHub, GitLab, or Bitbucket); or
  3. breach any intellectual property rights connected with the Theme, including (without limitation) altering or modifying any of Our Intellectual Property, causing any of Our Intellectual Property to be framed or embedded in another website, or creating derivative works from any of Our Intellectual Property.

6

Warranties
6.1

You represent, warrant and agree that:

  1. you will not use our Theme, including Our Intellectual Property, in any way that competes with our business;
  2. if you are agreeing to these Terms not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or governmental official), then you access and use the Theme on behalf of that entity; 
  3. there are no legal restrictions preventing you from entering into these Terms;  
  4. all information and documentation that you provide to us in connection with these Terms is true, correct and complete; and  
  5. you have not relied on any representations or warranties made by us in relation to the Theme (including as to whether the Theme is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms.

7

Liability
7.1
  1. Despite anything to the contrary, to the maximum extent permitted by law:  
  1. neither Party will be liable for Consequential Loss; 
  2. each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party or any of that Party’s personnel, including any failure by that Party to mitigate its losses; and
  3. our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Theme to you.

8

Access
8.1 Should we suspect that you are in breach of these Terms, we may suspend your access to the Theme while we investigate the suspected breach. Should we determine that you are in breach of these Terms, your access to the Theme will be terminated immediately. 

9

General
9.1 Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent.
9.2 Disputes:  A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
9.3 Entire Terms: These Terms contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
9.4 Force Majeure: To the maximum extent permitted by law, we shall have no Liability for any event or circumstance outside of our reasonable control.
9.5 Governing law: These Terms are governed by the laws of Victoria, Australia.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. 
9.6 Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided when you sign up to the Theme. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
9.7 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

10

Definitions
10.1 Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
10.2 Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or Confidential Information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
10.3 Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.

 

Document Version: 1.0.0

Last Updated: 6th January 2023

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