Hotfrog Website Terms of Use

between

Moboom Limited ("Moboom")
(trading as Hotfrog ("Hotfrog"))

and

the user of this website ("You" or "Your")


Welcome to Hotfrog. The Hotfrog Website Terms of Use set out below (Agreement) govern Your use of the Hotfrog Website located at www.hotfrog.com (Hotfrog Website) and form a binding agreement between Hotfrog and You in relation to Your use of Hotfrog Website.

Please read all of the Agreement carefully before using Hotfrog Website. If You have any questions, please Contact us prior to agreeing. By using Hotfrog Website, You acknowledge and agree that You have had an opportunity to read and understand the Agreement and agree to be bound by it.


  1. 1. Using Hotfrog – general requirements

    1. 1.1 Hotfrog will make Hotfrog Website available to You on the terms and conditions of this Agreement.
    2. 1.2 You may use Hotfrog Website in accordance with this Agreement, including the licence granted in clause 3.
    3. 1.3 Hotfrog takes the accuracy of its Database very seriously. If You see any material on Hotfrog which:
      1. (a) infringes any law, regulation, standard or relevant industry code;
      2. (b) breaches the requirements of this Agreement; or
      3. (c) is incorrect,
      4. please let us know as soon as possible by contacting us via Contact us.
    4. 1.4 Hotfrog Website contains content created by third parties (i.e. not by Hotfrog), other information obtained from public sources and links to other websites (such content and websites together, Third Party Content). Except as otherwise indicated, we do not endorse, sponsor or approve any business profiled on Hotfrog Website, any Third Party Content or the products or services offered by any business profiled on Hotfrog Website. For more information about how Hotfrog obtains information from public online sources, please see www.catchbot.com.
    5. 1.5 Automated access to Hotfrog Website by or on behalf of internet search engines is permitted.
    6. 1.6 Subject to clauses 1.5, You must not:
      1. (a) access Hotfrog Website other than through the normal Hotfrog web interface;
      2. (b) access Hotfrog Website through any automated means (including, without limitation, through the use of scripts or webcrawlers);
      3. (c) use Hotfrog Website if You have previously been barred from using it, any other "Hotfrog" branded website or any other website operated by Hotfrog;
      4. (d) infringe the intellectual property rights of others;
      5. (e) impersonate or falsely state or misrepresent an affiliation with any person or organisation;
      6. (f) use Hotfrog Website or any information contained on Hotfrog in connection with any surveys, contests, pyramid schemes, chain letters, junk email, spamming or any similar activity;
      7. (g) violate (or cause Hotfrog to violate) any applicable law, regulation, standard or relevant industry code;
      8. (h) sell, resell, reproduce, duplicate, trade or exploit for any commercial purpose any portion of, use of, access to or data on Hotfrog Website which does not form part of Your Business Profile; or
      9. (i) supply any service through Hotfrog Website, other than through off-line commercial activity generated by the Business Profile for Your own business (being activity which takes place off the internet or off the Hotfrog website).
    7. 1.7 You acknowledge and agree that Hotfrog retains complete editorial control over Hotfrog and that Hotfrog may, in its sole discretion and without notice to You:
      1. (a) reject, remove, delete or amend any material contained on Hotfrog Website or in the Database at any time, including (without limitation) any material contained in any Business Profile;
      2. (b) reject, refuse, remove, delete or amend any Content at any time;
      3. (c) position Content and/or any Business Profile as it sees fit; and
      4. (d) stipulate other conditions to ensure that the commercial nature of Content is clear.
    8. 1.8 Hotfrog reserves the right to modify, discontinue or disable Hotfrog Website or any part of Hotfrog Website (on a permanent or temporary basis) at any time.
    9. 1.9 Hotfrog may terminate this Agreement, remove Your Business Profile or any Content posted by You and/or refuse You access to Hotfrog Website if You have breached, or we consider that You will breach, this Agreement or for any other reason that Hotfrog, in its sole discretion, sees fit.
    10. 1.10 You acknowledge and agree that certain Business Profiles on Hotfrog Website have been paid for by a business and will therefore be displayed before free Business Profiles in the relevant search results.
  2. 2. Business Profiles and Reviews

    1. 2.1 You may use Hotfrog Website to add, amend and/or update a Business Profile or a Review, solely on the terms and conditions of this Agreement.
    2. 2.2 All Content must:
      1. (a) be complete and accurate;
      2. (b) be supplied in the manner and format specified on Hotfrog Website or as otherwise directed by Hotfrog;
      3. (c) not be of a nature likely to bring Hotfrog Website or Hotfrog into disrepute; and
      4. (d) comply with all laws, regulations, standards and relevant industry codes.
    3. 2.3 You must not:
      1. (a) use Hotfrog Website to post Content for a business that is not located in Australia;
      2. (b) use Hotfrog Website to add or amend a Business Profile where You do not have the express authorisation of that business to do so;
      3. (c) upload, post, transmit, publish or otherwise make available any Accessible Content that You do not have a right to make available under any law, regulation, rule or code or under contractual or other legal relationships;
      4. (d) upload, post, transmit, publish or otherwise make available any false, misleading, inappropriate, profane, defamatory, abusive, threatening, obscene, indecent or unlawful Content or Accessible Content;
      5. (e) infringe the intellectual property rights of others; or
      6. (f) breach a law including, without limitation, any law that restricts advertising of a profession.
    4. 2.4 If any of the information in the Business Profile for Your business changes, becomes out of date, or no longer complies with this Agreement, You must:
      1. (a) immediately amend Your Business Profile so that it complies with this Agreement; and/or
      2. (b) immediately notify Hotfrog.
    5. 2.5 You acknowledge and agree that by posting Content onto Hotfrog Website You consent to being contacted (on an ongoing basis) via any of the contact details contained in that Content, including (without limitation) where such contact involves receiving information about products or services which we think may interest You from Hotfrog or any Hotfrog authorised third party.
    6. 2.6 You must provide Hotfrog with a copy of the authorisation described in clause 2.3(b) on request.
  3. For further information on Hotfrog’s Reviews, Ratings and Comments, please visit Hotfrog's Reviews and Comments Guidelines and Frequently Asked Questions.
  4. 3. Intellectual Property Rights

    1. 3.1 Hotfrog Website and the Database are owned and operated by Hotfrog. You acknowledge and agree that all intellectual property rights comprised in or relating to Hotfrog Website and the Database belong to Hotfrog or our licensors, and that nothing in this Agreement constitutes a transfer of any intellectual property rights.
    2. 3.2 You may download and view content and/or print a copy of material on Hotfrog Website for Your own use only, provided You do not:
      1. (a) modify the content (including, without limitation, any copyright notice) in any way;
      2. (b) make the content public; or
      3. (c) use the content in a manner or for a purpose prohibited by this Agreement.
    3. 3.3 You must not do anything which breaches or otherwise interferes with Hotfrog's intellectual property rights. Except as expressly permitted by this Agreement or by law, You may not reproduce any content appearing on Hotfrog Website without our written permission and, if required, payment of a specified fee. Requests to reproduce any content may be made via the Contact Hotfrog webpage.
    4. 3.4 We may publish and communicate to the public any Content. By posting Content onto Hotfrog Website, You grant us a perpetual, royalty-free, non-exclusive, irrevocable, worldwide and transferable licence to:
      1. (a) reproduce, modify, add to, use, copy, publish, communicate and adapt the Content for any purpose and in any manner anywhere in the world, including (without limitation) on Hotfrog Website and as part of the Database; and
      2. (b) permit any other person to do any of the things referred to in paragraph (a), (Licence).
    5. 3.5 You must waive, and must ensure that all other persons waive, absolutely and irrevocably all moral rights in relation to any Content. For the purposes of this clause 3.5, a moral right may be waived by consenting to any act or omission which would otherwise constitute an infringement of that moral right.
    6. 3.6 For the avoidance of doubt, You acknowledge and agree that:
      1. (a) the Licence includes a right for us to:
        1. (i) make the Content available to other companies, organisations or individuals with whom we have a relationship for the provision of services and to use such Content in the provision of those services;
        2. (ii) make the Content available to the public via any website or as part of any services or products in any jurisdiction;
      2. (b) we will allow Hotfrog Website users to search Content You have posted; and
      3. (c) You will do everything necessary (including without limitation, on request, execution of any documents) to give Hotfrog the full benefit of the licences, waivers and consents set out in this clause 3.
    7. 3.7 The Licence will survive any termination of this Agreement.
    8. 3.8 Your use of some Third Party Content (including, without limitation, third party websites linked to Hotfrog Website) may be subject to a third party's terms and conditions of use. Nothing in this Agreement (or otherwise on Hotfrog Website) constitutes a licence or right for You to use such content.
  5. 4. Privacy

    1. 4.1 Any personal information collected by Hotfrog will be dealt with in accordance with the Hotfrog Privacy Policy.
    2. 4.2 You consent (and must procure that any relevant third party consents) to the use of any personal information collected in relation to You (including, without limitation, any personal information contained in Content) in accordance with the Hotfrog Privacy Policy. If You include any personal information about any person in any Content, You must:
      1. (a) provide that person with a copy of the Hotfrog Privacy Policy prior to providing us with that personal information; and
      2. (b) where possible, have that person provide us with that personal information directly.
  6. 5. Warranties

    1. 5.1 You represent and warrant to Hotfrog that:
      1. (a) You are fully authorised to publish and to authorise Hotfrog to publish all Content (including, without limitation, having full authorisation from any business whose Business Profile You add, amend or update);
      2. (b) You are least 18 years of age and have the legal capacity to enter this Agreement;
      3. (c) publication of Accessible Content in accordance with this Agreement will not, at any time, infringe any intellectual property right, moral right or any right of confidence or other right of any person;
      4. (d) You have the ability to grant the Licence;
      5. (e) all Accessible Content will, at all times, comply with all applicable laws, regulations and relevant industry codes;
      6. (f) all products and services advertised in Accessible Content will match the advertised description, and be available in the manner, at the price and for the time period advertised;
      7. (g) the Accessible Content does not, and will not at any time, infringe any intellectual property right, moral right or any right of confidence or other right of any person;
      8. (h) You have obtained the consent of all individuals whose personal information is included in the Content to:
        1. (i) the collection of that personal information by Hotfrog; and
        2. (ii) the use and disclosure of that personal information in accordance with the Hotfrog Privacy Policy;
      9. (i) all Accessible Content will be current and accurate, and will not mislead or deceive end users of Hotfrog Website; and
      10. (j) each website represented by any URL shown or embedded in the Business Profile for Your business:
        1. (i) is controlled and operated by Your business or its independent contractor;
        2. (ii) will be functional and accessible at all times; and
        3. (iii) is suitable in all respects, including (without limitation) subject matter, to be linked to Hotfrog Website.
  7. 6. Liability

    1. 6.1 To the full extent permitted by law and subject to clause 6.4, Hotfrog excludes all representations, warranties, terms and conditions, whether express or implied (and including, without limitation, those implied by statute, custom, law or otherwise), except as expressly set out in this Agreement.
    2. 6.2 Hotfrog Website is provided "as is", and You acknowledge and agree that Hotfrog has no control over Third Party Content and that Your use of Hotfrog Website (including, without limitation, all material obtained from or linked to Hotfrog Website) is at Your sole risk. Nothing on Hotfrog Website constitutes the giving of financial or other advice. You should obtain qualified professional advice before acting on the basis of any information on Hotfrog Website.
    3. 6.3 To the full extent permitted by law, Hotfrog excludes all liability to You for any damages or loss (including without limitation, loss of profits, indirect or consequential loss) however caused (including, without limitation, damage or loss arising in contract, tort (including, without limitation, negligence), statute or otherwise) suffered by You in connection with:
      1. (a) Your use of, or reliance on, Hotfrog Website (or any information contained on or linked to Hotfrog Website);
      2. (b) any dealing You have with any business displayed on Hotfrog Website.
    4. 6.4 Certain legislation may imply warranties or conditions or impose obligations which cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read subject to those statutory provisions. If those statutory provisions apply, notwithstanding any other provision in this Agreement, to the extent to which Hotfrog is entitled to do so, Hotfrog limits its liability in respect of any claim under those provisions to:
      1. (a) the supply of the services again; or
      2. (b) the payment of the cost of having the services supplied again.
    5. 6.5 You hereby indemnify and hold harmless Hotfrog and its officers, employees and agents from and against any liability, loss, damage, costs and expense (including, without limitation, legal expenses on a full indemnity basis) and penalties incurred or suffered by any of them arising out of:
      1. (a) Your breach of this Agreement, including (without limitation) a warranty in clause 5;
      2. (b) any act of fraud or wilful misconduct by or on behalf of You; and
      3. (c) the publication or use of, or any act or omission in relation to, the Accessible Content including, without limitation, claims brought by any third party relating to defamation, negligent misstatement, injurious falsehood, contempt of court, rights of publicity and/or privacy, copyright infringement, trade mark infringement, other intellectual property infringement, passing off, misleading or deceptive conduct and any failure to comply with or fulfil any representations, warranties or agreements.
  8. 7. General

    1. 7.1 We may provide You with notices by email, mail or by posting content on Hotfrog Website.
    2. 7.2 You should carefully read and agree to this Agreement each time You use Hotfrog Website. Whilst Hotfrog hopes not to have to alter this Agreement, it is possible that changes will be required from time to time. By using Hotfrog Website (including, without limitation, by posting any Content) You agree that the then current version of this Agreement will apply to that use.
    3. 7.3 Hotfrog may assign this Agreement provided that the relevant assignee undertakes to perform all of Hotfrog's obligations herein. Subject to the foregoing, neither party may assign this Agreement in whole or in part.
    4. 7.4 The indemnities in this Agreement are:
      1. (a) continuing obligations of the parties, separate and independent from their other obligations and survive termination of this Agreement; and
      2. (b) absolute and unconditional and unaffected by anything that might have the effect or prejudicing, releasing, discharging or affecting in any other way the liability of the party giving the indemnity.
    5. 7.5 This Agreement is governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales and waive, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.
  9. 8. Unenforceable Provisions

    If any provision of this Agreement or the Website Terms is invalid or unenforceable in a jurisdiction, the provision should be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability. It will not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions. It will not affect the validity or enforceability of that provision in another jusrisdiction or the remaining provisions.

  10. 9. Definitions

    1. In this Agreement:
    2. Moboom means Moboom Limited (ABN 46 136 737 767) of 124 Aberdeen Street, Northbridge WA 6003.
    3. Content means all content posted by You onto Hotfrog including, without limitation, all text, graphics, icons, photographs, URLs and Reviews.
    4. Accessible Content means all Content and all similar content on sites to which URLs contained in Your Content are linked.
    5. Business Profile means a business profile in the Database. A Business Profile may contain information about the profiled business, for example, contact details.
    6. Database means the national database of Business Profiles which is collected by Hotfrog and made accessible to the public via the online business directory on Hotfrog Website.
    7. Review means a review or other comment which You add to Hotfrog Website in relation to any Business Profile or associated products and services.


WEBSITE CUSTOMER AGREEMENT

Effective starting: September 15, 2014

This Moboom Customer Agreement (the “Agreement”) is between you and Moboom Ltd. (Trading as Hotfrog) (“Hotfrog”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. Hotfrog may modify this Agreement from time to time, subject to the terms in Section 25 (Changes to this Agreement) below.

By clicking on the “Place Order” (or similar button) that is presented to you at the time of your Order, or by using or accessing Hotfrog products, you indicate your assent to be bound by this Agreement.

1 Scope of the Agreement.

This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. This Agreement includes our Privacy Policy, our Acceptable Use Policy, any Orders, and any other referenced policies and attachments. This Agreement does not apply to Extensions from other vendors on the Moboom Marketplace, which are covered under the Moboom Market Terms of Use.

2 Hotfrog Products.

This Agreement governs Hotfrog’s hosted or cloud-based solutions (“Hosted Services”), and any related support or maintenance services provided by Hotfrog. The platform allows for seamless access to a wide variety of extensions through the Moboom Market (“Market Products”). Market Products and Hosted Services, together with related Documentation, are referred to as “Products”. The Products and their permitted use are further described in Moboom’s standard documentation (“Documentation”).

3 Account Registration.

You may need to register for a Hotfrog account in order to place orders or access or receive any Products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.

4 Orders.

Hotfrog’s Product ordering documentation or purchase flow (“Order”) will specify your authorized scope of use for the Products, which may include: (a) number and type of Authorized Users (as defined below), (b) storage or capacity (for Hosted Services), (c) numbers of licenses, copies or instances (for Software), or (d) other restrictions or billable units (as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use.

5 Authorized Users.

Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorized Users”) may access and use the Products. Some Products may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. Authorized Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may also permit your customers to have limited access to certain Products as Authorized Users, subject to the terms of our Customer Use Addendum. You may increase the number of your Authorized Users permitted to access a Product by placing a new Order or, in some cases, directly through the Product. In all cases, you must pay the applicable fee for the increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliated Entities. “Affiliated Entity” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.

6 Hosted Services Terms.

6.1 Access to Hosted Services.

Subject to the terms and conditions of this Agreement, Hotfrog grants you a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined below) in accordance with this Agreement, your applicable Scope of Use and the Documentation. If Hotfrog offers client software (e.g., a desktop or mobile application) for any Hosted Service, you may use such software solely with the Hosted Service, subject to the terms and conditions of this Agreement. You acknowledge that our Hosted Services are on-line, subscription-based products and that we may make changes to the Hosted Services from time to time.

6.2 Subscription Terms and Renewals.

Hosted Services are provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription by sending an email to [email protected] If you cancel, your subscription will terminate at the end of the then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

6.3 Credentials.

You must ensure that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Hotfrog of any unauthorized use of which you become aware.

6.4 Your Data.

“Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to Hotfrog. Subject to the terms of this Agreement, you hereby grant to Hotfrog a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and (b) for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service. Hotfrog may also access your account in order to respond to your support requests.

6.5 Security.

Hotfrog implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Hosted Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.

6.7 Responsibility for Your Data.

6.7.1 General.

You must ensure that your use of Hosted Services and all Your Data is at all times compliant with our Acceptable Use Policy and all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to Hotfrog and to grant the rights granted to Hotfrog in this Agreement and (ii) Your Data and its transfer to and use by Hotfrog as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 7.5 (Security), Hotfrog assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.

6.7.2 Sensitive Data.

You will not submit to the Hosted Services (or use the Hosted Services to collect): (i) any personally identifiable information, except as necessary for the establishment of your Hotfrog account; (ii) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; or (iii) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) ((i) through (iii), collectively, “Sensitive Data”). You also acknowledge that Moboom is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Hosted Services are not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, Moboom has no liability under this Agreement for Sensitive Data.

6.7.3 Indemnity for Your Data.

You will defend, indemnify and hold harmless Hotfrog from and against any loss, cost, liability or damage, including any legal fees, for which Hotfrog becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Hotfrog at your expense.

6.8 Removals and Suspension.

Hotfrog has no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement or in response to takedown requests that we receive following our guidelines for Reporting Copyright and Trademark Violations, we may (1) remove Your Data from the Hosted Services or (2) suspend your access to the Hosted Services. We will generally alert you when we take such action and give you a reasonable opportunity to fix your breach, but if we determine that your actions endanger the operation of the Hosted Service or other users, we may suspend your access immediately without notice. You will continue to be charged for the Hosted Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Hosted Services as described in this section.

6.9 Deletion at End of Subscription Term.

We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.

7 Support and Maintenance.

Hotfrog will provide the support and maintenance services for the Products described in the Moboom Support Policy (“Support and Maintenance”) during the period for which you have paid the applicable fee. Support and Maintenance is subject to the terms of the Moboom Support Policy and will be provided at the support level and during the support term specified in your Order. The Moboom Support Policy may be modified by Hotfrog from time to time to reflect process improvements or changing practices.

8 TAM and Training Services.

We will provide Technical Account Manager (TAM) and training services purchased in an Order in accordance with the descriptions and conditions for those services set forth in the Order and the accompanying service descriptions or datasheets (“Ancillary Services”). Hotfrog shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide (“Training Materials”). Any Training Materials provided to you may be used only in connection with the Products subject to the same use restrictions for the Products. If applicable, you will reimburse Hotfrog for reasonable travel and lodging expenses as incurred. TAM services are subject to the terms of the Moboom Professional Services Agreement.

9 Affiliate Status.

Hotfrog users are automatically registered as an Affiliate. They are issues an Affiliate ID they can distribute to potential users in their professional and social networks. If a potential user references this Affiliate ID during the registration process, the Affiliate is eligible for a referral fee equal to 10% of all purchases made by the referred account in the Moboom Market.

9.1 Calculating Fees and Crediting Account.

Hotfrog will calculate all purchases on the last day of the month and credit the corresponding Affiliate’s Market Rewards account with the appropriate points by the 15th of the following month.

9.2 Redemption of Credits.

Hotfrog credits can be used to purchase any Moboom Product in the Moboom Market.

10 Returns and Financial Terms.

10.1 Return Policy.

Due to our pay-on-publish approach that allows a customer to use a Market Product for as long as they like until they publish their site or the containing page, we do not allow any returns or refunds.

10.2 Delivery.

We will deliver the Product to your Site Collection when we have received payment of the applicable fees. All deliveries under this Agreement will be electronic.

10.3 Payment.

You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars at the time you place your Order. Other than as expressly set forth in Section 9.1 (Calculating Fees and Crediting Account) and Section 19 (IP Indemnification by Hotfrog), all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable.

10.4 Taxes.

Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Hotfrog, you must pay to Hotfrog the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Hotfrog any such exemption information, and Hotfrog will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

11 Restrictions.

Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.

12 Your Development of Extensions.

12.1 License to Developer Guides.

From time to time, may publish software development kit (SDK’s) or application programming interface (API’s) and associated guidelines (“Developer Guides”) to allow you to develop plugins, extensions, add-ons or other software products or services that interoperate or are integrated with the Platform (“Products”). You may distribute your Extensions to third parties, but only for those Products permitted by Hotfrog, and only in accordance with the Developer Guides.

12.2 Conditions to Development of Extensions.

Notwithstanding anything in this Agreement to the contrary, Hotfrog has no support, warranty, indemnification or other obligation or liability with respect to your Extensions or their combination, interaction or use with the Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Extensions (including but not limited to any representations or warranties you make about your Extensions) or your breach of this Section.

13 License Certifications and Audits.

At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Products. We will provide you with at least 10 days' advance written notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Hotfrog at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors.

14 Ownership and Feedback.

Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Hotfrog and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Hotfrog, including without limitation as they may incorporate Feedback. From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Hotfrog, including sharing Your Modifications or in the course of receiving Support and Maintenance (“Feedback”). Hotfrog may, in connection with any of its products or services, freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Hotfrog's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

15 Confidentiality.

Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any Moboom Technology and any performance information relating to the Products shall be deemed Confidential Information of Hotfrog without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.

16 Term and Termination.

This Agreement is in effect for as long as you have a valid License Term or Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not fix the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Hotfrog, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Hosted Services subscriptions, or Support and Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Hotfrog Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 6.7.3 (Indemnity for Your Data), 10.3 (Payment), 10.4 (Taxes), 11 (Restrictions), 12.2 (Conditions to Development of Extenstions), 13 (License Certifications and Audits), 14 (Ownership and Feedback), 15 (Confidentiality), 16 (Term and Termination), 17.2 (Warranty Disclaimer), 18 (Limitation of Liability), 20 (Third Party Vendor Products), 23 (Dispute Resolution), 24 (Export Restrictions), and 26 (General Provisions).

17 Warranty and Disclaimer.

17.1 Due Authority.

Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.

17.2 Warranty Disclaimer

ALL PRODUCTS ARE PROVIDED “AS IS,” AND HOTFROG AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. HOTFROG SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF HOTFROG. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER HOTFROG NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

18 Limitation of Liability.

NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US$20. THIS SECTION 18 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 11 (RESTRICTIONS) OR SECTION 2 (COMBINING THE PRODUCTS WITH OPEN SOURCE SOFTWARE) OF THIRD PARTY CODE IN MOBOOM PRODUCTS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTIOB 18 (LIMITATION OF LIABILITY) WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

19 IP Indemnification by Hotfrog.

We will defend you against any claim brought against you by a third party alleging that a Product, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Hotfrog (including reasonable attorneys’ fees) arising out of a Claim, provided that we have received from you: (a) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If your use of a Product is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure a license for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund, in the case of Software, the license fee paid by you as reduced to reflect a three year straight-line depreciation from the license purchase date, and in the case of a Hosted Service, any prepaid amounts for the terminated portion of the Subscription Term. Hotfrog’s indemnification obligations above do not apply: (1) if the total aggregate fees received by Hotfrog with respect to your license to Software or subscription to Hosted Services in the 12 month period immediately preceding the claim is less than US$50,000; (2) if the Product is modified by any party other than Hotfrog, but solely to the extent the alleged infringement is caused by such modification; (3) if the Product is used in combination with any non-Hotfrog product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result of (y) Your Data (or circumstances covered by your indemnification obligations in Section 6.7.3 (Indemnity for Your Data)) or (z) any third-party deliverables or components contained with the Products; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a claim without Hotfrog’s prior written consent. THIS SECTION 19 (IP INDEMNIFICATION BY HOTFROG) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY HOTFROG UNDER THIS AGREEMENT.

20 Third Party Vendor Products.

Hotfrog or third parties may from time to time make available to you (e.g., through the Moboom Market) third-party products or services, including but not limited to add-ons and plugins as well as implementation, customization, training, and other consulting services. If you procure any of these third party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third party vendor. Hotfrog does not warrant or support non-Hotfrog products or services, whether or not they are designated by Hotfrog as “verified” or otherwise, and disclaims all liability for such products or services. If you install or enable any third party products or services for use with Hotfrog products, you acknowledge that Hotfrog may allow the vendors of those products and services to access Your Data as required for the interoperation and support of such add-ons with the Hotfrog products. Hotfrog shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third party add-on vendors.

21 Publicity Rights.

We may identify you as a Hotfrog customer in our promotional materials. You may request that we stop doing so by submitting an email to [email protected] at any time. Please note that it may take us up to 30 days to process your request.

22 Improving Our Products.

We are always striving to improve our Products. In order to do so, we need to measure, analyze, and aggregate how users interact with our Products, such as usage patterns and characteristics of our user base. We collect and use analytics data regarding the use of our Products as described in our Privacy Policy.

23 Dispute Resolution.

In the event of any controversy or claim arising out of or relating to this Agreement, Hotfrog and You hereto shall consult and negotiate with each other and, recognising their mutual interests, attempt to reach a solution satisfactory to both parties.

If Hotfrog and You do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. Hotfrog and You shall seek to mutually appoint an arbitrator. If Hotfrog and You cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party and a third selected by the first two. Arbitration will take place in Australia. All negotiation and arbitration proceedings pursuant to this clause will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence or applicable legislation and jursdictions. The language of the arbitration shall be English.

24 Governing Law.

This Agreement will be governed by and construed in accordance with the applicable laws of Western Australia, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 23 (Dispute Resolution) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State of Western Australia and the Federal laws of Australia, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Western Australia, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Hotfrog may bring a claim for equitable relief in any court with proper jurisdiction.

25 Injunctive Relief.

Enforcement. Notwithstanding the provisions of Section 23 (Dispute Resolution), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

26 Exclusion of UN Convention and UCITA.

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.

27 Export Restrictions.

The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (ii) that none of Your Data is controlled under the US International Traffic in Arms Regulations. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.

28 Changes to this Agreement.

We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, through your Hotfrog account, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.

29 General Provisions.

Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to Moboom Ltd., 124 Aberdeen Street, Northbridge WA 6003, Australia, Attn: General Counsel. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. The Products are commercial computer software. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited. This Agreement is the entire agreement between you and Hotfrog relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.




Hotfrog AdVantage Terms and Conditions

between

Moboom Limited ABN 46 136 737 767 (Trading as Hotfrog)


and

the user of Hotfrog AdVantage ("You" or "Your")


The terms set out below (the Hotfrog AdVantage Terms), the Hotfrog terms of use and the Hotfrog privacy policy (collectively the Hotfrog AdVantage Agreement) govern Your purchase and use of a Hotfrog AdVantage ad and Hotfrog AdVantage profile page (Hotfrog AdVantage) and form a binding agreement between Hotfrog and You in relation to Hotfrog AdVantage on the Hotfrog website located at www.hotfrog.com.

For the purposes of the Hotfrog AdVantage Agreement, references to:

  • the "Agreement" in the Hotfrog Website Terms of Use and Hotfrog Privacy Policy are references to the "Hotfrog AdVantage Agreement"; and
  • Content in the Hotfrog Website Terms of Use and Privacy Policy include, without limitation, all text, graphics, icons, photographs, URLs and any other content provided to Hotfrog for the purposes of obtaining or maintaining Hotfrog AdVantage

Any terms not defined in these Hotfrog AdVantage Terms have the meaning given them in the Hotfrog Website Terms of Use. Please read all of these terms carefully before using Hotfrog AdVantage. If You have any questions, please contact Hotfrog prior to agreeing. By using Hotfrog AdVantage You acknowledge and agree that You have had an opportunity to read and understand the Hotfrog AdVantage Terms and agree to be bound by them.

1.General

1.1 Hotfrog AdVantage entitles You to :
(a) a Hotfrog AdVantage ad, the appearance of which is conditional upon a user’s search, intent or location
1. (b) a Hotfrog AdVantage profile page with no other advertising or profiles;
2. (c) daily reports accessed via the Hotfrog dashboard.

1.2 You are entitled to change any aspect of Your Hotfrog AdVantage ad or your Hotfrog AdVantage profile page at any time. Such changes may only be made by Your business’s authorised login administrator.

2. Your obligations

2. 2.1 You must not in respect of Your Hotfrog AdVantage:

  • (a) submit Content that contains data that may be regarded by Hotfrog as inappropriate, inaccurate, defamatory or otherwise offensive.
  • (b) infringe any law, regulation, standard or relevant industry code;
  • (c) infringe the copyright, trademark or proprietary right of another party;
  • (d) be involved in any fraudulent activity;
  • (e) sell or promote any:
  • (i) illegal business activities; or
  • (ii) products prohibited in the country in which Hotfrog is registered.

3. 2.2 You must:

  • (a) ensure that the business which is the subject of Your Hotfrog AdVantage operates in the country in which Hotfrog.com.au is registered;
  • (b) own the Content or have the right to use and publish that Content;
  • (c) have the right to represent the individual, entity, product or service mentioned in Your Hotfrog AdVantage.

4. 2.3 To the full extent permitted by law, Hotfrog does not provide any guarantees as to the performance or success of Your business as a result of purchasing Hotfrog AdVantage.

5. 2.4 You acknowledge that You are responsible for submitting input, optimising and maintaining the content of Your Hotfrog AdVantage.

3. Termination and modifications

6. 3.1 Hotfrog reserves the right to modify, discontinue or disable Your Hotfrog AdVantage or any part of Your Hotfrog AdVantage (on a permanent or temporary basis) at any time.

7. 3.2 Hotfrog may terminate the Hotfrog AdVantage Agreement, remove Your Hotfrog AdVantage and/or refuse You access to Your Hotfrog AdVantage if You have breached, or we consider that You intent to breach, the Hotfrog AdVantage Agreement or for any other reason that Hotfrog , in its sole discretion, sees fit.

4. Payment Terms

8. 4.1 You will be charged the amount stated on the Hotfrog AdVantage section of the relevant Hotfrog website (Hotfrog AdVantage Fee). The Hotfrog AdVantage Fee may be subject to change from time to time. By applying for Hotfrog AdVantage and accepting the Hotfrog AdVantage Terms, You authorise Hotfrog to charge the then current Hotfrog AdVantage Fee in any particular month.

9. 4.2 The Hotfrog AdVantage Fee will be payable monthly in advance and will be automatically deducted from Your nominated credit or debit card on each monthly anniversary of the date that You purchase Hotfrog AdVantage, until such time as Your Hotfrog AdVantage is cancelled or otherwise terminated.

10. 4.3 Payment of the Hotfrog AdVantage Fee can be made by way of Visa or Mastercard credit or debit cards only.

11. 4.4 By entering Your credit or debit cards details into Hotfrog, You authorise Hotfrog to :

  • (a) automatically debit Your nominated credit or debit card for the settlement of the Hotfrog AdVantage Fee each month; and
  • (b) debit Your nominated credit or debit card with any fees charged by financial institutions or credit or debit card issuers for processing Your transaction.

12. 4.5 Payment must be made in Australian dollars.

13. 4.6 If Hotfrog is not able to process a Hotfrog AdVantage Fee in any calendar month for any reason, You authorise Hotfrog to process such payment or, where relevant payments, at any time in the two calendar months after which the relevant payment is due.

14. 4.7 If Hotfrog is unable to debit for any reason the AdVantage Fee from your nominated credit or debit card for two consecutive months Your Hotfrog AdVantage will be removed and downgraded to a free Business Profile.

15. 4.8 You warrant that :

  • (a) Your nominated credit or debit card is current and valid;
  • (b) You are an authorised user of the nominated credit or debit card;
  • (c) Your nominated credit or debit card contains sufficient credit to make payment of the Hotfrog AdVantage Fee each month;
  • (d) All information entered into Hotfrog is true and correct.

16. 4.9 If any of the warranties in clause 4.8 proves to be incorrect, Your Hotfrog AdVantage Fee may not be debited from Your nominated credit or debit card but You will remain liable to pay that Hotfrog AdVantage Fee.

17. 4.10 You may cancel Your Hotfrog AdVantage at any time through the cancellation process on the Hotfrog Website (Cancellation) following which Hotfrog will immediately downgrade Your Hotfrog AdVantage to a free profile. Hotfrog will not refund any part of the Hotfrog AdVantage Fee already paid by You in respect of the month during which You process Your Cancellation. You remain liable in respect of any Hotfrog AdVantage fee incurred prior to cancellation or downgrade of Your Hotfrog AdVantage.

18. 4.11 If Your Hotfrog AdVantage is removed pursuant to clause 4.7, You will no longer be entitled to the Hotfrog AdVantage entitlements referred to at clause 1 of these Hotfrog AdVantage Terms and You will need to purchase a new Hotfrog AdVantage at the then current price.

19. 4.12 You acknowledge and agree that the debit of the Hotfrog AdVantage Fee from Your credit or debit card does not in any way guarantee the performance or success of Your Hotfrog AdVantage (which shall always be subject to the terms of the Hotfrog AdVantage Terms).

20. 4.13 Hotfrog may choose not to process a transaction if it has reasonable grounds for doing so. If this occurs, You will be notified so that an alternative payment mechanism can be arranged.

5.Processing payments

21. 5.1 The payment process commences once You have entered Your credit or debit card details into Hotfrog. Once You have entered Your details, payments can not be reversed, voided or stopped by You.

22. 5.2 Hotfrog may require additional information from You before processing Your payment.

6. Privacy

23. 6.1 Any personal information entered into Hotfrog:

  • (a) will be dealt with in accordance with the Hotfrog Privacy Policy; and
  • (b) may be collected and stored by Hotfrog’s service provider, on behalf of Hotfrog.

7. Liability

24. 7.1 To the full extent permitted by law, and to the extent that liability has not been excluded under the Hotfrog AdVantage Terms, Hotfrog’s maximum liability to You for any loss or damage which You suffer, directly or indirectly as a result of purchasing Hotfrog AdVantage, will be an amount equivalent to the Hotfrog AdVantage Fee paid by You.

8. Dispute Resolution

8.1 In the event of any controversy or claim arising out of or relating to this Agreement, Hotfrog and You hereto shall consult and negotiate with each other and, recognising their mutual interests, attempt to reach a solution satisfactory to both parties.

If Hotfrog and You do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. Hotfrog and You shall seek to mutually appoint an arbitrator. If Hotfrog and You cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party and a third selected by the first two. Arbitration will take place in Australia. All negotiation and arbitration proceedings pursuant to this clause will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence or applicable legislation and jursdictions. The language of the arbitration shall be English.


Hotfrog directory content policy

Hotfrog is a global business directory, with websites and users in 32 countries around the world. We have always worked to maintain, by Google's definition, a "family friendly sit. As a result we take the quality of our data very seriously.

Our Content guidelines are built in strict compliance with local publishing laws for each of our regional websites, as well as with close reference to Google's Prohbited Content policies (https://support.google.com/adsense/answer/1348688?hl=en).

Hotfrog does not support the publishing of content that includes but is not limited to:

  • Adult services
  • Pornography
  • Online Liquor sales
  • Tobacco and tobacco replacement products and equipment
  • Online advertising and sale of Prescription medication
  • Defamatory content
  • Online Gambling (except in regions where it is legal to advertise)
  • Drugs and narcotics
  • Guns and prohibited weapons
  • Illegal activities (including piracy, academic plagarism, infringements to Intellectual Property)
  • Racist content

We reserve the right to remove any piece of content that we believe falls into these categories.

To enforce our data policies we have an in-house data moderation system that consists of both automated keyword detection and human review. This backend process is constantly running and filters through all newly added content.

Due to the large volume of data we need to process on a daily basis, there could be a delay between the time a piece of unwanted content is detected and when it is removed. The turnover is currently 2-4 days but we are working to reduce this.

We also have strict rules against publishing content that falls into spam or "bad-neighbourhood" categories, such as untested supplements, get-rich-quick schemes, steroids or sexual enhancement products


Privacy Policy

The Privacy Policy relates to our collection, management and use of personal information you may supply to us through your conduct on the website. By using this website, you agree to the terms of this Privacy Policy and consent to the collection, use and disclosure of your personal information as set out in this Privacy Policy. This Privacy Policy is in addition to the Terms and Conditions of use applicable to the website. If you do not agree to this Privacy Policy, please do not use this website.

We reserve the right, at our discretion, to modify or remove portions of this Privacy Policy at any time. We will publish any material changes on this website. This Privacy Policy should be reviewed periodically so that you are updated on any material changes. We welcome your comments and feedback. By continuing to use our website after the updated Privacy Policy becomes effective, you will be deemed to have agreed to the amended Privacy Policy.

We recognise the importance of protecting the information collected about visitors to our website, in particular, personal information. Personal information is any information which identifies you and may include, for example, your name, birth date, residential and email address, telephone number, credit card details and driver's licence number.

Hotfrog is bound by and committed to supporting the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs). For detailed information, visit http://www.oaic.gov.au/.

Personal Information

1. When you visit our website you are not required to provide us with personal information and from time to time you may be able to visit our website or deal with us anonymously or by pseudonym. Personal information about visitors to our website is collected only when knowingly and voluntarily submitted by you. However, we may need to collect certain information to provide you with services or to answer or forward any requests or enquiries. If you do not provide us with certain information, we may not be able to provide you with access to our services or respond to your request or enquiries.

Use of Information

2. Personal information that visitors submit and the cookie applied via our website is used as detailed below: (see below – “What is a cookie” Section 17)

(a) Sponsored Question:

When you respond in the affirmative (yes) to a particular sponsored question we will be supplying your contact details and cookie to that sponsor only, this sponsor may use this information to contact you or display relevant offers on their or 3rd party websites for the duration of the cookie

(b) Generic Question:

When you respond to a generic question (no sponsor mentioned) we may make available your cookie data to 3rd party advertisers who may use this data to display relevant offers on their or 3rd party websites. They will not be passed any contact details from your profile

3. We may also use your personal information to create aggregate data about our website visitors, such as statistics relating to age, gender and demographics. This personal information is only used for our statistical purposes.

Collecting information on registered members

4. As part of registering with us, we collect personal information about you in order for you to take full advantage of our services and may require you to provide additional personal information when requested by sponsors and advertisers

5. This contact information is made available to our sponsors and advertisers, each you have agreed to be contacted by responding to the appropriate question

6. Registration is completely optional. Registration may include providing us with your name, email address, residential address, telephone number, as well as opting in to receive updates, promotional material and other information. You may access this information at any time by logging into your account.

7. We may also use your personal information for the purposes of marketing our services and to send you details about promotional opportunities if you elected to receive such materials when you registered with our website. If you no longer wish to receive promotional material from us, you can opt-out by contacting us at the details on the bottom of this page or, alternatively, select the "unsubscribe" link if the promotional material is sent by email. We will then remove you from our promotions database as soon as reasonably practicable.

Disclosure

9. From time to time, your personal information may be disclosed in the following circumstances:

(a) if disclosure is required or authorised by law; and

(b) where we have reason to believe that doing so is necessary to identify, contact or bring legal action against anyone damaging, injuring, or interfering (intentionally or unintentionally) with our rights or property, users, or anyone else who could be harmed by such activities.

10. Under circumstances we might disclose your personal information, we will take all reasonable steps to ensure that your personal information is treated by the receiving party in a secure manner and in accordance with our Privacy Policy.

11. By providing us with your personal information, you consent to the disclosure of your personal information for the purposes identified above.

12. We will not give, sell, trade or rent any personal information to third parties for marketing purposes without your consent.

Security

13. We take reasonable steps to ensure that all epersonal information submitted to our website are protected from misuse, interference or loss and unauthorized access, modification and disclosure and ensure its security on our systems.

14. We review and update our security measures in light of current technologies. Unfortunately, no data transmission over the Internet can be guaranteed to be totally secure. Accordingly, we do not warrant the security of any personal information you transmit to us.

15. In addition, our employees and the contractors who provide services related to our information systems are obliged to respect the confidentiality of any personal information held by us.

16. Personal information is destroyed or de-identified when we are no longer required to retain the information.

Data and Cookies Policy

17. What is a cookie?
A “cookie” is a small text file that is placed on your hard disk by a Web server. Cookies contain information that can later be read by a Web server in the domain that issued the cookie to you as well as 3rd party domains. Cookies cannot be used to run programs or deliver viruses to your computer.

18. How we use cookies
OfferCloud uses cookies to enable you to sign in to our services and to help personalise your online experience. One of the primary purposes of cookies is to store your preferences and other information on your computer in order to save you time by eliminating the need to repeatedly enter the same information and to display your personalised content.

19. Cookies and Your Profile
When you return to our website your core details are stored in an encrypted cookie on your hard disk. This cookie allows you to move from page to page at the site without having to sign in again on each page. Cookies are also used to improve the sign in experience. For example, your e-mail address and other contact details may be stored in a cookie that will remain on your computer after you sign out. This cookie allows your contact details to be pre-populated, so that you will only need to type your password the next time you sign in. If you are using a public computer or do not otherwise want this information to be stored, you can select the appropriate radio button on the sign-in page, and this cookie will not be used.

20. Unsubscribe from cookie tracking:

(a) If you were to view your tracking cookies available on your browser you can identify the cookies placed by Hotfrog these are identified as “site = inimbus.com.au” and you can opt out from further tracking by Hotfrog by clicking this link

21. Declining all cookies

You have the ability to accept or decline cookies. Most web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. If you choose to decline cookies, you may not be able to sign in or use other interactive features and services that depend on cookies, and some advertising preferences that are dependent on cookies may not be able to be respected. If you choose to accept cookies, you also have the ability to later delete cookies that you have accepted. If you chose to delete cookies, any settings and preferences, including advertising preferences, controlled by those cookies will be deleted and may need to be recreated.

(a) Cookies information for sponsors have a lifetime of 30-60 days from time you have last visited our website

(b) IP Addresses: Our web servers gather your IP address to assist with the management of our website and the diagnosis of problems or support issues with our services. Again, information is gathered in aggregate and anonymously only and cannot be traced to an individual user.

Cross-border Data Flows

22. We use cloud based technology that may store contact details of registered users within technology based overseas. These servers and technology are commonly located in United States of America (USA). All data is stored securely as described in the security clause (Section 13 and 14) and can only be accessed by authorized users within the company.

23. Privacy laws in other countries might not be the same as in Australia. However, where we do provide your personal information to third parties overseas Hotfrog will take reasonable steps to ensure that your information is handled and stored in accordance with our privacy laws and this Privacy Policy.

24. Important Notice: In the event that the processing and/or storage of your personal information and documents involve the disclosure of any information outside Australia, you acknowledge that, by providing us with your personal information and documents, you consent to this overseas disclosure. By consenting to this disclosure, you acknowledge that:

(a) Hotfrog will not be accountable under the Privacy Act 1988, for any breach of your privacy by the overseas recipient, and

(b) you will not be able to seek redress under the Privacy Act 1988 against Hotfrog for any breach of your privacy by an overseas recipient.

Access to and correction of your Personal Information

25. We will take such steps as are reasonable in the circumstances to keep the information we hold about you accurate, complete and up-to-date. If, at any time, you wish to access the personal information we hold about you or you discover that information held about you is no longer up-to-date or is incorrect, you may contact our Privacy Officer at the details at the bottom of this page to have the information changed or corrected.

26. You can request access to, or the correction of, your personal information by contacting our Privacy Officer at the details at the bottom of this page, and informing us of your access or correction request.

27. Your access or correction request will be dealt with in a reasonable time.

Links to Other Sites

28. We provide links to various third party websites. These linked sites are not under our control, and we not responsible or liable for any of the content, actions or policies of third party websites linked to our website. Before disclosing your personal information on any other third party website, we advise you to examine the terms and conditions of using that website and its Privacy Policy.

29. The inclusion of links to third party websites on our website in no way constitutes an endorsement of such website's content, actions or policies. These linked sites are for your convenience and you access them at your own discretion and risk.

Questions or complaints

30. If we become aware of any ongoing concerns or problems with our website, we will take these issues seriously and work to address these concerns. If you have any further queries relating to our Privacy Policy, or you have a privacy-related complaint, please contact us, using the details at the bottom of this page.

31. We will address any concerns or complaints you have through our complaints handling process and will inform you of the outcome of your complaint within a reasonable time frame.

32. However, if after receiving our response you consider that your privacy complaint has not yet been resolved you may refer your concerns to the Office of the Australian Information Commissioner at www.oaic.gov.au.

33. For more information about privacy issues in Australia and protecting your privacy, visit the Office of the Australian Information Commissioner's web site: http://www.oaic.gov.au.