LANA Terms of Service

Terms of Service Agreement for Mink Send Pty Ltd

Introduction

Thank you for choosing LANA.

LANA is a Lead Automation Nurture Application (https://lana.software) owned and operated by Mink Send Pty Ltd (referred to as “LANA” or “the Website”). All references to LANA or the Website throughout this Agreement include all of its related applications, dashboards or platforms.

This Terms of Service Agreement (“Terms”, “Terms of Service” or “Agreement”), together with any Subscription Documentation, constitute a legally binding agreement between you (the Client) and Mink Send Pty Ltd ACN 641 681 496 (“LANA”, “we” or “us”) for the provision of Marketing Automation services, Lead Nurture and Online Advertising services and/or other services provided through the Website and as set out in your Subscription Documentation (the “Services”).

By using or accessing the Services or by clicking “I Agree”, you agree to all Terms outlined herein.  If you are using the Services on behalf of a company or other entity, you are binding that entity to this Agreement in addition to being personally bound by this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if you are accepting these Terms on behalf of an entity, this Agreement is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement.

Please carefully read all terms and conditions in this Agreement before using or accessing LANA.  You must comply with these Terms at all times and not engage in any conduct that in the reasonable opinion of LANA obstructs the provision of the Services.  You have the right to negotiate any change to these Terms prior to acceptance. 

  1. Our Services

Services: Subject to your performance of your duties and obligations under this Agreement, including but not limited to timely payment of all Fees, we shall provide you with the Service(s) as specifically outlined in your Subscription Documentation and/or provide any additional services which have been agreed to in writing between us and you. In this Agreement, “Subscription Documentation” means any and all documentation setting out the specific terms of your subscription, including the specific services to be provided to you as part of your subscription and the Fees. 

No Guarantee: Although we work hard to provide quality Services, you understand and acknowledge that we cannot promise or guarantee specific results from using the Services.

Temporary Interruptions: You understand and agree that temporary interruptions of the Website may occur. You also understand and agree that we have no control over the third-party networks or service(s) that we may use to provide you with Services. You agree that the Services available on the Website are provided “as is” and that we assume no responsibility for temporary interruptions to the Services or the timeliness, deletion, mis-delivery, interruption, or failure to store any user communications or personalization settings.

 

Right to Modify the Services: We reserve the right to modify the Services or implement new elements as part of the Services including changes that may affect the previous mode of operation of the Services.

No Contingency on Future Releases and Improvements: You understand that your purchase of the Services is not contingent on the delivery by us of any future release of any functionality or feature, including without limited to, the continuation of a certain service beyond its current subscription term or third party services or dependent on any public comments we make, regarding any future functionality or feature.     

  1. Fees

Set-Up Fee: In consideration for the Service(s) to be provided to you by us, you shall pay to us, upon execution of this Agreement, a non-refundable set-up fee in the amount set forth in the applicable Subscription Documentation (“Set-Up Fee”).

Subscription Fee: In addition to the Set-Up Fee, you agree to pay to us the Subscription Fee (as outlined in the Subscription Documentation and as amended from time to time in accordance with these Terms) for your ongoing use and access to the Services.  You will be charged the Subscription Fee at the applicable then-current prices as published by us either monthly or annually (as nominated by you and outlined in the Subscription Documentation).  You acknowledge and agree that we (or our third-party payment processor) will store your payment information and automatically charge you on your subscription renewal date, until you cancel or we terminate your access to or use of the Services in accordance with this Agreement. By entering into this Agreement and electing to purchase our Services, you acknowledge that your subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your subscription.

SMS and Call recording: If you have opted to receive this service each SMS sent by us to you after your monthly allowance (as specified in your Subscription Documentation) will be charged at 8 cents per SMS exclusive of GST.  You acknowledge and agree that we (or our third party payment processor) will store your payment information and automatically charge you for this service on a monthly basis, until you cancel or we terminate your access to or use of the Services in accordance with this Agreement.

Fees: In this Agreement, Fees means all fees payable for the Services or any additional services, including the Set-Up Fee, the Subscription Fee, any fees payable for excess SMS and Call recording, and any other fee that we are entitled to charge pursuant to these Terms.

Failed Payments: Where we attempt to debit Fees owed by you to us on the Debit Date and the payment has been rejected due to insufficient funds (or some other reason), we will contact you to arrange another date to debit the account. Where the second attempt to debit the account fails, we reserves the right to charge a Failed Payment Fee and issue you an invoice for payment.

 

Invoices: In the event that we are unable to process any payment due by you, we may issue you with an invoice.  Payment of any invoice issued to you by us is due and payable immediately upon receipt.   Interest will be charged at the rate of 2% above the cash rate for any invoice that is not paid within 30 days of issue.

Suspension of Services: Where 2 or more attempts have been made to debit the account but payment fails, we may suspend your access to all services until the relevant payment(s) have been made.

 

Enforcement: You agree to pay any and all costs associated with recovery of any Fees owed by you pursuant to this Agreement, including but not limited to: debt collection, outsourcing and legal costs on an indemnity basis.  If an account remains outstanding for more than 90 days, you authorise us to provide your particulars and the particulars of the unpaid debt to any credit reporting agency to have the default in payment listed.

 

Fee increases: We reserve the right to change the prices for any Services at any time. Any price change will take effect at the next subscription renewal date and we will notify you at least 14 days in advance.  If you do not accept the fee increase, you must cancel your subscription prior to the next subscription renewal date.

GST: Unless otherwise stated, all amounts and prices are exclusive of GST. Where the service provided is subject to GST, it will be charged to you.

Currency: All references to currency and dollars in this Agreement shall mean Australian (AUD) dollars and all payments made pursuant to this Agreement shall be made in Australian dollars.

  1. Automatic renewal of your subscription and cancellation

Month to Month Subscriptions: Your subscription will be automatically renewed on a month to month basis from the commencement date of this Agreement unless cancelled by you in accordance with this clause.  You may provide us with written notice to cancel your subscription at any time by emailing [email protected] Your subscription will be cancelled 14 days from the date that we receive written notice of termination (“Termination Date”). No further fees will be payable after the Termination Date. Any fees paid to us during the term of this Agreement will be non-refundable, even if your subscription is cancelled by you prior to the end of the final month of your subscription.

Annual Subscriptions: Your subscription will be automatically renewed on an annual basis from the commencement date of this Agreement unless cancelled by you in accordance with this clause.  You may provide us with written notice to cancel your subscription at any time by emailing [email protected] Your subscription will be cancelled 14 days from the date that we receive written notice of termination (“Termination Date”). No further fees will be payable after the Termination Date. Any fees paid to us during the term of this Agreement will be non-refundable, even if your subscription is cancelled by you prior to the end of the current subscription period.

Termination by us: We may terminate or suspend your access to the Services at any time for any or no reason.  If we terminate or suspend this Agreement due to your breach of any of these Terms including but not limited to if we are unable to debit your nominated bank account for payment of Fees owing to us, you are not entitled to any refund for any amount paid by you during the term of this Agreement, even if your access to our Services is terminated prior to the end of your subscription period.   

  1. Use of our Services

Your obligations:

You acknowledge and agree that when using our Services:

  • You must act reasonably and take reasonable care to protect your own interests, including managing all safety risks associated with the operation of the Website and our Services;
  • Your use of the Website and our Services is subject to all applicable laws and regulations;
  • You are solely responsible for any comments or posts you leave on the Website;
  • By posting information on the Website, or by otherwise using any communications service, message board, newsgroup, or other interactive service available on the Website, you agree that all information is true, accurate and not misleading and that you will not post comments, messages, links, code or other information that:
    • is unlawful, threatening, abusive, harassing, defamatory, deceptive, fraudulent, tortious, invasive of another’s privacy, or includes graphic descriptions of sexual or violent content;
    • victimizes, harasses, degrades, or intimidates an individual or group of individuals including but not limited to on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
    • infringes any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any third party;
    • consists of unsolicited advertising, junk or bulk email (also known as “spam”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
    • contains any form of malicious code, files, or programs that are designed or intended to disrupt, damage, or limit the functionality of any software, hardware, or telecommunications equipment or otherwise causes damage, or allows you to obtain unauthorised access to any data or other information of any third party;
    • breaches the security of, compromises or otherwise allows access to secured, protected or inaccessible areas of the Website, or attempts to gain access to other network or server via your account on the Website;
    • impersonates any person or entity, including any of our employees or representatives.
  • At our sole discretion, we may choose to unpublish or otherwise make not available for public viewing, any material we deem unnecessary or inappropriate for use of our Website.

User customisation: The LANA platform within our Website may be modified by users, incorporating the users’ name, logo, trademark, and color scheme into user’s individual access area within our Website, and/or by otherwise applying a user-built code on top of the LANA platform. You are solely responsible for copyright, trademark or other intellectual property concerns connected with your customized look and feel of our Website. You acknowledge that you may not be able to customize the LANA platform according to your unique branding to the extent that your customization would appear to be independently developed.

No Endorsement: We neither endorse nor assume any liability for any material uploaded or submitted by users on any part of the Website. We and our agents reserve the right to remove any and all postings that we feel do not comply with these Terms and any other rules of user conduct for our Website, or are otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such postings.  We may publish content featuring testimonials of our users, and any views or opinions expressed in such posts are personal and do not constitute or imply any approval, sponsorship or endorsement by us.

Third Parties: The Website may redirect or link to other websites on the Internet, or may otherwise include references to information, products or services made available by unaffiliated third parties. We may also work with third party providers in supplying the Services.  While we make every effort to work with trusted, reputable providers, from time to time such third party sites may contain information, material or policies that some may find inappropriate or personally objectionable. You understand that we are not responsible for the accuracy, completeness, decency or legality of content hosted by third party websites, nor are we responsible for errors or omissions in any references made on those websites. The inclusion of such a link or reference is provided merely as a convenience and does not imply our endorsement of, or association with another website or third party, or any warranty of any kind, either express or implied.

As part of your subscription, LANA will create a Twilio Phone number on your behalf.  The terms and conditions governing the use of this phone service are available (https://www.twilio.com/legal/tos) and are considered accepted upon accepting the these Terms.

Promotions: From time to time, the Website may include advertisements offered by third parties. You may enter into correspondence with or participate in promotions of the advertisers showing their products on this website. Any such correspondence or promotions, including the delivery of and the payment for goods and services by those third parties, and any other terms, conditions, warranties or representations associated therewith, are solely between you and the advertiser. We assume no liability, obligation or responsibility for any part of any such correspondence or promotion.

Use of your name, logo and marks: Unless otherwise specified in the applicable Subscription Documentation, you consent to LANA using your name, logo and marks to identify you as a LANA Client on LANA’s website and other marketing materials.

Electronic Communication: When you register to use our Services, you must designate a primary email address that will be used for receiving electronic communication. To the extent that LANA maintains an online message center now or in the future, such exchange of communications shall be considered an electronic communication and may be utilised by LANA for providing you notices pursuant to these Terms, as required by Applicable Law (as permitted) or generally regarding your Account(s) with LANA. We will NEVER send you emails requesting confidential information such as Account numbers, usernames, or passwords and you should NEVER respond to any email requesting such information. If you receive such an email purportedly from LANA, do not respond to the email and notify LANA by emailing us at [email protected].

  1. Privacy & Security

Login Required: In order to access some of the Services on our Website, you may be asked to set up an account and password. Our account registration page requests certain personal information from you (“Registration Information”). You will have the ability to maintain and periodically update your Registration Information as you see fit. By registering, you agree that all information provided by you as Registration Information is true and accurate and that you will maintain and update this information as required in order to keep it current, complete and accurate.

Passwords & Security: If you register for an account on the Website, you agree that you are responsible for maintaining the security and confidentiality of your password, and that you are fully responsible for all activities or charges that are incurred under your account. Therefore, you must take reasonable steps to ensure that others do not gain access to your password and account. We will never ask you for your password.

Disclosure to Third Party Affiliates:. The information we obtain through your use of the Website and our Services, including your Registration Information, is subject to our Privacy Policy, which is specifically incorporated by reference into these Terms. As outlined in and subject to our Privacy Policy (https://lana.software/privacy-policy), you hereby grant us the right to disclose information about you to third parties.

Non-Transferability of User Account: User Accounts are non-transferable, and all users are obligated to take preventative measures to prohibit unauthorised users from accessing the Website with his or her password.  

  1. Warranties, Limitation of Liability and Indemnity

No representations or warranties

To the fullest extent permitted by law, we hereby expressly excludes all warranties and other terms which might otherwise be implied by statute, common law or the law of equity and must not be liable for any damages whatsoever, including but without limitation to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, damage to goodwill or reputation, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use, performance or failures of the Services, the Website or the Linked Sites and any materials posted on those sites, irrespective of whether such damages were foreseeable or arise in contract, tort, equity, restitution, by statute, at common law or otherwise.

Without limitation, we make no representation or warranty with respect to our Services and/or Website (a) in relation to merchantability, fitness for a particular purpose or non-infringement of intellectual property rights; (b) that our Services or Website will meet your requirements; (c) that our Services or Website will be uninterrupted, timely, secure or error-free; (d) you will obtain any results, increased revenue or increased profitability from the use of our Services or the Website; or (e) the quality of our Services or your use of the Website or any other website affiliated with us will meet your expectations, be free from mistakes, errors or defects.

We reserve the right to either modify or discontinue our Website, including any Services or features therein, at any time without notice to you.  We shall not be liable to you or any third party should we exercise such right. 

Through your use of the Services and Website, you may have opportunities to engage in commercial transactions with other users and vendors. You acknowledge and agree that all transactions relating to any products or services provided by any third party, including, but not limited to the purchase terms, payment terms, warranties, guarantees relating to such transactions, are solely between the seller of such merchandise and you.  We make no representation or warranty regarding any transaction between you and a third party that may arise in connection with our Services or the Website. 

Our Website may contain links to other websites (Linked Sites), which are not operated by us. We have no control over the Linked Sites and accepts no responsibility for them or for any loss or damage that may arise from your use of them. Your use of the Linked Sites will be subject to any terms of use contained within each such site.

Maximum extent of any liability

Your exclusive remedy and our entire liability, if any, for any claims arising out of these Terms and your use of the Services or Website (notwithstanding any clause to the contrary) shall be limited to, at our absolute discretion:

  • Re-supply of the Services; or
  • The amount you paid us for Services purchased during the 1 month period before the act giving rise to the liability.

Indemnity

You assume the sole responsibility for your use of the Services and the Website and hereby indemnify (and keep indemnified) us, our officers, employees, agents, and contractors from and against all liability, losses, actions, claims (including third party claims), demands, proceedings, awards, settlements, compensation, damages, costs and expenses, directly or indirectly arising from, or relating to:

(a) Your use of, or reliance on, any part of the Services or the Website, including but not limited to any damage to your computer system or loss of data that results from such activities; or

(b) any other person’s use of, or reliance on, any part of the Services or the Website which were provided to that person directly or indirectly by you;

(c) Your breach of these Terms or failure to perform any of your obligations under this Agreement; or

(d) Any wilful, unlawful or negligent act or omission of you in association with this Agreement.

  1. Intellectual property

The intellectual property rights in all software and content (including photographic images) made available to you on the Website and through the provision of Services remain the property of us or our licensors and are protected by copyright laws and treaties around the world.  All such rights are reserved by us and our licensors. You may store, print and display the content supplied solely for your own personal use. You are not permitted to publish, manipulate, distribute or otherwise reproduce, in any format, any of the content or copies of the content supplied to you or which appears on this Website.

So long as you comply with the terms and conditions of this Agreement, we grant to you a limited, non-exclusive, non-transferable license to download and install LANA on a mobile device, computer or tablet that you own or control and to run LANA solely for purposes of accessing and using the Services during the period of your Subscription.

Except where expressly stated to the contrary all persons (including their names and images), third party trade marks and content, services and/or locations featured on the Website are in no way associated, linked or affiliated with us and you should not rely on the existence of such a connection or affiliation. Any trade marks/names featured on this Website are owned by the respective trade mark owners. Where a trade mark or brand name is referred to it is used solely to describe or identify the products and services and is in no way an assertion that such products or services are endorsed by or connected to us.

  1. Customer Support

LANA Silver members can access LANA Support through an email ticketing System. LANA will respond to emails between the hours of 9am to 5pm Monday to Friday.

LANA Gold members will be provided with a telephone number for customer support. LANA will provide support between the hours of 9am to 5pm Monday to Friday.

  1. General

 (a)  Notices

        All notices required or permitted to be given under our Terms must be in writing to Mink Media Pty LTD Attn: Legal Department, or by email to [email protected] LANA may send notices to the e-mail address(es) on the Client’s account or, at LANA’s option, to Client’s last-known postal address. LANA may also provide operational notices regarding the Service or other business-related notices through conspicuous posting of such notice on LANA’s website or the Service. Each party hereby consents to receipt of electronic notices.

(b)   No waiver

No right under our Terms will be waived except as expressly agreed in writing and signed by us. We will not waive a right if we grant an extension or forbearance to you.

A waiver by us of any matter does not prejudice our rights in respect of any subsequent or other matter. Any non-exercise or partial exercise of, or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.

These Terms may only be amended in writing signed by each of us.

  • Entire agreement

These Terms supersede all previous agreements between us and embody the entire agreement between us.  Any previous correspondence, negotiations or representations between us do not bind either us or you and neither we nor you can rely on them.

  • Severance

If (but for this clause) a provision of these Terms would be illegal, void, unenforceable or contravene any law, these Terms are to be varied so as to give effect to the intention of the Terms or severed without affecting the enforceability of the other provisions and failing that, the offending provision is to be interpreted as if the provision was omitted.

  • Delegation

        We may delegate or assign the performance of any obligation in our absolute discretion.

  • No assignment

You may not assign the benefits or obligations under any agreement with us to any other person or entity without our consent, which may be withheld in our absolute discretion.

  • Force Majeure

Each of us will be released from our respective obligations under these Terms (except as to payment and indemnity) in the event of national emergency, war, prohibitive governmental regulations or where any other cause beyond the reasonable control of either you or us renders provision of the Services the subject of this Agreement impossible.

  • Disputes and mediation

Expect in relation to non-payment of Fees, prior to the commencement of court proceedings, any dispute, controversy or claim arising out of, relating to or in connection with this Agreement or the Services, including any question regarding its existence, validity or termination, shall be resolved by mediation in accordance with the Australian Disputes Centre Guidelines.  The mediation shall take place in Sydney, Australia and be administered by the Australian Disputes Centre.

  • Independent legal advice

        You acknowledge that you have had adequate opportunity to obtain independent legal advice as to the meaning and effect of our Terms before they were accepted.

  • Governing law and jurisdiction

These Terms are governed by the law of New South Wales, Australia.  We each irrevocably submit to the jurisdiction of the courts of New South Wales, Australia and all courts called to hear appeals from the courts of New South Wales in respect of the Terms or its subject matter.

  • Amendments: We may update or modify these Terms from time to time by posting a revised version on the Website or Service or by notification via the email associated with your account. You may also be required to click through the updated Terms to show acceptance. In any event, subject to the terms of your specific Subscription Documentation, the modified terms will become effective upon posting or notification and continued use of the Service or Website, following the update, shall constitute acceptance of the updated Agreement.

Last Updated: 16 August 2021