These Terms of Use are intended to explain our obligations as a service provider and Your obligations as a customer.  Please read them carefully.

 

These Terms are binding on any use of the Service and apply to You from the time that Lungela provides You with access to the Service.

The Lungela Service will evolve over time based on user feedback. These Terms are not intended to answer every question or address every issue raised by the use of the Lungela Service. Lungela reserves the right to change these terms at any time in accordance with clause 8 and Lungela will make every effort to communicate these changes to You via email or notification via the Website. It is likely the terms of use will change over time. It is Your obligation to ensure that You have read, understood and agreed to the most recent terms available on the Website.

By registering to use the Service you acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service.

These Terms were last updated 31 July 2020.

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1. DEFINITIONS

“Agreement”
means these Terms of Use.
 “Access Fee”
means the any fee in Australian Dollars (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the Website (which Lungela may change from time to time in accordance with clause 8).
“Claim”
includes any claim, cause of action, investigation or enquiry or other legal action and all costs and expense incurred in connection with it.
“Confidential Information”
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
 “Data”
means any data inputted by You or with Your authority into the Website.
 “Intellectual Property Right”
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Service”
means the sales and training system made available (as may be changed or updated from time to time by Lungela in accordance with clause 8) via the Website.

“Website”
means the Internet site at the domain www.lungela.com.au or any other site operated by Lungela.
“Lungela”
means Lungela Pty Limited ACN 641 649 158 which a privately held company incorporated in Australia and any related entities.
 “Invited User”
means any person or entity, other than the Subscriber, that uses the Service with the authorization of the Subscriber from time to time.
 “Subscriber”
means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
 “You”
means the Subscriber, and where the context permits, an Invited User. “Your” has a corresponding meaning.

2. USE OF SOFTWARE

Lungela grants You the right to access and use the Service with the particular user roles available to You according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:

1. the Subscriber determines who is an Invited User and what level of user role access to the relevant organization and Service that Invited User has;
2. the Subscriber is responsible for all Invited Users’ use of the Service and must ensure that they comply with these Terms;
3. the Subscriber controls each Invited User’s level of access to the relevant organization and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
4. if there is any dispute between a Subscriber and an Invited User regarding access to any organization or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any.

3. YOUR OBLIGATIONS

1. Payment obligations:
For subscription, an invoice for the Access Fee will be issued each year starting one year from the date You added Your first organization to Your Lungela account. All invoices will include the Access Fee for the next year of use. Lungela will continue invoicing You yearly until this Agreement is terminated in accordance with clause 8 or 9.
All Lungela invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 14 days of the invoice date. You are responsible for payment of all taxes and duties in addition to the Access Fee.

For one off payments, Lungela will issue an invoice indicating payment and services as purchased.

2. General obligations:
You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Lungela or condition posted on the Website. You may use the Service or Website on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorized to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.

3. Access conditions:
a. You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Lungela of any unauthorized use of Your passwords or any other breach of security and Lungela will reset Your password and You must take all other actions that Lungela reasonably deems necessary to maintain or enhance the security of Lungela’s computing systems and networks and Your access to the Services.
b. As a condition of these Terms, when accessing and using the Services, You must:
i. not attempt to undermine the security or integrity of Lungela’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
ii. not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
iii. not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
iv. not transmit, or input into the Website, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
v. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website, except as is strictly necessary to use either of them for normal operation.

4. Usage Limitations:
Use of the Service may be subject to limitations, including but not limited to access and editable rights, number of sites, work areas, wardens, user or subscriber groups. Any such limitations will be specified within the Service.

5. Communication Conditions:
As a condition of these Terms, if You use any communication tools available through the Service or Website (such as any forum, chat room or message center), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Services or Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
When You make any communication on the Website, or in the Service, You represent that You are permitted to make such communication. Lungela is under no obligation to ensure that the communications on the Website, or in the Service are legitimate or that they are related only to the use of the Services. As with any other web-based system, You must exercise caution when using the communication tools available on the Website or in the Service. However, Lungela does reserve the right to remove any communication at any time in its sole discretion.

6. Indemnity.
You indemnify Lungela and its directors, officers, employees and agents against any Claim for damages, loss, injury or death resulting, directly or indirectly, from any use of, or reliance on, the Service or Website, except to the extent that it is caused by Lungela’s negligence.

4. CONFIDENTIALITY AND PRIVACY

1. Confidentiality:
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
a. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
b. Each party’s obligations under this clause will survive termination of these Terms.
c. The provisions of clauses 4.1.a and 4.1.b shall not apply to any information which:
i. is or becomes public knowledge other than by a breach of this clause;
ii. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
iii. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
iv. is independently developed without access to the Confidential Information.
2. Privacy:
Lungela maintains a privacy policy that sets out the parties’ obligations in respect of personal information. You should read that policy at www.Lungela.com/privacy-policy/ and You will be taken to have accepted that policy when You accept these Terms.

5. INTELLECTUAL PROPERTY

1. General:
Title to, and all Intellectual Property Rights in the Services, the Website, and any documentation relating to the Services remain the property of Lungela (or its licensors).
2. Ownership of Data:
Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Lungela Access Fee when due. You grant Lungela a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
3. Backup of Data:
You must maintain copies of all Data inputted into the Service. Lungela adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Lungela expressly excludes liability for any loss of Data no matter how caused.
4. Third-party applications and your Data.
If You enable third-party applications for use in conjunction with the Services, You acknowledge that Lungela may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. Lungela shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.

6. WARRANTIES AND ACKNOWLEDGEMENTS

1. Authority:
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
2. Acknowledgement:
You acknowledge that:
a. You are authorized to use the Services or Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorized to use the Service. You are also authorized to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).
b. Lungela has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
i. You are responsible for ensuring that You have the right to do so;
ii. You are responsible for authorizing any person who is given access to information or Data, and you agree that Lungela has no obligation to provide any person access to such information or Data without Your authorization and may refer any requests for information to You to address; and
iii. You will indemnify Lungela against any Claim for loss or damage relating to:
i. Lungela’s refusal to provide any person access to Your information or Data in accordance with these Terms,
ii. Lungela’s making available information or Data to any person with Your authorisation.
c. The provision of, access to, and use of, the Services is on an “as is ” basis and at Your own risk.
d. Lungela does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. From time to time Lungela may also suspend the Service for system maintenance (see clause 10(2)). Lungela is not in any way responsible for any such interference or prevention of Your access or use of the Services.
e. The Service is not intended to resolve any emergency situation but is simply a tool to assist in handling or dealing with that emergency. Lungela is not responsible for any loss occasioned to You arising out of or relating to the emergency situation or the outcome of any emergency situation.
f. We do not warrant the accuracy of the information locally and that it will always be available for use without interruption. This application is not intended to replace any emergency services. If there is an emergency, you should call 000 immediately.
g. It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
3. No warranties:
To the maximum extent permitted by law, Lungela gives no warranty about the Services.

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7. LIMITATION OF LIABILITY

1. To the maximum extent permitted by law, Lungela excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, in respect of any Claim for loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
2. If You suffer loss or damage as a result of Lungela’s negligence or failure to comply with these Terms, any Claim by You against Lungela arising from Lungela’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months. For the avoidance of doubt, Lungela is not liable for consequential loss.
3. If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.

8. VARIATION OF TERMS

Lungela may vary these Terms by providing You with at least 30 days’ notice setting out the proposed variation of the Terms (“Proposed Variation”). If You do not agree to the Proposed Variation You may terminate the Terms by providing Lungela with 14 days’ written notice of termination before the commencement date of the Proposed Variation. Lungela will provide a refund for any remaining prepaid period for a prepaid Access Fee Subscription.

9. TERMINATION

1. Prepaid Subscriptions
Subject to clause 8, Lungela will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.
2. No-fault termination:
These Terms will continue for the period covered by the Access Fee paid or payable under clause 3.1. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.

3. Breach:
If You:
a. breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
b. breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.3 or any payment of Access Fees that are more than 30 days overdue); or
c. You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
Lungela may take any or all of the following actions, at its sole discretion:
a. Terminate this Agreement and Your use of the Services or Website;
b. Suspend for any definite or indefinite period of time, Your use of the Services or Website;
c. Suspend or terminate access to all or any Data.
d. Take either of the actions in sub-clauses (d), (e) and (f) of this clause 8(4) in respect of any or all other persons whom You have authorized to have access to Your information or Data.
For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to any of Your Billing Contacts, Billing Plans or any of Your Organizations (see clause 3) is not made in full by the relevant due date, Lungela may: suspend or terminate Your use of the Service, the authority for all or any of Your Organizations to use the Service, or Your rights of access to all or any Data.
2. Accrued Rights:
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
a. remain liable for any accrued charges and amounts which become due for payment before or after termination; and
b. immediately cease to use the Services or Website.
3. Expiry or termination:
Clauses 3.1, 3.6, 4, 5, 6, 7, 9 and 11 survive the expiry or termination of these Terms.

10. HELP DESK

1. Technical Problems:
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Lungela. If You still need technical help, please check the support provided online by Lungela on the Website or failing that email us at info@Lungela.com.au
2. Service availability:
Whilst Lungela intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place.
If for any reason Lungela has to interrupt the Services for longer periods than Lungela would normally expect, Lungela will use reasonable endeavors to publish in advance details of such activity on the Website.

11. GENERAL

1. Entire agreement:
These Terms, together with the Lungela Privacy Policy and the terms of any other notices or instructions given to You under these Terms and Conditions, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Lungela relating to the Services and the other matters dealt with in these Terms.
2. Waiver:
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
3. Delays:
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
4. No Assignment:
You may not assign or transfer any rights to any other person without Lungela’s prior written consent.
5. Governing law and jurisdiction:
This Agreement is governed by the laws of New South Wales, Australia, and You hereby submit to the exclusive jurisdiction of the courts of New South Wales, Australia for all disputes arising out of or in connection with this Agreement.
6. Severability:
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
7. Notices:
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Lungela must be sent to info@Lungela.com.au or to any other email address notified by email to You by Lungela. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
8. Rights of Third Parties:
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.