Terms of Service

CMAX Terms of Service

1. Introduction

  • These Terms of Service (“Terms”) govern your subscription to and use of the CMAXplatform and associated services. CMAX is provided by Area Ten Pty Ltd. References to”CMAX”, “we”, or “us” mean Area Ten Pty Ltd andits related entities. References to “you” or”Client” mean the customer identified in the Signed Proposal. By accessing or using CMAX’sservices, you accept and agree to these Terms. If you are entering into these Terms onbehalf of a legal entity, you represent that you have the authority to bind such entity tothese Terms. These Terms are superseded by any specific terms outlined in the SignedProposal.

2. Service Description

  • CMAX is a software system that generates dynamic content across web pages. The common implementation method is embedding JavaScript on your site with a unique Div ID to enable content generation. Other implementation methods may be used if mutually agreed in writing.
  • CMAX supplies implementation materials, including JavaScript and a unique Div ID, and provides reasonable implementation guidance. You are responsible for installation and for keeping the implementation operational on your website properties during the subscription term unless otherwise agreed in writing.
  • CMAX is not responsible for installing the implementation, keeping it installed or active, or monitoring whether it remains installed or active. Removal, deactivation, blocking, or alteration by you or your agents, or changes in your website or third party systems, may degrade performance. CMAX is not liable for reduced performance or outcomes arising from those actions or changes.
  • For clarity, “CMAX code” means the JavaScript and related scripts supplied by CMAX for embedding on your web pages, and “Div ID” means the unique identifier assigned by CMAX to enable dynamic content generation. See Clause 9 for the payment basis that applies to delivery of functional code and the license to use it.

3. Scope of License

  • CMAX grants you a non exclusive, non transferable license to use the software solely for your internal business purposes. The license allows for the use of CMAX services as described, with no right to sublicense or distribute the software.
  • Subject to these Terms and the Signed Proposal, CMAX grants you a limited, revocable, non exclusive, non transferable license during the subscription term to install and use the CMAX code and Div ID on the website domains listed in the Signed Proposal for your internal business purposes.
  • You must not copy, modify, adapt, translate, create derivative works from, reverse engineer, decompile, or disassemble the CMAX code except to the extent such restriction is prohibited by law. You must not remove or alter any proprietary notices. You must not provide access to, sublicense, resell, or make the CMAX code available to any third party other than your service providers solely to support your internal use, and you remain responsible for their compliance with these Terms.

4. Intellectual Property Rights

  • This Agreement does not affect the ownership of any intellectual property rights existing prior to the date of this Agreement (“Background IPRs”), or those created thereafter. Area Ten Pty Ltd (“AT”), trading as CMAX, retains and is the sole owner of all rights, title, and interest in the Content generated by the CMAX system and all intellectual property rights associated with the services provided.
  • Subject to the Client not being in breach of any provision of this contract, for the duration of the contract, AT provides a non transferable, non sublicensable license to use the CMAX system and the Content it generates for CMAX pages only. The Client cannot copy, modify, or use the Content on any platforms or mediums other than its CMAX pages, unless permitted by AT.
  • Upon termination or expiration of this contract, any further use, reproduction, or distribution of the Content generated by CMAX shall require express written permission from AT.
  • The Client acknowledges and agrees that AT may collect feedback and data from various sources, for example Google Analytics and Google Search Console, derive or compile additional insights from its collected data, and use such information for any internal purpose, including but not limited to product development and quality control.
  • The Client hereby grants AT a non exclusive, royalty free license to use the Client’s name and logo, as well as trend data associated with the results from the program being run by AT, in its marketing materials, including but not limited to website, social media, and print materials.

5. Data Ownership and Security

  • You retain all rights to your data. CMAX will not access, use, or disclose your data except as necessary to provide the services or as required by law. CMAX implements industry standard security measures to protect your data. However, you acknowledge that no security measures are completely secure.

6. Limitation of Liability

  • CMAX’s liability is limited to the amount you paid for the services in the last 12 months. CMAX is not liable for indirect, incidental, or consequential damages, including loss of profits or data.

7. Indemnification

  • You agree to indemnify and hold CMAX harmless from any claims, damages, or expenses arising from your use of the services, including any violation of these terms.

8. Warranties and Disclaimers

  • CMAX provides the services “as is” and disclaims all warranties, express or implied, including warranties of merchantability and fitness for a particular purpose. CMAX does not warrant that the services will be uninterrupted or error free.

9. Term and Termination

  • (a) You acknowledge that subscription fees are payable for delivery of functional working code and the license to use it. This is separate from installation and separate from your decision to keep the code installed or active.
  • (b) When implemented in accordance with the implementation instructions provided by CMAX, the code will serve content on the designated web pages.
  • (c) Removal, failure to install, deactivation, blocking, or alteration of the CMAX code does not suspend, reduce, or relieve your payment obligations and does not entitle you to any refund or credit.
  • (d) Upon termination or expiration of the subscription term you must promptly remove the CMAX code and Div ID from your websites.

10. Setup Services

  • Setup Services may be included in the Signed Proposal and are separate from the subscription services. Details and fees for Setup Services will be outlined in the Signed Proposal.

11. Taxes

  • Prices for CMAX services exclude applicable federal, state, and local taxes. The Client is responsible for paying all taxes associated with their subscription to the services. If CMAX is required by law to collect any taxes, these will be added to the Client’s invoice and are payable by the Client, unless the Client provides a valid tax exemption certificate.

12. Force Majeure

  • CMAX will not be liable for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, civil unrest, labor disputes, governmental actions, or failures in telecommunications or internet services. CMAX will notify the Client of any force majeure event and will make reasonable efforts to mitigate the impact on service delivery.

13. Equitable Relief

  • CMAX acknowledges that a breach of this Agreement may cause irreparable harm for which monetary damages would be inadequate. Therefore, in addition to any other remedies, CMAX shall be entitled to seek equitable relief, including injunctions and specific performance, to prevent or remedy any such breach.

14. Governing Law

  • These Terms are governed by the laws of New South Wales, Australia, without regard to its conflict of law principles.

15. Changes to the Terms

  • CMAX reserves the right to modify these terms at any time. Changes will be effective upon posting on the CMAX platform. Continued use of the services after changes are posted constitutes acceptance of the new terms.

16. Dispute Resolution

  • Any disputes arising from this agreement may, at the sole discretion of Area Ten Pty Ltd, be resolved through binding arbitration in Sydney, Australia, under the ACICA Arbitration Rules, or through court proceedings in the competent courts of New South Wales, Australia. If Area Ten Pty Ltd elects arbitration, both parties are bound by this election.

17. Confidentiality

  • Both parties agree to keep confidential any proprietary information disclosed by the other party in connection with the services, except as required by law. This confidentiality obligation does not prevent AT from using the Client’s name, logo, and trend data for marketing purposes as outlined in the Intellectual Property Rights clause.

18. Assignment

  • Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, except in connection with a merger or sale of substantially all assets.

19. Notices

  • All notices required under this Agreement shall be in writing and deemed given upon personal delivery, two business days after mailing, or upon sending by email.

20. Recovery of Costs on Default

  • (a) If any amount payable by the Client is overdue, the Client must reimburse CMAX on demand for all costs and expenses reasonably incurred by CMAX in recovering that amount.
  • (b) These costs and expenses include legal costs on a full indemnity basis, court and filing fees, process serving fees, fees or commissions of debt collection agencies, and all arbitration related costs including ACICA filing and administrative fees, arbitrator fees, venue and transcription costs, as well as costs of recognition, enforcement, execution, and recovery of any judgment or arbitral award.
  • (c) Amounts recoverable under this clause form part of the debt and are recoverable as a liquidated sum, both before and after commencement of proceedings or arbitration and both before and after judgment or award.

21. Severability

  • If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the minimum extent necessary to make it valid and enforceable. If such modification is not possible, the provision shall be severed from this Agreement, and the remaining provisions shall continue in full force and effect.