Thank you for visiting our Terms of Use (Agreement), we are Nifty LMS ABN 21 701 399 077 of CANNON HILL QLD 4170 (Nifty LMS, we, our, us and other similar terms). We provide a number of software as a service offerings catering to a range of consumer and business needs which we refer to as Nifty LMS (Nifty LMS).
This Agreement outlines the terms and conditions associated with your use of Nifty LMS. It is your obligation to ensure that you have read, understood and agree to the most recent terms available at https://app.niftylms.com/toc (Website).
By creating an account for Nifty LMS, you agree to comply with and be legally bound by the terms and conditions of this Agreement. If you do not agree to these terms, you have no right to continue using Nifty LMS.
You must not use Nifty LMS if you are not able to form legally binding contracts or are under the age of 18. If you create an Account on behalf of your employer or any other entity, you represent and warrant you hold authority to enter into this Agreement on behalf of that entity and that the entity will comply with the obligations contained herein.
Throughout the Agreement we use some capitalised words and phrases, like the word Agreement. These capitalised words and phrases are defined in clause 16.1. They aid to clarify the terms and conditions. Please feel free to email us at support@niftylms.com if you have any questions.
We grant you a non-transferrable, non-exclusive and revocable licence to access Nifty LMS, for the Subscription Period, subject to the terms and conditions of this Agreement.
The grant of the licence to access Nifty LMS in clause 3.1 is subject to and conditional upon you purchasing, and maintaining a subscription to, one of our Subscription Packages.
We reserve the right to limit or suspend your licence to access Nifty LMS if you fail to pay the Subscription Fee, or if in our reasonable opinion, you are in breach of any of your obligations or warranties in this Agreement. Suspending your account will not constitute a breach of this Agreement by us, nor will it alter your obligation to pay the Subscription Fee.
This Agreement will commence when you create an Account for Nifty LMS and will continue for the Subscription Period or until the date of termination of this Agreement in accordance with clause 14.
If this Agreement is not terminated in accordance with clause 14., at least 7 days prior to the expiry of the then current Subscription Period, this Agreement will automatically renew for a period equal to the current Subscription Period.
We will provide you with a tax invoice for the Subscription Fee, which will be automatically deducted from your account at the beginning of each Subscription Period. Where no automatic deduction can be effected, you must pay our invoice within 14 days of the date of the invoice.
Unless expressed otherwise, Subscription Fees are quoted in Australian Dollars and are exclusive of GST, withholding taxes, duties and charges imposed or levied in Australia, or overseas, in connection with this Agreement. You are responsible for payment of all taxes and any bank fees and charges applied by the payment gateway provider, which you choose to use.
You acknowledge and agree Nifty LMS will only be accessible using the internet, by users with a valid Account and will not be available "locally" from your own servers or devices.
In order to make full use of any mobile application version of Nifty LMS, you must allow your device access to certain services. If you refuse to grant access to those mobile device services, the mobile version of that Nifty LMS may not function as anticipated, or at all.
Support for Nifty LMS are provided in accordance with the support arrangements as set out on our website and may vary from time to time.
If it is necessary to interrupt your use of Nifty LMS, we will endeavour to provide you with reasonable notice (where possible) of when, and the anticipated duration for which, Nifty LMS will be unavailable.
You acknowledge access to Nifty LMS may be changed, interrupted or discontinued for many reasons, some of which are beyond our control and during routine maintenance there may be updates to Nifty LMS which may change the interface and manner in which in functions.
You agree that we are not liable for any loss, foreseeable or not, arising from any interruption to access, planned or not, and any such interruptions will not constitute a breach by us of these terms.
In order to use Nifty LMS, you are required to provide us with Personal Information and create an Account with us.
You agree to provide any information reasonably requested by us for the purpose of setting up your Account. You warrant that all of the information you provide to us is accurate and complete in all respects, you will inform us by updating your Account details whenever any such information changes and you will not provide false or misleading information.
We reserve the right to reject any new Account in our absolute discretion.
Maintaining the security of your Account is important to ensuring your Personal Information, and that data which we process on your behalf, remains safe. We work hard to keep Nifty LMS secure and we ask you to contribute.
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorised employee or agent may create an Account on behalf of your business. You also agree not to disclose your Account security credentials to another person or permit them to access your Account. You are responsible for the activities undertaken using your Account which occur via Nifty LMS, whether such activities are authorised by you or not.
You undertake not to upload, store or access any data on Nifty LMS if such access or storage would infringe a person’s Intellectual Property right, breach any Privacy Law or breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory).
You may only acquire and make use of Nifty LMS for the sole purpose of meeting your internal business needs. You must not use or include any part of Nifty LMS in any service bureau or fee generating service offered to third parties
You must not:
You agree and consent to us handling your Personal Information in accordance with our Privacy Policy. We may amend our Privacy Policy in our sole discretion. If we amend our Privacy Policy, we will post the new version on our Website.
A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.
Notwithstanding any other provision of this clause 9., a party may disclose the terms of this Agreement to its related companies, solicitors, auditors, insurers and accountants.
Each party will take all reasonable steps to ensure that its employees, agents, and any sub-contractors engaged for the purposes of the Agreement do not make public or disclose the other party's Confidential Information.
A party will not be in breach of this clause 9. in circumstances where it is legally compelled to disclose the other party's Confidential Information.
We may disclose information, including, but not limited to, your Personal Information or a transmission made using Nifty LMS, in order to comply with a court order, subpoena, summons, discovery order, warrant, statute, regulation, governmental request, to protect our legal rights, prevent harm to persons or where such disclosure is necessary to the proper operation of a Nifty LMS (Permitted Disclosures).
You acknowledge and agree, we have no obligation to inform you if Permitted Disclosures are made.
We warrant we own or have a licence to use the Intellectual Property in Nifty LMS.
You must not do any of the following, assist anyone to do any of the following or permit any person over whom you have effective control to:
If you provide us with content, including, without limitation, text, photos, images, audio, video, code and any other materials (User Content). Your User Content stays yours. This Agreement does not transfer ownership of User Content to us.
When you provide User Content, you grant us a non-exclusive, worldwide, perpetual, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with Nifty LMS), communicate, publish, publicly display, publicly perform and distribute User Content for the purposes of allowing us to provide, improve, promote and protect Nifty LMS. You waive any claims against us relating to any moral rights or similar rights worldwide that you may have in the User Content.
You represent that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your User Content to the extent that it is used within Nifty LMS.
While we reserve the right to take down any User Content which is in breach of this Agreement, you acknowledge and agree we are not required to monitor User Content, nor are we responsible for it.
We aim to provide the best possible user experience, however, subject to the Non-excludable Conditions, we make no warranties or guarantees that Nifty LMS you subscribe to is fault free, regarding Nifty LMS’ fitness for any particular purpose which we have not expressed, or regarding your access to, or the results of your access to, the Nifty LMS including its correctness, accuracy, timeliness, completeness, reliability or otherwise.
We expressly exclude all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition.
Subject to the Non-excludable Conditions, we exclude all other liability for any costs, including consequential losses, suffered or incurred directly or indirectly by you in connection with this Agreement, including:
Where a Non-excludable Condition is deemed to apply, to the fullest extent possible under the law, we limit our liability for any breach to:
You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with this Agreement or your use of Nifty LMS, including any costs arising from your breach of this Agreement, your infringement of any third party Intellectual Property rights associated with this Agreement, any harm to, claim or action by a third party (including to that third party’s personal property) which arise directly or indirectly from your use of Nifty LMS and your breach of any law including, Privacy Law.
A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 13. before commencing any legal proceedings.
If the parties cannot resolve the Dispute between themselves within 30 days then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, within the jurisdiction of the Agreement and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.
Each party must pay its own internal and legal costs in relation to complying with this clause 13. The mediator's costs are to be shared equally.
The parties acknowledge and agree this clause 13 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.
You may terminate this Agreement by sending us a Cancellation Notice or cancelling your subscription via a facility which is made available in your Account. Either option satisfies the requirements for termination to be provided in writing.
Either party may terminate this Agreement by providing the other party notice in writing. Termination will take effect, at the end of the then current Subscription Period, if the notice is provided at least 7 days prior to the Renewal Date or the following Subscription Period, if the notice is provided within 7 days prior to the Renewal Date.
Either party may terminate this Agreement if the other party commits a material breach of this Agreement and the breach is incapable of being remedied or if the breach is capable of being remedied, the party in breach has failed to remedy the breach within 14 days after the receipt of notice to remedy.
Upon termination:
Assignment - We may assign, encumber, declare a trust over or otherwise create an interest in our rights in this Agreement without your consent.
Entire Agreement - This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
Governing law - The laws of Queensland and the Commonwealth of Australia govern this Agreement. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.
Notices - The parties agree all notices, disclosures and other communications that are provided in accordance with this clause, satisfy any legal requirement that such communications be in writing. Any communication under or in connection with this Agreement:
Relationship - Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties.
Severability - Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change its intended effect.
Variations to this Agreement - We may vary this agreement by giving one month written notice to you. If you do not accept the terms of the variation, you may terminate your subscription in accordance with clause 14.1.
Unless the terms and conditions of the Agreement state otherwise, the following expressions used in this Agreement have the following meanings:
Account or Nifty LMS Account means the username and access credentials used when you access Nifty LMS.
Agreement means these terms and conditions and any document incorporated into them by reference.
Cancellation Notice means a notice sent by either party, in accordance with clause 14., requesting the termination of this Agreement.
Confidential Information means information that is by its nature confidential, including but not limited to information relating to either party’s personnel, policies, practices, clientele, business strategies, Intellectual Property rights, the system operations associated with Nifty LMS and security credentials. But does not include information already rightfully known to the receiving party at the time of disclosure by the other party or in the public domain other than as a result of a disclosure in breach of its obligations of confidentiality under this Agreement.
Event of Force Majeure means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.
Intellectual Property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, domain names, circuit layouts, computer code, confidential information, copyright, designs, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Non-excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
Payment Terms mean the requirement to make payment immediately on commencement of this Agreement and each subsequent Renewal Date in accordance with the Subscription Package selected.
Personal Information means information or an opinion about an identifiable individual (not a company), whether or not that information or opinion is true or in a material form.
Privacy Law means both the privacy laws in the jurisdiction in which you operate and the Privacy Act 1988 (Cth) incorporating the Australian Privacy Principles.
Privacy Policy means the privacy policy available on our Website as amended by us from time to time.
Renewal Date means a date equal to one Subscription Period, after the beginning of the then current Subscription Period.
Subscription Fee means the periodic price for Nifty LMS Subscription Package as set out on our website.
Subscription Package means one of the subscription packages advertised on our website from time to time.
Subscription Period means the period of time for which you subscribe to.
You or your means the person or entity using Nifty LMS.
Us, we or our means Nifty LMS ABN 21 701 399 077.
Website means the website located at https://niftylms.com and any of its subdomains.
Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows: