Please read these Terms and Conditions, carefully before registering for a chargeable subscription for the Services offered on this website operated by Sixty Digits Pty Ltd trading as Digital Pigeon, a company registered in Australia with company registration number ABN 18 494 912 531.
In this Agreement, the following words shall have the following meanings:
means Monday to Friday excluding any national holiday in Australia.
means 9 am to 5 pm (local Eastern Australian time);
means Sixty Digits Pty Ltd trading as Digital Pigeon;
means any and all information in whatsoever form relating to the Company or the Customer, or the business, prospective business, finances, technical processes, computer software (both source code and object code), IPRs or finances of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession by virtue of its entry into this Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
means pure economic loss, losses incurred by any client of the Customer or other third party, loss of profits (whether categorised as direct or indirect loss), losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, wasted management or staff time;
means all data imported into the Services for the purpose of using the Services or facilitating the Customer’s or User’s use of the Services;
means the company or person who completes the online registration form for use of the Services;
means the data processing agreement published at www.digitalpigeon.com/DPA as amended from time to time;
means the date set out in the confirmation invoice;
means feedback, innovations or suggestions created by Customers or Users regarding the attributes, performance or features of the Services;
means the fees set out in the confirmation invoice sent to the Customer upon acceptance of its online order;
means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency;
means a period of 1 month or 12 months as set out in the confirmation invoice, starting on the Effective Date;
means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
means any Company rules or protocols, in whatever form recorded or set, that affect the Customer’s access to or use of the Services, and made available by the Company from time to time to the Customer;
means a period of 1 or 12 months as set out in the confirmation invoice;
means the software applications premium digital file transfer services (including any computer software programmes and, if appropriate, Updates thereto) of the Company, ordered online by the Customer and set out in the confirmation invoice sent to the Customer;
means aggregated, anonymised data derived from the Customer or User’s use of the Services which does not include any personal data or Customer Confidential Information;
means the Initial Term plus any Renewal Terms together;
“Terms and Conditions”
means these terms and conditions published at www.digitalpigeon.com/terms-of-service/ as amended from time to time;
means any new or updated applications services or tools (including any computer software programmes) made available by the Company as part of the Services;
means any person or entity who is authorised by the Customer to access or use the Services.
2.1 The Customer engages the Company and the Company agrees to provide the Services to the Customer and Users for the Term in accordance with the terms of this Agreement.
2.2 The Services shall be made available to Customers via the Internet on Business Days during Business Hours in accordance with the terms of this Agreement (together with any Operating Rules).
2.3 Users are permitted to send, share and receive files of up to 200GB, depending on the Customer’s account type and unless agreed otherwise, to one or more recipients (as identified by a valid email address).
2.4 In order to use the Service the Customer must register and create a Digital Pigeon account. Once the account is created the Customer will be a User. In creating an account, the Customer agrees to provide accurate, current, and complete information and is responsible for keeping all account information current and accurate. Digital Pigeon and its parent company Sixty Digits Pty Ltd will have no liability for failure to deliver notices that result from inaccurate account information or otherwise.
3.1 Subject to the Customer’s payment of the Fees, the Customer is granted a non-exclusive and non-transferable licence to permit the Customer and Users to use the Services (including any associated software, IPRs and Confidential Information) during the Term for the Customer’s internal business operations. Such licence shall permit the Customer to make such copies of software or other information as are required for the Customer to receive the Services via the Internet. Where open source software is used as part of the Services, such software use by the Customer will be subject to the terms of the open source licences.
3.2 Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Services interoperable with other software (and upon written request by the Customer identifying relevant details of the Services(s) with which interoperability is sought and the nature of the information needed), the Company will provide access to relevant source code or information. The Company has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
3.3 Unless otherwise specified in this Agreement, the Services are provided and may be used by the Customer in conjunction with its existing systems and applications to facilitate the Customers use of the Services with its employees, who are permitted to access and use the Services. The Customer may not: (i) lease, loan, resell or otherwise distribute the Services save as permitted in writing by the Company; (ii) use the Services to provide ancillary services related to the Services; or (iii) except as permitted in this Agreement, provide access to or allow use of the Services by or on behalf of any third party.
3.4 All IPRs and title to the Services and the trademark “Digital Pigeon” (save to the extent they incorporate any Customer or third party owned item) shall remain with the Company and/or its licensors and no interest or ownership in the Services, the IPRs or otherwise is transferred to the Customer under this Agreement. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services.
3.5 The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data its pre-existing IPRs and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and its pre-existing IPRs. The Customer grants the Company a non-exclusive, licence to use Customer Data, Customer IPRs and any third party owned item from the Effective Date for the Term to the extent required for the provision of the Services.
3.6 The Customer grants the Company a non-exclusive, non-transferable, revocable licence to display the Customer’s name, logo and trademarks, as designated and/or amended by the Customer from time to time and as required in the creation of correspondence, documentation and website front ends in the provision of the Services.
3.7 The Customer assigns all rights, title and interest in any Feedback to the Company. If for any reason such assignment is ineffective, the Customer shall grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such Feedback without restriction.
3.8 The Customer grants the Company the perpetual right to use Statistical Data and nothing in this Agreement shall be construed as prohibiting the Company from using the Statistical Data for business and/or operating purposes, provided that the Company does not share with any third party Statistical Data which reveals the identity of the Customer or Users, or Customer’s Confidential Information.
3.9 The Company may take and maintain technical precautions to protect the Services from improper or unauthorised use, distribution or copying.
4.1 The Company is entitled to refuse any order placed by a Customer. If an order is accepted, the Company will confirm acceptance by sending a confirmation invoice to the Customer via email.
4.2 In consideration of the provision of the Services by the Company, the Customer shall pay the Company the Fees.
4.3 The Company shall invoice the Fees monthly or annually as set out in the confirmation invoice from the Effective Date for the Term.
4.4 Fees shall include overage charges shall be invoiced separately in arrears where the Customer exceeds their storage or download allowance during the relevant contractual period, as set out in the plan ordered by the Customer. All downloads regardless of successful delivery, or not, shall be count towards the overage fee to the extent that any part of the file was downloaded. Fees are exclusive of GST, duty, sales or similar taxes.
4.5 The Customer shall pay by credit card unless the parties agree otherwise in writing. The Customer’s credit card shall be billed on the Effective Date and monthly or annually thereafter (as applicable) for the Term. Where another payment method is agreed between the parties, invoices must be paid within 30 days of the date of each invoice.
4.6 The Fee is the price in force at the date and time of the Customer’s order, set out in the confirmation invoice and subsequent invoices plus GST, where applicable.
4.7 The Company may alter the Fees at any time during the Term upon giving the Customer 30 days prior notice by email. If the Customer does not agree to any price alteration it must: (i) stop using the Services; and (ii) give notice to terminate; prior to the expiry of the 30 day period, otherwise the Customer shall be deemed to have accepted the price alteration and the new price shall apply to the next invoice issued after expiry of the 30 day notice period.
4.8 All invoices shall be in the currency set out in the invoice and shall be payable in full by the Customer together with any VAT, duty, sales or similar taxes (if applicable). The Customer is responsible for any banking or account charges that are payable in addition.
4.9 The Customer undertakes that all details provided for the purpose of obtaining the Services are correct and that the credit card details used are its own and that there are sufficient funds or credit facilities to cover the Fees.
4.10 Where payment of any Fee is not received on the due payment date, the Company may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Company shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remains unpaid.
4.11 The Company shall be entitled to charge interest on overdue Fees at the applicable statutory rate and reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments.
5.1 The Company warrants to the Customer that (i) it has the right to license the Services; (ii) that by performing the Services it will not infringe the IPRs of any third party or be in breach of any obligations it may have to a third party. The foregoing warranties shall not: (i) cover deficiencies or damages relating to any third party components not furnished by the Company; or (ii) any third party provided connectivity necessary for the provision or use of the Services. In the event of a breach of the warranties under this section 5.1, the Company shall have no liability or obligations to the Customer other than to reimburse the Fees for the Services.
5.2 The Customer warrants and represents that: (i) it has full corporate power and authority to enter into this Agreement and to perform its obligations; (ii) the execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable laws; (iii) it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement; (iv) it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Agreement; and (v) it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that access to the Services granted under this Agreement is limited as set out in this Agreement.
5.3 The Customer warrants and represents that in using the Services it shall not (i) access, tamper with, or use any non-public areas of the Service or the Company’s computer systems or the technical delivery systems of the Company’s suppliers; (ii) attempt to probe, scan, or test the vulnerability of the Services or any related system or network or breach any security or authentication measures used in connection with the Services and such systems and networks; (iii) harm or threaten to harm other users in any way or interfere with, or attempt to interfere with, the access of any user, host or network, including without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Services.
5.4 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free.
6.1 Neither party excludes or limits its liability to the other for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct in connection with the use or provision of the Services.
6.2 In no event shall the Company be liable to the Customer whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss.
6.3 Subject to sections 6.1 and 6.2, the total liability of the Company (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed one hundred (100) per cent of the total Fees (excluding any GST, duty, sales or similar taxes) paid or payable by the Customer to the Company during the preceding twelve (12) month period or, if the duration of the Agreement has been less than twelve (12) months, such shorter period, as applicable.
6.4 In no event shall the Customer raise any claim under this Agreement more than one (1) year after: (i) the discovery of the circumstances giving rise to such claim; or (ii) the effective date of the termination of this Agreement.
6.5 The Customer acknowledges and agrees that in entering into this Agreement, the Customer had recourse to its own skill and judgement and has not relied on any representations made by the Company, any employees or agents of the Company.
7.1 The Company, at its own expense, shall: (i) defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis that use of the Services is an infringement of any IPRs of a third party (excluding any claim or suit deriving from any Customer provided item); and (ii) pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that: (a) the Customer notifies the Company promptly of each such claim or suit; (b) the Company is given sole control of the defence and/or settlement; and (c) the Customer fully co-operates and provides all reasonable assistance to the Company in the defence or settlement.
7.2 If all or any part of the Services becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company at its own expense and sole discretion may: (i) procure for the Customer the right to continue to use the Services or the affected part thereof; or (ii) replace the Services or affected part with other suitable non-infringing service(s); or (iii) modify the Services or affected part to make the same non-infringing.
7.3 The Company shall have no obligations under this section 7 to the extent that a claim is based on: (i) the combination, operation or use of the Services with other services or software not provided by the Company, if such infringement would have been avoided in the absence of such combination, operation or use; or (ii) use of the Services in any manner inconsistent with this Agreement; or (iii) the negligence or wilful misconduct of the Customer.
7.4 The Customer shall indemnify and hold the Company and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or violation by the Customer of any IPRs with respect to the Customer’s use of the Services outside the scope of this Agreement; (ii) any access to or use of the Services by a third party; (iii) use by the Company of any Customer Date or Customer provided item; and (iv) breaches of applicable data protection law or the terms of the DPA.
8.1 This Agreement will commence on the Effective Date and continue for the Initial Term. Upon expiry of the Initial Term the Agreement shall automatically renew for further Renewal Terms until either party terminates the Agreement: (i) by giving 30 days notice prior to the start of any Renewal Term; or (ii) terminates in accordance with its rights set out below in this section 8.
8.2 The Company may immediately terminate this Agreement or the provision of any Services provided pursuant to this Agreement if: (i) the Customer has used or permitted the use of the Services in breach of the terms of this Agreement; or (ii) the Company is prohibited, under any applicable law from providing the Services.
8.3 Either party shall be entitled to terminate this Agreement at any time on written notice if the other party: (i) goes into voluntary or involuntary liquidation (otherwise than for the purpose of a solvent reconstruction or amalgamation) or has a receiver or administrator or similar person appointed or is unable to pay its debts within the meaning of applicable insolvency law or ceases or threatens to cease to carry on business or if any event occurs which is analogous to any of the foregoing in another jurisdiction; or (ii) commits a material breach of any term of this Agreement which, if capable of remedy, is not remedied within five (5) Business Days of receipt of a written notice specifying the breach and requiring it to be remedied; (iii) is prevented by Force Majeure from fulfilling its obligations for more than 28 days.
8.4 Upon termination of this Agreement: (i) the Company shall immediately cease providing the Services to the Customer; (ii) all licences granted hereunder shall terminate; (iii) the Customer shall promptly pay the Company all unpaid Fees for the remainder of the Term. No Fees already paid shall be refunded if the Agreement is terminated prior to the end of the Term, unless the Company terminates under clause 8.2 (ii), 8.5 or the Customer terminates due to the material breach of the Company, then any Fees paid in advance for periods after the effective date of termination, shall be refunded to the Customer
8.5 Following termination, at the option of the Customer, the Company shall following receipt of a request from the Customer delete (in accordance with the terms of the DPA) or return all Customer Data stored in the Company’s database in an electronic format provided that such request is made within 30 days of termination. The Company shall return a list of uploads, comments, feedback etc free of charge but will charge overage fees for all files that are sent to, or made available for download by, the Customer. If the Customer requires any Customer Data to be returned in a particular format the Company reserves the right to charge for this additional service.
8.6 The Company reserves the right to discontinue the Services or change the Services at any time upon giving the Customer prior notice, in which case the Customer may terminate this Agreement without penalty.
8.7 Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties. All clauses which by their nature should continue after termination shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
9.1 Each party may use the Confidential Information of the other party only for the purposes of this Agreement and must keep confidential all Confidential Information disclosed to it, except where the recipient of Confidential Information is required to disclose the Confidential Information by law to any regulatory, governmental or other authority with relevant powers to which either party is subject.
9.2 Each party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent is bound by confidentiality undertakings equivalent to those set out in this Agreement.
9.3 Both parties agree to return (or destroy) all documents, materials or data containing Confidential Information to the disclosing party without delay upon completion of the Services or termination or expiry of this Agreement.
9.4 The obligations of confidentiality under this Agreement do not extend to information that: (i) was lawfully in the possession of the receiving party before the negotiations leading to this Agreement; (ii) is, or after the Effective Date, becomes public knowledge other than through any act or omission of the receiving party; or (iii) independently developed by the receiving party, which independent development can be shown by written evidence; (iv) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.5 If either party is required to disclose any Confidential Information pursuant to clause 9.4.(iv) such party shall, where lawfully permitted to do so: (i) promptly consult with and take into account any comments from the other party prior to making any disclosure; and (ii) work with the other party to ensure that any exemptions or other legitimate means of preventing disclosure or limiting disclosure are used to the fullest extent possible.
10.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
10.2 To the extent that personal data is processed when the Customer or Users’ use the Services, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations and the terms of the DPA.
10.3 If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
11.1 The Customer must ensure that each password is only used by the User to which it has been assigned. The Customer is responsible for any and all activities that occur under the Customer’s account and via the Customer’s passwords. The Customer will immediately notify the Company if the Customer becomes aware of any unauthorised use of the Customer’s account, the Customer’s passwords or breach of security known to the Customer. The Company shall have no liability for any loss or damage arising from the Customer’s failure to comply with these requirements.
11.2 The Company may suspend access to the Services, or portion thereof, at any time, if in the Company’s sole reasonable discretion, the integrity or security of the Services is in danger of being compromised by acts of the Customer or Users. The Company shall where possible give the Customer 24 hours written notice, before suspending access to the Services, giving specific details of its reasons.
12.1 Any Customer Data imported into, created through use of the Services or used within the Services must not: (i) be unlawful or otherwise objectionable, including but not limited to, Customer Data that is abusive, threatening, harassing, defamatory, obscene or fraudulent, includes content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts; (ii) be intended to promote or incite violence, that promotes bigotry, racism, hatred, or harm against any individual or group; (iii) contain viruses or any other software or instructions that may damage or disrupt other software, computer hardware or communications networks; (iv) include links to other websites containing any of the above types of prohibited content; (v) engage in any form of commercial advertising. This does not prohibit references to businesses for non-promotional purposes including references where advertising may be incidental; (vi) impersonate other people, particularly employees and representatives of the Company or its affiliates; (vii) use the Services for unauthorised mass-communication such as “spam” or “junk mail”; (viii) infringe or misappropriate the IPRs or breach the data privacy rights of any third party; (ix) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (x) be used if the Customer does not have the consent or permission of each identifiable person within the Customer Data to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the Customer Data); or (xi) breach any confidentiality or fiduciary obligations that the Customer might have with respect to the Customer Data.
12.2 The Company has the right, but not the obligation to pre or post-screen Customer Data and reserves the right to remove any Customer Data without notice and may, at its sole discretion, terminate the Customer’s access to the Services.
12.3 The Customer is solely responsible for all Customer Data made available or used within the Services.
Nothing contained in this Agreement is intended to be enforceable by a third party pursuant to any statutory or implied rights a third party may have in any applicable jurisdiction.
14.1 If a party is wholly or partially prevented by Force Majeure from complying with its obligations under this Agreement, that party’s obligation to perform in accordance with the terms of this Agreement will be suspended.
14.2 As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement. If the Force Majeure event last for more than 28 days the non-defaulting party may terminate this Agreement with immediate effect without penalty.
15.1 Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
15.2 This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
15.3 No party may assign, transfer or subcontract its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to any company within the Company’s group of companies.
15.4 The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
15.5 Amendments to, or notices to be sent under this Agreement, shall be in writing and shall be deemed to have been duly given if sent by registered post or email to a party at the address given for that party in this Agreement. All notices to the Company shall be sent by email email@example.com and notices to the Customer shall be sent to the postal address or email address under which the Customer account is registered. Notices will be deemed received 3 days after posting if sent by first class post, on the day of sending if the email is sent on a Business Day and on the next business Day if the email is sent on a weekend or public holiday.
15.6 The Company may change or modify the terms of this Agreement, upon giving the Customer 30 days notice via email. All changes shall be deemed to have been accepted by the Customer unless the Customer terminates the Agreement prior to the expiry of such 30 day period
15.7 This Agreement shall be governed by the laws of Victoria, Australia. The courts of Victoria, Australia shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.