Studio Ninja – Terms & Conditions

The Studio Ninja website (“Website”), which is accessible at www.studioninja.co and all subdomains, is owned and operated by Studio Ninja Pty Ltd ABN 90 607 557 755 (“We”, “Us” or “Our(s)”). Via the Website, and/or Our mobile application (“App”), We may make Our software available and by so doing We provide our services (“Services”). By accessing the Website or any other website operated by or for Us from time to time, or using the Services, you accept these terms and conditions (“Terms and Conditions”) and may enter into a binding legal agreement (“Agreement”) with Us which incorporates these Terms and Conditions. If you do not accept these Terms and Conditions you should not continue to access or use the Website, the App or the Services.

We may change these Terms and Conditions from time to time and in this event will give users who have created an account with Us (“User(s)”) prior notice of this change by publication to the Website and/or the App. By continuing to access the Website or the App, or use the Services, you accept the Terms and Conditions as amended by Us from time to time.

1. User Accounts

1.1. To use the Services you must create an account via the Website or the App (“Account”).
1.2. You must not create an Account unless:
- 1.2.1. you are a body corporate or other form of legal entity other than a natural person;
- 1.2.2. you are a natural person who is aged 13 years or older and otherwise meet any age requirements imposed by the laws of the place in which you reside; and
- 1.2.3. you provide your full legal name, a valid email address and such other information as We may reasonably require of you from time to time.
1.3. If you are a natural person and have not attained the age of at least 18 years at the time of creating an Account, you warrant to Us that you have the consent of your parent or legal guardian to create the Account.
1.4. With the exception of published API interfaces, an Accounts may not be registered, updated, scanned, or otherwise accessed by ‘bots’ or other automated methods.
1.5. By creating an Account, you are making an offer to Us to use the Services and We may accept or reject your offer in our absolute discretion.
1.6. An Account you create will expire and may not be accessible by you beyond 7 days after its creation unless you take out a subscription for the Services (“Subscription”) within that 7 day period (“Trial Period”).
1.7. You must not create more than a single Account without an active Subscription unless you have a demonstrable commercial need for more than one such Account.
1.8. You must not allow your Account login credentials to be used by any person other than you or Us (upon Our request) but, subject to these Terms and Conditions, you may create additional login credentials for additional access to the Account, and separate fees and charges may apply if you do so.
1.9. You are responsible for maintaining the security of your Account and login credentials and We will not be liable for any loss or damage arising from your failure to keep the Account secure.
1.10. You agree to maintain the accuracy of the information you provide to Us pursuant to clause 1.2.3.

2. Use of Services

2.1. You may access the Services as a User using an active Account.
2.2. The Service is provided ‘as is’ and ‘as available’.
2.3. You agree to use the Services only for the proper purposes for which they are intended and in a manner that is lawful in the place from which you access the Account and/or use the Services.
2.4. You must not use the Services for any illegal, unauthorized or improper purposes or with malicious intent. Without limitation you must not use the Account or Services to:
- 2.4.1. harass, stalk, or threaten any other User or person;
- 2.4.2. transmit or communicate any content which, in Our opinion, is offensive, including, but not limited to, language that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, or racially, ethnically, or otherwise objectionable;
- 2.4.3. impersonate any person, business, or entity, including an employee of Ours, or communicating in any way that makes it appear that the communication originates from Us;
- 2.4.4. post private or identifying information about any other User or Account, to the Service or elsewhere;
- 2.4.5. transmit, or facilitate the transmission of, any content that contains a virus, corrupted data, worm, or other computer programming routines that are intended to and/or actually damage, detrimentally interfere with, surreptitiously intercept or mine, scrape or expropriate any system, data or personal information;
- 2.4.6. send mass email or other spam content, whether for personal or commercial purposes, including by disrupting the flow of conversation with repeated postings of a similar nature;
- 2.4.7. participate in any action which, in Our opinion, exploits an undocumented aspect of the Service;
- 2.4.8. participate in any action which, Our opinion, defrauds any other User of the Service, including, but not limited to ‘scamming’ or ‘social engineering;
- 2.4.9. use unauthorized programs or automated processes to interact with the Service;
- 2.4.10. access or attempt to access areas of the Service that have not been made available to the public;
2.5. You must not use the Services in a way which presents a risk of injury to you or any other person, or in circumstances which may be contrary to law.
2.6. You must not misrepresent yourself or take on the identity of someone else while using the Services.
2.7. If you use the Account and/or Services to participate in any events or online forums organized, administered or facilitated by Us, which may include but shall not be limited to instructional workshops or webinars, you must comply with any additional rules We may specify for that event or online forum.
2.8. You hereby acknowledge and agree that We reserve the right to determine, acting reasonably, that your use of the Account or Services does not comply with these Terms and Conditions or the manner of acceptable use of the Account and/or Services intended by them and that We may, as a consequence, exercise any of Our rights in these Terms and Conditions including the right to suspend and/or terminate your Account and/or your access to the Services.
2.9. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve:
- 2.9.1. transmissions over various networks; and
- 2.9.2. changes to conform and adapt to technical requirements of connecting networks or devices.
2.10. Your access the Website and/or the App and use the Service at your own risk.
2.11. We will only provide technical support in respect of Accounts with an active Subscription. Unless and until We otherwise determine, Our support is limited to online and email-based support.
2.12. You hereby acknowledge that We use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to provide the Services.
2.13. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service or with the Website, the App or Us.
2.14. You must not reverse engineer or reuse source code associated with the Website, the App and/or the Service that is in public view without the express written permission of Us. This includes any and all javascript.
2.15. You must not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, computer code that powers the Service, or access to the Service without the express written permission of Us.
2.16. You must not use the Account or the Services to upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages.
2.17. You must not use the Account or the Services to transmit any worms or viruses or any code of a destructive nature.
2.18. You may not use the storage provided by Us in connection with the Account for offsite backups, delivery or transfer of high-resolution images or proofs, or otherwise use excessive storage (as determined solely by Us). If you are found to be abusing the provided storage, your Account may be suspended until your storage usage is corrected.
2.19. If your bandwidth usage exceeds 1 GB/month, or significantly exceeds the average bandwidth usage (as determined solely by Us) of Our Users, We reserve the right to immediately suspend use of your Account or throttle your file hosting until you can reduce your bandwidth consumption.
2.20. You must not publish, or allow to be published in your name, any review of the Services which is untrue, misrepresentative of the facts, unfair or disparaging to Us and/or with malicious intent, and you hereby agree not to publish a negative review unless and until you have complied with clause 11 of these Terms and Conditions.
2.21. We reserve the right at any time and from time to time, with or without notice, to modify or discontinue, temporarily or permanently, provision of any part of the Services and do not warranty the availability of the Service, the Website or the App at any time.
2.22. Subject always to law, We reserve the right to refuse provision of the Service to anyone for any reason at any time.

3. Content

3.1. Using an Account you may upload your information, or information in your possession (“Content”), for the purposes of using it in connection with the Services.
3.2. Unless specifically provided for by these Terms and Conditions, We do not acquire any right, title or interest in your Content, and you retain all your right, title and interest in it.
3.3. You hereby warrant to Us that you hold all the appropriate rights in Content you upload and/or use in connection with the Account and/or the Services, and that it complies with all Australian laws and does not infringe copyright.
3.4. You hereby acknowledge and agree that:
- 3.4.1. if you or anyone else with access to your Account make any Content public, you allow others to view and share your Content;
- 3.4.2. We are not required to provide any specific export or archive of your Content and the various user-initiated export tools that may be available as part of the Services (such as contact list or general ledger exports) are provided “as is” and “as available”;
- 3.4.3. We do not pre-screen Content, but do reserve the right to refuse or remove any Content that is available via the Service;
- 3.4.4. you are responsible for all Content posted to your Account and activity that occurs in connection with the Account and We accept no responsibility for the Content and/or its use by or in connection with the Service;
- 3.4.5. The downgrade of your Account Subscription may cause the loss of Content, features, or capacity of your Account and We accept no liability for such loss.
3.5. We may, but have no obligation to, remove Content and/or Accounts containing Content that We determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable, or which violates any party’s intellectual property rights or these Terms and Conditions.
3.6. You hereby acknowledge and agree that your Content may be, but will not necessarily be, removed, deleted or destroyed from the infrastructure We use to provide the Services upon expiration of this Agreement, and it may persist in backup copies of data maintained by Us for a reasonable period of time (during which time it will not be available for use by others). We will use our reasonable efforts to comply with any request you may make for the removal, deletion or destruction of your Content.

4. Fees, Payment and Accounts

4.1. In consideration of our promise to provide the Services to you, you agree to pay us the fees and charges (“Fees”) and to otherwise comply with these Terms and Conditions.
4.2. Fees are as stated on the Website from time to time and are expressed inclusive of GST. Fees are subject to change upon 7 days’ notice from us in accordance with these Terms and Conditions. Your continued use of the Account after this notice period constitutes your acceptance of the relevant Fee change.
4.3. We will not impose a Fees in respect of Accounts during the Trial Period and before the User takes out a Subscription.
4.4. We may impose, and you agree to pay to Us, the Fees in respect of Accounts held by you with a current Subscription,
4.5. We charge Fees on a monthly or annual basis (depending on your Account settings). Where there is an increase in Fees as a result of the upgrade of an Account Subscription, the new applicable Fees will be pro-rated based on the time remaining in the current billing cycle for the Account and immediately charged upon upgrading.
4.6. You must pay all Fees with a valid credit card and you agree to provide us with details of such a credit card as part of the information required when you take out a Subscription. You hereby authorize to charge the Fees to your credit card when due. Where there is an upgrade or downgrade of an Account Subscription, your credit card will automatically be charged the new applicable Fee rate on the next billing cycle applicable to your Account.
4.7. If a charge We make to your card fails for any reason not attributable to Us, including insufficient funds or credit remaining, or if a card is lost or stolen, your Account may be suspended until you provide valid credit card payment details. If your Account remains suspended for 90 days after the payment due date it will be considered abandoned and your Account may be closed and scheduled for deletion.
4.8. Unless otherwise required by law, We will not provide a refund or credit for partial months of Service, Account Subscription upgrade/downgrade refunds, or refunds for months during which an Account and/or the Service is unused.

5. GST

5.1. In these Terms and Conditions, “GST” has the meaning defined A New Tax System (Goods and Services Tax) Act 1999 (Cth).
5.2. All amounts expressed in or contemplated by these Terms and Conditions are exclusive of GST unless otherwise stated.
5.3. We may charge You, in addition to the Fees and any other charges imposed by Us in accordance with these Terms and Conditions, an amount equal to any GST that is payable by Us in connection with provision of the Services to you.

6. Cancellation and Termination

6.1. Your failure to comply with these Terms and Conditions may result in the Termination of our Agreement with you and the discontinuation of your Account.
6.2. We may terminate this Agreement if you engage in conduct that involves verbal, physical, written or other abuse (including threats of abuse or retribution) of Us, our employees, other Users or any other person.
6.3. We may suspend use of your Account and access to it if we reasonably believe that you have failed to comply with these Terms and Conditions.
6.4. We may terminate this Agreement for convenience at any time on 7 days’ notice to you.
6.5. You may cancel your Account at any time via the Account by using the ‘Account & Subscription’ feature. Upon cancellation, your Account will be suspended immediately without regard to any original term of your Agreement with Us and you will not incur any further Fees in connection with the Account or provision of the Service. Cancellation of the Account will not relieve you of your obligation in respect of any accrued and unpaid Fees.
6.6. Unless We expressly indicate otherwise in writing to you, an email, chat request, help desk ticket, or phone request from you to Us to cancel your Account is not considered cancellation.
6.7. Termination or cancellation of the Account will result in the deactivation and/or deletion of your Account. You hereby acknowledge and agree that, immediately from the time of termination or cancellation:
- 6.7.1. your access to the Account will cease; and
- 6.7.2. all Content of your Account will not be accessible by you and may be deleted or otherwise destroyed by Us immediately upon termination.

7. Intellectual Property, Licenses and Associated Rights and Obligations

7.1. We assert copyright in and to the Website, the App, the Service and the design and expression of these, and the coding of same, and We hereby reserve all our rights. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements of the Website, the App and/or Service without Our prior written permission.
7.2. We may invite you, expressly or by implication, to provide a review or recommendation about Us and/or the Website, the App or the Services (“Testimonial”) and, by providing a Testimonial, you grant Us the irrevocable, perpetual, transferable, and unrestricted right to reproduce, display, use, and publish the Testimonial for promotional purposes in any medium and to alter the Testimonial in a manner which does not materially change the opinion you have expressed by it. We reserve the right not to publish or use your Testimonial and any publication or use of it by Us is not necessarily an acceptance or endorsement of it.
7.3. Subject always to clause 8, you hereby grant to Us a non-exclusive, perpetual, transferable, worldwide and royalty-free licence to use your Content for the purposes of enabling Us to provide the Services and for all other purposes contemplated by these Terms and Conditions, and you further agree to facilitate Our access to the Content as We may reasonably require from time to time.
7.4. Subject to this Agreement, We agree to maintain the confidentiality of the Content subject always to any compulsion on Us by law to disclose Content or any part thereof.
7.5. You warrant to Us that you have the authority to grant Us the access and licence pursuant to clause 7.3 and hereby indemnify Us for any loss We may incur as a result of use of the Content.
7.6. For the avoidance of doubt the intellectual property rights in and to the Website, the App and/or the Services, and which is created by Us in the course of provision of the Services to you, is and shall remain owned by Us.

8. Privacy and Data Protection

8.1. We will deal with your personal information you provide to Us, which may include the Content, in accordance with Our privacy policy (“Privacy Policy”).
8.2. We may process personal data on your behalf including names, business names, phone number, postal address and email addresses in order to fulfil our obligations under these Terms and Conditions. We will only process such personal data for as long as is necessary to comply with Our obligations under this Agreement.
8.3. Without prejudice to the generality of the provisions of this clause 8, you will ensure that you have all necessary and appropriate consents and notices in place to enable lawful transfer of the personal data to Us for the duration and/or purposes of this Agreement.
8.4. Clauses 8.5 to 8.9, inclusive, do not form part of this Agreement unless you are a citizen of the European Economic Area for the purposes of the Data Protection Legislation as defined in this clause 8.
8.5. For the purposes of these Terms and Conditions, “Data Protection Legislation” means all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and the below terms apply to you. The terms “data controller”, “data processor”, “personal data” and “data subject” shall each have the meanings as defined in the Data Protection Legislation.
8.6. Each of Us and you agree to comply with all applicable requirements of the Data Protection Legislation. The provisions of this clause 8 are in addition to, and do not relieve, remove or replace, the obligations of Us or you under the Data Protection Legislation.
8.7. If We process personal data on your behalf when providing the Service to you then, for the purposes of the Data Protection Legislation, you will be the data controller and we will be the data processor.
8.8. Without prejudice to the generality of the provisions of this clause 8, We shall, in relation to any personal data processed in connection with the performance by Us of our obligations under this Agreement:
- 8.8.1. process that personal data only on your written instructions unless We are required by the laws of any member of the European Union or by the laws of the European Union applicable to Us to process personal data (“Applicable Laws”). Where We are relying on laws of a member of the European Union or European Union law as the basis for processing personal data, We shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Us from so notifying you;
- 8.8.2. ensure that We have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of Our systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by Us);
- 8.8.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
- 8.8.4. assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- 8.8.5. notify you without undue delay on becoming aware of a personal data breach;
- 8.8.6. at your written direction, delete or return personal data and copies thereof to you on termination of this Agreement unless required by Applicable Law to store the personal data; and
- 8.8.7. maintain complete and accurate records and information to demonstrate Our compliance with this clause 8.
8.9. We may, at any time on not less than 7 days’ notice, and without limitation of any other right we have to amend these Terms and Conditions, revise the provisions of this clause 8 by replacing them with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to these Terms and Conditions).
8.10. You consent to Us appointing third-party processors of personal data pursuant to this Agreement. We confirm that We have entered or (as the case may be) will enter with any third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 8.
8.11. You consent to Us transferring personal data outside Australia and/or the European Economic Area for the purposes of this Agreement.

9. Warranties and Indemnities

9.1. Subject to these Terms and Conditions and to the extent permitted by law, We do not warrant that:
- 9.1.1. the Service will meet your specific requirements;
- 9.1.2. the Service will be uninterrupted, timely, secure, or error-free;
- 9.1.3. the results that may be obtained from the use of the Service will be accurate or reliable;
- 9.1.4. the quality of the Service, information, or other material We may make available to you will meet your expectations; and
- 9.1.5. that any errors in the Service will be corrected.
9.2. You warrant to Us that you have attended to all backups and have maintained copies of your Content and you hereby acknowledge that We are not responsible for attending to any such backup obligations, but that We may perform such backup actions as We reasonably determine from time to time.
9.3. You hereby indemnify Us, our employees and officer for any loss, damage or claim sustained by Us in connection with your use of the Website, the App and/or the Services and/or your breach of these Terms and Conditions.

10. Exclusion and Limitation of Liability

10.1. Subject always to this clause We hereby exclude all express and implied conditions and warranties in relation to the Website, the App and/or the Services.
10.2. Subject always to this clause We shall not be, and you hereby acknowledge and agree that We are not, liable for indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if We have been advised of the possibility of such damages), resulting from:
- 10.2.1. the use or the inability to use the Service;
- 10.2.2. the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service;
- 10.2.3. unauthorized access to or alteration of your transmissions or data;
- 10.2.4. statements or conduct of any third party on the Service; or
- 10.2.5. any other matter relating to the Service.
10.3. We shall not be liable to you or to any third party for any modification, change in Fees, suspension or discontinuance of the Service.
10.4. To the extent that We have any liability arising under or in connection with provision of the Services or these Terms and Conditions Our liability shall be limited to:
- 10.4.1. the cost of supplying the Services again; or
- 10.4.2. the payment of the cost of having the Services supplied again.
10.5. Our liability for failure to comply with a Guarantee (to the extent that the Guarantee applies) shall be limited to:
- 10.5.1. the cost of supplying the Services again; or
- 10.5.2. the payment of the cost of having the Services supplied again.
10.6. Nothing in this clause 10 shall be read or applied so as to purport to exclude, restrict or modify, or have the effect of excluding, restricting or modifying, the application of all or any of the provisions of the Competition and Consumer Act 2010 (Cth) or any relevant State Act or Territorial ordinance which by law cannot be excluded, restricted or modified.
10.7. In these Terms and Conditions “Guarantee” means a guarantee for the purposes of Part 3-2 of Schedule 2 of the Competition and Consumer Act 2010 (Cth).

11. Complaints and Dispute Resolution

11.1. You agree that, before initiating any legal or other proceedings against us, you will make a good faith effort to resolve any dispute you may have with Us by sending a dispute notice (“Dispute Notice”) to chris@studioninja.co. The Dispute Notice must include:
- 11.1.1. a thorough description of your dispute;
- 11.1.2. a summary of the situation that caused the issue giving rise to the dispute; and
- 11.1.3. your desired remedy or outcome.
11.2. Upon receiving a Dispute Notice We will use our best endeavours to try to resolve the dispute informally by contacting you via email.
11.3. In the event that any dispute is not resolved within 7 days from our receipt of a Dispute Notice, either Us or You may take such other dispute resolution action deemed necessary including by initiating legal proceedings.

12. General Provisions

12.1. A waiver of, or failure by Us to enforce, a right arising under the Agreement by Us does not affect any other of Our rights, whether arising under the Agreement or otherwise.
12.2. If any clause of these Terms and Conditions is invalid or unenforceable in any jurisdiction it is to be read down for the purposes of that jurisdiction so as to enable it to be valid and enforceable and otherwise, and to the extent of any invalidity, shall be severed without effecting, to the extent possible, the validity and enforceability of the remaining clauses of the Agreement.
12.3. Headings are for convenience only and shall not be used to construe the Terms and Conditions of this Agreement.
12.4. The Agreement contains the entire Agreement between Us and You with respect to its subject matter and supersedes all prior communications, arrangements, conduct and/or agreements.
12.5. You may not assign this Agreement without Our prior written consent. No third party shall have any rights hereunder.
12.6. This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns.
12.7. The Agreement shall be governed by, and construed in accordance with, the laws for the time being in force in the Commonwealth of Australia and the state of Victoria and Us and You submit to the non-exclusive jurisdiction of the courts of that State and courts of appeal therefrom.
12.8. Unless otherwise stated in the Agreement, any clause of the Agreement which expressly, or by implication from its nature, is intended to continue, will survive the expiration or termination of the Agreement.
12.9. The Agreement may be varied at any time by agreement in writing signed by Us and You.
12.10.If this Agreement is a ‘small business contract’ for the purposes of the Competition and Consumer Act 2010 (Cth), We will only apply or rely upon a Term and Condition of this Agreement to the extent that doing so is reasonably necessary to protect Our legitimate interests.
12.11. You consent to receive all communications including notices, agreements, disclosures, or other information from Us electronically. We may provide all such communications by email or by posting to the Website, the App or in any way via the Service. For support-related inquiries, you may send an email to chris@studioninja.co. Nothing herein shall limit Our right to object to subpoenas, claims, or other demands.
12.12. We reserve all our rights to the extent that they are not reserved by the Terms.