Bento Platform Terms and Conditions

Last Updated: 15 August 2023

Welcome to Bento! We provide a cloud-based platform (Platform) where you can send targeted email and SMS to your customers at scale, create automations based on user behaviour and purchases or chat live with customers.

In these Terms, when we say you or your, we mean both you and any entity you are authorised to represent (such as your employer).

When we say we, us, or our, we mean Backpack Internet Pty. Ltd. T/A Bento Software (ACN 618 553 129).

These Terms form our contract with you, and set out our obligations as a service provider and your obligations as a customer. You cannot use our Services unless you agree to these Terms.

Some capitalised words in these Terms have defined meanings, and each time that word is used in these Terms it has the same meaning. You can find a list of the defined words and their meaning at the end of these Terms.

For questions about these Terms, or to get in touch with us, please email: [email protected].

OUR DISCLOSURES

Please read these Terms carefully before you accept. We draw your attention to the fact that:

we will handle your direct personal information in accordance with our privacy policy, available at https://bentonow.com/legal/privacy;
subject to your Consumer Law Rights:
- (where our Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again;
- our aggregate liability to you for any Liability arising from or in connection with these Terms will be limited to AU$1,000;
- we will not be liable for Consequential Loss or delays or failures in performance caused or contributed to by an event or circumstance beyond our reasonable control;
we may amend these Terms at any time, by providing written notice to you, and by clicking “I accept” or continuing to use our Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment, you may close your Account with effect from the date of the change in these Terms by providing written notice to us;
where you engage third parties to operate alongside our Services (for example, any third-party software systems you wish to integrate with our Platform), those third parties are independent of us and you are responsible for (meaning we will not be liable for) the goods or services they provide, unless we expressly agree otherwise under clause 2.6; and
we may terminate your access to our Platform if you breach our Acceptable Use Policy, the Spam Act or Privacy Act.
you agree to indemnify, defend, and hold us harmless from any and all claims, liabilities, fines, costs, expenses, including internal investigation costs, arising from actual or perceived breaches of the Spam Act or related regulations.

These Terms do not intend to limit your rights and remedies at law, including any of your Consumer Law Rights.

1 — Engagement and Term

1.1 These Terms apply from when you sign up for an Account, until the date on which your Account is terminated in accordance with these Terms (Term). We grant you a right to use our Services for this period of time only (which may be suspended or revoked in accordance with these Terms).

1.2 You must be at least 18 years old to use our Platform.

1.3 Variations: We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use our Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment, you may close your Account with effect from the date of the change in these Terms by providing written notice to us. If you close your Account, you will no longer be able to access our Services (including our Platform) on and from the date of cancellation.

2 — Our Services

2.1 We provide the following services to you: (a) access to our Platform; and (b) access to our troubleshooting support (Support Services), (collectively, our Services).

2.2 If you require Support Services, you may request these by getting in touch with us through our Platform.

2.3 Unless we agree otherwise, Support Services cannot be used to support any other products or services, and does not include training, installation of software or hardware, software development or the modification, deletion or recovery of data or any on-site services.

2.4 Where we require access to your premises or computer systems in order to provide our Services, you agree to provide us with such access free from risk to the safety of our employees and contractors.

2.5 We will not be responsible for any other services unless expressly set out on in these Terms or on our Platform.

2.6 Additional Services: If you require additional services, we may, in our sole discretion, provide such additional services (to be scoped and priced in a separate contract provided by us).

2.7 Third Party Products or Services: Where you engage third parties to operate alongside our Services (for example, any third-party software systems you wish to integrate with our Platform), those third parties are independent of us and you are responsible for (meaning we will not be liable for) the goods or services they provide, unless we expressly agree otherwise under clause 2.6.

3 — Account

3.1 You must sign up for an Account in order to access and use our Platform.

3.2 While you have an Account with us, you agree to: (a) keep your information up-to-date (and ensure it remains true, accurate and complete); (b) keep usernames and passwords secure and confidential, and protect them from misuse or being stolen; (c) notify us if you become aware of, or have reason to suspect, any unauthorised access to your Account or any logins linked to your Account; and (d) comply with our Acceptable Use Policy.

3.3 We may suspend your access to our Services where we reasonably believe there has been any breach of our Acceptable Use Policy or unauthorised access to or use of our Services (such as the unauthorised sharing of login details for our Platform). If we suspend your access to our Services, we will let you know within a reasonable time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we may terminate your Account and your access to our Services will end.

3.4 When you create an Account, you will be prompted to enter the number of unique users with email addresses you intend to communicate with (each an Identified Contact). You will be charged per Identified Contact as set out in clause 4.

3.5 Regardless of your number of Identified Contacts, each Account is entitled to the following: (a) access to all of our Platform features; (b) unlimited email sending; (c) unlimited users within your business; (d) unlimited anonymous tracking; and (e) unlimited domains and sites (subject to reasonable use conditions in our Acceptable Use Policy).

4 — Payments

4.1 You must pay a monthly fee for the number of Identified Contacts you communicate with through our Platform (Monthly Fee). The Monthly Fee will be set out on our Platform or as agreed between the parties and direct debited from the credit card you provide upon registration.

4.2 The Monthly Fee may be subject to reasonable adjustments over time. If we change the Monthly Fee, we will provide you with 30 days’ notice of the change. If you do not wish to pay the amended fee, you may cancel immediately at any time.

4.3 You must not pay, or attempt to pay, any fees due under these Terms or as a result of your use of our Services by fraudulent or unlawful means. If you make payment by debit or credit card, you must be the authorised card holder. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third-party payment processor to debit your bank account, and you confirm that you are either the holder or an authorised signatory of that bank account.

4.4 Trial Periods: When you first sign up for an Account, if agreed in writing between the Parties, we may offer you the option to try a Subscription out for free, for the period of time set out in our offer. At the end of this free trial, you will begin to be charged the Monthly Fee.

4.5 Late Payments: If any fees due under these Terms or as a result of your use of our Services are not paid on time, we may: (a) suspend your access to our Services (including access to our Platform); and (b) charge interest on any overdue payments at a rate equal to the Reserve Bank of Australia’s cash rate, from time-to-time, plus 2% per annum, calculated daily and compounding monthly.

4.6 Taxes: You are responsible for paying any levies or taxes associated with your use of our Services, for example sales taxes, value-added taxes or withholding taxes (unless we are required by law to collect these on your behalf).

5 — Platform Licence

5.1 While you have an Account, we grant you a right to use our Platform (which may be suspended or revoked in accordance with these Terms). This right cannot be passed on or transferred to any other person.

5.2 You must not:

(a) access or use our Platform in any way that is improper or breaches any laws, infringes any person's rights (for example, intellectual property rights and privacy rights), or gives rise to any civil or criminal liability;

(b) interfere with or interrupt the supply of our Platform, or any other person’s access to or use of our Platform;

(d) use any unauthorised or modified version of our Platform, including but not limited to for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to our Platform;

(e) attempt to access any data or log into any server or account that you are not expressly authorised to access;

(f) use our Platform in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing;

(g) circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or

(h) access or use our Platform to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.

5.3 You must ensure that your use of our Platform is in accordance with our Acceptable Use Policy and you are responsible for obtaining consent from your Identified Contacts in accordance with the Privacy Act and Spam Act. We may terminate your use of our Platform in accordance with clause 11.1(a) for any breach of our Acceptable Use Policy.

6 — Availability, Disruption and Downtime

6.1 While we strive to always make our Services available to you, we do not make any promises that these will be available 100% of the time. Our Services may be disrupted during certain periods, including, for example, as a result of scheduled or emergency maintenance.

6.2 Our Services (including our Platform) may interact with, or be reliant on, products or services provided by third parties, such as cloud hosting service providers. To the maximum extent permitted by law, we are not liable for disruptions or downtime caused or contributed to by these third parties.

6.3 We will try to provide you with reasonable notice, where possible, of any disruptions to your access to our Services.

7 — Intellectual Property and Data

7.1 We own all intellectual property rights in our Services (including our Platform). This includes how our Platform looks and functions, as well as our copyrighted works, trademarks, inventions, designs and other intellectual property. You agree not to copy or otherwise misuse our intellectual property without our written permission (for example, to reverse engineer or discover the source code of our intellectual property), and you must not alter or remove any confidentiality, copyright or other ownership notice placed on our Platform.

7.2 We may use any feedback or suggestions that you give us in any manner which we see fit (for example, to develop new features), and no benefit will be owed to you as a result of any use by us of your feedback or suggestions.

Your Data

7.3 We do not own any of Your Data, but when you enter or upload any of Your Data into our Platform, you grant us the right to access, analyse, backup, copy, store, transmit, and otherwise use Your Data while you have an Account with us (and for a reasonable period of time afterwards). We may use Your Data (or disclose it to third party service providers) to: (a) supply our Services to you (for example, to enable you to access and use our Services), and otherwise perform our obligations under these Terms; (b) diagnose problems with our Services; (c) improve, develop and protect our Services; (d) send you information we think may be of interest to you based on your marketing preferences; (e) perform analytics for the purpose of remedying bugs or issues with our Platform; or (f) perform our obligations under these Terms (as reasonably required).

7.4 You acknowledge and agree that because of the nature of the internet, the processing and transmission of Your Data by us may occur of various networks, and may be transferred unencrypted.

7.5 You are responsible for (meaning we are not liable for): (a) the integrity of Your Data on your systems, networks or any device controlled by you; and (b) backing up Your Data.

7.6 When you use our Services, we may create anonymised statistical data from Your Data and usage of our Services (for example, through aggregation). Once anonymised, we own that data and may use it for our own purposes, such as to provide and improve our Services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you. This may include making such anonymised data publicly available, provided it is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.

7.7 If you do not provide Your Data to us, it may impact your ability to receive our Services.

8 — Confidential Information and Personal Information

8.1 While using our Services, you may share confidential information with us, and you may become aware of confidential information about us. You agree not to use our confidential information, and to take reasonable steps to protect our confidential information from being disclosed without our permission, and we agree to do the same for your confidential information. This also means making sure that any employees, contractors, professional advisors or agents of ours or yours only have access to confidential information on a ‘need-to-know basis’ (in other words, the disclosure is absolutely necessary), and that they also agree to not misuse or disclose such confidential information.

8.2 However, either you or we may share confidential information with legal or regulatory authorities if required by law to do so.

8.3 We collect, hold and disclose and use any Personal Information you provide to us in accordance with our privacy policy, available at https://bentonow.com/legal/privacy, and applicable privacy laws.

8.4 You must only disclose Personal Information to us if you have the right to do so (such as having the individual’s express consent).

8.5 We may need to disclose Personal Information to third parties, such as our related companies or our service providers (for example, IT and administrative service providers and our professional advisors).

9 — Consumer Law Rights

9.1 In some jurisdictions, you may have guarantees, rights or other remedies provided by law (Consumer Law Rights), and these Terms do not restrict your Consumer Law Rights. We will only be bound by your Consumer Law Rights and the express wording of these Terms. Our liability for a breach of your Consumer Law Rights is, unless the laws of your jurisdiction state otherwise, limited to either resupplying our Services, or paying the cost of having our Services resupplied.

9.2 Subject to your Consumer Law Rights, we do not provide a refund for a change of mind or change in circumstance.

9.3 If you accept these Terms in Australia, nothing in these Terms should be interpreted to exclude, restrict or modify the application of, or any rights or remedies you may have under, any part of the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

10 — Liability

10.1 To the maximum extent permitted by law, we will not be liable for, and you release us from liability for, any Liability caused or contributed to by, arising from or in connection with:

(a) your computing environment (for example, your hardware, software, information technology and telecommunications services and systems); or

(b) any use of our Services by a person or entity other than you.

10.2 Regardless of whatever else is stated in these Terms, to the maximum extent permitted by law:

(a) neither we or you are liable for any Consequential Loss;

(b) a party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the actions (or inactions) of the other party, including any failure by the other party to mitigate its loss;

(c) (where our Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and

(d) our aggregate liability to you for any Liability arising from or in connection with these Terms will be limited to AU$1,000.

10.3 To the maximum extent permitted by law, we will not be liable for, and you release us from liability for, any Liability caused or contributed to by, arising from or in connection with:

10.4 You agree to indemnify, defend, and hold us harmless from any and all claims, liabilities, fines, costs, expenses, including internal investigation costs, arising from actual or perceived breaches of the Spam Act, Privacy Act or related regulations, and you shall be responsible for any incurred losses, damages, legal fees, and regulatory assessments.

11 — Termination

11.1 We may terminate these Terms (meaning you will lose access to our Services, including access to your Account) if: (a) if we reasonably believe you have breached the terms of our Acceptable Use Policy, the Spam Act or Privacy Act; (b) you breach these Terms and do not remedy that breach within 14 days of us notifying you of that breach; (c) you breach these Terms and that breach cannot be remedied; or (d) you experience an insolvency event (including but not limited to bankruptcy, receivership, voluntary administration, liquidation, or entering into creditors’ schemes of arrangement).

11.2 You may terminate these Terms if: (a) we breach these Terms and do not remedy that breach within 14 days of you notifying us of that breach; or (b) we breach these Terms and that breach cannot be remedied.

11.3 You may also terminate these Terms at any time by notifying us through your Account or to our email for notices (as set out in clause 12.8), and termination will take effect immediately.

11.4 Upon termination of these Terms, we will retain Your Data (including copies) as required by law or regulatory requirements.

11.5 Termination of these Terms will not affect any other rights or liabilities that we or you may have.

12 — General

12.1 Assignment: You may not transfer or assign these Terms (including any benefits or obligations you have under these Terms) to any third party without our prior written consent. We may assign or transfer these Terms to a third party, or transfer any debt owed by you to us to a debt collector or other third party.

12.2 Disputes: Neither we or you may commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) unless we and you first meet (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent us or you from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. If the Dispute is not resolved at that initial meeting: (a) where you are resident or incorporated in Australia, refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation; or (b) where you are not resident or incorporated in Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Sydney, New South Wales, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.

12.3 Events Outside Our Control: We will not be liable for any delay or failure to perform our obligations (including our Services), if such delay or failure is caused or contributed to by an event or circumstance beyond our reasonable control.

12.4 Governing law: These Terms are governed by the laws of New South Wales, and any matter relating to these Terms is to be determined exclusively by the courts in New South Wales and any courts entitled to hear appeals from those courts.

12.5 Illegal Requests: We reserve the right to refuse any request for or in relation to our Services that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with these Terms.

12.6 Marketing: You agree that we may send you electronic communications about our products and services. You may opt-out at any time by using the unsubscribe function in our electronic communications.

12.7 Nature of Legal Relationship: These Terms do not create, and should not be interpreted so as to create, a partnership, joint venture, employment or agency relationship between us and you.

12.8 Notices: Any notice you send to us must be sent to [email protected]. Any notice we send to you will be sent to the email address registered against your Account.

12.9 Publicity: You agree that, subject to your prior written consent, we may advertise or publicise the fact you are a customer of ours, for example on our website or in our promotional material, and you grant us a right to display and use your logo and branding solely for that purpose.

12.10 Survival: Clauses 7 to 11 will survive the termination or expiry of these Terms.

13 — Definitions

13.1 In these Terms:

Acceptable Use Policy means the Platform code of conduct policy available at https://bentonow.com/legal/acceptable-use-policy.

Account means an account accessible to the individual or entity who signed up to our Services.

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us any amounts for access to or use of our Services (including our Platform) will not constitute “Consequential Loss”.

Identified Contacts has the meaning given in clause 3.4.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or us or you or otherwise.

Personal Information means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a tangible form or not.

Platform means our cloud-based platform, available at https://bentonow.com/.

Privacy Act means the Privacy Act 1998 (Cth) or equivalent privacy laws in the jurisdiction you conduct business in.

Services means the services we provide to you, as detailed in clause 2.1.

Spam Act means the Spam Act 2003 (Cth) or equivalent spam regulations in the jurisdiction you conduct business in.

Your Data means the information, materials, logos, documents, qualifications and other intellectual property or data supplied by you when receiving our Services or stored by or generated by your use of our Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with our Services. Your Data does not include any data or information that is generated as a result of your usage of our Services that is a back-end or internal output or an output otherwise generally not available to users of our Services.