TERMS OF USE

1. About this Website

The Power Diary website is owned and operated by Power Diary Pty Ltd. References in these terms and conditions to “Power Diary”, “us” or “we” are references to Power Diary Pty Ltd trading as “Power Diary”.

Your use of the services, information text, graphics and materials provided via or on the Power Diary Website (“Material on this Website”) is governed by these Terms of Use and our Privacy Policy. By using this website you agree to be bound by these Terms of Use and accept our Privacy Policy.

Any reference to “Pencil Me In” (Power Diary’s former name) is for the purposes of these Terms of Use, it be taken to refer to Power Diary as defined above.

 

2. Links from Other Websites

You may also be using the Power Diary website as part of a link from another website, or a window or frame in that other website. Regardless of the appearance of the site, your transaction occurs with, and payment is processed by, Power Diary, subject to the terms and conditions outlined below.

 

3. Privacy

Your privacy is very important to Power Diary. Please read our Privacy Policy for details on how we collect and handle your personal information.

 

4. Availability of the Power Diary Website

4.1.
As electronic services are subject to interruption or breakdown, access to the Power Diary Website is offered on an “as is” and “as available” basis only.

4.2.
You are responsible for ensuring that you have alternate contingency plans in place to enable you to conduct appointment or other transactions by other means should the Power Diary Website be unavailable.

4.3.
Power Diary may impose limits or restrictions on the use you may make of the Power Diary Website. Power Diary may withdraw the Power Diary Website at any time and without notice to you.

 

5. Power Diary Product Information and Acquisition of Products and Services

5.1.
The Power Diary Website contains both information of a general nature about Power Diary’s products and services, and also enables you to purchase and pay for use of the online service (the “Products”).

5.2.
Where the Power Diary Website enables you to purchase the Products online:

we may enter into a binding contract for the provision of the Products through a process in which Power Diary makes an electronic offer via the Power Diary Website and you electronically communicate your acceptance of that offer via the Power Diary Website;

2. Power Diary may act on and process all completed electronic instructions, messages, requests or communications issued or transmitted to Power Diary via the Power Diary Website (each an ‘Electronic Instruction’) without further confirmation from or reference to you; and

3. Power Diary may treat an Electronic Instruction as authentic and is under no obligation to investigate the authenticity or authority of persons issuing or transmitting such Electronic Instruction, or to verify the accuracy and completeness of such Electronic Instruction.

5.3.
You must be the credit card holder for any Products which you attempt to acquire via the Power Diary Website.

5.4.
Creating a binding contract with Power Diary via the Power Diary Website is a two-step
process:

The first step is to create or compile a schedule containing the Products you wish to acquire. Upon completion or selection by you of all required Products, the Power Diary Website will provide you with a quote and guide for the Products selected.

2. If you wish to acquire the Products selected then, upon completion by you of all required details, you must accept the quote and a binding agreement will be created, with a corresponding Power Diary username/password.

5.5.
When entering into a contract via the Power Diary Website, you will be taken to
have communicated your acceptance to an offer from Power Diary only when:

the Electronic Instruction containing the acceptance from you enters and is recorded in the relevant Power Diary database;

2. a record is created and stored in the relevant Power Diary database; and

3. a Power Diary username/password is generated by the Power Diary system.

5.6.
The parties will not be bound by the terms of a contract created via the Power Diary Website until the Electronic Instruction containing the acceptance from you to Power Diary’s offer has been received by Power Diary in the manner specified in this clause.

5.7.
You acknowledge that the transmission of your acceptance through an Electronic Instruction may not be received by Power Diary in accordance with this clause for reasons beyond either parties’ reasonable control including, but not limited to, mechanical, software, computer, telecommunications or electronic failure. You further acknowledge that, to the extent permitted by law, Power Diary is not liable to you or your clients in any way for any loss or damage at all and however caused, arising directly or indirectly in connection with the use of Power Diary in any way.

5.8.
Power Diary may issue a paper confirmation of the Products acquired by you. The existence of a binding contract is not conditional on Power Diary issuing, or you receiving, a paper confirmation of the transaction.

5.9.1

Power Diary may at its discretion refused to accept a new Trial Account, close any Trial Account, or refuse to provide service to a former client or any other user. The reasons for this include, but are not limited to circumstances where a client has currently or in the past attempted to circumvent Power Diary security measures, has misused their account, have used or attempted to use their account for unlawful purposes or for any other reason.

5.9.2

In the circumstances that you use Power Diary for more than two weeks beyond the initial 14 day free trial period, and this use reflects ordinary use (as opposed to minimal use for the purposes of evaluation) then Power Diary may at it’s discretion deem the account to be “Converted” and normal charges be applied to the account. This clause shall not apply in the circumstance that you have obtained an extension of your Free Trial from Power Diary.

 

6. Payments

6.1.

All payments for any Products acquired via the Power Diary Website must be made
in full by clear funds before the signup will be accepted, processed and acted on by Power Diary.

6.2.

Unless provided for otherwise, all payments referred to in 6.1 above are to be made by credit card issued in your name (Visa or MasterCard). You must therefore provide Power Diary with all required credit card details. Power Diary may securely store your credit card number for security and verification purposes, or as part of your profile if you request Power Diary to do so.

6.3

Unless otherwise arranged, payments related to the use of Power Diary are to be paid automatically using your nominated credit card which is to be entered into Power Diary auto-payment system. All invoices are due on the day they are issued unless other terms have been agreed upon in writing by Power Diary. Additional charges may be applied for any accounts not processed automatically using the auto-payment system, unless the payment failure was due to an error caused by Power Diary. Invoices one week or more overdue may result in additional charges being applied and notices being placed on your Power Diary account to remind users that payment is overdue. Accounts that remain unpaid for an extended period may also be subject to access restrictions.

7. Prices and Invoice Errors

Power Diary endeavours
to ensure that all prices listed on the Power Diary Website are accurate and up-to-date. Power Diary reserves the right to adjust any fees, charges or prices as necessary, even if the Products acquired have been paid for in full, to reflect such cost increases passed onto Power Diary.

2. Power Diary reserves the
right to correct any errors in fees, charges, rates or prices quoted or billed, even if the Products acquired have been paid for in full.

 

8. Cancellation Charges and Alterations

8.1.
Power Diary reserves the right to charge you a fee for each alteration or variation to a Product requested. Power Diary will inform you in advance if a charge will apply for any variations you request.

 

9. Refunds for Unused Services

Power Diary will not issue you with a refund for any pre-paid service other Products which are not used or utilised for any reason, including for reasons beyond your control such as illness, strikes, natural or manmade disasters or acts of God.

 

10. Warranties

Whilst every effort has been made to ensure that information is free from error, Power Diary does not warrant the accuracy, adequacy or completeness of Material on this Website. All information is subject to change without notice. Power Diary does not guarantee that the Power Diary Website or any third party websites will be free from viruses, or that access to the Power Diary Website will be uninterrupted. All terms implied by law, except those which cannot be lawfully excluded, are excluded.

 

11. Limitation of Liability

11.1.
Subject to any responsibilities implied by law and which cannot be excluded, Power Diary, and its directors, employees, agents and contractors, are not liable to you or your clients for any losses, damages, liabilities, claims and expenses (including but not limited to legal costs and defence or settlement costs) whatsoever, whether direct, indirect or consequential, arising out of or referable to the services provided through the Power Diary Website, any Material on this Website, any third party material, or from access to the Power Diary Website by you, howsoever caused, whether in contract, tort including negligence, statute or otherwise.

11.2.
The liability of Power Diary for breach of a condition or warranty implied by law, and which cannot be excluded, is limited, to the extent possible and at Power Diary’s option, to the supply of the goods or services again, the repair of the goods, or the payment of the cost of having the goods or services supplied again or repaired.

11.3.
Power Diary does not accept any liability for a confirmed appointment that is not available at arrival time due to clerical or administrative errors on the part of you or your staff.

 

12. Indemnity

You indemnify and hold harmless Power Diary in respect of all liability incurred by Power Diary for any loss, damage, cost or expense, howsoever caused, suffered or incurred by Power Diary as a result of your breach of these Website Terms of Use, or your use of the Power Diary Website or any Material on this Website.

 

13. Copyright and Trademarks

13.1.
Copyright in the Material on this Website is owned or licensed by Power Diary.

13.2.
Except where necessary for and incidental to viewing the Material on this Website via your web browser, or as permitted under the Copyright Act 1968 (Cth) or other applicable laws, no Material on this Website may be copied, reproduced, stored in an electronic or other retrieval system, adapted, uploaded to a third party location, framed, performed in public or transmitted in any form by any process whatsoever without the specific written consent of Power Diary.

13.3.
Third party trademarks are trademarks of the respective third parties.

 

14. Use of the Power Diary Website

You must not:

use any robot, spider, other automatic device or manual process to monitor, copy or extract any web pages on the Power Diary Website, or any of the content contained within, without Power Diary’s prior written permission;

2. use any device, software or routine to interfere or attempt to interfere with the proper working of the Power Diary Website or any transaction or process being conducted on or through it;

3. take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Power Diary Website; or

4. reverse engineer, reverse assemble or otherwise attempt to discover source code or other arithmetical formula in respect of the software underlying the infrastructure and processes associated with the Power Diary Website.

 

15. Termination

These Terms of Use and your access to the Power Diary Website may be terminated at
any time by Power Diary without notice to you. All restrictions, indemnities and licences granted by you, and all disclaimers and limitations of liability by Power Diary, will survive termination. However, upon termination, you will no longer be authorised to access the Power Diary Website.

 

16. Acceptance and changes to Terms of Use

16.1.
You acknowledge and accept that your use of the Power Diary Website indicates your acceptance of these Terms of Use and the Privacy Policy.

16.2.
These are the current Terms of Use. They replace any prior terms of use for the Power Diary Website published on the Power Diary Website to date.

16.3.
Power Diary may at any time vary the Terms of Use by publishing the varied Terms of Use on the Power Diary Website. Power Diary is under no obligation to specifically notify you of any variation to these Terms of Use. You accept that by publishing the varied Terms of Use on the Power Diary Website, that Power Diary has provided you with sufficient notice of the variation. By your use of the Power Diary Website after any variation, you are taken to have accepted and assented to the new Terms of Use.

 

17. General

17.1.
All prices listed on the Power Diary Website are in Australian dollars, unless
otherwise indicated.

17.2.
This agreement, the Power Diary Website, and the acquisition of products and services via the Power Diary Website, are governed by the laws of Victoria, Australia.

17.3.
You irrevocably submit to the exclusive jurisdiction of the courts of Victoria, Australia , and courts of appeal from them, for determining any dispute concerning this agreement, the Power Diary Website, or the acquisition of products and services via the Power Diary Website.

17.4.
You irrevocably waive any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

17.5
Should any clause or part thereof of these Terms of Use be found to be void, unenforceable or invalid, then it is severed from this agreement, leaving the remainder in full force and effect, provided that the severance has not altered the basic nature of this agreement.

 

18. One Year Guarantee – Fair Play

18.1

The one year Guarantee period commences from the date the Free Trial was created. Requests for refunds under the Guarantee must be made within 364 days following the commencement of the Free Trial.

18.2 

The Guarantee allows a Power Diary Account Holder to request a refund for Monthly Plan fees and charges associated with outgoing automatic SMS appointment reminders sent to clients, however it does not apply to any other SMS used within the system (such as marketing messages).

18.3

The Guarantee can be claimed in circumstances where Power Diary is not able to meet the business requirements of the Account Holder. It can not be claimed due to closure of business by the Power Diary Account Holder.

18.4

Power Diary strives to offer affordable rates by automating functions such as invoicing and payments. When a payment is rejected (i.e. due to insufficient funds or an expired card) this increases our costs as we need to manually review the account and follow up for payment. We know this can happen occasionally, however if any auto payment during the one year Guarantee period is rejected and the invoice subsequently remains outstanding for more than 7 days, the Power Diary Account will be ineligible from claiming a refund under the Guarantee

18.5 

In some circumstances the one year Guarantee may not be offered to government, university or corporate accounts that require comprehensive setup assistance by the Power Diary Support Team. This typically applies to organisations that have 100 or more individual accounts linked through a Master Account system. You will be advised in advance if your account is excluded from the Guarantee.

TERMS-OF-USE SPECIFIC TO THE GDPR

To the extent that Power Diary acts as a “Processor” to you as a “Controller”, in relation to your Data originating from the EEA, the following terms apply and form part of your agreement (“Agreement”) with us regarding the use of Power Diary. (For definition of these terms under the GDPR see https:www.powerdiary.com/www.eugdpr.org/)

 

Compliance with your instructions

Power Diary may only process Personal Data in connection with its performance of Services pursuant to the Agreement, or as otherwise instructed by you or required by applicable law. If we receive an instruction by you that in our view may be illegal or contradict the GDPR we will inform you in a timely manner.

The subject-matter, duration, nature and purpose of the Processing, types of Personal Data and categories of individuals will be the same as for the relevant Services to which the Processing relates. Power Diary may aggregate or anonymize your Data for the purpose of product or service improvements, data science and reporting.

 

Security

Power Diary has implemented, and continues to maintain commercially reasonable technical and organizational measures for the Power Diary Services that are designed to protect Personal Data against accidental or unlawful destruction, loss, alteration, disclosure or access. Power Diary will notify you of a data security incident per the requirements of the GDPR.

 

If you are audited

Upon your request, up to once a year, Power Diary will provide to you a copy of a self-certification confirming that Power Diary complies with the material requirements set out in these terms. Such self-certification will be Power Diary’s Confidential Information.

 

Receiving assistance from us

Power Diary will provide you reasonable assistance to allow you to demonstrate your compliance with obligations pursuant to this Agreement in respect of notifying Personal Data Breaches to a Supervisory Authority and individuals and conducting Data Protection Impact Assessments.

 

If we receive an individual request

Power Diary will notify you of requests received directly from individuals in relation to the processing of their Personal Data, unless prohibited from doing so under applicable law. Power Diary may, but is not required to, acknowledge receipt of such request and ask additional questions to determine the identity and nature of the request, or may refer such request and individual to you directly, and provide you with reasonable assistance in meeting the request in a timely manner.

You are solely responsible for providing any necessary notices to, and obtaining any necessary consents from, individuals with respect to the Processing of Personal Data pursuant to this Agreement.

 

Sub-Processors we might use

you agree that Power Diary may use Sub-Processors to assist Power Diary in Processing Personal Data for the performance of the Services, provided that:

  • Power Diary imposes no less stringent duties on such Sub-Processors regarding security and confidentiality of Personal Data as those set out in this Agreement.
  • Power Diary remains responsible to you for the performance of the relevant Services by the Sub-Processor.
  • Power Diary maintains a list of such Sub-Processors, and provides you with reasonable notice of any addition of Sub-Processors. In order to receive such notice, you may be required to sign up to a notification procedure. You accept to sign up to such procedure if so requested and that your failure to do so may result in missing the deadline to object to new Sub-Processors. You may within five (5) business days of receiving a notice, object to the involvement of such new Sub-Processor in the delivery of the relevant Services through providing notice (via email to support@powerdiary.com) of objective justifiable grounds related to the ability of such Sub-Processor to protect the Personal Data or comply with data protection requirements applicable to Sub-Processor. In the event that the objection is not unreasonable, the Parties will work together in good faith to find a solution to address such objection within five (5) business days, including but not limited to reviewing additional documentation supporting the Sub-Processors’ compliance or trying to make the Services available without the involvement of such Sub-Processor.

 

Return and Deletion of Personal Data

Upon termination or expiration of the Services, Power Diary will make available to you Personal Data maintained by Power Diary for a duration of three (3) months to allow you to retrieve where reasonably technically feasible your Personal Data in a commonly used format set out by Power Diary. After such period, Power Diary may destroy or otherwise render inaccessible, at our discretion, such Personal Data from the production environment of the Services, except as may be required by law. Actions set out in this section are at your sole cost.

 

Changes

We may make changes to this Agreement from time to time as necessary to reflect changes in our business or legal and regulatory requirements. Changes we make will become effective when we publish a modified version of the Agreement on our websites. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any material changes, you must stop using the Services, and you can terminate your account by emailing support@powerdiary.com

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