StarkyApp SaaS Agreement

Operated by Starky Digital Pty Ltd (ABN 29 687 389 073)

This SaaS Agreement is between Starky Digital Pty Ltd ABN 29 687 389 073, trading as “StarkyApp” (“Starky”, “we”, “us” or “our”). References to “you” and “your” mean the Customer.

These Terms and Conditions (Terms) govern your access to and use of the Starky web-based platform and related services (the Platform).

By creating an account, commencing a free trial, clicking “I agree”, or using the Platform, you agree to be bound by these Terms.

If you accept these Terms on behalf of a company or other legal entity, you represent that you have authority to bind that entity.

Please note: Your Subscription automatically renews at the end of each Subscription Period unless you cancel in accordance with clause 16. Subscription Fees will continue to be charged to your nominated payment method unless and until you cancel. You may cancel at any time via your account settings, and cancellation takes effect at the end of the then-current Subscription Period.

1. overview of the platform

(a) Starky provides a web-based AI-assisted marketing optimisation platform that:

(i) assists users to structure, generate and optimise paid advertising campaigns;

(ii) generates advertising copy, campaign structures, keyword suggestions and budget allocations using AI models;

(iii) integrates with third-party advertising platforms (such as Google Ads, Meta, LinkedIn, TikTok and others) via APIs; and

(iv) enables users to manage campaigns through a central interface.

(b) The Platform is a decision-support and optimisation tool only. Starky does not act as an advertising agency, legal advisor or financial advisor.

(c) The Solution may, where enabled by you, transmit campaign data and optimisation adjustments to connected Third Party Services via API integrations. You may disable integrations at any time.

2. ACCEPTING THESE TERMS

2.1. acceptance

(a) By:

(i) clicking “I agree” or a similar acceptance mechanism;

(ii) creating an account;

(iii) commencing a free trial; or

(iv) paying Subscription Fees,

you agree to be bound by these Terms, which form a legally binding agreement between you and Starky.

(b) If you accept these Terms on behalf of a company or other legal entity, you represent and warrant that you have authority to bind that entity.

2.2. Amendments

(a) We may update these Terms from time to time.

(b) If we make material changes that adversely affect your rights or obligations, we will provide reasonable notice (for example, by email or in-app notification).

(c) Continued use of the Platform after the effective date of updated Terms constitutes acceptance of those changes.

(d) If you do not agree to the updated Terms, you may cancel your Subscription before the changes take effect.

3. ELIGIBILITY

(a) By accepting these Terms, you represent and warrant that:

(i) you have the legal capacity and authority to enter into a binding contract with us; and

(ii) you are authorised to use the payment you provided when purchasing a Subscription.

(b) The Platform is not intended for unsupervised use by any person under the age of 18 years old or any person who has previously been suspended or prohibited from using the Platform. By using the Platform, you represent and warrant that you are either:

(i) over the age of 18 years and accessing the Platform for commercial use; or

(ii) accessing the Platform on behalf of someone under the age of 18 years old and consent to that person’s use of the Platform.

(c) Please do not access the Platform if you are under the age of 18 years old and do not have your parent or guardian’s consent, if you are under 16 or if you have previously been suspended or prohibited from using the Platform.

(d) If you are signing up not as an individual but on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “your” means the Represented Entity and you are binding the Represented Entity to this agreement. If you are accepting this agreement and using our Solution on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.

4. DURATION OF YOUR SUBSCRIPTION

4.1. Commencement

Your Subscription and these Terms commence on the date you agree to be bound by these Terms (as set out at the beginning of these Terms) and continue for the Subscription Period and any Renewal Periods applicable, unless terminated earlier in accordance with clause 16.

4.2. Subscription Period and Renewal

Unless otherwise stated on the Website or in your Subscription Tier, the Subscription Period is one (1) month and renews automatically for successive one (1) month periods (each a Renewal Period) at the end of each Subscription Period.

4.3. Cancellation (Auto-Renewal Opt-Out)

(a) You may cancel your Subscription at any time via your account settings in the Platform (or, if that functionality is not available, by written notice to us using the contact method on our Website). Unless required by law, cancellation will take effect at the end of the then-current Subscription Period, and you will continue to have access to the Solution until then.

(b) We may cancel or terminate your Subscription for convenience by giving you at least 10 Business Days’ notice (or longer if required by law). If we cancel for convenience, we will refund any prepaid Subscription Fees for the unused portion of the Subscription Period, unless we are entitled to withhold amounts due to your breach.

4.4. Renewal Notice and Changes at Renewal

We will provide you with reasonable prior notice of renewal and any applicable changes to Subscription Fees or these Terms (including via email or in-app notice). If any change is material and adverse, you may cancel your Subscription before the change takes effect.

5. THE SOLUTION

5.1. SCOPE OF YOUR SUBSCRIPTION AND THE SOLUTION

(a) We will provide you, to the extent described in your Subscription Tier, access to the Starky web application and related services, including the Documentation (together, the Solution).

(b) Your Subscription includes the benefits and limitations of your Subscription Tier as set out on our Website (including any applicable usage limits, Credits, integrations, features and the permitted number of Authorised Users), or as otherwise communicated to you when you subscribe (and as amended from time to time in accordance with these Terms).

(c) You acknowledge that the Solution is designed to assist with the structuring, generation and optimisation of paid advertising campaigns. The Solution may provide campaign strategy suggestions, recommended allocations, keywords, ad copy and related content using AI-assisted features. You remain solely responsible for reviewing, approving and publishing any advertising content and for ensuring compliance with applicable Laws and advertising platform policies.

5.2. ACCOUNTS

(a) (Accounts) To use the Solution, you may be required to sign-up, register and receive an account through the Website or Platform (an Account).

(b) (Provide Information) As part of registration and ongoing use, you may be required to provide personal and business information such as your email address, name, secure password, billing details, and other information reasonably required by us to provide the Solution.

(c) (Warranty) You warrant that any information you give to us in the course of completing the Account registration process is accurate, honest, correct and up-to-date.

(d) (Acceptance) Once you complete the registration process, we may accept you as a registered user and provide you with an Account. We may refuse registration or suspend creation of an Account where reasonably necessary to manage legal, security, fraud or misuse risks.

(e) (Authorised Users) Where your Subscription Tier permits multiple Authorised Users, you may invite employees and contractors to access the Solution as Authorised Users. You are responsible for all use of the Solution under your Account and must ensure Authorised Users comply with these Terms and any end user terms in Schedule 1 (EULA).

5.3. DISCLAIMER

You acknowledge and agree that:

(a) any information or outputs generated as part of the Solution (including AI-assisted suggestions, recommendations, campaign structures, keywords and ad copy) are general in nature, may not be suitable for your circumstances, and do not constitute financial, legal, marketing, compliance or other professional advice;

(b) you are responsible for complying with all applicable Laws relevant to your business and campaigns, including consumer, advertising, privacy and platform compliance requirements; and

(c) we do not guarantee that advertisements will be approved by third-party advertising platforms, or that any campaign will achieve particular performance outcomes.

5.4. PLATFORM

(a) (Licence) While your Subscription is maintained and you comply with these Terms, we grant you a non-exclusive, non-transferable, revocable licence to access and use the Platform and Documentation for your internal business purposes, for the Number of Solution Users included in your Subscription Tier.

(b) (Enhancements) We may release updates, upgrades, improvements, modified or new versions of the Platform (Enhancements). Enhancements may result in downtime or delays from time to time. To the maximum extent permitted by law, no credits or refunds are payable solely due to downtime associated with Enhancements.

(c) (Changes to Features) We may change, add, discontinue or modify features of the Solution on notice to you. Where a change materially reduces the core functionality of your paid Subscription Tier during a Subscription Period, you may cancel your Subscription before the change takes effect and we will refund any prepaid Subscription Fees for the unused portion of that Subscription Period (unless otherwise required by law).

(d) (Third Party Integrations) Some features require connection to Third Party Services (including advertising platform accounts). We do not control Third Party Services and are not responsible for their availability, changes, or enforcement actions (including account suspensions or ad disapprovals).

5.5. SUPPORT SERVICES

We will provide general support where reasonably necessary to resolve technical issues with the Platform (Support Services). Unless otherwise agreed in writing:

(a) we will take reasonable steps to provide Support Services where necessary (you must first endeavour to resolve any issues with the Platform internally and we will not assist with issues that are beyond our reasonable control);

(b) we will use reasonable endeavours to respond to requests for Support Services and you acknowledge that we may not be available 24/7 or respond within a particular time frame;

(c) you are responsible for all internal administration and managing access, including storing back-up passwords and assisting your Authorised Users to access and use the Platform; and

(d) you will not have any claim for delay to your access to the Platform due to any failure or delay in Support Services, except to the extent required by law.

6. DATA HOSTING

We will store Customer Data you upload to the Platform using a third party hosting service selected by us (Hosting Services), subject to the following terms:

(a) (hosting location) We intend to host Customer Data primarily in Australia, however we may use cloud-based servers and service providers located in Australia and/or other jurisdictions where reasonably necessary for provision of the Solution.

(b) (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Services will be free from errors or defects or that Customer Data will be accessible or available at all times.

(c) (security) We will use our best efforts to ensure that Customer Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to Customer Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

(d) (backups & disaster recovery) In the event that Customer Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects. You are responsible for maintaining appropriate copies of critical information outside the Platform.

(e) (post-cancellation retention) Following cancellation, we may retain Customer Data for 14 days to allow reactivation, after which Customer Data may be deleted (subject to legal requirements).

7. CLIENT OBLIGATIONS

7.1. cooperation

You agree to:

(a) provide us with all documentation, information and assistance reasonably required by us to provide the Solution; and

(b) provide access to Third Party Services used by you (including authorisations and tokens) as reasonably required for integrations, noting that we do not require and you should not provide your personal passwords where platform authorisation methods are available.

7.2. your warranties

(a) You warrant that information and materials you provide for use with the Solution are complete, accurate and up-to-date.

(b) To the extent permitted by law, you release us from liability for loss arising from reliance on Customer Data that is incomplete, inaccurate or out-of-date, where that loss was caused or contributed to by your breach of clause 7.2(a).

7.3. YOUR OBLIGATIONS

(a) You must, and must ensure that all Authorised Users, comply with these Terms at all times.
To the maximum extent permitted by law, we will not be liable for damage, loss or expense arising from your or your Authorised Users’ breach of these Terms.

(b) You indemnify us against loss, damage, costs and expenses we suffer arising from third party claims and regulatory actions to the extent caused by:

(i) your breach of these Terms;

(ii) your advertising content or campaigns (including misleading or unlawful ads);

(iii) your infringement of third party rights; or

(iv) your unauthorised connection to or use of Third Party Services.

(c) You must not, and must not encourage or permit any Authorised User or third party to, without our prior written approval:

(i) upload highly sensitive personal information (e.g. health data), payment card data, or commercial secrets into the Platform other than where the Platform expressly permits such inputs;

(ii) upload unlawful, infringing, defamatory, or discriminatory material;

(iii) use the Platform for unlawful or fraudulent purposes;

(iv) upload material owned by a third party unless you have permission;

(v) copy, adapt, modify, tamper with or create derivative works from the Platform or Documentation;

(v) remove proprietary notices;

(vi) reverse engineer, decompile or attempt to derive source code or underlying models;

(vii) circumvent security measures;

(viii) use automated scraping or automated usage beyond ordinary use, except where expressly permitted by the Documentation;

(ix) share Account credentials outside Authorised Users or permit access exceeding the Number of Solution Users; or

(x) integrate the Platform with third-party software or APIs other than through integrations supported or documented by us.

(d) If you become aware of unauthorised use, security incidents, or misuse, you must notify us promptly.

(e) We may suspend or terminate Accounts or access where reasonably necessary to address suspected breaches, misuse, security or legal risk (including where we reasonably believe you or an Authorised User has breached clause 7.3).

8. FEES AND PAYMENT

8.1. TRIAL PERIOD

We may from time to time offer a free trial period of the Solution (Free Trial Period). No payments will be due during any Free Trial Period and your first payment will be due immediately after the expiry of the Free Trial Period unless you cancel before the trial ends.

8.2. SUBSCRIPTION FEES

(a) You must pay subscription fees to us in the amounts specified on the Website or Platform for your Subscription Tier (Subscription Fees).

(b) Subscription Fees are payable in advance and, except as required by law or expressly set out in these Terms, are non-refundable for change of mind.

(c) Subscription Fees are charged at the start of each Billing Cycle for the following Subscription Period.

(d) Where applicable, additional usage-based fees apply for Top-Up Credits or other add-ons as displayed on the Website or Platform.

8.3. AUTOMATIC RECURRING BILLING

(a) Your Subscription renews automatically unless cancelled in accordance with clause 16.

(b) While your Subscription is maintained, Subscription Fees will be debited at the beginning of each Billing Cycle from your nominated payment method.

(c) By signing up, you acknowledge the recurring payment feature and accept responsibility for charges incurred prior to cancellation taking effect.

8.4. CHANGES TO SUBSCRIPTION FEES

We may, from time to time, change our Subscription Fees and provide you with 10 Business Days’ notice prior to the changes. During this time, you have the opportunity to cancel your Subscription with us. If you do not cancel your Subscription before the new Subscription Fees take effect, the updated fees will apply from the next Billing Cycle.

8.5. LATE PAYMENTS

We may suspend access if you fail to pay Subscription Fees when due, following reasonable notice.

8.6. GST

Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.

8.7. CARD SURCHARGES

We reserve the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

8.8. ONLINE PAYMENT PARTNER

(a) We may use third-party payment partners (currently Stripe or as otherwise notified) to collect Subscription Fees.

(b) Payment processing will be subject to the payment partner’s terms and privacy policy.

(c) To the maximum extent permitted by law, we are not liable for failures of the payment partner’s systems, except where caused by our breach of these Terms.

(d) If you do not accept the payment partner’s terms, we cannot provide the Subscription and you may cancel under clause 16.

8.9. FOUNDING TESTER PROGRAMME

Where we invite you to participate in the StarkyApp Founding Tester Programme and you accept its Beta Testing Terms, this Agreement applies to your use of the Platform subject to those Beta Testing Terms.

Despite clauses 4, 8.1 and 8.3, participation in the programme does not create a paid subscription or authorise automatic subscription charges. No Subscription Fees are payable for the free access provided under the Beta Testing Terms. At the end of that access, you must expressly choose a paid plan and accept its pricing and billing arrangements before any paid subscription begins.

Any discount earned through the programme remains governed by the Beta Testing Terms, including its eligible plan, amount, duration and redemption requirements. Starting a paid subscription does not extinguish that earned discount.

If there is an inconsistency, the Beta Testing Terms prevail to the extent of the programme’s free access, participation requirements, transition to paid access and promotional discount. This Agreement otherwise continues to apply.

9. credits and usage

9.1. Included Credits

(a) Your Subscription Tier includes a specified number of AI usage credits per Billing Cycle (Included Credits), as set out on the Website or in your Subscription details.

(b) Different Credit types may apply to different features (e.g., text generation, image generation). The applicable Credit type and rate will be displayed in the Platform.

(c) Included Credits:

(i) reset at the start of each Billing Cycle;

(ii) do not roll over into subsequent Billing Cycles; and

(iii) expire if unused at the end of the applicable Billing Cycle.

9.2. Credit Consumption

(a) Certain features of the Platform, including AI-generated campaign strategy, ad copy, keyword generation, regeneration of outputs, image generation and other AI-powered features, consume Credits.

(b) Regenerating, re-running or modifying AI outputs will consume additional Credits.

(c) The number of Credits consumed per action may vary depending on the feature used and will be displayed within the Platform where reasonably practicable.

9.3. Top-Up Credits

(a) You may purchase additional Credits (Top-Up Credits) at the rates displayed on the Platform.

(b) Top-Up Credits:

(i) are applied to your account wallet;

(ii) do not expire while your Subscription remains active; and

(iii) are consumed before Included Credits only where specified in the Platform.

(c) Top-Up Credits are non-refundable except as required by law or expressly stated in these Terms.

9.4. Nature of Credits

(a) Credits are a usage-based feature of the Platform.

(b) Credits:

(i) do not constitute stored monetary value;

(ii) are not transferable;

(iii) have no cash value; and

(iv) are not redeemable for cash except where required by law.

9.5. Changes to Credit Allocations

We may vary Credit allocations, consumption rates or pricing of Top-Up Credits on reasonable notice. Where such change materially reduces your Included Credits during a paid Subscription Period, you may cancel before the change takes effect.

10. INTELLECTUAL PROPERTY AND DATA

10.1. PLATFORM CONTENT INTELLECTUAL PROPERTY

(a) (Our ownership) We retain all right, title and interest in and to:

(i) the Platform;

(ii) the Documentation;

(iii) all software, algorithms, AI prompt structures, workflows, models, interfaces and design elements;

(iv) all text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and other materials made available through the Platform

(together, Platform Content).

Nothing in these Terms transfers ownership of any Intellectual Property Rights in the Platform Content to you.

(b) (Licence to you) Subject to your compliance with these Terms and payment of applicable Fees, we grant you a non-exclusive, non-transferable, revocable licence to access and use the Platform Content during your Subscription Period:

(i) solely for your internal business purposes; and

(ii) for the Number of Solution Users included in your Subscription Tier.

You must not reproduce, distribute, adapt, modify, reverse engineer, publish or otherwise exploit Platform Content except as expressly permitted by these Terms or by law.

10.2. customer DATA

(a) Ownership of Customer Data

(i) As between the parties, you retain ownership of all Customer Data you upload to or generate through the Platform.

(ii) We do not claim ownership of your advertising content, campaign data, or business information.

(b) Licence to Starky

(i) You grant us and our Personnel a non-exclusive, royalty-free, worldwide licence to host, store, reproduce, process, transmit and use Customer Data:

i. to provide, operate and maintain the Solution;

ii. to provide support and troubleshooting;

iii. to improve functionality, reliability and performance of the Platform;

iv. to develop product features; and

v. to comply with legal or regulatory obligations.

(ii) We will not sell your Customer Data.

(iii) If we wish to use Customer Data to train or improve general-purpose AI models outside the scope of providing the Solution, we will only do so where permitted by law and consistent with our Privacy Policy.

(c) Removal of Customer Data

(i) We may remove or disable access to Customer Data where reasonably necessary to:

i. comply with law;

ii. address security risks;

iii. prevent unlawful or harmful activity; or

iv. enforce these Terms.

(ii) Where reasonably practicable, we will notify you before removing Customer Data.

(d) Your Responsibilities

(i) You are responsible for ensuring that:

v. you have the necessary rights and permissions to upload and use Customer Data;

vi. Customer Data does not infringe third-party rights;

vii. Customer Data complies with applicable Laws and platform policies.

(ii) You indemnify us against third-party claims arising from your breach of this clause.

(e) Aggregated and Anonymised Data

We may collect and use aggregated, de-identified and anonymised data derived from Customer Data and usage of the Platform for analytics, benchmarking, security monitoring and product improvement purposes, provided that such data does not identify you or any individual.

11. THIRD PARTY PLATFORM & terms

11.1. THIRD PARTY services

(a) The Solution integrates with and may rely upon third-party services, including:

(i) advertising platforms (e.g., Google Ads, Meta, LinkedIn, TikTok);

(ii) AI model providers;

(iii) payment processors (e.g., Stripe);

(iv) cloud hosting providers.

(b) These services are provided by independent third parties and are subject to their own terms and policies (Third Party Terms).

(c) You are responsible for establishing and maintaining your own advertising platform accounts (including Google Ads, Meta, LinkedIn and others). Starky does not hold advertising budgets, manage advertising accounts on your behalf, or act as an agent for ad spend payments.

11.2. application of THIRD PARTY terms

(a) Where your use of the Solution requires interaction with Third Party Services, you agree to comply with applicable Third Party Terms.

(b) We will make relevant Third Party Terms available where reasonably practicable.

(c) Where the Solution utilises third-party AI model providers (including OpenAI or similar providers), your use of AI-powered features may be subject to those providers’ terms and policies. By using such features, you agree to comply with those applicable third-party terms.

11.3. Third Party Enforcement and Availability

(a) You acknowledge that:

(i) third-party platforms may reject advertisements, suspend accounts, limit API access, or enforce their policies;

(ii) AI model providers may modify, suspend or discontinue their services;

(iii) third-party systems may experience outages or performance limitations.

(b) We are not responsible for actions or failures of Third Party Services, except to the extent caused by our breach of these Terms.

11.4. Third Party Integrations and Modifications

(a) Integration Risk

Data transfers and integrations between the Platform and Third Party Services may be subject to technical limitations, delays or errors. We do not guarantee that integrations will be uninterrupted or error-free.

(b) Unauthorised Modifications

You must not modify, alter or integrate the Platform with third-party software or APIs except through integrations supported or documented by us.

(c) User-Initiated Changes

If you:

(i) add third-party code;

(ii) modify integration configurations;

(iii) use unsupported APIs; or

(iv) otherwise alter the Platform environment

(User Changes),

then:

(v) you acknowledge that User Changes may affect performance or functionality;

(vi) we are not liable for failures caused by User Changes;

(vii) you indemnify us against losses arising from User Changes; and

(viii) we may require removal of User Changes or suspend access where reasonably necessary.

12. CONFIDENTIALITY

(a) Except as contemplated by these Terms, a party must not, and must not permit any of its Personnel, use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.

(b) Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information.

(c) The notifying party will investigate each potential, actual or suspected breach of confidentiality and assist the other party in connection with any related investigation.

13. PRIVACY

(a) We collect personal information about you in the course of providing you with the Solution, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy which can be found at https://starkyapp.com/privacy-policy/.

(b) Our Privacy Policy contains more information about how we use, disclose and store your personal information and details how you can access and correct your personal information.

(c) By agreeing to these Terms, you agree to our handling of personal information in accordance with our Privacy Policy.

14. LIABILITY

14.1. WARRANTIES AND LIMITATIONS

(a) (Warranties) We warrant that:

(i) during the Subscription Period, the Platform will perform substantially in accordance with the Documentation;

(ii) during the Subscription Period, the Solution will be provided as described to you in, and subject to, these Terms; and

(iii) to our knowledge, the use of the Platform in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.

(b) (Errors) We will correct any errors, bugs or defects in the Platform which arise during your Subscription and which are notified to us by you, unless the errors, bugs or defects:

(i) result from the interaction of the Platform with any other solution or computer hardware, Platform or services not approved in writing by us;

(ii) result from any misuse of the Platform; or

(iii) result from the use of the Platform by you other than in accordance with these Terms or the Documentation.

(c) (AI and Advertising Limitations) You acknowledge that:

(i) AI-generated outputs may be inaccurate or incomplete;

(ii) advertising outcomes are influenced by third-party platform algorithms;

(iii) approval, rejection or suspension decisions are made by third-party platforms.

We do not guarantee campaign performance, platform approvals or business results.

(d) (Service Limitations) While we will use our best endeavours to ensure the Solution is working for its intended purpose, you acknowledge and agree that from time to time, you may encounter the following issues:

(i) the Solution may have errors or defects;

(ii) the Solution may not be accessible at times;

(iii) messages sent through the Solution may not be delivered promptly, or delivered at all;

(iv) information you receive or supply through the Solution may not be secure or confidential; or

(v) any information provided through the Solution may not be accurate or true.

(e) (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in these Terms are excluded.

(f) (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

14.2. limitation of liability

To the maximum extent permitted by law:

(a) Each party’s total aggregate liability arising in connection with these Terms or the Solution is limited to the total Fees paid by you in the six (6) months preceding the event giving rise to the claim.

(b) The limitation in clause 14.2(a) does not apply to:

(i) fraud or wilful misconduct;

(ii) death or personal injury caused by negligence;

(iii) breach of intellectual property rights;

(iv) your indemnities under these Terms; or

(v) liability which cannot be excluded under the Australian Consumer Law.

14.3. CONSEQUENTIAL LOSS

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with these Terms or any goods or services provided by us, except:

(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or

(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

15. UPGRADE AND DOWNGRADES

15.1. upgrades

(a) You may upgrade your Subscription Tier or Number of Solution Users at any time.

(b) Upgrades:

(i) take effect immediately;

(ii) may result in prorated charges for the remainder of the current Subscription Period; and

(iii) will apply at the updated Subscription Fees from the date of upgrade.

15.2. downgrades

(a) Downgrades:

(i) take effect at the start of the next Subscription Period;

(ii) do not generally result in prorated refunds for the current period; and

(iii) may reduce features, usage limits or available Credits.

(b) You acknowledge that downgrading may:

(i) reduce access to features;

(ii) limit integrations;

(iii) reduce available Credits;

(iv) affect stored campaign configurations.

(v) We are not liable for loss arising from a downgrade that you initiate.

16. CANCELLATION and termination

16.1. Cancellation by you

You may cancel your Subscription at any time via the Platform (or, if that functionality is not available, by written notice using the contact method on our Website). Unless required by law, cancellation takes effect at the end of the then-current Subscription Period, and you will continue to have access to the Solution until that time.

16.2. termination of suspension by starky

We may suspend, cancel or terminate your Subscription, your Account and/or access to the Solution immediately (or on notice, at our discretion) if:

(a) you fail to pay Subscription Fees when due and do not remedy that failure within a reasonable time after notice;

(b) you or any Authorised User materially breaches these Terms and, where the breach is capable of remedy, you do not remedy it within 10 Business Days after notice;

(c) we reasonably suspect fraud, unlawful conduct, security compromise, misuse of the Solution, or activity that may cause harm to us, other users, third parties, or the integrity of the Platform;

(d) we are required to do so to comply with law, a court order, or a direction from a regulator; or

(e) you repeatedly breach these Terms.

16.3. termination if we stop providing the platform

(a) We may terminate these Terms and your Subscription on reasonable notice if we discontinue the Platform or cease to make the Solution generally available (including where we decide to shut down the Platform, materially replace it, or withdraw it from the market).

(b) If we terminate under this clause 16.3, we will, to the extent permitted by law and except where termination is due to your breach:

(i) provide you with reasonable advance notice; and

(ii) refund any prepaid Subscription Fees for the unused portion of the then-current Subscription Period (calculated on a pro-rata basis), unless we are prevented from doing so by law or a payment provider restriction.

16.4. termination by us for convenience

We may terminate your Subscription for convenience on at least 10 Business Days’ notice. If we do so, we will refund any prepaid Subscription Fees for the unused portion of the then-current Subscription Period, except where we are entitled to suspend or terminate under clause 16.2.

16.5. Grace Period; Data Deletion

After cancellation takes effect, we will retain Customer Data for 14 days to allow reactivation. After that, we may delete Customer Data, subject to legal requirements.

16.6. Termination for breach

Either party may terminate these Terms by notice if the other party materially breaches and fails to remedy within 10 Business Days of notice (or sooner where required to prevent harm, comply with law, or address security risk).

16.7. Effect of termination

Upon cancellation or termination of your Subscription and/or these Terms (as applicable):

(a) Access and accounts: your right to access and use the Solution ends on the effective date of cancellation/termination, and we may disable or delete your Account and any Authorised User access.

(b) Fees and charges:

(i) you remain responsible for all Subscription Fees and other charges incurred up to the effective date;

(ii) unless required by law or expressly stated in these Terms (including clauses 16.3 and 16.4), fees already paid are non-refundable; and

(iii) where a refund is payable under these Terms, it will be calculated pro-rata for the unused portion of the then-current Subscription Period and processed using the original payment method where practicable.

(c) Credits:

(i) any Included Credits reset each Billing Cycle and will cease to be available after the effective date;

(ii) Top-Up Credits remaining in your wallet will be forfeited on termination, except to the extent a refund is required by law or we expressly agree otherwise in writing; and

(iii) you acknowledge that Credits are a usage-based feature and not a banked monetary value (except to the extent required by law).

(d) Customer Data export: where the Platform offers export functionality, you should export any Customer Data you wish to retain before the effective date. We may (but are not obliged to) provide reasonable assistance to export Customer Data on request at our then-current rates.

(e) Data retention and deletion:

(i) following cancellation taking effect (end of Subscription Period), we will retain Customer Data for 14 days to allow you to reactivate your Subscription (Data Grace Period);

(ii) after the Data Grace Period, we may permanently delete Customer Data and are not liable for any loss arising from deletion; and

(iii) we may retain limited records as required to comply with law, resolve disputes, enforce our agreements, or meet regulatory and audit requirements.

(f) Third party accounts: any integrations with Third Party Services (including advertising platforms) may be disconnected and we are not responsible for ongoing access to, or preservation of, data held by Third Party Services.

(g) Survival: clauses which by their nature should survive cancellation/termination survive, including clauses relating to: intellectual property, confidentiality, privacy (to the extent applicable), liability limitations, dispute resolution, and any accrued rights or payment obligations.

(h) No waiver of rights: cancellation or termination does not affect rights or liabilities that accrued prior to the effective date.

17. DISPUTE RESOLUTION

(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.

(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

18. FORCE MAJEURE

(a) We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event. 

(b) If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:

(i) reasonable details of the Force Majeure Event; and

(ii) so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement.

(c) Subject to compliance with clause 18(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.

(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:

(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;

(ii) strikes or other industrial action outside of the control of us;

(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or

(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.

19. NOTICES

(a) A notice under these Terms must be in writing and sent by email.

(b) Notices to you will be sent to the primary email address associated with your Account (as updated by you from time to time).

(c) Notices to us must be sent to info@starkyapp.com (or any updated address published on our Website).

(d) An email notice is taken to be received 24 hours after it is sent, unless the sender receives a delivery failure notice.

(e) We may also provide notices via in-app notification within the Platform, which will be taken to be given when displayed in your Account.

20. GENERAL

20.1. GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in New South Wales, Australia Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

20.2. WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

20.3. SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

20.4. JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

20.5. ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

20.6. ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

Where applicable, the Beta Testing Terms accepted by you form part of this agreement. The order of precedence in clause 8.9 applies.

20.7. INTERPRETATION

(a) (singular and plural) words in the singular includes the plural (and vice versa);

(b) (currency) a reference to $; or “dollar” is to Australian currency;

(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;

(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;

(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(i) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

DEFINITIONS

SCHEDULE 1 – END USER LICENCE AGREEMENT (EULA)

This End User Licence Agreement (EULA) forms part of the SaaS Agreement between Starky Digital Pty Ltd (“Starky”, “we”, “us”) and the Customer.

By accessing or using the Solution as an Authorised User, you agree to be bound by this EULA.

If you do not agree, you must not access or use the Solution.

1. APPLICABILITY AND ACCEPTANCE

(a) This EULA applies to each Authorised User granted access to the Solution under a Customer’s Subscription.

(b) You will be deemed to have accepted this EULA when you first access or use the Solution.

(c) This EULA commences when you first access the Solution and continues until:

(i) your access is terminated; or

(ii) the Customer’s Subscription ends,

whichever occurs first.

(d) The SaaS Agreement between Starky and the Customer (Head Agreement) governs the overall provision of the Solution. In the event of any inconsistency, the Head Agreement prevails.

2. GRANT OF LICENCE

(a) Subject to compliance with this EULA and the Head Agreement, Starky grants you a limited, revocable, non-exclusive, non-transferable licence to access and use the Solution:

(i) solely on behalf of the Customer;

(ii) for the Customer’s internal business purposes; and

(iii) within the scope of the Customer’s Subscription Tier.

(b) You must only use the Solution in accordance with:

(i) this EULA;

(ii) the Head Agreement;

(iii) any Documentation; and

(iv) any reasonable usage policies notified to you.

3. RESTRICTIONS ON USE

Except as expressly permitted, you must not:

(a) use the Solution for any unlawful, misleading or fraudulent purpose;

(b) upload sensitive personal information, trade secrets or confidential information unless authorised by the Customer and permitted under the Head Agreement;

(c) upload unlawful, defamatory, discriminatory, harmful, infringing or offensive material;

(d) upload material that infringes third-party intellectual property rights;

(e) copy, reproduce or redistribute the Solution;

(f) modify, adapt or tamper with the Solution;

(g) remove proprietary notices;

(h) create derivative works from the Solution;

(i) sell, sub-license or transfer access to the Solution;

(j) reverse engineer, decompile or attempt to derive source code or underlying models;

(k) attempt to circumvent technological protection measures or Credit limits;

(l) use automated scripts or bots to exploit the Solution;

(m) share your login credentials with any other person;

(n) allow any person who is not an authorised user of the Customer to access the Solution;

(o) use the Solution to develop competing software;

(p) engage in conduct that may harm Starky’s reputation or the integrity of the Platform.

You must immediately notify Starky or the Customer of any unauthorised access or suspected breach.

4. AI OUTPUTS AND ADVERTISING RESPONSIBILITY

(a) The Solution uses artificial intelligence to generate advertising strategies, content and optimisation suggestions.

(b) You acknowledge and agree that:

(i) AI-generated outputs may be inaccurate, incomplete or unsuitable;

(ii) AI outputs require independent human review;

(iii) Starky does not guarantee advertising approvals, performance or business outcomes.

(c) You are responsible for ensuring that:

(i) all advertising content complies with applicable Laws;

(ii) all advertising content complies with third-party platform policies;

(iii) you have the necessary rights and permissions to use all advertising materials.

5. CREDITS

(a) Certain features of the Solution consume Credits allocated under the Customer’s Subscription.

(b) You must not:

(i) attempt to bypass Credit consumption mechanisms;

(ii) manipulate usage tracking;

(iii) exploit technical errors to obtain unauthorised Credits.

(c) Starky may suspend your access where misuse of Credits is detected.

6. THIRD PARTY SERVICES

(a) The Solution integrates with third-party services including advertising platforms, AI providers and hosting services.

(b) You acknowledge that:

(i) third-party platforms may reject advertisements or suspend accounts;

(ii) third-party services may change functionality or availability;

(iii) Starky is not responsible for third-party enforcement decisions.

7. LIMITATIONS OF THE SOLUTION

(a) To the maximum extent permitted by law, Starky does not guarantee that:the Solution will be error-free;

(i) the Solution will be available at all times;

(ii) information generated through the Solution will be accurate or complete.

(b) You are responsible for taking reasonable precautions to protect your systems from security risks when accessing the Solution.

8. INTELLECTUAL PROPERTY

(a) All intellectual property in the Solution remains the property of Starky or its licensors.

(b) Nothing in this EULA transfers ownership of any intellectual property to you.

(c) Customer Data remains subject to the Head Agreement.

9. SUSPENSION AND TERMINATION

9.1. Automatic Termination

This EULA automatically terminates if the Customer’s Subscription ends.

9.2. Termination by Starky

Starky may suspend or terminate your access immediately if:

(a) you breach this EULA;

(b) you pose security, legal or reputational risk;

(c) required by law;

(d) reasonably suspected misuse occurs.

9.3. Effect of Termination

(a) Upon termination:

(i) must immediately cease using the Solution;

(ii) your access credentials may be disabled;

(iii) you must not attempt to re-access the Solution.

(b) Termination does not affect accrued rights.

10. DISCLAIMERS AND LIABILITY

(a) To the maximum extent permitted by law:

(i) Starky is not liable for indirect or consequential loss;

(ii) Starky is not liable for advertising outcomes, platform rejections or AI inaccuracies;

(iii) Starky’s liability to you is subject to the liability limitations in the Head Agreement.

(b) Nothing in this EULA excludes rights under the Australian Consumer Law.

(c) You indemnify Starky for losses arising from:

(i) your breach of this EULA;

(ii) your unlawful or infringing use of the Solution;

(iii) advertising content you upload or publish.

11. CONFIDENTIALITY

You must keep confidential any non-public information obtained through your use of the Solution and not disclose it except as necessary to perform your role for the Customer.

12. PRIVACY

Personal information will be handled in accordance with Starky’s Privacy Policy.

13. GENERAL

13.1. Governing Law

This EULA is governed by the laws of New South Wales, Australia.

13.2. Assignment

You may not assign or transfer your rights under this EULA.

13.3. Entire Agreement

This EULA forms part of the Head Agreement and does not create separate payment or subscription rights.

13.4. Updates

Starky may update this EULA from time to time. Continued use of the Solution after notification constitutes acceptance.

Last updated: 15.10.2026