TERMS & CONDITIONS
Version: 1.1
Commencement Date: May 6th, 2016
This is a legally binding agreement between the Customer (herein referred to as you or your) and Expert 365 Pty Ltd (‘herein referred to as our, us or we’). The Terms & Conditions is presented prior to the registration and purchase of any Services owned and/or operated by Expert 365 Pty Ltd.
Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to the Services, including all related intellectual property rights subsisting therein. We grant no rights to You hereunder other than as expressly set forth herein.
0. OVERVIEW
Please read these terms and conditions carefully before registering and signing the Proposal for the purchase of Services provided by Expert 365 Pty Ltd, Brisbane, Australia with ABN 608 094 248. By registering and signing the Proposal for the purchase of such Services, you the Customer agree to be legally bound by:
- These Terms and Conditions,
- The Privacy Policy,
- The Acceptable Use Policy,
- The Service Level Agreement and
- Any Applicable Warranties.
These may be modified from time to time without any prior written or verbal notice provided to you, however the original, signed and acknowledge terms and conditions supplied to you at the time of registration and purchase of Services still apply.
If you do not wish to be bound by these terms and conditions, service level agreement, privacy policy and acceptable use policy then you may not purchase our Services.
1. DEFINITIONS
In this Agreement, the following words shall have the following meanings:
“Acceptable Use Policy” Any Expert 365 rules, conditions or defined expectations, in whatever form recorded or set, that affect the Customer access to or use of the Services, and made available by Expert 365 from time to time to the Customer;
“Customer” Also known as “Client”, is a person(s) or business entity(ies) who registers and purchases the Services owned and/or operated by Expert 365
“Confidential Information” Any and all information in whatsoever form relating to Expert 365 or the Customer, or the business, prospective business, finances, technical processes, computer software (both source code and object code), Intellectual Property Rights or finances of Expert 365 or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession by virtue of its entry into this Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
“Expert 365” means Expert 365 Pty Ltd;
“Fee” The total cost of Expert 365’s Services for the Term invoiced to the Customer.
“Intellectual Property Rights” All copyrights, patents, utility models, trade marks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
“Privacy Policy” A privacy policy is a statement or a legal document (in privacy law) that discloses some or all of the ways a party gathers, uses, discloses, and manages a Customer or Client’s data. It fulfils a legal requirement to protect a Customer or Client’s privacy.
“Proposal” The proposal is a document provided in solicitation to a Customer’s expressed interest in the registration, purchasing and procurement of Services owned and/or operated by Expert 365; it describes all the Service components to be procured and necessary actions required to deliver the Service to the Customer, outlined in a Scope of Work (SOW).
“Services” The hardware and software services provided to the Customer by Expert 365 as set out in the Proposal sent to the Client, and after which the Fee has been paid for as outlined in the invoice, including any computer software programmes and, if appropriate, Updates thereto.
“Service Level Agreement” A service level agreement (SLA) is a contract between a service provider (either internal or external) and the end user (the Customer) that defines the level of service expected from the service provider. SLAs are output-based in that their purpose is specifically to define what the Customer will receive.
“Subscription” A subscription is an on-going and periodic Fee paid by the Customer to Expert 365, in order for the Customer to have continued access and support to the Services owned and/or operated by Expert 365 for which the Client has paid for. A Subscription and its accompanying Fee is required once the Term has finished in order for the Customer to be able to still access and get support for the Services.
“Term” The duration for which Expert 365 provides its Services to a Customer who has signed the Proposal and paid the Fee outlined in the invoice sent to the Customer. If the Customer does not continue with the Services of Expert 365 after the expiry of the Term, support for Services terminates in accordance with the provisions of this Agreement.
“Updates” means any new or updated applications services or tools (including any computer software programmes) made available by Expert 365 as part of the Services.
2. SUPPLY OF SERVICES & TERM
2.1 Expert 365 is entitled to refuse any order placed by a Customer. If an order is accepted, Expert 365 will confirm acceptance via email or phone contact and a Proposal will be created for the Customer. Upon signing the Proposal and the Fee outlined in the invoice is paid, the Customer engages Expert 365 and Expert 365 agrees to provide the Services in accordance with the terms of this Agreement.
2.2 Expert 365 agrees to provide the Services for the agreed Term outlined in the Proposal or sooner termination in accordance with the terms of this Agreement.
2.3 Expert 365 warrants that by performing the Services it will not knowingly infringe the rights of any third party (including but not limited to Intellectual Property Rights) in any jurisdiction or be in breach of any obligations it may have to a third party.
2.4 The Term of this Agreement is subject to Expert 365 receiving a signed Proposal from you before the expiry date set out therein; where this Agreement starts on the Commencement Date and continues for the Term set forth in the Proposal.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on May 6th, 2016. It is effective between You and Us as of the date of Your acceptance of this Agreement.
3. LICENSES
3.1 Subject to the Customer’s payment of the Fees (where applicable), the Customer is granted a non-exclusive and non-transferable license to use the Services (including any associated hardware, software, Intellectual Property Rights and Confidential Information) during the Term. Such license does not permit the Customer to make such copies of software or other information as are required for the Customer to receive the Services. Where open source software is used as part of the Services, such software use by the Customer will be subject to the terms of the open source licenses.
3.2 All Intellectual Property Rights and title to the Services (save to the extent incorporating any Customer or third party owned item) shall remain with Expert 365 and/or its licensors and no interest or ownership the Services, the Intellectual Property Rights or otherwise is conveyed to the Customer under this Agreement. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services.
3.3 Disassembly, decompilation or reverse engineering and other source code derivation of the hardware or software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Services interoperable with other software (and upon written request by the Customer identifying relevant details of the Services(s) with which interoperability is sought and the nature of the information needed), Expert 365 will provide access to relevant source code or information pending its own review and that of any its partners who own or are stakeholders to the Intellectual Property in review. Expert 365 has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
3.4 Unless otherwise specified in this Agreement, the Services are provided and may be used solely by the Customer as part of the Customer’s business. The Customer may not
3.4.1. Lease, loan, resell or otherwise distribute the Services save as permitted in writing by Expert 365;
3.4.2. Use the Services to provide ancillary services related to the Services; or
3.4.3. Except as permitted in this Agreement, permit access to or use of the Services by or on behalf of any third party.
3.5 The Customer warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement.
3.6 For more information pertaining to the above, refer to our Acceptable Use Policy.
4. FEES, INVOICING AND PAYMENT
4.1 In consideration of the provision of the Services by Expert 365, the Customer shall pay Expert 365 the Fees. The Fee is the price in force at the date and time of ordering. All Fees are inclusive of GST.
4.2 Expert 365 shall issue invoices to the Customer upon signature and acceptance of the Proposal.
4.3 All invoices shall be rendered in Australian Dollars and 50% of the Fee is payable immediately in full by bank transfer before any components are procured or work is carried out to deliver the Services. The remaining 50% of the Fees is payable by bank transfer within 14 days. The Customer is responsible for paying all bank charges.
4.4 Expert 365 may suspend a Customers account if any payment is outstanding for 14 days or more. If a Customer fails to pay any outstanding Fees within 30 days of the due date, Expert 365 may hold and lock the Customer’s Services accounts and all Customer data.
4.5 The Customer is not entitled to any refund of Fees for partial use of the Services, termination or suspension of the Services or failure of Expert 365 to comply with the Service Level Agreement.
5. WARRANTIES
5.1 Expert 365 warrants to the Customer that it has the right to license the Services and that the Services will operate to provide the facilities and functions implemented by Expert 365. The foregoing warranties shall not
5.1.1. Cover deficiencies or damages relating to any third party components not furnished by Expert 365; or
5.1.2. Any third party provided connectivity necessary for the provision or use of the Services.
In the event of a breach of the warranties under this clause 5, Expert 365 shall have no liability or obligations to to reimburse the Customer the Fees paid for the Services which are affected.
5.2 For more information regarding any applicable warranties for each Service provided by Expert 365 to you, the Customer, refer to the Warranty provided with the relevant Proposal.
5.3 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free. This clause shall survive the termination of this Agreement.
5.4 For more information pertaining to the clause above, refer to our Service Level Agreement.
5.5 The Customer acknowledges that Services may not be used for high-risk applications where precise locations or features on maps are essential to the Customer, for example use of the Services by the emergency services.
5.6 The Customer acknowledges that Services may not be used as part of performance testing or stress testing without the explicit written permission of Expert 365. Customer takes reasonable measures to prevent overloading of the Service.
6. LIABILITY
6.1 Expert 365 does not exclude or limit its liability to the Customer for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct of Expert 365 in connection with the provision of the Services.
6.2 In no event shall Expert 365 be liable to the Customer whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss. “Consequential Loss” shall for the purposes of this clause mean
6.2.1. Pure economic loss;
6.2.2. Losses incurred by any client of the Customer or other third party;
6.2.3. Loss of profits (whether categorised as direct or indirect loss);
6.2.4. Losses arising from business interruption;
6.2.5. Loss of business revenue, goodwill or anticipated savings;
6.2.6. Losses whether or not occurring in the normal course of business, wasted management or staff time and;
6.2.7. Loss or corruption of hardware, software and data.
6.3 Subject to clauses 6.1 and 6.2, the total liability of Expert 365 (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed one hundred (100) per cent of the total Fees (excluding any GST, duty, sales or similar taxes) paid or payable by the Customer to Expert 365 during the preceding twelve (12) month period or, if the duration of the Agreement has been less than twelve (12) months, such shorter period, as applicable.
6.4 In no event shall the Customer raise any claim under this Agreement more than one (1) year after
6.4.1. The discovery of the circumstances giving rise to such claim; or
6.4.2. The effective date of the termination of this Agreement.
This clause shall survive the termination of this Agreement.
6.5 The Customer acknowledges and agrees that in entering into this Agreement, the Customer had recourse to its own skill and judgement and has not relied on any representations made by Expert 365, any employees or agents of Expert 365.
7. INTELLECTUAL PROPERTY
7.1 Expert 365, at its own expense, shall
7.1.1. Defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis of infringement of any Intellectual Property Rights by the Services (excluding any claim or suit deriving from any Customer provided item); and
7.1.2. Pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that:
7.1.2.1. The Customer notifies Expert 365 promptly of each such claim or suit;
7.1.2.2. Expert 365 is given sole control of the defence and/or settlement; and the
7.1.2.3. Customer fully co-operates and provides all reasonable assistance to Expert 365 in the defence or settlement.
7.2 If all or any part of the Services becomes, or in the opinion of Expert 365 may become, the subject of a claim or suit of infringement, Expert 365 at its own expense and sole discretion may:
7.2.1. Procure for the Customer the right to continue to use the Services or the affected part thereof; or
7.2.2. Replace the Services or affected part with other suitable non-infringing service(s); or
7.2.3. Modify the Services or affected part to make the same non-infringing.
7.3 Expert 365 shall have no obligations under this clause 7 to the extent that a claim is based on:
7.3.1. The combination, operation or use of the Services with other services or software not provided by Expert 365, if such infringement would have been avoided in the absence of such combination, operation or use; or
7.3.2. Use of the Services in any manner inconsistent with this Agreement; or
7.3.3. The negligence or wilful misconduct of the Customer.
7.4 The Customer shall indemnify and hold Expert 365 and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from
7.4.1. Any claimed infringement or violation by the Customer of any Intellectual Property Rights with respect to the Customer’s use of the Services outside the scope of this Agreement;
7.4.2. Any access to or use of the Services by a third party, and
7.4.3. Use by Expert 365 of any Customer provided item.
8. INDEMNITY
8.1 Subject to clause 7, each party (“the first party”) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (“the second party”) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the second party by any person arising out of or as a consequence of an unlawful or negligent act or omission of the first party, its officers, servants or agents in any way connected with this Agreement whether arising from any failure by the first party to comply with the terms of this Agreement or otherwise.
8.2 The indemnity contained in clause 8.1 above extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.
9. TERMINATION
9.1 Expert 365 may immediately terminate this Agreement or the provision of any Services provided pursuant to this Agreement if the Customer has used or permitted the use of the Services otherwise than in accordance with this Agreement.
9.2 The Customer shall be entitled to terminate this Agreement for convenience at any time by unsubscribing. No fees paid or payable prior to termination shall be refunded.
9.3 Expert 365 shall be entitled to terminate this Agreement at any time without notice if:
9.3.1. The Customer ceases or threatens to cease to carry on business; or
9.3.2. The Customer is unable to pay its debts or enters into compulsory or voluntary liquidation;
9.3.3. The Customer compounds with or convenes a meeting of its creditors or has a receiver, manager or similar official appointed in respect of its assets; or
9.3.4. The Customer has an administrator appointed or documents are filed with the court for the appointment of an administrator or notice is given of an intention to appoint an administrator by such party or its directors or by a qualifying floating charge holder (as defined in the Insolvency Act 1986, paragraph 14 schedule B1); or
9.3.5. Any similar event occurs under the law of any other jurisdiction in respect of the Customer.
9.4 Expert 365 shall be entitled to terminate this Agreement on written notice to the Customer if:
9.4.1. The Customer commits a material breach of any term of this Agreement; or
9.4.2. Expert 365 decides to cease providing the Services generally.
9.5 For a period of up to 7 days after termination of this Agreement for whatever reason, the Customer shall be permitted to make a backup of its Customer data.
9.6 Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other. Clauses 4, 7, 8, 9, 10, 11 and 12 shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
10. CONFIDENTIAL INFORMATION
10.1 Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
10.2 Either party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
10.3 Both parties agree to return all documents and other materials containing Confidential Information immediately upon completion of the Services.
10.4 The obligations of confidentiality under this Agreement do not extend to information that:
10.4.1. Was rightfully in the possession of the receiving party before the negotiations leading to this Agreement;
10.4.2. Is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or
10.4.3. Is required by law to be disclosed.
11. DATA PROTECTION AND CUSTOMER DATA
11.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
11.2 To the extent that personal data is processed using the Services, the parties acknowledge that Expert 365 is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations. Expert 365 agrees that it will only process personal data on behalf of, and in the name of, the Customer.
11.3 Expert 365 shall ensure that the personal data, which it supplies or discloses to Expert 365, has been obtained fairly and lawfully and that it will obtain all necessary approvals from persons whose data is being processed and registrations with authorities to permit Expert 365 to transfer personal data to third parties pursuant to its obligations under this Agreement.
11.4 Expert 365 confirms that it
11.4.1. Merely acts as a data processor;
11.4.2. Will only process data in accordance with the instructions of the data controller; and
11.4.3. Has taken, as well as its subcontractors, licensors and hosts, sufficient technical and organisational measures to safeguard personal data.
11.5 If a third party alleges infringement of its data protection rights, Expert 365 shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
11.6 Any information that the Customer provides to Expert 365 including Customer data uploaded to Expert 365 servers, information provided during registration or information provided when ordering Services (such as the Customer’s email address) will be used by Expert 365 in accordance with the terms of this Agreement and Expert 365’s privacy policy. The Customer acknowledges that if it uses public or demo accounts that all data it posts using the Services will be publicly visible to all Expert 365 users. The Customer grants Expert 365 the right to modify, copy or save such data as part of processing it for use with the Services. The Customer retains all rights of ownership in the Customer data.
11.7 Customers are responsible for keeping copies of their data used and stored within the Services on Expert 365’s servers. Customers are responsible for removing all Customer data prior to the termination or expiry of this Agreement. Notwithstanding the aforesaid, the company reserves the right to remove all Customer data six months after the expiry or termination of this Agreement without giving the Customer any prior notice of such deletion.
12. THIRD PARTIES
12.1 Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the provision of the Services is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any third party.
13. FORCE MAJEURE
13.1 Except with respect to obligations to pay the Fees or other charges, “Force Majeure” means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where Expert 365 ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
13.2 If a party is wholly or partially precluded from complying with its obligations under this Agreement by Force Majeure, then that party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure.
13.3 As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.
14. GOVERNING LAW AND JURISDICTION
14.1 This Agreement is governed by the laws of The Commonwealth of Australia. The Commonwealth Courts of Australia shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.
15. MISCELLANEOUS
15.1 Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
15.2 The Customer is not permitted to assign any of the rights, benefits or obligations arising from this Agreement.
15.3 All notices shall be given in writing (which includes email). All post and fax notices shall be deemed to have been duly given if sent by registered post or acknowledged fax to the address of Expert 365 stated at the beginning of this Agreement and if sent by email to info@tgk.b1e.myftpupload.com. In relation to the Customer, all post and fax notices shall be deemed to have been duly given if sent by registered post or acknowledged fax to the address provided for invoices to be issued or an email address used by the Customer.
15.4 This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
CONTACT US
If you have any questions about this Terms & Conditions, please contact us at info@tgk.b1e.myftpupload.com or through one of our main offices.
Brisbane
2/31 Ipswich Road,
Woolloongabba, Queensland, Australia
+61 7 3040 1041
Sydney
Level 40, 100 Miller Street,
North Sydney, New South Wales, Australia
+61 2 8091 8096