Version Date: 12 November 2021
Thanks for using Accurassi’s Cloud Products!
- Your subscription
1.1 Access to Cloud Products: during the Subscription Term and any further term, in consideration for payment of the Subscription Fees, you are granted a non-exclusive, non-transferable licence to access and use the Cloud Products for commercial purposes only, in accordance with these Terms.
1.2 Support: during the Subscription Term and any further term, we will provide Support for the Cloud Products in accordance with these Terms.
- Customer obligations
2.1 Access conditions: as a condition of accessing and using the Cloud Products, you must:
2.1.1 Ensure that your use of the Cloud Products complies with these Terms and that all usernames and passwords required to access the Cloud Products are kept secure and confidential;
2.1.2 Take all reasonable precautions to ensure the security of access to the Cloud Products and must not allow a third party or any person that is not authorised to access or use the Cloud Products for any purpose; and;
2.1.3 Within ten (10) Business Days of the matter coming to your attention, notify us of any unauthorised use of, or access to, the Cloud Products or your passwords or any other breach of security that you become aware of, in which case you must take all actions that we reasonably require to maintain or enhance the security of our computing systems and networks and your access to and use of the Cloud Products.
2.2 Restrictions on your use of the Cloud Products: except as otherwise expressly permitted in these Terms, you will not:
2.2.1 attempt to undermine the security or integrity of our computing systems or networks or, where the Cloud Products are hosted by a third party, that third party’s computing systems or networks;
2.2.2 not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Cloud Products are hosted;
2.2.3 knowingly transmit, or input into Cloud Products, any files that damage any other person’s computing devices or software, or content that may be considered offensive;
2.2.4 knowingly use the Cloud Products in a manner that breaches any third party right that is enforceable under Australian law (including the use of data or other material protected by Intellectual Property Rights which you do not have the right to use);
2.2.5 reproduce, modify, adapt or create derivative works of the Cloud Products;
2.2.6 rent, lease, distribute, sell, sublicense, transfer or provide access to the Cloud Products to a third party or incorporate any Cloud Products into a product or service you provide to a third party;
2.2.7 modify, copy, adapt, reproduce, reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Cloud Products, except as is necessary to use them for normal operations and to the extent expressly permitted by applicable law (and then only upon advance notice to us);
2.2.8 remove or obscure any proprietary or other notices contained in any Cloud Product;
2.2.9 use the Cloud Products for competitive analysis or to build competitive products;
2.2.10 publicly disseminate information regarding the performance of the Cloud Products;
2.2.11 encourage or assist any third party to do any of the foregoing.
2.3 Clause 2.2 will survive termination of these Terms.
- Availability of the Cloud Products
3.1 Enhancements, updates and new releases: Accurassi may from time to time, in its sole discretion, make enhancements, updates or new releases of the Cloud Products available in order to enhance or improve the functionality or operation of the Cloud Products or comply with legislative requirements. You acknowledge that this may cause some downtime to the Cloud Products, as set out in clause 3.2.
3.2 Downtime: Accurassi will use its best endeavours to maintain the availability, reliability and efficiency of the Cloud Products but does not guarantee 100% availability. Downtime caused directly or indirectly by any of the following shall not be considered a breach of these Terms:
3.2.1 A Force Majeure Event;
3.2.2 a fault or failure of the internet or any public telecommunications network;
3.2.3 a fault or failure of your computer systems or networks;
3.2.4 any breach by you of these Terms; or
3.2.5 scheduled or unscheduled maintenance.
3.3 Assistance: where required, you must assist us with investigating and ascertaining the cause of any faults that you are experiencing with the Cloud Products and provide us with all necessary information relevant to the fault (including but not limited to what the you or your employee, contractor, officer or agent has done in relation to the fault).
- Subscription fees and payment terms
4.1 Payment of Subscription Fees: you agree to pay the Subscription Fees for your use of the Cloud Products.
4.2 Monthly and annual subscriptions: you will be invoiced for your use of the Cloud Products on either a monthly or annual basis, as set out in the Key Terms.
4.3 Payment terms: all subscriptions for Cloud Products are to be paid in advance. You will receive a monthly or annual invoice for your subscription to our Cloud Products depending on your chosen subscription. All payments are due within 14 day days from the invoice date. You agree that we may bill your credit card using the details previously provided by you (or using another payment method provided by you and available to us) for renewals, overages to subscription limits or scopes of use, expenses, and unpaid fees, as applicable.
4.4 Purchase order: If a purchase order number is required in order for an invoice to be paid, then you must provide this purchase order number to Accurassi’s Accounts Team by email to firstname.lastname@example.org.
- Term and termination
5.1 Term: these Terms are effective from the Effective Date and continue until terminated in accordance with this clause 5.
5.2 Renewals: unless your subscription to the Cloud Products is terminated prior to expiration of the then current Subscription Term, your subscription will automatically renew for another term equal to the Subscription Term. For the avoidance of doubt, any renewal of your subscription is subject to the version of these Terms in effect at the time of the renewal.
5.3 Termination for convenience: You may cancel your subscription to the Cloud Products and terminate these Terms at any time for any reason by giving 10 Business Days’ written notice to us to our Address. Accurassi may terminate these Terms for its convenience at any time with 10 Business Days’ prior written notice to you to your Address.
5.4 Termination for breach: either party may terminate these Terms immediately on written notice if
5.4.1 the other party is in material breach of these Terms and fails to cure that breach within 30 days after receipt of written notice of the breach; or
5.4.2 the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
5.5 Effect of termination: cancelling your subscription in accordance with clause 5.3 means that you will not be charged for the next billing cycle, but (a) you will not be entitled to a refund of any pre-paid Subscription Fees and (b) all Subscription Fees owing by you to Accurassi are immediately due as stated in your final invoice. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
- Confidential information
6.1 Each of Accurassi and the Customer (in this clause referred to as a party) will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
6.2 A party will not be in breach of clause 6.1 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
6.3 Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information.
6.4 Despite any other provision of this clause:
6.4.1 This clause does not apply to Accurassi listing your name on our website as our customer, using your company logo on our website (if applicable) or publishing your approved testimonial or quote on our website, marketing materials and social media channels and you give your express consent to Accurassi doing any of these things.
6.4.2 a party may disclose the terms of these Terms (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
6.5 This clause will survive the termination of these Terms.
- Intellectual property rights
7.1 Our and your ownership of, or any right, title and interest in, any Intellectual Property Rights in any item which exists prior to the Effective Date (Pre-Existing Material) will not be altered, transferred or assigned by virtue of these Terms.
7.2 Cloud Products are made available to you on a limited access basis, and no ownership right in the Cloud Products is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”.
7.3 You agree and acknowledge that Accurassi owns or licences:
7.3.1 all Intellectual Property Rights in the Cloud Products; and
7.3.2 any Developed Intellectual Property, and nothing in these Terms shall operate to assign or transfer ownership of or interest in any Intellectual Property Rights from Accurassi or any third party to the Customer.
7.4 From time to time, you may choose to submit comments, questions, ideas, suggestions or other feedback relating to the Cloud Products (Feedback) to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
8.1 Mutual warranties: each party warrants and represents to the other party that it has full legal capacity and power to enter into these Terms.
8.2 Accurassi warranties: Accurassi warrants to you that, in connection with the Cloud Products:
8.2.1 it owns all applicable rights, title and interest in and to all Intellectual Property Rights embodied in or associated with the Cloud Products (including but not limited to any images, photographs, animations, video, audio, music and text incorporated into the Cloud Products and any accompanying published materials) and it has obtained permission for use of any applicable third party Intellectual Property Rights; and
8.2.2 to the best of its knowledge, the Cloud Products do not infringe the Intellectual Property Rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the Cloud Products.
8.3 Customer warranties: the Customer warrants to Accurassi that:
8.3.1 it is responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications services required by it to access and use the Cloud Products;
8.3.2 It will not use the Cloud Products in any way that will contravene any legal or regulatory provision applicable to them.
8.4 Exclusion: Accurassi does not warrant that the Cloud Products will be error-free or will operate without interruption or that, except as set out in these Terms, the Cloud Products will perform in the manner intended by you or that the Cloud Products will meet the requirements of the Customer.
- Liability and indemnity
9.1 Nothing in these Terms will:
9.1.1 limit or exclude any liability for death or personal injury resulting from negligence;
9.1.2 limit or exclude any liability for fraud or fraudulent misrepresentation;
9.1.3 limit any liabilities in any way that is not permitted under applicable law; or
9.1.4 exclude any liabilities that may not be excluded under applicable law.
9.2 The limitations and exclusions of liability set out in this clause 10 and elsewhere in these Terms:
9.2.1 are subject to this clause 9;
9.2.2 govern all liabilities arising under these Terms or relating to the subject matter of these Terms, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement; and
9.2.3 to the maximum extent permitted by law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms.
9.3 Accurassi will have no Liability to you:
9.3.1 (a) for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data; (b) lack of access to or use of or inability to access or use the Cloud Products; (c) any conduct or content of any third party on the Cloud Products; (d) any content obtained from the Cloud Products, nor (e) unauthorised access, use or alteration of your transmissions or content, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
9.3.2 arising from or in connection with any failure of the Cloud Products, breach of these Terms or misuse of the Cloud Products, where caused or contributed to by any Force Majeure Event or any act or omission of the Customer or its personnel (employees, contractors, officers and agents).
9.3.3 for any interruption to use, unavailability or outage, of the Cloud Products caused by any third party service providers used by us to host the Cloud Products.
9.4 Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay Subscription Fees) if the delay or failure is due to a Force Majeure Event.
9.5 Accurassi’s Liability under these Terms in respect of an event or series of related events will be limited to the total amount of Subscription Fees paid by you to us in the previous 12 months.
9.6 Accurassi’s maximum aggregate Liability under these Terms will be limited to the total amount of Subscription Fees paid by you to Accurassi since the Effective Date.
9.7 You agree to indemnify, and hold harmless, Accurassi against all Liability and Claims arising out of or in connection with any and all unauthorised use of the Cloud Products.
9.8 This clause will survive termination of these Terms.
- Dispute Resolution
10.1 Dispute resolution process: if a dispute arises under these Terms, either party may at any time give written notice to the other requesting that a meeting take place to seek to resolve the dispute. Nominated representatives of each party must meet within 7 days of the notice and endeavour to resolve the dispute in good faith. If such meeting does not take place within the required timeframe, or the dispute is not resolved, the matter must be referred to mediation within 7 days and a mediator appointed in accordance with clause 10.2.
10.2 Rules: if the dispute is referred to mediation in accordance with clause 10.1, the parties agree that the mediation will be administered by the Australian Commercial Disputes Centre (ACDC) and will be conducted in accordance with the ACDC Mediation Guidelines, and the terms of those guidelines are incorporated into these Terms. The parties agree that:
10.2.1 If the mediation has not commenced within 30 days, or the dispute remains unresolved 30 days after appointment of the mediator, either party may pursue its rights at law;
10.2.2 During a dispute, each party must continue to perform its obligations under these Terms; and
10.2.3 This clause 10 does not restrict or limit the right of either party to terminate these Terms where these Terms provide such right.
10.3 Costs: each party must bear its own costs in connection with the mediation, and must share the fees and expenses of the mediator (including appointment of the mediator) and mediation process equally.
10.4 Mediation prerequisite to court proceedings: the parties must take the steps set out in this clause 10 before either may commence court proceedings (other than an interlocutory application).
10.5 This clause 10 will survive termination of these Terms.
- Changes to Cloud Products
11.1 You acknowledge that the Cloud Products are subscription-based products, and that in order to provide improved customer experience we may make changes to the Cloud Products. We can discontinue any Cloud Products at the end of your Subscription Term, or any portion or feature of any Cloud Products for any reason at any time without liability to you.
- Modification of these Terms
12.1 We can modify these Terms from time to time, with notice to you in accordance with clause 13.
12.2 Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew. However, in some cases (e.g., to address compliance with applicable laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term.
12.3 If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your subscription to the affected Cloud Product upon notice to us, and we will refund you any Subscription Fees you have pre-paid for use of the affected Cloud Product for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within 10 Business Days of us providing notice of the modifications to you.
13.1 Requirement for writing and signature: A notice, consent, approval request or demand made or required by these Terms must be:
13.1.1 in writing; and
13.1.2 signed by the party giving the notice or that party’s solicitor.
13.2 Serving notices: one party may serve a notice on the other party by:
13.2.1 delivering it by hand;
13.2.2 sending it by registered or pre-paid post to the other party’s Address;
13.2.3 sending it by email to the other party’s Address.
13.3 When effective: a notice will take effect:
13.3.1 if given personally – on the day the notice is given provided the notice or communication is given by 4.00pm on that day or, if given after 4.00pm, on the next Business Day;
13.3.2 if posted – four (4) Business Days after the notice is sent or on the date of registered receipt;
13.3.3 if emailed – at the time of transmission as shown in the email trace log.
14.1 Assignment: you may not assign or transfer these Terms without our prior written consent. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
14.2 Waivers and modifications: It is not a waiver of a breach of these Terms or of a party’s rights under these Terms if that party (a) does not exercise or partly exercises or delays exercising a right, (b) gives a concession to the other party or accepts a late payment, or (c) attempts to mitigate its loss. Subject to Accurassi’s rights under clause 12, these Terms may only be changed by written agreement between the parties.
14.3 Severability: if any provision of these Terms are held to be invalid or unenforceable in any way, the remaining provisions will not be affected and these Terms will be interpreted so as to most nearly give effect to the intentions of the parties as originally signed.
14.4 Entire agreement: subject to Clause 12.1, these Terms shall constitute the entire agreement between the parties in relation to the subject matter of these Terms, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
14.5 Governing law: these Terms will be governed by the laws of New South Wales, Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts in New South Wales.
Address means your or our postal and email address for service of notices as set out in the Key Terms.
Business Day means any weekday other than a public holiday in Sydney, New South Wales.
Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise.
Cloud Products means those products that you are subscribing to under these Terms as set out in the Key Terms.
Confidential Information means information that is by its nature confidential but does not include (a) information already known to the receiving party at the time of disclosure by the other party or (b) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement.
Data means any data and materials inputted by the Customer into the Cloud Products or stored by us or generated by the Cloud Products as a result of the Customer’s use of the Cloud Products.
Developed Intellectual Property means any Intellectual Property Rights arising from any work done by or for Accurassi on behalf of the Customer in connection with the Cloud Products or these Terms, including the development of any portals used by the Customer to access the Cloud Products and any feedback (as that term is defined in clause 7.4) provided by the Customer to Accurassi.
Effective Date means the commencement date of your subscription as set out in the Key Terms.
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
Good Industry Practice means the practices, procedures, methods, standards, skill and care which would reasonably be expected to be used by the industry in which we operate.
Intellectual Property Rights means all present and future rights to, copyright, registered or unregistered designs, patents, trade marks, trade, business, company or domain names, know-how, inventions, processes, trade secrets, circuit layouts, databases or source codes and any similar rights in any part of the world, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Liability means any expense, charge, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.
Product Specific Terms means additional terms that apply to certain Cloud Products as set out in the Key Terms.
Security Measures means all reasonable physical security, logical access security, network security, communications security and personnel security measures that are reasonable for Accurassi and you.
Subscription Fees means those fees payable to Accurassi for use of the Cloud Products subscribed to by the Customer as set out in the Key Terms and payable pursuant to clause 4 of these Terms.
Subscription Term means the term set out in the Key Terms and any renewal of the term in accordance with clause 5.2.
Support means support for the Cloud Products at the support level specified in the Key Terms.