Effective Date: 20 February 2017
BY CLICKING ON THE “ACCEPT” BUTTON, YOU OR THE ENTITY THAT YOU REPRESENT (“YOU”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, A SERVICES AGREEMENT CONSISTING OF THE SERVICE SCOPE, THIS PARAGRAPH, THE SERVICE LEVEL AGREEMENT AND THE FOLLOWING STANDARD TERMS OF SERVICE (THE “AGREEMENT”) FOR THE PROVISION OF SERVICES BY US TO YOU.
IF A SEPARATE WRITTEN AGREEMENT ABOUT THE SERVICES ALREADY EXISTS BETWEEN YOU AND US, THE TERMS OF THAT WRITTEN AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY US) WILL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT YOU ARE BOUND BY THE TERMS OF THAT WRITTEN SERVICES AGREEMENT RATHER THAN THESE TERMS.
IF YOU DO NOT UNCONDITIONALLY AGREE TO THE TERMS SET OUT IN THIS AGREEMENT, AND WE HAVE NO WRITTEN AGREEMENT ALREADY IN PLACE BETWEEN US, CLICK THE “CANCEL” BUTTON AND THE SERVICE PROVISIONING PROCESS WILL NOT CONTINUE. IF YOU CONTINUE WITH SERVICE PROVISIONING, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO DO SO.
STANDARD TERMS OF SERVICE
1.1 In this Agreement, ‘We’, ‘Our’ and ‘Us’ means Instaclustr Pty Limited, ABN 44 159 571 605 or any of its related companies, including Instaclustr Inc.
1.2 This Agreement outlines the terms and conditions that apply to Your use of Our services.
1.3 The services and the initial period We will provide them to You for are identified in the Service Scope.
2. COMMENCEMENT OF THE AGREEMENT
2.1 This Agreement commences on the date We accept Your order for the services.
3. SERVICES AND SUPPORT
3.1 Subject to the terms and conditions of this Agreement, We will provide You with access to the Services through the internet, in accordance with the Service Scope, the Service Level Agreement and other specifications in this Agreement.
3.2 We use due care and skill in providing the services in accordance with this Agreement. There may also be statutory guarantees, conditions or warranties imposed by consumer-protection laws that apply to services We supply, and which cannot be excluded. However, given the nature of IT systems (including Our services; reliance on systems and services that We do not control or own), We cannot promise that Our services will be continuous or fault-free.
3.3 The services (and all features and versions of them) are subject to modification from time to time and/or may be discontinued at Our sole discretion, for any purpose deemed appropriate by Us. We will use reasonable efforts to give You prior written notice of any such modification.
3.4 We will undertake commercially reasonable efforts to provide you with the services. However, We reserve the right to suspend Your access to the services: (i) for scheduled maintenance where we have provided you with notice of the suspension in advance, or (ii) in the event You are in breach of this Agreement, (including, without limitation, failure to pay any amounts due to Us).
3.5 You agree that if, in Our sole discretion, You are using the services in a way which is not legitimate, is not in compliance with this Agreement or any law that We may suspend, disable, limit or terminate the services or deny You access to the service without notice, including, if applicable, taking down any of Your data or content.
4. RESTRICTIONS AND RESPONSIBILITIES
4.1 Access to the services may require You to register, create an account for, and log into the services.
4.2 You will not use the services to store personal information on Our managed infrastructure associated with the services without Our consent. For the avoidance of doubt, personal information is any information or opinion about an identified individual, or an individual who is reasonably identifiable and includes, but is not limited to:
(i) government issued identifiers such as Social Security Numbers;
(ii) bank account details;
(iii) credit card numbers and associated holder details;
(iv) government identity information such as driver’s licenses, birth certificates and
(v) personal health information.
4.3 You will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the services or any software or software applications, documentation or data related to the services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the services or Software; use the services or Software for “benchmarking”, timesharing or service bureau purposes or for any purpose other than Your own use for Your own benefit; or use, distribute or otherwise provide the services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy, intellectual property, consumer and child protection, obscenity or defamation laws). Further, services provided under a free evaluation (as detailed on the Service Scope) may be used for purposes of evaluation for a paid subscription only, and not for any productive use. YOU ACKNOWLEDGE THAT THE SERVICES AND SOFTWARE MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE LICENSE PERIOD AND/OR USE INCONSISTENT WITH THIS AGREEMENT.
4.4 You will cooperate with Us in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as We may reasonably request. You will also implement and maintain the minimum baseline security controls for connection to the services as published on Our website, and as updated from time to time. You will also cooperate with Us in establishing a password or other procedures for verifying that only You or Your designated employees have access to any administrative functions of the services.
4.5 You will keep any passwords or log-in details used in connection with the service secure and You are totally responsible for when and how Your account with Us is used and the actions of any people You give Your password and log-in details to.
4.6 You will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). You may change the individual designated as Primary Contact at any time by providing written notice to Us.
4.7 You acknowledge and agree that the services may operate on or with or using products and/or services operated or provided by third parties (“Third Party Services”). In some cases, we will provide Third Party Services to You as part of the services we provide, in others, You will need to procure the Third Party Services Yourself. In either case:
(i) While we may put contractual measures in place to provide You with Third Party Services, you acknowledge and agree that We are not responsible for the operation of any Third Party Services nor the availability or operation of the services to the extent such availability and operation is dependent upon Third Party Services;
(ii) unless we agree otherwise with You, You are solely responsible for procuring any and all rights necessary for You to access Third Party Services (whether by recommendation from Us or Yourself) and for complying with any applicable terms or conditions associated with accessing such Third Party Services;
(iii) We do not make any representations or warranties with respect to Third Party Services or any third party providers;
(iv) any exchange of data or other interaction between You and a third party provider is solely between You and that third party provider and is governed by the third party’s terms and conditions.
5.1 You or We may disclose information relating to our technology or business as a result of Us providing You with the services (“Confidential Information”).
5.2 We each agree:
(i) not to divulge to any third person any such Confidential Information;
(ii) to give access to such Confidential Information solely to those employees with a need to have access to it for purposes of this Agreement; and
(iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information as we would take with our own confidential information, and no less than reasonable precautions to protect such Confidential Information.
5.3 Neither You or We will be required to comply with the restrictions on Confidential Information where the information:
(i) Is or becomes generally available to the public without any action by, or involvement of, the party who received the information; or
(ii) was possessed or known prior to receipt;
(iii) was rightfully disclosed without restriction by a third party;
(iv) was independently developed without use of any Confidential Information of the other party.
5.4 Nothing in this Agreement will prevent a party from disclosing the Confidential Information pursuant to any judicial or governmental order.
5.5 We conduct our business on the basis that all information You provide to Us is Confidential Information and We will treat it in accordance with the provisions set out above, unless You specifically advise Us otherwise.
5.6 Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
6. INTELLECTUAL PROPERTY AND CONTENT
6.1 Except as expressly provided in this Agreement, all intellectual property rights relating to the service, Software, technology, techniques or trade marks that are used in or provided by Us as part of the services, or in any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any third party relating to the service and/or the Software (“Intellectual Property”) will be owned by Us or will vest in Us on creation or is licensed to Us. You will not copy, distribute, reproduce or use any of the Intellectual Property except as expressly permitted under this Agreement.
6.2 You are solely responsible for Your data and any content You use or store in connection with Your service. You must hold, and continue to hold, all intellectual property rights in Your data and contents (including, without limitation, copyright and trade mark rights), or be licensed to do so. The terms under which You hold or license Your data and content must permit Us to carry out Our obligations to You in providing the service. You grant Us a licence to use and reproduce all Your data and content in order to fulfil Our obligations under this Agreement.
6.3 You will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by You onto or downloaded by You does not contain any computer virus and will not in any way, corrupt the data or systems of any person.
6.4 You are solely responsible for dealing with persons who access Your data and You will not refer complaints or inquiries in relation to such access to Us. We are not responsible to You or any third party for unauthorised access to Your data or the unauthorised use of the services. You are responsible for the use of the services by any employee of Yours, any person You authorise to use the services, any person to whom You have given access to the services, and any person who gains access to Your data or the services as a result of Your failure to use reasonable security precautions, even if such use was not authorised by You.
6.5 Although We have no obligation to monitor the content provided by You or Your use of the services, You agree that We may do so and may remove any such content or prohibit any use of the services We believe may be (or allege to be) in violation of this Agreement.
6.6 You agree that We may collect and generate data with respect to and report on the aggregate response rate and other aggregate measures of the services’ performance, and use and make available such data for Our business purposes.
7. PAYMENT OF FEES
7.1 All charges payable by You to Us for the services will be detailed in the Service Scope (the “Fees”) and will be due and payable within 14 days of receipt of our invoice, or on other terms separately agreed with Us by You. Upon registration of a credit card account, You give Us authorisation to debit your credit card for all Fees. Where you provide us with direct debit details, We will deduct the Fees from Your account monthly in arrears.
7.2 The price of the services We provide You will remain fixed for the period covered by the payment, that is, monthly, quarterly or annually (as set out in the Service Scope). After that time, You will be billed at the rates current at the time the service is renewed.
7.3 The services are provided with capacity limits for the number of nodes, data transfers, backup and data storage. If Your use of the services exceeds the service capacity detailed on the Service Scope or via Our website, You will be invoiced at the end of each calendar month for the excess usage over the service capacity, at the rate set forth on the Service Scope (which is not less than at Our cost plus a 10% service charge), and You agree to pay the additional fees without any right of set-off or deduction.
7.4 All Fees paid are non-refundable. To the extent applicable, You will pay Us for additional services, such as integration fees or other consulting fees.
7.5 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month from the due date of the payment, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable legal fees, collection agency charges or any other reasonable costs.
7.6 Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. You agree to pay such taxes unless You have provided Us with a valid exemption certificate. In the case of any withholding requirements, You will pay any required withholding Yourself and will not reduce the amount paid to Us on account of such withholding.
7.7 Without prejudice to Our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, We reserve the right, at Our discretion, to suspend the provision of services to You until we receive the required payment (including any late payment fees, interest, debt recovery charges and reactivation fees) in full.
7.8 If you elect to pay your fees on a yearly basis, and fail to make payment within 14 days of invoice, you will not be entitled to receive any (otherwise applicable) yearly fee discount where a yearly discount is offered.
7.9 You consent to Us obtaining a report from a credit reporting agency on Your credit worthiness if You choose to pay by credit card.
7.10 If we receive notice of a chargeback, declined or reversed payment from a credit card company in connection with payments made by You for the services, We reserve the right to suspend the provision of services to You until We receive the required payment (including any bank charges We incur, late payment fees, interest, debt recovery charges and reactivation fees) in full.
7.11 Subject to clause 7.13, no refunds will be given for unused portions of payments in advance (including payment of yearly contracts) unless the account has been terminated due to Our breach of these terms and conditions, or We exercise our rights under clause 8.3.
7.12 In the event this agreement constitutes a supply of goods or services to a consumer as defined in the Competition and Consumer Act (Cth), and You cancel your service because We have failed to meet one or more of the consumer guarantees under the Act, We will refund to You any unused portion of Your Fees and any other amount You have prepaid, as well as any Fees where the services provided did not meet the consumer guarantees.
8.1 Subject to earlier termination as provided below, this Agreement is for the period specified in the Service Scope.
8.2 We may suspend or terminate Your account or the services if:
(i) You breach this Agreement and fail to rectify any remediable breach within 7 days of Us notifying You to do so;
(ii) the individual signing the Agreement did not have the legal right or authority to enter into the Agreement on Your behalf;
(iii) You become insolvent;
(iv) You are declared bankrupt;
(v) We are ordered to do so by a court, law or government body or pursuant to an arbitration award;
(vi) there is an attack on Your system or Your system is accessed or manipulated by a third party without Your consent; or
(vii) there is another event for which We reasonably believe that the termination or suspension of the account of service is necessary to protect Our network or Our other customers.
8.3 In addition to any other rights We may have under this Agreement, You agree that We may, without notice to You and without any liability to Us, amend, alter or take down Your data or content if We:
(i) receive an order from a court or other competent body requiring Us to do so;
(ii) are directed to do so by any regulatory body or authority or industry association;
(iii) consider in Our sole discretion that You are breaching this Agreement including without limitation, by infringing third party intellectual property rights, or because Your data or content is defamatory, illegal, obscene or breaches a persons privacy.
8.4 In the event We have to suspend or disconnect the service without notice or deny Your access to the service during any technical failure, modification or maintenance involved in the service Our liability will be limited to that specified in the Service Level Agreement. We will use reasonable endeavours to procure the resumption of the services as soon as reasonably practicable. In these circumstances You will remain liable for all charges due throughout the period of suspension.
8.5 If Your account has been suspended or terminated due to Your breach, reactivation of Your account will be at Our discretion. If We agree to reactivate Your account, We will require payment in full of all outstanding amounts.
8.6 You may terminate Your account or any individual service with Us for any reason at any time by giving Us 30 days notice advising Us that You will do so. Unless You are terminating Your account due to a breach of this Agreement by Us, refunds for monies paid in advance are not provided.
8.7 If We wish to terminate your service for reasons other than a breach of these conditions, We can do so by giving You 30 days written notice. In this circumstance, We will refund any remaining unused credit on your account.
8.8 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
8.9 If Your account is closed for whatever reason You must pay all outstanding charges immediately.
8.10 We are under no obligation to provide You with a copy of Your data or content if We have suspended or terminated Your access to the service for Your breach. If We provide You with a copy of Your data or content in such circumstances, We are entitledto charge a fee for doing so. If We terminate Your account or any service in such circumstances We may also at Our discretion destroy Your data or content. If Your data or content is destroyed it may not be recoverable.
9. YOUR WARRANTIES, LIABILITIES AND UNDERTAKINGS
9.1 You indemnify and hold Us harmless against, and must pay Us for, any loss or damage we suffer relating to:
(i) the provision of the service to You; and
(ii) Your use, or attempted use, of the service.
9.2 You indemnity Us against (and must pay Us for) any costs, including legal costs, relating to Your breach of this Agreement.
9.3 You are not liable to Us for any loss to the extent it is caused by Us (for example through Our breach of this Agreement, or Our negligence).
9.4 At the time of entering into this Agreement You are not relying on any representation made by Us which has not been stated expressly in this Agreement, or on any descriptions or specifications contained in any other document, including any catalogues, web site or publicity material which We have produced.
10. OUR WARRANTIES AND LIABILITIES
10.1 We accept liability for the supply of the services to the extent provided in this Agreement.
10.2 We do not warrant that the services:
(i) provided under this Agreement will be uninterrupted, error free or completely secure;
(ii) will meet Your requirements, other than as expressly set out in this Agreement;
(iii) will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Ours; or
(iv) will produce any particular results, data, sales or other return.
10.3 Subject to clause 10.2:
(i) We exclude all liability for indirect, incidental, special and consequential loss or damage of any kind, loss or corruption of data, loss of use, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement and/or its subject matter;
(ii) the services, any reports, Our Confidential Information and any other thing provided in connection with this Agreement are provided on an ‘as is’ and ‘as available’ basis;
(iii) We make or give no express or implied warranties including, without limitation, the warranties of merchantability or fitness for a particular purpose, or arising from a course of dealing, usage or trade practice, with respect to any goods or services provided under or incidental to this Agreement;
(iv) no oral or written information or advice given by Us, Our resellers, agents, representatives or employees shall create a warranty or in any way increase the scope of the express warranties given in this Agreement, and You may not rely on any such information or advice;
(v) Our total aggregate liability to You for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the services will be limited to the charges paid by You in the 3 months preceding the claim in respect of the services which are the subject of any such claim. Any claim must be notified to Us within one year of it arising.
10.4 In the event that this Agreement constitutes a supply of goods or services to a consumer as defined in the Competition and Consumer Act 2010 (Cth) nothing contained in this Agreement excludes, restricts or modifies any remedies or guarantees where to do so is unlawful. To the full extent permitted by law, where the benefit of any such remedy or guarantee is conferred upon You pursuant to the Competition and Consumer Act 2010 (Cth) Our sole liability for breach of any such remedy or guarantee will be limited to the remedies available under that Act.
10.5 We specifically exclude any warranty as to the accuracy or quality of information received by any person via Your server and in no event will We be liable for any loss or damage to any data stored on the server. You are responsible for maintaining insurance cover in respect of any loss or damage to Your data stored on the Server.
11. EXPORT MATTERS
11.1 You represent and warrant and undertake that you will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Services or any information or technical data provided by Us to You under this Agreement in any manner which would cause Us to breach any applicable export control laws, rules, or regulations of any jurisdiction (including without limitation those under Australian, UK and US law). Without limitation, You represent and warrant and undertake that You will not provide administrative access to or permit use of the services by any persons (including any natural person, government or private entity or other form of body corporate) that is located in or is a national of any country that is embargoed or highly restricted under Australian, United Kingdom or US export laws, rules or regulations.
12. ARCHIVING AND BACKUP OF YOUR DATA
12.1 We will archive Your data on a regular basis for the purposes of disaster recovery. While We will use our best endeavours to maintain an up to date back-up of Your data, we do not guarantee that we will hold the latest version at the time of equipment failure or data corruption. In the event of equipment failure or data corruption, We will restore from the last known good archive of Your data that we hold.
13. OWNERSHIP OF EQUIPMENT
13.1 Unless otherwise agreed, You obtain no rights to the hardware and other infrastructure and facilities used by Us to deliver the services.
14.1 We may from time to time recommend third party software or other products and services for Your consideration. We make no representation or warranty whatsoever regarding such products and services. Your use of any products and services not provided by Us is governed by the terms of Your agreement with the provider of those products and services, and is at Your sole risk. We are not responsible in any way for the third party product’s performance, features nor failures.
15. YOUR RESPONSIBILITIES
15.1 In connection with the services, You will:
(i) provide Us with reasonable access to Your sites and facilities during Your normal business hours and as otherwise reasonably required to enable Us to perform the services;
(ii) if required, provide a safe and secure working environment for Our personnel;
(iii) perform Your agreed duties and tasks, and such other duties and tasks as may be reasonably required to permit Us to perform the services; and
(iv) not copy, record, or transcribe any of Our training materials without written authorisation from Us.
15.2 You will make available to Us any data, information and any other materials reasonably required by Us to perform the services, including, but not limited to, any data, information or materials specifically identified in the Service Scope (“Customer Materials”). You will be responsible for ensuring that all such Customer Materials are Accurate and complete.
15.3 We will comply with all reasonable workplace safety and security standards and policies, applicable to Your employees, of which We are notified in writing by You in advance.
16.1 You must not assign or otherwise transfer Your rights or obligations under this Agreement without Our prior written consent, which We will not unreasonably withhold. Any request to assign or transfer must:
(i) be in the form We require, and include details of the assignee or transferee;
(ii) be accompanied by the transfer fee specified in the form.
16.2 We may assign or otherwise novate or transfer Our rights and obligations under this Agreement to:
(i) a related body corporate, including without limitation as part of a change in how we provide the services or as part of a partial or full restructuring of Our business; and
(ii) another person as part of the sale, or restructuring, of all or part of Our business, and You agree that, if We do this, We may transfer all necessary information (including, without limitation, personal information and credit card details) to the related body corporate or other person, and they may use that information, in order for them to be able to continue providing the services to You. If You do not agree to the assignment, novation or transfer, You may terminate this Agreement and We will refund any remaining unused credit on Your account.
17.1 During the term in which Services are being provided, You will not directly or indirectly recruit, solicit, or assist in the recruiting or soliciting for employment (including as a consultant) any technical or professional employees or contractors of Ours personally involved in the services within the preceding six months. This provision will not prohibit the placement of mass media advertisements, utilization of non-targeted third party recruiting efforts, or conduct of job fairs for the purpose of recruiting employees generally. This provision also will not prohibit the hiring of any person in the absence of solicitation in violation of this clause.
18.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
18.2 Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided in this Agreement.
18.3 No agency, partnership, joint venture, or employment is created as a result of this Agreement and You do not have any authority of any kind to bind Us in any respect.
18.4 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
18.5 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
18.6 We will not be liable for any loss resulting from a cause over which We do not have direct control.
18.7 This Agreement is governed by the laws in force in the Australian Capital Territory, Australia. Both parties agree to submit to the non-exclusive jurisdiction of the Courts of that Territory.
18.8 You agree to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Us.
18.9 We are permitted to use Your name and logos in sales and marketing materials and We may disclose that You are one of Our customers to any third-party at Our sole discretion.