Additional Service Proposal has the meaning in clause 5(b).
Additional Services means services outside the then current scope of the Services.
Authorised User means an officer, employee, agent, subcontractor of the Customer authorised to access the Platform under a User Licence.
Back-Up Policy means the document that defines the policies and procedures for the Supplier to backup, archive and recover Customer Data, the Documentation and the Platform.
Beta Version means any version of the Platform labelled, referred to or notified by the Supplier as such, or otherwise reasonably regarded as a beta version of the Platform.
Business Day means a day other than a Saturday, Sunday, or gazetted public holiday in Melbourne, Victoria.
Claim means any claim, demand, remedy, suit, action, proceeding, right of action, however arising.
Consequential Loss means any of the following:
- incidental, special, remote or unforeseeable loss or damage;
- loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss, damage or corruption of data, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing;
- costs incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a Third Party; or
- loss or damage set out above in paragraphs (a) to (c) that is incurred or suffered by or to a Third Party.
Customer means the person referred to as the customer in the Managed Services Statement of Work.
Customer Data means all data, content, works, materials and metadata:
- uploaded or submitted to or stored on the Platform, or otherwise made available, by the Customer or an Authorised User;
- transmitted by the Platform at the instigation of the Customer or an Authorised User;
- supplied by the Customer or an Authorised User to the Supplier for uploading to, transmission by or storage on, or via, the Platform; or
- generated by the Platform because of the use of the Services by, or an act or omission of, the Customer or an Authorised User (but excluding analytics data relating to the use of the Platform and server log files).
Documentation means the manuals, user guides and other documents made available to the Customer by the Supplier relating to the Services, including updates, replacements, revisions and additions to such documentation, provided or made available by the Supplier from time to time.
Intellectual Property means the business names, copyright, patents, trade marks, trade names, designs and similar industrial, commercial and intellectual property and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields anywhere in the world, regardless of the form and whether or not registered or registrable.
Loss means any liability, loss, injury, illness, damage, cost or expense, including legal costs on a full indemnity basis and Consequential Loss.
Maintenance Release means a release of the Platform which adds functionality to, or otherwise amends or upgrades, the Platform, but which does not constitute a New Version.
Malware means any virus, worm, trojan, malicious software or code, or similar harmful materials, that is intentionally designed to cause damage, adversely affect, or gain unauthorised access to the network, computer system, software, or electronic data.
Managed Services Statement of Work means a statement of work entered into between the Supplier and the Customer, including for the provision of Services.
Mobile App means the mobile application known as XAP Smile & XAP Connect that is made available by the Supplier through the Google Play Store and the Apple App Store.
New Version means any version of the Platform containing significant differences from previous versions as to be generally accepted as a new product.
Personal Information has the meaning in the Privacy Act 1988 (Cth).
Personnel means, in relation to a party, its directors, officers, employees, contractors, agents and authorised representatives.
- the downloadable and non-downloadable software operated by the Supplier and promoted by reference to the name ‘XAP Platform’ (currently available on www.id.xap.rocks) or any other name updated from time to time, and used to manage day to day activity, including bookings, payments, billing, government childcare subsidy related calculations, rebates and reporting at child care centres, out of school care, vacation care, or similar services for family management;
- the Mobile App, application (for example, front-end assets and back-end source code), database, system and server software, and all Intellectual Property contained in the software referred to in (a) above; and
- any Beta Versions and Maintenance Releases.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means all privacy and data protection laws and regulations relating to privacy, data security, cybersecurity and the collection, storage, use and disclosure of Personal Information in any relevant jurisdiction, including the Privacy Act.
- any incidental services provided by the Supplier as it deems necessary to provide.
Subscription Fees means the subscription fees specified in the Managed Services Statement of Work, unless otherwise agreed between the parties.
Subscription Term means the subscription term specified in the Managed Services Statement of Work, unless otherwise agreed between the parties, and includes any period whilst a Beta Version is being used.
Supplier means XAP Technologies Pty Ltd (ACN 169 623 009).
Term has the meaning in clause 2.
Third Party means a party other than the Supplier and Customer.
Third Party Products means any software, product, service or material (including any related Intellectual Property) provided by a Third Party.
User Licence has the meaning in clause 8.2(a).
3. Customer obligations
3.1 Access to Platform
- The Customer must provide information to the Supplier that is true, accurate and not misleading or deceptive. If such information changes, the Customer must promptly notify the Supplier at email@example.com, or an alternate email address notified by the Supplier for this purpose.
- At all times during the Term, the Customer must (at its cost):
- obtain and maintain all hardware, software and communications equipment necessary for it and each Authorised User to access and use the Platform, and ensure that they comply with:
- applicable specifications and guidelines set out in the Documentation; and
- all reasonable security standards and any requirements otherwise communicated to the Customer from time to time;
- provide the Supplier with all necessary co-operation and access to its systems, data and Personnel as may be required by the Supplier to provide the Services;
- comply with all Relevant Laws;
- comply with all reasonable directions, policies and guidelines of the Supplier as notified from time to time;
- perform all of its obligations in a timely and efficient manner; and
- obtain and maintain all hardware, software and communications equipment necessary for it and each Authorised User to access and use the Platform, and ensure that they comply with:
3.2 Access restrictions
During the Term, the Customer must not access, store, distribute or transmit:
- any Malware; or
- any material, data or content that:
- is unlawful, unethical, harmful, threatening, defamatory, libellous, maliciously false, misleading, obscene, infringing, harassing, blasphemous or racially or ethnically offensive or a contravention of the rights of any Third Party;
- constitute negligent advice or contain any negligent statement;
- consist of or contain legal, financial, investment, taxation, accountancy, medical or other professional advice;
- facilitates illegal activity;
- causes damage or injury to any person or property; or
- corrupts, degrades or disrupts the operation or functionality of the Platform.
3.3 Use restrictions
The Customer must not, and must not attempt to and must not assist any Third Party to:
- adapt, alter, copy, create derivative works from, disassemble, display, distribute, download, duplicate, frame, mirror, modify, reduce to human readable form, republish, reverse compile, reverse engineer or transmit all or any portion of the Platform by any means;
- use the Platform in any way that causes or may causes damage to the Platform or impairment of the availability or accessibility of the Platform.
- gain unauthorised access to the Platform (including by using an administrator account);
- conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity via the Platform;
- send any spam or other marketing communications to any person using any email address or other contact details made available through the Platform. Including in relation to any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, ‘get rich quick’ schemes or similar letters, schemes or programs;
- send hostile communication or any communication intended to insult to a particular group or person;
- infringe the Supplier’s Intellectual Property;
- build a product, service or platform which competes with the Platform;
- assign, license, transfer any rights in, or otherwise commercially exploit, the Platform; or
- engage in illegal behaviour or any the following:
- unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network;
- interference with service to any user, host or network, including mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
- use of an Internet account or computer without the owner’s authorisation; and
- collect information by deceit, including Internet scamming, password robbery, phishing, security hole scanning and port scanning.
4. Supplier obligations
4.1 Service obligations and exclusions
- During the Term, the Supplier must provide the Services to the Customer.
- The obligation under clause 4.1(a) will not apply in the event of:
- modification or alteration of the Platform by any party other than the Supplier;
- the unsuitability or malfunction of the Customer’s network, systems, computer hardware or software;
- a Force Majeure Event.
4.2 Remedial action
- In the event the Supplier fails to provide the Services in accordance with clause 4.1 and following notice from the Customer, the Supplier will use reasonable endeavours to:
- correct any such non-conformance; or
- provide the Customer with an alternative means of accomplishing the desired outcome.
- Notwithstanding the foregoing and subject to requirements of any Relevant Laws, the Supplier:
- does not warrant that the Customer’s use of the Platform will be uninterrupted, Malware free, including virus-free, or error-free, nor that the Services and the information obtained by the Customer through the Services, will meet its requirements;
- is not responsible for any delays, delivery failures, or any other Loss resulting from the transfer of data over communications networks and facilities and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities or networks;
- does not warrant that functionalities made available on the Mobile Apps will contain all functions which are available on the web application; and
- is not responsible for the reliability, accuracy or currency of any information or Customer Data. The Customer is solely responsible for uploading or submitting to the Platform the most up-to-date information or Customer Data.
4.3 Modification and discontinuance of the Service
- The Supplier may add, modify or discontinue any functionality, feature or any other aspect of the Services, including in relation to the Platform, at its discretion and without further notice.
- Where it is a material adverse change in the core functionality of the Services, then the Supplier will notify the Customer by sending a notification via the Platform or to the Customer’s email address.
5. Additional Services
- The Customer may, at any time during the Term, request the Supplier to provide Additional Services in relation to the Platform by giving the Supplier a written proposal to that effect (Additional Service Proposal), including in relation to:
- any training requested by the Customer in relation to accessing and using the Platform; and
- any changes or modifications to the Platform customised for the Customer’s specific needs or requirements.
- The Supplier will consider any requests for Additional Services and will notify the Customer within a reasonable period whether the Supplier:
- agrees to provide the Additional Services as set out in the Additional Service Proposal, including the applicable fees;
- does not agree to provide the Additional Services; or
- does not agree to provide the Additional Services as set out in the Additional Service Proposal, but offers to provide some of those services and/or similar services, whether for the fee proposed in the Additional Service Proposal or otherwise.
- An Additional Service Proposal will not be binding on either party, unless the Additional Service Proposal has been signed by duly authorised representatives of both parties.
6. Third party providers
- The Customer’s access to the Platform may enable the Customer to use, access or otherwise integrate with Third Party Products.
- The Supplier makes no representations and will have no liability or obligation whatsoever in relation to the Third Party Products.
- The Supplier does not endorse, sponsor or approve any Third Party Products made available via the Platform. It is the Customer’s sole responsibility to determine that specific products or services, introduced or used by the Customer, or by an Authorised User, meets the needs of its business or requirements and are suitable for the purposes for which they are used.
- Any rights the Customer may have to access Third Party Products will be limited to the:
- extent of the Supplier’s ability to license such rights to the Customer; or
- relevant Third Party Product usage terms or licence.
7. Fee increases
The Supplier may increase the Subscription Fees at any time upon 30 days’ notice to the Customer.
8. Intellectual Property and User Licences
- The Customer acknowledges and agrees that all Intellectual Property subsisting in, or otherwise underlying, the Platform and the Documentation, is owned by the Supplier.
- The Customer must not submit, publish or upload any Customer Data onto the Platform unless the Customer has the right to do so.
- The Customer grants the Supplier permission to use and publish its name, logos and trade marks, together with reference to the fact that the Customer is a customer of the Supplier, in any medium whatsoever.
8.2 Licence to permit access by Authorised Users
- The Supplier grants the Customer a non-exclusive, personal, non-transferable and non-sub-licensable licence to permit multiple Authorised Users to access and use the:
- Platform; and
- The quantity of User Licences granted to the Customer must be specified in the Managed Services Statement of Work or otherwise agreed between the parties.
during the Term, by means of a supported web browser or mobile application, solely for the Customer’s internal and ordinary business purposes (User Licence).
8.3 Usernames and passwords
- The Supplier will provide the Customer with a username and password for each Authorised User (Credentials).
- The Credentials must not be shared with any other person for any reason.
- The Customer must ensure each Authorised User changes its password:
- promptly after being issued with the Credentials; and
- on a regular basis during the Term.
- The Customer acknowledges that it is solely responsible for:
- maintaining the confidentiality of the Credentials; and
- all access and use of the Platform that results from any person using the Credentials.
- The Customer must implement security measures to ensure that no unauthorised person may gain access to the Platform using the Credentials or otherwise.
8.4 Access permissions
- is solely responsible for setting and maintaining appropriate access permissions for each Authorised User; and
- may revoke or change an Authorised User’s access permissions at any time and for any reason via the Platform.
- If such audit reveals that any Credentials have been provided to any person who is not an Authorised User, then, without prejudice to the Supplier’s other rights, the Customer must promptly disable such Credentials and the Supplier may terminate that User Licence.
9. Customer Data
9.1 Licence for Customer Data
- The Customer retains ownership of the Customer Data and will have sole responsibility for its legality, reliability, integrity, accuracy and quality.
- The Customer grants the Supplier a worldwide, non-exclusive, royalty-free, perpetual, transferable licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy the Customer Data for any purpose, including for the purpose of:
- informing the Customer of other products or services that the Supplier may offer from time to time or in relation to Third Party Products;
- using usage patterns, trends, and other statistical or behavioural data derived from use of the Platform for the purposes of providing, operating, maintaining, or improving the Services or any of the Supplier products and services; and
- sharing Customer Data with a Third Party for the purposes of performing or improving the Services.
- The Supplier will not pre-screen, monitor, vet or edit any Customer Data, unless required to do so under any Relevant Law.
9.2 Back-Up Policy
- The Supplier will follow its archiving procedures for Customer Data in accordance with its standard Back-Up Policy from time to time.
- The Supplier will not be responsible for any loss, destruction, alteration, corruption or disclosure of any Customer Data caused, or contributed to, by an act or omission of the Customer or any Third Party.
9.3 Personal Information and other sensitive data
The Customer warrants that, in relation to any Customer Data comprising Personal Information or otherwise sensitive data:
- it has obtained all necessary Approvals and consents to grant the Supplier the licence in clause 9.1(b), or to make such information available to the Supplier for its use.
The Customer indemnifies, and must continue to indemnify, the Supplier against any liability incurred by the Supplier in respect of damage to property, death or personal injury or any Loss, arising from or in connection with the Customer, its Related Bodies Corporate or any Personnel of those entities doing any of the following:
- breaching any Relevant Law;
- infringing any Third Party’s Intellectual Property;
- uploading or transmitting the Customer Data;
- supplying any incomplete, false or misleading information; or
- engaging in wilful misconduct, fraud, an unlawful act or omission or negligence,
and any reasonable costs (including legal costs), claims, demands and expenses arising out of, or in connection with, any liability referred to in this clause 10.