Terms and Conditions
Lama Care
The platform accessible at the Website and its associated application “Lama Care” and related services, websites and tools (together the Platform) is owned and operated by Lama Solutions Group Pty Ltd ACN 652 876 125 (Provider). These SaaS Terms and Conditions (Terms and Conditions) govern access to and use of the Platform by you, the individual using the Platform, and any legal entity on whose behalf you are acting (Client).
Please carefully read these Terms and Conditions. By clicking “I agree” (or a similar button) that is presented to you in relation to these Terms and Conditions, or by using or accessing the Platform, you agree to be bound by these Terms and Conditions.
If a person is agreeing to these Terms and Conditions on behalf of the Client, the person agreeing on behalf of the Client warrants that it has the irrevocable authority and agreement of the Client to be bound by these Terms and Conditions.
These Terms and Conditions may be updated by the Provider from time to time, and the updated Terms and Conditions will apply from the date they are published on the Platform. Each time the Client uses the Platform they should revisit these Terms and Conditions.
1. DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
In these Terms and Conditions unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) Access Fee: the access fees payable by the Client to the Provider per NDIS User who has a profile on the Platform.
(b) Account: an account established on the Platform which enables the Client and/or an Authorised User to access and use various features of the Platform.
(c) ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(d) Applicable Law: any laws governing or affecting the arrangements contemplated by these Terms and Conditions.
(e) Authorised User: such persons authorised by the Client to access the Platform in connection with the Client’s subscription to the Platform, including the Client’s Personnel and NDIS Users.
(f) Business Day: means a day that is not a Saturday, Sunday or a public or bank holiday in the State.
(g) Client Data: all data, files, works and materials uploaded to or stored on the Platform by the Client (or Authorised Users), transmitted to the Platform at the instigation of the Client (or Authorised Users), or supplied by the Client (or Authorised Users) to the Provider for uploading to, transmission by or storage on the Platform.
(h) Commencement Date: the date that the Client subscribes to the Platform in accordance with these Termsand Conditions.
(i) Confidential Information: of a party, means all information (in any form):
(i) relating to or arising from the Services (including the Client Data for the Client);
(ii) that concerns a party's business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, client lists, pricing, and other business processes); and
(iii) includes these Terms and Conditions; but does not include information that:
(iv) is or becomes independently developed or known by the other party through no breach of these Terms and Conditions by that party; or
(v) becomes publicly available without breach of these Terms and Conditions.
(j) Corporations Act: the Corporations Act 2001 (Cth).
(k) Early Termination Fee: the fee payable by the Client for early termination of these Terms and Conditions, calculated in accordance with clause 5.4.
(l) End User Licence Agreement: the End User Licence Agreement which applies to all Authorised Users of the Platform, a copy of which is accessible on the Platform, as amended by the Provider from time to time.
(m) Fee: any fees payable by the Client to the Provider to use the Services in accordance with clause 4.1(a), including the Sign-Up Fee (where applicable) and Access Fees, and any other fees and charges payable by the Client to the Provider under these Terms and Conditions.
(n) Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
(i) strikes, lock-outs or other industrial action;
(ii) civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or other natural disaster;
(iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(v) interruption or failure of utility services (including the inability to use public or private telecommunications networks);
(vi) interruption of networks or third party services (including telecommunication or web services); and
(vii) the acts, decrees, legislation, regulations or restrictions of any Government Agency, however does not include a lack of funds.
(o) Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
(p) GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
(q) Insolvency Event:
(i) a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
(ii) a liquidator or provisional liquidator is appointed in respect of a person;
(iii) any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of
(i) appointing a person referred to in paragraph (i) or (ii) of this definition;
(ii) winding up or deregistering a person; or
(iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
(iv) any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing
(i) a moratorium of any indebtedness of a person;
(ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or
(iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
(v) any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or
(vi) a person is or admits in writing that it is, or is declared to be, or is taken under any Applicable Law to be (for any purpose), insolvent or unable to pay its debts.
(r) Intellectual Property Rights: all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable. These rights include without limitation:
(i) all rights in all applications to register those rights;
(ii) all renewals and extensions of those rights; and
(iii) all rights in the nature of those rights, such as Moral Rights.
(s) Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(t) Materials: all materials, documentation and information (whether reduced to written form or otherwise) provided to the Client by the Provider at any time.
(u) Moral Rights: rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed, and rights of a similar nature that exist, or may come to exist, anywhere in the world.
(v) NDIS User: a client of the Client.
(w) Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.
(x) Policy: means any policy of the Provider in place from time to time.
(y) Privacy Legislation: means the Privacy Act 1988 (Cth), including Australian Privacy Principles, and the guidance and codes of practice issued by the Office of the Australian Information Commissioner from time to time.
(z) Privacy Policy: means the privacy policy of the Provider as accessible on the Website from time to time.
(aa) Related Entity: has the meaning given in section 9 of the Corporations Act.
(bb) Services: means any services that the Provider provides to the Client, including without limitation the Platform.
(cc) State: Western Australia.
(dd) Sign-Up Fee: the sign-up fees payable by the Client to the Subscriber on signing up for a subscription to the Platform (where applicable).
(ee) Term: means the term of these Terms and Conditions, commencing on the Commencement Date and ending on the date that they are terminated.
(ff) Terms and Conditions: these SaaS Terms and Conditions as amended from time to time.
(gg) Website: the Provider’s website accessible at lamacare.com.au.
1.2 Interpretation
In these Terms and Conditions the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a) Headings and subheadings are for convenience only and do not affect the interpretation of these Terms and Conditions.
(b) References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, these Terms and Conditions.
(c) References to parties are references to the parties to these Terms and Conditions.
(d) References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
(e) Words denoting the singular include the plural and words denoting the plural include the singular.
(f) Words denoting any gender include all genders.
(g) The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
(h) A reference to a body (other than a party to these Terms and Conditions), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(i) A reference to any agreement or document (including these Terms and Conditions) includes any amendments to or replacements of that document.
(j) A reference to a law includes:
(i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
(ii) any constitutional provision, treaty or decree;
(iii) any judgment;
(iv) any rule or principle of common law or equity, and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
(k) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
(l) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
(m) No provision of these Terms and Conditions will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms and Conditions.
(n) If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
(o) A reference to time is a reference to time in the capital city of the State.
(p) A reference to a day is a reference to a day in the capital city of the State.
(q) A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
(r) If any act is required to be performed under these Terms and Conditions by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
(s) If any act is required to be performed under these Terms and Conditions on or by a specified day and that day is not a Business Day, the act must be performed on or by the next Business Day.
(t) A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
(u) Specifying anything in these Terms and Conditions after the terms ‘include’, including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(v) A reference to writing or written includes email.
(w) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
2. USE OF THE PLATAFORM
2.1 The Platform provides Clients with the ability to manage certain record keeping obligations in respect of their NDIS Users as well as human resources matters in a cloud-based environment.
2.2 The Client’s Authorised Users may access and use the Platform in accordance with these Terms and Conditions and the End User Licence Agreement.
2.3 In inputting Client Data on the Platform, the Client acknowledges and agrees that they are authorised to disclose such information and that the Provider, without the Provider taking any further steps required by any Applicable Law or under any Privacy Legislation, is able to collect, use and disclose such Client Data for the purposes described in the Provider’s Privacy Policy and these Terms and Conditions.
3. SUBSCRIPTION TO THE PLATAFORM
3.1 Subscription Term
(a)These Terms and Conditions shall commence on the Commencement Date and continue until terminated in accordance with their terms.
(b) Subscription to the Platform will be handled on the Provider’s Website, or by other means as approved by the Provider. These Terms and Conditions will apply whether the Client subscribes to the Platform via the Website or another method.
(c) The Provider may offer a number of different subscription plans for access to the Platform. The full details of the plans, including the subscription term, renewal date and associated Fees will be as published on the Website at the time the Client subscribes.
(d) The [Legal1] Client’s subscription to the Platform will commence on the Commencement Date and continue for the initial subscription term set out on the Website, following which it will automatically continue to renew for equivalent periods unless the Client gives the Provider written notice to cancel prior to the renewal date. The Client authorises the Provider to store the Client’s payment method and to automatically charge the Subscription Fee for each renewed term. The Client authorises the Provider to store the Client’s payment method details and to automatically charge the Access Fees for each renewed term. The subscription will automatically renew in order to avoid interruption to the Services and the Client acknowledges and agrees that this is fair and reasonable.
(e) The Client may terminate these Terms and Conditions and cancel their subscription at any time by providing the Provider written notice or by following the prompts on the Website, with such termination taking effect immediately. Please note an Early Termination Fee may apply in certain circumstances where the Client terminates before expiry of the current subscription term (see clause 5.4).
3.2 Subscription access & limitations
(a) Subject to the Client’s compliance with these Terms and Conditions, the Provider hereby grants to the Client the non-exclusive, non-transferable, revocable right to use the Platform during the Term in accordance with these Terms and Conditions.
(b) The Client’s subscription is subject to the restrictions and limitations as stated on the Website at the time the Client subscribes (Usage Rights), including, without limitation limits on the number of NDIS Users the Client may permit to use or have a profile on the Platform. In relation to Usage Rights, the Client acknowledges and agrees that:
(i) a separate Access Fee is payable for each NDIS User;
(ii) the maximum number of NDIS Users that it permits to use the Platform must not exceed the number of NDIS Users that it has purchased a licence for from time to time; and
(iii) it will ensure that each NDIS User shall be issued its own Account which it must keep confidential. For the avoidance of doubt, there is no limit on the number of Client Personnel that may access the Platform.
(c) If the Client requires access to the Platform for additional NDIS Users which exceed its Usage Rights, then the Client must inform the Provider and access can be added for additional NDIS Users by paying additional Access Fees. In the event that access for additional NDIS Users is added mid-subscription term, then the Access Fee for the additional Authorised Users may be pro-rated for that subscription term.
(d) All Authorised Users of the Platform must agree to and will be bound by the End User Licence Agreement, and the Client is solely responsible for ensuring that they do so, and is solely responsible for all actions and omissions of all Authorised Users (and any other person that uses the Client’s Account). In the event the Client or any Authorised Users do not agree to the End User Licence Agreement, they must not use the Platform.
(e) The Client is solely responsible for ensuring its Authorised Users comply with these Terms and Conditions, and a breach by any of the Authorised Users of these Terms and Conditions, will be deemed to be a breach by the Client.
(f) The Client is strictly prohibited from granting access to the Platform to any person other than Authorised Users.
3.3 Access restrictions
(a) Except to the extent expressly permitted in these Terms and Conditions, the right granted by the Provider to the Client under clause 3.2 is subject to the following prohibitions:
(i) the Client must only sub-license its right to access and use the Platform to Authorised Users in accordance with its Usage Rights;
(ii) the Client must only use the Platform for its intended purpose;
(iii) the Client must not directly or indirectly copy, reproduce, share, republish, frame, download, transmit, distribute, sell, reverse engineer, decompile, translate, alter, modify, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Services (except to the extent expressly permitted by the Provider or authorised within the Platform);
(iv) the Client must not create derivative works based on the Platform (except to the extent expressly permitted by Provider or authorised within the Platform); and
(v) the Client must not make any alteration to the Platform.
4. ACCOUNT
4.1 In order to use the Platform, the Client must have their own Account. The Client is authorised to create one administrator-level Account for the administration of its access to the Platform and its Authorised Users are each permitted to create one user-level Account. Different user Accounts may have access to different parts of the Platform as set out on the Website or as advised by the Provider from time to time. In creating and using the Account:
(a) the Client (and each Authorised User) must not use false or misleading information and must update their details should they have changed from the last time they used the Platform;
(b) the Client (and each Authorised User) must follow any password policies made available by the Provider from time to time (and as are stated on the Platform from time to time);
(c) the Client (and each Authorised User) is responsible for the security of its username and password and the Provider will assume that anyone using the Client’s (and each Authorised User’s) Account is authorised to do so by the Client and the Client is responsible for their actions. Under no circumstances will unauthorised access and use of the Client’s Account reduce the Client’s liability to the Provider; and
(d) the Client must notify the Provider immediately if it becomes aware of any unauthorised use of its Account or other security breach.
5. FEES
5.1 Fees & Payment terms
(a) The Client must pay to the Provider the following Fees for subscription to the Platform:
(i) Sign-Up Fee, payable upfront on registration to the Platform. The Provider may in its discretion offer a waiver of the Sign-Up Fee to founding Clients on the terms set out on the Website; and
(ii) Access Fee, payable per NDIS User, monthly or annually in advance during the term of the subscription depending on the subscription plan chosen by the Client (with the first payment due on or before the Commencement Date and following payments due on the renewal date).
The Fees payable by the Client for their subscription to the Platform and any other charges the Client may incur in connection with their use of the Platform will be as stated on the Website at the time the Client subscribes to the Platform. In the event that any user is found to be circumventing payment of Fees unlawfully or without proper basis, then the Provider reserves the right to charge such users full Fees.
(b) The Access Fee per NDIS User (including additional NDIS User access requested by the Client) will be fixed to the price published on the Website at the time of subscribing. There will be no increase to Access Fees on renewal. Any new pricing of Fees published on the Website will apply to new subscribers only.
(c) If the Client wishes to cancel their subscription the cancellation must be processed by the Provider prior to the date of renewal otherwise the Client’s subscription will renew and the Client authorises the Provider to charge the Client’s payment method for the renewed subscription term.
(d) In the Provider’s sole discretion, the Provider may offer free or discounted pricing for various Services accessible on the Platform. The terms of such use and any limitations will be as specified on the Platform at the time the Service is accessed. If the Provider offers the Client a trial program, once the terms of that trial program have expired the Client agrees that the Provider’s normal billing rates shall apply. The Client agrees to comply with any restrictions or limitations placed on their Account during any free or discounted pricing term.
5.2 Payment Method
(a) Payment of the Fees is to be made via the payment method specified by the Provider on the Website.
(b) If the parties have agreed that the Fees will be paid via a direct debit arrangement, then the Client irrevocably authorises the Provider to debit the Fees during the term from the Client’s nominated bank account/credit card/debit card (Debit Account), on or about the due date for payment without notice to the Client. The Client must ensure that the Debit Account details are up to date at all times and the Client must notify the Provider in the event that the details are no longer current, and provide replacement details. The Client also irrevocably authorises the Provider to deduct all other fees and charges payable by the Client to the Provider under these Terms and Conditions from the Client’s nominated Debit Account. The Client warrants that the Client is the owner or has the right to use any Debit Account details provided to the Provider. Default charges will apply in the event that the Client stops the authority to charge the Debit Account without acceptance by the Provider. Insufficient funds in the Debit Account will also attract a fee (see below).
5.3 Overdue Payments
(a) Where any part of the Fees or other monies payable by the Client under or in connection with these Terms and Conditions are not paid by its due date, the Provider reserves the right to:
(i) suspend the Client’s access (including the access of its Authorised Users) to the Platform until all overdue amounts are received by the Provider in cleared funds; and
(ii) suspend the Client’s access to any Client Data stored on the Platform (to the extent permitted by law) until all overdue amounts are received by the Provider in cleared funds in accordance with clause 9.
(b) In the event that the Client’s payment is denied and payment of the Fees is unable to be settled to the Provider on their due date, the Provider (or its third party payment provider) will make two more attempts to debit the Client’s payment details (in weekly intervals) following which, if payment remains outstanding, the Provider reserves the right to charge the Client interest on the overdue amount at the rate of 12% per annum, accruing daily and compounding monthly until payment is received in full.
(c) The Client acknowledges that the Provider may not grant the Client and the Client’s Authorised Users access to the Platform until they have received payment of all required Fees payable in cleared funds.
5.4 Early Termination Fee
(a) If at any time before the expiry of the Client’s current subscription term (including any renewed term contemplated by clause 3.1(d)
(i) the Client terminates their subscription to the Platform without cause under clause 16.1(a); or
(ii) the Provider terminates the Client’s subscription to the Platform under clause 16.2(b) (other than under clause 16.2(b)(i) at no fault of the Client), then the Client must pay an Early Termination Fee to the Provider, calculated in accordance with clause 5.4(b).
(b) The Early Termination Fee will be calculated according to the following formula:
Early Termination Fee = Base Access Fee multiplied by the Remaining Period
Where:
(i) Base Access Fee equals the Access Fee (calculated as a daily amount) multiplied by the number of NDIS Users at the time of request of termination; and
(ii) Remaining Period equals the remaining days in the applicable subscription term in which termination is requested.
(c) In addition, no refund of any other Fees paid by the Client to the Provider will be provided.
5.5 General
(a) The Client must pay all Fees and other amounts without set-off or claim under any circumstance including if a dispute exists.
(b) All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of GST, which will be added to those amounts and payable by the Client to the Provider.
(c) Depending on the method of payment the Client uses to pay the Fees, additional charges may be incurred (such as a small credit card processing charge).
(d) All amounts paid by the Client are non-refundable to the extent permitted by law.
6. CLIENT OBLIGATIONS - PLATFORM
6.1 The Client acknowledges and agrees that it will:
(a) only use the Platform in accordance with these Terms and Conditions and any Policy; and
(b) not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform.
6.2 The acts and omissions of any Authorised User are deemed to be the acts and omissions of the Client and the Client is liable for its Authorised Users and must ensure that they comply with the Client’s obligations in respect of the use of the Platform.
6.3 The Client’s use of the Platform and the Services, including the information submitted on the Platform and the Services, must not (and they must ensure that their Authorised Users’ use and information must not):
(a) be false, inaccurate, misleading, fraudulent, deceptive or unlawful;
(b) be in any manner which could damage, disable, overburden, or impair the Platform or interfere with any other party's use and enjoyment of this Platform;
(c) be in any manner to phish or deceptively obtain information of other users of the Platform;
(d) impersonate or otherwise misrepresent the Client’s identity or affiliation with any other person or entity;
(e) be for purposes of junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) or to attract, lure or illegally obtain information from other users of the Platform;
(f) infringe any third party’s rights or violate any Applicable Law;
(g) contain any viruses or similar which could affect the integrity, operation or security of the Platform;
(h) create liability for the Provider or cause the Provider to lose (in whole or in part) the services or custom of the Provider’s internet service provider, other clients, users or other suppliers;
(i) damage the credibility or integrity of the Platform or the Provider, or dilute, tarnish, or otherwise harm the Provider’s brand in any way; or
(j) interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the Platform.
6.4 Whilst using the Platform and the Services, the Client must not, and must ensure that its Authorised Users do not:
(a) attempt to gain unauthorised access to the Platform or computer systems or networks connected to the Platform through any means;
(b) commit fraud or forgery (or attempted forgery), harass or abuse any individual, or harm minors in any way;
(c) collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses;
(d) breach or violate any of the Provider’s Policies;
(e) falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Platform;
(f) copy, store or otherwise access or use any information contained on the Platform for purposes not expressly permitted by these Terms and Conditions;
(g) use the Platform for any purposes that are not permitted by these Terms and Conditions or in any way that is inconsistent with the purpose of the Platform, or in a manner that falsely implies the Provider’s endorsement, partnership or otherwise misleads others as to the Client’s affiliation with the Provider;
(h) attempt to circumvent payment of any Fees in any way;
(i) tamper with, hinder the operation of or make unauthorised modifications to the Platform or any part thereof;
(j) damage or modify the Platform or the Website or any part thereof; or
(k) circumvent, disable or otherwise attempt to interfere with any security related features.
7. PLATFORM
7.1 Maintenance
(a) The Provider reserves the right to provide general maintenance services to the Platform including updating and upgrading the Platform during the Term as the Provider considers necessary from time to time. The Client acknowledges and agrees that the Platform may occasionally be unavailable during periods of planned or unscheduled critical and urgent maintenance or updates or upgrading.
(b) The Provider will provide the Client with the following notice in the event any maintenance services will or are likely to result in any downtime to the Platform:
(i) if the maintenance services are critical, urgent and it is not reasonably practicable for the Provider to provide any notice – no notice will be provided; and
(ii) otherwise – the Provider will endeavour to provide at least 5 Business Days’ notice.
7.2 Availability & Service Levels
The Platform is hosted using third party cloud services including Amazon Elastic Compute Cloud. The Provider will use commercially reasonable efforts to maintain the availability of the Platform to the Client in accordance with the Amazon Compute Service Level Agreement but provides no guarantee as to the availability and/or the uptime of the Platform.
7.3 Third Party Integrations
(a) The Platform may support integrations with third party services to enable the Platform to provide a number of features. In order for the Platform to integrate with such third party systems:
(i) the Client may be required to have an account set up with that third party supplier; and
(ii) the Client authorises and directs the Provider to disclose the Client Data as required to such third party systems in order for the Provider to provide the Services.
(b) The Client acknowledges that such third party services are beyond the Provider’s reasonable control, and in the event that:
(i) a third party service is experiencing issues or downtime; or
(ii) the Client is required to maintain an account with that third party service and fails to do so,
this may also cause the Platform to become unavailable and the Provider accepts no responsibility for any Losses or notification in this regard.
(c) Where information is transferred to a third party service, the Provider will not be liable for any Loss arising from the use of that information by that third party service.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Platform and Materials
(a) The Provider shall at all times retain all title, rights and interest in and to the Platform and Materials including:
(i) the Intellectual Property Rights subsisting in each;
(ii) any customisations of, and modifications to, the Platform and Materials;
(iii) information or data, source codes and other information technology relating to or connected with the Services or Materials;
(iv) marketing information relating to or connected with the Platform or Materials; and
(v) technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Platform, however, excludes the Client Data.
(b) No right, title and interest in any of the Platform and Materials is transferred or granted to the Client except so far as expressly stated in these Terms and Conditions. The Client must not use the Platform in any way that is inconsistent with the Provider’s ownership.
(c) The Client must not infringe, reduce the value of or otherwise damage or misappropriate the Intellectual Property Rights of the Provider in the Platform and Materials.
(d) For the avoidance of doubt, the Client has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
8.2 Client Data
(a) Subject to the limitations of the Platform as described in clause 9, the Client (or its appropriate licensors) shall at all times retain ownership of the Client Data including the Intellectual Property Rights subsisting in it.
(b) The Client is solely responsible for the uploading of any Client Data. The Provider may, in its absolute discretion, refuse to accept the upload of Client Data to the Platform. The Client agrees that the Provider shall not be liable to the Client for any Loss or damage the Client may suffer as a result of this.
(c) The Client hereby grants to the Provider an irrevocable, worldwide, perpetual, transferable, non-exclusive license to use, communicate, display, copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of the Provider’s obligations (including to provide the Services) and the exercise of the Provider’s rights under these Terms and Conditions, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under these Terms and Conditions.
(d) The Client also grants the Provider an irrevocable, non-exclusive licence to use the Client Data as non-personally identifiable data in aggregated and blinded formats where the data provides no identifying, referencing or implication of an association with the Client, only for the purposes of display on the Platform, improving the Platform, benchmarking, research and marketing analysis, surveys, reports and studies, and to measure any metrics associated with the Client’s use of the Platform.
(e) The Provider warrants that:
(i) it will only use the Client Data as set out in these Terms and Conditions and the Provider’s Privacy Policy in place from time to time; and
(ii) it will not sell, rent or lease the Client Data to any third party.
(f) The Client warrants to the Provider that:
(i) the Client owns or has the necessary licenses to transmit such Client Data through the Platform and that any Client Data provided will not infringe any third party rights (including intellectual property or confidentiality rights) nor give rise to a liability to make royalty or other payments to a third party; and
(ii) the upload of the Client Data to the Platform and use of the Client Data will not:
A. breach the provisions of any law, statute or regulation; or
B. give rise to any cause of action against the Provider, in each case in any jurisdiction and under any Applicable Law.
9. RESTRICTION OF ACCESS TO CLIENT DATA
9.1 Subject to the other terms of this clause and any Applicable Law, in the event that:
(a) the Client fails to pay any part of the Fees or other monies payable by the Client under or in connection with these Terms and Conditions by its due date; or
(b) these Terms and Conditions and/or the Client’s access to the Platform is suspended, restricted or terminated; or
(c) the Client closes their Account or terminates their subscription or these Terms and Conditions, the Client’s and the Client’s Authorised User’s access to the Client Data will be immediately revoked and the Client’s Account will become inactive. For the avoidance of doubt the Client will have no access to the Client Data (including access to download any Client Data that is available for them to download) while the Client’s Account is inactive.
9.2 Prior to termination of these Terms and Conditions or the Client’s Account otherwise becoming inactive, the Client is solely responsible for downloading any Client Data that is available for download from the Platform. Only the Client Data that is made available in the format as specified on the Platform may be downloaded. The Provider does not guarantee, represent or warrant that all of the Client Data will be able to be downloaded as not all Client Data is made available for download.
9.3 Following termination of these Terms and Conditions the Provider reserves the right to delete all Client Data from the Platform and is under no obligation to provide any notice or copies of such Client Data to the Client prior to its deletion.
10. SUPPORT
10.1 The Provider provides the following training support to the Client:
(a) video tutorials accessible through the Platform (as made available from time to time);
(b) Provider Personnel support, available on request for support with transitions and handovers and onboarding of technical support teams; and
(c) regular monthly product update meetups.
11. WARRANTIES
11.1 The Client warrants:
(a) that it has the legal right and authority to enter into these Terms and Conditions and to perform its obligations under these Terms and Conditions; and
(b) that it has not relied upon any representations, warranties or conditions offered or made by or on behalf of the Provider except to the extent expressly set out in these Terms and Conditions.
11.2 All of the parties' warranties and representations in respect of the subject matter of these Terms and Conditions are expressly set out in these Terms and Conditions. To the maximum extent permitted by Applicable Law, no other warranties or representations concerning the subject matter of these Terms and Conditions will be implied into these Terms and Conditions or any related contract.
12. DISCLAIMER
12.1 The Provider provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Client relies on the Services at its own risk and is solely responsible and liable for how they use the Services.
12.2 Without limiting clause 12.1, the Client acknowledges and agrees that:
(a) The Provider does not guarantee continuous, uninterrupted, or secure access to its Platform;
(b) The Provider does not warrant that the use of the Platform will result in the Client or its Authorised Users achieving any specific result;
(c) The Client is solely responsible for complying with any obligations under any Applicable Laws relating to the services it provides to NDIS Users, including any legal obligations as a provider under the National Disability Insurance Scheme;
(d) The Provider makes no representations about the suitability of the Platform for any purpose. The Client must make their own enquiries as to whether the Platform is suitable for its intended use;
(e) The Provider makes no guarantees regarding loss or corruption of Client Data or that data backups (if available) will be readable or recoverable. The Provider will not be liable for any Loss due to data loss;
(f) The Provider cannot guarantee the accuracy, currency, suitability, reliability, or availability of the Platform or its content (including content from Authorised Users);
(g) The information provided on the Platform is general and not financial, legal, or other advice. The Client should obtain advice before making decisions based on it;
(h) The Provider reserves the right to withdraw, amend, update, or change the Platform's functionality or content at any time, without notice;
(i) The Provider may remove or delete Client Data after termination of these Terms and Conditions. The Client is responsible for downloading any Client Data before expiry or termination;
(j) Complex software may have defects, errors, or bugs, and the Platform is not guaranteed to be free from them;
(k) The Provider will maintain appropriate technical and organisational measures to protect the security of Client Data but does not guarantee protection from unauthorized third-party access. The Client acknowledges the risks inherent in internet connectivity.
13. LIMITATION OF LIABILITY
13.1 Subject to this clause, the Provider excludes all rights, representations, guarantees, warranties, and other terms not expressly set out in these Terms and Conditions to the maximum extent permitted by law.
13.2 Without limiting clause 13.1, the Provider excludes all liability for Losses arising in connection with the Platform or Services, including but not limited to:
(a) Planned or foreshadowed system downtime;
(b) Non-performance of the Platform;
(c) Reliance on the Platform or any information from it;
(d) Incorrect data entry by the Client or Authorised Users;
(e) Errors, mistakes, or inaccuracies on the Platform;
(f) Loss or corruption of Client Data;
(g) Defects, errors, and bugs in the Platform;
(h) Unauthorized access to the Platform;
(i) Interruption or cessation of transmission;
(j) Use of the Platform contrary to law or these Terms;
(k) Unauthorized third-party access;
(l) Viruses or harmful code transmitted through the Platform; and
(m) Loss of privacy or confidential information.
13.3 The Client releases the Provider from any Loss arising from being unable to access the Platform, including access suspension or termination as set out in these Terms.
13.4 The Provider’s maximum liability for any Loss arising from these Terms is limited to the actual Fees paid by the Client in the one-month period preceding the event giving rise to the claim.
13.5 Nothing in these Terms limits liability under the ACL.
13.6 If the Provider is liable under the ACL, its total liability is limited to resupply of services or the payment of the cost of resupply.
13.7 The limitation and exclusion of liability apply to all claims, whether in contract, warranty, indemnity, tort (including negligence), statute, or equity.
13.8 The Client’s liability will be reduced to the extent caused by the Client, Authorised Users, or Personnel.
13.9 The Client must take reasonable steps to recover any sum from a third party before making a claim against the Provider and must inform the Provider of the recovery process.
13.10 The Client will not be able to claim under these Terms unless they first make a claim under any relevant insurance policy and the claim is denied.
13.11 If the Client recovers less than the Loss from insurance, the shortfall will be considered the Loss under these Terms.
14. INDEMNITY
14.1 Except where caused by the Provider’s breach of these Terms, the Client indemnifies and releases the Provider from any Losses arising out of:
(a) The Client’s or Authorised User’s use of the Services;
(b) Suspension, restriction, or cancellation of the Client’s access;
(c) The Client’s breach or negligent performance of these Terms;
(d) Violation of any Applicable Law;
(e) Any third-party claims arising from the Client’s or Authorised User’s actions;
(f) Infringement of the Provider’s Intellectual Property Rights;
(g) Reduction in value of the Provider’s Intellectual Property Rights caused by the Client’s actions;
(h) Claims for infringement of third-party rights related to Client Data;
(i) Enforcement of these Terms by the Provider.
14.2 Payments under this indemnity must be made:
(a) In full without set-off or counterclaim, and without any deduction unless prohibited by law;
(b) In the currency due, and otherwise in Australian dollars.
14.3 The Provider does not need to incur expense before enforcing a right of indemnity.
14.4 The indemnities are continuing obligations of the Client, independent of other obligations, and survive termination or expiry of these Terms.
14.5 The Provider’s liability under this indemnity is limited under clause 13.
15. FORCE MAJEURE EVENT
15.1 The Provider will not be in breach of these Terms and Conditions or liable to the Client for any Loss incurred by that other party as a direct result of the Provider failing or being prevented, hindered or delayed in the performance of its obligations under these Terms and Conditions where such prevention, hindrance or delay results from a Force Majeure Event.
15.2 If a Force Majeure Event occurs, the Provider must notify the Client in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
15.3 On providing the notice in clause 15.2, the Provider will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Provider must continue to use all reasonable endeavours to perform those obligations.
15.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
16. TERMINATION AND SUSPENSION
16.1 Termination by the Client
(a) The Client may terminate these Terms and Conditions at any time without cause by giving written notice to the Provider of its intention to terminate. Such termination is with immediate effect, and where termination is prior to the expiry of the current subscription term without cause:
(i) the Early Termination Fee will be payable by the Client; and
(ii) the Client is not entitled to any pro-rata refund of any Fees paid to the Provider which relate to the period following termination.
(b) The Client may terminate these Terms and Conditions with immediate effect, where the Provider breaches any term of these Terms and Conditions and fails to rectify that breach within a reason time (being no less than 14 days) from being given notice by the Client.
(c) Where termination occurs by clause 16.1(b) the Provider will offer a pro-rata refund to the Client for the remainder of the subscription term during which termination took place and there will be no Early Termination Fee payable. This is the sole remedy available to the Client.
(d) If the Client requires assistance in terminating or requires further information regarding renewal dates or the duration of a subscription term it should contact the Provider.
16.2 Provider’s right to terminate, suspend or restrict
(a) The Provider may terminate these Terms and Conditions at any time without cause by giving written notice to the Client. Except as set out under clause 16.2(b) termination takes effect at the end of the current subscription term.
(b) The Provider may immediately suspend, restrict or terminate these Terms and Conditions and/or the Client’s (and the Client’s Authorised Users’) access to all or part of the Services, including access to the Client Data on the Platform immediately where:
(i) it is reasonably necessary for security, technical, copyright or operational reasons;
(ii) the Client breaches any term of these Terms and Conditions;
(iii) the Client violates the rights of any third party or the Provider;
(iv) the Provider reasonably believes that the Client is engaged in illegal or fraudulent use of the Services;
(v) the Provider reasonably believes that the Client Data is inappropriate or unlawful;
(vi) the Provider reasonably believes that the Client is using the Services in a way that would cause Loss or damage to or otherwise cause legal liability to the Provider, other users, third parties or disrupt others’ use of the Services; or
(vii) the Client suffers an Insolvency Event.
(c) The Provider may only offer a pro-rata refund if the Provider terminates during a subscription term under clause 16.2(b)(i) at no fault of the Client. Otherwise no pro-rata refund will be provided.
(d) Where the Provider terminates under clause 16.2(b) (other than under clause 16.2(b)(i) at no fault of the Client) then an Early Termination Fee will be payable.
17. EFFECTS OF TERMINATION
On termination of these Terms and Conditions:
(a) the Client’s (and its Authorised Users’) right to use the Platform is revoked and the Client’s and its Authorised Users’ access will be terminated;
(b) the Client must cease using, and must ensure its Authorised Users cease using the Platform;
(c) all amounts payable by the Client to the Provider (including amounts that are not yet due) shall become immediately due and payable and must be paid within 7 days of termination; and
(d) except where otherwise specified under these Terms and Conditions, the Client acknowledges that they are not entitled to any pro-rata refund of any Fees paid to the Provider which relate to the period following termination.
18. CONFIDENTIALITY AND PRIVACY
18.1 Confidential Information
(a) The parties undertake that they and their respective Personnel will not, without the prior written consent of the other party:
(i) Disclose the Confidential Information of the other party to any person; or
(ii) Use the Confidential Information of the other party for their own or a third party’s benefit.
(b) Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to Personnel who require it to perform these Terms and Conditions.
(c) If requested by either party, the other must return all Confidential Information and any copies of it.
(d) If either party is legally compelled to disclose Confidential Information, they will (subject to any regulatory restrictions) promptly notify the other party to allow them to seek protective measures.
(e) In the event of a breach or threatened breach of this clause, the non-breaching party is entitled to an injunction restraining the Breaching Party from committing any breach, without needing to show actual damage.
18.2 Privacy
(a) The Client must comply with:
(i) Privacy Legislation and Applicable Law;
(ii) Applicable Policies and guidelines of the Provider as communicated.
(b) The Client acknowledges that it will be a joint controller of Personal Information, and the Provider acts on the Client’s instructions where applicable.
(c) The Client warrants that:
(i) It has the right to use the Client Data, and the use of that Data by the Provider complies with applicable Privacy Legislation;
(ii) All Personal Information provided to the Provider complies with this clause and the Terms and Conditions. The Client must inform the Provider immediately upon becoming aware of any breach of Privacy Legislation.
(d) If either party receives a request for access to or correction of Personal Information, it must notify the other party before responding.
19. PUBLICITY RIGHTS
19.1 In consideration of the Services, the Client agrees it may be identified as a client on the Provider's website or marketing materials, and the Provider may use the Client's logo for this purpose. The Client also agrees the Provider may develop a case study about the Client’s use of the Platform for publicity.
20. GENERAL PROVISIONS
20.1 No Waiver
(a) No party may rely on the words or conduct of another as a waiver of any right unless expressly granted in writing. Any waiver is only effective to the extent stated.
(b) This includes delay in exercising rights, elections between remedies, and conduct that could give rise to estoppel.
20.2 Assignment, Novation, and Other Dealings
(a) The Provider may assign or novate its rights under these Terms without the Client’s consent.
(b) The Client may not assign or novate any rights without the Provider's prior written consent, which cannot be unreasonably withheld.
20.3 Costs
Each party bears its own costs associated with the negotiation, preparation, and execution of these Terms.
20.4 Severability
(a) If any part of these Terms is invalid or unenforceable in any jurisdiction, it will be severed in that jurisdiction to the extent necessary.
(b) Severance does not apply if it would materially affect the obligations under these Terms.
20.5 No Merger
On termination of these Terms, the rights and obligations of the parties will not merge, and any unfulfilled provision remains in force.
20.6 Survival
Clauses 1, 5, 8, 12, 13, 14, 17, and 18 will survive termination or expiry, along with any other provisions by their nature intended to survive.
20.7 Further Action
Each party must take all necessary actions (including completing and signing documents) to fully implement these Terms and the contemplated transactions.
20.8 Time of the Essence
Time is of the essence for any date, time period, or obligation to pay money.
20.9 Relationship of the Parties
(a) Nothing in these Terms gives one party authority to bind another party.
(b) These Terms do not impose fiduciary duties on any party.
20.10 Remedies Cumulative
The rights, powers, and remedies in these Terms are cumulative and not exclusive of legal rights or remedies.
20.11 Entire Agreement
These Terms contain the entire agreement regarding its subject matter and supersede all prior agreements, understandings, and discussions.
20.12 No Reliance
No party has relied on any statement, representation, assurance, or warranty except as expressly set out in these Terms.
20.13 Governing Law and Jurisdiction
(a) These Terms are governed by the law of the State.
(b) Each party irrevocably submits to the exclusive jurisdiction of the courts in the State.
(c) Each party waives any objection to the venue based on inconvenience or lack of jurisdiction in the courts described in 20.13(b).