Terms and Conditions
This page sets out the terms on which you may use and access our Website, System, and on purchasing and using Computing Services from our Website or System.
Part A – Acceptance of T&Cs
1. Acceptance of T&Cs
1.1 You agree to these T&Cs in full by:
(a) using our Website; or
(b) using our System; or
(c) purchasing Compute Credits; or
(d) accessing the Computing Services.
1.2 You must not use our Website, access or use our System, or access the Computing Services, if you do not accept these T&Cs.
2. Amendment of T&Cs
2.1 We may, from time to time, amend, add or delete terms or substitute these T&Cs as we see fit by written notice to you (including posting such amended T&Cs, or notice of such amendment, on our Website or System – which will be deemed sufficient written notice to you).
2.2 Your continued use of our Website or System, or you placing an order for Compute Credits, or accessing the Computing Services, will be deemed conclusive evidence that you irrevocably agree to any amendment, addition, deletion, or substitution of these T&Cs as in force as at the time of such use, order or access.
Part B – General Use of Website and System
3. Acceptable Use of Website and System
3.1 We grant you a non-exclusive, non-transferable, revocable, limited licence to:
(a) view and use information accessible from the Website, System; and
(b) purchase Computing Services and/or Compute Credits from the Website and/or System, as is applicable from time to time.
3.2 You must not:
(a) cause damage or interfere with accessibility to the Website, System; any Third Party Systems or any Programs;
(b) use the Website, System, any Third Party Systems or Program that you access through our System in connection with illegal, fraudulent, harmful purposes or activities, or otherwise seek to prevent others from accessing the Website, System, Third Party Systems or Programs (e.g. distributed denial of service attacks);
(c) store, transmit or distribute any Malicious Computer Program on the Website, System, any Third Party Systems or Programs; or
(d) conduct any systematic or automated data collection activities using the Website, the System, any Third Party System or Programs.
4. Registration
4.1 You must become a registered user or a member (or a particular class or type of registered user or member) to access certain areas or Computing Services in our Website or System.
4.2 We may accept or reject your application to be a registered user or member (including for any particular class of registered user or member) on our Website or System as we determine in our sole and absolute discretion.
4.3 You warrant that you will:
(a) provide true and accurate information;
(b) not create accounts with false information;
(c) not transfer your account to someone else or allow someone else to share your account;
(d) at your sole responsibility, keep your username and password safe; and
(e) agree to be bound by such other terms and conditions as we may specify for registration or membership.
4.4 You represent and warrant that any information you supply to us in any registration or application to become a registered user or member is, at all times, true and correct (including, for example, where you are representing or acting on behalf of an entity that is not a natural person, all details necessary to identify that entity).
4.5 We may immediately suspend or terminate your registration or membership (or any particular class of registration or membership for which you are registered) at our discretion if:
(a) you breach any of these T&Cs in a material way or in a way where the breach cannot be remedied (in particular, a breach of clause 3.2); or
(b) you commit any other breach or default of these T&Cs which are capable of being remedied, but you fail to remedy such breach or default within 14 days of us giving you written notice requiring you to do so; or
(c) if you do not use your registration or membership, or the relevant part thereof (i.e. you do not login to our Website or System, as the case requires), or do not utilize the Computing Services via our System, for a period of twelve (12) months or more.
5. Username and Password
5.1 If you become a registered user or member on our Website or System, we may issue you with a username and a password.
5.2 We may treat:
(a) any action or transaction conducted using your assigned username and password to be an act validly performed by you (and you will be liable for any costs, expenses or Liability resulting from such actions or transactions), and
(b) anyone that signs onto our Website, System or Third Party System using your username and password as you, without further verification of identity whatsoever.
5.3 It is your responsibility to ensure that only you have access to your username and password, and you irrevocably release, indemnify and keep us indemnified for all costs, expenses, loss, damage, Liability, claims and demands whatsoever arising out of anyone using your username and password, whether authorised by you or not, to access our Website or System or Third Party System (and any acts performed, whilst logged into such Website, System or Third Party System) except to the extent any such unauthorised use of your user name and password is caused solely by us.
5.4 You are responsible for keeping your registration or account up to date. Any notice that we send to you (whether via email or otherwise) using the details contained in your registration or account will be deemed to be received by you, even if those details are incorrect or out of date.
Part C – Contents and Posts
6. Content
6.1 We own or are licensed to use all Intellectual Property in the Website and System.
6.2 You may only view and download Content on the Website and System for caching purposes and print a single copy of Content for personal use.
6.3 You must not:
(a) republish any Content from our Website or System;
(b) present any Content in public;
(c) reproduce or exploit any Content on our Website or System for commercial purpose;
(d) edit or otherwise modify any Content on our Website or System; or
(e) redistribute any Content from our Website unless we expressly permitted redistribution.
7. Public Posts
7.1 Should the Website or System allow, you may upload Posts on the Website or System subject to this clause.
Intellectual Property Rights
7.2 You grant us a non-exclusive, transferable, sub-licensable, royalty-free, world-wide licence (IP Licence) to use any Intellectual Property in any Public Post you make, including rights to:
(a) copy, reformat, edit or translate at our sole discretion;
(b) publicly perform or present;
(c) distribute for any purpose including for commercial or advertising purpose; and
(d) incorporate in our Website, System or any other works.
7.3 The IP Licence in relation to a Public Post ends when you delete that Public Post but you understand that even if you delete the Public Post, we may still keep back-ups for a reasonable period of time.
Prohibited Posts
7.4 You must not upload any Public Post that:
(a) is unlawful or promotes illegal behaviour;
(b) is harmful, threatening, abusive or harassing;
(c) incites violence or is graphical of violence;
(d) is pornographic or exploits people in a sexual manner;
(e) is defamatory or libellous;
(f) relates to gambling;
(g) relates to alcohol;
(h) promotes racism, bigotry, hatred physical harm or any other discriminatory behaviour;
(i) is false, misleading or fraudulent;
(j) consists of Malicious Computer Program;
(k) impersonates any person or entity or falsely misrepresent your affiliation with a person or entity;
(l) violates or encourages violation of these T&Cs;
(m) infringes or violates another’s rights including copyrights or Intellectual Property Rights;
(n) invades another’s privacy;
(o) includes photograph or image of another person or another person’s property without their consent;
(p) reveals anyone’s identification documents or sensitive financial information;
(q) is posted to disrupt the operation of the Website and its related Computing Services; and
(r) advertises any company or their goods or Computing Services other than us.
Warranties in Relation to Public Posts
7.5 By uploading Public Posts on our Website, you warrant that:
(a) you have the right and authority to provide the Public Post in the manner it is posted;
(b) you own the Public Post and have the right to assign copyright ownership and other Intellectual Property to us; and
(c) the Content is not prohibited content under clause 7.4.
Monitoring of Website
7.6 We have not reviewed and cannot review all Public Posts and we are not responsible for Liability arising out of your, or any other person’s, Public Posts.
7.7 We may, at our sole discretion, pre-screen, reject or remove any Public Post you provide for any reason whatsoever.
8. Third Party Websites
8.1 In this clause:
(a) Third Party Material means material from a Third Party Website which are linked or framed to and from a Third Party Website.
(b) Third Party Website means a website operated by a third party, including any third party that operates a Third Party System.
8.2 We do not verify, endorse or approve any Third Party Material.
8.3 We provide no warranty or representation about Third Party Material:
(a) regarding the quality, accuracy, merchantability or fitness for purpose of Third Party Material or products or Computing Services available from Third Party Website; or
(b) as to whether they infringe any Intellectual Property Rights.
8.4 We are not responsible for:
(a) any offers, statements or representations that are made on behalf of a Third Party Website; or
(b) Malicious Computer Program from Third Party Websites.
8.5 We may receive payments from a Third Party Website in relation to goods or Computing Services supplied by them as a result of you linking to the Third Party Website from our Website.
9. No Warranty as to Content
9.1 The Website and System is provided ‘as is’ and we do not provide any express or implied representation or warranty and disclaims all responsibility as to:
(a) the availability of the Website or System and its associated Computing Services at the time you wish to use it;
(b) merchantability, fitness for a particular purpose and non-infringement;
(c) accuracy or validity of information and Content on the Website and the System; and
(d) whether Content is free from Malicious Computer Program.
9.2 No Content on the Website or System constitutes advice of any kind and you should consult with an appropriate professional for professional advice, and use your own professional judgment in the use of the Website or System.
Part D – Privacy and Information
10. Privacy Policy
10.1 We may collect, and you consent to us collecting, information about you (including from your application to be a registered user or member of our Website or System, any interactions between you and us, including by phone, purchasing or accessing Computing Services from us or otherwise in the course of us trading or communicating with you).
10.2 You consent to us using any personal information about you in the reasonable conduct of our business, including:
(a) determining whether or not to approve you as a registered user or member of our Website or System;
(b) to commence trading with you;
(c) extending credit to you;
(d) provide products or Computing Services to you;
(e) to communicate with you;
(f) offer you promotional products or Computing Services, or market any product or Computing Services you may be interested in, subject to the Spam Act or if you request us to stop sending such materials;
(g) to keep and maintain our customer database(s);
(h) to investigate any complaints you make or to investigate whether you have breached these T&Cs or any other agreement between you and us;
(i) to verify your identity;
(j) as required by law, or to use your information as permitted under the law; and
(k) use any of your information for purposes that are related to the above.
10.3 You irrevocably consent to us disclosing any information about you to third parties for the purposes specified, or related to those specified in paragraph 10.2 provided such information so disclosed is limited to:
(a) particulars as to your identity (e.g. name, address, date of birth, identification document number, etc.);
(b) your application for credit, if applicable (i.e. that you have applied for credit, and the amount);
(c) the fact that we may be providing credit to the you;
(d) any amounts due from you which are overdue by more than 60 days, and for which debt collection action has started;
(e) advising that any amounts which have been previously recorded as overdue are no longer overdue;
(f) information that, in our reasonable opinion, shows that you have committed a serious infringement or dishonest act, with respect to credit (e.g. acting fraudulently, or displaying an intention not to comply with your obligations);
(g) information as to any dishonoured payments of $100 or more, which have been dishonoured more than once;
(h) any information permitted or required to be disclosed pursuant to the Privacy Act or the law; or
(i) is reasonably necessary in the conduct of our business (including to data analytics, agents that perform Computing Services for us, such as debt collection or marketing Computing Services, or our Related Bodies Corporate).
10.4 You may request access to your personal information that we hold and we will:
(a) verify your identity;
(b) charge you to cover the cost of meeting your request, if any;
(c) within a reasonable period of time, comply with your request.
10.5 We may refuse to allow you to access your personal information if we are not required to do so under the Privacy Law.
10.6 You may request to correct your personal information that we hold, and we may update your personal information from time to time so that it is up-to-date, accurate, complete, as is relevant, or as we determine, from time to time.
10.7 If you believe that we have breach any Privacy Law, you may lodge a complaint as follows:
(a) firstly, contact us in writing and include the following in your complaint:
(i) your contact details;
(ii) section or provision of the Privacy Law that you believe we have breached; and
(iii) details of the act or practice that you believe breaches the relevant section(s) or provisions of the Privacy Law;
(b) you must allow us a reasonable time, being not less than 30 days, to reply to your complaint; and
(c) thereafter, you may complain to the Office of the Australian Information Commissioner if:
(i) you are not satisfied with our response or remedial action; or
(ii) we do not respond to you within a reasonable time without sufficient explanation.
11. Cookies Policy
11.1 You agree that:
(a) we may store cookies on your device; and
(b) we may issue and request cookies from your device to collect both personal and non-personal information.
11.2 You may disable cookies on your browser if you do not agree to our Cookies Policy, however, certain parts of the Website and/or System may not be accessible if cookies are disabled.
11.3 You agree that we may use, including but not limited to, following types of cookies:
(a) authentication cookies (that monitor whether you are logged in or out);
(b) session cookies (that allow you to remain logged in and keep track of your activities);
(c) persistent cookies (that help us monitor our Website, System and Computing Services by recording your browser activities and they do not expire upon browser shut down); and
(d) flash cookies.
11.4 We use cookies for the reasons including but not limited to:
(a) improve the performance by reporting any errors that occur;
(b) provide statistics about how the Website is used;
(c) remember settings that you use for our Website;
(d) identify and show that you are logged into the Website;
(e) link to social networks like Facebook and Twitter;
(f) provide more suitable ads tailored to you.
12. Security
12.1 All credit card transactions are implemented under industry standard Secure Sockets Layer (SSL) protocol with 128-bit encryption.
12.2 For credit card transactions we use a third party processor (e.g. Stripe or PayPal) and/or payment gateway (e.g. Fat Zebra or eWay) that we may change from time to time so that:
(a) payments are processed in real time; and
(b) we do not have access to your credit card numbers.
12.3 We use a database management system to store any personal information we collect and it contains security features, such as encryption, firewall and anti-virus, to ensure the protection and integrity of our data.
Part E – Accessing Computing Services
13. Accessing Computing Services
13.1 If we agree to supply Computing Services to you (i.e. accept your registration as a registered user or member of the kind prescribed by us from time to time that may access such Computing Services), you will be able to access those Computing Services through our System subject to these T&Cs.
13.2 Generally, you will only be able to access the Computing Services if:
(a) you have a current and valid registration or membership of the type that allows you to access the Computing Services;
(b) you have paid all subscription fees in relation to your registration or membership; and
(c) you hold sufficient current and valid Compute Credits for the nature and extent of the Computing Services you wish to access.
13.3 As a general explanation only, and subject to the terms of these T&Cs, the operation of the Computing Services will be as follows:
(a) we will load or install on the Third Party System the Programs;
(b) you will access the Programs on the Third Party System via our System;
(c) you will input data and other information into the Programs via our System (or our System may direct you to directly input data and information directly into the Programs and/or Third Party System); and
(d) the Programs will be processed by those Third Party System, and generate certain outputs that the Programs are capable of generating.
14. Compute Credits
14.1 Before you can access the Computing Services, you must purchase and hold Compute Credits, pursuant to clause 18.
14.2 Compute Credits will have attached to each of them, the right to use the Computing Services for a certain period of time as specified on our Website or System, or otherwise as amended pursuant to clauses 14.3 - 14.5 (Compute Credit Value).
14.3 We may amend or vary the Compute Credit Value at any time at our discretion (including any Compute Credits which have been previously purchased, but not used) by giving you 30 days’ written notice, or such longer time as we may determine.
14.4 If we amend the Compute Credit Value, such amendment will come into effect at the end of 30 days from when we give you written notice pursuant to clause 14.3 (or such longer time as stated in such notice), and that new Compute Credit Value will apply to:
(a) all previously purchased but unused Compute Credits; and
(b) any Compute Credits purchased after such dates.
14.5 Without limiting the generality of clause 14.3 and the reasons or circumstances in which we may amend the Compute Credits Value, we may amend such Compute Credits Value if or when:
(a) the cost or expense to us of granting you (or other customers, generally) access to the Programs and/or the Third Party System changes (including, for example, due to a change in the base price for accessing the Third Party System, or exchange rates); or
(b) the availability of access to the Programs and/or the Third Party System changes or becomes limited.
14.6 As you utilise the Computing Services, your Compute Credits will be automatically applied towards the period of time that you are utilising the Computing Services, and any Compute Credits so applied will automatically be cancelled.
14.7 The time it takes to run or execute a process or operation using the Computing Services, or the number of Compute Credits applied towards the execution of such process or operation, as measured or determined by the System, will be final and conclusive evidence of that fact in the absence of manifest error (and you will be responsible for, and bear the onus of, proving any such error).
14.8 If we provide (via the System) an estimate for the expected time to run or execute a process or operation using the Computing Services, or the number of Computing Credits required, while we will try to calculate such time or number as accurately as reasonably possible, such figure will be an estimate, only, and not a guarantee or warrantee that such process or operation can be completed in such time, or that the Compute Credits required will be limited to such estimate.
15. Insufficient Compute Credits
15.1 To the extent that you are operating a Program or processing data using a Program, or wishing to do so, but the unused Compute Credits you hold are insufficient (or in our opinion, not reasonably sufficient) to complete such operation or process, we may, at our discretion:
(a) if the operation or process has not started, refuse you access to the relevant Program, Third Party System or use of the Computing Service until, in our reasonable opinion, you have purchased sufficient Compute Credits to complete such operation or process;
(b) if the operation or process has started, suspend or terminate the operation or process until, in our reasonable opinion, you have purchased sufficient Compute Credits to complete such operation or process; or
(c) permit the operation or process to continue until completion, but subsequently charge you for an amount equivalent to the price of Compute Credits (as in force at the completion of such operation or process) multiplied by the number of Compute Credits you would have needed to complete such operation or process (based on the Compute Credit Value as in force at the completion of such operation or process).
15.2 Where we suspend or terminate the operation or process of any Computing Service, or your use of any Programs on the Third Party System pursuant to paragraph 15.1(b), we are not responsible or liable under any circumstances if you have to start or perform such operation or process or any part thereof again, and for the avoidance of doubt:
(a) where, due to such suspension, you need to perform any process or operation or any part thereof again, and require access to the Computing Services, you must apply new Compute Credits to that use of the Computing Services; and
(b) we will not give you any refund for or reinstate any Compute Credits applied towards your previous access to the Computing Services for the purposes of performing any operation or process on the Programs or Third Party System which need to be re-performed.
16. Expiry of Compute Credits
16.1 Except as otherwise expressly provided in these T&Cs, we will not be liable to give you a refund for any Compute Credits (including any unused or expired Compute Credits) whatsoever.
16.2 Subject to clause 16.3, we may elect that your unused Compute Credits automatically and immediately expire, and cannot be applied towards future Computing Services, if your registration as a registered user or member who can access Computing Services expires or terminates for any reason (including, for example, pursuant to clause 4.5).
16.3 Despite clause 16.2, we may, at our sole and absolute discretion, elect to allow Compute Credits to continue (and not immediately expire) following the termination, expiry, or other end of your registration as a registered user or member who can access the Computing Services, for any length of time as we see fit.
Part F – Fees & Costs
17. Subscription Fees
17.1 We may, from time to time, prescribe fees that are payable by you to register as and/or remain as a registered user or member of a particular type, or to have access to particular functions of our Website or System (Subscription Fees).
17.2 If you are a registered user or member of a particular type in relation to which Subscription Fees apply (Subscription Member), we may determine the length of time that you are able to remain as a Subscription Member given the amount of Subscription Fees paid by you (e.g. a monthly Subscription Fee will allow you to remain that type of registered user or member for one month) (Subscription Term).
17.3 If you are a Subscription Member, you immediately cease to be a Subscription Member of that type at the end of the Subscription Term, and you will cease to have the rights and privileges of that particular type of Subscription Member unless you renew your registration as a Subscription Member (which, for the avoidance of doubt, and for the purposes of clause 17.5, is taken to be the termination and expiration of your previous registration as a Subscription Member, and then you applying to be registered again to be a Subscription Member of the same type).
17.4 Any Content or material on our Website or System offering for you to become a Subscription Member is an invitation to treat only (i.e. an invitation for you to apply to become a Subscription Member of that type), and not an offer by us to you to for you to be registered as a Subscription Member.
17.5 When you are applying to be registered as a Subscription Member of a particular type, you must pay to us the relevant Subscription Fee for the relevant Subscription Term in advance immediately upon you making such application or when you are registered (whichever is the earliest).
17.6 Where you are applying to change registration or membership types:
(a) We are not required to agree to any proposed variation to the change in membership or registration type;
(b) if we agree to the change in membership or registration type, the new registration or membership type will end on the same date that your previous membership or registration would have ended on;
(c) if you are changing to a membership or registration type with a lower Subscription Fee for the balance of the Subscription Term, you will not be entitled to receive any refund of any previously paid Subscription Fees (including any difference thereof), and the difference will not be applied towards any future fees, costs or expenses whatsoever;
(d) if you are changing to a membership or registration type with a higher Subscription Fee for the balance of the Subscription Term, you must pay us, at the time of such change, the difference in the Subscription Fee for the balance of your Subscription Term and any benefits attaching to that new membership or registration type (e.g. bonus Compute Credits) will be granted to you pro-rata based on the balance of the Subscription Term at the time of such change as a proportion of the total Subscription Term.
17.7 Without limiting our remedies under these T&Cs or the law, we may refuse to process or accept your application to become a Subscription Member of a particular type if you fail to comply with clause 17.5.
17.8 Subject to the terms of these T&Cs and to the extent permitted by law, we are not required to refund to you any Subscription Fees in any circumstance, including:
(a) you failing to utilise all or part of the relevant functions or capabilities of the Website or System available to Subscription Members of a particular type;
(b) your registration as a Subscription Member being suspended or terminated as permitted by these T&Cs; or
(c) any part of the Website, System or Computing Service being not available for any period of time.
18. Purchasing Compute Credits
18.1 You may request to purchase Compute Credits from our Website or System (as is applicable from time to time), or if those options are not available for any reason, by making a written request to purchase Compute Credits from us.
18.2 Any Content or material on our Website or System offering Compute Credits is an invitation to treat only, and not an offer by us to sell or provide you with Compute Credits. Your request to purchase Compute Credits, pursuant to clause 18.1 will be an offer by you to purchase Compute Credits, which we may accept or reject in our sole discretion.
18.3 You must pay us the price for Compute Credits when you request those Compute Credits from us, or when we confirm you have received such Compute Credits, whichever is earlier.
18.4 Without limiting our remedies under these T&Cs or at law, we may refuse to provide you with Compute Credits until you comply with your obligations under clause 18.3.
18.5 Where we are entitled to charge you an amount equivalent to the number of Compute Credits you would have needed to complete a process or operation (in circumstances where you did not hold sufficient Compute Credits) pursuant to clause 15.1(c), you must pay us such amounts on demand from us (and an invoice issued by us for that purpose will be a written demand).
18.6 Subject to the terms of these T&Cs and to the extent permitted by law, we are not required to refund to you any amounts paid by you for Compute Credits in any circumstance, including:
(a) any change in the Compute Credits Value, pursuant to clauses 14.3 - 14.5;
(b) any Compute Credits not being used, or expiring, pursuant to the terms of these T&Cs; or
(c) any part of the Website, System or Computing Service being not available for any period of time.
19. Excess Data Transfer Fees
19.1 We may, from time to time, by written notice to you, prescribe a maximum data upload or download allowance per user or member over a particular period of time, or per Compute Credit (Data Transfer Limit).
19.2 Where:
(a) you exceed the Data Transfer Limit; or
(b) we incur any additional costs or expenses in providing the Computing Services as a result of the amount of the data uploaded or downloaded by you;
we will be entitled to, at our discretion and without the obligation to do so:
(c) charge you a fee (Excess Data Fee) in relation to the extra data uploaded and/or downloaded in excess of the Data Transfer Limit or that caused the additional cost or expense to us; and/or
(d) treat such act as a default of these T&Cs, and exercise any one or more of our remedies pursuant to these T&Cs available to us on your default
19.3 For the purposes of clause 19.2, where we incur additional costs and expenses in providing the Computing Services as a result of the amount of data uploaded or downloaded by you together with other people using the Computing Services, the aggregate Excess Data Fee will be apportioned between you and such persons pro-rated based on the amount of data used by you and each such person to which the additional costs or expenses apply.
19.4 We may prescribe the rate of the Excess Data Fee from time to time, by posting a schedule thereof on our Website or System, or otherwise giving you written notice of such rate.
20. Price
20.1 Prices for any:
(a) Subscription Fee;
(b) Compute Credits; or
(c) Excess Data Fee;
Are published on our Website or System, and may be amended by us from time to time at our discretion by changing the pricing schedule(s) on our Website or System, or by written notice to you.
20.2 By you:
(a) continuing to use and access our Website or System;
(b) purchasing Compute Credits; or
(c) using the Computing Services;
20.3 you will be deemed to consent to, and agree to, the prices for any Subscription Fee, Compute Credits or Excess Data Fee as in force at the time of such use, access or purchase.
20.4 All prices, unless otherwise stated on our Website or System, are quoted as being exclusive of GST.
20.5 If we accept payment by credit card and you pay by credit card, you warrant that your credit card details are true and correct and that you are authorised to charge the relevant credit card.
20.6 All prices are in Australian Dollar ($AUD) unless otherwise indicated.
20.7 You agree to indemnify us from and against any loss or damage we suffer in connection with a breach of warranty in sub-clause 20.5.
Part G – Acknowledgements re. Computing Services
21. Third Party System
21.1 You agree and acknowledge:
(a) the Computing Services are performed on a Third Party System;
(b) to the extent permitted by law, we do not give any representations in relation to the Third Party System including:
(i) performance of the Third Party System (e.g. computing power or speed);
(ii) the availability of the Third Party System (and therefore the Computing Services);
(iii) that the Computing Services or any part thereof will be provided or completed in a particular time (and therefore that the amount of Compute Credits you are required to purchase, whether before or after commencing such Computing Services, will be any particular amount);
(iv) that the Third Party System is fit for any particular purpose; or
(v) any other matter in relation to the Third Party System whatsoever;
(c) that you have satisfied yourself as to the appropriateness of the Third Party System for your purposes;
(d) we are not able to guarantee or ensure the security or confidentiality of any data or information that is transferred to or from, or otherwise processed on, the Third Party System; and
(e) we will not have any Liability whatsoever, and you release and indemnify us from such Liability, for any costs, expenses, loss or damage you suffer or incur caused by any default or operation of the Third Party System, including in relation to any matter listed in this clause 21.1.
22. Programs
22.1 The available Programs will be notified to you on our Website, the System or by written notice to you.
22.2 We may amend the available Programs from time to time at our discretion from time to time by written notice to you (including by posting such changes to our Website or System, which will be deemed written notice to you upon its posting). Without limiting the generality of this clause 22.1, the circumstances in which we may change the available Programs (or remove previously available Programs) include:
(a) the relevant Program becoming out of date or redundant;
(b) we are no longer permitted to use the relevant Program, or provide them to you; or
(c) our costs of providing the Program to you in the course of the Computer Computing Services substantially or materially increases
22.3 You agree and acknowledge:
(a) the Programs are designed by a third party (except to the extent we have made any modifications or amendments to third party Programs), and we have no influence or control as to their programming, quality, efficiency, accuracy or capabilities whatsoever;
(b) we are not required to, and do not, give you any technical advice as to the use and operations of any of the Programs (except how to access the Computing Services through our System);
(c) to the extent permitted by law, we do not give any representations in relation to the Programs including:
(i) performance of the Programs;
(ii) the availability of the Programs (and therefore the Computing Services);
(iii) that the Computing Services or any part thereof will be provided or completed in a particular time (and therefore that the amount of Compute Credits you are required to purchase, whether before or after commencing such Computing Services, will be any particular amount);
(iv) that the Program(s) any one or more of them is fit for any particular purpose; or
(v) any other matter in relation to Programs whatsoever;
(d) that you have satisfied yourself as to the appropriateness of the Programs for your purposes;
(e) we are not able to guarantee or ensure the security or confidentiality of any data or information that is transferred to or from, or otherwise processed by, the Program(s); and
(f) we will not have any Liability whatsoever, and you release and indemnify us from such Liability, for any costs, expenses, loss or damage you suffer or incur caused by any default or operation of the Program(s) or any one or more of them, including in relation to any matter listed in this clause 22.3.
22.4 The System and Third Party System may allow you to upload, operate and execute your own programs using the Third Party System (Third Party Programs). If so:
(a) we give no representations or warranties that any Third Party Program you wish to upload to the Third Party System will be compatible with, or otherwise can be operated on, the Third Party System;
(b) we give no representations or warranties as to the Third Party Program’s, whether via the Third Party System or otherwise, accuracy, performance, quality, fitness for purpose, or any other matter whatsoever;
(c) you represent, warrant, and undertake that you have all necessary right, authority and consent to use the Third Party Program on the Third Party System;
(d) that the use of the Third Party Program will take any particular amount of Computing Services (time) or Compute Credits, whatsoever;
(e) you are responsible for ensuring the Third Party Program is appropriate for your purposes; and
(f) we will not have any Liability whatsoever, and you release and indemnify us from all Liability, for any costs, expenses, loss or damage you suffer or incur caused by any default or operation of any Third Party Program(s), including in relation to any matter listed in this clause 22.4.
23. Your Use of Computing Services
23.1 You agree and acknowledge that:
(a) the functionality, accuracy and capability of the Programs is dependent on the data and information input into the Programs by you in the course of accessing the Computing Services;
(b) the outputs of any of the Programs will be fundamentally affected by factors outside of our control, including but not limited to:
(i) any inaccuracies or incompleteness of the data or information you input into the Programs;
(ii) any assumptions used by the Programs; or
(iii) any ‘glitches’ or errors in the programming or coding of the Programs;
(c) the outputs of any of the Programs need to be interpreted and analysed by a suitably qualified professional exercising proper professional judgment, and should not be taken at face value.
23.2 As a result of the acknowledgements at clause 23.1, you represent, warrant and undertake that, at all times while accessing the Computing Services, or using the outcomes of those Computing Services:
(a) you will ensure that a suitably qualified professional who is familiar with the Program being used:
(i) inputs the data and information into the Program; and
(ii) analyses and interprets any outputs from the Program;
(b) the data and information you input into the relevant Program in the course of accessing the Computing Services is true, correct, accurate and correct in every respect; and
(c) you are authorised and entitled to use the data and information you are inputting into the relevant Program.
23.3 You release, indemnify and keep us indemnified from all cost, expense, Liability, claims and demands whatsoever suffered or incurred by any person or entity whatsoever as a result of you:
(a) failing to comply with your representations and undertaking at clause 23.2, or if your warranty under that clause 23.2 is incorrect in any respect;
(b) failing to exercise all reasonable professional judgment in the use of the Computing Services or analysis of the outputs of the Computing Services; or
(c) being negligent in your use of the Computing Services or the outputs of the Computing Services.
24. Storage Services
24.1 To the extent that we provide any storage services for information or data in conjunction with the Computing Services (and for the purposes of theses T&Cs, such storage services, to the extent they apply, are included in the definition of ‘Computing Services’), you agree and acknowledge:
(a) such storage services are for convenience only, and you use them at your own risk;
(b) those services should not be relied upon as your primary method of information or data storage, collection or retrieval;
(c) while we will use reasonable endeavours to prevent unauthorised access to data you store via any storage services, we give no representations or warranties as to the safety, security, or confidentiality of such storage;
(d) you are responsible for ensuring that any sensitive or confidential data or information is sufficiently protected or encrypted; and
(e) we will not have any Liability whatsoever, and you release and indemnify us from such Liability, for any costs, expenses, loss or damage you suffer or incur caused by any default or operation of our storage services, including in relation to any matter listed in this clause 24.1.
24.2 If you cease to be a registered user or member of the type that has access to Computing Services, generally, or storage services, specifically, we may, at any time:
(a) give you written notice that we intend to delete any data or information stored via such storage service; and
(b) upon the expiry of 30 days from us giving you such notice, delete or destroy any or all such data or information; and
you irrevocably:
(c) consent to us deleting or destroying any such data or information; and
(d) release and indemnify us from all costs, expenses, loss, damage or Liability whatsoever that you may suffer or incur as a result of such deletion or destruction.
24.3 Where you are changing your registration or membership type to one that has, attached to it, lower storage service allowances or capacity:
(a) we may refuse such change if the data you have stored using the storage services exceeds the allowance attaching to the new registration or membership type;
(b) request that you delete or remove from the storage services data in excess of the new storage service allowance, whether before of after acting your change in registration or membership; and/or
(c) treat your failure to comply with paragraph 24.3(b), or the fact that the data you have stored using the storage services being in excess of the new registration or membership allowance as a default under these T&Cs (in which case we may enforce any rights or remedies available to us in the event of a default of these T&Cs).
24.4 If you request that we transfer any stored data or information using our storage service to any other device or location, we may charge you a reasonable fee for doing so, and such fee will be payable on demand by us, prior to us conducting such transfer.
25. Errors in Description
25.1 You acknowledge and agree that there may be technical or administrative errors in information on our Website or System including but not limited to the description, pricing and availability of Computing Services.
25.2 We may correct any errors on our Website or System and if you purchased any Compute Credits, or paid any Subscription or Excess Data Fees, based on such error, we may at our discretion:
(a) inform you of the errors for you to resubmit your application or order (if applicable) or for you to pay the correct price (if applicable); or
(b) reject your application or order (if applicable) and refund the full amount of payment you made (if any).
Part H – Representations, Warranties and Liability
26. Warranties and Guarantees
26.1 To the fullest extent permitted by law, we exclude all representations, warranties or terms (whether express of implied) not otherwise specified in these terms.
Implied Terms
26.2 If you are a consumer, or are accessing the Computing Services as a consumer, for the purposes of the Australian Consumer Law, these T&Cs include, by implication, only those warranties, conditions and terms that:
(a) law or legislation implies into these T&Cs; and
(b) law or legislation prohibits the parties from modifying, excluding or contracting away.
27. Limitation of Liability
27.1 In this clause, a Covered Party means:
(a) us, our affiliates, and any officer, director, employee, sub-contractor, agent or successor; and
(b) each third party supplier of Content, their affiliates, and any officer, director, employee, subcontractor, agent or successor.
27.2 To the maximum extent permitted by law, a Covered Party is not liable or responsible for any cost, expense, Liability, claims or demands arising out of or related to, the Website, System, Third Party System or Program, in relation to:
(a) Content or materials provided to you for free-of-charge;
(b) inaccuracy, errors or omissions with Content;
(c) unavailability or interruption of usage of our Website, System, Third Party System, Program, Computing Services or other associated Computing Services;
(d) the accuracy, reliability or quality of any outputs or results of the Computing Services (including as a result of any breach of warranty or condition of contract, or arising in tort);
(e) any delay or failure in performance beyond the reasonable control of a covered party; and
(f) loss of data.
27.3 In addition to clause 27.2, to the fullest extent permitted by law, a Covered Party is not liable or responsible for any cost, expense, Liability, claim or demand:
(a) that is caused by anything other than that which is the fault of, or in, our System;
(b) for any indirect, special or consequential Liability (including legal fees) whatsoever; or
(c) for any consequences resulting from your provision of false, fraudulent, incomplete or incorrect information:
(i) in order to become a registered user or member of a particular type;
(ii) in order to access the Website, System or Computing Services, whatsoever; or
(iii) in your use of the Computing Services, System, Programs, Website, Third Party Systems, as is applicable.
27.4 To the fullest extent permitted by law, our Liability to you for the supply of Computing Services, in the aggregate, is limited to the amount that you have paid us in relation to such Computing Services.
27.5 The exclusion of Liability in clauses 27.2 - 27.4 apply even if you expressly advise a Covered Party of the potential loss.
27.6 To the fullest extent permitted by law, our Liability for any breach of any condition, warranty or guarantee (including any condition, warranty or guarantee implied under sub-clause 26.2), and/or any tort, is, at our discretion, limited to the lesser of:
(a) supply of the Computing Services again; or
(b) payment of the cost of supplying the Computing Services again (including in the form of providing free Computing Credits to perform those Computing Services again); or
(c) in case of any other damages, $100.00.
27.7 Nothing in this agreement will exclude or limit our Liability in respect of any:
(a) death or personal injury caused by our wilful act or negligence;
(b) fraud or fraudulent misrepresentation on the part of us; or
(c) matter which it would be illegal or unlawful for us to exclude or limit, or to attempt or purport to exclude or limit, its Liability.
28. Indemnity
28.1 You indemnify us against all costs, expenses, losses, damages, Liabilities, Claims and demands whatsoever arising out of or in connection with:
(a) your use of our Website or System;
(b) you supplying goods or services to a third party, including any Computing Services we supply to you which you subsequently on-supply to that third party;
(c) your use of any Computing Services we supply contrary to any of our instructions or directions; and/or
(d) any breach of these T&Cs by you or your employees, agents or subcontractors whatsoever.
28.2 Any amounts payable by you pursuant to clause 28.1 will be payable on demand by us.
Part I – Intellectual Property
29. Intellectual Property
29.1 To the extent permitted by law, we retain all Intellectual Property and Intellectual Property Rights, including any copyright, in, or comprised in:
(a) our Website;
(b) our System; and
(c) our Computing Services;
29.2 including in relation to the integration of such items with the Third Party System and/or Program(s).
29.3 All Intellectual Property and Intellectual Property Rights comprised in the Third Party System and/or Program(s) remain with their respective owners.
29.4 You may only use Computing Services provided by us for your own personal use, and for the purpose and in the manner such Computing Services are intended or as directed by us.
29.5 You must not, unless we permit or direct otherwise:
(a) republish, reproduce or copy any Computing Services provided to you;
(b) on-supply or redistribute the Computing Services or access to our System, the Third Party System and/or Program(s) or any part thereof to any third party;
(c) reproduce the Computing Services, our System, Third Party System and/or Program(s) for any commercial purpose;
(d) edit or otherwise modify any content in such goods on our Website; or
(e) do anything that will or is likely to cause any infringement of our Intellectual Property Rights, or those of any third party.
29.6 If you suspect that any of our Intellectual Property or Intellectual Property Rights is being infringed upon, you must immediately notify us of that fact.
Part J - Miscellaneous
30. No Waiver
30.1 A Party waives a right under these T&Cs only by giving written notice that it waives that right.
30.2 A waiver is limited to the instance referred to in the writing (or if no instance is referred to in the writing, to past instances).
30.3 A right is not impaired or waived by:
(a) a failure to exercise that right;
(b) a delay in exercising that right;
(c) a partial exercise of that right;
(d) a previous exercise of that right; or
(e) negotiations between the Parties.
31. Jurisdiction
31.1 These T&Cs are governed by the laws of the Australian Capital Territory.
31.2 The Parties irrevocably submit to the exclusive jurisdiction of the courts of the Australian Capital Territory
31.3 No Party may object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction.
32. Severability
32.1 If all of any part of any provision of these T&Cs is invalid or unenforceable, then:
(a) that provision is severed from this Agreement to the extent necessary to remove the invalidity or illegality; and
(b) the remaining provisions of these T&Cs remain valid and enforceable.
33. Termination
33.1 These T&Cs terminate if we cease to operate the Website and System and cease to offer the Computing Services.
34. Survival of Certain Terms
34.1 The terms of these T&Cs which are capable of having effect after these T&Cs end continue to have full effect, including all clauses in relation to:
(a) protection of Intellectual Property;
(b) post-agreement restraints; and
(c) guarantees, warranties, indemnities and limitation of Liability.
35. General Warranties
35.1 You represent and warrant that:
(a) you have all necessary authority, power and consent necessary to agree to these T&Cs;
(b) you have read through these T&Cs, understand its terms, and do not require any further explanation or advice as to its terms;
(c) you have had the opportunity to obtain independent legal advice in relation to these T&Cs, and have chosen to continue to use the Website and System in reliance on that legal advice, or have waived your right to obtain such legal advice; and
(d) you do not require us to give you any explanation or advice as to the provisions of these T&Cs or its operation, and we have not given you any such advice.
35.2 We may rely on the warranty in clause 35.1 if you claim that you were not aware of these T&Cs, did not understand its operation, were not given the opportunity to obtain any legal advice, or any analogous claim.
36. Interpretation
36.1 In these T&Cs, unless the contrary intention appears:
(a) a reference to these Terms or Conditions, or any instrument includes any variation or replacement of any of them;
(b) a reference to a person includes a body corporate, joint venture, association, government body, firm and any other entity;
(c) a reference to legislation includes any amendments to it, any legislation substituted for it, and any subordinate legislation, regulations, rules or codes made under it;
(d) the singular includes the plural and vice versa;
(e) words of one gender include any gender;
(f) headings do not affect the interpretation of these T&Cs;
(g) reference to a Party includes that Party’s personal representatives, successors and permitted assigns;
(h) reference to a thing (including a right) includes a part of that thing;
(i) if a Party comprises two or more persons:
(i) reference to a Party means each of the persons individually and any two or more of them jointly;
(ii) a promise by that Party binds each of them individually and all of them jointly;
(iii) a right given to that Party is given to each of them individually; and
(iv) a representative, warranty or undertaking by that Party is made by each of them individually;
(j) a provision must not be construed against a Party only because that Party prepared it;
(k) a provision must be read down to the extent necessary to be valid and if it cannot be read down to that extent, it must be severed;
(l) if a thing is to be done on a day which is not a Business Day, it must be done on the Business Day before that day;
(m) another grammatical form of a defined expression has a corresponding meaning;
(n) the word “include” is used without any limitation;
(o) the rights, duties and remedies in this Agreement operate to the extent that they are not excluded by law; and
(p) examples are descriptive only and not exhaustive.
37. Definitions
37.1 Unless the context otherwise requires:
(a) Australian Consumer Law means Schedule 2 of Competition and Consumer Act 2010 (Cth).
(b) Business Day means a day except a Saturday or Sunday or other public holiday in the jurisdiction specified in clause 31 and/or in the State of Victoria.
(c) Claim means any claim, suit, action, demand, or right.
(d) Compute Credits means credits you purchase from us, from time to time, that are applied towards accessing, or purchasing from us, Computing Services.
(e) Compute Credit Value has the same meaning given to that term pursuant to clause 14.2.
(f) Computing Services means the Computing Service we provide you whereby we grant you, or facilitate your, access to Programs installed on Third Party Systems via our System to access and utilise those Programs but the operation and processing of which will use the computing facilities or capabilities of those Third Party Systems, and includes any associated services, including data or information storage services.
(g) Consequential Loss includes all forms of indirect loss including loss of revenue, loss of profits, failure to recognise profits or savings and any other commercial and economic loss, howsoever caused.
(h) Content means any material on the Website or the System as amended from time to time including but not limited to text, document, image, logo, photo, audio material, video material and audio-visual material.
(i) Excess Data Fee has the same meaning given to that term pursuant to clause 19.2.
(j) GST has the meaning given in the GST Act.
(k) GST Act means A New Tax System (Goods and Computing Services Tax) Act 1999 (Cth).
(l) Intellectual Property means all existing or future species of industrial and intellectual property, whether registered or unregistered, registrable or not:
(i) as defined in Article 2 of the World Intellectual Property Organisation (WIPO) Convention; or
(ii) recognised by any statute or any principle of law or equity,
(iii) including copyrights, patents, designs, trade marks, circuit layout rights, confidential information, trade secrets and the right to register all such intellectual or industrial property rights.