1. The Services
Our services include:
- PerformX® Content Workbench as a Subscription Service
2. Application of these terms
- These terms apply to all services we supply to you.
- In addition to these terms, you must comply with the terms of our Acceptable Use Policy (AUP).
- If we notify you of other conditions that apply to a particular service:
- They apply in addition to these terms.
- They override these terms to the extent of any inconsistency.
- If we notify you of other conditions that apply to a particular service:
1. Subscribing to services
- You may subscribe to services using our online ordering.
- An subscription may be for an upgrade to an existing subscription.
- We are not obliged to accept any subscription.
2. Commencement of service
If we accept an order:
- We will attempt to provision service as soon as practicable.
- Your service period starts as soon as it is provisioned.
- Each subscription is valid for a period of 6 months.
3. Terminating service
- You may terminate a service at any time using our online ordering system, unless a minimum term has been agreed upon that has not yet expired.
- No refund is available for termination within the minimum period.
- We may terminate a service:
- on 14 days notice to you, or
- if clause 28 applies, immediately.
- After your service is terminated:
- We are not obliged to provide any further service to you.
- You must still pay us all charges accrued to your account.
- Your obligations of confidentiality and indemnity under these terms survive.
- Otherwise, the contract between us in respect of the services is at an end for all purposes.
4. Your account
- We will maintain records of services provided to you and charges for them. It is called your ‘account’.
- Our records are taken to be correct unless they are proven to be in error.
5. Our price
- Our prices are as published on our web site or otherwise notified to you.
- We may vary our charges for new services at any time.
- You must pay all charges for usage on your account during your service period.
1. We may invoice any charge as soon as order is received.
3. We may deliver an invoice by electronic delivery or any other reasonable way.
4. You must pay our invoice in full within 7 days
5. If we have recourse to your credit card or direct debit service:
- we may draw down payment on the invoice date; and
- instead of invoicing, we may draw down payment and notify you of the details.
6. Apart from any other rights we have in case of non-payment, overdue invoices incur interest at 1.5% per month.
7. Sales taxes, merchant fees and currency conversions
- Where any sales tax applies to or arises from any supply we make to you or any charge you pay us, you must also pay us (at the same time and in the same way as the charge) the amount of the sales tax.
- Where we incur a merchant fee (or similar) in respect of a payment you make by credit card or direct debit, we may pass that fee on to you as a charge.
- If you pay an invoice in a currency other than the currency of the invoice, and we incur a bank fee for conversion, we may pass that fee on to you as a charge.
8. Account & password security
- You must keep your account details and any associated passwords secure and confidential.
- We are entitled to assume that anyone who accesses your account or service using your password does so by your authority.
9. No ownership
We provide you with services only, and you obtain no ownership of or interest in:
- our physical or virtual hardware
- any software we install on our physical or virtual hardware (including, without limitation, operating system)
- any virtual computer or data storage you access as part of the services – and you acknowledge that each virtual computer remains our exclusive property and cannot be downloaded or transferred to any other service provider.
10. No third party beneficiaries
- There shall be no third party beneficiaries to these terms.
- You indemnify us against any claim by a person that they are a third party beneficiary.
11. IP addresses
- We may allocate one or more addresses to you on a temporary basis in connection with a service.
- We may change IP addresses on reasonable notice to you.
- You obtain no ongoing rights in relation to any IP address.
12. How we provide our services
- We will solely determine how to operate our systems and provide our services.
- We may subcontract or outsource any function as we see fit.
18. Information you supply to us
You warrant that all information you supply to us in connection with your use of our services:
1. is true and complete in all material respects
2. will be kept up to date if it changes.
19. Compliance with laws
In using our services, you must comply with all applicable laws and regulations and, without limitation:
1. You must not use a service (or allow it to be used) to create, store, host, serve or transmit any:
- illegal content
- material that infringes copyright
- defamatory material
- virus, malware or other malicious code.
2. You must not use a service (or allow it to be used) in connection with or in furtherance of any fraudulent scheme or purpose.
3. You indemnify us against any breach of clauses 19 and 17.
- We may make and amend rules about the use of our services.
- Any rules will not be a de facto variation of the rest of these terms.
- You must comply with the rules.
21. Limited warranty under Australian law
Where we supply you with goods or services and the supply is subject to Australian law:
1. any non-excludable warranties and conditions implied by Division 2 of Part V of the Trade Practices Act 1974 apply; but
2. to the fullest extent allowed by law, our liability for breach of them is limited to replacing or repairing goods or supplying equivalent goods (or paying the cost of doing so) or re-supplying services (or paying the cost of doing so).
22. Limited warranty under other law
Where we supply you with goods or services and the supply is not subject to Australian law:
1. We warrant that goods will be of merchantable quality.
2. We warrant that services will be supplied with reasonable skill and care.
3. Your remedy for breach of the warranties in this clause 23 is limited to replacing or repairing goods or supplying equivalent goods (or paying the cost of doing so) or re-supplying services (or paying the cost of doing so).
4. THE WARRANTIES AND REMEDIES IN THIS CLAUSE 23 ARE OUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE SERVICE PERIOD. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
23. Other liability excluded
Subject to clauses 22 and 23:
1. We exclude all implied conditions and warranties of any kind including but not limited to warranties of merchantability and fitness for a particular purpose, whether such conditions or warranties are implied by custom, common law, statute or otherwise.
2. To the fullest extent allowed by law we disclaim and you release us from and indemnify us against all liability to you and any third party under or in relation to or arising out of these terms or any services we provide (or fail to provide) to you whether such liability is direct or indirect, arises by virtue of act or omission, is in the nature of consequential loss or loss of profits, is tortious, contractual, statutory or otherwise in nature, arises or is incurred as principal or agent or vicariously or as bailee, is a primary liability, arises by way of an obligation to indemnify or to contribute, was or was not foreseeable, was or was not of a kind or amount that we were on notice of, or arises from accident or any other cause.
24. Data recovery after termination
1. After your service is terminated, we are not responsible for storing or retaining the contents of a virtual computer or data storage.
2. It is solely your responsibility to copy and download any data you require before your service terminates.
1. We and you must keep each other’s confidential information strictly confidential, and not use it except for the purposes of providing / receiving services or disclose it other than on a ‘need to know’ basis.
2. We are not deemed to hold or have received confidential information from you simply because you have uploaded it to or stored it on our system.
3. Our confidential information includes (without limitation) our correspondence to you, our quotations, proposals, prices, methodologies, systems, documentation and information or material we provide you that is marked ‘confidential’ (or similar).
4. Confidential information’ excludes information that is in the public domain, other than by virtue of a wrongful disclosure by you or us.
5. This clause 26 survives the completion or termination of our services in any circumstances.
26. Intellectual property
1. In relation to any IP works you create, modify, store, copy or transmit using our services, you warrant to us that you have all necessary legal right and authority to so create, modify, store, copy or transmit the IP works.
2. You indemnify us against any breach of the above warranty and against any claim by a third party that it has been breached.
3. If a third party claims that (or we have reason to believe that) there may be a breach of the above warranty, we are not obliged to provide any services until the issue is resolved to our reasonable satisfaction.
4. No intellectual property ownership rights transfer from you to us, or us to you, as a result of these terms or our services.
27. Termination of service
We may terminate any service immediately where:
1. it is necessary due to a force majeure event or an emergency
2. we have suspended service and suspension is not lifted within 14 days
3. we, acting reasonably, suspect that there has been fraudulent or illegal use of a servic
4. we reasonably believe that you have breached these terms and (i) the breach is not capable of remedy or (ii) the breach is capable of remedy and you have not remedied it within the period we specify in a remedy notice
5. we reasonably believe that there is excessive or unusual use of a service
6. we reasonably believe that you are jeopardising the operation or quality of our systems or the services we supply to other customers
7.you have failed to pay any charges you owe us
8. you are an unacceptable credit risk.
28. Suspension of service
We may suspend any service immediately where:
1. we are entitled to terminate it but elect to suspend instead
2. there is a planned outage for operational or maintenance reasons
3. we consider that it is necessary for unscheduled repair, maintenance or service of any part of our systems.
We will end a suspension as soon as reasonably practicable after the event or circumstance requiring the suspension has ceased (if applicable).
You must defend, indemnify and hold harmless us, our officers, directors, employees and agents, from and against any and all demands, claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to legal fees) arising from or in connection with:
1. your use of our services
2. your breach of these terms
3. your violation of any law or third party right
4. any claim that use of our services has harmed a third party.
30. Applicable law
These terms are to be governed by the law of NSW, Australia and any legal proceedings in connection with them or our services must be taken in the courts of that State.
We may provide you with notices, including those regarding changes to these terms:
1. by email
2. by paper mail
3. in any other way recognised by law.
32. Entire agreement
1. These terms are the only terms that apply to our services.
2. To the fullest extent allowed by law, all other terms, warranties and conditions whether express or implied are excluded.
33. Waiver and severance
1. Our failure to exercise or enforce any right or provision of these terms is not a waiver of such right or provision.
2. If any provision is found by a court of competent jurisdiction to be invalid, the parties agree that the court must as far as possible give effect to the parties’ intentions as reflected in it, and these terms otherwise remain in full force and effect.
accessory services: any service we agree to provide, other than a Virtual Computer or Data Storage
data storage: storage of data on our systems
force majeure event: an event or circumstance beyond our reasonable control
IP works: works of any kind in which intellectual property rights subsist
sales tax: a sales tax, goods and services tax, consumption tax, value added tax or similar tax or impost under the law of any relevant jurisdiction
service: as per clause 1
service period: from the provisioning of a service until its termination
virtual computer: the right to use a virtual computer during your service period
we, us, etc: Systemik Solutions Pty Ltd ACN 66 060 421 169
you, etc: our customer