0.01.004

Terms of Use

Updated: April 23, 2018

Welcome to Kradle. Please read these Terms of Use carefully. All contracts that we may offer from time to time for the provision of the Hosted Services shall be governed by these Terms of Use. By registering to use Kradle and becoming a Customer, you acknowledge that you have read, understood and you agree to the Terms of Use.

By registering to use Kradle and becoming a Customer, you acknowledge that you have read, understood and you agree to the Terms of Use.


1  Definitions

1.1  Except to the extent expressly provided otherwise, in these Terms of Use:

  • "Account" means an account enabling a person to access and use the Hosted Services including both administrator accounts and user accounts;
  • "Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
  • "Agreement" means a contract between the parties incorporating these Terms of Use and any amendments to that contract from time to time;
  • "Business Day" means any weekday (Monday to Friday) other than a public holiday in Queensland, Australia;
  • "Business Hours" means the hours of 09:00 to 17:00 on a Business Day;
  • "Change" means any change to the scope of the Services OR any change to the Agreement;
  • "Charges" means such amounts as specified by the provider when the Customer completes the online application (Services Order) for the Hosted Services offered by the Provider;
  • "Confidential Information" means the Provider Confidential Information and the Customer Confidential Information;
  • "Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
  • "Customer" means the person or entity identified when completing the online application (Services Order);
  • Customer Administrator(s)” means the person(s) or entity identified as the system administrator(s) when completing the online application (Services Order);
  • "Customer Confidential Information" means:
    • (a)  any information disclosed by or on behalf of the Customer to the (a) Provider during the Term that at the time of disclosure:
      • (i)  was marked or described as "confidential"; or
      • (ii)  should have been reasonably understood by the Provider to be confidential; and
    • (b)  the Customer Data;
  • "Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
  • "Customer Indemnity Event" has the meaning given to it in Clause 17.3;
  • "Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement;
  • "Customer Representatives" means the person or persons identified as such when completing the online application (Services Order), and any additional or replacement persons that may be appointed by the Customer;
  • "Customer Systems" means the hardware and software systems of the Customer that interact with, or may reasonably be expected to interact with the Hosted Services;
  • "Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data by the General Data Protection Regulation;
  • "Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
  • "Effective Date" means the date when the Customer completes and submits the online application (Services Order) for the Hosted Services published by the Provider on the Provider's website;
  • "Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
  • "General Data Protection Regulation" (GDPR) (Regulation (EU) 2016/679) is a regulation by which the European Parliament, the Council of the European Union and the European Commission intend to strengthen and unify data protection for all individuals, as of 25 May 2018.(https://www.eugdpr.org/).
  • "Hosted Services" means the services specified in the Hosted Services Specification, which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms of Use;
  • "Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising from:
    • (a)  any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
    • (b)  any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorized by the Customer;
    • (c)  a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or
    • (d)  an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
  • "Hosted Services Specification" means the specification for the Platform and Hosted Services as set out below:
    • (a)  Platform – Microsoft Azure, SQL Database;
    • (b)  Hosted Services – Kradle Software;
  • "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, and rights in designs);
  • "Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
  • "Minimum Term" means, in respect of the Agreement, the period of thirty (30) days beginning on the Effective Date;
  • "Personal Data" has the meaning given to it in the General Data Protection Regulation;
  • "Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
  • "Provider" means Kradle Software Pty Ltd, a company registered in Australia, having its registered office and principal place of business at Level 1, 139 Coronation Drive, Milton, Queensland, 4064, Australia;
  • "Provider Confidential Information" means:
    • (a)  any information disclosed by or on behalf of the Provider to the Customer during the Term or at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as "confidential" or should have been understood by the Customer (acting reasonably) to be confidential; and
    • (b)  the terms of the Agreement;
  • "Provider Indemnity Event" has the meaning given to it in Clause 17.1;
  • "Schedules" means Schedule 1 – Acceptable Use Policy, Schedule 2 – Availability SLA, Schedule 3 – Maintenance SLA and Schedule 4 – Support SLA;
  • "Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms of Use;
  • "Services Order" means an online order form published by the Provider and completed and submitted by the Customer incorporating these Terms of Use by reference;
  • "Support Services" means support in relation to the use of and the identification and resolution of errors in the Hosted Services, but shall not include the provision of training services;
  • "Supported Web Browser" means the current release from time to time of Mozilla Firefox, Google Chrome, or any other web browser that the Provider agrees in writing shall be supported;
  • "Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
  • "Terms of Use" means all the documentation containing the provisions of the Agreement, namely the main body of these Terms of Use and the Schedules, including any amendments to that documentation from time to time;
  • "Update" means a hot fix, patch or minor version update to any Platform software;
  • "Upgrade" means a major version upgrade of any Platform software.

2  Term

2.1  The Agreement shall come into force upon the Effective Date.

2.2  The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 20.

3  Hosted Services

3.1  The Provider shall ensure that the Platform will, on the Effective Date, automatically generate an Account for the Customer and provide to the Customer login details for that Account.

3.2  The Provider hereby grants to the Customer a non-exclusive license to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.

3.3  The license granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:

  • (a)  the Hosted Services may only be used by the officers, employees, agents, clients and subcontractors of either the Customer or an Affiliate of the Customer;
  • (b)  the Hosted Services may only be used by the registered users as identified and managed by the Customer Administrator(s), providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein;

3.4  Except to the extent expressly permitted in these Terms of Use or required by law on a non-excludable basis, the license granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:

  • (a)  the Customer must not sub-license its right to access and use the Hosted Services;
  • (b)  the Customer must not permit any unauthorised person to access or use the Hosted Services;
  • (c)  the Customer must not use the Hosted Services to provide services to third parties;
  • (d)  the Customer must not republish or redistribute any content or material from the Hosted Services; and
  • (e)  the Customer must not make any alteration to the Platform, except as permitted by the Documentation;

3.5  The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services.

3.6  The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Services.

3.7  The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services, with the authority of the Customer or by means of an Account, comply with Schedule 1 (Acceptable Use Policy).

3.8  The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

3.9  The Customer must not use the Hosted Services:

  • (a)  in any way that is unlawful, illegal, fraudulent or harmful; or
  • (b)  if related to unlawful, illegal, fraudulent or harmful purpose or activity.

3.10  For the avoidance of doubt, the Customer 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.

4  Maintenance Services

4.1  The Provider shall provide the Maintenance Services to the Customer during the Term.

4.2  The Provider shall provide the Maintenance Services with reasonable skill and care.

4.3  The Provider shall provide the Maintenance Services in accordance with Schedule 3 (Maintenance SLA).

4.4  The Provider may suspend the provision of the Maintenance Services if any amount due by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

5  Support Services

5.1  The Provider shall provide the Support Services to the Customer during the Term.

5.2  The Provider shall provide the Support Services with reasonable skill and care.

5.3  The Provider shall provide the Support Services in accordance with Schedule 4 (Support SLA).

5.4  The Provider may suspend the provision of the Support Services if any amount due by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

6  Customer Obligations

6.1  Unless the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:

  • (a)  co-operation, support and advice;
  • (b)  information and documentation; and
  • (c)  governmental, legal and regulatory licenses, consents and permits, as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.

6.2  The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Agreement.

7  Customer Data

7.1  The Customer hereby grants to the Provider a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement. The Customer also grants to the Provider 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 the Agreement, subject always to restrictions elsewhere in the Agreement.

7.2  The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation in any jurisdiction.

7.3  The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of thirty (30) days.

7.4  Within the period of one (1) Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 7.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

8  No assignment of Intellectual Property Rights

8.1  Nothing in these Terms of Use shall assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

9  Representatives

9.1  The Provider shall ensure that all instructions given by the Provider in relation to the matters contemplated in the Agreement will be given to a Customer Representative, and the Customer:

  • (a)  may treat all such instructions as the fully authorised instructions of the Provider; and
  • (b)  must not comply with any instructions other than from the Provider in relation to that subject matter.

9.2  The Customer shall ensure that all instructions given by the Customer in relation to the matters contemplated in the Agreement will be given by a Customer Representative to the Provider, and the Provider:

  • (a)  may treat all such instructions as the fully authorised instructions of the Customer; and
  • (b)  must not comply with any instructions other than from the Customer in relation to that subject matter.

10  Charges

10.1  The Customer shall pay the Charges to the Provider in accordance with these Terms of Use.

10.2  All amounts stated in or in relation to these Terms of Use are, unless otherwise stated, inclusive of any applicable value added taxes and payable by the Customer to the Provider.

10.3  The Provider may elect to vary any element of the Charges by giving to the Customer not less than thirty (30) days' written notice of the variation after the expiry of the Minimum Term.

11  Payments

11.1  The Customer must pay the Charges by credit card or by using such payment details as are notified by the Provider to the Customer from time to time.

11.2  If the Customer does not pay any amount properly due to the Provider under these Terms of Use, the Provider may:

  • (a)  charge the Customer interest on the overdue amount at the rate of 1% per month (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
  • (b)  claim interest and statutory compensation from the Customer.

12  Confidentiality Obligations

12.1  The Provider must:

  • (a)  keep the Customer Confidential Information strictly confidential;
  • (b)  not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms of Use;
  • (c)  use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
  • (d)  act in good faith at all time in relation to the Customer Confidential Information; and
  • (e)  not use any of the Customer Confidential Information for any purpose other than providing the Hosted Services to the Customer.

12.2  The Customer must:

  • (a)  keep the Provider Confidential Information strictly confidential;
  • (b)  not disclose the Provider Confidential Information to any person without the Provider's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms of Use;
  • (c)  use the same degree of care to protect the confidentiality of the Provider Confidential Information as the Customer uses to protect the Customer's own confidential information of a similar nature, being at least a reasonable degree of care;
  • (d)  act in good faith at all time in relation to the Provider Confidential Information; and
  • (e)  not use any of the Provider Confidential Information for any purpose other than using the Hosted Services from the Provider.

12.3  Notwithstanding Clauses 12.1 and 12.2, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.

12.4  No obligations are imposed by this Clause 12 with respect to a party's Confidential Information if that Confidential Information:

  • (a)  is known to the other party before disclosure under these Terms of Use and is not subject to any other obligation of confidentiality;
  • (b)  is or becomes publicly known through no act of the other party; or
  • (c)  is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

12.5  The restrictions in this Clause 12 do not apply if any Confidential Information is requested by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

12.6  Upon termination of the Agreement, each party must immediately cease to access the other party's Confidential Information.

12.7  Following termination of the Agreement, and within 5 Business Days following the date of termination of the Agreement, the relevant party must destroy or return to the other party (at the other party's option) all media containing the other party's Confidential Information, and must irrevocably delete the other party's Confidential Information from its computer systems.

12.8  The provisions of this Clause 12 shall remain in force indefinitely following the termination of the Agreement.

13  Publicity

13.1  Neither party may make any public disclosures relating to the Agreement or the subject matter of the Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

13.2  Nothing in this Clause 13 shall be construed as limiting the obligations of the parties under Clause 12.

14  Data Protection

14.1  Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

14.2  The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under the Agreement.

14.3  The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 14.

14.4  The Provider shall only process the Customer Personal Data on the documented instructions of the Customer.

14.5  Notwithstanding any other provision of these Terms of Use, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on grounds of public interest.

14.6  The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

14.7  The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.

14.8  The Provider must not engage any third party to process the Customer Personal Data without authorization from the Customer.

14.9  The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data.

14.10  If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under these Terms of Use, then the parties shall use their best endeavours promptly to agree such variations to these Terms of Use as may be necessary to remedy such non-compliance.

15  Warranties

15.1  The Provider warrants to the Customer that:

  • (a)  the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms of Use;
  • (b)  the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms of Use; and
  • (c)  the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms of Use.

15.2  The Provider warrants to the Customer that:

  • (a)  the Platform and Hosted Services will conform in all respects with the Hosted Services Specification;
  • (b)  the application of Updates and Upgrades to the Platform by the Provider will be conducted with a reasonable degree of care reflecting good industry practice;
  • (c)  the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
  • (e)  the Platform will incorporate security features reflecting the requirements of good industry practice.

15.3  The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms of Use, will not breach any laws, statutes or regulations applicable under any applicable international law.

15.4  The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms of Use, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

15.5  If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with these Terms of Use infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:

  • (a)  modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
  • (b)  procure for the Customer the right to use the Hosted Services in accordance with these Terms of Use.

15.6  The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms of Use.

15.7  All warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms of Use. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

16  Acknowledgements and warranty limitations

16.1  The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the provisions of these Terms of Use, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

16.2  The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the provisions of these Terms of Use, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

16.3  The Customer acknowledges that the Hosted Services are designed to be compatible only with the software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

16.4  The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms of Use or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms of Use, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

17  Indemnities

17.1  The Provider shall indemnify and shall keep indemnified the Customer against any liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) arising directly or indirectly from any breach by the Provider of these Terms of Use.

17.2  The Customer must:

  • (a)  upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
  • (b)  provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
  • (c)  allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
  • (d)  not admit liability to any third party regarding the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider, without prejudice to the Provider's obligations under Clause 17.1.

17.3  The Customer shall indemnify and shall keep indemnified the Provider against liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) arising directly or indirectly from any breach by the Customer of these Terms of Use.

17.4  The Provider must:

  • (a)  upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
  • (b)  provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
  • (c)  allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
  • (d)  not admit liability to any third party regarding the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer, without prejudice to the Customer's obligations under Clause 17.3.

17.5  The indemnity protection set out in this Clause 17 shall be subject to the limitations and exclusions of liability set out in the Agreement.

18  Limitations and exclusions of liability

18.1  Nothing in these Terms of Use will:

  • (a)  limit or exclude any liability for death or personal injury resulting from negligence;
  • (b)  limit or exclude any liability for fraud or fraudulent misrepresentation;
  • (c)  limit any liabilities in any way that is not permitted under applicable law; or
  • (d)  exclude any liabilities that may not be excluded under applicable law.

18.2  The limitations and exclusions of liability set out in this Clause 18 and elsewhere in these Terms of Use:

  • (a)  are subject to Clause 18.1; and
  • (b)  govern all liabilities arising under these Terms of Use or relating to the subject matter of these Terms of Use, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms of Use.

18.3  Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

18.4  Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

18.5  Neither party shall be liable to the other party in respect of any loss of revenue or income.

18.6  Neither party shall be liable to the other party in respect of any loss of use or production.

18.7  Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

18.8  Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software;

18.9  Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

19  Force Majeure Event

19.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

19.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

  • (a)  promptly notify the other; and
  • (b)  inform the other of the period for which it is estimated that such failure or delay will continue.

19.3  A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

20  Termination

20.1  Either party may terminate the Agreement by giving to the other party not less than 30 days' written notice of termination after the end of the Minimum Term.

20.2  Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

  • (a)  the other party commits any breach of the Agreement, and the breach cannot be remedied;
  • (b)  the other party commits a breach of the Agreement, and the breach can be remedied but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
  • (c)  the other party persistently breaches the Agreement.

20.3  Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

  • (a)  the other party:
    • (i)  is dissolved;
    • (ii)  ceases to conduct all (or substantially all) of its business;
    • (iii)  is or becomes unable to pay its debts as they fall due;
    • (iv)  is or becomes insolvent or is declared insolvent; or
    • (v)  convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
  • (b)  an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
  • (c)  an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than a solvent company re-organization where the resulting entity will assume all the obligations of the other party under the Agreement); or
  • (d)  if that other party is an individual:
    • (i)  that other party dies;
    • (ii)  due to illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
    • (iii)  that other party is the subject of a bankruptcy petition or order.

20.4  The Provider may terminate the Agreement immediately by giving written notice to the Customer if:

  • (a)  any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that written notice of termination is given; and
  • (b)  the Provider has given to the Customer at least 30 days' written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 20.4.

21  Effects of termination

21.1  Upon the termination of the Agreement, all of the provisions of these Terms of Use shall cease to have effect, save that the following provisions of these Terms of Use shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.10, 11.2, 12, 13, 14.1, 14.3, 14.4, 14.5, 14.6, 14.7, 14.8, 14.9, 14.10, 17, 18, 21, 22, 25, 26, 27, 28, 29, 30, 31 and 32.

21.2  Except to the extent that these Terms of Use expressly provides otherwise, the termination of the Agreement shall not affect the rights of either party.

21.3  Within 30 days following the termination of the Agreement for any reason:

  • (a)  the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
  • (b)  the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement, without prejudice to the parties' other legal rights.

22  Non-solicitation of personnel

22.1  The Customer must not, without the prior written consent of the Provider, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Provider.

22.2  The Provider must not, without the prior written consent of the Customer, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Customer.

23  Notices

23.1  Any notice given under these Terms of Use must be in writing, whether or not described as "written notice" in these Terms of Use.

23.2  Any notice given by the Customer to the Provider under these Terms of Use must be:

  • (a)  delivered personally; or
  • (b)  sent by courier; or
  • (c)  sent by post by recorded signed-for delivery; or
  • (d)  sent by fax; or
  • (e)  sent by email; or
  • (f)  submitted using the Provider's online contact facility.

23.3  Any notice given by the Provider to the Customer under these Terms of Use must be:

  • (a)  delivered personally; or
  • (b)  sent by courier; or
  • (c)  sent by post by recorded signed-for delivery; or
  • (d)  sent by fax; or
  • (e)  sent by email.

23.4  The addressee and contact details set out in the Services Order may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 23.

23.5  A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

23.6  A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

  • (a)  in the case of notices delivered personally, upon delivery;
  • (b)  in the case of notices sent by courier, upon delivery;
  • (c)  in the case of notices sent by post, 7 days after posting;
  • (d)  in the case of notices sent by fax, at the time of the transmission of the fax (providing the sending party retains written evidence of the transmission);
  • (e)  in the case of notices sent by email, at the time of the sending of an acknowledgement of receipt by the receiving party; and
  • (f)  in the case of notices submitted using an online contact facility, upon the submission of the contact form.

24  Subcontracting

24.1  The Provider must not subcontract any of its obligations under the Agreement without the prior written consent of the Customer, providing that the Customer must not unreasonably withhold or delay the giving of such consent.

25  Assignment

25.1  The Customer must not assign, transfer or otherwise deal with the Customer's contractual rights and/or obligations under these Terms of Use without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed, providing that the Customer may assign the entirety of its rights and obligations under these Terms of Use to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.

26  No waivers

26.1  No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

26.2  No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.

27  Severability

27.1  If a provision of these Terms of Use is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

27.2  If any unlawful and/or unenforceable provision of these Terms of Use would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

28  Third party rights

28.1  The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

28.2  The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.

29  Variation

29.1  The Agreement may not be varied except by means of a written document agreed by both parties.

30  Entire agreement

30.1  The Services Order, the main body of these Terms of Use and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

30.2  Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

30.3  The provisions of this Clause 30 are subject to Clause 18.1.

31  Law and jurisdiction

31.1  These Terms of Use shall be governed by and construed in accordance with Australian law.

31.2  Any disputes relating to the Agreement shall be subject to the courts of Australia.

32  Interpretation

32.1  In these Terms of Use, a reference to a statute or statutory provision includes a reference to:

  • (a)  that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
  • (b)  any subordinate legislation made under that statute or statutory provision.

32.2  The clause headings do not affect the interpretation of these Terms of Use.

32.3  References in these Terms of Use to "calendar months" are to the twelve (12) named periods (January, February and so on) into which a year is divided.

32.4  In these Terms of Use, general words shall not be given a restrictive interpretation by being preceded or followed by words indicating a particular class of acts, matters or things.

SCHEDULE 1 - ACCEPTABLE USE POLICY

1  Introduction

1.1  This acceptable use policy (the "Policy") sets out the rules governing:

  • (a)  the use of the Platform, any successor Platform, and the services available on that Platform or any successor Platform (the " Services"); and
  • (b)  the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (" Content").

1.2  References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Kradle Software Pty Ltd (and "we" and "our" should be construed accordingly).

1.3  By using the Services, you agree to the rules set out in this Policy.

1.4  We ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.

1.5  You must be at least eighteen (18) years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least eighteen (18) years of age.

2  General usage rules

2.1  You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.

2.2  You must not use the Services:

  • (a)  in any way that is unlawful, illegal, fraudulent or harmful; or
  • (b)  if related to any unlawful, illegal, fraudulent or harmful purpose or activity.

2.3  You must ensure that all content complies with the provisions of this Policy.

3  Unlawful Content

3.1  Content must not be illegal or unlawful, must not infringe any person's legal rights, and must be incapable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

3.2  Content, and the use of Content by us in any manner licensed or otherwise authorized by you, must not:

  • (a)  be libelous or maliciously false;
  • (b)  be obscene or indecent;
  • (c)  infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
  • (d)  infringe any right of confidence, right of privacy or right under data protection legislation;
  • (e)  constitute negligent advice or contain any negligent statement;
  • (f)  constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
  • (g)  be in contempt of any court, or in breach of any court order;
  • (h)  constitute a breach of racial or religious hatred or discrimination legislation;
  • (i)  be blasphemous;
  • (j)  constitute a breach of official secrets legislation; or
  • (k)  constitute a breach of any contractual obligation owed to any person

3.3  You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

4  Graphic material

4.1  Content must be appropriate for all persons who have access to or are likely to access the Content.

4.2  Content must not depict violence.

4.3  Content must not be pornographic.

5  Factual accuracy

5.1  Content must not be untrue, false, inaccurate or misleading.

5.2  Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.

6  Negligent advice

6.1  You must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.

6.2  Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

7  Etiquette

7.1  Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.

7.2  Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.

7.3  Content must not be liable to cause annoyance, inconvenience or needless anxiety.

7.4  You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a person or group of people.

7.5  You must not use the Services for deliberately upsetting or offending others.

7.6  You must be courteous and polite to other users of the Services.

8  Marketing and spam

8.1  You must not use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.

8.2  Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.

8.3  You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you have access to using the Services.

8.4  You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.

9  Gambling

9.1  You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

10  Monitoring

10.1  You acknowledge that we do not actively monitor the Content or the use of the Services.

11  Data mining

11.1  You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.

12  Hyperlinks

12.1  You must not link to any material by means of the Services that would breach the provisions of this Policy.

13  Harmful software

13.1  The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.

13.2  The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

SCHEDULE 2 - AVAILABILITY SLA

1  Introduction to Availability SLA

1.1  This Schedule sets out the Provider's availability commitments relating to the Hosted Services.

1.2  In this Schedule, "uptime" means the percentage of time during a given period when the Hosted Services are available at the gateway between public internet and the network of the hosting services provider for the Hosted Services.

2  Availability

2.1  The Provider shall use reasonable endeavors to ensure that the uptime for the Hosted Services is at least 99.9% during each calendar month.

2.2  The Provider shall be responsible for measuring uptime, and shall do so using any reasonable methodology.

2.3  The Provider shall report uptime measurements to the Customer in writing, within 10 Business Days following the end of the relevant calendar month.

3 Service credits

3.1  In respect of each calendar month during which the Hosted Services uptime is less than the commitment specified in Paragraph 2.1, the Customer shall earn service credits in accordance with the provisions of this Part 3.

3.2  The service credits earned by the Customer shall be as follows: double the downtime, calculated for each calendar month.

3.3  The Provider shall refund an amount equal to the service credits due to the Customer under this Part 3.

3.4  Service credits shall be the sole remedy of the Customer in relation to any failure by the Provider to meet the uptime guarantee in Paragraph 2.1.

3.5  Upon the termination of the Agreement, the Customer's entitlement to service credits shall immediately cease, except for the service credits already earned by the Customer.

4  Exceptions

4.1  Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee given in Paragraph 2.1:

  • (a)  a Force Majeure Event;
  • (b)  a fault or failure of the internet or any public telecommunications network;
  • (d)  a fault or failure of the Customer's computer systems or networks;
  • (e)  any breach by the Customer of the Agreement; or
  • (f)  scheduled maintenance carried out in accordance with the Agreement.

SCHEDULE 3 - MAINTENANCE SLA

1  Introduction

1.1  This Schedule sets out the service levels applicable to the Maintenance Services.

2  Scheduled Maintenance Services

2.1  The Provider shall where practicable give to the Customer at least ten (10) Business Days prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this Schedule 3.

2.2  The Provider shall provide all scheduled Maintenance Services outside Business Hours.

3  Updates

3.1  The Provider shall give to the Customer at least ten (10) Business Days prior written notice of the application of any Update to the Platform.

3.2  The Provider shall apply Updates to the Platform as follows:

  • (a)  third party Updates shall be applied to the Platform promptly following release by the relevant third party. The Provider may reasonably decide not to apply any particular third party Update;
  • (b)  Updates shall be applied to the Platform promptly following the identification of the relevant risk and the completion of the testing of the relevant Update; and
  • (c)  other Updates shall be applied to the Platform in accordance within the timetable notified by the Provider to the Customer or agreed by the parties from time to time.

4  Upgrades

4.1  The Provider shall produce Upgrades at least once in each calendar year during the Term.

4.2  The Provider shall give to the Customer at least ten (10) Business Days prior written notice of the application of an Upgrade to the Platform.

4.3  The Provider shall apply each Upgrade to the Platform within the timetable notified by the Provider to the Customer or agreed by the parties in writing.

SCHEDULE 4 - SUPPORT SLA

1  Introduction

1.1  This Schedule sets out the service levels applicable to the Support Services.

2  Helpdesk

2.1  The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule.

2.2  The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services. The Customer must not use the helpdesk for any other purpose.

2.3  The Provider shall ensure that the helpdesk is accessible by telephone, email and or using the Provider's online contact form.

2.4  The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.

2.5  The Customer shall ensure that all requests for Support Services shall be made through the helpdesk.

3  Response and resolution

3.1  Issues raised through the Support Services shall be categorised as follows:

  • (a)  critical: the Hosted Services are inoperable or a core function of the Hosted Services is unavailable;
  • (b)  serious: a core function of the Hosted Services is significantly impaired;
  • (c)  moderate: a core function of the Hosted Services is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Hosted Services is significantly impaired; and
  • (d)  minor: any impairment of the Hosted Services not falling into the above categories; and any cosmetic issue affecting the Hosted Services.

3.2  The Provider shall determine, acting reasonably, into which severity category an issue falls.

3.3  The Provider shall use all reasonable endeavors to respond to requests for Support Services promptly, and in any case in accordance with the following time periods:

  • (a)  critical: one (1) hour within Business Hours;
  • (b)  serious: four (4) Business Hours;
  • (c)  moderate: one (1) Business Day; and
  • (d)  minor: five (5) Business Days.

3.4  The Provider shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.

3.5  The Provider shall use all reasonable endeavors to resolve issues raised through the Support Services promptly, and in any case in accordance with the following time periods:

  • (a)  critical: two (2) hours within Business Hours;
  • (b)  serious: eight (8) hours within Business Hours;
  • (c)  moderate: four (4) Business Days; and
  • (d)  minor: ten (10) Business Days.

4  Provision of Support Services

4.1  The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.

5  Limitations on Support Services

5.1  The Provider shall have no obligation to provide Support Services in respect of any issue caused by:

  • (a)  the improper use of the Hosted Services by the Customer; or
  • (b)  any alteration to the Hosted Services made without the prior consent of the Provider.