These Terms are binding on any use of the Service and apply to You from the time that aXcelerate provides You with access to the Service.
By registering, accessing or using the Service, You acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity who uses the Service.
These Terms were last updated on 11 January 2017.
The significant changes from the previous 1 September 2016 version include:
2.4: Variation of Service
7: Support Services
8: Service Levels
11.10 Vulnerability Scanning and Penetration Testing (new clause added)
15.6: IP Indemnification by aXcelerate
17: Term and Termination
means any certificate, licence, consent, permit, or other requirement of any authority having jurisdiction in connection with the activities contemplated in this Agreement.
means the Internet Service Provider (ISP) which is Amazon Web Services, Sydney, NSW Australia. ABN 15 242 571 122.
means aXcelerate’s Developers, aXcelerate Implementers, aXcelerate Support Representatives and Directors.
means The Verner-Mackay Group Pty Ltd trading as ‘aXcelerate’ and all future global subsidiaries of The Verner-Mackay Group Pty Ltd.
means Monday to Friday, 8:30am – 5:00pm Australian Eastern Standard Time (AEST) except for public holidays.
means a request by the Customer (‘You’) to be made
means the date Your aXcelerate account is activated and Your login details are emailed to You.
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other Party.
means additional aXcelerate features or enhancements specifically requested by, and paid for by, You.
means any data inputted by You or with Your authority into the Website.
means all Services supplied or to be supplied under this Agreement as outlined in the Schedule.
means a notice issued by one Party to the other Party giving notice of the dispute and the reasons for that dispute which are to be resolved within a fair and reasonable timeframe of the giving of the Dispute Notice.
means aXcelerate’s Fees as outlined in the Schedule (which aXcelerate may change from time to time on notice to You).
“Force Majeure Event”
means an act of God, national emergency, insurrection, riot, war or industrial action.
means a goods and services tax, or similar value added tax, levied or imposed under tax Laws.”Implementation Phase”
means the period during which Your aXcelerate account is being implemented by You with support from aXcelerate in preparation for live use of the Website.
“Intellectual Property Right”
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
“Law” or “Laws”
means any law applicable including legislation, ordinances, regulations, by-laws and other subordinate legislation.
means the monthly or annual licence fee (excluding any taxes and duties) payable by You in accordance with the fee schedule available from aXcelerate.
means material in any form, including documents, reports, products, equipment, information, data, software, software tools and software development methodologies.
means all present and future rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed and rights of a similar nature conferred by statute anywhere in the world.
means aXcelerate and You, as the context requires.
means taking the result of vulnerability scan and with the use of a number of approaches, techniques and tools, attempts to use the vulnerabilities identified to compromise devices or software or both.
means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion which aXcelerate gains access to in the course of providing the Service.
means collection, handling, security and protection of personal, organisational and/or Party-related information including but not limited to aXcelerate user and/or database Records, files, mail, emails, documents, telephone conversations or Records, other forms of communication and/or other system-related information.
means the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and any other laws relating to Privacy.
means all material including but not limited to books, documents, information, computer software, equipment, and data stored by any means disclosed, or made available, by You to aXcelerate in connection with the performance of this Agreement.
means the method of communication of all new features, improvements and bug fixes of the Software.
means extending the Agreement for an additional 12 month period from the anniversary date of the Agreement.
means providing the services and delivering the Deliverables, Support Services, and any other services set out in the Schedule (as may be changed or updated from time to time by aXcelerate) via the Website.
means the manner and the timeliness which requests for support by You are managed.
means the period of time from the Commencement Date to its anniversary. Each Service Year anniversary then marks the beginning of the new Service Year.
“Statement of Work”
means a formal document specifying business requirements for Custom Development work.
means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
means any tax (including GST, sales tax, stamp duty, payroll and/or withholding tax), charges, fees, and other imposts of whatever kind (including any fine or penalty) that may be levied, assessed charged or collected.
means 12 months from the Commencement Date.
means any ongoing continuous improvement or enhancement to the functionality of the Website.
means the act of identifying potential vulnerabilities in network devices such as firewalls, routers, switches, servers and applications.
means all hosted system application software including all upgrades and versions from the Internet site at the domain www.aXcelerate.com.au or any other site operated by aXcelerate.
means the Subscriber, and where the context permits, an Invited User. “Your” has a corresponding meaning.
means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through aXcelerate.
2. Use of Website
1. User roles and access permissions:
aXcelerate grants You the right to access and use the Service via the Website and the right to create user roles and Invited Users according to Your business requirements. This right is non-exclusive, non-transferable, and limited by, and subject to, this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable Laws:
- the Subscriber determines who is an Invited User and what level of user role access permissions to the relevant aXcelerate functions that the Invited User has;
- the Subscriber is responsible for all Invited Users’ use of the Service;
- the Subscriber controls each Invited User’s level of access permissions to the relevant aXcelerate functions at all times and can revoke or change an Invited User’s access, or level of access permissions, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, or different permissions, as the case may be;
- if there is any dispute between a Subscriber and an Invited User regarding access to any aXcelerate function, the Subscriber shall decide what access or level of access or permission to the relevant Data or function that the Invited User shall have, if any.
2. Free Trial policy:
If aXcelerate grants You access to the demonstration account as part of Your free trial evaluation of the Service, You agree to the following conditions:
- You shall not share Your user login credentials with anyone else;
- You acknowledge that the demonstration account is a shared public account with other users and members of the public able to access any and all information stored in the demonstration account. Accordingly, You agree to only enter and store trial data that is free to be accessed by any other users accessing the same public account;
- You agree to use the demonstration account bound by all the Terms contained in this Agreement; and
- You are under no obligation to continue to use the Service.
3. Provision of the Service:
aXcelerate will provide You with secure online access to its’ web-based vocational education and training management system: aXcelerate. The features of this system are displayed on the aXcelerate Website and are updated, from time to time, to reflect current functionality.
Access to aXcelerate to support Your business operations will be through an Internet hosted system provided by the Approved Party. With effect from the Commencement Date, aXcelerate will provide the Deliverables of the Service in the manner and at the times specified in the Schedule to this Agreement.
4. Variation of Service:
aXcelerate will notify You via the Website (Release Notes) or email all new features, improvements and bug fixes associated with the Service. You will be entitled, at no additional cost, to any and all new product enhancements as and when they become implemented in aXcelerate according to the Deliverables outlined in the Schedule. You will be notified, from time to time, of any significant new optional chargeable features via aXcelerate’s Update email newsletter (or Release Notes).
5. Staging and Live Accounts:
As part of delivering the Service, aXcelerate provides a Staging account for testing and training purposes. This completely separate aXcelerate account provides an asynchronous, ‘mirror-like’ copy of Your Live account. The aXcelerate Staging account provides a ‘close to’ version of Your Live account to test new features and provide a space for training of staff members. It can also be used as a temporary back up for information-retrieval-only purposes in the event of a system outage of the Live aXcelerate site. The Staging account is NOT a backup of the Live account. Staging account data are NEVER copied to Your Live account. All backup functions of Your Live and Staging accounts are performed separately by the Approved Party.
3. Implementation Services
It is Your responsibility to implement aXcelerate with support from Your assigned aXcelerate implementer. In order to support Your implementation of aXcelerate, there is a range of Implementation Services that aXcelerate provides on a fee-for-service basis including but not limited to:
- Coordination and facilitation of an implementation planning meeting;
- Configuration and setup of Your aXcelerate Live and Staging accounts;
- Uploading and configuring Your account’s branding/logos;
- Coordination of Your data migration(s);
- Coordination of Custom Development work (if any) including quotation preparation, client liaison, task setup and developer interaction;
- Template or certificate template creation, modification and/or co-ordination;
- Analysis of training needs and preparation of tailored training plans;
- Coordination of product training including all travel plans (where required);
- Product training including any follow-up actions (where required); and
- Support activities during the implementation phase.
NOTE: Free aXcelerate Support Services do not commence until You have confirmed in writing that the Implementation Phase is complete. Prior to activation of Your account, Your aXcelerate sales representative will agree with You an estimated planned number of hours required to implement aXcelerate based on the functional areas of aXcelerate required to support Your business.
The proposed Implementation Services hours (if any) to be delivered by aXcelerate to You, are provided as an estimate only and may vary based on a number of factors outside aXcelerate’s control including but not limited to:
- The skills and experience of your nominated aXcelerate implementation project manager;
- Your level of existing domain knowledge (e.g. RTO & AVETMISS or other compliance and regulations) required to implement a system such as aXcelerate;
- The capacity of You and/or Your employees to learn how to use aXcelerate (how quickly You or Your employees learn how to use the software and then apply the learning in your aXcelerate account); and/or
- The resource or time constraints of You or Your organisation.
NOTE: The total hours of Implementation Services delivered may be allocated to any of the above-mentioned Implementation Services. aXcelerate will provide You with feedback on the number of Implementation Service hours delivered/spent, including training hours, during the implementation of aXcelerate accessible via the Support Centre function.
Implementation Service hours that have been purchased as part of Your Service Agreement will expire within six (6) months from your aXcelerate account Commencement Date. You must use up your purchased Implementation Service hours within the expiry period to avoid losing part or all of these hours.
4. Data Migration Services
Data migration services are provided to import Your Data from an existing system into aXcelerate. aXcelerate provides three options for data migration with varying fees depending on the option(s) chosen. These options are outlined in the sub-clauses below.
1. Contacts data migration:
Contacts data migration is provided on the basis of the following conditions:
- Contacts data will be sourced from an existing database/dataset (e.g. ACT, Outlook, MYOB, Excel spreadsheets, etc.);
- aXcelerate will provide You with an Excel spreadsheet template with the correct format for contacts fields to populate;
- Contacts data includes basic contact, student or employer record information such as name, organisation/employer, phone number, date of birth, address, email address, etc. It also may include AVETMISS-related data such as employment status, city of birth, country of birth and disability status;
- Contacts data does not include any linkage to course information, enrolments, outcomes, assessments, or any other data elements;
- Contacts data must be supplied by You as ‘clean’ or additional fees will be charged at aXcelerate’s standard data migration rate to undertake data cleansing work;
Examples of invalid data include but are not limited to:
- Mixed data types in table cells (for example in an Excel spreadsheet or .CSV file);
- Inconsistencies of data (e.g. in most fields in the spreadsheet the table cell includes a date, but in some fields contains two dates); or
- Two strings of data within the one data field (e.g. an address field has the first line of a street address as well as the suburb).
2. AVETMISS data migration:
AVETMISS data migration is provided on the basis of the following conditions:
- AVETMISS data will be supplied by You from Your existing AVETMISS-compliant system in AVETMISS standard 7.0 or 6.1 format(s) (10 x standard NAT files, NOT .csv format);
- All AVETMISS data must be pre-validated by You using the online AVETMISS Validation Software provided by NCVER at https://avs.ncver.edu.au/avs/ prior to submitting the data to aXcelerate for import;
- Data must be completely validated (meaning no errors, warnings are acceptable) OR if not, the data validation report showing errors is to be provided by You to aXcelerate along with an approval in writing by You for aXcelerate to import the data to aXcelerate with known data validation errors;
- All Customer-supplied AVETMISS data sets will be pre-validated by aXcelerate prior to importing and any validation error(s) if present will be required to be corrected by You prior to importing the data into aXcelerate. In this case, You will be provided with the AVETMISS data validation report showing the error(s) that require correcting prior to any further import attempts;
- Where You choose not to correct data validation errors and instead instructs aXcelerate to go ahead and import the data to Your account anyway, You must provide aXcelerate with an approval in writing to import the data to aXcelerate with known data validation errors;
- AVETMISS data migration time will be charged at aXcelerate’s standard data migration rate and will be scoped and quoted prior to data import.
3. Custom data migration:
All other data migration is classed as custom data migration and will be charged for at the standard data migration rate with the following conditions:
- You must provide a sample data set(s) to be migrated to aXcelerate prior to any estimate of cost being provided by aXcelerate;
- Custom data migration is a Custom Development Service and as such attracts the same fees and payment terms as Custom Development (see Custom Development below).
5. Custom Development
aXcelerate’s commitment is to provide the highest level of functionality and features for as many users of aXcelerate as possible. aXcelerate aims to meet the majority of aXcelerate customer’s requirements but also realises that there will be ongoing requirement for new features and changes to aXcelerate.
In the event that You require an enhancement, improvement or new feature to be developed in aXcelerate there are two options:
- Post a question or idea in the Ideas Forum in the Support Centre (accessed from the Help menu in aXcelerate); These suggestions or requests are free of charge; or
- Submit a request in the Support Centre; A request for a new feature or enhancement made through a support ticket will be treated as Custom Development and applicable charges will apply.
Where You submit a new feature request and You are willing to pay, You must first submit a request from the Support Centre: there are no exceptions to this condition.
You will provide aXcelerate with sufficient details about Your requested feature including but not limited to:
- A business requirements specification of what the new feature needs to be able to do with reference to the actor(s)/user(s) who will be using the new feature;
- A mock-up drawing of what the user interface will look like after the new feature has been developed;
- A mock-up Excel spreadsheet or equivalent of a report format that is expected (for new reports or enhancements to existing reports); or
- Any other information that would reasonably be expected to enable aXcelerate to provide a quotation of the requested feature.
aXcelerate will work on all Custom Development projects on a time and materials basis at the Custom Development rate provided by aXcelerate.
Custom Development requests less than 20 hours:
Where the Custom Development request is estimated by aXcelerate to be less than 20 hours, aXcelerate will provide you with a quotation via the Support system. If You want to proceed with the Custom Development work, You must approve the quotation in writing in the related Support request ticket. Upon Your approval to proceed, You will be provided with an estimated start date for your Custom Development work. Whilst it is aXcelerate’s intent to commence all work by the target start date, aXcelerate shall not guarantee any Custom Development start dates due to factors that may be beyond our control (e.g. additional compliance requirements by government pushes back the target start date ahead of lower priority Custom Development work), nor shall there be any penalties levied for non-delivery by a planned release date. When the scheduled start date for Your Custom Development work has arrived, aXcelerate will invoice you for 50% of the approved quoted amount. aXcelerate will not commence Your Custom Development work until this initial payment has been received.
Custom Development requests of 20 hours or greater:
For Custom Development projects of 20 hours or greater, aXcelerate will require a detailed business requirements specification to be provided by You for the purpose of scoping and estimating the time and cost for the Custom Development requirement. In this case, based on aXcelerate’s experience with similar Custom Development requests, aXcelerate will initially provide You with a ‘ball park’ estimate of costs involved to undertake the Custom Development project. You shall approve the ‘ball park’ estimate prior to aXcelerate proceeding to the next stage of creating a formal Statement of Work document. The Statement of Work document provides You with a formal quotation for Your requested Custom Development project.
You shall agree to pay for the creation of the Statement of Work document including business requirements analysis, data mapping, process flow design, time- and cost-estimating, project management and any other professional service(s) required to deliver on Your specified Custom Development project regardless of whether or not You approve the quotation once the Statement of Work document has been completed. If You decide not to proceed with the Custom Development project once the Statement of Work document and quotation has been completed, aXcelerate shall provide You with a refund for the difference between the 50% initial payment and the amount covering the time and materials to create the Statement of Work document.
If you decide to approve the Statement of Work document and quotation, You shall sign and date the Statement of Work document, upload a scanned copy of the document to the related Support request ticket and then notify aXcelerate of your approval in the related Support request ticket. aXcelerate shall not commence any Custom Development work if approval is provided via any other means (e.g. verbally or email) than the Support request ticket. After receiving your approval to proceed with the Custom Development as outlined in the Statement of Work document, You will be notified in the Support request ticket of the planned Custom Development start date, planned release to Staging account date and planned release to Live account date. aXcelerate shall not guarantee the delivery of any Custom Development features by a particular date nor shall there be any penalties levied for non-delivery by a planned release date.
User Acceptance Testing:
Upon the release of the new feature in Your Staging account, you will be notified via the Support Centre ticket that the new feature is ready for User Acceptance Testing in Your Staging account. You will have seven (7) days to test the new feature and provide Your feedback to the development team via the Support request ticket. If You provide feedback within the prescribed seven (7) day period and further development work is required, so long as this development work is within the scope of the original Statement of Work, this work will be scheduled and completed as soon as practicable. You will be notified when the additional work has been completed and is ready for testing again in Your Staging account. Once you have accepted the satisfactory completion of the Custom Development work as tested in your Staging account, aXcelerate will schedule the release of the new feature to Your Live account.
Any requested changes that are not identified in the original Statement of Work document or is other than to correct a bug with specified functionality will be treated as a request for modification of the Statement of Work and will be processed as a Change Request. All Change Requests are scoped and quoted separately. You shall approve all Change Requests via the related Support request ticket. Once You have approved the Change Request, aXcelerate shall schedule the request to be developed as soon as is practicable. All Change Requests are developed on a time and materials basis.
Completion of work and release to Live:
Upon successful completion of the new feature and release to Your Live account, You will have fourteen (14) calendar days to notify aXcelerate of any additional corrections which need to be made with reference to the Statement of Work document after which period the Custom Development work will be deemed to be completed. You will then be invoiced for the remaining 50% of the value of the project or the balance of fees outstanding where additional Change Requests have been processed.
6. Post-implementation Product Training and Consulting Services
Post-implementation product training and/or consulting services includes:
- Scheduled onsite product training including pre and post-training activities;
- Scheduled web-based product training including pre and post-training activities;
- Implementing major new functional sub-systems or features including business requirements gathering, project scoping, planning and management, client liaison and any other time spent assisting You with implementation activities;
- Custom Development business requirements gathering and analysis;
- Systems integration consulting and implementation services; or
- Any other professional service provided by aXcelerate’s staff excluding Support Services.
7. Support Services
Support Services include the following support activities that are normally no longer than 10-15 minutes in duration:
- Identifying and reporting aXcelerate bugs;
- Brief clarification or explanation about an aXcelerate functional component;
- Assistance with issues during implementation; Assistance with configuration issues;
- Assistance with issues when implementing a new feature.
NOTE: There are no charges associated with any of the above Support Services.
Support Services do not include the following activities:
- Support for end-users except for aXcelerate Champions/Primary Contacts;
- Product training – NOTE: Product training differs from Support in that it normally requires step-by-step instruction in the use of the Software and more than 15 minutes to complete the instruction; Product training is a chargeable activity.
- Professional Services including:
- Business requirements gathering and analysis;
- Post-implementation upgrade or new feature implementation services including the product training in a new feature;
- Project management;
- Custom Development questions or requests (charges apply);
- Third-party application integrations or third-party plugins.
Access to the aXcelerate API is provided once the access fee is paid which includes one hour free support to assist developers with an overview and any initial support questions. For all additional API support over one hour, we will provide this service on a time and materials basis at our published API support rate.
8. Service Levels
As part of this Agreement, aXcelerate commits to the following levels of service delivery.
1. Urgent priority issue is defined as:
- an issue which affects the entire aXcelerate application not functioning.
- an issue which significantly impacts Your business due to not being able to use the application (e.g. server outage)
During business hours (8:30am to 5:00pm AEST), aXcelerate offers a one (1) hour acknowledgement email to the notifier of the Urgent support request. For support requests made after 4:00pm AEST, acknowledgement will be the next business day and You must lodge a phone call with our Support Team. All support requests will be handled either using the aXcelerate Support Centre or via direct phone call to our support telephone number (07) 3215 8888 or via email to firstname.lastname@example.org. It is a requirement that all Urgent priority requests for support submitted via the Support Centre system are also followed up with a phone call to aXcelerate’s main support number provided above. aXcelerate commits to resolving all Urgent priority issues within two (2) hours of receipt of the support request where possible.
Where an issue is an Urgent priority issue, aXcelerate will keep You informed of progress towards resolution via email and/or social media websites including Twitter and Facebook every two (2) hours if the issue is not resolved sooner. For Urgent priority after-hours support requests, aXcelerate provides two mobile phone numbers to call. aXcelerate commits to respond to all after-hours urgent calls within two (2) hours of receipt of the call. Contact phone numbers for after-hours Urgent issues are published on the Contact page of aXcelerate’s main Website.
2. High priority issue is defined as:
- an issue is affecting a part of the system that You use a significant part of the time to manage Your business.
- an issue is significantly affecting Your ability to deliver effective customer service to Your customers.
For business hours support (8:30am to 5:00pm AEST), aXcelerate offers a four (4) hour acknowledgement email for all High priority support requests. For support requests made after 4:00pm AEST, acknowledgement will be the next business day. All support requests will be handled either using the aXcelerate Support Centre or via direct phone call to our support telephone number (07) 3215 8888. It is recommended that all High priority support requests submitted via the Support Centre system are also followed up with a phone call to aXcelerate’s main support number.
aXcelerate commits to resolving all High priority issues within 24 hours of receipt of the support request. Where an issue is a High priority issue, aXcelerate will inform You regularly regarding the progress towards resolution via email. aXcelerate will provide updates via the Support Centre or on Your main business hours phone number or nominated mobile phone where possible.
3. Medium priority issue is defined as:
- an issue is moderately impacting Your business with some functionality of the system being affected.
- a temporary work around can be implemented until the issue can be resolved.
- an issue is affecting some users and their ability to do some productive work in some part(s) of the system.
For business hours support (8:30am to 5:00pm AEST), aXcelerate offers a twenty-four (24) hour acknowledgement email for all Medium support requests. For support requests made after 4:00pm AEST, acknowledgement will be the next business day. All support requests will be handled either using the aXcelerate Support Centre or via direct phone call to our support telephone number (07) 3215 8888.
Where an issue is Medium priority, aXcelerate will inform You, at a minimum, every 48 hours regarding the progress towards resolution via email. aXcelerate will provide updates via the Support Centre system or email.
4. Low priority issue is defined as:
- an issue is minor in nature and is not significantly impacting Your ability to conduct Your business.
- an issue is only affecting a single user and the work that they perform and/or is only affecting some of the functionality that they use in the course of their job.
- Your customer service/business operation is not being materially impacted.
For business hours support (8:30am to 5:00pm AEST), aXcelerate offers a twenty-four (24) hour acknowledgement email for all Low priority support requests. For support requests made after 4:00pm AEST, acknowledgement will be the next business day. All support requests will be handled either using the aXcelerate Support Centre or via direct phone call to our support telephone number (07) 3215 8888.
Where an issue is Low priority, we will inform you, at a minimum, once a week regarding the progress towards resolution via email. aXcelerate will provide updates via the Support Centre system or email.
9. aXcelerate’s Obligations
aXcelerate must perform the Service:
- promptly, carefully and to the highest possible standards;
- within the time frames specified in this Agreement or as otherwise agreed between the Parties in a purchase order or in writing; and
- exercising all due care, skill and judgement, in an efficient, professional and cost effective manner and in accordance with accepted professional and business practices.
aXcelerate will develop all Website functions and features in accordance with its prescribed quality assurance process. aXcelerate will manage all requests for assistance, problem resolution and change requests through its’ customer Support Centre.
aXcelerate confirms that any and all provisions relating to privacy of information and storage and access of Data within this Agreement will be observed and upheld by aXcelerate’s third-party service providers.
aXcelerate confirms that, in the event of its insolvency, You are granted permission to continue to use the aXcelerate Website free of charge.
aXcelerate confirms that in the event that it experiences an acquisition, or insolvency it will ensure that all Your Data remains Your property. You will have full physical and electronic access to Your Data which can be retrieved and transferred to Your choice of storage media. This same access is to be granted should either Party elect to terminate the Agreement. aXcelerate confirms that should it be acquired, purchased or taken over by another entity, this Agreement shall still be upheld.
10. Your Obligations
1. Payment obligations:
aXcelerate will provide the Service for the Fees outlined in the Schedule. You will pay aXcelerate the Fees at the time and in the manner outlined in the Schedule.
Subject to other provisions in this Agreement, You will not be obliged to pay aXcelerate for any part of the Service until You have been given a correctly rendered invoice.
A correctly rendered invoice must: contain full details of the Deliverables performed by aXcelerate; show an amount that is correctly calculated in accordance with this Agreement. You will pay a correctly rendered invoice within 30 days of receipt. Your aXcelerate account will be activated upon receipt of a properly executed/signed aXcelerate Schedule.
For all invoices issued to You, a 14-day overdue payment grace period will be provided prior to email notification of impending account suspension. Failure to pay an invoice within 28 days of the invoice due date will result in suspension of Your account until payment has been received. In the event that Your account is suspended due to non-payment, the account will be reactivated immediately upon receipt of bank remittance advice of payment or actual payment, whichever is the sooner. You will be notified of an impending account suspension if Your due invoice has not been paid by the due date. Your aXcelerate account Commencement Date will be the date your aXcelerate account is activated, irrespective of any go live date that You may have established.
2. Cancellation of pre-paid Implementation Services:
aXcelerate requires a minimum of seven (7) days notice of cancellation for any pre-scheduled Implementation Services including product training in order for You to receive a full refund or credit for the hours that you have requested to be scheduled. For any cancellations received less than seven (7) days prior to the scheduled event/Service, You will receive a 50% refund or credit of the associated Fees paid (if already paid prior to the delivery of the Service) or a credit of 50% of the Service value against any outstanding invoices OR against Your next aXcelerate renewal of Licence Fees. No credit or refund of pre-paid implementation services or product training Fees will be issued to You for any cancellations, for whatever reason, where notice of cancellation is provided less than two (2) days prior to the scheduled event/Service.
3. Non-payment of Licence Fees:
Outstanding/unresolved usability or technical issues relating to the operation or usage of a website integration, systems integration, custom data migration or any other custom-developed feature will be a valid reason for non-payment of any invoices related to a custom-developed feature. Outstanding/unresolved usability or technical issues relating to the operation or usage of a website integration, systems integration, custom data migration or any other custom-developed feature WILL NOT be a valid reason for non-payment of the Licence Fee invoice by the due date.
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by aXcelerate or condition posted on the Website. You may use the Service and Website on behalf of others or in order to provide services to others but if You do so You must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all Terms of this Agreement that apply to You.
You acknowledge that You are authorised to use the Service and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person You have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Service (whether that information and Data is Your own or that of anyone else).
You will nominate an aXcelerate system champion to be the main person to be trained in how to effectively operate aXcelerate. Internal enquiries or support requests from other staff members must be directed to the champion/primary system administrator in the first instance.
You will allocate reasonable time and resources, including appropriate training, for Your staff who will be responsible for setting up and using the aXcelerate system in accordance with the support and advice of aXcelerate.
5. Access conditions:
You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify aXcelerate of any unauthorised use of Your passwords or any other breach of security and aXcelerate will reset Your password. You must take all other actions that aXcelerate reasonably deems necessary to maintain or enhance the security of aXcelerate’s computing systems and networks and Your access to the Service.
11. Your Data
1. Ownership of Your Data:
You will retain all right, title and interest in and to Your Data in the form provided to aXcelerate. Subject to the Terms of this Agreement, you hereby grant to aXcelerate a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as You (or Your Invited Users) direct or enable through aXcelerate. aXcelerate may also access Your Live or Staging accounts in order to respond to your support requests.
2. Third-party applications and Your Data:
If You enable third-party applications for use in conjunction with the Service, You acknowledge that aXcelerate may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Service. aXcelerate shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
3. Storage Limits:
From time to time, there may be storage limits imposed on Your usage of the Website. aXcelerate reserves the right to charge for over-usage Fees where reasonable use of the Website has been exceeded. aXcelerate may impose new, or may modify existing, storage limits or data traffic usage at any time at our discretion, with or without notice to you.
4. Storage of Your Data:
aXcelerate warrants that all Your Data is stored on Australian soil.
5. Responsibility for Your Data:
You represent and warrant that: (i) You have obtained all necessary rights, releases and permissions to provide all Your Data to aXcelerate and to grant the rights granted to aXcelerate in this Agreement and (ii) Your Data and its transfer to and use by aXcelerate as authorized by You under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under clause 11.6 (Data Security), aXcelerate assumes no responsibility or liability for Your Data, and You shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
6. Data Security:
aXcelerate implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Website necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by aXcelerate, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
7. Indemnity for Your Data:
You will defend, indemnify and hold harmless aXcelerate from and against any loss, cost, liability or damage, including legal fees, for which aXcelerate becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or Your use of aXcelerate in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable Law. This indemnification obligation is subject to Your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for You to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of aXcelerate at your expense.
8. Removals and Suspension:
aXcelerate has no obligation to monitor any content uploaded to aXcelerate. Nonetheless, if aXcelerate deems such action necessary based on Your violation of this Agreement or in response to takedown requests that aXcelerate receives following our guidelines for reporting copyright and trademark violations, aXcelerate may (1) remove Your Data from aXcelerate or (2) suspend your access to aXcelerate. aXcelerate will alert You when we take such action and give You a reasonable opportunity to rectify Your breach, but if we determine that Your actions endanger the operation of aXcelerate or other users, aXcelerate may suspend Your access to the Website immediately without notice. You will continue to be charged for aXcelerate during any suspension period. aXcelerate has no liability to You for removing or deleting Your Data from or suspending Your access to aXcelerate.
9. Security Conditions:
As a condition of these Terms, when accessing and using the Service, You must:
- not attempt to undermine the security or integrity of the Approved Party’s computing systems and networks;
- not use, or misuse, the Service in any way which may impair the functionality of the Service or Website, or other systems used to deliver the Service or impair the ability of any other user to use the Service or Website;
- not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Service is hosted;
- not transmit, or input into the Website, any: (i) files that may damage any other person’s computing devices or (ii) software, content that may be offensive, or (iii) material or Data in violation of any Law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
- not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Service or to operate the Website except as is strictly necessary to use either of them for normal operation.
10. Vulnerability Scanning and Penetration Testing
aXcelerate undertakes regular Vulnerability Scanning and Penetration Testing of all live, staging and testing platforms of aXcelerate.
It is not the responsibility of aXcelerate to undertake ongoing assessments of the vulnerability of client websites. aXcelerate will not warrant third party software or hosting or third party licenses that result in potential vulnerabilities in network devices including but not limited to firewalls, routers, switches, servers and applications. Clients should refer to their agreements with those third parties in relation to such concerns. aXcelerate is not liable for any consequential loss as a result of a security, vulnerability or penetration breach but will act in good faith to immediately assist the client if any issues occur in the normal course of business.
Unless the relevant Party has the prior written consent of the other or unless required to do so by Law:
- Each Party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms.
- Neither Party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
- Each Party’s obligations under this clause will survive termination of this Agreement.
The provisions of clauses 11.1 and 11.2 shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
13. Intellectual Property
Nothing in this Agreement affects existing right title and Intellectual Property Rights of You and aXcelerate in any material existing before the commencement of the Agreement. aXcelerate warrants that it has the right and authority to supply the Deliverables and to grant any licence or transfer ownership as applicable of Deliverables to You under and in accordance with the Terms of this Agreement. You acknowledge and agree that aXcelerate (or its licensors), owns the Intellectual Property Rights of the Website and any documentation relating to the Service. You will exclusively own all Intellectual Property Rights to Your Data. The title to and ownership of all Intellectual Property Rights in Your Data will vest immediately upon its creation in You. aXcelerate assigns to You all existing and future Intellectual Property Rights it has or may have in Your Data to the extent necessary for, and for the sole purpose of, performing this Agreement. This clause 11.13 will survive termination of this Agreement.
15. Warranties and Acknowledgements
1. aXcelerate warrants that:
- it does not have a conflict of interest (actual, potential or perceived) under this Agreement;
- it has the necessary systems, skills, qualifications and approvals to provide the Service which is the subject of this Agreement;
- it has provided You with sufficient information to enable You to provide a suitable operating environment for use of the Website;
- all Custom Development work will perform to Your business requirements prior to final payment being made by You;
- it will resolve any defects of the Website as quickly as possible and in accordance with the Service Levels set out in clause 8 of this Agreement;
- it holds, maintains and can provide evidence of broad form public liability and product liability insurance;
- it will comply with its obligations under the Privacy Laws;
- it will treat all Confidential Information in a confidential manner and ensure that the information is not disclosed, used, copied or reproduced except as agreed by You or as required by law; and
- it is solvent.
These warranties will remain in effect for the term of the Agreement.
aXcelerate has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Service or access the Website on behalf of or for the benefit of anyone other than Yourself (whether a body corporate or otherwise) You agree that:
- You are responsible for ensuring that You have the right to do so;
- You are responsible for authorising any person who is given access to information or Data, and You agree that aXcelerate has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
- You will indemnify aXcelerate against any claims or loss relating to:
- aXcelerate’s refusal to provide any person access to Your information or Data in accordance with these Terms; or
- aXcelerate’s making available information or Data to any person with Your authorisation.
2. Compliance with applicable Laws:
You remain solely responsible for complying with all Laws relating to Your organisation. It is Your responsibility to check that storage of and access to Your Data via the Website will comply with Laws applicable to You (including any Laws requiring You to retain records).
3. Due Authority:
Each Party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if You are an entity, this Agreement and each Invited User of such Party with all necessary authority to bind such Party to the Terms of this Agreement.
4. Warranty disclaimer:
Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Service. aXcelerate is not in any way responsible for any such interference or prevention of Your access or use of the Service. aXcelerate shall not be responsible for any interruption to the Service as a consequence of a Force Majeure Event. The Service is provided “as is” and aXcelerate and its partners or sub-contractors expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality, or merchantability, whether express, implied, or statutory. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by Law. aXcelerate shall not be liable for delays, interruptions, service failures and other problems inherent in use of the Internet and electronic communications or other systems outside the reasonable control of aXcelerate. To the maximum extent permitted by Law, neither aXcelerate nor any of its third-party suppliers makes any representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any products or any content therein or generated therewith, or that: (a) the use of any Service will be secure, timely, uninterrupted or error-free; (b) the Service will operate in combination with any other hardware, software, system, or data; (c) the Service (or any products, services, information, or other material purchased or obtained by You through the Service) will meet Your business requirements or expectations); (d) any stored Data will be accurate or reliable or that any stored Data will not be lost or corrupted; (e) errors or defects will be corrected; or (f) the Service (or any server(s) that make a hosted service available) are free of viruses or other harmful components.
5. Limitation of liability:
When permitted by law, aXcelerate, and aXcelerate’s third-party partners, will not be responsible for lost profits, revenues, or Data, financial losses or indirect, special, consequential, exemplary, or punitive damages. To the extent permitted by Law, the total liability of aXcelerate, and aXcelerate’s third-party partners, for any claims under these Terms, including for any implied warranties, is limited to all Licence Fees paid during the previous 12 months (or, if we choose, to supplying you the services again). In all cases, aXcelerate, and its third-party partners, will not be liable for any loss or damage that is not reasonably foreseeable. If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate this Agreement in accordance with clause 17.
6. IP Indemnification by aXcelerate:
aXcelerate will defend You against any claim brought against You by a third party alleging that the Service, when used as authorised under this Agreement, infringes an Australian patent or registered copyright (a “Claim”), and aXcelerate will indemnify You and hold You harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by aXcelerate (including reasonable legal fees) arising out of a Claim, provided that we have received from You: (a) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in Your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If Your use of the Service is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, aXcelerate may, at our option and in our discretion: (i) procure a license for Your continued use of the Service in accordance with this Agreement; (ii) substitute a substantially functionally similar Service; or (iii) terminate Your right to continue using the Service and refund, any pre-paid amounts for the terminated portion of the Term. aXcelerate’s indemnification obligations above do not apply: (1) if the Service is modified by any Party other than aXcelerate, but solely to the extent the alleged infringement is caused by such modification; (2) if the Service is used in combination with any non-aXcelerate product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorised use of the Service; (4) to any claim arising as a result of (i) Your Data or (ii) any third-party deliverables or components contained within the Service; (5) to any unsupported release of the Website; or (6) if You settle or make any admissions with respect to a claim without aXcelerate’s prior written consent. This clause 15.6 (IP indemnification by aXcelerate) states our sole liability and Your exclusive remedy for any infringement of Intellectual Property Rights in connection with the Service or other items provided by aXcelerate under this Agreement.
7. Third-Party Vendor Services:
aXcelerate or third parties may, from time to time, make available to You, third-party services, including but not limited to add-ons, integrations, and plugins as well as implementation, customisation, training, and other consulting services. If You procure any of these third-party services, You do so under a separate agreement (and exchange of data) solely between You and the third-party vendor. aXcelerate does not warrant or support non-aXcelerate services, whether or not they are designated by aXcelerate as third-party partners, and disclaims all liability for such services. If You install or enable any third-party services for use with aXcelerate, You acknowledge that aXcelerate may allow the vendors of those services to access Your Data as required for the interoperation and support of such add-ons with aXcelerate. aXcelerate shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third party add-on vendors.
8. Publicity Rights:
aXcelerate may identify You as an aXcelerate client in our promotional materials and/or newsletter update. You may request that aXcelerate stop doing so by submitting an email to email@example.com at any time. Please note that it may take us up to five (5) business days to process Your request.
16. Dispute Resolution
The parties agree that in the event of a question, dispute or difficulty arising from the content of this Agreement, the matter shall be dealt with as follows:
- The Party initiating the question, dispute or difficulty will provide the other Party with a letter or email detailing the specifics of the question, dispute or difficulty (Dispute Letter);
- The matter will be initially discussed between aXcelerate and Your contact nominated in the Schedule within seven (7) business days of receipt of the Dispute Letter;
- If the matter is not settled within seven (7) business days of the discussion referred to above it shall be referred to a commercial mediation group to try to resolve the issue;
- Where mediation is not successful within ten (10) business days following the successful appointment of a mediator, either Party may commence proceedings in court provided that the prior steps referred to in this clause have been followed.
17. Term and Termination
1. aXcelerate will provide the Service to You for the Term. You can extend the Agreement for the Renewal Term once the initial, minimum 12-month Term has expired. If You do not notify aXcelerate of Your intention to terminate at least 30 days prior to Your anniversary date, Your agreement will be renewed for a further 12-month period. You may terminate this Agreement after serving the first 12-month Term if:
- aXcelerate is in breach of any of the warranties and fails to rectify such breach within a reasonable period of time; or
- You give 30 days notice in writing to aXcelerate of Your intention to terminate.
Where You terminate the Agreement, any Fees that have already been invoiced and paid for the Service Year will be refunded to You on a pro-rata basis. If the Service Year Licence Fee has been invoiced but not paid by You by the date that you notify us of Your intention to terminate, then You will be liable to pay a minimum of three (3) months of pro-rata Licence Fees. Upon termination, aXcelerate will provide you with a complete copy of Your Data via an appropriate data medium (such as a link to a secure, shared file system or USB drive sent by registered mail to your nominated physical/street address).
2. Deletion of Your Data at Termination:
aXcelerate may remove or delete Your Data from Your aXcelerate account within a reasonable period of time after the termination of this Agreement, or at a time agreed upon by You and aXcelerate, so long as we have provided you with a copy of Your Data in accordance with this clause.
This clause 17.2 will survive termination of this Agreement.
- If You breach any of these Terms (including, without limitation, by non-payment of any Licence Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
- If You breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.4 or any payment of Licence Fees that are more than 28 days overdue); or
- If You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
aXcelerate may take any or all of the following actions, at its sole discretion:
- Terminate this Agreement and Your use of the Service and the Website;
- Suspend for any definite or indefinite period of time, Your use of the Service and the Website;
- Suspend or terminate access to all or any Data;
- Take either of the actions in sub-clauses (1), (2) and (3) of this clause 17.3 in respect of any or all other persons whom You have authorised to have access to Your information or Data.
For the avoidance of doubt, if payment of any invoice for Licence Fees due in relation to any of Your aXcelerate accounts is not made in full by the relevant due date, aXcelerate may suspend or terminate Your use of the Service, the authority for all or any of Your Invited Users to use the Service, or Your rights of access to all or any Data.
4. Accrued Rights:
Termination of these Terms is without prejudice to any rights and obligations of the Parties accrued up to and including the date of termination. On termination of this Agreement You will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- immediately cease to use the Service and the Website.
18. GST Inclusive
Any amount referred to in this Agreement which is relevant in determining a payment to be made by one of the parties to the other is inclusive of GST unless indicated otherwise. If GST is imposed on a supply made under or in connection with this Agreement, the consideration provided for that supply is increased by the rate at which GST is imposed. The additional consideration is payable at the same time as the consideration to which it relates. If one of the Parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this Agreement, the amount of the reimbursement will be net of any input tax credit which may be claimed by the Party being reimbursed in relation to that expense or outgoing.
A notice, consent, request or any other communication in regard to or under this Agreement or its termination must be in writing, signed by or on behalf of the Party giving it, and will be delivered either by hand or forwarded by pre-paid registered post or transmitted by email, to the respective contact person of either Party as provided in the Schedule. Further Assurances: Each Party must, at its own expense, promptly execute all documents and do all things reasonably necessary or desirable to give effect to the arrangements recorded in this Agreement.
The Parties cannot assign or transfer any of its rights or obligations under this Agreement or any other interest arising from this Agreement without the prior written consent of the other Party which in Your case will not be unreasonably withheld in the case of a sale or transfer of Your business.
This Agreement may be executed in any number of counterparts, each of which, when executed, is an original. All counterparts taken together constitute one original.
Each Party shall pay and bear its own costs of and incidental to the preparation, negotiation and execution of this Agreement.
Variation: This Agreement will not be changed or modified in any way subsequent to its execution except in writing signed by You and aXcelerate.
23. Entire Agreement
This Agreement constitutes the entire Agreement of the parties about its subject matter and supersedes all previous Agreements, understandings and negotiations on that subject matter, whether orally or in writing.
24. Governing Law and Jurisdiction
This Agreement is governed by and construed in accordance with the laws of Queensland. The Parties irrevocably submit to the non-exclusive jurisdiction of the court.
25. Survival after Termination
Clauses 2, 9, 12, 13, 14, 15 & 17 continue to apply after termination of this Agreement together with any other Term which by its nature is intended to do.