Terms last updated: 13/08/20
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.
“Approval” means any certificate, licence, consent, permit, or other requirement of any authority having jurisdiction in connection with the activities contemplated in this Agreement.
“Approved Party” means the Internet Service Provider (ISP) which is Amazon Web Services, Sydney, NSW Australia. ABN 15 242 571 122.
“Authorised Personnel” means aXcelerate’s Developers, aXcelerate Onboarding Consultants, aXcelerate Support Representatives and Directors.
“aXcelerate” means The Verner-Mackay Group Pty Ltd trading as ‘aXcelerate’ and all future global subsidiaries of The Verner-Mackay Group Pty Ltd.
“Business Days” means Monday to Friday, 8:30 am – 5:00 pm Australian Eastern Standard Time (AEST) except for public holidays.
“Change Request” means a request by the Customer (‘You’) to be made
“Commencement Date” means the date Your aXcelerate account is activated and Your login details are emailed to You.
“Confidential Information” 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.
“Consultant” means either an aXcelerate Onboarding Consultant/Trainer (an employee of aXcelerate) or aXcelerate Partner (sub-contractor of aXcelerate).
“Custom Development” means additional aXcelerate features or enhancements specifically requested by, and paid for by, You.
“Data” means any data inputted by You or with Your authority into the Website.
“Deliverables” means all Services supplied or to be supplied under this Agreement as outlined in the Schedule.
“Dispute Notice” 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.
“Fees” means aXcelerate’s Fees as outlined in the Schedule (which aXcelerate may change from time to time on 30 days written notice to You).
“Force Majeure Event” means an act of God, national emergency, insurrection, riot, war or industrial action.
“GST” means a goods and services tax, or similar value-added tax, levied or imposed under tax Laws.
“Onboarding 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, trademark, 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.
“Invited User” 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.
“Licence Fee” means the monthly or annual licence fee (excluding any taxes and duties) payable by You in accordance with the fee schedule available from aXcelerate.
“Material” means material in any form, including documents, reports, products, equipment, information, data, software, software tools and software development methodologies.
“Moral Rights” 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.
“Party” means aXcelerate and You, as the context requires.
“Penetration Test” 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.
“Personal Information” 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.
“Privacy” 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.
“Privacy Laws” means the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and any other laws relating to Privacy.
“Records” 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.
“Release Notes” means the method of communication of all new features, improvements and bug fixes of the Software.
“Renewal Term” means extending the Agreement for an additional 12 month period from the anniversary date of the Agreement.
"Schedule" means the specific schedule of items, quantity and the associated Fees that You have agreed to purchase from aXcelerate.
“Service” 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.
“Service Levels“ means the manner and the timeliness which requests for support by You are managed.
“Service Year” 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.
“Subscriber” 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.
“Tax” 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.
“Term” means 12 months from the Commencement Date.
“Updates” means any ongoing continuous improvement or enhancement to the functionality of the Website.
“Vulnerability Scan” means the act of identifying potential vulnerabilities in network devices such as firewalls, routers, switches, servers and applications.
“Website” 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.
“You” means the Subscriber, and where the context permits, an Invited User. “Your” has a corresponding meaning.
“Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through aXcelerate.
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:
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:
3. Provision of the Service:
aXcelerate will provide You with secure online access to its web-based training and student 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 and Fee increases:
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 onboarded 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 in-app notification system. These Terms will be reviewed annually with reference to ongoing system development and general price increases (CPI). aXcelerate will provide 30 days written notice of any fee increases via our in-app notification system.
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 backup 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.
It is Your responsibility to implement aXcelerate with support from Your assigned aXcelerate Onboarding Consultant. In order to support Your onboarding of aXcelerate, there is a range of Onboarding Services that aXcelerate provides on a fee-for-service basis including but not limited to:
NOTE: Free aXcelerate Support Services do not commence until You have confirmed in writing that the Onboarding 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 Onboarding 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:
NOTE: The total hours of Onboarding Services delivered may be allocated to any of the above-mentioned Onboarding Services. aXcelerate will provide You with feedback on the number of Onboarding Service hours delivered/spent, including training hours, during the implementation of aXcelerate accessible via the Support Centre function.
Onboarding 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 Onboarding Service hours within the expiry period to avoid losing part or all of these hours.
Depending on the number of features and functions to be accessed, You are encouraged to commit to a minimum of 15 hours of aXcelerate training (trainer delivered) to ensure effective skills development and therefore productive use of aXcelerate.
Fees for additional Onboarding Services:
Scheduled one-on-one over-the-phone/web training – $170.00/hour
Scheduled on-site onboarding services – $900.00/half-day
Scheduled on-site onboarding services – $1,500.00/full-day
Certificate template creation and/or development – $170.00/hour
Template/Merge Doc creation and/or development – $170.00/hour
These fees will be charged at the above hourly rates and pro-rated for the actual amount of time requested, and agreed to, prior to the scheduled service engagement.
NOTE: Terms and conditions of on-site consulting (onboarding/training services) which include travel and/or accommodation whether delivered by an aXcelerate Onboarding Consultant or aXcelerate Partner (sub-contracted to aXcelerate):
For on-site training to an organisation outside of the 50 km radius from the GPO, there is a travel time fee of $50 per hour and a distance charge equivalent to the ATO per kilometre rate, charged from the CBD to Your organisation and return. All airfares, taxis, transfers and airport parking are charged at cost. These items will be quoted on the Client Agreement as “$0” but will be charged at the purchase value on the day and time of the actual booking; On-site onboarding/training travel time by the Consultant on non-training days is $200 flat fee; Accommodation and meals are charged via a travel allowance at the published standard ATO non-executive rate.
If the aXcelerate Onboarding Consultant or aXcelerate Partner is required on-site for a full-day of training (commencing at 9:00 AM), they will be required to fly in the day before. If the aXcelerate Onboarding Consultant or aXcelerate Partner is required on-site for a half-day of training, they are able to fly in the same day.
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:
Examples of invalid data include but are not limited to:
2. AVETMISS data migration:
AVETMISS data migration is provided on the basis of the following conditions:
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:
Post-onboarding product training and/or consulting services includes:
Support Services include the following support activities that are normally no longer than 10-15 minutes in duration:
Where the Support Service may take longer than 15 minutes to resolve, aXcelerate will notify You and provide an estimate of the charges (if any) associated with this resolution.
NOTE: There are no charges associated with any of the above Support Services.
Support Services do not include the following activities:
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.
As part of this Agreement, aXcelerate commits to the following levels of service delivery. All support requests will be handled either using our Support Centre or via direct phone call to our support telephone number (07) 3215 8888.
Clients submitting support requests through our Support Centre will have the ability to select a ‘priority’ level. All support requests submitted by email will automatically be assigned a ‘low’ priority level. aXcelerate reserve the right to reassign the priority level where appropriate. Where aXcelerate reassigns the priority level of an issue, we will notify you of that change.
1. Urgent priority issue is defined as:
aXcelerate offers a one (1) business 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. 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.
Where an issue is an Urgent priority issue, aXcelerate will keep You regularly informed of progress towards resolution via our Status Page (http://status.axcelerate.com.au/). For Urgent priority after-hours support requests, aXcelerate provides an after-hours option on our support telephone number. aXcelerate commits to respond to all after-hours urgent calls within two (2) calendar hours of receipt of the call.
2. High priority issue is defined as:
During business hours (8:30am to 5:00pm AEST), aXcelerate offers a four (4) business hour acknowledgement email for all High priority support requests. 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.
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:
During business hours (8:30am to 5:00pm AEST), aXcelerate offers an eight (8) business hour acknowledgement email for all Medium support requests. 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 sixteen (16) business hours regarding the progress towards resolution via our support system or email.
4. Low priority issue is defined as:
During business hours (8:30am to 5:00pm AEST), aXcelerate offers a sixteen (16) business hour acknowledgement email for all Low priority support requests. All support requests will be handled either using the aXcelerate Support Centre.
Where an issue is Low priority, we will inform you, at a minimum, once a week regarding the progress towards resolution via the Support Centre or email.
5. Uptime Commitment
aXcelerate commits to an uptime target of 99.9% availability (not including scheduled maintenance windows which are planned outside of business hours). aXcelerate has chosen a highly reputable hosting partner (Amazon Web Services) to ensure that we have the best possible chance of achieving this target at all times. aXcelerate does not and cannot guarantee this target due to factors such as hosting party issues, telecommunications/network issues and client-related telecom issues, which are beyond our control. We use the aXcelerate Status Page (http://status.axcelerate.com.au/) to show system status information and notifications, including information about uptime.
Principles underpinning this policy
In order to develop aXcelerate in a sustainable way and offer aXcelerate as a cost-effective software solution for your business, aXcelelerate will adhere to the following key principles:
Definition of product development changes
How we handle each type of product development change request
How does aXcelerate ensure that more client-requested features and improvements get developed?
As part of this policy, aXcelerate makes the following commitment:
As part of this policy, aXcelerate expects the following from our clients:
aXcelerate must perform the Service:
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 the privacy of information and storage and access of Data within this Agreement will be observed and upheld by aXcelerate and 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.
aXcelerate constantly monitors and improves on systems and security and is certified against ISO27001 Information Security Management.
Please note that whilst aXcelerate is not PCI compliant, all third-party integrated payment gateways used are PCI compliant and any payment process related to Your use of aXcelerate will be solely through PCI compliant gateways. aXcelerate urges You not to store any credit card or payment information in any part of the aXcelerate system itself.
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. Payments can be paid either monthly or, if paying annually in advance, for a discounted rate of 3% off the full 12 x monthly payments amount.
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 courtesy reminder email will be sent to you seven (7) days prior to the invoice due date. If You do not make payment of Your invoice by the due date, You will receive a first reminder email of overdue invoice within three (3) days of the invoice due date. If You do not make payment within seven (7) days of the invoice due date, You will receive a second overdue invoice reminder email including a warning of suspension of Your aXcelerate account if payment is not made within 14 days of the invoice due date. If You do not make payment within 13 days of the invoice due date, You will receive a third overdue reminder email and warning of suspension of Your aXcelerate account if payment is not received by 5:00pm the following day. If You do not make payment by 5:00pm on the 14th day after the invoice due date, Your aXcelerate account will be suspended and You will receive a notification email of that event. In the event that Your account is suspended due to non-payment of Your invoice, Your aXcelerate account will be reactivated immediately upon receipt of bank remittance advice of payment or actual payment, whichever is the sooner.
Your aXcelerate account Commencement Date is the date Your aXcelerate account is activated, irrespective of any go-live date that You may have established.
2. Cancellation of pre-paid Onboarding Services:
aXcelerate requires a minimum of two (2) business days notice of cancellation/postponement for any pre-scheduled Onboarding Services including product training in order for You to receive a full (100%) refund or credit for the hours that You have requested to be scheduled.
For any cancellations/postponements requested less than two (2) business 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). Any 50% credit of the Service value can be used against any outstanding invoices OR against Your next aXcelerate renewal of Licence Fees.
3. Non-payment of Licence Fees:
Outstanding/unresolved usability or technical issues relating to the operation or usage of Custom Development WILL be a valid reason for non-payment of any invoices related to that Custom Development work.
Outstanding/unresolved usability or technical issues relating to the operation or usage of any Custom Development WILL NOT be a valid reason for non-payment of aXcelerate Licence Fees invoice(s) by the due date(s).
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.
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:
With Your aXcelerate account You are able to upload up to 100Gb of files free of charge (for example .pdfs of assessment evidence, scanned copies of enrolment forms, contact photos, videos, audio files, etc.). Above the free 100Gb limit, You will be charged at the rate of $100.00 per 200Gb increment or part thereof per annum. You can track Your file usage in Your ‘Account Statistics’ section along with the total number of contacts, Your billing period and Your number of enrolled learners for the current billing cycle.
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 10.6 (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 and Data Breach:
aXcelerate will maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. 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 aXcelerate is not responsible for any of Your Data lost, altered, intercepted or stored across such networks. aXcelerate 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.
If aXcelerate becomes aware or suspects that there has been unauthorised access to, or disclosure of Your Data or Your Data has been lost in circumstances where unauthorised access to, or unauthorised disclosure of Your Data may occur, aXcelerate will notify You and provide details of the data breach via email or in-app notification within 24 hours.
aXcelerate will also act in accordance with the Notifiable Data Breaches scheme from Office of the Australian Information Commissioner to report any data breaches to the Australian Government within 24 hours where the data breach falls under the criteria for compulsory reporting.
7. Indemnity for Your Data:
You will indemnify aXcelerate against any loss, cost, liability or damage, including legal fees, for which aXcelerate becomes liable directly arising from Your Data, including 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 where the claim, loss, cost, liability or damage is caused or contributed to by the wilful or negligent act or omission or breach of contract of You. This indemnity does not apply where the claim, loss, cost, liability or damage is caused or contributed to by the wilful or negligent act or omission or breach of contract of aXcelerate. 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.Indemnity from aXcelerate
aXcelerate will defend, indemnify and hold harmless You from and against any loss, cost, liability or damage, including legal fees, arising from or in connection with the Services of this Agreement including but not limited to any claim brought by a third party, arising from or in connection with their Services or this Agreement, where the claim, loss, cost, liability or damage is caused or contributed to by the wilful or negligent act or omission or breach of contract of aXcelerate.
9. 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.
10. Security Conditions:
As a condition of these Terms, when accessing and using the Service, You must:
11. Vulnerability Scanning and Penetration Testing
aXcelerate undertakes regular vulnerability scanning and penetration testing of all live, staging and testing platforms of aXcelerate and will provide a report of this testing to You where reasonably requested by You. 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:
The provisions of clauses 11.1 and 11.2 shall not apply to any information which:
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 13 will survive the termination of this Agreement.
1. aXcelerate warrants that:
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:
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 where this interference is caused by a party outside the reasonable control of aXcelerate. 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 subcontractors 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. This clause shall not apply to warranties and representations expressly stated in this Agreement, including but not limited to the warranties contained in clauses 15.1 and 15.3 of this Agreement. 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 our provision of 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 onboarding, 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 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 only identify You as an aXcelerate client in our promotional materials and/or newsletter update where You have provided Your prior written agreement.
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:
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 :
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. Save in the case of termination for breach, 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 one (1) month 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). Your right to terminate is in addition to any other rights that may arise as a result of any default of aXcelerate, such as the right to seek damages.
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 16.2 will survive termination of this Agreement.
aXcelerate may take any or all of the following actions, at its sole discretion:
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:
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 exclusive 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 prepaid 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.
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.
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.
Clauses 2, 10, 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.