Terms of Use for organisations who became an aXcelerate client on or before 30 September 2023

Welcome to aXcelerate, an award-winning online student management system designed for training businesses to manage a students journey in one system. These Terms of Use are intended to explain our obligations as a service provider and Your obligations as a customer. Please read them carefully.

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.

The aXcelerate Service will change over time based on user feedback. These Terms of Use are not intended to answer every question or address every issue raised by the use of the aXcelerate Service.

These Terms, or any part thereof, may be modified by aXcelerate at any time by posting the amended terms on www.axcelerate.com.au/terms or via an in-app notification after login to the application. Please check this page periodically for updates, including the addition or removal of terms. The updated terms will be effective immediately upon posting and will apply on a going-forward basis. Your continued use of the Service and Websites after any such update constitutes your acceptance of such modifications, additions or deletions.

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.

1. Definitions

“Agreement” means these Terms of Use.

“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 Service 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.

“Initial Term” means the initial committed duration of this Agreement as defined in the Schedule or a minimum 12 months from the Commencement Date, if not expressly defined therein.

“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.

“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.

“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 duration as defined in the Schedule or a minimum 12 month period from the end of the Initial Term or any subsequent Renewal Term, if not expressly defined therein.

‍"Schedule" means the specific schedule of items, quantity and the associated Fees that You have agreed to purchase from aXcelerate.

The Software-as-a-Service (hereinafter referred to as the “Service” or “Services”) includes:

• Product (Including but not limited to aXcelerate Standard, aXcelerate Turbo, Work-Based Learning etc.) as defined in the Schedule
• Deliverables as defined in the Schedule. These are once-off in nature (e.g., Data Migration, Onboarding)
• Support Services as defined in Section 7. Service Levels

The “Services” exclude anything not explicitly included above. E.g.,

• Any Deliverables that are delivered under a separate Statement of Work (e.g., Post-Implementation Training hours)
• Support for External or Third-Party integrations (e.g., an integration using aXcelerate APIs)
• Support for services brokered by aXcelerate through a Third-Party (e.g., SCORM)
• Any services provided by aXcelerate as a value-add
• Any services provided by aXcelerate under once-off arrangements
• Any services provided by aXcelerate that are considered non-standard service inclusions
• Any formal advice that can be relied upon in relation to regulatory compliance

Anything that is not included in the Services is not included in the Price and is not subject to the Service Levels.

“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 the Initial Term and any Renewal Terms (if entered into).

“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 at the following domains or any other site operated by aXcelerate:

• www.axcelerate.com.au
• www.axcelerate.com
• app.axcelerate.com and any subdomains (e.g., vmlearning.app.axcelerate.com)
• stg.axcelerate.com (e.g., vmlearning.stg.axcelerate.com)

“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.

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:

1. the Subscriber determines who is an Invited User and what level of user role access permissions to the relevant Service functions that the Invited User has;
2. the Subscriber is responsible for all Invited Users’ use of the Service;
3. the Subscriber controls each Invited User’s level of access permissions to the relevant Service 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;
4. if there is any dispute between a Subscriber and an Invited User regarding access to any Service 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:

1. You shall not share Your user login credentials with anyone else;
2. 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;
3. You agree to use the demonstration account bound by all the Terms contained in this Agreement; and
4. 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 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 the Service 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 always attempt to act in the best interests of our customers. Any variations to the product are diligently considered and reviewed prior to deployment.

Changes to the service including new features, improvements and bug fixes are documented via the Release Notes where possible. Product updates typically occur every two weeks on a Wednesday evening. Wherever possible, Release Notes will be made available one week prior to the fortnightly release.

You will be entitled, at no additional cost, to any and all new product enhancements as and when they become available according to the Deliverables outlined in the Schedule. You will be notified, from time to time, of any significant new optional chargeable features by aXcelerate.

Where appropriate and/or possible, aXcelerate will implement functionality to allow the customer the option to apply a change or not (e.g., via a system setting).

In some instances, it is not possible to allow the customer to choose whether they wish to utilise a new feature or system change (e.g., Important cybersecurity enhancements). As aXcelerate is a single instance Software-as-a-Service, these changes will apply to all customers.

aXcelerate welcomes all feedback on product features, enhancements and changes, however cannot guarantee any changes to the service directly as a result of feedback.

aXcelerate neither represents nor warrants that changes to the Service will not impact client configurations and/or external integrations and/or processes in unintended ways.

aXcelerate is not liable for the impact of Service changes on client configurations and/or external integrations and/or processes.

The Client indemnifies aXcelerate in full for the impact of Service changes on client configurations and/or external integrations and/or processes.

These Terms will be reviewed annually with reference to ongoing system development and general price increases. aXcelerate will provide 30 days written notice of any Fee increases.

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 is NEVER copied to Your Live account. All backup functions of Your Live and Staging accounts are performed separately by the Approved Party.

3. Onboarding Services

It is Your responsibility to implement the Service 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:

1. Coordination and facilitation of an onboarding planning meeting;
2. Configuration and setup of Your aXcelerate Live and Staging accounts;
3. Uploading and configuring Your account’s branding/logos;
4. Coordination of Your data migration(s);
5. Coordination of Custom Development work (if any) including quotation preparation, client liaison, task setup and developer interaction;
6. Template or certificate template creation, modification and/or co-ordination;
7. Analysis of training needs and preparation of tailored training plans;
8. Coordination of product training including all travel plans (where required);
9. Product training including any follow-up actions (where required); and
10. Support activities during the onboarding phase.

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 the Service based on the functional areas of the Service 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:

1. Your level of existing domain knowledge (e.g. RTO & AVETMISS or other compliance and regulations) required to implement a system such as aXcelerate;
2. The capacity of You and/or Your employees to learn how to use the Service (how quickly You or Your employees learn how to use the software and then apply the learning in your aXcelerate account); and/or
3. The resource or time constraints of You or Your organisation.

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 the Service.

Fees for additional Onboarding Services:

• Scheduled one-on-one over-the-phone/web training – $185.00/hour
• Scheduled on-site onboarding services – $900.00/half-day
• Scheduled on-site onboarding services – $1,500.00/full-day
• Certificate template, Template, Merge Document or Online Assessment creation and/or development – $185.00/hour
• Extending the expiry of Onboarding Hours by a period of three (3) months – $185.00

NOTE: Certificate template, Template, Merge Document, or Online Assessment creation is subject to aXcelerate staff availability. aXcelerate reserves the right to decline requests for creation of these items.

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.

4. Data Migration Services

Data migration services are provided to import Your Data from an existing system into the Website. 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:

1. Contacts data will be sourced from an existing database/dataset (e.g. ACT, Outlook, MYOB, Excel spreadsheets, etc.);
2. aXcelerate will provide You with an Excel spreadsheet template with the correct format for contacts fields to populate;
3. 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;
4. Contacts data does not include any linkage to course information, enrolments, outcomes, assessments, or any other data elements;
5. 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:

1. Mixed data types in table cells (for example in an Excel spreadsheet or .CSV file);
2. 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
3. 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:

1. AVETMISS data will be supplied by You from Your existing AVETMISS-compliant system in AVETMISS standard 8.0 or 7.0 format(s) (10 x standard NAT files, NOT .csv format);
2. 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;
3. 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 the Service with known data validation errors;
4. 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 the Service. 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;
5. Where You choose not to correct data validation errors and instead instruct aXcelerate to go ahead and import the data to Your account anyway, You must provide aXcelerate with approval in writing to import the data to the Service with known data validation errors;
6. AVETMISS data migration time will be charged at aXcelrate’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 custom development rate with the following conditions:

1. You must provide a sample data set(s) to be migrated to the Service prior to any estimate of the cost being provided by aXcelerate.

5. Post-onboarding Product Training and Consulting Services

Post-onboarding service hours have an expiry date of three (3) months from the date of purchase. These service hours may be used for any of the following:

1. Scheduled onsite product training including pre and post-training activities;
2. Scheduled web-based product training including pre and post-training activities;
3. Onboarding major new functional subsystems or features including business requirements gathering, project scoping, planning and management, client liaison and any other time spent assisting You with onboarding activities;
4. Systems integration consulting and onboarding services; or
5. Any other professional service provided by aXcelerate’s staff excluding Support Services or Custom Development

6. Support Services

Support Services include the following support activities that are normally no longer than 10-15 minutes in duration:

1. Identifying and reporting aXcelerate Service bugs;
2. Brief clarification or explanation about a functional component of the Service;
3. Assistance with issues during onboarding;
4. Assistance with configuration issues;
5. Assistance with issues when onboarding a new feature.

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:

1. Support for end-users except for aXcelerate Service Champions/Primary Contacts;
2. 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.
3. Professional Services including:
4. Business requirements gathering and analysis;
5. Post-onboarding upgrade or new feature onboarding services including the product training in a new feature;
6. Project management;
7. Custom Development questions or requests (charges apply);
8. Third-party application integrations or third-party plugins.

API Support:

Access to the aXcelerate API is provided free of charge to aXcelerate Turbo customers. API-related support is provided on a best-effort basis only by our Customer Support Team. Specialist support provided by aXcelerate software developers to respond to an advanced customer request or to assist with solution design is not in-scope of the Support Services and subject to an approved Statement of Work.

7. Service Levels

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:

1. An issue which causes the entire aXcelerate application to not function
2. An issue which significantly impacts Your business due to not being able to use the application (e.g. server outage)

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. If no response is received via the after-hours support telephone number, You must leave a voicemail message detailing the issue and your details for aXcelerate to contact You. 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:

1. an issue is affecting a part of the system that You use a significant part of the time to manage Your business
2. an issue is significantly affecting Your ability to deliver effective customer service to Your customers

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:

1. an issue is moderately impacting Your business with some functionality of the system being affected
2. a temporary workaround can be implemented until the issue can be resolved
3. an issue is affecting some users and their ability to do some productive work in some part(s) of the system

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:

1. an issue is minor in nature and is not significantly impacting Your ability to conduct Your business
2. 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
3. Your customer service/business operation is not being materially impacted
4. question regarding system functionality or use of system functionality

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 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.

8. New Feature or Improvement Requests Policy

Principles underpinning this policy

In order to develop aXcelerate in a sustainable way and offer our Service as a cost-effective software solution for your business, aXcelerate will adhere to the following key principles:

1. Ensure that all new features and improvements that we develop benefit the majority of the aXcelerate community of users; aXcelerate’s main criterion for ‘majority’ is that at least 60% of all aXcelerate clients/users will be able to benefit from the new feature. To develop one-off features or improvements that benefit only a handful of clients or users is unsustainable;
2. It should be the aXcelerate community of users that contributes to the decision of whether a new feature or improvement is developed, not just the aXcelerate product management team; and
3. All new features or improvements developed must align with aXcelerate’s overall strategic business direction.

Definition of product development changes

• New feature - Creates a new capability or function that is not currently available in the Service
• Improvement - Augments or enhances an existing feature to make it even better BUT the existing feature still functions as intended and meets the needs of the majority of aXcelerate users
• Design fault - A deficiency in the original intended design of a feature and, without a change to the related feature, will continue to impact how the majority of aXcelerate users use that feature - NOTE: If a particular feature doesn’t fit the way that one or two isolated clients operate their business workflow/process, but, for the majority of clients who use the feature, they have no issues with using that feature, then this would not be considered a ‘design fault’. In this situation, we would consider this a ‘new feature’ or ‘improvement’ request.  
• Bug - A problem in the code which causes an error when the software is used as intended. aXcelerate makes the commitment to fix all bugs as a matter of development priority.

How we handle each type of product development change request

• New feature - Must be posted in the aXcelerate Ideas Forum to be voted on by the community of users prior to being considered for development by the Product Management Team.
• Improvement - Must be posted in the aXcelerate Ideas Forum to be voted on by the community of users prior to being considered for development by the Product Management Team.
• Design fault - If there truly is a design fault and we have had sufficient feedback from the aXcelerate user community that this is the case, we will investigate the scope of development time and resources to redesign the feature at issue. Any feature where a client believes there is a design fault must submit that feature change to the aXcelerate Ideas Forum before the Product Management Team will consider its decision about the change.
• Bug - Bugs should be reported as normal via the aXcelerate Support Request system along with as much detail as possible to enable our Development Team to execute the fix as quickly as possible.

How does aXcelerate ensure that more client-requested features and improvements get developed?

As part of this policy, aXcelerate makes the following commitment:

1. aXcelerate consistently allocates discretionary development time every week specifically to client-requested new features and improvements suggested from the aXcelerate Ideas Forum.
2. aXcelerate also dedicates time and resources to monitoring and responding to requests within the aXcelerate Ideas Forum to allow us and other members of the community to potentially help you solve your problem.
3. aXcelerate only considers developing new features, or improvements to existing features, after they have been posted in the aXcelerate Ideas Forum.
   NOTE: aXcelerate will not consider any requests for new features or improvements via the aXcelerate Support Request system, only for the reporting of bugs.
4. If aXcelerate does make a decision that we will NOT consider developing a new feature or improving an existing feature, at least for the foreseeable future, we will tell you quickly so that you can then implement a workaround solution to the problem.  
5. aXcelerate communicates what new features or changes that we have decided to develop via our Product Roadmap found on our Website. This is not an exhaustive list.
6. aXcelerate also communicates what new features or changes we have completed via the Release Notes. Occasionally, major feature enhancements and product releases will also be included in the Heartbeat e-newsletter for increased visibility.

As part of this policy, aXcelerate expects the following from our clients:

1. Use the aXcelerate Ideas Forum to submit new feature or improvement requests, not a support request ticket - any new feature or improvement requests submitted via a support ticket will be responded to with a default response asking you to post your new feature request or change in the aXcelerate Ideas Forum.
2. Ensure that when you submit your new idea/change post in the aXcelerate Ideas Forum that you give plenty of detail and some compelling reasons why your idea should be prioritised ahead of others.
3. Help yourself and others in the aXcelerate user community by actively engaging in the community and voting for features that would help you as well as others.

9. aXcelerate’s Obligations

aXcelerate must perform the Service:

1. promptly, carefully and to the highest possible standards that would be expected of a supplier of the same or similar services to those supplied by aXcelerate;
2. within the time frames specified in this Agreement or as otherwise agreed between the Parties in a purchase order or in writing; and
3. 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 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.

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. Payments can be paid either monthly or annually in advance.

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, 50% of the scheduled hours may be deducted from the prepaid balance.

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).

4. Authority:

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 the Service. 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.

6. Reasonable Use:

The Service is designed to be used by you in the manner communicated by aXcelerate:

• Such usage constitutes 'Reasonable Use'; and
• Such communication is provided as part of the Onboarding Service, made available in the aXcelerate Knowledge Base, and otherwise as communicated by aXcelerate to you from time-to-time.

aXcelerate infrastructure leverages the latest technology to auto-scale resources in response to demand spikes. This design means we can maintain performance under load and control the cost of the Service by only paying for extra resources when required. However, unreasonable or excessive use by you may:

• negatively impact performance of the Service;
• negatively impact the customer experience of your users and other users of the Service; and
• result in additional direct cost payable by aXcelerate to infrastructure providers.

Examples of such unreasonable or excessive use include (but are not limited to):

• Adding more than 100 assessments per enrolment; or
• Adding more than 100 question items per assessment; or
• Repeated generation of excessively large and unfiltered queries; or
• Overly frequent event and/or workflow triggering; or
• Overly frequent GET or PUT requests from systems that utilise the aXcelerate API; or
• Excessive downloading of data on a recurring basis; or
• Abuse of email marketing campaigns to the extent that they are considered spam.

You acknowledge that:

• Absence of a system-enforced restriction does not constitute Reasonable Use; and
• aXcelerate will endeavour to provide notice to you of any instances of unreasonable or excessive use and to advise you of what constitutes Reasonable Use in context of the issue. Following provision of such notice by aXcelerate to you, persistent disregard for these Reasonable Use provisions may result in you waiving your rights under this agreement where permissible under law.
  

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 and the Service. 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 unauthorised 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 the aXcelerate Services 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 the Service. 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 the Service or (2) suspend your access to the Service. 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 the aXcelerate Service 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 the Service.

10. Security Conditions:

As a condition of these Terms, when accessing and using the Service, You must:

1. not attempt to undermine the security or integrity of the Approved Party’s computing systems and networks;
2. not wilfully 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;
3. 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;
4. 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
5. 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.

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.

12. Confidentiality

1. Unless the relevant Party has the prior written consent of the other or unless required to do so by Law:

1. Each Party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms.
2. 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.
3. Each Party’s obligations under this clause will survive the termination of this Agreement.

2. The provisions of sub-clauses 12.1.1 and 12.1.2 shall not apply to any information which:

1. is or becomes public knowledge other than by a breach of this clause;
2. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
3. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
4. is independently developed without access to the Confidential Information.

13. Privacy

aXcelerate maintains a Privacy Policy that sets out the Parties’ obligations in respect of personal information. You should read that policy at www.aXcelerate.com.au/privacy/ and You will be taken to have accepted that policy when You accept these Terms.

14. 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 13 will survive the termination of this Agreement.

15. Warranties and Acknowledgements

1. aXcelerate warrants that:

1. it does not have a conflict of interest (actual, potential or perceived) under this Agreement;
2. it has the necessary systems, skills, qualifications and approvals to provide the Service which is the subject of this Agreement, and the Service will be provided with all due care and skill that would be expected of a skilled professional experienced in providing the same or similar services;
3. it has provided You with sufficient information to enable You to provide a suitable operating environment for use of the Website;
4. it will resolve any defects of the Website as quickly as possible and in accordance with the Service Levels set out in clause 7 of this Agreement;
5. it holds, maintains and can provide evidence of broad form public liability, professional indemnity and product liability insurance and will for a period of 7 years after You cease using the aXcelerate Services;
6. it will comply with its obligations under the Privacy Laws and all other relevant laws;
7. 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
8. it is solvent.
9. the Service complies with all applicable Laws;
10. the Service will be performed or be provided in accordance with any sample, trial or demonstration provided by aXcelerate;
11. the Service does not and its use will not infringe or make unauthorised use of the rights (including Intellectual Property Rights) of any person; and
12. aXcelerate further warrants that its representations to You (including any Service information or correspondence) are complete and accurate, not misleading or deceptive and may be relied on by You in entering into this Agreement.

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:

1. You are responsible for ensuring that You have the right to do so;
2. 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
3. You will indemnify aXcelerate against any claims or loss relating to:
4. aXcelerate’s refusal to provide any person access to Your information or Data in accordance with these Terms; or
5. 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 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 Services. 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.

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:

1. 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);
2. 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;
3. 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;
4. 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. At the conclusion of your Initial Term, the Agreement will automatically enter a Renewal Term. During the Term You may terminate this Agreement:

1. By immediate written notice if aXcelerate is in material breach of this Agreement or any of the warranties and the breach is not capable of remedy, or, if capable of remedy, aXcelerate fails to rectify such breach within 14 days of receipt of a written notice of the breach; or
2. By immediate written notice if aXcelerate becomes insolvent or goes into liquidation or has a receiver or manager appointed of any of its assets or makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction, or
3. After serving the Initial Term, if You provide written notice to aXcelerate with the greater of 30 days or the period stipulated in your Schedule 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. 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 17.2 will survive termination of this Agreement.

3. Breach:

1. 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;
2. 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
3. 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:

1. Terminate this Agreement and Your use of the Service and the Website;
2. Suspend for any definite or indefinite period of time, Your use of the Service and the Website;
3. Suspend or terminate access to all or any Data;
4. 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:

1. remain liable for any accrued charges and amounts which become due for payment before or after termination; and
2. immediately cease to use the Service and the Website.

18. Account Suspensions

You may choose to temporarily suspend your account for a period of up to 90 days. In order for an account suspension to be activated, you will need to notify aXcelerate by raising a Support Request Ticket through aXcelerate support at least 14 days prior to the account suspension date. aXcelerate Support will confirm the suspension date with you via this ticket.

One day prior to the agreed account suspension date, you will receive a reminder notification that your account will be suspended the following day. On the agreed account suspension date, you will receive another reminder notification advising you that the suspension has occurred.

14 days prior to the account reactivation date, you will receive an email advising you that there are two weeks left of your suspension period and that, unless you provide us with instructions to the contrary including cancelling your account, aXcelerate will reactivate your account on the advised date.

If your situation changes and you wish to reactivate your aXcelerate account (that is, cancel your account suspension) during the 90 day suspension period, you can do so at any time by sending an email to our accounts team at: accounts@axcelerate.com, advising aXcelerate of your desire to have your account reactivated and the specific date you wish the reactivation to occur. aXcelerate will then confirm the reactivation date for your account which will also mark your account billing resumption date.

If you do not wish to continue with aXcelerate, you may notify us of cancellation of your account:

• If you are still within your initial Term with aXcelerate, you will need to pay the remainder of your Fees
• If you are beyond your first initial Term with aXcelerate, you may cancel your account with 30 days notice

If you choose to cancel your aXcelerate account but you decide to continue with aXcelerate at some point in the future, you will need to sign a new aXcelerate agreement. In doing so, you will have the option of creating a new aXcelerate account, or reactivating your old account.

At the end of the 90-day suspension period, or your specifically-requested account reactivation date, we will send you a final notification to let you know that your account has been reactivated and your monthly invoices will automatically resume from this date.

19. GST Exclusive

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.

20. Notices

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.

21. Change of Ownership

If there is a change of ownership or change of legal entity, we require the new and former legal entity’s to complete a Change of Ownership Form and agree to these aXcelerate Terms of Use.

22. Counterparts

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.

23. Costs

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.

24. 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.

25. 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.

26. Survival after Termination

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.