“Agreed Storage Quota” means the storage quota subscribed for on the Plan by the Customer and agreed to be provided by Secure-ISS; “Agreement” means the agreement between Secure-ISS and the Customer, incorporating these Terms and Conditions, our Plan(s), Pricing and contract information and any other published Secure-ISS policies, “Business Day” means Monday to Friday, excluding public holidays in Queensland; “Contract Period” means the period of time as set out in the Agreement for which the payment schedule is applicable; “Customer” means the person or entity subscribing to the Service; “GST” means Goods and Services Tax as defined in the GST Act; “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any associated legislation including, without limitation, delegated legislation; “Intellectual Property” means all copyright, trade mark rights, patent rights, design rights or any other intellectual property rights subsisting in or created during the development of the Software and the System and any advertising and promotional materials provided to the Customer including software, source and object codes, scripts, records, documents, specifications, plans, program listings, calculations, menus, recipes or drawings; “Payment Schedule” means the schedule of rates and term of payment for the Service; “Plan” means plan name, Setup Fee, Payment Schedule, Contract Period; “Secure-ISS” means Secure Internet Storage Solutions Pty Ltd; “Service” means the on-line software and/ or solution and/ or product provided to the Customer by Secure-ISS; “Software” means the software provided by Secure-ISS to the Customer to enable the Customer to access and use the Service; “Solution” means a standard or custom Hardware and/ or Software platform provided by Secure-ISS for use by the Customer; “Storage Allowance” means the amount of hard disk space in gigabytes that will be allocated by Secure-ISS on our servers; “Subscription Software” means a particular licensed software product provided by Secure-ISS on a temporary basis for the term of this Agreement.
1. Headings are for ease of reference only and do not affect the meaning of these Terms and Conditions.
2. Reference to a party in these Terms and Conditions includes that party’s executors, administrators, successors and permitted assigns and if more than one, includes those persons jointly and each of them severally, their respective executors administrators and assigns.
3. The singular includes the plural and vice versa and words importing a gender include other genders.
4. Reference to a document or agreement, including these Terms and Conditions, includes a reference to that document or agreement as novated, altered or replaced from time to time.
5. Reference to ”$”, “$A”, “dollar” or “A$” is a reference to Australian currency.
6. Words importing the whole of the matter or thing include a part of the matter or thing.
7. Words and expressions importing natural persons include partnerships, bodies corporate, associations (whether incorporated or not), firms, joint ventures, trusts, authorities, governments and governmental, semi-governmental and local authorities and agencies.
8. Reference to any legislation or statutory instrument or regulation is construed in accordance with the Acts Interpretation Act 1901 (Cth) or the equivalent State legislation, as applicable, and includes a reference to an enactment, amendment or consolidated statute and any enactment substituted for the enactment and all legislation and statutory instruments issued under, such legislation or provision. 9. Reference to writing includes typewriting, printing, lithography, photography and any other method of representing or reproducing words, figures or symbols in a permanent and visible form, including without limitation facsimile or e-mail transmission.
10. Secure-ISS agrees to allocate to the Customer the Agreed Storage Quota on Secure-ISS servers for the sole purpose of storage of the provided solution, Customer’s files and data.
11. Secure-ISS agrees to provide upgrades to the Subscription Software and make them accessible to the customer as and when they become available. These upgrades will be provided to the Customer by Secure-ISS free of charge throughout the contract period.
12. Secure-ISS agrees to equip its servers with redundant disk storage facilities in order to minimise the possibility of data loss due to hardware failure.
13. Secure-ISS agrees to allow the Customer to upgrade the Customer’s service at any time. Secure-ISS will use reasonable endeavours to effect all changes to the Customer’s service within 2 Business Days after receipt of the Customer’s request for the same.
14. Secure-ISS agrees to allow the Customer to downgrade the Customer’s service at any time. Secure-ISS will use reasonable endeavours to effect all changes to the Customer’s service within 2 Business Days after receipt of the Customer’s request for the same.
15. Secure-ISS agrees to keep secure the Customer’s Service access details, including the Customer’s login detail(s) and password(s), and not to allow such details to be viewed or retrieved by any unauthorised third party.
16. Secure-ISS agrees that the Customer’s provision of data and Intellectual Property does not include or cause the transfer of ownership of any property rights in any of the Intellectual Property from the Customer to Secure-ISS.
17. Secure-ISS agrees to supply all services and store all data within the Commonwealth of Australia, except where notified to the Customer by Secure-ISS.
18. The Customer agrees to pay the amount(s) specified in the Payment Schedule for the Software and the Service, at the times specified in the Payment Schedule.
19. The Customer acknowledges that Secure-ISS is under no obligation to deliver the Software or the Service until Secure-ISS has received payment for the succeeding period of Service.
20. Secure-ISS reserves the right to suspend or cancel the Service without notice for breach by the Customer of any obligation, including without limitation obligations relating to payment.
21. The Customer acknowledges that if Secure-ISS has not received payment in full within 14 days after the due date, Secure-ISS is entitled to restrict access to its servers and services. Further, if payment has not been received in full within 30 days after the due data, Secure-ISS is entitled to remove from its servers without notice all of the Customer’s files and data.
22. The Customer agrees that the Customer’s use of the Intellectual Property does not include or cause the transfer of ownership of any property rights in any of the Intellectual Property.
23. The Customer agrees not to publish or use, without the prior written consent of Secure-ISS, any of the Intellectual Property.
24. The Customer agrees that the Software and the Service will be used solely by the Customer and not by any third party (unless acknowledged and agreed in writing by Secure-ISS).
25. The Customer agrees not to use the Service to store or transmit any unlawful, threatening, defamatory, offensive or pornographic material.
26. The Customer agrees to keep secure the Customer’s Service access details, including without limitation the Customer’s login details and password, and not to allow such details to be viewed or retrieved by any unauthorised third party.
27. The Customer agrees to notify Secure-ISS in writing:
(a) immediately of:
(i) any breach of the Customer’s security in relation to the Service or the Customer’s login details and password;
(ii) the need for any changes to the Service or the Customer’s Plan; or
(iii) the Customer’s cancellation of the Service;
(b) promptly of any changes to the Customer’s billing or contact details.
28. The Customer accepts sole responsibility for the following:
(a) selection and inclusion of file data for submission into Secure-ISS servers;
(b) selection, inclusion and licensing of software services for provisioning and installation into Secure-ISS servers;
(c) periodically confirming that files and/or data can be restored from the Secure-ISS servers; and
(d) all third party costs resulting from or connected with the use of the Service or the Software, including without limitation costs payable:
(i) to Internet Service Providers;
(ii) in connection with third party services relating to the installation, set-up or configuration of the Service or the Software; or
(iii) to other IT consultants.
29. The Customer agrees to remove the Software from the Customer’s computer system(s) upon the termination for any reason of the Agreement between Secure-ISS and the Customer.
30. The Customer agrees to give 30 days notice of cancellation of the service. The notification of cancellation must be in writing.
EXCLUSION OF WARRANTIES
31. Neither SECURE-ISS nor any of its directors, shareholders, employees, agents, licensors, resellers or distributors:
(a) warrants that the Software will be:
(iii) compatible with the Customer’s hardware or software; or
(iv) fit for the Customer’s intended purpose;
(b) warrants that the service provided by SECURE-ISS to the Customer (“the Service”) will be uninterrupted, error-free or available at all times;
(c) warrants that the Secure-ISS servers are free from unauthorised physical or remote access;
(d) warrants that files or data stored on the Secure-ISS servers are secure from unauthorised:
(iv) modification; or
(e) warrants that files or data stored on the Secure-ISS servers are secure from data loss or corruption;
(f) warrants that Customer files and data will be scanned by Secure-ISS for viruses or other threats;
(g) makes any warranty as to the results to be obtained from the use of the Software or the Service; or
(h) makes any other warranty as to merchantability, non-infringement or fitness for purpose, other than those implied by and incapable of exclusion, restriction or modification under applicable law.
LIMITATION OF LIABILITY
32. The liability to any person of SECURE-ISS, including its directors, shareholders, employees, agents, licensors, resellers and distributors, shall in all instances (including without limitation where there has been negligence on the part of any person) be limited to the contract instalment payment for the Service made by or on behalf of the Customer immediately preceding the event giving rise to such liability.
33. In no event shall SECURE-ISS or any of its directors, shareholders, employees, agents, licensors, resellers or distributors be liable for damages, including without limitation any direct, indirect, incidental, special, punitive, exemplary or consequential damages, losses relating to business interruption, loss of business information or loss of profits, resulting from:
(a) the Customer’s use of or inability to use the Software or the Service;
(b) any delay or interruption to the Service;
(c) any failure of the Software or the Service;
(d) failure of any communications or telecommunications systems;
(d) any viruses, worms or other computer system threats;
(e) unauthorised access, retrieval, duplication, modification or deletion of the Customer’s files or data;
(f) the loss, corruption or unavailability of the Customers files or data, or
(g) any breach of warranty; arising from any cause whatsoever, whether or not SECURE-ISS or any of its directors, shareholders, employees, agents, licensors, resellers or distributors has been negligent or has been advised of the possibility of such damages or of any third party claim.
34. The Customer agrees to indemnify SECURE-ISS, its directors, shareholders, employees, agents, licensors, resellers and distributors against any liability, loss, damage or claim suffered by or brought against any of them as a result of: (a) the Customer’s negligence or the Customer’s misuse of the Software or the Service; (b) the Customer’s use of the Intellectual Property.
35. The Customer agrees that Secure-ISS may pay a commission to any person (a “Referral Agent”) who was responsible for introducing the Customer to Secure-ISS.
37. If the Customer is in default under any of these Terms and Conditions, Secure-ISS may do any one or more of the following without prejudice to any other right that Secure-ISS may have against the Customer: (a) by notice to the Customer, terminate the Agreement between the Customer and Secure-ISS; (b) recover from the Customer any loss suffered by Secure-ISS due to the Customer’s default; (c) exercise any of its other legal rights.
38. The Agreement between the Customer and Secure-ISS may be terminated by either party upon thirty (30) days’ written notice to the other party.
39. Secure-ISS reserves the right to amend unilaterally these Terms and Conditions. Any such amendment will be published on the Secure-ISS website and will be effective immediately upon the publication.
40. Every notice or demand hereunder shall be in writing and may be given or made by personal delivery, post, facsimile or e-mail transmission to the last notified address of the recipient. All notices or demands where made by facsimile or e-mail shall be confirmed by letter delivered or posted as soon as practicable after original transmission. GST
41. All fees and charges set out in the Payment Schedule are inclusive of GST. If the rate of GST is varied at any time, the Payment Schedule fees and charges will be adjusted without notice to take into account the variation in the rate of GST.
42. If any provision of these Terms and Conditions is or becomes void, illegal or unenforceable for any reason whatsoever then such provision shall be severed from these Terms and Conditions which shall otherwise continue to be valid and operative.
43. Failure to exercise or delay in exercising any right hereunder shall not operate as a waiver of that right nor shall any single or partial exercise of any right preclude any further or other exercise of that right or any other right.
44. These Terms and Conditions shall be governed by and construed in accordance with the Law applicable in Queensland and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Queensland and any courts which may hear appeals from those courts.