Thank you for selecting Nexus Service Manager. 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 Nexus Digital Technology provides you with access to the Service.
Nexus Digital Technology reserves the right to change these terms at any time, effective upon the posting of modified terms and Nexus Digital Technology will make every effort to communicate these changes to you via email or notification via the website. It is likely the terms of use will change over time. It is your obligation to ensure that you have read, understood and agree to the most recent terms available on the website.
By registering to use 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 for whom you use the Service.
These Terms were last updated on 30 June 2019.
1 Definitions
"Agreement"
means these Terms of Use.
"Access Fee"
means the monthly subscription fee payable by You in accordance with the investment schedule set out in the Customer Quotation.
"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.
"Customer Quotation"
means the business case for mobility, scheduling, management & business efficiencies in the version submitted to You which included the approval to proceed signed by You.
"Data"
means any data inputted by You or with Your authority into the Website.
"Intellectual Property Right"
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Invited User"
means You, a Subscriber, or any User.
"Nexus Digital Technology"
means the software development business, which developed the business software application “Nexus Service Manager”.
"Service"
means the online business management cloud based application called Nexus Service Manager made available from our servers.
"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.
"Term"
means the period of twelve (12) calendar months commencing on the date of payment of the first monthly subscription amount, or as otherwise indicated in the Customer Quotation.
"User"
means a person authorised by You or the Subscriber to use the Service and for whom a user licence has been granted by Nexus Digital Technology.
"Website"
means the Internet site at the domain www.nexusservicemanager.com.au and nsmcloud.com.au.
"You"
means the Subscriber, and where the context permits, an Invited User. "Your" has a corresponding meaning.
2 Use of Software
In consideration of the payment of the Access Fee, Nexus Digital Technology grants You the right to access and use the Service via the Website with the particular user roles available to You according to Your subscription type, for the Term. 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 any other applicable laws:
2.1 the Subscriber determines who is an a User and what level of user role access to the relevant organisation and Service that User has;
2.2 the Subscriber is responsible for all Users use of the Service;
2.3 the Subscriber controls each User’s level of access to the relevant organisation and Service at all times and can revoke or change an User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an User or shall have that different level of access, as the case may be;
2.4 If there is any dispute between a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that User shall have, if any.
3 Your Obligations
3.1 Payment obligations:
3.1.1 A tax invoice for the Access Fee will be issued each month during the Term and monthly after the end of the Term while the Services are provided. All invoices will include the Access Fee for the preceding period one month of use. Nexus Digital Technology will continue invoicing You monthly until Your minimum contract has expired or this Agreement is terminated in accordance with clause 8.
3.1.2 All Nexus Digital Technology invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 14 days of the invoice date. You are responsible for payment of all taxes and duties in addition to the Access Fee.
3.2 General obligations:
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 Nexus Digital Technology 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 who services are provided comply with and accept all terms of this Agreement that apply to You. The Services and Website will be provided to You during the Term. Where the Services and Website are made available to You after the expiration of the Term they will be on a monthly basis and these terms of use will continue to apply. Nexus Digital Technology or You may terminate the provisions of the Services by one month's notice to the other.
3.3 Access conditions:
3.3.1 You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Nexus Digital Technology of any unauthorised use of Your passwords or any other breach of security and Nexus Digital Technology will reset Your password and You must take all other actions that Nexus Digital Technology reasonably deems necessary to maintain or enhance the security of computing systems and networks and Your access to the Services.
3.3.2 As a condition of these Terms, when accessing and using the Services, You must:
3.3.2.1 not attempt to undermine the security or integrity of Nexus Digital Technology computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
3.3.2.2 not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
3.3.2.3 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 Services are hosted;
3.3.2.4 not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or 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
3.3.2.5 not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
3.4 Usage Limitations:
Nexus Digital Technology shall use all reasonable endeavours to promptly, efficiently and properly perform it's obligations in providing the Services and the Website. Use of the Service may be subject to limitations, including the number of users and the amount of storage space. Any such limitations will be advised. Nexus Digital Technology will not be liable for any damage sustained as a direct or indirect consequence arising through the Service being delayed or prevented from being provided as a result of circumstances outside of the control of Nexus Digital Technology.
3.5 Communication Conditions:
3.5.1 As a condition of these Terms, if You use any communication tools available through the Website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
3.5.2 When You make any communication on the Website, You represent that You are permitted to make such communication. Nexus Digital Technology is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. However, Nexus Digital Technology does reserve the right to remove any communication at any time in its sole discretion.
3.6 Indemnity:
You indemnify Nexus Digital Technology against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to Nexus Digital Technology, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
4 Confidentiality and Privacy
4.1 Confidentiality:
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
4.1.1 Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
4.1.2 Each party's obligations under this clause will survive termination of these Terms.
4.1.3 The provisions of clauses 4.1.1and 4.1.2 shall not apply to any information which:
4.1.3.1 is or becomes public knowledge other than by a breach of this clause;
4.1.3.2 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
4.1.3.3 is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
4.1.3.4 Is independently developed without access to the Confidential Information.
4.2 Privacy:
Nexus Digital Technology maintains a privacy policy that sets out the parties’ obligations in respect of personal information. You should read that policy at www.nexusservicemanager.com.au/privacy-policy.aspx and You will be taken to have accepted that policy when You accept these Terms.
5 Intellectual Property
5.1 General:
Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Nexus Digital Technology.
5.2 Ownership of Data:
Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Nexus Digital Technology Access Fee when due. You grant Nexus Digital Technology a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
5.3 Backup of Data:
You must maintain copies of all Data inputted into the Service. Nexus Digital Technology adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Nexus Digital Technology expressly excludes liability for any loss of Data no matter how caused.
5.4 Third-party applications and Your Data:
If You enable third-party applications for use in conjunction with the Services, You acknowledge that Nexus Digital Technology 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 Services. Nexus Digital Technology shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
6 Warranties and Acknowledgements
6.1 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.
6.2 Acknowledgement:
You acknowledge that:
6.2.1 You are authorised to use the Services 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 Services (whether that information and Data is Your own or that of anyone else).
6.2.2 Nexus Digital Technology 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 Services 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:
6.2.2.1 You are responsible for ensuring that You have the right to do so;
6.2.2.2 You are responsible for authorising any person who is given access to information or Data, and You agree that Nexus Digital Technology 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
6.2.2.3 You will indemnify Nexus Digital Technology against any claims or loss relating to:
6.2.2.3.1 Nexus Digital Technology refusal to provide any person access to Your information or Data in accordance with these Terms; or
6.2.2.3.2 Nexus Digital Technology making available information or Data to any person with Your authorisation.
6.2.3 The provision of, access to, and use of, the Services are on an "as is" basis and at Your own risk.
6.2.4 Nexus Digital Technology does not warrant that the use of the Service will be uninterrupted or error free. 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 Services. Nexus Digital Technology is not in any way responsible for any such interference or prevention of Your access or use of the Services.
6.2.5 It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
6.2.6 You remain solely responsible for complying with all applicable accounting, tax and other laws. It is Your responsibility to check that storage of and access to Your Data via the Software and the Website will comply with laws applicable to You (including any laws requiring You to retain records).
6.3 No warranties:
Nexus Digital Technology gives no warranty about the Services. Without limiting the foregoing, Nexus Digital Technology does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
6.4 Consumer guarantees:
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.
7 Limitation of Liability
7.1 To the maximum extent permitted by law, Nexus Digital Technology excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
7.2 If You suffer loss or damage as a result of Nexus Digital Technology's negligence or failure to comply with these Terms, any claim by You against Nexus Digital Technology arising from Nexus Digital Technology’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.
7.3 If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
7.4 Notwithstanding the forgoing Nexus Digital Technology expressly excludes liability for direct indirect or consequential loss or damage including but not limited to loss or damage to Data or to other equipment or property whether or not in the care custody or control of Nexus Digital Technology or for loss of profits business revenue goodwill or anticipated savings.
7.5 Where any statute implies any term condition or warranty and it cannot be excluded or modified then such term condition or warranty shall be deemed to be included in these terms of use. Notwithstanding the liability of Nexus Digital Technology for any breach of such term condition or warranty shall be limited at the option of Nexus Digital Technology to the supply of the services again, or the payment of the cost of having the Services supplied again.
8 Termination
8.1 Subscriptions:
Nexus Digital Technology will not provide any refund for any remaining period for an Access Fee subscription.
8.2 No-fault termination:
These Terms will continue for the period covered by the Access Fee paid or payable under clause 2. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms. Notwithstanding any other provision of this clause You cannot terminate this agreement and the provision of the Services during the Term. This does not affect Your rights where Nexus Digital Technology has failed to comply with its obligations.
8.3 Breach:
8.3.1 If You:
8.3.1.1 breach any of these Terms and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
8.3.1.2 breach any of these Terms and the breach is not capable of being remedied;
8.3.1.3 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; or
8.3.1.4 fail to pay the Access Fee within 7 days of the due date,
8.3.2 Nexus Digital Technology may take any or all of the following actions, at its sole discretion:
8.3.2.1 Terminate this Agreement and Your use of the Services and the Website;
8.3.2.2 Suspend for any definite or indefinite period of time, Your use of the Services and the Website;
8.3.2.3 Suspend or terminate access to all or any Data.
8.3.3 For the avoidance of doubt, if the payment of any invoice for Access Fees is not paid in full by the relevant due date, or within 7 days after the relevant due date as indicated above then Nexus Digital Technology may at its discretion:
8.3.3.1 Suspend or terminate Your use of the Service;
8.3.3.2 Remove the authority for all or any of Your Invited Users from the use of the Service and the Website;
8.3.3.3 Remove Your rights of access to all or any Data.
8.4 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:
8.4.4 remain liable for any accrued charges and amounts which become due for payment before or after termination; and
8.4.5 Immediately cease to use the Services and the Website.
9 Support
9.1 Technical Problems:
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Nexus Digital Technology. If You still need technical help, please check the support provided online or failing that email us at support@nexusdigital.com.au.
9.2 Service availability:
9.2.1 Whilst Nexus Digital Technology intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place.
9.2.2 If for any reason Nexus Digital Technology has to interrupt the Services for longer periods than Nexus Digital Technology would normally expect, Nexus Digital Technology will use reasonable endeavours to publish in advance details of such activity on the Website.
10 General
10.1 Entire agreement:
These Terms, together with the Nexus Digital Technology Privacy Policy and the terms of any other notices or instructions given to You under these Terms of Use, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Nexus Digital Technology relating to the Services and the other matters dealt with in these Terms.
10.2 Waiver:
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
10.3 Delays:
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
10.4 No Assignment:
You may not assign or transfer any rights to any other person without Nexus Digital Technology‘s prior written consent.
10.5 Governing law and jurisdiction:
If the information or Data You are accessing using the Services and the Website is solely that of a person who is a tax resident in Australia at the time that You accept these terms then Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement.
10.6 Rights of Third Parties:
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.