Terms and Conditions

  1. Introduction
    1. The terms and conditions which govern your use of the Platform are set out below.
    2. The Platform is provided by Teleportivity Pty Ltd (ABN: 21 620 019 150) (we, us and our) to those persons and companies registered to use the Platform (you and your).
    3. If you are using the Platform on behalf of a company, or another legal entity, then ‘you’ also means such company or legal entity and you agree to be bound by these terms and conditions.
    4. These terms and conditions govern your use of the Platform.
  2. Definitions
    1. Set out below are certain terms used in these terms and conditions and the meaning of that term:

      Business Hours means 9am to 6pm Sydney, NSW Australia time.

      Data Centre means the third party operated data centre at which virtual servers, on which the Platform is hosted, are located.

      Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world and includes, without limitation all rights in copyright (including future copyright and rights in the nature of or analogous to copyright), inventions (including patents), trade marks, irrespective of whether such rights are registered or capable of registration.

      Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in any relevant jurisdiction and includes the common law and equity as applicable from time to time.

      Location means the location at which you conduct business and at which you deploy the Platform for use by you.

      Operator is as defined in clause 7.8.

      Platform means theThe Platform we provide through an interactive kiosk to allow for virtualisation of a human workforce throughout a physical location.

      Policies means the policies, procedures and other protocols relating to the use of the Platform, published on the Platform.

      Privacy Laws means (a) the Privacy Act 1988 (Cth) including the Australian Privacy Principles contained in Schedule 1 of that Act; (b) the Spam Act 2003 (Cth); (c) any approved privacy codes that apply to either you or us and (d) all other applicable laws that require a person to observe privacy or confidentiality obligations in respect of personal information and sensitive information.

    2. In these terms and conditions:
      1. headings are for convenience only and do not affect the interpretation of these terms and conditions.
      2. a reference to the singular includes the plural and references to the masculine include the feminine and vice versa.
      3. an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any governmental agency.
      4. a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by laws amending, consolidating or replacing them, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute.
      5. a reference to either you or us includes our respective successors and permitted assigns.
  3. Introduction
    1. You are responsible for obtaining:
      1. any equipment required for the operation of the Platform; and
      2. any professional services required for the installation and/or operation of the Platform.
    2. Your right to use the Platform continues while you are paying for the right to use the Platform or either you or us terminate your use of the Platform.
    3. The Intellectual Property Rights in the Platform and any other information or materials that are supplied by you during your use of the Platform remain our exclusive property or our third-party licensors.
    4. You warrant that (i) the registered subscriber has the requisite power and authority carry out the obligations contemplated by these terms and conditions and (ii) there is nothing that would prevent it performing its obligations under these terms and conditions.
    5. You acknowledge and agree that:
      1. the Platform is provided only as a cloud-based solution;
      2. the Platform is not:
        1. an emergency management solution; or
        2. a replacement for a human work force at the Location;
      3. ongoing improvements will be developed and ongoing optimisations will occur to the Platform from time to time and may be introduced without prior notice.
      4. the Platform is:
        1. designed to work with third-party hardware devices, the operating systems of which are themselves subject to frequent updates and such updates may impact on the operation and/or performance of the Platform; and
        2. subject to frequent updates and other improvements and changes.
      5. from time to time there may be times at which the Platform or features of the Platform are not available; and
      6. we do not warrant that the Platform will meet your requirements or are responsible for assessing and determining whether the functions of the Solution meet your particular requirements.
    6. You also acknowledge and agree that:
      1. you are responsible for the installation and deployment of the Platform in any given location including:
        1. the installation of Platform Fittings; and
        2. the design and implementation of back-up procedures in the event of the Platform not being available for use or not functioning as required;
        3. supply of third-party hardware devices which are required to access and use the Platform;
      2. we are not responsible for (and have no liability to you if the third-party hardware devices do not operate as intended or are not of merchantable quality of fit for purpose;
      3. we outsource the hosting of the Platform to a third-party on the basis of the published promises made by the provider of the hosting services as to its commitments to services levels and business continuity; and
      4. we are not responsible for (and have no liability to you if the Platform is not accessible as a result of any act or omission affecting the provider of hosting services.
    7. Any promises made by us in these terms and conditions about the Platform are to be qualified by clauses 3.5 and 3.6.
  4. Platform – Availability and Security
    1. The Platform is hosted on virtual servers located at and managed through the Data Centres.
    2. The availability of the Platform (including business continuity and data recovery measures) is under the control of the Data Centres.
    3. The representations about the service levels to which the Data Centres commit to and about its management of such security are available from us on request. We may, on request, provide such information to you in respect of security and data integrity related matters.
    4. The Platform is a complementary service and not a replacement for traditional human services. You should maintain a Business Continuity and Disaster Recovery Policy to enable you to ensure that you can manage your business at the Location if the Platform is unavailable or an event occurswhich disrupts or prevents access to or use of the Platform.
    5. From time to time, without notice, access to or use of all or part of the Platform may be disrupted or limited. We will use our best endeavours to restore access to the Services as soon as practicable.
    6. From time to time we will conduct preventative and remedial maintenance on the Platform and in respect of the infrastructure we deploy in the provision of the Platform (Scheduled Maintenance).
    7. We will endeavour, but are not obliged, to carry out all Scheduled Maintenance outside usual Business Hours and to give reasonable notice of any planned downtime for the Platform. In the event of an emergency, we may carry out maintenance during usual Business Hours and without first notifying you.
    8. We:
      1. do not warrant that the availability of the Platform and your use of the Platform will be uninterrupted or error-free; and
      2. are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities,

      and you acknowledge that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

  5. Platform - Usage
    1. We grant to you, and to your Operators, the non-exclusive right to access and use the Platform for the Term at the Location.
    2. In relation to each Operator, you must ensure that:
      1. each Operator is aware of the need to keep their password for their access to the Platform secure and confidential; and
      2. you maintain a written, up to date list of current Operators and provide such list to us within five Business Days of our written request at any time or times.
    3. We reserve the right to monitor use of the Platform by Operators to verify the Operators are using the Platform and the use they are making of the Platform.
    4. If the monitoring referred to in clause 5.3 reveal that any password has been provided to or acquired by any individual who is not an Operator, then without prejudice to our other rights, we reserve the right to promptly disable such passwords and all related access to the Platform to any such individual.
    5. Our responsibility is limited to providing the Platform. For the avoidance of doubt, you acknowledge and agree that we have no responsibility for:
      1. the usage of the Platform (including any directions, instructions or interactions between an Operator and any person who is at the Location and who interacts with an Operator through the Platform); and
      2. any use, misuse or loss by you and/or your Operators or other compromise of passwords used by you and/or your Operators to access the Platform.
  6. Fees
    1. A subscription fee is charged by us for using the Platform as specified from time to time by us.
    2. If the subscription fee is not paid by the due date for payment, your access to the Platform may be terminated or suspended.
  7. Your Obligations
    1. You must only access and use the Platform, in accordance with these terms and conditions and Policies, at the Location.
    2. Unless otherwise permitted by Law, you must not during the Term:
      1. resell, reframe, distribute or on-sell the Platform;
      2. include the Platform in any service bureau or outsourcing or managed service offering;
      3. transfer, sub-license or assign your rights to any third party unless we give our prior written consent;
      4. modify or adapt or create derivative works of the functionality of the Platform;
      5. reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Platform;
      6. build a competitive service;
      7. copy any features, functions or graphics of the Platform; or
      8. use the Platform to access any other services.
    3. You are responsible for the accuracy, quality and origins of the data you uploads to the Platform. You must not provide or upload data (or permit any data to be provided or uploaded) to the Platform unless you are the owner of that data or has the authority to provide or upload the data.
    4. The Platform requires hardware, software, and internet access, to function and the usability of the Platform may be affected by the performance of these factors. We will notify you from time-to-time about the system requirements to ensure the optimal functioning of the Platform. Such system requirements are your responsibility.
    5. You must comply with Policies.
    6. You must comply with all Privacy Laws when using the Platform.
    7. You must effect and maintain, at your cost, Public Liability Insurance in respect of the Location for not less than $20,000,000 in respect of any single occurrence (Insurance). In addition, you must:
      1. pay any excess/deductible under the Insurance and must not do or allow anything which would prejudice the insurance, or cause it to be terminated; and
      2. provide evidence of the existence and currency of the Insurance whenever required by us.
    8. You are responsible for the following:
      1. determining those of your staff (Operators) that will have access to the Platform and the level of access;
      2. controlling the level of access given to Operators together with the issue of passwords or other access credentials to them;
      3. resolving any issues that Operators have with their level of access;
      4. revoking or adjusting the level of the access of any Operator;
      5. the use to which Operators put the Platform;
      6. providing to Operators all other computer hardware and software by which the Platform will be accessed including internet browser software as specified by us; and
      7. providing sufficient (having regard to the nature of the your business) security for the computer network in conjunction with which the Platform is used.
    9. The Platform is not intended to be used for emergency management or communication during the period of any emergency occurring at the Location.
  8. Privacy
    1. We will only store or otherwise process “personal information” and “sensitive information” (as defined in the Privacy Laws) in accordance with your request and in a manner consistent with the Privacy Laws.
    2. You must only collect, use, store, transfer, delete, disclose or otherwise process “personal information” and “sensitive information” (as defined in the Privacy Laws), that forms part of the Data uploaded by you to the Platform, in accordance with the Privacy Laws and your privacy policy (as amended from time to time).
  9. Limitation of Liability
    1. Terms, conditions and warranties implied by Law which cannot be excluded, restricted or modified apply to these terms and conditions to the extent required by Law.
    2. You do not rely on any representation, warranty or other provision made by us which is not expressly stated in these terms.
    3. Our total and aggregate liability for loss suffered or sustained by you in connection with the provision of the Platform under these terms and conditions:
      1. whether arising as a result of breach of contract, in tort (including negligence) or under statute; and
      2. whether or not arising pursuant to an indemnity in these terms and conditions,

      is limited:

      1. in those cases where the Law (including the Australian Consumer Law) restricts our ability to limit our liability, to:
        1. supplying the Platform again; or
        2. the payment of the cost of having the Platform supplied again; and
      2. in all other cases to $1.00.
    4. To the extent permitted by law, neither party nor their respective directors, officers, employees, agents or representatives under these terms and conditions will be liable for any Consequential Loss.
    5. For the purposes of clause 9.4, the term Consequential Loss means losses which do not arise naturally (that is, according to the usual course of things) from the relevant breach of these terms and conditions (including loss of profits or revenue, loss of goodwill or reputation, loss of anticipated benefits or savings, loss of any prospect or business opportunity, loss of production or other business interruption loss.
    6. We are not liable for any delay or failure to perform our obligations to you if the delay is due to natural disaster or other event beyond our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, or strikes or other labour problems.
  10. IP Claims
    1. If a claim is made by a third party against you that the supply of the Platform infringes the Intellectual Property Rights of that third party, you must give notice of that claim.
    2. We may modify, limit, suspend or terminate your use of the Platform (or any part of it) (without any liability), or in response to a claim by any person for Intellectual Property Rights infringement in connection with our supply of the Platform (or any part of it).
  11. Indemnity
    1. You indemnify us, our employees, agents and contractors (those indemnified) for any losses, damages, costs and/or expenses incurred or sustained by those indemnified or asserted against those indemnified as a result of:
      1. the death or illness of, or personal injury to, any individual;
      2. the loss or destruction of, or damage to, any tangible property; or
      3. any breach of security or other unlawful access or use of the your computer network,

      that has been caused by the use of the Platform or any part of it by you or the Operators (or any one or more of them).

  12. Termination and Suspension
    1. We may terminate your use of the Platform by notice in writing to you (such notice to take effect immediately) if one or more of the following events occurs:
      1. you breach of any of your obligations under these terms and conditions and fail to remedy such breach within 30 days of notice; or
      2. you become, or threatens to become, insolvent or otherwise subject to external administration.
    2. We may suspend your access to or use of the Platform if we are entitled to terminate (under clause 12.1). We will give you at least seven days’ prior written notice before suspending your use of the Platform.
    3. On termination or suspension you will not be able to use the Platform.
  13. General
    1. We have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Platform any recommendations or other feedback provided by you.
    2. Notices must be in writing. A notice may be delivered to you by email to the email address notified by you to us.
    3. No oral agreements or representations will be valid or binding on us.
    4. We may amend these terms and conditions by giving written notice to you. Continued use of the Platform by you after notice of the amendment is given to you will constitute acceptance by you of the amendment.
    5. No term or condition will be deemed waived and no breach excused by us unless that waiver or excusal is in writing and signed by us.
    6. If any term or condition is found to be illegal or unenforceable, each such term or condition will be enforced only to the extent it is not illegal or unenforceable and all other terms and provisions will remain in full force and effect.
    7. Clauses 9, 10, 11, 12, and 13 survive termination or expiry of these terms and conditions.
    8. These terms and conditions are governed by the laws of the State of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with all matters concerning these terms and conditions.