GRAVITY – ONLINE TERMS OF USE AND EULA

In these Terms:
1. “AUD” means Australian Dollars;
2. “Australian Consumer Law” means the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth);
3. “Confidential Information” includes all information marked or indicated as confidential to a party to these Terms or any of its related bodies corporate or which the other party knows or ought reasonably to be aware is confidential to the first mentioned party (regardless of its form and whether the other party becomes aware of it before or after the date of these Terms);
4. “Defined Abuse” means misuse of the Website or Gravity including: (a) giving an unauthorized person Your account and password details, (b) deliberately or recklessly disrupting Our service, (c) engaging in the practice known as spamming, (d) using the Website or Gravity in an unlawful manner, (e) using the Website or Gravity to menace or harass others, (f) Denial-of-service attacks on other users or networks, (g) using the Website or Gravity to unlawfully obtain access to other networks, and (h) as otherwise reasonably determined by Us;
5. “Denial-of-service attacks” includes Your behaviour that results in disruption of Our service, disruption of other people’s use or enjoyment of the Website or Gravity, which includes but is not limited to computer viruses, IRC harassment, e-mail bombardment, damage to internet-connected resources and channel flooding;
6. “GST” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
7. “Implied Term” means a term implied into these Terms by consumer protection legislation and which such legislation prohibits from being excluded, restricted or modified, including for example guarantees provided under the Australian Consumer Law;
8. “Impugned Content” means content that:
1. is false, misleading or deceptive according to the Australian Consumer Law or any other law;
2. is obscene, threatening or defamatory;
3. is invasive of privacy;
4. infringes any persons’ intellectual property rights;
5. harasses another user or any other person or group, or encourages such harassment;
6. is verifiably untrue;
7. constitutes commercial solicitation, political campaigning, or involves the transmission of unsolicited mass mailing (including spamming);
8. identifies the author as someone other than the true author of the content;
9. is pornographic or sexually explicit in nature;
10. or would otherwise reasonably be considered illegal, objectionable or offensive;
9. “Licence” means a licence granted under clause 22;
10. “Login Details” means a unique login identification code, password, and/or other login information to enable connection to Your account;
11. “Gravity” means the hosted security and access control platform operated by Us and known as “Gravity”. Where applicable, references in these Terms to “Gravity” also include the specific features, modules, services and/or bundles of Our Gravity offering as chosen by You in your Order;
12. “Order” means an offer to purchase a licence to use Gravity (including specific features, modules, services and/or bundles of Our Gravity offering) from Us via the Website;
13. “Our IP” means Our intellectual property, including all intellectual property rights (including present and future intellectual property rights) in and relating to the Website, Gravity and all intellectual property created pursuant to or in contemplation of these Terms;
14. “Purchaser” means You, if You have placed an Order;
15. “Terms” means these terms of use;
16. “We, Us, Our” means NIDAC Pty Ltd ACN 004 933 242;
17. “Website” means Our website for reviewing, ordering and using Gravity, at www.nidac.com/gravity and/or https://mygravity.cloud, and as may be varied from time to time;
18. “You, Your” means a person who registers to use Gravity and/or who places an Order and may include an individual, a partnership, a company, an association, an organization or an agency or department;
19. “Your Data” means data owned or generated by or on behalf of You or Your People, where such data relates solely to You, Your business or operations or Your People (as the case may be). Your Data expressly excludes any material comprising a good or service supplied by Us, Our data and Our IP;
20. “Your People” means You and any person within your organization whom You permit (whether directly or indirectly or by way of facilitation) to use or obtain the benefit of any products or services supplied by Us (including Gravity) and includes Your officers, employees, agents and contractors.
For the avoidance of doubt:
1. if You are not a Purchaser:
• these Terms form an end-user licence agreement between Us and You and shall apply to You except in relation to placing Orders; and
• Your use of Gravity and the Licence shall be subject to any limitations that We may in our sole and absolute discretion impose and vary from time to time (with or without notice), including as to duration, number of log-ins, available features or functions, or otherwise; and
2. if You are a Purchaser:
• these Terms form an end-user licence agreement and shall apply to You in all respects, including in relation to placing Orders; and
• Your use of Gravity and the Licence shall be subject to any limitations, and shall continue for the duration, set out in Your Order.

Use of the Website

These Terms commence when You first register to use Gravity and shall continue to govern Your use of Gravity.

Upon You registering with Us, We will provide You with Login Details and a unique user account. Login Details, and use of and access to Gravity and Your user account, shall be personal to You only; if You are other than an individual, We may permit Your People to have separate user accounts (which shall be licensed and charged separately) and You shall be responsible for managing those user accounts.

You must not permit any other person to use Gravity by means of Your user account. You must not use Login Details for multiple concurrent logins and You must ensure that Login Details are not disclosed to any other person. You must immediately notify Us if another person becomes aware of Your Login Details.

he Website and its contents are subject to copyright and are protected by Australian and international copyright laws. The compilation (including the collection, organisation and display of all content on the Website) is the exclusive property of Us and must not be reproduced without the prior written consent of Us. All trade marks, signs, logos and get-up (“marks”) contained on the Website and relating to Our business are owned by Us. You must not use such marks without Our prior written consent.

Any articles, comments, news items, other web sites and hyperlinks referred to on the Website are included for information purposes only. Third party sites are not under the control of Us and therefore We are not responsible for the condition or content of them. You access these sites and/or use their products and services at Your own risk. We make no representations as to: any affiliation with any other organization; the quality, veracity or accuracy of information contained in other web sites; or any endorsement of any other organization.

We are unable to guarantee that any file made available for download from the Website is free from viruses or other conditions which could damage or interfere with data, hardware or software. You assume all risk of files downloaded and used from this site and release Us from all responsibility and liability arising from their use.

Placing an Order

The promotion of any good or service (including Gravity) by Us is an invitation to treat and not an offer to sell any goods or services. We reserve the right to accept or reject any Order for any reason. Once You place an Order, that Order cannot be cancelled, rescinded or revoked.

We will send an e-mail to You to acknowledge an Order (as long as the correct e-mail address is provided). This is not an order confirmation or acceptance of an Order.

We may accept an Order by debiting Your bank account or credit card for the amount of the applicable Licence fee.

Upon Our acceptance of an Order, You agree to purchase and We agree to supply a Licence to use Gravity in consideration for the price specified on the Website and otherwise subject to these Terms.

You must pay Us in full and in advance for all goods and services purchased (including applicable taxes, duties and delivery charges, where applicable). Once We accept an Order, We will debit Your bank account or credit card through a secure payment facility or gateway. You authorize Us to debit money from Your bank account or credit card for the purposes of such transaction. Where Your chosen plan includes multiple subscriptions or automatic renewals or recurring payments, You authorize us to debit Your bank account or credit card accordingly.

Payments made by credit card may be subject to a surcharge to cover merchant fees, which fees will be notified at the time of check out.

Unless expressly stated otherwise, all references to consideration (including charges) relating to these Terms are in AUD and exclude 10% GST.

Subject to applicable laws, all charges are non-refundable. You shall pay the charges in full without any deduction or set-off whatsoever.

Goods and services purchased for delivery outside Australia may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. You will be responsible for payment of any such import duties and taxes. We have no control over these charges and cannot predict or advise as to their amount. You should contact Your local customs office for further information before placing an Order.

The Purchaser is responsible for all Orders made via the Website (including being vicariously responsible for purchases made by any other person using the Purchaser’s account).

Intellectual property rights and Licence

We or a company within our corporate group own all intellectual property rights in Our IP.

You acknowledge and agree that:

1. You acquire no right, title or interest in any of Our IP, or any intellectual property used or supplied by us to you or any other party, at any time regardless of whether the intellectual property was created prior to or during the term of these Terms;
2. nothing in these Terms has the effect of granting, transferring to or vesting in you any right, title or interest in such intellectual property;
3. you shall do all things reasonably required by Us, and to procure that the your representatives do so also, to enable us to obtain, defend and enforce Our rights in such intellectual property;
4. you shall not do or fail to do any act or thing which would or might prejudice our rights under this clause.

Notwithstanding anything to the contrary in these Terms, no clause will operate to assign or provide for the assignment of any intellectual property to You or to any third person.

We grant to You a worldwide, non-transferable, non-exclusive and personal licence to use Gravity.

The duration and other conditions of the Licence shall be as determined in accordance with clause 2.

The Licence shall be subject to full compliance with these Terms and payment in full of all applicable licence fees. For the avoidance of doubt, the Licence shall not be deemed a sale, a sale of a copy of a program, a lease, a rental or a loan.

We warrant that we have the authority to grant the Licence.

You must not (directly or indirectly, whether for personal gain, commercial gain, training purposes or otherwise), nor attempt to (and You must ensure that each of Your People does not, or attempt to):

1. reverse engineer, disassemble, decompile or re-create the source code relating to Our IP;
2. copy, translate, modify or create derivative works based on Our IP or accompanying written materials;
3. distribute, sell, assign, pledge, sublicense, lease, deliver or otherwise transfer or grant access to Our IP nor permit any other person to do any of the foregoing;
4. remove from Our IP any of the trademarks, trade names, logos, patent or copyright notices or marking or add any other notices or markings or add any other notices or markings to Our IP.

Confidentiality

Subject to these Terms, each party agrees to keep in confidence and must not use or disclose any Confidential Information of the other party.

Clause 27 does not apply to any information which:

1. enters the public domain other than by breach of these Terms;
2. is required by law to be disclosed, provided that the disclosing party shall use reasonable efforts to protect the confidentiality of such information.

A party must return or destroy all Confidential Information of the other party upon request.

Warranties and liability

You warrant to Us that:

1. all information supplied by You is true and correct;
2. You have made all necessary enquiries and satisfied Yourself regarding the suitability of Gravity for Your purposes;
3. You will not use the Website or Gravity in breach of any law or any person’s rights (including intellectual property rights);
4. in the case of an individual, You are over 18 years of age;
5. in the case of an individual entering into these Terms on behalf of a partnership, an association, an organization or an agency or department, you are authorized to enter into these Terms in that capacity; and
6. You will use Gravity only for the purposes stated in these Terms, and in the product description for Gravity.

You must indemnify and save harmless Us and Our related bodies corporate and Our suppliers and their respective officers, employees, contractors and agents (the “Indemnified Persons”) from any claim, loss, injury, damage, fine, penalty, liability, costs or expenses whatsoever suffered or incurred by an Indemnified Person arising from or in connection with:

1. any information provided by or on behalf of You or Your People;
2. the use of the Website or Gravity by You or Your People;
3. any alleged breach of a person’s rights (including, but not limited to, defamation, intellectual property and privacy rights) in respect of the use of Gravity or the Website by Your or Your People; and
4. any breach of these Terms by You or Your People.

All Implied Terms are expressly included in these Terms. All other terms which might otherwise be implied into these Terms, are excluded.

Subject to the Australian Consumer Law, You agree that Our maximum aggregate liability in relation to any claim, loss or damage, whether arising under or in relation to these Terms, any tortious act or omission (including negligence) or under common law or statute, is excluded and (if it cannot be excluded) is otherwise limited to the amount that You have actually paid Us in the two months prior to the event giving rise to the claim.

Subject to sub-sections 259(4) and 267(4) of the Australian Consumer Law in relation to an Implied Term, in no event will We be liable to You or to any other person for any indirect, special, incidental, consequential, punitive or other like loss or damage whatsoever, loss of profit or loss of data, whether or not such person was advised of the possibility of such loss or damage, in relation to these Terms.

Nothing in the Website or Gravity constitutes advice of any type. Information contained on the Website and Gravity is provided on an “as is” basis. We are not required to provide such advice or information under these Terms and You shall make Your own enquiries as to the appropriateness and correctness of such. Subject to these Terms, We shall not be responsible for loss or damage occasioned by You in reliance thereof.

We disclaim, to the maximum extent permitted by law, all responsibility and liability arising directly or indirectly from any use of material contained or referred to in the Website, including any errors, omissions or harmful components.

Subject to clause 32, We do not warrant that the Website, Gravity or any service will be uninterrupted or error-free, or that any content are accurate, complete, reliable, current, or error-free.

We do not warrant that the Website or Gravity will be compatible with any hardware and software which You may use.

Data backup and security

We aim to comply with peer industry practice in relation to data backup and security, including the use of trusted hosting partners. However, You acknowledge that servers connected to a network, and particularly those connected to the internet, are subject to security threats and no data is entirely secure and safe from a breach or failure of data backup and security. Accordingly, whilst We take reasonable steps in relation to data backup and security, We exclude all warranties and disclaim to the full extent permitted by law all liability in relation to data backup and security.

You must ensure that appropriate data backup and security measures are taken in relation to Your Data, having regard to the criticality of the data, including using appropriate firewall and encryption technologies, applying latest security patches, disabling any unnecessary ports, routine backup, having multiple backups and/or redundant backups, archiving Your Data, and conducting regular security audits.

Your responsibilities

You must (and You must ensure that Your People):

1. comply with all policies (including any acceptable use policy and privacy policy) in relation to the Website and Gravity, as published by Us from time to time.
2. ensure that the Website and Gravity are used solely for their intended purpose;
3. not permit any other person to use Gravity and must not re-sell or purport to re-sell Gravity.
4. ensure there is no unauthorized access, or harm caused, to Our computer system or network or those of Our suppliers;
5. not commit, cause or allow any breach (or do anything which might put Us in breach) of any law, regulation, government direction or industry standard or code;
6. not use the Website or Gravity to breach a person’s rights (including committing defamation or infringing a person’s intellectual property or privacy rights);
7. not post or submit any Impugned Content to the Website or using Gravity;
8. not commit Defined Abuse;
9. notify Us immediately of any security breach (suspected or otherwise) of the Website or Gravity, or Your Login Details;
10. initiate, operate and manage Gravity on Your own behalf;
11. be solely responsible for arranging, maintaining and configuring all communications services, system resources and other equipment and services needed to access the Website and Gravity in accordance with Your requirements, including without limitation:
    1. adequate bandwidth;
    2. adequate infrastructure specification and configuration, including data storage and capability to handle the data load and integration with Gravity; and
    3. maintenance of firewalls and security measures to ensure integration with Gravity is possible, available and secure;
12. promptly inform Us of any change to Your billing or address details;
13. be responsible for the timely and accurate notification to Us of any defect in the Website or Gravity or other issue which may give rise to a warranty or consumer claim;
14. maintain an up-to-date copy of all of Your Data at all times, suitable for restoring services in the event of loss or corruption of data on Your or Our systems.

You must ensure that each of Your People complies with each term in these Terms that is applicable to them. You shall be vicariously liable and responsible to (and You fully defend and indemnify) Us in respect of each of Your People’s use of any good or service (including the Website and Gravity and including in circumstances where Your People have the benefit of any such good or service) and compliance with such terms.

Your Data and use of information

For the avoidance of doubt, and where applicable, Your Data (including all intellectual property rights in Your Data) shall be owned by You (or Your People, as applicable). Once Your Licence ends, if requested by You We will return (and if required We will facilitate the return of) a copy of Your Data to You, subject to: (a) all of Your accounts first being paid in full; and (b) You paying Our reasonable charges for doing so. You will have 3 months to request the return of Your Data; after that time, we are unable to guarantee that Your Data will be available.

Consent to Use of Data: You agree that We may collect and use technical data and related information (including but not limited to technical information about Your device, system and application software, and peripherals) that is gathered periodically to facilitate the provision of software updates, product support, and other services to You (if any) related to the Website and Gravity. We may use this information, as long as it is in a form that does not personally identify You, to improve Our products and services or to provide services or technologies to You.

Usage data (including metadata and customer usage) may be generated by the use of the Website or Gravity, in which case:

1. where applicable, all right, title and interest in such usage data is retained by You (or Your People, as applicable);
2. You grant Us a perpetual, non-exclusive, transferable, sub-licensable, royalty-free, worldwide licence to use such data; and
3. You consent to Our use of such data (and to provide such data to others) for our internal business purposes, for marketing purposes, for market analysis, to analyse customer trends and where required by law.

We are not obliged to review or monitor any of Your (or Your People’s) use of the Website or Gravity (including Your Data), although We may do so if such use violates any clause contained in these Terms, or if required by law.

You authorize Us to use and provide personal information to Our suppliers to the extent necessary to fulfil Our obligations under these Terms.

We may also collect Your personal information and use it for the following purposes:

1. for marketing purposes, including to provide information about goods or services which We or any of Our suppliers or related bodies corporate or affiliates may offer;
2. to disclose to credit reference associations and credit reporting agencies for the purpose of providing services or other credit providers providing services;
3. for the purpose of engaging with, assisting and fulfilling Our obligations to third party suppliers;
4. for purposes related to or arising out of Our provision of services and credit or commercial credit.

You give Your consent to the types of use of information described in these Terms. You give Your consent to Us sending electronic messages (including commercial electronic messages) within the meaning of the Spam Act 2003 (Cth), to You.

Our privacy policy as provided at www.nidac.com shall be deemed to be incorporated into these Terms.

General

These Terms and Our policies regarding the Website and Gravity are subject to change by Us from time to time. Any such change shall be uploaded to the Website. You should re-check these Terms before each time before using Gravity and before placing each and every Order.

You grant Us a licence to use Your name and logo for the purpose of indicating that You are a customer of Us, provided that We shall not use such name or logo as a trade mark.

Notwithstanding any provision in these Terms, all or part of the agreement governed by these Terms may be terminated by Us with or without notice and without cause:

1. if You are not a Purchaser, at any time for any reason; or
2. if You are a Purchaser, at any time for any reasonable reason, subject to us providing a pro-rata refund for the remainder of the then applicable Licence period.

Where a party (the “firstmentioned party”) is required (whether under these Terms or otherwise) to return data or information to the other party, without limiting:

1. the primary obligation of the firstmentioned party to return such data or information; and
2. the firstmentioned party’s obligations under clauses 27 and 29,

the parties acknowledge that the firstmentioned party shall be entitled to retain such copies of such data or information as are necessary for data archival, risk management, legal or regulatory compliance purposes.

We will not be responsible for any delay or failure to perform Our obligations under these Terms caused by any act beyond Our control including without limitation acts of God, wars, strikes, natural disasters, delay or default of any person.

Any provision which by its nature would survive termination or expiry of these Terms (including without limitation any exclusion or limitation of liability or indemnity in these Terms) shall survive termination or expiry of these Terms.

If any clause or part of these Terms is held to be void, illegal or unenforceable for any reason, it shall be deemed to be severed from these Terms without affecting any other clause or part of these Terms.

These Terms contain the entire agreement of the parties with respect to its subject matter. They set out the only conduct relied on by the parties and supersede all earlier conduct and negotiations by the parties with respect to their subject matter.

Any right under these Terms may not be waived or varied except in writing signed by the person to be bound.

We may assign or novate any of Our rights or obligations under these Terms and You give Your consent to such assignment or novation.

The agreement governed by these Terms is governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.

The Website and Gravity may be accessed throughout Australia and internationally.  We make no representations that the content of the Website or Gravity complies with the laws, including intellectual property laws, of any country other than Australia.  If You access this site or use Gravity from outside Australia, You do so at Your own risk and are responsible for complying with all applicable laws.