Cirrus8 Terms of Use - Cirrus8
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Cirrus8 - Terms of Use

Cirrus8’s terms of use are incorporated in and form part of our contract with you.

Introduction

Welcome to Cirrus8, an online property management and accounting software service designed specifically for the property industry. These terms of use are intended to explain our obligations as a service provider and your obligations as a user. You need to and look through and agree to these terms in order to use the Service. These terms set out rights and obligations that relate to the Service and if you do not agree to them then you are not permitted to use the Service.

These terms are binding on any use of the Service and apply to you from the time that Cirrus8 or your own internal client Administrator provides you with access to the Service. The Cirrus8 Service will evolve over time as we revise or expand services offered. These Terms are not intended to answer every question or address every issue raised by the use of the Cirrus8 Service.

Cirrus8 reserves the right to change these terms at any time but will never apply the changes retrospectively, with any changes effective upon the posting of modified terms. Cirrus8 will make every effort to communicate these changes to You via email or notification via the Website or software Service. If you do not agree with the terms and conditions at time you are not permitted to use the Service.

It is your obligation to ensure that you have read, understood, and agree to the most recent terms available on the Service.

By registering to use the Service:

  1. 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; and
  2. you agree to these Terms on behalf of any entity for whom you use the Service.

These Terms were last updated on 12 November 2023.

  1. DEFINITIONS

    "Agreement"
    means these Terms of Use.

    "Access Fee"
    means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule as per your agreement with Cirrus8 as amended and notified to you in writing from time to time.

    "Cirrus8"
    means CIR8 Pty Ltd (ACN 610 625 173) which is a company registered in Australia and all current and future global subsidiaries of CIR8 Pty Ltd or the hosted software platform.

    "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.

    "Data"
    means any data inputted by You or with Your authority into the Service.

    "Force Majeure"
    means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement (other than an obligation to pay money). Such circumstances shall include but not be limited to:

    1. acts of God, lightning strike, earthquakes, floods, storms, explosions, fires and any natural disaster;
    2. acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
    3. pandemic, epidemic, quarantine, lockdown or other restriction imposed by government or other government authority (including a court of competent jurisdiction), strikes.

    "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 that uses the Service with the authorisation of the Subscriber from time to time. This includes users using the Service on a trial basis to begin with. Before logging in and first using the Service you are required to agree to these terms of use and have personal obligations pertaining to your use of the Service. Invited users may include but are not limited to staff of Subscriber's entity (for example Property Managers, Trust Accountants), staff of Subscriber's Property Management entity, staff of Subscriber's trust accounting entity, Owners, Tenants, Suppliers (contractors), Auditors, Bookkeepers. Access rights and security settings for users that may be attached to multiple databases, .e.g. contractor working for 3 different real estate entities, are managed by the initial creator of that user, unless later reassigned. Invited users have to always relate to an individual with a unique first name, surname and email address and cannot relate to a position.

    "Local Administrator"
    The individual or individuals authorised by the Subscriber (person who signed the proposal) to act on their behalf to manage invited users including inviting new users (which may result in an additional cost), deactivate users, reset passwords, set other access control mechanisms, liaise with Cirrus8 for updating security settings or email settings and authorise access of third-party service integrations.

    "Sensitive Data"
    shall mean data revealing a person's:

    1. racial or ehtnic origin;
    2. political opinions;
    3. membership of a political association;
    4. religious beliefs or affiliations;
    5. pilosophical beliefs;
    6. membership of a professional or trade association;
    7. membership of a trade union;
    8. sexual orientation or practices; or
    9. criminal record.
    10. health information;
    11. genetic information;
    12. biometric information; and
    13. biometric templates.

    "Service"
    means the hosted software platform made available through the Internet or mobile application for users to use. It consists of on an online property management, accounting and related services platform, including but not limited to Cirrus8, CirrusFM, Executive Dashboard and automated invoicing (as may be changed or updated from time to time by Cirrus8).

    "Subscriber"
    means the person with authority to act on behalf of the entity who engages with Cirrus8 via the signing of a proposal to use the Service or any person or persons who that person delegates the authority to act with regard to invited users, also called Local Administrator. This may include authority given to a third-party service provider via agreement, such as RealTrust, to give required access to your data to their staff or contractors.

    "Subscription"
    means the Service that has been subscribed to for the Access period covered by the bill.

    "You"
    means the Subscriber, and where the context permits, an Invited User. "Your" has a corresponding meaning.

    "Third party service integrations"
    means add on services that Cirrus8 has integrated with including but not limited to Assuro, KBI insurance, PIM, Core Vision, Macquarie Bank, Bricks and Agent and Inspection Express, SMS. These products all have their own terms of use that you need to agree to if you decide to use them.

    "Website"
    means the Internet site at the domain cirrus8.com.au.

  2. USE OF SOFTWARE
    Cirrus8 grants You the right to access and use the Service with the particular user roles available to You according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. If you have subscribed to any other services integrated with Cirrus8 you will also have access to the additional (third party) platform through the Service. There may be Terms of use which apply to the other platform (third party) that you are required to agree to.
  3. INVITED USERS
    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 or Local Administrator determines who is an Invited User and what level of user role access to the relevant organisation and Service the Invited User has. This is done by advising Cirrus8 in writing of invited users details or utilising the Local Administrator function within Cirrus8 yourself or delegating the power to another individual/s within your organisation to use this function;
    2. The Subscriber is responsible for all Invited Users' use of the Service other than any Cirrus8 approved partner users where You have separately contracted with that partner and they have demonstrated contractual arrangements with You to Cirrus8;
    3. The Subscriber is responsible for deactivating Invited Users where appropriate, either through written advice to cirrus8 ([email protected]) or through the local Administration function thus preventing unauthorised access.
    4. The Subscriber is responsible for cyber security protection over Invited Users' access to Cirrus8. Cirrus8 makes available numerous cyber security protection features which the Subscriber must familiarise him/herself with and activate what is appropriate to provide protection.
    5. Subject to any restrictions imposed by Cirrus8, the Subscriber controls each Invited User's level of access to the relevant organisation and Service at all times and can revoke or change an Invited User's access, or level of access, at any time and for any reason, in which case that person will cease to be an Invited User or shall have that different level of access, as the case may be;
    6. 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 Invited User shall have, if any.
    7. All Invited Users need to relate to a person, with at least a first name and surname and individual email address.
    8. These terms constitute part of the agreement between Cirrus8 and the Subscriber and are not transferable to any other entity, .e.g. on sale of a property management portfolio. A new agreement needs to be obtained from Cirrus8 for any other entity.
  4. YOUR OBLIGATIONS
    1. Payment Obligations

      The billing period applies to each calendar month, there is no pro-rata billing. The first billing period relates to the month in which the database is created and the configuration begins. An invoice for the Access Fee will be issued at the start of each month, payment will be received by means of direct debit from Your nominated account until this Agreement is terminated in accordance with clause 9.

      You must ensure that payment is made by direct debit (unless explicitly agreed otherwise) through the facility made available by Cirrus8. Failure to register for the direct debit system will result in an administration fee of $100 plus GST for each monthly invoice. Any overdue invoices will have interest of 15% p.a. charged. You are responsible for payment of all bank charges, taxes and duties in addition to the Access Fee including any dishonour fees.

    2. Suspension or termination of access for non-payment:
      Without prejudice to any other rights that Cirrus8 may have under these Terms or at law, Cirrus8 reserves the right to suspend or terminate your use of the Service in the event that any invoices for those Access Fees or any other setup, implementation, training or other related fees are not paid in full by the payment due date. Access will be restored when payment is received, and no credit is offered or available for any period of suspension.
    3. General obligations:
      You must only use the Service for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Cirrus8 or condition posted on the Service. You may use the Service on behalf of others or in order to provide services to others, but if You do so, you warrant 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.
    4. Unauthorised data downloads
      As an invited user you are only permitted to use the Service and download data as approved by the Subscriber. Downloading data for example tenancy schedules, and sharing with uninvited users without the permission of the Subscriber is unlawful.
    5. Automated Bank transaction data delivered into Your Cirrus8 account:
      Where available, automated bank account transaction data feeds are generally provided to You free of charge. However, Cirrus8 reserves the right to pass on any charges related to the provision of bank feed data on a case-by-case basis at Cirrus8's sole discretion. Cirrus8 will first inform You via email to indicate what those charges are likely to be (such charges may vary depending on Your bank and Your volume of bank feeds). You have the option to decide to discontinue use of automated bank feeds at any time. To exercise this option, you must give Cirrus8 five (5) business days' notice of which automated bank account transaction data feeds you want to discontinue. Upon receiving such notice Cirrus8 will arrange for such feeds to be terminated in accordance with each bank's usual practices. There might be separate terms applicable to the bank feeds that certain banks may require you to agree with to utilise the service.
    6. Access conditions:
      1. You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Cirrus8 of any unauthorised use of Your passwords or any other breach of security and Cirrus8 will reset Your password. You must take all other actions that Cirrus8 reasonably deems necessary to maintain or enhance the security of Cirrus8's computing systems, networks and Your access to the Services.
      2. Each user license is assigned to an individual and may only be used by one (1) predetermined individual. New additional user licenses can be purchased at a cost with a minimum of one (1) calendar month charge applying unless that additional license falls within the agreed number of usable licenses. New licenses purchased during a month attract the full monthly fee for the month in question. Access licenses can be revoked by providing seven (7) days written notice to Cirrus8 ([email protected]), subject to maintaining the minimum number of licenses. Further licenses may be issued in respect of an individual's revoked licenses no earlier than two (2) months after a revocation i.e. revoking and reassigning licenses for individuals going on leave is not appropriate. All requests for user licenses must be given by the Subscriber or another employee given the requisite authority in writing to act on behalf of the subscriber.
      3. All use of Cirrus8 needs to be by the registered invited user (individual person) via the Cirrus8 provider front end user interface only. The usage of alternative interfaces or automation scripts such as screen scrapers or robotic process automation is not permitted. Cirrus8 reserves the right to block or otherwise update its code to disable such usage without warning. Supported third-party integrations are exempt from this clause.
      4. As a condition of these Terms, when accessing and using the Services, You must:
        1. not attempt to undermine the security or integrity of Cirrus8's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
        2. not use, or misuse, the Services in any way which may impair the functionality of the Services, or other systems used to deliver the Services or impair the ability of any other user to use the Service;
        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;
        4. not transmit, or input into the Service, 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
        5. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs or code used to deliver the Services or to operate the Service except as is strictly necessary to use either of them for normal operation.
    7. Usage Limitations:
      Use of the Service may be subject to limitations, including but not limited to monthly transaction volumes, the disk space occupied by documents linked to your portfolio and the number of calls You are permitted to make against Cirrus8's application programming interface. Cirrus8 reserve the right to recover additional fees from user's who are deemed to have stored information in excess of what Cirrus8 consider is required for standard system use.
    8. Responsibility for the Data:
      You are responsible for the data entered onto the Service.
    9. Responsibility for your invited users training and support:

      You are responsible for your invited users and ensuring they have adequate training to use the Service. Note, support is only offered to users who have undergone the full Cirrus8 Training Program. Support is provided for Cirrus8 technical issues or advice on how to perform functions within Cirrus8 and not what to do to achieve an outcome. You may seek advice on what to do in particular circumstances by booking in time with Cirrus8 trainers at a cost.

      Additionally, Cirrus8 does not provide trust accounting or property management services nor tax advice. If you need to obtain professional advice this should be done independently of Cirrus8. If we are requested by you to investigate something which turns out not to be a technical issue, Cirrus8 reserves the right to charge for the time spent at the current hourly rate.

    10. Communication Conditions:

      As a condition of these Terms, if You use any communication tools available through the Service (such as any forum, support system, chat room, Email, SMS 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 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).

      When You make any communication on the Service, You represent that You are permitted to make such communication. Cirrus8 is under no obligation to ensure that the communications on the Service 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 Service. However, Cirrus8 does reserve the right to remove any communication at any time in its sole discretion.

    11. Modifications:
      We frequently release enhancements, make modifications or discontinue features with a view to improving the Service for all users. Where this occurs, we will endeavour to notify you where practical on the Service or by email.
    12. You indemnify us
      You indemnify Cirrus8 against: all claims, costs, damage and loss that we incur arising out of or in connection with a third-party claim against us relating to your use of the Service or any third-party product.
    13. Things you must never do:
      • Undermine the security or integrity of our computing systems or networks.
      • Use our services in any way that might impair functionality or interfere with other people's use.
      • Access any system without permission.
      • Introduce or upload anything to our service that includes viruses or other malicious code.
      • Share anything that may be offensive, violates any law, or infringes on the rights of others.
      • Modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of our service.
      • Resell, lease or provide our service in any way not expressly permitted through our terms of use.
      • Repackage, resell, or sublicense any data accessed through our service.
      • Commit fraud or other illegal acts through our service.
      • Act in a manner that is abusive or disrespectful to a Cirrus8 employee, partner, or other Cirrus8 customer. We will not tolerate any abuse or bullying of our Cirrus8 employees in any situation and that includes interaction with our training, implementation and support teams.
  5. CONFIDENTIALITY, PRIVACY AND SECURITY
    1. Confidentiality: 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. 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.
      2. Each party's obligations under this clause will survive termination of these Terms.
      3. The provisions of clauses 5.1(a) and 5.1(b) 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 is independently developed without access to the Confidential Information.
    2. Privacy
      We respect your privacy and take data protection seriously. In addition to these terms, Cirrus8 maintains a privacy policy that sets out the parties' obligations in respect of personal information, like your name and email address. You should read that policy at https://cirrus8.com.au/privacy-policy/ and when You accept these Terms you also accept that policy.
    3. Data breaches
      Where there has been unauthorised access that we become aware of to personal data that you have entered into the Service, we'll let you know together with any circumstances we can share. You may be required to assess whether the unauthorised access must be reported to the contact or relevant authority. Cirrus8 will not directly contact any of your contacts that may have been affected unless it is required by law to do so.
    4. Publish Cirrus8 users on our website:

      By agreeing to these terms Cirrus8 will be permitted to publish your business name and/or logo on our public website or other marketing material.

      Additionally, You agree to Cirrus8 using your company name & logo in any press release, marketing materials where we indicate that you are a Cirrus8 user.

    5. Consent to electronic communications:
      You give consent to receiving certain electronic communications from us. For further details please visit our Privacy Policy.
    6. Consent to Cirrus8 access to your data:
      You give consent to Cirrus8 implementors, trainers and support staff to access your data on the Service to undertake the function you have requested from them. Cirrus8 undertakes to remove access from these users as soon as it is reasonable to do so.
    7. Consent to Cirrus8 to fix errors in your data:
      You give consent to Cirrus8 on request for assistance to rectify any erroneous data including data corruption caused by the use of Cirrus8.
    8. Security of data considerations:
      Cirrus8 has invested in technical, physical and administrative safeguards to help keep your data safe and secure. However, no electronic storage of data can be 100% secure and as such we cannot guarantee absolute security. We may notify you if we believe there may be unauthorised access to your information.
    9. Security features:
      Cirrus8 has introduced a number of security features or risk mitigation controls available for users. Some of these include: password complexity, restricting login to only single sign on solutions, authorisation of banking detail changes, logging banking detail changes, direct upload of EFT files to Macquarie bank, password reset, account locking, multi-factor and two factor authentication. Some of these may change or be added to over time. When the features are optional you are responsible (meaning we are not liable) for any consequences of not using those features. Cirrus8 reserves the right to enforce the use of certain security features where warranted, e.g. multi-factor or two-factor authentication.
    10. Your responsibility for the security of your data:
      It is your responsibility to inform yourself of the risks of unauthorised access to data, the features Cirrus8 has made available and to ensure the most appropriate security features are enabled to better protect your data, .e.g. multi-factor authentication. You are responsible for all Invited users and should ensure login details of all users is kept secure.
  6. INTELLECTUAL PROPERTY
    1. General:
      Title to, and all Intellectual Property Rights in the Service and any documentation relating to the Service remain the property of Cirrus8 (or its licensors).
    2. Ownership of Data:
      Title to, and all Intellectual Property Rights in, the Data remain Your property subject to Clause 6.6 below. However, Your access to the Data is contingent on full payment of the Cirrus8 Access Fee when due. You grant Cirrus8 a license 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.
    3. Backup of Data:
      Data loss is an unavoidable risk when using any technology. You must maintain copies of all Data inputted into the Service. Cirrus8 adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but gives no guarantee or warranty that there will be no loss of Data. Cirrus8 expressly excludes liability for any loss of Data no matter how caused. Cirrus8 agrees to use all reasonable endeavours to recover Your lost data. Whatever the cause of any downtime, access issues or data loss, your only recourse is to discontinue using our Service.
    4. Third-party applications and your Data:
      If You enable third-party applications use in conjunction with the Services or authorise Cirrus8 to enable its use, You acknowledge that Cirrus8 may allow the providers of those third-party applications to access Your Data as required for the interpretation of such third-party applications with the Services. Cirrus8 shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
    5. Sensitive Data:
      You agree not to input, maintain, copy or otherwise insert any “Sensitive Data” or any other information that might be considered of a sensitive, privileged or proprietary nature that might cause a loss of privacy or security to an individual or organisation if accessed or used by a third party other than those entitled and authorised to do so. Examples of sensitive information might be, but are not limited to, copies of the following:
      1. Passports;
      2. Birth certificates;
      3. Visas;
      4. National ID Cards; or
      5. Drivers Licenses.
    6. Use of Aggregated Data:

      Cirrus8 may from time to time, utilise the aggregated and statistical data which is derived from the operation of the Service, including, but not limited to, that information collated from the daily processing, reporting and operation of the client's use of the system. Cirrus8 agrees not to publish any information which is:

      1. identifiable to any person or entity individually,
      2. contains any client confidential information or intellectual property, and
      3. is not otherwise combined with similar data of Cirrus8's other customers and clients.

      Cirrus8 may use the anonymised data for any purpose such as to improve our services or gain financial benefit from a third party through sharing that data.

      Your data may not be used by any other entity without the express written consent of the Subscriber for its use, e.g. on the sale of a portfolio.

  7. WARRANTIES AND ACKNOWLEGEMENTS
    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.
    2. Acknowledgement:
      You acknowledge that:
      1. You are authorised to use the Services and to access the information and Data that You input into the Service, including any information or Data input into the Service 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 Service (whether that information and Data is Your own or that of anyone else).
      2. Cirrus8 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 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 Cirrus8 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 Cirrus8 against any claims or loss relating to:
          1. Cirrus8's refusal to provide any person access to Your information or Data in accordance with these Terms,
          2. Cirrus8's making available information or Data to any person with Your authorisation.
      3. The provision of, access to, and use of, the Service is on an “as is” basis and at Your own risk.
      4. Cirrus8 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. Cirrus8 is not in any way responsible for any such interference or prevention of Your access or use of the Services.
      5. Cirrus8 is not Your accountant and use of the Services does not constitute the receipt of accounting or taxation advice. If You have any accounting or taxation questions, You should seek independent professional advice.
      6. It is Your sole responsibility to determine if the Services meet the needs of Your business and are suitable for the purposes for which they are used.
      7. You remain solely responsible for complying with all applicable accounting, real estate, tax and other laws. It is Your responsibility to check that storage of and access to your Data via the Software will comply with laws applicable to you (including any laws requiring you to retain records).
    3. No warranties:
      Cirrus8 gives no warranty about the Services. Without limiting the foregoing, Cirrus8 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.
    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 or these Terms.
  8. LIMITATION OF LIABILITY
    1. To the maximum extent permitted by the Laws of the Commonwealth of Australia, its States and Territories, Cirrus8 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.
    2. If You suffer loss or damage as a result of Cirrus8's negligence or failure to comply with these Terms, subject to clause 8.1 above, any claim by You against Cirrus8 arising from Cirrus8'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.
    3. If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate Your use of the Service in accordance with the Termination provision contained herein.
    4. Nothing in this Agreement is to be construed as excluding, restricting or modifying any non-excludable right or remedy conferred on the Distributor by the Competition and Consumer Act 2010.
  9. TERMINATION
    1. Prepaid Subscriptions:
      Cirrus8 will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.
    2. No-fault termination by either party:
      These Terms will continue for the period covered by the Access Fee paid or payable under clause 4.1. 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 thirty (30) days before the end of the relevant billing period. If You terminate, You shall be liable to pay all relevant Access Fees for the current month during which the notice was given and for the following month in which the thirty (30) day notice expiry falls.
    3. Termination due to breach of terms:
      If You:
      1. breach any of these Terms (including, without limitation, by non-payment of any Access Fees or any other setup, implementation, training or support fees) and do not remedy the breach within fourteen (14) days after receiving notice of the breach if the breach is capable of being remedied;
      2. breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 4.4 or any non-payment of Access Fees or any other setup, implementation, training or support fees that are more than thirty (30) days overdue); or
      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, Cirrus8 may take any or all of the following actions, at its sole discretion:
      4. We may Terminate this Agreement and Your use of the Service;
      5. Suspend for any definite or indefinite period of time, Your use of the Service;
      6. Suspend or terminate access to all or any Data; or
      7. Take any of the actions in sub-clauses (d), (e) and (f) of this clause 9.3 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 Access Fees or any other setup, implementation, training or other related fees due in relation to any of Your Billing Contacts, Billing Plans or any of Your Organisations (as defined at clause 4) is not made in full by the relevant payment due date, Cirrus8 may suspend or terminate Your use of the Service, the authority for all or any of Your Organizations to use the Service, or Your rights of access to all or any Data.
    4. Accrued Rights:
      Termination of this Agreement and use of the Service 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.
    5. Expiry or termination:
      Clauses 4.1, 4.7, 5, 6, 7, 8, 9, 11 and 12 survive the expiry or termination of these Terms.
    6. Data hosting:
      As long as you have an existing paid up subscription with Cirrus8, we will continue to house, backup and maintain your data. When the subscription period ends through termination then you permanently lose the ability to access the data. On termination Cirrus8 takes steps to delete the data. It is thus imperative that before termination you extract all the data you require, through running reports, downloading files or copying various other information stored within Cirrus8.
  10. HELP DESK
    1. Technical Problems:
      In the case of technical problems, You must make all reasonable efforts to investigate and diagnose problems before contacting Cirrus8 including looking at the online help material (link provided in Cirrus8). If You still need technical help, please check the support provided online by Cirrus8 on the Service, or failing that, email us at [email protected].
    2. Service availability:
      Whilst Cirrus8 intends that the Service should be available twenty four (24) hours a day, seven (7) days a week, it is possible that on occasions the Service may be unavailable, to permit maintenance or other development activity to take place or for any other unforeseen circumstance. If for any reason Cirrus8 has to interrupt the Service for longer periods than Cirrus8 would normally expect, Cirrus8 will use reasonable endeavours to publish in advance details of such activity on the Service or through Email. As Cirrus8 utilises the internet for the delivery of its Service, the internet might not be operational from time to time for a number of reasons outside of the control of Cirrus8. This will cause access issues until the internet issue is resolved.
  11. GENERAL
    1. Entire agreement:
      These Terms, together with any signed proposal, the Cirrus8 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 Cirrus8 relating to the Services and the other matters dealt with in these Terms.
    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 and signed by each party. Any failure of Cirrus8 to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by Cirrus8 to You, will not be construed as a waiver of Cirrus8's rights under this Agreement.
    3. Force Majeure:
      Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement (other than an obligation to pay money) if such delay or non-performance is due to Force Majeure. If the delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party's obligations will be suspended. If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds sixty (60) days, either party may immediately terminate the Agreement on providing notice in writing to the other party.
    4. No Assignment:
      You may not assign, novate or transfer any rights to any other person without Cirrus8's prior written consent.
    5. No Partnership:
      Nothing in this Agreement constitutes a partnership relationship or relationship of employer and employee between Cirrus8 and You. It is the express intention of the parties that any such relationships are denied.
    6. Governing Law and Jurisdiction:

      This Agreement is governed by and is to be construed in accordance with the laws in force in Western Australia.

      Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Western Australia and any Courts which have jurisdiction to hear appeals from any of those Courts and waives any right to object to any proceeding being brought in any of those Courts.

    7. Disputes:

      A party claiming that a dispute has arisen must notify the other party to the dispute, giving details of the dispute.

      If the parties are unable to resolve the dispute within twenty-one (21) days, each party agrees that the dispute must be referred for mediation, at the request of any party, to:

      1. a mediator agreed on by the parties; or
      2. if the parties are unable to agree on a mediator within seven (7) days after the referral for mediation, a mediator nominated by the then current President of the Law Society of Western Australia, Inc. or the President's nominee. Any dispute arising in connection with this Agreement which cannot be settled by mediation shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Resolution Institute Australia. During such arbitration, both parties may be legally represented. Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.
    8. Severability:
      If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
    9. Notices:
      Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Cirrus8 must be sent to [email protected] and to [email protected] or to any other email address notified by email to You by Cirrus8. Notices to You will be sent to the email address which You provided when setting up Your access to the Service or the email address of the Subscriber.
    10. 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.
  12. GST
    1. Definitions:

      For the purpose of this clause 12:

      “GST” means GST within the meaning of the GST Act.

      "GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (as amended) or if that Act does not exist for any reason, any other Act imposing or relating to the imposition or administration of a goods and services tax in Australia. Words used in this clause which have a defined meaning in the GST law have the same meaning as in the GST law unless the context otherwise requires.

    2. Adjustment for GST:
      1. Unless expressly included the consideration for any supply made under this Agreement does not include GST.
      2. To the extent that a party makes a taxable supply in connection with this Agreement for consideration, the consideration for that supply is increased by the amount determined by that party, not exceeding the amount of that consideration multiplied by the rate at which GST is imposed in respect of the supply.
      3. If there is an adjustment to the consideration payable in respect of any supply made by a party under or in connection with this Agreement, the amount determined under sub-clause 12.2(b) above shall be adjusted accordingly.
    3. Tax Invoices:
      The party supplying the taxable supply shall provide a Tax Invoice no later than seven (7) days following payment of the GST inclusive consideration determined under sub-clause 12.2 above.