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c8-terms-of-use

cirrus8 Terms of Use

Welcome to cirrus8, an online property accounting and property management software service designed especially for the property industry. 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 cirrus8 provides You with access to the Service.

The cirrus8 Service will evolve over time based on user feedback. 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, effective upon the posting of modified terms and cirrus8 will make every effort to communicate these changes to You via email or notification via the Website or program. 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 03 November 2017.

The significant changes from the previous 2016 edition are:

  • Clarification around billing periods and when billing starts and stops
  • Clarification around changes in licence numbers

These Terms were previously updated on 31 August 2016.

The significant changes from the previous 2012 edition are:

  • Changes to Access conditions regarding user assigned licences
  • Change in Confidentiality and Privacy regarding the publication of company name and logo
  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 from time to time or failing that the fee schedule set out on the Website (which cirrus8 may change from time to time on notice to You).

“cirrus8”
means CIR8 Pty Limited (ACN 610 625 173) which is a company registered in Australia and all current and future global subsidiaries of CIR8 Pty Limited.

“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 unauthorized disclosure by the other party.

“Data”
means any data inputted by You or with Your authority into the Website.

“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. 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

“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 any person or entity, other than the Subscriber, that uses the Service with the authorization of the Subscriber from time to time.

“Service”
means the online property accounting and property management software services made available (as may be changed or updated from time to time by cirrus8) via the Website.

“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.

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

“Website”
means the Internet site at the domain cirrus8.com.au, cirrus8Online’s secure web address or any other site operated by cirrus8.

 

  1. USE OF SOFTWARE

cirrus8 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. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.

  1. 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 determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;
  2. the Subscriber is responsible for all Invited Users’ use of the Service;
  3. 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 or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
  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 Invited User shall have, if any.

 

  1. YOUR OBLIGATIONS

4.1. 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. Thereafter, an invoice for the Access Fee will be issued at the start of each month cirrus8 will continue invoicing You monthly until this Agreement is terminated in accordance with clause 9.

All cirrus8 invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. You must ensure that payment is made by direct debit 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 1% charges per day. You are responsible for payment of all bank charges, taxes and duties in addition to the Access Fee including any dishonour fees.

4.2. 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 are not paid in full by the due date for payment.

4.3. 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 cirrus8 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 warrant that You are authorized 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.

4.4. 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 would first inform You via email to indicate what those charges are likely to be (as 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.

4.5. 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 unauthorized use of Your passwords or any other breach of security and cirrus8 will reset Your password and You must take all other actions that cirrus8 reasonably deems necessary to maintain or enhance the security of cirrus8’s computing systems and networks and Your access to the Services.
  2. Each user licence is assigned to an individual and may only be used by one predetermined individual. New additional user licences can be purchased at a cost with a minimum of one calendar month charge applying. New licences purchased during a month attract the full monthly fee for the month in question.    Access licences can be revoked by providing 7 days written notice to cirrus8, subject to maintaining the minimum number of licences.  Further licences may be issued in respect of individual’s revoked licences no earlier than two months after a revocation.
  3. 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 Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
  • not attempt to gain unauthorized 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;
  1. 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
  2. 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.

4.6. 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. Any such limitations will be specified within the Service.

4.7. Communication Conditions:

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

When You make any communication on the Website, You represent that You are permitted to make such communication. cirrus8 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, cirrus8 does reserve the right to remove any communication at any time in its sole discretion.

You indemnify cirrus8 against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to cirrus8, 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.

  1. CONFIDENTIALITY AND PRIVACY

5.1. 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.

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
  4. is independently developed without access to the Confidential Information.

5.2. Privacy:

cirrus8 maintains a privacy policy that sets out the parties’ obligations in respect of personal information. You should read that policy at http://cirrus8.com.au/privacy-policy/ and You will be taken to have accepted that policy when You accept these Terms.

5.3. Publish cirrus8 users on our website:

Agreeing to these terms allows for the publication of your business name and logo on our public website. If you specifically do not want this to occur, please inform us in writing.

  1. INTELLECTUAL PROPERTY

6.1. General:

Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of cirrus8 (or its licensors).

6.2. 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 cirrus8 Access Fee when due. You grant cirrus8 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.

6.3. Backup of Data:

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 does not make any guarantees that there will be no loss of Data. cirrus8 expressly excludes liability for any loss of Data no matter how caused.

6.4. Third-party applications and your Data.

If You enable third-party applications for use in conjunction with the Services, You acknowledge that cirrus8 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. cirrus8 shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.

  1. WARRANTIES AND ACKNOWLEGEMENTS

7.1. 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.

7.2. Acknowledgement:

You acknowledge that:

 

  1. You are authorized 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 authorized to use the Service. You are also authorized 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).
  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 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:

 

  1. You are responsible for ensuring that You have the right to do so;
  2. You are responsible for authorizing 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 authorization and may refer any requests for information to You to address; and
  • 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 authorization.
  1. The provision of, access to, and use of, the Services is on an “as is” basis and at Your own risk.
  2. 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.
  3. cirrus8 is not Your accountant and use of the Services does not constitute the receipt of accounting advice. If You have any accounting questions, please contact an accountant.
  4. 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.
  5. 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 and the Website will comply with laws applicable to you (including any laws requiring you to retain records).

7.3. 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.

7.4. 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.

  1. LIMITATION OF LIABILITY

8.1. 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 or Website.

8.2       If You suffer loss or damage as a result of cirrus8’s negligence or failure to comply with these Terms, 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.

8.3       If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 9.

8.4       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.

  1. TERMINATION

9.1. Prepaid Subscriptions

cirrus8 will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.

9.2. No-fault termination:

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 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 for the current month during which the notice was given and for the following month in which the 30 day notice expiry falls.

9.3. Breach:

If You:

  1. breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 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 payment of Access Fees that are more than 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:

  1. Terminate this Agreement and Your use of the Services and the Website;
  2. Suspend for any definite or indefinite period of time, Your use of the Services and the Website;
  3. Suspend or terminate access to all or any Data.
  4. Take either of the actions in sub-clauses (d), (e) and (f) of this clause 9.4 in respect of any or all other persons whom You have authorized to have access to Your information or Data.

For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to any of Your Billing Contacts, Billing Plans or any of Your Organizations (as defined at clause 4) is not made in full by the relevant 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.

9.4. 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:

  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 Services and the Website.

9.5. Expiry or termination:

Clauses 4.1, 4.7, 5, 6, 7, 8, 9, 11 and 12 survive the expiry or termination of these Terms.

  1. HELP DESK

10.1. Technical Problems:

In the case of technical problems, You must make all reasonable efforts to investigate and diagnose problems before contacting cirrus8. If You still need technical help, please check the support provided online by cirrus8 on the Website or failing that email us at support@cirrus8.com.au.

10.2. Service availability:

Whilst cirrus8 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.

If for any reason cirrus8 has to interrupt the Services for longer periods than cirrus8 would normally expect, cirrus8 will use reasonable endeavours to publish in advance details of such activity on the Website.

  1. GENERAL

11.1. Entire agreement:

These Terms, together with 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.

11.2. 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.

11.3. 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.

11.4. Force Majeure:

Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement 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.

11.5. No Assignment:

You may not assign, novate or transfer any rights to any other person without cirrus8’s prior written consent.

11.6. 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.

11.7. 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.

11.8. 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:

(a)        a mediator agreed on by the parties; or

(b)        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 Institute of Arbitrators 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. 

11.9. 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.

11.10. 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 support@cirrus8.com.au 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.

11.11. 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.

  1. GST

12.1. 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.

12.2. Adjustment for GST

(a)        Unless expressly included, the consideration for any supply made under this Agreement does not include GST.

(b)        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.

(c)        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.

12.3. 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.

 

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