1. Who these terms apply to
1.1 These Terms of Service are an Agreement between Rise-X and the Customer.
1.2 This Agreement contains the terms and conditions that govern use of the Services.
1.3 Between Rise-X and the Customer, this Agreement takes effect on the earlier of:
- Rise-X accepting an Order from the Customer;
- the Customer using any Service; and
- the Customer clicking any button or checkbox accepting this Agreement or otherwise referring to the terms and conditions applicable to a Service,
"Commencement Date"
1.4 If a person acquires a Service using an email address from their employer or another entity, then:
- that person is deemed to represent such party and binds their employer or that entity to this Agreement, and represents and warrants to Rise-X that they have authority to do so; and
- the “Customer” refers to that person’s employer or that entity.
2. Variations
2.1 Rise-X may vary this Agreement from time to time.
2.2 Where a variation is beneficial to, or does not impose additional obligations on, the Customer then Rise-X may make the variations without notice. In all other cases, Rise-X will provide 30 days notice of variations unless a variation is required by law, or a change in law, in which case Rise-X may give less notice if reasonably required for compliance with law. If the Customer does not agree to the variations then the Customer may terminate its Agreement with Rise-X within 60 days of Rise-X giving notice. The Customer will be liable for all Services supplied up to the date of termination. If the Customer has paid in advance for Service not received then Rise-X will provide a refund of the relevant amounts.
2.3 The current version of this Agreement can be reviewed by clicking on the relevant hypertext link on Rise-X’s Website.
2.4 When Rise-X makes updates to this Agreement, Rise-X will update the date at the top of this page. By using any Service after a new version of this Agreement has been posted on Rise-X’s Website, the Customer agrees to the terms of that new version.
3. Services
3.1 Rise-X agrees to provide, and the Customer agrees to acquire, the Services on the terms and conditions of this Agreement.
3.2 Rise-X grants the Customer a non-exclusive, non- transferable, licence for the Term to use the Services for its own business purposes, subject to the terms of this Agreement.
3.3 The location and method of performing the Services is at Rise-X’s discretion.
3.4 Rise-X is entitled to undertake planned maintenance of the Rise-X Software that will result in the Rise-X Software being unavailable for use by the Customer (Planned Maintenance). Rise-X shall provide the Customer with reasonable advance electronic notice to the Customer of any Planned Maintenance to the Rise-X Software. Rise-X will use all reasonable endeavours so that Planned Maintenance of the Rise-X Software occurs during Rise-X’s Planned Maintenance windows as advised to the Customer from time to time.
4. Trial, Evaluation and Beta Services
4.1 Where Rise-X offers or supplies Services, or features of a Service:
- for trial or evaluation use; or
- as a pre-release or beta version,
(the “TEB Services”) this clause 4 applies.
4.2 Notwithstanding anything in this Agreement or otherwise:
- to the extent permitted by law, the TEB Service is provided on an “AS IS” basis without any representation or warranty or guarantees of any kind. The Customer accepts and uses the TEB Services at the Customer’s own risk;
- the TEB Services may not be continuous, error or fault free. The Customer may experience disruptions and limitations to the TEB Service;
- error and fault correction and any modifications to the Services are at Rise-X’s absolute discretion;
- Rise-X may modify, suspend, limit or terminate the TEB Services at any time, including by varying the features, functionality or description for the TEB Services. No promise is made that a beta version or features of a TEB Service will be made generally available or form part of any official release of the Services; and
- to the maximum extent permitted by applicable law, Rise-X excludes and disclaims all obligations or liabilities with respect to TEB Services, including any support, warranty and indemnity obligations.
5. Term
5.1 This Agreement commences on the Commencement Date and remains in effect until the expiration of the last Service Term, unless terminated in accordance with this Agreement.
6. Customer Requested Variations to the Services
6.1 If the Customer wishes to acquire, or vary, any of the Services, the Customer must submit an Order to Rise-X.
6.2 An Order takes effect on Rise-X’s acceptance of it. Each accepted Order forms part of this Agreement.
7. Rise-X’s Obligations
7.1 Subject to this Agreement, Rise-X will use reasonable care and skill in performing the Services and to the standard generally accepted within the industry, sector or profession in which Rise-X operates for the type of Services provided by Rise-X.
7.2 Due to the nature of software and the Services, Rise-X does not warrant that:
- the operation of the Services will be uninterrupted or error free;
- the Services will be compatible with any application, program or software not specifically identified as compatible by Rise-X from time to time (including new or ceasing of compatibility); or
- any particular outcome may be obtained from use of the Services.
7.3 Without limiting the Customer’s obligations under this Agreement, and allocation of risk and liability in relation to data, Rise-X will implement reasonable and appropriate measures to help secure any Customer data hosted or stored on the Services against accidental or unlawful loss, access or disclosure. If a Rise-X Policy sets out measures relevant to the foregoing then those measures will constitute what is reasonable and appropriate.
7.4 The Services are provided via a common platform to Rise-X Group’s customers. The features and functionality of the Services are as described in the standard documentation for the Services as amended by Rise-X and made available to the Customer from time to time. Standard documentation may be provided as advised by Rise-X from time to time, including in softcopy or online.
7.5 Rise-X is not liable for any failure attributable to:
- any modification to the Services other than by Rise-X;
- accident, abuse or misapplication of Services by the Customer;
- use of the Services with other software or equipment not approved in writing by Rise-X;
- use of other than the latest, unaltered current release of the Services; or
- use other than in accordance with this Agreement.
7.6 If, upon investigation, a problem with the Services is determined not to be Rise-X’s responsibility, Rise-X may invoice the Customer for all reasonable costs and expenses incurred by Rise-X in the course of or in consequence of such investigation.
8. Customer’s Obligations
8.1 The Customer must comply with Rise-X’s Policies.
8.2 The Customer is solely responsible for:
- obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, telecommunications services, networking, web servers and the like (Equipment);
- maintaining the security of the Equipment, the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account or the Equipment with or without the Customer’s knowledge or consent;
- ensuring the confidentiality and security of any account numbers, user ID, passwords, authentication details and personal identification numbers (PIN) used in connection with the Services;
- establishing and maintaining effective security measures to protect the integrity and security of the Services and any data from any unauthorised access, disclosure or use;
- ensuring that the features and functions of the Services meet the Customer’s requirements, including the specific purposes of the Customer;
- the use of the Services including the accuracy, suitability, content and security of any data which is sent or received using the Services and the backing up of that data;
- ensuring that it does not use the Services in a way that could interfere with, degrade or deny service to, impair the use of, or subvert the security or privacy of Rise-X’s services, networks, equipment, data or information or those of another person;
- ensuring that any person involved in the use and operation of the Services are appropriately trained in its use and operation; and
- complying with all applicable laws and not use the Services to commit an offence or to menace or harass any person, or allow anybody else to do so.
8.3 The Customer must not use the Services for any purpose that:
- is unlawful or induces unlawful activity;
- accesses, downloads, transmits, disseminates, stores or posts illegal, abusive, deceptive, obscene, defamatory, offensive, threatening or otherwise inappropriate content or materials, including the promotion of unlawful violence, discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
- could interfere with or infringe the rights of others, including any intellectual property rights or rights to privacy;
- could interfere with, degrade or deny service to, impair the use of, or subvert the security or privacy of the Services, Rise-X’s networks, equipment, data or information, or those of another person; or
- attempts to manipulate or bypass any limitations on the Service by any means.
8.4 The Parties must refrain from doing anything that may bring the name, brand or reputation of the other Party into disrepute, including:
- any form of fraud, bribery, corruption (including money laundering);
- any form of human rights abuse including modern slavery; and
- any failure to comply with Trade Controls.
In this clause 8.4, Trade Controls refers to any trade sanctions, embargoes, export control, or import laws, or other regulations, orders, directives, designations, licences, or decisions relating to the trade of goods, technology, software and services which are imposed, administered or enforced from time to time by Australia, the United States, the United Kingdom, the EU, EU Member States, Switzerland, the United Nations or United Nations Security Council and also includes U.S. antiboycott laws and regulations.
8.5 The Customer must not:
- alter, tamper, reverse engineer, repair or attempt to repair the Services;
- resell or resupply the Services;
- copy, reproduce, disassemble, translate, modify, reverse engineer, adapt, sublicense, lease, sell, transfer, extract or create derivative works of the Services;
- remove or modify any proprietary notices or labels contained in the Services;
- bypass, disable or defeat any feature or function of the Services; or
- change any administration settings on any part of the Services.
8.6 The Services are not intended for, and should not be used by, anyone under the age of 18. The Customer is responsible for ensuring that all users of the Services are at least 18 years old.
8.7 The Customer is responsible for ensuring any Customer Group member, its Personnel or a third party which access or use the Services comply with its obligations in this clause 8. Any use by such a person or party is use by the Customer for the purpose of this clause 8.
8.8 The Customer indemnifies Rise-X against any claim by a third party against Rise-X that relates to the Customer’s use of the Services (including any use by a third party or Customer Material infringes the Intellectual Property rights of the third party) or breach of its obligations under this clause 8.
9. Ownership of Intellectual Property
9.1 The Customer owns all right, title and interest in Customer Material. The Customer grants to Rise-X a non-exclusive, royalty-free licence to use Customer Material solely for the purposes of performing the Services. The licence expires on completion of the relevant Services or the termination or expiration of this Agreement, whichever occurs earlier.
9.2 Rise-X owns all right, title and interest in Rise-X Material.
9.3 Right, title and interest in this clause 9 includes all Intellectual Property.
9.4 The Customer indemnifies Rise-X against any claim by a third party against Rise-X that the Customer’s use of the Services (including any use by a third party) or Customer Material infringes the Intellectual Property rights of the third party.
10. Fees And Invoices
10.1 The Customer will pay Rise-X the Fees for the Services.
10.2 The Fees are payable in the currency set out in this Agreement, including each Order. If no currency is specified then the Fees are payable in United States Dollars.
10.3 Rise-X may vary the Fees by notice to the Customer. Thirty days notice will be given of increases in, or new, Fees.
10.4 Customer agrees that Rise-X may bill Customer’s credit card or other payment method for all Fees. A payment processing fee may be charged in addition to the other Fees payable by the Customer. Where payments are made using a third party payment platform the relevant third party’s terms and conditions, if any, apply to the use of that payment platform (for example, the payment platform provider may have its own terms of service and privacy policy that applies to the Customer’s use of that payment platform and information provided over it).
10.5 If no other time is specified, the Customer must pay Rise-X’s invoices within 14 days of receipt of each invoice (Due Date). All payments must be in clear funds, so that Rise-X receives into its bank account the invoiced amount in full, and without deduction of bank charges, taxes (including withholding taxes), duties or any other charges whatsoever.
10.6 If the Customer in good faith disputes an invoice, the Customer need not pay the disputed amount until the dispute is resolved. The Customer must provide reasons for the dispute. The Customer must pay all undisputed amounts by the Due Date.
10.7 If the Customer does not pay undisputed amounts by the Due Date, Rise-X shall be entitled to do any or all of the following:
- charge interest on the outstanding amount at an annual rate of 9% per year, accruing daily;
- require the Customer to pay, in advance, for the Services (or any part of the Services) which have not yet been performed;
- suspend the performance of the Services (in part or whole) until payment is received in full; and/or
- give notice to the Customer requiring the non-payment to be rectified and if not rectified within 30 days of the date of the notice Rise-X may terminate this Agreement, at Rise-X’s option.
11. Taxes
11.1 The Customer must pay all Taxes on the supply of the Services or incurred by the Rise-X in performing the Services. Unless expressly stated otherwise, the charges for the Services are exclusive of any Taxes.
11.2 Where GST is imposed on a taxable supply made under or in connection with this Agreement and the recipient of that supply receives a tax invoice for that supply, the recipient must pay an additional amount equal to the GST to the supplier (without deduction, withholding, counterclaim or set-off) by the tax invoice due date.
11.3 If one Party is required to indemnify, pay or reimburse another Party (Payee) for any cost, loss or expense, the indemnity or reimbursement payable does not include any amount for which the Payee (or an entity grouped with the Payee for GST purposes) is entitled to an input tax credit, but will be increased in accordance with clause 11.2 if the amount payable is consideration for a taxable supply.
11.4 If the Customer is required by law to make a Tax Deduction from the payment, it must pay an additional amount so that, after making any Tax Deduction, Rise-X receives an amount equal to the payment which would have been due if no Tax Deduction had been required.
12. Confidentiality
12.1 Each Party (Recipient) must keep all of the other Party’s (Discloser) Confidential Information confidential.
12.2 The Recipient may only use the Discloser’s Confidential Information for the purpose of performing its obligations, or receiving the benefit of its rights, under this Agreement.
12.3 A Recipient must not disclose the Discloser’s Confidential Information to any person except:
- to its own Group, officers, employees, contractors, professional advisors and auditors on a ‘need to know’ basis provided those persons first agree to observe the confidentiality of the Confidential Information;
- with the Discloser’s prior written consent;
- if required by law or any stock exchange on which the Recipient or its Group are listed; or
- if it is in the public domain.
12.4 The Confidential Information does not include information which:
- is generally available in the public domain otherwise than as a result of a breach of this clause 12 by the Recipient; or
- was known by the Recipient prior to disclosure under this Agreement and without a duty of confidence.
12.5 The Recipient must destroy physical copies, or delete electronic copies, of Discloser’s Confidential Information promptly upon request by the Discloser. This clause 12 does not apply in respect of any Confidential Information which:
- the Recipient requires to complete the performance of its obligations under this Agreement, in which case the destroy or return obligation applies on completion of such performance;
- the Recipient or its Group is required to retain by law or for their own bona fide record keeping or corporate governance purposes;
- is held by the Recipient’s, or its Group’s, lawyers, accountants or similar advisors, provided those advisors are required to retain (or it is the usual practice for such advisors to retain) that information, for the purposes of any relevant professional standards, practices, codes or insurance policies; or
- the Recipient cannot reasonably destroy or delete Discloser’s Confidential Information (for example Confidential Information which is automatically stored electronically in accordance with the normal practices of the Recipient or its Group as part of its data back-up procedures).
12.6 An obligation of confidence under this clause 12 continues in relation to Confidential Information disclosed to the Recipient until that Confidential Information is in the public domain.
12.7 Each Party acknowledges that, in addition, to any other remedy that may be available in law or equity, the other Party is entitled to interim, interlocutory and permanent injunctions to prevent breach of this clause 12 and to ensure its specific performance.
13. Privacy and Data Use
13.1 The Customer is responsible for obtaining any consents or approvals in relation to privacy and any disclosure or use of data in connection with the Service or this Agreement (Service Data).
13.2 Rise-X may collect, use and disclose Service Data in accordance with the Rise-X Policies.
13.3 The Customer agrees, and must ensure that the Customer Group’s Personnel, and any individuals, who access or use the Services (including in the case of another organisation that organisation and its Personnel) or whose information is disclosed to Rise-X, in connection with this Agreement, are aware that Rise-X may use and disclose information about them in accordance Rise-X’s Privacy Policy, as amended by us from time to time, and available on Rise-X’s Website.
14. Liability
14.1 Subject to clause 14.2, each Party’s liability to the other in tort (including negligence), contract, statute or otherwise for any loss, damage, cost or expense incurred by the other Party is limited, for all claims arising from events occurring during each 12-month period from the Commencement Date of this Agreement, the first such period commencing on the Commencement Date and the second such period commencing on the day after the end of the first 12 month period and so on, to a sum equal to the Fees payable during that 12 month period.
14.2 The limitations on liability in clause 14.1 does not apply to:
- the Customer’s obligation to pay the Fees;
- fraud; or
- an indemnity given by the Customer under this Agreement.
14.3 Notwithstanding anything to the contrary in this Agreement neither Party is liable to the other for any loss of profits, revenue, business opportunities, goodwill, production, likely savings, good will or indirect loss.
14.4 In relation to data (including any data submitted to, used with, hosted on or created by the Services) and liability for any loss, corruption or other damage to such data:
- if the data is, or could have been, backed up by the Customer or a third party, Customer is solely responsible for that data and Rise-X has no liability in relation to that data;
- if that data is incapable of being backed up by the Customer or a third party because it exists solely within the Service and at no time is sent from, or received by, the Service, Rise-X’s liability is limited to restoring the relevant data, to the extent available, from a backup implemented by Rise-X. The nature of that backup, including the frequency of backups and period for which they are held, is as determined by Rise-X from time to time, including as may be set out in any Rise-X Policy. If a backup cannot be used for reasons beyond Rise-X’s reasonable control (for example due to the failure of a third party provider, service or hardware) then Rise-X is not responsible for that failure and any loss, corruption or other damage to such data.
14.5 To the extent it is possible for a party to do so, each party is solely responsible for backing up its own data so that it may be accessed or re-created if corrupted, lost or destroyed.
14.6 Each of the Parties acknowledges that:
- in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement; and
- any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
15. Notices
15.1 All notices and consents must be in writing to the email addresses specified in an Order or as otherwise notified.
15.2 Notices sent by email are deemed to be received at the time of the successful receipt by the recipient (as may be evidenced by, but not limited to, the transmission of an automatic electronic read receipt from, or manual acknowledgment by, the recipient).
16. Suspension of Service
16.1 Rise-X may limit or suspend the provision of any or all Services to the Customer at any time:
- to the extent necessary to ensure the integrity or otherwise protect from harm the Services, platform over which the Services are provided or any user of the Services;
- if any acceptable usage terms under a Rise-X Policy , or clauses 8.3, 8.4 and 8.5, are materially breached and the Customer fails to cure or provide adequate assurances of no further violations within 5 days of having received notice of breach from Rise-X, unless the breach presents a risk of a third party claim or harm to Rise-X, any member of its Group or other users of the platform over which the Services are provided, in which case 24 hours notice will be provided; or
- if the supply or use of the Services is, or is likely to become, unlawful.
16.2 Rise-X will provide the Customer with advance notice where it is possible to do so in the circumstances. If it is not possible to provide such notice, then Rise-X will notify Customer as soon as practicable after exercising Rise-X’s rights.
17. Termination
17.1 Either Party may terminate, by written notice to the other Party this Agreement if:
- the other Party is bankrupt or an administrator, receiver, liquidator or provisional liquidator is appointed to the other Party, or it resolves to enter into any settlement, moratorium or similar arrangement for the benefit of its creditors, or is otherwise unable to pay its debts when they are due; or
- the other Party is in material breach of this Agreement and the defaulting Party fails to rectify the breach within 30 days of notice to do so.
17.2 If this Agreement is terminated:
- the Customer must pay Rise-X for all Fees for Services undertaken, to the date of termination; and
- all rights a Party has accrued before expiry, termination or cancellation continue.
18. Survival
18.1 The following clauses survive termination of this Agreement:
- clause 4 Trial, Evaluation and Beta Services;
- clause 9 Ownership Intellectual Property;
- clause 12 Confidentiality;
- clause 14 Liability; and
- clause 17.2 Termination.
19. Dispute Resolution
19.1 The parties agree to use best endeavours to resolve in good faith any dispute concerning this Agreement. Each party must follow the procedures in this clause 19 before starting court proceedings (except for urgent injunctive or declaratory relief).
19.2 If a dispute arises between the parties that cannot be resolved promptly between the parties respective representatives, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet within 7 days of the notice (or another agreed period) to try and resolve the dispute.
19.3 If the dispute remains unresolved, the Parties must try to resolve it by mediation in Perth, Western Australia. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement within 7 days of receiving any party’s notice of dispute, by a person appointed by the Chair of Resolution Institute, or the Chair’s designated representative. The Resolution Institute Mediation Rules shall apply to the mediation.
20. General
20.1 Subcontracting
Rise-X may use subcontractors. Where Rise-X does so it will ensure that the subcontractor has the necessary skills and resources to perform the work they undertake. Subcontracting does not relieve Rise-X of its obligations under this Agreement.
20.2 Force Majeure
Neither Party shall have any liability under, or be deemed to be in breach of, this Agreement for any breach, delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party (including in Rise-X’s case any outage or failure of a third party service provider to Rise-X used by Rise-X in the supply of the Services). The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
20.3 General Warranties
Each Party warrants and undertakes that it has the power and is duly authorised to enter into, perform and comply with its obligations under this Agreement.
20.4 Assignment
- Subject to clause 20.4(b), neither Party may transfer or assign any or all of its rights or obligations under this Agreement without the prior written agreement of the other Party, not to be unreasonably withheld or delayed.
- A Party may transfer all its rights and obligations under this Agreement to any member of its Group, provided that the transferee has sufficient resources and financial capacity to perform that Party’s obligations and undertakes in writing to the other Party to be bound by the obligations of the transferor under this Agreement.
20.5 Entire Agreement
This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
20.6 Waiver
- No failure or delay by a Party in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
- The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
20.7 Further Assurance
Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement.
20.8 Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
20.9 Law and Jurisdiction
This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in Western Australia, Australia. The Parties submit to the exclusive jurisdiction of the courts of Western Australia.
21. Definitions
In this Agreement unless the context indicates otherwise, the following words shall have the following meanings:
Affiliate means, with respect to a person, any other person directly or indirectly Controlling, Controlled by, or under direct or indirect common Control with, such person.
