TERMS OF SERVICE – NITROBOTS Pty Ltd
Nitrobots Pty Ltd (ACN 627 097 474) (“Nitrobots“, “we” or “us“) offers software (i) as a service via the Nitrobots Platform; or (ii) the Nitrobots website at www.nitrobots.ai (“Website”), or (iii) as a managed service via which can be used by our clients to enable personalised and automated interactions with our clients’ customers and potential customers (collectively the “Services“).
These Terms of Service (Terms) and the terms set out in the Client Order comprise the agreement between Nitrobots and the Client (Agreement) concerning the use of the Services.
These Terms were last updated on 17th December 2019.
Authorised Users means individuals who are authorised by the Client to use the Services pursuant to this Agreement during the Subscription Period and who have been supplied user identifications and passwords by the Client (or by Nitrobots at the Client’s request). Authorised Users may include (a) the Client’s employees; and (b) contractors authorised by the Client.
Client means the client identified in the Order Form.
Client Data means data to which Nitrobots is provided access by the Client for the purpose of the Services.
Confidential Information means information that is by its nature confidential but does not include:
(a) information already known to the receiving party at the time of disclosure by the other party; or
(b) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement.
Effective Date means the date that the Client Order is last signed by the parties as noted in the signature blocks.
Order Form means the Nitrobots order form signed by the parties incorporating these Terms by which the Client purchases the Services provided by Nitrobots subject to these Terms. Each Order Form will describe the Services to be supplied by Nitrobots, the Effective Date, charges and payment terms and any other additional agreed terms and conditions applicable to such Services. Order Forms shall be deemed to be incorporated by reference. The Order Form will identify whether the Nitrobots software is provided as software as a service or as a managed service.
Subscription Term means the period during which the Client is licensed to use the Services under an Order Form. The Subscription Term commences on the Effective Date of the applicable Order Form and ends on the end date set out in the Order Form.
2.1 No modification or variation to the Agreement will be binding on the parties unless first agreed in writing by authorised representatives of the parties.
- The Website
3.1 Nitrobots may from time to time develop patches, bug fixes, updates, upgrades and other modifications in order to add more features and to improve the performance of the Website (“Updates”). Nitrobots shall notify the Client from time to time with respect to major Updates. The Updates shall be subject to the Terms.
3.2 The Client acknowledge and agrees that it:
(a) has examined the Website and ensured that the Website is suitable for its needs; and
(b) is solely responsible for verifying before using the Website the condition of its internet connection – Nitrobots shall not bear any responsibility for damage that may be caused due to the Client’s internet connection problems.
3.3 Nitrobots reserves the rights to change, suspend or discontinue the Website at any time, including the availability of any feature, database, or content.
- Use of Services
4.1 We will provide the Client with the Services as set out in the signed Client Order during the applicable Subscription Term.
4.2 We grant the Client the right to access and use the Services via the Website or Platform in the manner specified on the Client Order. This right is non-exclusive, non-transferable and limited by and subject to these Terms.
4.3 Nitrobots may update or modify the functionality, user interface and other user information or other components of the Services from time to time in its sole discretion but will not materially diminish the functionality of the Service during the Subscription Term for that Service. Nitrobots will use commercially treasonable efforts to notify a Client of any modifications or updates.
4.4 The Client shall ensure that all access and use of the Services by its Authorised Users is in accordance with these Terms and the secure maintenance of log-in credentials for protecting access to the Services. The Client will safeguard and prevent any unauthorised use of the Services and immediately notify Nitrobots in writing of any unauthorised use that comes to the Client’s attention. If there is unauthorised use by anyone who obtained access to the Services directly or indirectly through the Client, the Client will take, at the Client’s sole costs, all steps reasonably necessary to terminate the unauthorised use.
4.5 The Client is responsible for obtaining, maintaining and supporting all internet access, computer hardware and other equipment and Services needed for it to access the Services.
- Unacceptable Activity
5.1 The Client and its Authorised Users will refrain from taking the following actions in relation to the Website and/or Platform:
(a) using the Website and/or Platform in an illegal manner or with the intention to violate any applicable law or in any manner prohibited by these Terms;
(b) making any alteration, modification or changes to the Website and/or Platform;
(c) interfering with the Website or Platform design, source code or any element of the Website or Platform;
(d) using the intellectual property rights of any third party without consent;
(e) removing or obscuring any proprietary notices on the Website or Platform;
(f) attempting to gain unauthorised access to any portion or feature of the Website or Platform, or any other systems or networks connected to the Website or Platform or to any Nitrobots server, or to any of the Services offered on or through the Website or Platform, by hacking, password “mining”, or any other illegitimate means;
(g) using any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy reverse engineer, disassemble, monitor, decompile or otherwise attempt to discover any portion of the Website or Platform or any content, or to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Website or Platform;
(h) probing, scanning or testing the vulnerability of the Website or Platform or any network connected to the Website or Platform, nor breach the security or authentication measures on the Website or Platform or any network connected to the Website or Platform;
(i) using the Website or Platform to distribute copy, reproduce, transmit, publicly display, publish, edit or create derivative works from any content that contains pornographic material, violent expressions, defamation, slander and hate speech, bullying and harassment including content that directly attacks people or shames them based on their race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender, or gender identity, or serious disabilities or diseases or content which incites violence; and
5.2 Nitrobots reserves the right to prevent an Authorised User who has violated any provision of these Terms from using the Services.
5.3 If we allow the Client or any Authorised User to post any information to our Website or Platform, we have the right to take down this information at our sole discretion and without notice.
5.4 We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect a Client’s computer equipment, computer programs, data or other proprietary material due to the Client’s use (or any use by its Authorised Users) of this Website or Platform or to a Client’s (or Authorised User’s) downloading of any material posted on them, or on any Linked Sites (as defined below).
- Intellectual Property
6.1 Unless otherwise indicated, we own or license from third parties all rights, title and interest (including copyright, designs, patents, trade marks and other intellectual property rights) in this Website and Platform and in all of the material (including all text, graphics, logos, audio and software) made available on the Website and Platform (“Content”).
6.2 The Client’s (and any Authorised User’s) use of this Website and Platform and use of and access to any Content does not grant or transfer any rights, title or interest to the Client or its Authorised Users in relation to this Website, Platform or the Content. However we do grant the Client and its Authorised Users a licence to access the Website or Platform (as applicable) and view the Content on the terms and conditions set out in these Terms and, where applicable, as expressly authorised by us and/or our third party licensors.
6.3 The Client and the Authorised User must not make any other use of, or copy or reproduce this Website, Platform or the Content or any part of them, except to the extent permitted by law.
6.4 The Client and its Authorised Users represent and warrant that: (i) with respect to all information they provide to Nitrobots (such as, registration information), they have the full right and authority to provide the information and to allow Nitrobots to use such information to provide services via the Website (and Platform, if applicable) (ii) none of the content they provide that is transmitted, uploaded or otherwise distributed by Nitrobots (or its partners or any third party) through use of the Website and/or Platform will infringe or otherwise conflict with the rights of any third party.
6.5 Nitrobots and its affiliates and licensors and suppliers reserve all rights not granted explicitly in the Terms.
- Linked Sites
8.1 A party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
8.2 A party will not be in breach of clause 8.1 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
8.3 Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party’s Confidential Information.
8.4 Regardless of any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
8.5 This clause will survive the termination of this Agreement.
9.2 The Client agrees to provide any information, and to obtain any consents, relevant to its use of the Services, including those in relation to the collection, use, disclosure and storage of personal information of any individual whose personal information may be included in Client Data.
- General exclusion and operation of laws
10.1 Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this Agreement or protected by law to the extent that such exclusion, restriction or modification would render this Agreement or any provision of this Agreement void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this Agreement or protected by law is excluded.
10.2 The Client acknowledges and agrees that:
(a) prior to entering into this Agreement it has been given a reasonable opportunity to examine and satisfy itself regarding all goods and services which are the subject of this Agreement and that prior to entering into this Agreement it has availed itself of that opportunity;
(b) at no time prior to entering into this Agreement has it relied on the skill or judgment of Nitrobots and that it would be unreasonable for the Client to rely on any such skill or judgment; and
(c) where any acquisition of goods under this Agreement has been made by reference to a sample or demonstration model, prior to entering into this Agreement the Client has been given a reasonable opportunity:
(i) to satisfy itself that the goods correspond with the sample or demonstration model as to quality, state and condition; and
(ii) to examine the sample or demonstration model for any apparent defects, and that it has availed itself of that opportunity.
10.3 Pursuant to s 64A of the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)):
(a) this sub-clause applies in respect of any of the goods or services supplied under this Agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this sub-clause will not apply if the Client establishes that reliance on it would not be fair and reasonable;
(b) liability for breach of a guarantee conferred by the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)), other than those conferred by ss 51–53 of that Law, is limited:
(i) in the case of goods, to any one of the following as determined by Nitrobots:
(A) the replacement of the goods or the supply of equivalent goods; or
(B) the repair of the goods; or
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired;
(ii) in the case of services, to any one of the following as determined by Nitrobots:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
- Liability of Nitrobots
11.1 Except in relation to:
(a) liability for personal injury or death;
(b) liability referred to in the preceding clause; and
(c) liability for Nitrobot’s breach of this Agreement (which Client agrees shall be limited, for all claims in aggregate, to paying an amount equal to the charges paid by the Client applicable to the Order Form in which the first claimed breach occurred),
Nitrobots shall be under no liability to the Client in respect of any loss or damage (including loss of profits, loss of goodwill, loss of data and any special, indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in any way in connection with this Agreement (including in respect of goods or services supplied pursuant to this Agreement).
11.2 Without limiting the following sentence, the Client warrants that it has not relied on any representation made by Nitrobots which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications in any way relating to the Services including catalogues, website or publicity material produced by Nitrobots. The Clients acknowledges that to the extent Nitrobots has made any representation which is not otherwise expressly stated in this Agreement, the Client has been provided with an opportunity to independently verify the accuracy of that representation.
11.3 The Client shall at all times indemnify and hold harmless Nitrobots and its officers, employees, contractors and agents (“those indemnified”) from and against any loss (including legal costs and expenses and liability) incurred or suffered by any of those indemnified arising from any claims against those indemnified where such loss or liability was caused by a breach by the Client of its obligations under this Agreement or any wilful, unlawful or negligent act or omission of the Client.
11.4 In respect of any claim between the parties under or in connection with this Agreement, the parties agree that to the maximum extent permitted by law, this Agreement excludes the operation of any laws which would apportion any liability to Nitrobots which would not have been so apportioned but for such laws.
12.1 Each party may terminate this Agreement and all Order Forms issued hereunder, in whole or in part, in the event the other part commits a material breach of any provision of this Agreement (other than the failure to pay any fees due under this Agreement, which is addressed below) which is not cured within 30 days of written notice from the non-breaching party. A notice of breach of this Agreement shall not constitute a notice of termination under this Agreement. Any notice of termination shall be provided separately. If Nitrobots does not receive any amount due from the Client within 30 days of when the amount becomes overdue, Nitrobots may terminate this Agreement, the Services or any Order Form.
12.2 Nitrobots may immediately terminate this Agreement and all Order Forms issued hereunder, in whole or part, in the event the Client:
(a) assigns or transfers any rights under this Agreement unless Nitrobots has provided its prior written approval; or
(b) subject to sections 415D, 434J and 451E of the Corporations Act, threatens to, or resolves to become, subject to any form of insolvency administration; or ceases or threatens to cease carrying on its business, ceases to conduct its business in the ordinary course, enters into a scheme or arrangement with or for any of its creditors or makes a general assignment for the benefit of its creditors.
12.3 The Agreement and all Order Forms issued hereunder may be terminated, in whole or in part, by mutual written agreement between the parties.
12.4 Neither party will be liable for the consequences of an occurrence of any event beyond its reasonable control.
12.5 Nothing in this clause affects the right of the terminating party to pursue any other remedy available to it at law arising out of the terminating event referred to in this clause 13, subject where applicable to any cap on, or exclusion of, liability set out in this Agreement.
12.6 The Client agrees that on the expiry or termination of this Agreement for any reason, all of its rights in respect of the Services (including the right to access the Website and/or Platform) shall end.
12.7 The provisions of the Agreement that are intended by their nature to survive the termination or expiration of the Agreement shall survive the termination of expiration of the Agreement.
- Dispute Resolution
13.1 If a dispute arises from this Agreement, a party to this Agreement must not commence court or arbitration proceedings relating to the dispute unless that party has participated in mediation in accordance with this clause. This clause does not apply to an application for urgent interlocutory relief.
13.2 A party to this Agreement claiming that a dispute has arisen from the Agreement (the Dispute) must give a written notice specifying the nature of the Dispute (the Notice) to the other party.
13.3 Any mediation shall be held in Sydney before one mediator mutually agreeable to the parties in accordance with the Mediation Rules of The Law Society of New South Wales. If the parties are unable to appoint a mediator within seven (7) days of one party giving Notice, the parties agree that the President of The Law Society of New South Wales will appoint the mediator.
13.4 If the matter has not been settled by mediation within thirty (30) days of the date of the appointment of the mediator, the matter shall be referred to arbitration before a single arbitrator pursuant to the Australian Disputes Centre Guidelines for Commercial Mediation. Such arbitration shall take place in Sydney, Australia.
14.1 If any part of the Agreement is unenforceable (including any provision in which we exclude our liability to the Client) the enforceability of any other part of the Agreement will not be affected and all other clauses remain in full force and effect. So far as possible where any clause/sub-clause or part of a clause/sub-clause can be severed to render the remaining part valid, the clause must be interpreted accordingly.
- Applicable Law and Jurisdiction
15.1 This Agreement is governed by the laws of New South Wales. The courts of New South Wales have non-exclusive jurisdiction over any claim or matter which might arise out of or in connection with this Agreement.
16.1 In the event of any inconsistency between the Terms and an Order Form, the Order Form shall take precedence.
- Entire Agreement
17.1 This Agreement, including the Order Forms:
(a) states all the express terms of the agreement between the parties in respect of its subject matter; and
(b) supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.