(optional `mail` adds an email line) // { ol: [...] } -> ordered list // { ul: [...] } -> unordered list const LEGAL = [ { id: 'terms', title: 'Terms & Conditions', updated: 'Last updated 6 May 2024', collapsible: true, blocks: [ { p: 'These Standard Terms and Conditions (Terms), together with any Proposal and Managed Services Agreement, collectively form the agreement under which Iware Consulting Pty Ltd as trustee for the Planetiware Trust ABN 11 569 240 443 (‘Planetiware’), provides Services to you or the company which you represent (the ‘Client’).' }, { p: 'The Proposal and Managed Services Agreement (MSA) provides the particulars that will apply when interpreting these Terms, and collectively they form this Agreement. Once accepted, these Terms will apply to all future Proposals agreed to between the parties without needing to be accepted again.' }, { p: 'All capitalised terms used and defined in the Proposal and MSA have the same meaning when used in these Terms, unless a definition is otherwise provided in these Terms (indicated by the bolded word in brackets after the meaning is provided).' }, { p: 'The Client will be taken to have accepted these Terms, the Proposal and the MSA if the Client accepts a Proposal, or if the Client orders, accepts or pays for any services provided by Planetiware after receiving or becoming aware of these Terms or a Proposal.' }, { h: '1 Introduction' }, { h4: '1.1 Defined terms' }, { p: 'Capitalised words and phrases used in these terms and conditions have the meaning given:' }, { ol: [ 'to that word or phrase in a Proposal or MSA;', 'by the word immediately preceding any bolded and bracketed word(s) or phrase(s); or', 'in the definitions in clause 16 of this agreement.', ] }, { h4: '1.2 Order of precedence' }, { p: 'Unless otherwise expressly stated, in the event of any inconsistency between these terms and conditions and a Proposal or MSA, these terms and conditions will prevail to the extent of such inconsistency.' }, { h: '2 Duration of this agreement' }, { p: '(a) This agreement commences on the Start Date and will continue for the Initial Term set out in a Proposal, and any Renewal Term pursuant to clause 2(b), unless terminated earlier in accordance with its terms (the Term).' }, { p: '(b) Upon expiration of the Initial Term, this agreement will automatically renew for successive terms, each being the same length as the Initial Term, (each a Renewal Term), unless either party provides notice that the agreement will not automatically renew with ninety (90) days’ notice prior to the expiration of the Initial Term or the then-current Renewal Term.' }, { h: '3 The services' }, { h4: '3.1 Scope of services' }, { p: '(a) Planetiware will perform the Services in accordance with this clause 3 and the scope of services set out in a Proposal (Services), including, as applicable, any Professional Services, Support Services, Hosted Services and Licensed Software Licences set out in a Proposal.' }, { p: '(b) The Services do not include the specific exclusions set out in the MSA and any other activities that are not expressly stated as included in accordance with clause 3.1(a) (Excluded Services).' }, { p: '(c) If any Excluded Services are required by the Client from time to time in Planetiware’s reasonable opinion (Additional Services) the parties will follow the process set out in the MSA.' }, { h4: '3.2 Number of users' }, { p: '(a) The Services are (where applicable) limited to the Number of Users as set out in a Proposal.' }, { p: '(b) During the Term, the Client may request in writing for Planetiware to onboard and provide the Services to new User(s) (Increase Request). Upon receipt of the Increase Request, Planetiware will, as soon as practicable, perform the onboarding and relevant Services for the number of Users as set out in the Increase Request (Onboarding).' }, { p: '(c) The Client acknowledges and agrees that the fees applicable for each new User as set out in an Increase Request will be prorated and payable at the beginning of the month immediately following completion of the Onboarding, and continue thereafter until otherwise terminated in accordance with this agreement.' }, { h4: '3.3 Infrastructure recommendations' }, { p: 'The Client acknowledges and agrees that any information or recommendations provided to the Client in relation to the Client’s IT System in the course of providing the Services is based on the information provided by the Client to Planetiware and Planetiware’s knowledge of current best practice and technological developments; the Client must make its own assessments of its business requirements and infrastructure needs; and the Client must ensure that it complies with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.' }, { h4: '3.4 Software licences & terms and conditions' }, { p: '(a) The Client acknowledges and agrees that third party terms & conditions may apply to any part of the Services, including the Client’s Software and the Hosted Services as further described in clause 4.2 (Third Party Terms).' }, { p: '(b) Provided that Planetiware has notified the Client of such Third Party Terms and provided the Client with a copy of those terms, the Client agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Client or Planetiware acquires as part of providing the goods or services, and Planetiware will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.' }, { p: '(c) The Client has the right to reject any Third Party Terms. If the Client rejects the Third Party Terms, the Client acknowledges and agrees that this may affect Planetiware’s ability to provide the Services and clause 12.1 may apply.' }, { h4: '3.5 Autonomy and discretion' }, { p: 'Planetiware will have absolute control and discretion over working times, methods, and decision making in relation to the provision of the Services. Planetiware will be responsive to the reasonable needs and concerns of the Client.' }, { h4: '3.6 Subcontracts' }, { p: 'The Client acknowledges and agrees that Planetiware may, in its absolute discretion and without further notice to or approval from the Client, subcontract any part of the Services. Planetiware will be responsible for any subcontractors’ performance of the Services.' }, { h: '4 Specific service provisions' }, { h4: '4.1 Support services' }, { p: 'If a Proposal states that Support Services apply, Planetiware will provide Support Services in accordance with the MSA or as otherwise agreed in writing.' }, { h4: '4.2 Hosted services' }, { p: 'This clause 4.2 applies if a Proposal states that Hosted Services apply.' }, { p: '(a) (hosting provider) Planetiware uses third party providers to provide the Hosting Services. The Client acknowledges and agrees that those third party providers are wholly responsible for the quality of the Hosting Services and the terms and conditions of third party providers apply to the Hosting Services. Accordingly, Planetiware does not guarantee that the Hosting Services will be free from errors or defects, or that the Hosting Services will be accessible or available at all times.' }, { p: '(b) (hosting location) The Client acknowledges and agrees that Planetiware uses storage servers to host the Solution that may be located outside Australia.' }, { p: '(c) (security) Planetiware will use its best efforts to ensure that the Client’s website, application or other information or data (Client Data) is stored securely. However, Planetiware does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.' }, { p: '(d) (backups & disaster recovery) Planetiware will use its best efforts to create scheduled daily backups of Client Data stored by Planetiware. In the event that Client Data is lost due to a system failure (e.g. a database or webserver crash), Planetiware will attempt to restore the Client Data from the latest available backup, but cannot guarantee that this backup will be free from errors or defects.' }, { p: '(e) (troubleshooting) The Hosted Services do not include troubleshooting or fixing application or data-based failures and additional fees may apply for these sorts of services.' }, { h4: '4.3 Monitoring and security services' }, { p: 'Unless otherwise agreed in writing, this clause 4.3 applies if a Proposal states that the Services include Monitoring and Security Services.' }, { p: '(a) The Client acknowledges and agrees that Planetiware may install and use remote access Software to access the Client’s IT System in order to perform the Monitoring and Security Services; the specific inclusions of the Monitoring and Security Services will be limited to the scope set out in a Proposal; and the Monitoring and Security Services may be performed using third party Software.' }, { p: '(b) The Client acknowledges that Planetiware cannot guarantee that the Monitoring and Security Services will detect and prevent all issues and prevent breaches of security.' }, { h4: '4.4 Supply of licensed software' }, { p: 'If the Services involve Planetiware supplying the Client with a Licensed Software Licence, the following terms apply unless otherwise specifically agreed in writing.' }, { p: '(a) Planetiware will provide the Client with the Licensed Software and its Documentation (where provided by the licensor of that software).' }, { p: '(b) The Client acknowledges that Planetiware is a reseller of the Licensed Software Licence.' }, { p: '(c) The Licensed Software is licensed to the Client directly by the relevant licensor of that Licensed Software according to the terms of the Licensed Software Licence.' }, { p: '(d) Planetiware is not liable to the Client for the performance of the Licensed Software. The Client’s rights in respect of the Licensed Software are as set out in the Licensed Software Licence. Planetiware is not responsible for installing the Licensed Software unless the Client has agreed to purchase the Licensed Software Installation Service for that Licensed Software.' }, { h: '5 Client data roles and responsibilities' }, { h4: '5.1 Obligations' }, { p: '(a) Planetiware will establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of the Client Data. The Client must not, and must ensure that its personnel do not, undertake any action that may have the potential to compromise Planetiware’s ability to comply with this clause.' }, { p: '(b) Planetiware will not make any undocumented, unreported or unauthorised configuration changes to Planetiware’s systems or to the information security controls that secure the Client Data, if those changes would materially decrease the protections afforded to the Client Data.' }, { h4: '5.2 Data breach' }, { p: '(a) The Client or Planetiware (as the case may be) will immediately notify the other party after learning of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or Personal Information or other compromise of the security, confidentiality, or integrity of Confidential Information or Personal Information (collectively, Security Breaches).' }, { p: '(b) The Client must take all steps necessary to ensure that data integrity is maintained if the IT System crashes, suffers a power surge or is otherwise compromised, including by immediately notifying Planetiware and following any directions given by Planetiware.' }, { p: '(c) The Client will be solely responsible for any obligations in relation to any Notifiable Data Breaches and the Office of the Australian Information Commissioner.' }, { h: '6 General client obligations' }, { h4: '6.1 Provide information' }, { p: 'The Client must provide Planetiware with all documentation, information and assistance reasonably required by Planetiware to perform the Services.' }, { h4: '6.2 Access' }, { p: 'The Client agrees to provide Planetiware with access to the Client’s premises and personnel, to the extent required to perform the Services; the Client’s website (but only where Planetiware is providing Services that involve making updates or changes to the Client’s website); and any other third party or other accounts used by the Client (including login details and passwords), as reasonably required by Planetiware to perform the Services.' }, { h4: '6.3 Specified configuration and software' }, { p: '(a) The Client must maintain the Client’s hardware, Software licences and internet connection as necessary for Planetiware to perform the Services.' }, { p: '(b) The Client must, and must ensure that its personnel, comply with all Software licences. Unless permitted by the relevant Software licence, the Client must not attempt to circumvent any technological protection mechanism or other security features of any Software.' }, { p: '(c) Planetiware will not be responsible for any access or performance related issues arising out of or in connection with the Client’s failure to comply with this clause 6.3.' }, { h4: '6.4 Service requests' }, { p: '(a) To lodge a Service Request, the Client must lodge a request through Planetiware’s IT Support Team via the Planetiware Support Portal (Portal.planetiware.com), email (support@planetiware.com) or phone (02 9199 8520).' }, { p: '(b) The Client acknowledges and agrees that Critical and High Priority Service Requests (as set out in the MSA) must be lodged via phone only, otherwise the Response Time Guarantee will only be applicable at the Medium priority level; and if you do not follow the process set out in this clause, Planetiware does not guarantee that it will meet any Response Time guarantees for the Support Services.' }, { h4: '6.5 Compliance with laws' }, { p: 'The Client agrees that it will not, by receiving or requesting the Services, breach any applicable laws, rules and regulations (including any applicable privacy laws); or infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.' }, { h: '7 Fees and payment' }, { h4: '7.1 Fees' }, { p: '(a) The Client must pay the Fees in the amounts, and at the times, set out in a Proposal or as otherwise agreed in writing.' }, { p: '(b) Unless otherwise agreed in writing: the Monthly Fixed Fee IT Remote Support Services fees are payable monthly in advance by direct debit (Monthly Fees); and the Prepaid Hour fees are payable in pre-paid blocks in advance and (to the maximum extent permitted by law) are non-refundable once purchased.' }, { p: '(c) Planetiware will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees by the time(s) specified and in accordance with the remittance method set out in an invoice.' }, { p: '(d) The Client must pay for the Services that Planetiware agrees to provide regardless of whether the Services are utilised. If the Client does not provide Planetiware with the necessary materials or information for Planetiware to deliver the Services, the Client is still liable to Planetiware for full payment.' }, { p: '(e) To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth) any Fees paid in accordance with this agreement are non-refundable.' }, { h4: '7.2 Billing methods' }, { p: '(a) Support Services are billed in 0.25 hour increments with a minimum of 0.5 hour units. The Support Services are charged at Planetiware’s standard consulting rate as set out in the MSA.' }, { p: '(b) Project Services are billed in 0.25 day increments and are charged at Planetiware’s standard daily rate set out in the MSA. There are 8 hours in a standard day.' }, { p: '(c) Any Project Services that are performed outside of Business Hours will be charged at the After Hours Support Rate per hour, multiplied by the standard daily rate as set out in the MSA.' }, { p: '(d) All Onsite Support visits are chargeable, with a minimum charge of a 1 hour unit. The Onsite Support shall be charged at the standard rates as set out in the MSA.' }, { p: '(e) A Proposal may include Prepaid Hours, in which case the Prepaid Hours are available for purchase in 5, 10, 50 or 100 hour blocks; and Prepaid Hours will expire after the time period as set out in the MSA.' }, { p: '(f) All phone and remote support are billed against the Prepaid Hours in 0.25 hour units.' }, { h4: '7.3 Fee increases' }, { p: '(a) Planetiware may, in its absolute discretion on commencement of each Renewal Term, increase the Fees upon giving the Client at least 30 days’ written notice prior to the date on which the increase is to take effect.' }, { p: '(b) In the event that the Client does not agree to the increased Fees, it must give Planetiware written notice within 14 days of the date the Client receives notice of the increase rejecting the increase. If the parties cannot agree on the increase to the Fees, either party may terminate this agreement in accordance with clause 12.' }, { p: '(c) In the event that the Client accepts the increase or does not respond within the 14 day notice period, the Client will be deemed to have accepted the increase to the Fees.' }, { h4: '7.4 Suspension of services' }, { p: 'Planetiware reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees (including Monthly Fees) in the amounts and times specified in a Proposal or invoice.' }, { h4: '7.5 Expenses' }, { p: 'Unless otherwise agreed in writing, the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Planetiware in connection with a Proposal; and any third party costs incurred by Planetiware in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in a Proposal.' }, { h4: '7.6 GST' }, { p: 'Unless otherwise indicated, amounts stated in a Proposal do not include GST. In relation to any GST payable for a taxable supply by Planetiware, the Client must pay the GST subject to Planetiware providing a tax invoice.' }, { h4: '7.7 Card surcharges' }, { p: 'Planetiware reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).' }, { h4: '7.8 Payment methods' }, { p: 'Planetiware may use third-party payment providers (Payment Providers) to collect Fees. The processing of payments by the Payment Provider will be, in addition to these terms, subject to the terms, conditions and privacy policies of the Payment Provider and Planetiware is not liable for the security or performance of the Payment Provider. Planetiware reserves the right to correct, or to instruct its Payment Provider to correct, any errors or mistakes in collecting the Client’s payment.' }, { h4: '7.9 Direct debit' }, { p: 'If an invoice or a Proposal states that the Fees, or any part of the Fees, are to be paid using direct debit (DD), the Client authorises direct debit in line with a separate DD Authorisation Form and any DD agreement of the Payment Provider (as applicable); authorises Planetiware to charge the Client’s bank account or credit card in line with any DD Authorisation Form and any DD agreement; must ensure that there are sufficient funds available in the Client’s account to allow the Payment Provider to debit the amount payable; and acknowledges and agrees that there may be additional payments required from the Payment Provider if the Client misses or fails to make any payment. These terms are separate and in addition to this agreement.' }, { h: '8 Confidentiality and privacy' }, { h4: '8.1 Privacy' }, { p: '(a) The parties must comply with, if applicable, their respective obligations under the Privacy Act 1988 (Cth); and Planetiware’s privacy policy as in force from time to time.' }, { p: '(b) Planetiware will keep the Client informed of any changes to Planetiware’s Privacy policy during the term.' }, { h4: '8.2 Confidential information' }, { p: 'The parties will not, during or at any time after the Term, disclose Confidential Information directly or indirectly to any third party except with the other party’s prior written consent; as required by Law; or to their Personnel on a need to know basis for the purposes of performing its obligations under this agreement (Additional Disclosees).' }, { h4: '8.3 Breach' }, { p: 'If either party becomes aware of a suspected or actual breach of clause 8.2 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach. The parties agree that damages may not be a sufficient remedy for a breach of this clause 8.2.' }, { h4: '8.4 Permitted use' }, { p: 'A party may only use the Confidential Information of the other party for the purposes of exercising its rights or performing its obligations under this agreement.' }, { h4: '8.5 Return' }, { p: 'On termination or expiration of this agreement, each party must immediately return to the other party, or (if requested by the other party) destroy, any documents or other Material in its possession or control containing Confidential Information of the other party.' }, { h4: '8.6 Additional disclosees' }, { p: 'Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 8.6. Each party will, when requested by the other party, arrange for an Additional Disclosee to execute a document in a form reasonably required by the other party to protect Confidential Information.' }, { h: '9 Intellectual property' }, { h4: '9.1 Definitions' }, { p: 'In this clause: Existing Material means Material, other than New Material; New Material means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement; and Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.' }, { h4: '9.2 Existing material' }, { p: '(a) Each party retains ownership of Intellectual Property Rights in its Existing Material and nothing in this agreement transfers ownership or assigns any Intellectual Property Rights in Existing Material of a party to the other party.' }, { p: '(b) The Client grants to Planetiware (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.' }, { p: '(c) The Client warrants that Planetiware’s use of the Client’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify Planetiware from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.' }, { p: '(d) Planetiware grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material, to the extent such Existing Material is incorporated into the New Material and such use is reasonably required for the Client to enjoy the benefit of the Services.' }, { h4: '9.3 New material' }, { p: '(a) Unless otherwise stated in a Proposal, Intellectual Property Rights in New Material are immediately assigned to and vest in Planetiware as those rights are created.' }, { p: '(b) Planetiware grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use the New Material to the extent such use is reasonably required for the Client to enjoy the benefit of the Services.' }, { h: '10 Warranties and liability' }, { h4: '10.1 Warranties' }, { p: '(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.' }, { p: '(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.' }, { h4: '10.2 Liability' }, { p: '(a) (Liability) To the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Client to Planetiware in the 6 months preceding the date of the event giving rise to the relevant liability.' }, { p: '(b) (Indemnity) Each party agrees to indemnify the other party and its employees, contractors and agents (those indemnified) from and against any loss or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the other party’s employees’, clients’, contractors’ or agents’ breach of any of these terms; breach of any third party intellectual property rights; or negligent, wilful, fraudulent or criminal act or omission.' }, { p: '(c) (Consequential loss) To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by Planetiware, except in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).' }, { h: '11 If the parties have a dispute' }, { p: '(a) If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.' }, { p: '(b) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).' }, { p: '(c) The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.' }, { p: '(d) If mediation does not resolve the issue, the parties must, if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.' }, { p: '(e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).' }, { p: '(f) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.' }, { p: '(g) The process in this clause does not apply where a party requires an urgent injunction.' }, { h: '12 Termination' }, { h4: '12.1 Termination for convenience' }, { p: '(a) Either party may end this agreement for no reason, by providing notice to the other party.' }, { p: '(b) This agreement will end 30 days after the day the notice is sent (the End Date).' }, { p: '(c) On termination of this agreement (for whatever reason), Planetiware reserves the right to charge the Client reasonable fees for the handover of services to another provider (Handover Charge). Planetiware will calculate the Handover Charge based on its standard rates.' }, { p: '(d) On the End Date, Planetiware will provide an invoice to the Client for any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables); any pre-approved third party costs Planetiware has incurred on the Client’s behalf up to the End Date; any applicable Handover Charge; and, if terminated by the Client, Planetiware’s pre-estimated genuine losses as a result of the Client ending this agreement, being the number of months remaining in the Term, multiplied by the monthly fees (together, the Outstanding Amounts).' }, { p: '(e) The Client will pay the Outstanding Amounts to Planetiware on the End Date, unless otherwise agreed in a written payment plan between the parties.' }, { p: '(f) Once the Outstanding Amounts have been paid, Planetiware will hand over any completed deliverables.' }, { p: '(g) If Planetiware terminates this agreement pursuant to this clause, Planetiware will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.' }, { h4: '12.2 Termination for breach' }, { p: '(a) If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.' }, { p: '(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.' }, { p: '(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).' }, { p: '(d) After the Rectification Period, the Notifying Party will, if the Breach has been successfully rectified, notify the other party that the agreement will continue; or if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).' }, { p: '(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.' }, { p: '(f) Any disputes regarding termination under this clause must be dealt with in accordance with clause 11. The indemnities, warranties and liability caps in clause 10.2 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 12.1 will not limit or otherwise affect Planetiware’s rights under this agreement, at law or otherwise in equity; Planetiware’s losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.' }, { h4: '12.3 Other consequences for termination' }, { p: 'If this agreement ends, in addition to the specific consequences set out in clause 12.1 or 12.2 (as applicable), the parties will return all property and Confidential Information to the other party; comply with all obligations that are by their nature intended to survive the end of this agreement; and stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 9.' }, { h: '13 Force majeure' }, { p: '(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire; strike or other industrial action; war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or decision of a government authority in relation to COVID-19, or other epidemic or pandemic, to the extent the occurrence affects the Affected Party’s ability to perform the obligation.' }, { p: '(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of reasonable details of the Force Majeure Event; and so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.' }, { p: '(c) Subject to compliance with clause 13(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.' }, { p: '(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.' }, { h: '14 Notices' }, { p: '(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in a Proposal and the email’s subject heading must refer to the name and date of this agreement.' }, { p: '(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.' }, { p: '(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.' }, { h: '15 General' }, { h4: '15.1 Relationship' }, { p: 'In providing the Services under this Agreement it is expressly agreed that Planetiware is acting as an independent contractor and not as an employee. The parties agree that this Agreement does not create a partnership or joint venture between them.' }, { h4: '15.2 Governing law and jurisdiction' }, { p: 'This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.' }, { h4: '15.3 Business days' }, { p: 'If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.' }, { h4: '15.4 Amendments' }, { p: 'This agreement may only be amended in accordance with a written agreement between the parties.' }, { h4: '15.5 Waiver' }, { p: 'No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.' }, { h4: '15.6 Severance' }, { p: 'Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.' }, { h4: '15.7 Joint and several liability' }, { p: 'An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.' }, { h4: '15.8 Assignment & novation' }, { p: 'A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.' }, { h4: '15.9 Counterparts' }, { p: 'This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.' }, { h4: '15.10 Costs' }, { p: 'Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.' }, { h4: '15.11 Entire agreement' }, { p: 'This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.' }, { h4: '15.12 Interpretation' }, { p: 'In this agreement: words in the singular include the plural (and vice versa); a reference to $ or “dollar” is to Australian currency; words indicating a gender include the corresponding words of any other gender; if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning; a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity; a reference to a party includes that party’s executors, administrators, successors and permitted assigns; a reference to a document is to that document as varied, novated, ratified or replaced from time to time; headings and words in bold type are for convenience only and do not affect interpretation; the word “includes” and similar words is not a word of limitation; and no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.' }, { h: '16 Definitions' }, { p: 'In these terms and conditions, the following words and phrases have the following meaning:' }, { ul: [ 'Additional Services — has the meaning given in clause 3.1(c).', 'Additional Services Fees — means any amounts payable for the performance of Additional Services.', 'After Hours Support Rate — means the rate for after hours support, as set out in the MSA.', 'Approved Hardware — means the approved hardware as set out in the MSA.', 'Approved Software — means the approved software as set out in the MSA.', 'Business Day — a day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Sydney.', 'Business Hours — the hours between 9:00 AM and 5:00 PM Sydney time on a Business Day.', 'Client Data — means any data that contains Confidential Information or Personal Information relating to the Client’s business which Planetiware manages under this agreement.', 'Confidential Information — means information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge.', 'Fees — means the fees payable by the Client for the Services, as set out in a Proposal.', 'Hosted Services — means the activities described in clause 4.2 (if applicable in accordance with a Proposal).', 'Initial Term — means the initial term as set out in a Proposal.', 'Intellectual Property Rights — means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trademarks, designs, patents, moral rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.', 'IT System — means the Client’s hardware, Software, data communications lines, network and telecommunications equipment and internet-related IT infrastructure, including computers, laptops and phones.', 'Monthly Fixed Fee IT Remote Support Services — means the fixed fee managed services as set out in a Proposal.', 'Number of Users — means the number of users set out in a Proposal.', 'Onsite Support — means any Services (including Support Services) provided by Planetiware at the Client’s premises.', 'Prepaid Hours — means the block of prepaid hours for Services, as agreed in a Proposal.', 'Project Services — means the project services described in a Proposal.', 'Proposal — means any agreement, quotation or order under which Planetiware is to provide Services to the Client.', 'Services — has the meaning given in clause 3.1(a).', 'Service Request — means any request for work that you ask Planetiware to perform in accordance with clause 6.4.', 'Software — means any programs, applications and other operating information licensed to the Client from third party providers and installed on the Client’s IT System.', 'Start Date — means the date set out in a Proposal.', 'Support Services — means the support services described in a Proposal and set out in the MSA.', 'Third Party Terms — has the meaning given in clause 3.4(a).', 'Term — has the meaning given in clause 2(a).', ] }, ], }, { id: 'privacy', title: 'Privacy Policy', updated: 'Last updated 14 December 2023', collapsible: true, blocks: [ { h: '1 Introduction' }, { p: 'This document sets out the privacy policy of Iware Consulting Pty Ltd as trustee for the Planetiware Trust ABN 11 569 240 443 (referred to in this privacy policy as ‘we’, ‘us’, or ‘our’).' }, { p: 'We take our privacy obligations seriously and we’ve created this privacy policy to explain how we store, maintain, use and disclose personal information.' }, { p: 'By providing personal information to us, you consent to our storage, maintenance, use and disclosing of personal information in accordance with this privacy policy.' }, { p: 'We may change this privacy policy from time to time by posting an updated copy on our website and we encourage you to check our website regularly to ensure that you are aware of our most current privacy policy.' }, { h: '2 Types of personal information we collect' }, { p: 'The personal information we collect may include the following:' }, { ol: [ 'name;', 'mailing or street address;', 'email address;', 'telephone number and other contact details;', 'credit card or other payment information;', 'information about your business or personal circumstances;', 'information in connection with client surveys, questionnaires and promotions;', 'your device identity and type, I.P. address, geo-location information, page view statistics, advertising data and standard web log information;', 'information about third parties; and', 'any other information provided by you to us via our website or our online presence, or otherwise required by us or provided by you.', ] }, { h: '3 How we collect personal information' }, { p: 'We may collect personal information either directly from you, or from third parties, including where you:' }, { ol: [ 'contact us through our website;', 'receive goods or services from us;', 'submit any of our online sign up forms;', 'communicate with us via email, telephone, SMS, social applications (such as LinkedIn or Facebook) or otherwise;', 'interact with our website, social applications, services, content and advertising; and', 'invest in our business or enquire as to a potential purchase in our business.', ] }, { p: 'We may also collect personal information from you when you use or access our website or our social media pages. This may be done through use of web analytics tools, ‘cookies’ or other similar tracking technologies that allow us to track and analyse your website usage. Cookies are small files that store information on your computer, mobile phone or other device and enable and allow the creator of the cookie to identify when you visit different websites. If you do not wish information to be stored as a cookie, you can disable cookies in your web browser.' }, { p: 'We may use Google Analytics to collect and process data, including when you use third party websites or apps.' }, { h: '4 Use of your personal information' }, { p: 'We collect and use personal information for the following purposes:' }, { ol: [ 'to provide goods, services or information to you;', 'for record keeping and administrative purposes;', 'to provide information about you to our contractors, employees, consultants, agents or other third parties for the purpose of providing goods or services to you;', 'to improve and optimise our service offering and customer experience;', 'to comply with our legal obligations, resolve disputes or enforce our agreements with third parties;', 'to send you marketing and promotional messages and other information that may be of interest to you and for the purpose of direct marketing (in accordance with the Spam Act). In this regard, we may use email, SMS, social media or mail to send you direct marketing communications. You can opt out of receiving marketing materials from us by using the opt-out facility provided (e.g. an unsubscribe link);', 'to send you administrative messages, reminders, notices, updates, security alerts, and other information requested by you; and', 'to consider an application of employment from you.', ] }, { p: 'We may disclose your personal information to cloud-providers, contractors and other third parties located inside or outside of Australia. If we do so, we will take reasonable steps to ensure that any overseas recipient deals with such personal information in a manner consistent with how we deal with it.' }, { h: '5 Security' }, { p: 'We take reasonable steps to ensure your personal information is secure and protected from misuse or unauthorised access. Our information technology systems are password protected, and we use a range of administrative and technical measures to protect these systems. However, we cannot guarantee the security of your personal information.' }, { h: '6 Links' }, { p: 'Our website may contain links to other websites. Those links are provided for convenience and may not remain current or be maintained. We are not responsible for the privacy practices of those linked websites and we suggest you review the privacy policies of those websites before using them.' }, { h: '7 Requesting access or correcting your personal information' }, { p: 'If you wish to request access to the personal information we hold about you, please contact us using the contact details set out below including your name and contact details. We may need to verify your identity before providing you with your personal information. In some cases, we may be unable to provide you with access to all your personal information and where this occurs, we will explain why. We will deal with all requests for access to personal information within a reasonable timeframe.' }, { p: 'If you think that any personal information we hold about you is inaccurate, please contact us using the contact details set out below and we will take reasonable steps to ensure that it is corrected.' }, { h: '8 Complaints' }, { p: 'If you wish to complain about how we handle your personal information held by us, please contact us using the details set out below including your name and contact details. We will investigate your complaint promptly and respond to you within a reasonable timeframe.' }, { h: '9 Contact us' }, { p: 'For further information about our privacy policy or practices, or to access or correct your personal information, or make a complaint, please contact us using the details set out below:' }, { p: 'Name: Privacy Officer', mail: 'privacy@planetiware.com' }, ], }, { id: 'datto-terms', title: 'Datto Terms & Conditions', updated: '', collapsible: true, blocks: [ { h: 'Definitions and interpretation' }, { ul: [ '“Datto” means Datto Inc. and/or its affiliates.', '“Datto Hardware” means the hardware that is provided pursuant to the Proposal.', '“Datto Software” means the software that is provided pursuant to the Proposal.', '“Datto Solution” means the Datto Hardware and Datto Software.', '“Proposal” means the quotation and proposal for the supply of the Datto Solution.', '“We” means Planetiware, its employees, agents and third party contractors, including Datto Inc. and its affiliates.', '“You” means the recipient of the Datto Solution.', ] }, { h: 'Standard Limited Hardware Warranty' }, { p: 'New Datto Hardware is warranted against defects in materials and workmanship under normal use, handling and installation for a period of three years from the date of manufacture, regardless of the date of actual activation. The warranty does not extend to or include any third party components or software. We will at our option and expense (and as the sole remedy for breach of this warranty) arrange to either (i) repair the Datto Hardware using new or refurbished parts that are equivalent to new in performance and reliability; (ii) replace the Datto Hardware or any defective component with hardware or a component that is new or formed from new and/or refurbished parts that are equivalent to new in performance and reliability; or (iii) issue a credit for the Datto Hardware found by us to be defective during the warranty period. All warranty claims must be received by us within the warranty period. Exclusions from Warranty — This warranty does not cover Datto Hardware that have defects or failures resulting from:' }, { ol: [ 'accident, neglect or abuse;', 'improper installation or maintenance;', 'modifications, repairs, improvements, or any other changes to any software or hardware component of the Datto Hardware that have not been authorized in writing by us.', ] }, { p: 'You are responsible for any costs incurred by us related to the foregoing exclusions.' }, { p: 'THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY WILL BE TO REPAIR, REPLACE, OR ISSUE A CREDIT FOR A DEFECTIVE PRODUCT AT OUR OPTION. THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN US AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.' }, { p: 'Warranty Return Procedure: When you notify us of a warranty claim we will relay that claim to Datto. After Datto authorizes the return and issues an RMA number, we will arrange for Datto to express ship either a replacement part or replacement Datto Hardware. The original Datto Hardware or part must be returned to us within 30 days of shipment of the replacement or you will be charged for the replacement. If Datto determines that there is “no defect found” or the defect is due to one of the exclusions listed above, you will be charged for the replacement part or the difference between the cost of the replacement Product and the value of the original returned Product. Any repaired or replacement Product will have the same warranty as set out above for a period equal to the greater of (i) the balance of the existing warranty period for the original Datto Hardware; or (ii) sixty (60) days.' }, { h: 'User License Agreement' }, { p: 'This User License Agreement (“Agreement”) is a binding legal contract between you and Datto, Inc. (“Datto”). By clicking the “I ACCEPT” button, by installing, accessing, or using the Product, or any portion thereof, you will be bound by the terms of this Agreement. If you agree to the terms of this Agreement on behalf of a business or organization, you represent and warrant that you have the authority to bind that business or organization to the terms of this Agreement and your agreement to the terms of this Agreement will be treated as the agreement of the business or organization. If you do not agree to the terms of this Agreement, you will not have any right to use or access the Product. In such event, you may not install, access, use, or copy the Product. Notwithstanding anything to the contrary in this Agreement, your first use of the Product shall be deemed your express consent to this Agreement.' }, { h: '1 Definitions' }, { p: 'Capitalized terms used in this Agreement shall have their meanings specified in this Section or elsewhere in this Agreement.' }, { h4: '“BCDR Device”' }, { p: 'means any Datto hardware device to be used with the Datto Software and which you acquire separately from Datto or a reseller (“Reseller”).' }, { h4: '“Datto Software”' }, { p: 'means all intangible information in object code form constituting one or more computer or apparatus programs and the informational content of such programs, together with any Specifications supplied in conjunction with and supplementing such programs.' }, { h4: '“Enhancement”' }, { p: 'means any upgrade, update, enhancement, change, or modification to the Product. Datto reserves the right to make any Enhancements at any time in its sole discretion. All Enhancements will be subject to the terms of this Agreement, except to the extent that the parties mutually agree, in writing, to more restrictive provisions relating to such Enhancements.' }, { h4: '“Intellectual Property Rights”' }, { p: 'means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, domain names, trade secrets and any applications for the protection or registration of such rights and all renewals and extensions thereof throughout the world.' }, { h4: '“Product”' }, { p: 'means Datto’s Services, any BCDR Device, all Datto Software as well as all Enhancements thereto. Product also includes Specifications and tools with respect to the Product.' }, { h4: '“Services”' }, { p: 'means the business continuity, backup and disaster recovery services provided to you by Datto through its Reseller. The Services may be provided through the use of a BCDR Device owned by you or under your control and/or the Services may be provided through the use of remotely located servers owned by or under the control of Datto.' }, { h4: '“Specifications”' }, { p: 'means the documents, user manuals and any technical publications and specifications, as applicable, made available to you relating to the Product, or any portion thereof.' }, { h: '2 Grant of License' }, { h4: '2.1 License' }, { p: 'Subject to the terms and conditions of this Agreement and your payment of all fees applicable to the Product, Datto grants you a revocable, non-sublicenseable, non-exclusive license during the Term of this Agreement to use the Datto Software for the purpose of using and accessing the Service within your organization solely for your internal business purposes. The Datto Software is licensed to you, not sold. Except for the limited license granted in this Agreement, Datto and its licensors retain all right, title and interest in and to the Datto Software, all copies thereof, and all Intellectual Property Rights in the Datto Software. Except for the license granted herein, all rights in and to the Datto Software, BCDR Devices and Services are reserved, and no implied licenses are granted by Datto.' }, { h4: '2.2 Third Party Components' }, { p: 'The Product may contain certain third party components (“Third Party Components”) which are provided to you under terms and conditions which are different from this Agreement. Certain Third Party Components may contain or be comprised of open source software code. Each open source Third Party Component has its own copyright and its own applicable license conditions. It is your responsibility to review such additional terms before using the Datto Product and you acknowledge and agree that your use of the Datto Product shall be deemed your express consent to this Agreement and such additional terms. Notwithstanding the foregoing, the following terms and conditions apply to all Third Party Components: (a) all Third Party Components are provided on an “AS IS” basis without warranty of any kind; (b) Datto will not be liable to you nor will Datto indemnify you for any claims related to the Third Party Components; and (c) Datto will not be liable to you for damages of any kind, including for any direct, indirect, incidental, special, exemplary, punitive, or consequential damages with respect to the Third Party Components. Except as may be provided in the Additional Terms at the end of this document, your sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the Third Party Components is to cease use of such components.' }, { h4: '2.3 User Feedback' }, { p: 'If you provide information to Datto (or its affiliates and agents) in connection with any Product delivered hereunder, you agree that Datto and its affiliates and agents may collect, process and use such information for Datto’s business purposes, including for product development. You may provide any suggestions, ideas, inventions, innovations, improvements, or enhancement requests, feedback, recommendations, or other information to Datto regarding the Product (collectively, “Feedback”). Feedback is voluntary and Datto is not required to hold it in confidence. Datto may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your Intellectual Property Rights to make use of the Feedback, you hereby grant Datto an irrevocable, exclusive, perpetual, royalty-free, transferable license to use, with right of sublicense, the Feedback in connection with Datto’s business, including the Product.' }, { h4: '2.4 Use of Data' }, { p: 'Notwithstanding anything to the contrary contained in this Agreement, you acknowledge and agree that Datto may (a) collect, process and aggregate any data used with, stored in, or related to the Datto Product by you and create aggregate data records (“Aggregate Data”) by removing personally identifiable information (“PII”) from the underlying data, (b) use such Aggregate Data to improve Datto’s Product, develop new products and services, understand usage, demand trends and general industry trends, develop white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to Datto’s business, and (c) share Aggregate Data with third parties and publish any reports, white papers, and other summaries based on Aggregate Data. For clarity, Datto shall not include any PII nor otherwise identify you or any individual user of the Datto Product.' }, { h: '3 Limitations on License' }, { p: 'The Product, including its structure, organization, source code, and documentation contain valuable trade secrets of Datto and its licensors. You may not copy or distribute the Datto Software. You may not, and you may not permit any third party to: (a) reverse engineer, decompile, disassemble, modify, or create works derivative of the Datto Software, BCDR Device, or Services; (b) alter or modify any disabling mechanism which may be resident in the BCDR Device or Datto Software; (c) use or access the Product to build a competitive product or service, build a product using similar ideas, features, functions, or graphics of the Product, or copy any ideas, features, functions, or graphics of the Product; (d) extract portions of the Datto Software or BCDR Device’s files for use in other applications; (e) remove, obscure, or alter Datto’s or any third party’s trademarks or copyright or other proprietary rights notices; (f) assign, sublicense, rent, timeshare, loan, pledge, lease, or otherwise transfer any Product; (g) conduct, perform, or disclose any form of public benchmarking of the Product without Datto’s prior written approval; (h) use any portion of the Product other than as permitted under this Agreement; (i) use the Product to send unsolicited commercial email, collect unencrypted personally identifiable data, communicate objectionable material, or infringe any third party rights; (j) use the Product to distribute viruses or malicious software; (k) use the Product to send materials to or harm minors; or (l) use the Product in any manner that could damage, disable, overburden, impair, or otherwise interfere with the Product or any networks or security systems.' }, { p: 'All use of the Product shall be in accordance with its then-current Specifications. You shall be solely responsible for ensuring that your use of the Product complies with all applicable laws, and for all Content stored or backed-up using the Product. Modified Product will not be supported by Datto, and all warranties and refund rights shall be void, if it has been modified in any way. You shall immediately notify Datto of any unauthorized use, copying, or disclosure of the Product. Each party acknowledges that your breach of this Section shall cause immediate and irreparable injury to Datto, and Datto shall be entitled to seek injunctive relief, without bond, and all other remedies available at law and in equity.' }, { h: '4 Term and Termination' }, { p: 'The licenses hereunder will commence on the date you first use the Product or accept this Agreement, whichever is earlier, and continue until terminated. If the initial term set out in your agreement with the Datto Reseller (“Initial Term”) is one (1) year or greater, then upon expiration this Agreement and all licenses shall automatically renew for one or more additional terms of one (1) year (each, a “Renewal Term”) unless either party notifies the other of its intent to terminate at least sixty (60) days prior to expiration. Datto may terminate this Agreement on 5 calendar days’ prior written notice if you fail to comply with any term or fail to pay fees due, and immediately for breach of Section 2.1, Section 3, or Section 7. In the event of any termination you must immediately stop using the Product and securely destroy all related media and Specifications. Sections 2.4, 7, 8, 10 and 11 survive termination. NOTWITHSTANDING ANY OTHER PROVISION, THIS AGREEMENT AUTOMATICALLY TERMINATES WHEN YOUR AGREEMENT WITH THE DATTO RESELLER TERMINATES.' }, { h: '5 Services' }, { h4: '5.1 Account, Passwords, and Security' }, { p: 'You must be a registered user to access the Service. You are responsible for keeping your password secure. You will be solely responsible and liable for any activity that occurs under your user name. If you lose your password or the encryption key for your account, you may not be able to access your Content.' }, { h4: '5.2 Additional Terms; Changes to the Service' }, { p: 'By accepting the terms of this Agreement, you acknowledge that you have reviewed and accept the additional terms and conditions, including Datto’s warranty, return, and upgrade policies. Datto reserves the right at any time to modify this Agreement or the Service in its sole discretion, and will endeavor to notify you by email or by a posting on Datto’s website. If you do not agree to any such modifications, you must terminate your account immediately.' }, { h: '6 Technical Support' }, { p: 'You acknowledge and agree that Datto is under no obligation to provide you with telephone or technical support or maintenance for the Product. The reseller of the Product may provide telephone and on-site technical support for the Product.' }, { h: '7 Confidentiality' }, { p: '“Confidential Information” means all nonpublic information disclosed by a Party or any of its affiliates or agents to the other Party that is designated as confidential or that reasonably should be considered confidential; it includes the Product. Confidential Information excludes information that was publicly available at disclosure, became public through no fault of the receiving party, was already rightfully known, or was rightfully acquired from a third party under no duty of confidentiality.' }, { p: 'Except as expressly authorized, the Receiving Party shall maintain the confidentiality of the Disclosing Party’s Confidential Information, minimize its dissemination or copying, use at least a reasonable standard of care to prevent disclosure, use it solely to perform obligations under this Agreement, and inform relevant personnel of these restrictions. Each Party may disclose Confidential Information to personnel with a need to know and a legal duty to protect it. Disclosures required by law are permitted with prior notice where possible. Upon disclosure or loss, the Receiving Party shall notify the Disclosing Party as soon as possible. Breach may cause irreparable injury entitling the Disclosing Party to seek injunctive relief. On request, Confidential Information shall be returned or destroyed. Confidentiality obligations continue throughout the Term and beyond, in perpetuity or for so long as permitted by law.' }, { h: '8 Limitation of Liability' }, { p: 'TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DATTO OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, INCLUDING DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, EVEN IF DATTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE LIABILITY OF DATTO AND ITS SUPPLIERS/LICENSORS SHALL BE LIMITED TO THE FEES PAID BY YOU FOR THE PRODUCT IN THE 6 FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. Some states do not allow the exclusion of incidental or consequential damages so some of the above may not apply to you.' }, { h: '9 Indemnification' }, { h4: '9.1 Your Indemnification of Datto' }, { p: 'You shall defend, indemnify and hold harmless Datto, its licensors and affiliates, and their officers, directors, employees and representatives, from and against all third party claims and all resulting loss, damage, liability, cost and expense (including reasonable attorneys’ fees) arising out of or in connection with your breach of this Agreement, the use, collection, or security of Content, or your use or misuse of the Product. Datto reserves the right to assume exclusive defense and control of any matter subject to indemnification by you. These obligations survive termination.' }, { h4: '9.2 Your Remedies' }, { p: 'If the Product becomes, or is likely to become, the subject of an infringement claim, Datto may in its sole discretion either (a) procure for you the right to continue to use the Product, or (b) replace or modify the Product so that it becomes non-infringing without materially affecting functionality. If neither is commercially reasonable, Datto may terminate this Agreement and you shall receive a pro-rated refund of initial and one-time set up fees paid to Datto (if any) for the allegedly infringing Product. This is your sole and exclusive remedy for infringement claims based on the Product.' }, { h: '10 Warranty Disclaimer' }, { p: 'EXCEPT AS OTHERWISE PROVIDED IN THE HARDWARE WARRANTY, THE PRODUCT IS PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DATTO AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCT, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. DATTO DOES NOT WARRANT THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.' }, { p: 'DATTO MAKES NO WARRANTY OF ANY KIND WITH REGARD TO ANY THIRD PARTY COMPONENTS. YOU SHOULD CONSULT THE RESPECTIVE VENDORS OR MANUFACTURERS OF THE THIRD PARTY COMPONENTS FOR WARRANTY AND PERFORMANCE INFORMATION.' }, { p: 'The Product may be used to access and transfer information over the Internet. You acknowledge that Datto does not operate or control the Internet and that viruses, malicious code, or unauthorized users may attempt to access and damage your data, websites, computers, or networks. Datto shall not be responsible for such activities. You are solely responsible for the security and integrity of your data and systems.' }, { h: '11 Miscellaneous' }, { h4: '11.1 Governing Law; Jurisdiction; Venue' }, { p: 'This Agreement shall be governed and construed in accordance with the laws of the State of Connecticut without reference to conflicts of law principles. The parties agree that the exclusive jurisdiction of any actions arising out of this Agreement shall be in the state and federal courts located in the State of Connecticut. This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.' }, { h4: '11.2 Force Majeure' }, { p: 'Any delay in or failure of performance of either party (excluding obligations to pay money for use of the Product) shall not constitute a default to the extent caused by a force majeure event, including acts of god, fire, flood, war, strikes, loss of utilities or communications, failures affecting the Internet, malicious code released by a third party, or changes in law; provided that any such delay does not extend beyond 30 calendar days.' }, { h4: '11.3 Export Control' }, { p: 'You shall not export, directly or indirectly, the Product or any Content to any country for which the United States requires an export license or other governmental approval without first obtaining such license or approval. It is your responsibility to comply with applicable export laws. You shall indemnify Datto against any claim that the Product or Content was exported in violation of applicable laws.' }, { h4: '11.4 Severability' }, { p: 'If any provision is invalid, illegal, or unenforceable, it shall be deemed modified to the extent necessary to render it valid and enforceable, and the remaining provisions shall continue in full force and effect.' }, { h4: '11.5 No Waiver' }, { p: 'Datto’s failure or delay to enforce any provision or respond to any breach shall not operate as a waiver or prevent Datto from taking any permitted action to prevent further breaches.' }, { h4: '11.6 Survival' }, { p: 'The following provisions survive termination or expiration: 1 (Definitions), 4 (Term and Termination), 5 (Services), 7 (Confidentiality), 8 (Limitation of Liability), 9 (Indemnification), 10 (Warranty Disclaimer), and 11 (Miscellaneous).' }, { h4: '11.7 Entire Agreement' }, { p: 'This Agreement and the Additional Terms constitute the entire understanding of Datto and you with respect to the subject matter, and supersede all prior and contemporaneous agreements. No modification is binding unless in writing and signed by both Parties.' }, { h4: '11.8 Construction' }, { p: 'The section headings are for convenience only and will not be used in construction or interpretation. The words “include” and “including” will be deemed to be followed by “without limitation.”' }, { h: 'Additional Terms — Use of StorageCraft Technology' }, { p: '“StorageCraft Software” means the software licensed by Datto from StorageCraft Technology Corporation, Draper, Utah (“StorageCraft”). “StorageCraft Solution” means StorageCraft Software sold or distributed together with the Product.' }, { p: 'You acknowledge and agree that the StorageCraft Software may be used only as part of the StorageCraft Solution, only in a manner authorized by and consistent with this Agreement, and only while there is a current agreement between you and Planetiware for the use of Datto Products. You further acknowledge and agree to the following:' }, { ul: [ 'The StorageCraft Software may only be used as part of the StorageCraft Solution.', 'StorageCraft’s copyright, trademark, or other proprietary rights notices contained in or on the StorageCraft Software or Solution shall not be modified, removed, or obscured.', 'StorageCraft disclaims, to the extent permitted by applicable law, all warranties and any liability for any damages arising from use of the StorageCraft Software, except as provided in this Agreement.', 'Upon termination of your agreement with Planetiware, you must remove and/or deactivate all copies of the StorageCraft Software and return or destroy any media containing it.', 'In the event of nonpayment of fees payable to Planetiware, your use of the StorageCraft Software may be suspended or terminated.', 'The StorageCraft Software must have an operating Internet connection permitting it to periodically communicate with StorageCraft’s activation server to verify the license. If it is repeatedly unable to communicate, the seat will deactivate.', 'Upon termination, Datto shall use best efforts to verify and accomplish the uninstall and/or deactivation of all seats and ensure media is returned or destroyed.', 'Planetiware shall provide Datto with reasonable access to its agreement with you (with confidential portions redacted), and Datto may provide StorageCraft copies of the redacted agreement at StorageCraft’s reasonable request.', ] }, ], }, ]; function LegalBlock({ b }) { if (b.h) return
{b.p}
{b.mail && <>
Email: {b.mail}}
The agreements, policies, and terms that govern our services. If anything here is unclear, get in touch and we will walk you through it.