2. Definitions and Interpretation
Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
Application Form means an application form executed by You and Us for Your subscription to the Platform.
Business Day means Monday – Friday excluding public holidays in New South Wales.
Business Hours means 9:00am – 5:00pm AEST on Business Days.
Data Processing Addendum means the document accessible at https://www.hexicomsoftware.com/data-processing-addendum/
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means the occurrence of any of the following events in relation to a party (in each case, the relevant party):
(a) the relevant party ceases to (or is unable to) pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to do so;
(b) a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to the relevant party or any of its assets;
(c) the relevant party enters into, or resolves to, enter into, a scheme or arrangement, compromise or composition with any class of creditors;
(d) a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of the relevant party;
(e) any liquidator, receiver or manager enters into possession of any of the assets of the relevant party;
(f) a mortgagee, chargee or other holder of security, by itself or by or through an agent, enters into possession of all or any part of the assets of the relevant party;
(g) the relevant party applies for, consents to, or acquiesces in the appointment of a trustee or receiver in respect of the party or any of its property;
(h) except to reconstruct or amalgamate while solvent on terms approved by the other party to the SaaS Agreement, the relevant party enters into or resolves to enter into a scheme of arrangement, compromise or re-construction with its creditors (or any class of them) or with its members (or any class of them) or proposes a reorganisation, re arrangement, moratorium or other administration of the party’s affairs; or
(i) anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
Non-Excludable Guarantee means a non-excludable guarantee implied by the Australian Consumer Law.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Personal Property Securities Register means the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).
Platform means Our cloud based software platform owned and/or provided by Us specified in the Application Form and also includes the Services and any content, images, text and other information appearing on any page or screen of the website Platform and any source code and object code in the Platform. However, the Platform does not include Subscriber Data.
Platform Account means an account on the Platform that is setup when a Subscriber registers on the Platform or subscribes to the Services by agreeing to the terms of the SaaS Agreement in the Application Form.
Platform Services Description means the functionality of the Platform specified or referred to in or from the Application Form.
Request for Quotation means a request made by You to Us for a Quotation;
SaaS Agreement has the meaning given in clause 18.7 .
Services means the functionality and services specified or referred to in or from the Application Form.
Subscriber means a person, corporation or entity who subscribes to the Platform.
Subscriber Data has the meaning given in clause 7.1.
We, Our and Us means Hexicom Software Pty Ltd (ABN 99 129 473 472) of PO Box 299 Berowra Heights, NSW 2082 Australia.
You means you, the person who accesses the Platform for any reason, whether or not you are a Subscriber of the Platform.
(c) Currency means the currency specified in the Application Form.
(d) A reference to a statute or regulation includes amendments thereto.
(f) A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
(g) A reference to time is to time in NSW Australia.
(h) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
(i) The words “includes”, “including” and similar expressions are not words of limitation.
2. Access and use of the Platform by unregistered users
2.1. Only Subscribers may access and use the Services. Please contact Us if You wish to become a Subscriber.
3. Applications for subscription to the Platform
3.1. We reserve the right to accept or reject any person’s subscription to the Platform in Our absolute discretion.
3.2. If You submit an application to subscribe to the Platform, You:
(a) will be deemed to have irrevocably warranted that in the Application Form You provided truthful and accurate information only;
(b) will be deemed to have irrevocably warranted that You applied to become a Subscriber of the Platform on behalf of and with the authority and consent of any business entity that You entered into the Application Form;
3.3. You must ensure that a valid email address for You is specified in the Application Form.
3.4. If any of Your contact details or other information which You provide in the Application Form change, You must promptly update those details in Your Platform Account with Your up-to date details and information.
3.5. You must not provide Your Platform Account name or the password for Your Platform Account to any person. You agree and acknowledge that You shall be solely responsible for the confidentiality of Your username and password and any use of Your Platform Account (including unauthorised use).
3.6. You must immediately notify Us if You become aware of any unauthorised use of Your Platform Account.
3.7. You agree and acknowledge that if You become a Subscriber, You will have a non-exclusive, non- assignable, non-sublicensable, revocable right to access the Services for the Permitted Purpose expressly specified in the Application Form. You must not access the Services for any other purpose.
4.1. If You become a Subscriber, Your subscription to the Services commences on the Commencement Date specified in the Application Form.
4.2. If You become a Subscriber, Your subscription to the Services is for the Initial Term and will continue for subsequent consecutive terms of twelve (12) months (each a Renewal Term), until and unless this Agreement is terminated earlier:
(a) by either party providing at least thirty (30) days written notice prior to the expiry of the Initial Term or the then current Renewal Term, in which case where such notice is provided Your subscription to the Platform will terminate at the expiry of the Initial Term or the then current Renewal Term, as applicable; or
(b) otherwise in accordance with clause 16
5. Service Charges
5.1. Each Subscriber must pay the fees and charges set out in the SaaS Agreement, or as otherwise agreed between Us and the Subscriber in writing, in consideration for the Subscriber’s subscription to the Services (“Service Charges”) monthly in advance, plus any GST that is applicable in respect of the supply of the Services to the Subscriber.
5.2. Any applicable GST and credit card surcharges must be payable at the same time as the Service Charges.
5.3. If You are a Subscriber, You must pay the Service Charges to Us each month, in advance, on or before the 28 th day of the month.
5.4. You must pay all costs associated with accessing the Platform through the internet.
5.5. The Service Charges must be paid in accordance with the payment terms specified in the Application Form and must be setup as an automatic recurring monthly payment.
5.7. A Subscriber may request additional Platform Accounts, Bandwidth Allocations and Data Storage Allocations by sending Us a written notice with their request. Any such additions will be considered and determined by Us in Our absolute discretion and any associated fees will be payable within 7 days of invoice.
6. Custom Software Development
6.1. You may issue a Request for Quotation to Us at any time and from time to time with respect to any custom software development that You may require for the purposes of enhancing or modifying the Platform.
6.2. Requests for Quotation are invitations to treat.
6.3. We may issue a Quotation to You without first having received a Request for Quotation.
6.4. If You wish to accept a Quotation, You must follow the instructions on the Quotation that specify how the Quotation can be accepted. Quotations cannot be accepted in any other way.
6.5. Each accepted Quotation will constitute a separate agreement between You and Us.
6.6. We have no obligation to issue a Quotation or respond to a Request for Quotation.
7. Responsibility for and ownership of Subscriber Data
7.1. If You are a Subscriber, We agree that as between You and Us, You own all data that You upload into the Services (“Subscriber Data”).
7.2. You agree and acknowledge that:
(a) the Services and/or Your Subscriber Data may be hosted by Us or Our suppliers on hardware or infrastructure located in or outside Australia;
(b) We may change Our suppliers, including our hosting suppliers, who host the Services and/or
Your Subscriber Data on our behalf at any time in Our absolute discretion (except where
applicable law requires Us to obtain Your consent in relation to any such change);
(c) We may not own or operate the infrastructure upon which the Services and/or the Subscriber
Data is hosted.
7.3. If You are a Subscriber, You warrant, agree and represent that:
(a) You will only upload, input and transfer Subscriber Data into and/or via the Services or disclose
Subscriber Data to Us, which You are fully entitled and authorised to upload, input, transfer and
(b) Your Subscriber Data and Our collection, use, storage and/or disclosure thereof in the course of
providing the Services, will not breach any applicable law or right of any person.
7.4. If You are a Subscriber, You license us on an irrevocable, non-exclusive, royalty-free, worldwide
basis to use and publish your Subscriber Data on the Platform as required by Us to provide the
7.5. Each Subscriber is solely responsible for the accuracy, legality and quality of all its Subscriber Data
and for obtaining any permissions, licenses, rights and authorisations necessary for Us to use, host,
transmit, store and disclose the Subscriber Data in connection with the provision of the Services.
7.6. We backup Subscriber Data on a daily basis, and hold backups for several days after which time they
are automatically destroyed.
7.7. If You are a Subscriber, You acknowledge that Your access to Your Subscriber Data that is hosted
7.8. You indemnify Us in respect of any loss and damage We or any of Our suppliers incur in respect of
any claim that any of Your Subscriber Data is lost, unavailable or corrupted or the transmission,
storage, disclosure, or access to any of Your Subscriber Data infringes the Intellectual Property
Rights or other rights of any person or breaches any law, regulation, code or standard.
8. Availability of Services
8.1. Subject to clauses 8.2 , 8.3 and 8.4 , while You are a Subscriber of the Platform, We agree to use Our
best endeavours to procure hosting of the Services and the Subscriber Data and to ensure that the
Services are available.
8.2. The availability of the Services to You will be subject, in addition to any other provisions set out in
and other technical and non-technical limitations or restrictions set out in the Platform Services
Description, and any planned and unplanned maintenance of the Platform and/or Our hosting
8.3. You agree and acknowledge that the accessibility and use of the Platform, the Services and the
Subscriber Data hosted by the Platform is highly dependent on the proper function of the Internet and
any other computer and telecommunications networks and infrastructure upon which the Platform
and/or Services and/or Subscriber Data operate, interface with or connect to, and that We are not
responsible for any non-performance of the Platform associated with any of those matters.
8.4. Except in respect of any Non-Excludable Guarantee, We do not guarantee that the Platform,
Services or Subscriber Data or access thereto will be uninterrupted or error-free and You release and
indemnify Us in respect of any loss and damage that We may incur and/or claims and/or complaints
You or your customers may have against Us in respect of any interruption, error or unavailability of
the Platform, Services or any Subscriber Data.
8.5. We may update and enhance the Platform at any time without notice.
9. Usage Restrictions
9.2. You may not do or authorise the commission of any act that would or might invalidate or be
inconsistent with Our Intellectual Property Rights in the Platform.
9.3. Without limiting the foregoing provisions, You must not, under any circumstances, sell or resell
access to the Platform or scrape, republish, mirror or otherwise rent, lend, lease, sell, redistribute,
sublicense, copy or duplicate the Platform or any content You obtain via the Platform (other than
Your Subscriber Data). In addition, You must not, nor may You permit any person to:
(a) copy, alter, modify, adapt, reproduce, republish, frame, translate, reverse assemble, reverse
engineer, reverse compile, transfer, sell, licence, create derivative works from or enhance the
Platform and/or any content in the Platform (except any of Your Subscriber Data) (except as
expressly permitted by the Copyright Act 1968 (Cth));
(b) do any act that would or might invalidate or be inconsistent with Our Intellectual Property Rights
or those of Our licensors;
(c) use the Platform in any way that infringes Our rights or the rights of any third party;
(d) use the Platform to create any product or service that competes with the Platform; or
(e) take any steps to circumvent any technological protection measure or security measures in the
9.4. You must not use the Platform or any part of the Platform in any way which is in breach of any statute, regulation, law or legal right of any person.
10. Acceptable Use Policy
10.1. You agree that:
(a) using the Platform to violate all or any legal rights of any person or company or other entity in
(b) using the Platform in relation to crimes such as theft and fraud is strictly prohibited by these
(c) using the Platform in breach of laws relating to the protection of copyright, trade secrets, patents
or other intellectual property and laws relating to spam or privacy and whether such violation is
by way of the installation or distribution of “pirated” software or otherwise, is strictly prohibited
(d) introduction of malicious programs into Our network or servers (e.g., viruses, worms, Trojan
(e) revealing Your account password to others or allowing use of Your Platform Account by others
(f) using another person’s name, username or password or otherwise attempting to gain access to
(g) using the Platform to make fraudulent offers of goods or services is strictly prohibited by these
(h) using the Platform to carry out security breaches or disruptions of network communication is
accessing data of which You are not an intended recipient or logging into a server or account
that You are not expressly authorized to access or corrupting any data. For the purposes of this
paragraph, “security breaches” includes, but is not limited to, network sniffing, pinged floods,
packet spoofing, denial of service, and forged routing information for malicious purposes;
(i) using the Platform to execute any form of network monitoring which will intercept data not
(j) using the Platform to circumvent user authentication or security of any of Our hosts, networks or
(k) using the Platform to interfere with or deny service to anyone is strictly prohibited by these
(l) using any program/script/command, or sending messages of any kind, with the intent to
interfere with, or disable, any person’s use of the Platform is strictly prohibited by these Terms
(m) sending unsolicited email messages through or to users of the Platform in breach of the Spam
(n) using the Platform to send any form of harassment via email, or any other form of messaging,
whether through language, frequency, or size of messages is strictly prohibited by these Terms
of Use; and
(o) use of the Platform in breach of any person’s privacy (such as by way of identity theft or
11. Intellectual Property Rights
11.2. As between You and Us, except in respect of Your Subscriber Data, We own all Intellectual
Property Rights in the Platform and in the Software underlying it.
11.3. You have no rights in the Platform or in any part of it or in any modification or enhancement
11.4. You agree that any Intellectual Property Rights in any comments that You may provide to Us in
connection with the Platform or requests for new Platform features (each, an “Improvement
Suggestion”) becomes Our sole and exclusive property immediately upon You uploading or
posting that Improvement Suggestion to the Platform or otherwise providing the Improvement
Suggestion to Us, and You hereby assign all Intellectual Property Rights in all and any such
Improvement Suggestions to Us effective as soon as You provide each Improvement Suggestion
to Us or upload or post an Improvement Suggestion to the Platform, pursuant to section 197 of the
Copyright Act 1968 (Cth) and in equity. You consent to the infringement by Us and any third party
We authorise, of all Moral Rights that You may have in any Improvement Suggestions.
11.5. You must not take any step to invalidate or prejudice Our (or Our licensors’) Intellectual Property
Rights in the Platform or otherwise. Without limiting the foregoing provisions, You must not register
any security interest or purchase money security interest on the Personal Property Securities
Register, or otherwise encumber or charge Your rights in respect of Your Subscriber Data or with
12. Responsibility for other Subscribers
12.1. We do not accept responsibility for the conduct of any Subscribers of Our Platform.
12.3. We are not a party to any transaction for the supply of goods or services advertised by any
Subscriber of the Platform. Before entering into any transaction with any other Subscriber of the
Platform, You should carefully consider the applicable terms and conditions applicable to the
transaction, obtain all appropriate advice and take all appropriate precautions.
12.4. Any dispute You have with another user of Our Platform is between You and the other user. You
release Us from any claims that You may otherwise have against Us in relation to any conduct of
any user of Our Platform and in respect of any content uploaded by or on behalf of any user into
12.5. If We become aware of content that breaches our Acceptable Use Policy (i.e clause 10 ) We will
remove the content and send an email to the person who uploaded or entered it explaining why it
was removed. If You become aware of any content that You think breaches the Acceptable Use
Policy set out in clause 10 above, please contact Us.
13. Responsibility for third party claims
13.1. You agree and acknowledge that You are solely responsible for and You indemnify Us in respect
of any loss and damage We may incur in connection with any claims and/or complaints made by
any third party where the claim is caused directly or indirectly by:
(a) Your misuse of the Platform; and/or
(b) Your goods and/or services and/or Your advertising and/or sales and/or marketing practices.
14.1. We do not represent, recommend or endorse any websites to which We have linked from the
Platform via hyperlink or otherwise.
15.1. Except in respect of any Non-Excludable Guarantees, We do not represent that the information on
the Platform is accurate, correct, up-to-date or error free.
15.2. The information on the Platform is not professional advice. You agree that You will seek all
appropriate financial, legal and other advice as applicable before relying on any information You
obtain from the Platform.
15.3 To the extent possible by law, We are not liable to You for any direct loss of profits or for any indirect, special or
consequential loss or damage incurred by you, including liability for loss of profits, loss of business opportunity, loss of
savings, or loss of data.
15.4. Except in respect of any Non-Excludable Guarantees, to the maximum extent permitted by law
(and if permitted by law), We will not have any liability to You for any loss or damage howsoever
incurred in relation to Your use of or inability to use the Platform, or with respect to any of the
circumstances addressed in clause 13.1 .
15.5. Any goods and services supplied by Us through the Platform (which for the avoidance of doubt,
includes the Services supplied by Us, but does not include goods or services supplied by any user
of the Platform to any person) may come with implied non-excludable guarantees which are
regulated by the Australian Consumer Law. The extent of the implied guarantees depends on
whether You are a ‘consumer’ of goods or services within the meaning of that term pursuant to the
Australian Consumer Law as amended.
15.6. If the goods or services supplied by Us to You through the Platform (which for the avoidance of
doubt, includes the Services supplied by Us, but does not include goods or services supplied by
any user of the Platform to any person) are supplied to You in Your capacity as a ‘consumer’ of
goods or services within the meaning of that term in the Australian Consumer Law as amended
You will have the benefit of certain non-excludable guarantees in respect of those goods or
services and nothing in these terms and conditions excludes or restricts or modifies any guarantee
which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the
goods or services are subject to a non-excludable guarantee implied by the Australian Consumer
Law and the goods or services are not ordinarily acquired for personal, domestic or household use
or consumption, then pursuant to s 64A of the Australian Consumer Law, We limit Our liability for
breach of any such non-excludable guarantee implied by the Australian Consumer Law (other than
a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given
by Us to You, in respect of each of the goods and services, where it is fair and reasonable to do
so, at Our option, to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
15.7. Any warranty against defects provided by Us to You in Your capacity as a ‘consumer’ under the Australian Consumer Law is in addition to Your other rights and remedies under a law in relation to
the goods or services to which the warranty relates.
15.8. Except in respect of any Non-Excludable Guarantees, all conditions, warranties and guarantees
Non-Excludable Guarantees, Our liability to You is limited, in the aggregate for all and any claims
losses, liability, legal costs and any other liability whatsoever or however arising, to the amount of
the Service Charges specified in the first Service Charges invoice that we issue to You.
Platform or any part of it at any time without notice.
notice to You:
(b) if You object to any intended changes concerning the addition or replacement of Our
(c) at any other time on thirty (30) days notice.
of either party.
16.4. Except in respect of termination pursuant to clause 16.2(a) , if You are a Subscriber and We
of any Service Charges paid by You for access to the Services that You have paid to Us in
advance in respect of a period of time that has not expired as at the date of termination.
17.1. Any notice issued to You from Us or from Us to You shall be in writing and sent by hand delivery,
post or email. Where sent from Us to You, We shall use Your contact details for your Platform
Account set out in the Application Form.
17.2. You may contact Us or send a notice to Us using Our contact email address
17.3. Any notice issued by hand shall be deemed delivered upon delivery.
17.4. Any notice issued by post shall be deemed delivered six (6) Business Days after posting if posted
domestically, or fifteen (15) Business Days after posting if posted internationally.
17.5. Any notice issued via email shall be deemed to be delivered upon receipt by the sender of an
electronic read receipt or delivery receipt, or upon receipt of confirmation from the recipient that the
recipient received the email.
17.6. We may send You email or other electronic messages concerning Your Platform Account and the
Platform from time to time.
will notify You of the amendments by providing notice in writing, or via a notice on the Platform
(Amendment Notice). If You do not agree with the Amendment Notice, You must notify Us by written
notice of that fact within seven (7) days of the date of the Amendment Notice (Objection Notice). If
You and Us are unable to resolve the objection within seven (7) days from the date of the Objection
Notice (Dispute Resolution Period), either party may terminate the SaaS Agreement for its
convenience by written notice within seven (7) days of the expiry of the Dispute Resolution Period.
We may withdraw an Amendment Notice prior to the expiry of the Dispute Resolution Period – if We
do so You may not terminate the Agreement pursuant to this clause.
18.3 Assignment: You may not assign, transfer, license or novate Your rights or obligations under these
create any relationship of partnership, joint venture, fiduciary, or employer and employee or
shall apply to the fullest extent permissible at law, but We do not exclude or limit liability which may
not be excluded or limited by law. Without limiting the foregoing provisions, We do not exclude
liability under the Australian Consumer Law which is prohibited from being excluded.
Processing Addendum constitute the entire agreement between You and Us (collectively, the SaaS
Agreement) and to the extent possible by law, supersede all prior understandings, representations,
arrangements and agreements between You and Us regarding its subject matter.
18.8. Jurisdiction: The SaaS Agreement will be interpreted in accordance with the laws in force in New
South Wales. You and Us irrevocably submit to the non-exclusive jurisdiction of the courts situated
in New South Wales.