- Terms of Service (TOS)
- End User Licence Agreement (EULA)
- Schools Terms of Service (TOS)
- Beta Terms & Conditions (T&Cs)
TERMS OF SERVICE
These Terms Of Service (TOS) govern the supply by MyXplor Pty Ltd (Xplor) of Services to You. Together with the End User License Agreement (EULA), this TOS also governs the use of the Services by You during the agreed Term. In order to register to use the Services provided by Xplor you will be required to accept this TOS. By accepting this TOS and registering to use the Services, You are entering into a binding legal Agreement with Xplor. It is therefore important that you carefully read this TOS, and also the associated EULA at the time of registering to use the Services. The EULA is available here and You will be prompted to acknowledge Your acceptance of the EULA when You and/or Your Invited User(s) register to use the Services. By signing this TOS and registering to use the Services You acknowledge that You have read and understood this TOS and the EULA, and that You have the authority to enter this Agreement on Your own behalf and also on behalf of Your Invited User(s) and Centre(s).
Agreement means the agreement between Xplor and You pursuant to the terms and conditions of the TOS and the EULA as amended from time to time. If there is any inconsistency between the TOS and the EULA, the terms of this TOS prevail.
Access Fee means the fee (excluding any taxes and duties) payable by You each month per active Centre associated with You or a Centre registered to use the Services from time to time or such other amount as Xplor and You may agree in writing from time to time.
Centre means an ELC associated with You or otherwise under Your control, Data means any data that You, an Invited User, or any person with Your authority inputs into the Products via the Equipment, the Website or via any other means.
ELC means an organisation providing, directly or indirectly, early childcare and/or associated services.
EULA means the terms of the Xplor End User Licence Agreement available from the Website, or otherwise made available by Xplor, as amended from time to time.
GST has the meaning defined in the A New Tax System (Goods and Services Tax) Act 1999.
Marks means any name, logo or trade mark owned by, or licensed to, Xplor.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended from time to time.
Product(s) means the software products made available to You by Xplor via the Website, the App or such other means as Xplor may determine from time to time.
Website means the website accessible at the domain www.ourxplor.com or such other site as Xplor may determine from time to time.
Invited User means any person or entity other than You who uses the Services at Your request or with Your authorisation, and may include a Centre.
Service Panel means the section accessible by You within the Products and which section contains details relating to You and/or Your Invited Users and/or Centres.
Services means any, or all, of the Products, Website or associated goods and services Xplor makes available to You from time to time pursuant to this Agreement and includes reasonable set-up, training, and support relating to the Services.
Special Terms means the terms and conditions, if any, agreed separately and in writing
Term means, from time to time, the period covered by the Access Fee paid or payable and, where the context permits and requires, a reference to Term shall be to the Term as renewed in accordance with this Agreement.
Third parties means any natural person and/or corporation who may act as a stakeholder in the agreement.
Trial Period means 30 days from the date of this TOS
Xplor means MyXplor Pty Ltd ACN 604 322 910 or its advised related entities from time to time.
You means the ELC utilising the Services forming part of this TOS.
Rights to use the Products
- Xplor grants You the right to access and use the Products during the Term via the Website and/or the Equipment (where applicable) with the particular user roles available to You according to Your subscription type. The right granted to You is non-exclusive, non- transferable, and is limited by and subject to this Agreement.
Subject always to compliance with this Agreement, You may invite an Invited Users to use some or all of the Services.
You acknowledge and agree that, subject always to this Agreement:
- You determine who is an Invited User and what level of user role and access that Invited User has. You can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be.
- If there is any dispute between You and an Invited User regarding access to any Services and/or Products , You shall decide what access or level of access that Invited User shall have, if any.
- You are responsible for all Invited Users’ use of the Services.
- You may invite multiple Invited Users. Where there are multiple Invited Users, the above provisions will apply to the same effect.
- Xplor may issue You with an invoice for the Access Fee in respect of each Billing Period during the Term.
- All Xplor invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email or via such other means as Xplor may determine from time to time. Without prejudice to any other rights that Xplor may have, Xplor reserves the right to suspend or terminate use of Services by You, Your Invited Users, or any Centre, in the event that any invoices are not paid in full by the due date for payment.
- You must pay or arrange payment of all amounts specified in any invoice issued to You by Xplor by the due date for payment which Xplor may reasonably determine from time to time. You hereby agree to make payment to Xplor by way of a direct debit arrangement upon the request of Xplor.
- Where a direct debit arrangement is entered into between Xplor and You, Xplor may nominate a third party direct debit provider to arrange the payments between Xplor and You. By agreeing to the direct debit arrangement between Xplor and You, You hereby agree to the terms and conditions of that direct debit provider as nominated by Xplor.
- You are responsible for payment of all taxes and duties, including but not limited to GST, in addition to the Access Fee, and Xplor may invoice these amounts to You.
- You must not withhold, make deductions from, or set-off, payment of any money owed to Xplor for any reason.
- Subject always to this Agreement, and at Your request, Xplor may issue an invoice for the Access Fee (or any part thereof) to such third parties as You may reasonably request, including but not limited to any Centre and/or Invited User, save always that Xplor retains the absolute right to determine to whom to issue invoices for the Access Fee (or any part of it) and notwithstanding the party to whom an invoice is issued You remain liable for the payment of all Access Fee properly due and payable under this Agreement.
- You warrant to Xplor that, if you make a request pursuant to clause 4)f), you have the consent of the third party to whom You have requested the invoice be issued.
- Unless indicated otherwise, the Access Fee is expressed exclusive of GST.
- Subject always to this Agreement and in accordance with the relevant law, Xplor reserves the right, after reasonable attempts to collect the Access Fee from you, to engage the services of a debt collection agency to recover any outstanding fees owed by You to Xplor.
Preferential Pricing or Discounts
- You may from time to time be offered preferential pricing or discounts to the standard Access Fee based on the number of Centres using the Services at Your request. Eligibility for such preferential pricing or discounts is conditional upon Your acceptance of responsibility for payment of any Access Fee in relation to all of Your Centres;
- Without prejudice to any other rights that Xplor may have, Xplor reserves the right to render invoices for the full (non-discounted) Access Fee due, or to suspend or terminate Your use of the Services in respect of any or all of Your Centres in the event that any invoices for those Access Fees are not paid in full by the due date for payment.
2. Without prejudice to any other rights that Xplor may have, Xplor reserves the right to decline any request for preferential pricing or discounts to the standard Access Fee without requirement to disclose the reasons for declining the request by You.
3. This request must be made in writing.
- You may from time to time be offered preferential pricing or discounts to the Standard Access Fee if you agree to pay upfront the equivalent of twelve months’ worth of Access Fees;
1. Any preferential pricing or discount applied will not conflict with the provision as set out in the ‘Prepaid Subscription’ heading of this TOS.
Automated Bank Transaction Data
Where available, automated bank account transaction data feeds are generally provided to You free of charge. However, Xplor reserves the right to pass on any charges related to the provision of bank feed data on a case-by-case basis at Xplor’s sole discretion. In the event that Xplor proposes to pass on such charges to You, Xplor will notify You of the charges. If You wish to discontinue the bank feeds and avoid the proposed charges, You must notify Xplor of your decision whereupon Xplor will use its reasonable endeavours to arrange for such feeds to be terminated in accordance with the providing bank’s usual practices.
You acknowledge that Parents will have an opportunity to post publicly viewable reviews about their experiences with the Centre and that these reviews will also be made available on the website. These reviews are outside of Xplor’s control, are not verified by Xplor for accuracy and may be incorrect and misleading. There is an option for the Centre, if they are the subject of a review, to reply to reviews about them. However, any content the Centre posts in response to a review must be polite and professional and non-threatening or confrontational, and it may be subject to review by Xplor (and may be removed or amended in Xplor’s sole discretion if Xplor deems it reasonably necessary to do so). For the avoidance of doubt, the Centre shall have no right to any remedy (including without limitation, any right to immediately terminate its agreement with Xplor) as a result of any review naming or referring to the Centre. However, if the Centre, acting reasonably, feels that any review is defamatory of the Centre or any person or in some other way is a violation of any person’s legal rights, the Centre may flag and report that review to Xplor. In such case, Xplor shall review the same and in its sole discretion take any action it deems necessary or desirable (including, for example, removing or amending the relevant review). The Centre must only ever respond to a review via the platform and must never contact or attempt to contact a Parent in response to a review other than on the platform, even where the Centre knows the identity of the Parent who left the review or can determine the Parent’s identity by some other means. Any breach of this clause will be a material breach of the Centre’s agreement with Xplor.
Use of the Services may be subject to such limitations as Xplor may advise from time to time, including but not limited to monthly transaction volumes
- Xplor may exercise any of its rights under item 2 of this termination clause) if You:
1. in relation to a breach capable of remedy (including by non-payment of the Access Fee), fail to remedy such a breach of this Agreement by You, Your Invited User or Centre within 14 days of notice of the breach;
2. Your Invited User or Centre commit a breach that is not capable of remedy (which includes by non-payment of any Access Fees that are more than 30 days overdue or a breach of clause 3.;
3. You or any Centre operated by or associated with You become insolvent or any steps are taken by You or in relation to You in connection with insolvency including but not limited to the entering of any arrangement with creditors, the appointment of receivers or managers, administrators and/or liquidators.
- Upon the occurrence of any event in item 1 of this termination clause, Xplor may:
1. terminate this Agreement and use of the Services by You, Your Invited Users and/or Centres;
2. suspend for any definite or indefinite period of time use of the Services by You, Your Invited Users and/or Centres; and/or
- Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement, You will remain liable for any accrued charges and amounts which become due for payment before or after termination.
- On termination of this Agreement, You must:
1. immediately cease to use the Services; and
2. delete all copies of the Products installed on any device You own or use; and
To the extent permitted by law Xplor will not provide a refund for any remaining prepaid period for a prepaid Access Fee subscription.
In the case of technical problems with the Services You must make all reasonable efforts to investigate and diagnose problems before contacting Xplor. If You still need technical help, please check the support available via the Website or, if necessary, by sending a support request email to email@example.com.
Whilst Xplor intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions, from time to time, the Services or Website may be unavailable, including to permit maintenance and/or other development activity to take place.
Xplor will use its reasonable endeavours to publish in advance on the Website or by other means as Xplor may determine details of any known significant outages or interruptions to the Services.
This Agreement constitutes the entire agreement between You and Xplor relating to the Services and it supersedes all prior agreements, representations (whether oral or written), and understandings between Xplor and You relating to the same.
Confidentiality, Licence and Reservation of IP Rights
- Nothing in this Agreement operates to grant You any intellectual property rights in the Services or any part thereof.
- All Marks are the sole property of Xplor.
1. You must not use any Marks without the prior written consent of Xplor or register or attempt to register rights in relation to the Marks, any derivative of the Marks, or anything similar to them.
- You hereby grant to Xplor a non-exclusive licence to use the Data to the extent necessary for Xplor to provide the Services.
- Xplor does not warrant that the Services are fit for any purpose whether or not made known by You.
- Xplor hereby excludes all express and implied conditions and warranties in relation to the Services and this Agreement except those conditions or warranties that cannot be excluded by law.
- Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or any equivalent Act of any State or Territory of Australia except to the extent permitted by such Acts or; the statutory equivalent Act (the Consumer Rights Act 2015) of the United Kingdom where the Services are provided for by Xplor to You in the United Kingdom.
- You warrant to Xplor that:
1. You have all licences, permits and other regulatory consents required or necessary to enter into this Agreement and perform Your obligations hereunder;
2. You have the authority to grant the licenses pursuant to 14)d) of this Agreement;
3. You are using the Services for the commercial purposes contemplated by this Agreement only;
4. You have attended to all backups, and have maintained copies of, the Data and You acknowledge that Xplor is not responsible for attending to any such backup obligations; and
5. the use by Xplor of the Data will not result in any unauthorised use of the rights of any person.
- To the absolute extent permitted by law, Xplor will not be liable to You, Your Invited Users, Centres or any other person for any liability, loss or damage of any kind (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) arising directly or indirectly from or in connection with this Agreement or use of the Services by You, Your Invited Users and/or and Centre or any other person.
- In the event that Xplor’s liability cannot be wholly excluded, and to the the extent permitted by law, its liability under this Agreement shall be limited to, at its option:
1) the replacement of the Services;
2) the cost of having the Services replaced.
- Subject and in accordance with the law, in the event one of Xplor’s third party’s breaches its obligations to Xplor and/or to You, Xplor indemnifies itself from the liability caused by that Third Party.
The failure by Xplor to exercise any of its rights arising under this Agreement will not operate as a waiver of the right and the express waiving of any particular right, including a right in respect of a breach of this Agreement by You, will not operate as a waiver of any other right.
Neither party will be liable for any delay or failure in performance of its obligations under this Agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
Xplor may assign its rights under, and/or novate, this Agreement at any time by notice in writing to You.
You may not assign any rights to under this Agreement to any other person without Xplor’s prior written consent.
Governing Law and Jurisdiction
- This Agreement is governed by and is to be construed in accordance with the laws in force in the Commonwealth of Australia and the state of Victoria therein. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and waives any right to object to proceedings being brought in those courts.
- If Xplor determines, or if it is otherwise required by the laws of any jurisdiction, this Agreement may on notice to You by Xplor commence to be governed by, and/or be construed in accordance with, the laws of any other jurisdiction from which Xplor operates or in which Xplor makes the Services available in which case and from the date of notice by Xplor the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of that jurisdiction and waive any right to object to proceedings being brought in those courts.
If any part or provision of this Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as is possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under or pursuant to this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Xplor must be sent to firstname.lastname@example.org or to any other email address notified by email to You by Xplor. Notices to You will be sent to the email address you have provided via the Service Panel.
Rights of Third Parties
Unless expressly indicated otherwise in this Agreement, a person who is not a party to this Agreement has no right to benefit under, or to enforce, any term of this Agreement.
Updates and Amendments
- You acknowledge that from time to time and as Xplor determines it necessary or desirable to do so Xplor may update any aspect of the Services.
- You acknowledge that, in the event of an update of any aspect of the Services or for such other reasons as Xplor may determine, Xplor may make reasonable amendments to this Agreement (or any part of it) to give effect to, or properly accord with, the Services from time to time and You hereby agree to accept such amendments.
- Any amendments by Xplor pursuant to this clause may be advised to You in writing including via the Website, the Products and/or the Equipment and shall take effect 14 days from the date of such notice unless You communicate to Xplor, in writing via e-mail an objection to the amendments.
The parties acknowledge and agree that the Special Terms that may be agreed separately and in writing form part of this Agreement.
This End User Licence Agreement (EULA) is a legal agreement between you and MYXPLOR PTY LTD (XPLOR). This EULA governs the XPLOR Software Products made available to you on this site (Website), which may include software, code, scripts, schemas, templates, slides, instructions, associated media, Internet-based services, support services and related printed or electronic documentation (Products). By installing and/or using the Products, you agree to the terms of this EULA (Terms). Please read the Terms carefully and in full prior to completing the installation process and using the Products. If you do not agree with the Terms please do not install or use the Products.
1. General Use Rights
1.1 Upon downloading, installing or using a Products (whichever comes first), you are granted a revokable, non-transferable, non-exclusive and limited licence (Licence) to use the Products for your personal use only and strictly in accordance with these Terms, for the term of the Licence (Licence Term) commencing on the date that you purchase the Licence.
1.2 You may install and use the Products on your personal computer and electronic devices.
1.3 You consent to XPLOR creating, storing and using data, content and any other materials (potentially including media content featuring your child) uploaded to, or integrated with, the Products (Content) as necessary to enable XPLOR to provide the Products and the functionality as part of the Products.
1.4 You consent to content, whether created by a school, nursery, early learning centre or any other educational institution, XPLOR, parents or guardians, being available for download by end users and acknowledge and consent to your child incidentally featuring in content downloaded by other end users (for example, where the child in question features in the background of other content downloaded by another end user).
1.5 You must NOT without written consent of XPLOR share the Licence or the contents of the Products with others. This means that any content downloaded by you is intended for your personal use and may not be further distributed by you.
1.6 You agree that XPLOR may, upon reasonable notice to you, audit your use of the Products for compliance with these Terms. In the event that such audit reveals any use of the Products by you other than in full compliance with these Terms, you shall reimburse XPLOR for all reasonable expenses related to such audit in addition to any other liabilities XPLOR incurs as a result of such non-compliance.
1.7 Before posting, sharing, publishing, distributing or otherwise making use of any Content you will think carefully about whether or not such posting, sharing, publishing, distribution or use is appropriate, harmful or may otherwise put any person at risk of receiving negative attention.
2.1 You must NOT:
2.1.1 make or distribute copies of the Products, or electronically transfer the Products from one computer to another or over a network;
2.1.2 alter, digitize, merge, modify, adapt or translate the Products, or decompile, reverse engineer, disassemble, or otherwise reduce the Products to a human-perceivable form;
2.1.3 sell, transfer, rent, lease, license or sub-license the Products;
2.1.4 attempt to undermine the security or integrity of XPLOR’s computing systems or networks or, where the Products are hosted by a third party, that third party’s computing systems and networks;
2.1.5 not use, or misuse, the Products in any way which may impair the functionality of the Products or Website, or other systems used to deliver the Products or impair the ability of any other user to use the Products or Website;
2.1.6 not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Products are hosted;
2.1.7 transmit, or input into the Website or Products, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you do not have the right to use);
2.1.8 upload, or otherwise introduce, any material to the Products (including any Content) that:
(a) infringes someone else’s rights (including their intellectual property rights) or is otherwise restricted from copying or distribution;
(b) is offensive, blasphemous, obscene, defamatory, otherwise harmful and/or otherwise illegal/unlawful; or
(c) contains or gives access to any viruses, worms, trojan horses, logic bombs, spyware or other malicious or disabling code or software programs.
2.1.9 broadcast, transmit or otherwise display in a public forum the Products or any part of the Products;
2.1.10 post the Products or part of the Products on any website;
2.1.11 assign and/or novate any rights and obligations under these Terms;
2.1.12 modify the Products or create derivative works based upon the Products;
2.1.13 use the Products for commercial purposes other than the purpose for which it is supplied to you;
2.1.14 use the Products to develop any Products having the same primary function as the Products; or
2.1.15 use any Content except in accordance with the obligations set out under clause 17.
2.2 You acknowledge and agree that:
2.2.1 the Products may include technical inaccuracies or errors;
2.2.2 the party permitted to make changes to the Products (whether XPLOR or the Supplier of the Products (Supplier)) may make improvements or other changes in the Products at any time;
2.2.3 you are authorised to use the Products and the Website and to access the information and Data that you input into the Website, including any information or Data input into the Website by any person you have authorised to use the Products. You are also authorised to access the processed information and Data that is made available to you through your use of the Website and the Products (whether that information and Data is your own or that of anyone else);
2.2.4 you accept complete responsibility for any materials uploaded to the Products by you (including all Content) and agree to indemnify XPLOR and any of its affiliates, employees and officers from and against any and all claims or loss sustained or incurred by any of them arising out of or in connection with such materials;
2.2.5 XPLOR has no responsibility to any person other than you and nothing in this agreement confers, or purports to confer, a benefit on any person other than you. If you use the Products or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
(a) you are responsible for ensuring that you have the right to do so;
(b) you are responsible for authorising any person who is given access to information or Data, and you agree that XPLOR has no obligation to provide any person access to such information or Data without your authorisation and may refer any requests for information to you to address; and
(c) you will indemnify XPLOR against any claims or loss relating to: (a) XPLOR’s refusal to provide any person access to your information or Data in accordance with these Terms; and (b) XPLOR’s making available information or Data to any person with your authorization.
2.3 The provision of, access to, and use of, the Products is on an “as is” basis and at your own risk.
2.4 XPLOR does not warrant that the use of the Products will be uninterrupted or error-free. Among other things, the operation and availability of the systems used for accessing the Products, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Products. XPLOR is not in any way responsible for any such interference or prevention of your access or use of the Products.
2.5 XPLOR is not your accountant and use of the Products does not constitute the receipt of accounting advice. If you have any accounting questions, please contact an accountant.
2.6 It is your sole responsibility to determine that the Products meet the needs of your business and are suitable for the purposes for which they are used.
2.7 You remain solely responsible for complying with all applicable accounting, tax and other laws. It is your responsibility to check that storage of and access to your Data via the Software and the Website will comply with laws applicable to you (including any laws requiring you to retain records).
If the copy of the Products is an upgrade from an earlier version of the Products, you must possess a valid full Licence to a copy of an earlier version of the Products used to upgrade to this upgrade copy in order to install and/or use this upgrade copy, and the upgrade copy is provided to you on a Licence exchange basis. You agree by your installation and use of such copy of the Products to voluntarily terminate your earlier agreement and uninstall, destroy and cease using the earlier version of the Products or transfer it to another person or entity.
XPLOR and its Supplier(s) retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Products (as an independent work and as an underlying work serving as a basis for any application the Customer may develop), and all copies thereof. All rights not specifically granted in these Terms are reserved by XPLOR and its Supplier(s).
5. Links to Third Party Sites
5.1 You may link to third party sites through the use of the Products. The third party sites are not under the control of XPLOR, and XPLOR is not responsible for the contents of any third party sites, any links contained in third party sites, or any changes or updates to third-party sites.
5.2 XPLOR is not responsible for any form of transmission received from any third party sites. XPLOR is providing these links to third party sites to you only as a convenience, and the inclusion of any link does not imply an endorsement by XPLOR of the third party site.
6. Additional Licensed Content/Services
These Terms apply to any updates, supplements, add-on components, or Internet-based services components, of the Products that XPLOR may provide to you or make available to you after the date you obtain your initial copy of the Products, unless XPLOR provides other terms along with the update, supplement, add-on component, or Internet-based services component. XPLOR reserves the right to discontinue any Internet-based services provided to you or made available to you through the use of the Products.
7. Intellectual Property
7.1 “Intellectual Property Right” means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
7.2 Title to, all Intellectual Property Rights in the Products, the Website and any documentation relating to the Products remain the property of XPLOR (or its licensors).
7.3 You must not remove or modify any copyright notice on the Products nor register any copyright based on the Products.
7.4 You must not use any of XPLOR’s or its Supplier(s)’ trademark(s) (Trademark), nor register in any country any Trademark, or any mark confusingly similar to the Trademark, whether along or in combination with the Trademark.
8.1 You must use your best endeavours to ensure that the Products are protected at all time from access, use or misuse, damage or destruction by any person not authorised to use the Products pursuant to these Terms.
8.2 You must ensure that all usernames and passwords required to access the Products are kept secure and confidential. You must immediately notify XPLOR of any unauthorised use of your passwords or any other breach of security and XPLOR will reset your password and you must take all other actions that XPLOR reasonably deems necessary to maintain or enhance the security of XPLOR’s computing systems and networks and Your access to the Products.
9.1 If you:
9.1.1 breach any of these Terms;
9.1.2 become insolvent or bankrupt, or become subject to any similar insolvency event in any jurisdiction,
XPLOR may take any or all of the following actions, at its sole discretion:
(a) terminate this Agreement and your use of the Products and the Website;
(b) suspend for any definite or indefinite period of time your use of the Products and the Website; or
(c) suspend or terminate your access to all or any Data.
9.2 For the avoidance of doubt, if payment of any Access Fees (per the TOS) is not made in full by the relevant due date, XPLOR may suspend or terminate your use of the Products and your rights of access to all or any Data.
9.3 Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement you will remain liable for any accrued charges and amounts which become due for payment before or after termination; and immediately cease to use the Products and the Website.
9.4 You must destroy all copies of the Product(s) and all of its component parts and you will not be entitled to a refund of any fees already paid by you.
9.5 The following Terms (together with any other Terms intended to continue in force on or after termination or expiry will remain in full force and effect) will survive any termination: All definitions and clauses 7, 10, 11, 12, 13 and 17 and this clause 9.
10. Warranties and Exclusions
10.1 Provisions of the Competition and Consumer Act 2010 and other laws in force from time to time in Australia may imply warranties or conditions or impose obligations and guarantees on XPLOR and its Supplier(s) which cannot be excluded (Implied Terms). If any such provisions apply, to the extent permitted by law XPLOR’s liability will be limited at its option to the resupply, repair or replacement of the Products or the cost of such resupply, repair or replacement. Subject to such provisions, all representations, conditions and warranties of any nature are expressly excluded. Nothing in this clause excludes, restricts or modifies your rights under a mandatory term.
10.2 You warrant that where you have registered to use the Products on behalf of another person, you have the authority to agree to these Terms on behalf of that person. You agree that by registering to use the Products you bind the person on whose behalf you act to the performance of any and all obligations that you become subject to by virtue of these Terms, without limiting your own personal obligations under these Terms.
10.3 XPLOR gives no warranty about the Products (or any functionality or services provided as part of the Products). Without limiting the foregoing, XPLOR does not warrant that the Products will meet your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non- infringement.
11. Exclusion of Incidental, Consequential and Certain Other Damages
11.1 Subject to any Implied Terms and to the maximum extent permitted by applicable law, in no event shall XPLOR or its suppliers be liable for any special, incidental, punitive, indirect, or consequential damages whatsoever, arising out of or in any way related to:
11.1.1 the use of or inability to use the Products;
11.1.2 the provision of or failure to provide any support or other services;
11.1.3 information, software, and related content (including any Content) through the Products; or
11.1.4 any provision of these Terms,
even in the event of the fault, tort (including negligence), misrepresentation, strict liability, breach of contract or breach of warranty of XPLOR or any supplier to XPLOR, and even if XPLOR or any Supplier(s) has been advised of the possibility of such damages.
12. Limitation of Liability and Remedy
Subject to any Implied Terms, the entire liability of XPLOR and any of its Suppliers under any provision of these Terms (including with respect to the Products) and your exclusive remedy hereunder will be limited to the actual damages you incur in reasonable reliance on the Products up to AU$100.
13. Your Indemnity
13.1 You will indemnify XPLOR, its directors, employees, contractors and agents from and against all damages, losses, claims and expenses:
13.1.1 in the event that your act or omission causes or contributes to XPLOR breaching its obligations with the Supplier of the Products; or
13.1.2 as a result of your use of the Products, including but not limited to, any modification by you of the Products (whether done with XPLOR’s consent or otherwise) which causes the Products to infringe the intellectual property rights of a third party (including the Supplier(s)).
14. Variation of the Terms
XPLOR may vary these Terms at any time and shall use reasonable endeavours to give reasonable notice to you of any material change to the Terms.
15.1 “Data” means any data inputted by you or with your authority into the Website or the Products.
15.2 Title to and all Intellectual Property Rights in the Data remain your property. You grant XPLOR a licence to use, copy, transmit, store, and back-up your information and Data for the purposes of enabling you to access and use the Products and for any other purpose related to provision of services to you.
15.3 You must maintain copies of all Data inputted into the Products. XPLOR adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. XPLOR expressly excludes liability for any loss of Data no matter how caused.
15.4 Without prejudice to any restriction in these Terms, if you enable or install any third party application or service for use with the Products (Third Party Service), you agree that XPLOR may allow the provider of the Third Party Service to access your Data as required for the interoperation of that Third Party Service with the Products, and XPLOR is not responsible for any disclosure, modification or deletion of such Data resulting from such access. XPLOR may restrict or disable access to any Third Party Services that are made available through the Products without notice and for any reason, including if the provider ceases to make it available. Your use of Third Party Services: (a) is entirely at your own risk and XPLOR shall have no liability whatsoever in connection with the same; and (b) may be subject to additional terms, conditions and policies applicable to such Third Party Services (such as terms of service or privacy policies of the providers of such Third Party Services).
16.1 If you use any communication tools available through the Website (such as any forum, chat room or message centre), you agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Products, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Products or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which you do not have the right to use).
16.2 When you make any communication on the Website, you represent that you are permitted to make such communication. XPLOR is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Products. As with any other web-based forum, you must exercise caution when using the communication tools available on the Website. However, XPLOR does reserve the right to remove any communication at any time in its sole discretion
17.1 For the purposes of this clause, “Confidential Information” includes all information exchanged between the parties to this EULA, whether in writing, electronically or orally, including the Products and any Content but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party. For the purposes of this clause, Content includes any and all photos, videos or other content that is downloaded by either party via the media download feature within the Products.
17.2 Unless the relevant party has the prior written consent of the other or unless required to do so by law, each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
17.3 You undertake, where Content shows or identifies any person that is not related to you (whether or not it also shows or identifies a person that is related to you), to refrain altogether from posting, sharing, publishing, distributing or using that Content, to any person, on any platform or via any media whatsoever. Without prejudice to XPLOR’s other rights hereunder you undertake that, where so requested by any other person, you will cease and desist – and will use all reasonable endeavours to undo – any such posting, sharing, publishing, distribution or use that you may have made or may have allowed to be made (whether or not in contravention of this clause).
18. General Conditions
18.1 The failure, delay, relaxation or indulgence on the part of a party in exercising, in part or whole, any power, right or remedy conferred upon that party by these Terms shall not operate as a waiver of that power, right or remedy.
18.2 If any provision of these Terms is invalid or not enforceable by a court of competent jurisdiction, it is to be read down and shall otherwise be capable of being severed to the extent of the invalidity or unenforceability, but that shall not affect the validity and enforceability of the rest of the Terms.
18.3 These Terms are governed by and are to be construed in accordance with the laws in force in Victoria. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and waives any right to object to proceedings being brought in those courts.
19.1 You may have an opportunity to post publicly viewable reviews about your experience with the Centres that you have used. These reviews will be available on the website.
19.2 Any review you post must be accurate and may not contain and discriminatory, offensive, defamatory or other language that violates Xplor’s Acceptable Use Policy.
19.3 The review should be unbiased and relevant.
19.4 If Xplor receives a report of a review that violates this policy, Xplor may remove the review from the platform.
19.5 Repeated violations may lead to suspension or permanent deactivation of the account(s) responsible for the reviews.
19.6 Reviews are not verified by Xplor for accuracy and may be incorrect or misleading.
Effective date: July 07, 2019
MyXplor Pty Ltd (“us”, “we”, or “our”) operates the https://ourxplor.com/ website and the Xplor mobile application (hereinafter referred to as the “Service”).
This page informs you of our policies regarding the collection, use and disclosure of personal data when you use our Service and the choices you have associated with that data.
- ServiceService means the https://ourxplor.com/ website and the Xplor mobile application operated by MyXplor Pty Ltd
- Personal DataPersonal Data means data about a living individual who can be identified from those data (or from those and other information either in our possession or likely to come into our possession).
- Usage DataUsage Data is data collected automatically either generated by the use of the Service or from the Service infrastructure itself (for example, the duration of a page visit).
- CookiesCookies are small files stored on your device (computer or mobile device).
- Data ControllerData Controller means the natural or legal person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal information are, or are to be, processed.
- Data Processors (or Service Providers)Data Processor (or Service Provider) means any natural or legal person who processes the data on behalf of the Data Controller.
We may use the services of various Service Providers in order to process your data more effectively.
- Data Subject (or User)Data Subject is any living individual who is using our Service and is the subject of Personal Data.
Information Collection and Use
We collect several different types of information for various purposes to provide and improve our Service to you.
Types of Data Collected
While using our Service, we may ask you to provide us with certain personally identifiable information that can be used to contact or identify you (“Personal Data”). Personally identifiable information may include, but is not limited to:
- Email address
- First name and last name
- Phone number
- Address, State, Province, ZIP/Postal code, City
- Cookies and Usage Data
We may use your Personal Data to contact you with newsletters, marketing or promotional materials and other information that may be of interest to you. You may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or the instructions provided in any email we send.
We may also collect information that your browser sends whenever you visit our Service or when you access the Service by or through a mobile device (“Usage Data”).
This Usage Data may include information such as your computer’s Internet Protocol address (e.g. IP address), browser type, browser version, the pages of our Service that you visit, the time and date of your visit, the time spent on those pages, unique device identifiers and other diagnostic data.
When you access the Service with a mobile device, this Usage Data may include information such as the type of mobile device you use, your mobile device unique ID, the IP address of your mobile device, your mobile operating system, the type of mobile Internet browser you use, unique device identifiers and other diagnostic data.
We may use and store information about your location if you give us permission to do so (“Location Data”). We use this data to provide features of our Service, to improve and customise our Service.
You can enable or disable location services when you use our Service at any time by way of your device settings.
Tracking & Cookies Data
Cookies are files with a small amount of data which may include an anonymous unique identifier. Cookies are sent to your browser from a website and stored on your device. Other tracking technologies are also used such as beacons, tags and scripts to collect and track information and to improve and analyse our Service.
You can instruct your browser to refuse all cookies or to indicate when a cookie is being sent. However, if you do not accept cookies, you may not be able to use some portions of our Service.
Examples of Cookies we use:
- Session Cookies. We use Session Cookies to operate our Service.
- Preference Cookies. We use Preference Cookies to remember your preferences and various settings.
- Security Cookies. We use Security Cookies for security purposes.
Use of Data
MyXplor Pty Ltd uses the collected data for various purposes:
- To provide and maintain our Service
- To notify you about changes to our Service
- To allow you to participate in interactive features of our Service when you choose to do so
- To provide customer support
- To gather analysis or valuable information so that we can improve our Service
- To monitor the usage of our Service
- To detect, prevent and address technical issues
- To provide you with news, special offers and general information about other goods, services and events which we offer that are similar to those that you have already purchased or enquired about unless you have opted not to receive such information
Legal Basis for Processing Personal Data under the General Data Protection Regulation (GDPR)
MyXplor Pty Ltd may process your Personal Data because:
- We need to perform a contract with you
- You have given us permission to do so
- The processing is in our legitimate interests and it is not overridden by your rights
- To comply with the law
Retention of Data
MyXplor Pty Ltd will also retain Usage Data for internal analysis purposes. Usage Data is generally retained for a shorter period of time, except when this data is used to strengthen the security or to improve the functionality of our Service, or we are legally obligated to retain this data for longer periods.
Transfer of Data
Your information, including Personal Data, may be transferred to — and maintained on — computers located outside of your state, province, country or other governmental jurisdiction where the data protection laws may differ from those of your jurisdiction.
If you are located outside Australia and choose to provide information to us, please note that we transfer the data, including Personal Data, to Australia and process it there.
Disclosure of Data
Disclosure for Law Enforcement
Under certain circumstances, MyXplor Pty Ltd may be required to disclose your Personal Data if required to do so by law or in response to valid requests by public authorities (e.g. a court or a government agency).
MyXplor Pty Ltd may disclose your Personal Data in the good faith belief that such action is necessary to:
- To comply with a legal obligation
- To protect and defend the rights or property of MyXplor Pty Ltd
- To prevent or investigate possible wrongdoing in connection with the Service
- To protect the personal safety of users of the Service or the public
- To protect against legal liability
Security of Data
The security of your data is important to us but remember that no method of transmission over the Internet or method of electronic storage is 100% secure. While we strive to use commercially acceptable means to protect your Personal Data, we cannot guarantee its absolute security.
Our Policy on “Do Not Track” Signals under the California Online Protection Act (CalOPPA)
We do not support Do Not Track (“DNT”). Do Not Track is a preference you can set in your web browser to inform websites that you do not want to be tracked.
You can enable or disable Do Not Track by visiting the Preferences or Settings page of your web browser.
Your Data Protection Rights under the General Data Protection Regulation (GDPR)
If you are a resident of the European Economic Area (EEA), you have certain data protection rights. MyXplor Pty Ltd aims to take reasonable steps to allow you to correct, amend, delete or limit the use of your Personal Data.
If you wish to be informed about what Personal Data we hold about you and if you want it to be removed from our systems, please contact us.
In certain circumstances, you have the following data protection rights:
- The right to access, update or delete the information we have on you. Whenever made possible, you can access, update or request deletion of your Personal Data directly within your account settings section. If you are unable to perform these actions yourself, please contact us to assist you.
- The right of rectification. You have the right to have your information rectified if that information is inaccurate or incomplete.
- The right to object. You have the right to object to our processing of your Personal Data.
- The right of restriction. You have the right to request that we restrict the processing of your personal information.
- The right to data portability. You have the right to be provided with a copy of the information we have on you in a structured, machine-readable and commonly used format.
- The right to withdraw consent. You also have the right to withdraw your consent at any time where MyXplor Pty Ltd relied on your consent to process your personal information.
Please note that we may ask you to verify your identity before responding to such requests.
You have the right to complain to a Data Protection Authority about our collection and use of your Personal Data. For more information, please contact your local data protection authority in the European Economic Area (EEA).
We may employ third party companies and individuals to facilitate our Service (“Service Providers”), provide the Service on our behalf, perform Service-related services or assist us in analysing how our Service is used.
These third parties have access to your Personal Data only to perform these tasks on our behalf and are obligated not to disclose or use it for any other purpose.
We may use third-party Service Providers to monitor and analyse the use of our Service.
- Google Analytics Google Analytics is a web analytics service offered by Google that tracks and reports website traffic. Google uses the data collected to track and monitor the use of our Service. This data is shared with other Google services. Google may use the collected data to contextualise and personalise the ads of its own advertising network.
For more information on the privacy practices of Google, please visit the Google Privacy & Terms web page: https://policies.google.com/privacy?hl=en
- Firebase Firebase is an analytics service provided by Google Inc.
We also encourage you to review the Google’s policy for safeguarding your data: https://support.google.com/analytics/answer/6004245.
For more information on what type of information Firebase collects, please visit the Google Privacy & Terms web page: https://policies.google.com/privacy?hl=en
- Google Ads (AdWords)Google Ads (AdWords) remarketing service is provided by Google Inc.
You can opt-out of Google Analytics for Display Advertising and customise the Google Display Network ads by visiting the Google Ads Settings page: http://www.google.com/settings/ads
Google also recommends installing the Google Analytics Opt-out Browser Add-on – https://tools.google.com/dlpage/gaoptout – for your web browser. Google Analytics Opt-out Browser Add-on provides visitors with the ability to prevent their data from being collected and used by Google Analytics.
For more information on the privacy practices of Google, please visit the Google Privacy & Terms web page: https://policies.google.com/privacy?hl=en
- TwitterTwitter remarketing service is provided by Twitter Inc.
You can opt-out from Twitter’s interest-based ads by following their instructions: https://support.twitter.com/articles/20170405
- FacebookFacebook remarketing service is provided by Facebook Inc.
You can learn more about interest-based advertising from Facebook by visiting this page: https://www.facebook.com/help/164968693837950
To opt-out from Facebook’s interest-based ads, follow these instructions from Facebook: https://www.facebook.com/help/568137493302217
Facebook adheres to the Self-Regulatory Principles for Online Behavioural Advertising established by the Digital Advertising Alliance. You can also opt-out from Facebook and other participating companies through the Digital Advertising Alliance in the USA http://www.aboutads.info/choices/, the Digital Advertising Alliance of Canada in Canada http://youradchoices.ca/ or the European Interactive Digital Advertising Alliance in Europe http://www.youronlinechoices.eu/, or opt-out using your mobile device settings.
For more information on the privacy practices of Facebook, please visit Facebook’s Data Policy: https://www.facebook.com/privacy/explanation
Links to Other Sites
We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.
Our Service does not address anyone under the age of 18 (“Children”).
We do not knowingly collect personally identifiable information from anyone under the age of 18. If you are a parent or guardian and you are aware that your Child has provided us with Personal Data, please contact us. If we become aware that we have collected Personal Data from children without verification of parental consent, we take steps to remove that information from our servers.
- By email: email@example.com
- By visiting this page on our website: https://ourxplor.com/
SCHOOLS TERMS OF SERVICE
1.0 Interpretation and precedence
- These Service Terms govern the supply by Xplor of Services to You. Together with the Xplor Customer Agreement, these Service Terms govern the use of the Services by You during the Term. By signing the Xplor Customer Agreement and registering to use the Platform, You are entering into a binding legal Agreement with Xplor. It is therefore important that you carefully read these Service Terms at the time of registering to use the Platform. By signing the Xplor Customer Agreement and registering to use the Platform You acknowledge that You have read and understood these Services Terms, and that You have the authority to enter this Agreement on Your own behalf and also on behalf of Your Invited User(s).
- 1.2 Definitions
- In these Service Terms, these definitions apply:
Access Fee means a 0.3% fee for each transaction performed via the Platform where funds are successfully deposited into the relevant payee’s nominated account.
Agreement means the agreement between Xplor and You made up of the: (a) Customer Agreement; and (b) Service Terms as amended from time to time.
Confidential Information means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, including Data, but excluding: (a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and (b) information developed independently by a party.
- Data means: (a) any data concerning You or Your Invited Users Xplor reasonably requires to provide the Services; (b) any data that You or an Invited User or any person with Your authority inputs into the Platform via the Equipment, the Website or via any other means; and (c) any user ID, password, token, cryptographic key or private information used to access the Westpac Solution.
- Date of Agreement means the date the parties execute the Xplor Customer Agreement as stipulated in Item 1 of the Xplor Customer Terms.
EULA means the terms of the Xplor end user licence agreement available at www.myxplor.com/wpagreement, or otherwise made available by Xplor, as amended from time to time.
Family means a family unit associated with You by or in respect of whom the EULA has been accepted by any means.
Invited User means any person or entity other than You who uses the Services at Your request or with Your authorisation and includes a Family.
Marks means any name, logo or trade mark owned by, or licensed to, Xplor.
Minimum Monthly Fee means the fee stipulated in Item 7 of the Xplor Customer Terms or as otherwise notified by Xplor from time to time.
Personal Information has the meaning prescribed by section 6 of the Privacy Act 1998 (Cth).
Platform means the software platform made available to You by Xplor via the Website or such other means as Xplor may determine from time to time.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended from time to time.
Privacy Laws means the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth), the Do Not Call Register Act 2006 (Cth), and any other legislation, principles, industry codes and policies relating to the handling of Personal Information.
School, You or Your means the party described in Item 2 of the Xplor Customer Terms.
Service Panel means the ‘My Xplor’ section accessible by You within the Platform and which section contains details relating to You and/or Your Invited Users.
Services means any, or all, of the Platform, Website or associated goods and services Xplor makes available from time to time pursuant to this Agreement and includes reasonable set-up, training, and support relating to the Services.
Service Terms means the terms of these Xplor Service Terms and Conditions as amended from time to time.
Special Terms means the terms and conditions, if any, set out in Item 9 of the Xplor Customer Terms.
Term means from the Date of Agreement until the first to occur of the following: (a) the agreement between You and Westpac for the Westpac Solution ends for any reason; (b) You cease to pay the Access Fee in respect of the Services provided to You; or this Agreement is terminated by a party in accordance with clause 9.
- Usage Limits means the limits stipulated in Item 8 of the Xplor Customer Terms (if any), as amended from time to time.
Website means the website accessible at the domain www.myxplor.com or such other site as Xplor may determine from time to time.
Westpac means Westpac Banking Corporation ABN 33 007 457 141.
Westpac Solution means the payment solution that is eligible for use with the Platform and provided to You and/or Your Invited Users by Westpac pursuant to the Westpac Terms including any associated software/hardware provided by Westpac.
Westpac Terms means the terms and conditions pursuant to which Westpac makes the Westpac Solution available to You and/or Your Invited Users.
Xplor means MyXplor Pty Ltd ACN 604 322 910 or otherwise its related entities as You may be advised from time to time.
Xplor Customer Terms means the schedule of terms contained in the Xplor Customer Agreement and labelled as such.
Xplor Customer Agreement means the Agreement between You and Xplor.
- 1.3 Interpretation In this Agreement: (a) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits them all jointly; (b) no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement; (c) all monetary amounts are expressed in Australian Dollars ($AUD); and (d) parties must perform their obligations on the dates and times fixed by reference to Melbourne, Victoria.
- 1.4 Precedence
- If there is any inconsistency between these Service Terms and the Xplor Customer Agreement, the Xplor Customer Agreement will prevail.
- 1.5 Interdependency
- These Service Terms should be read in accordance with the terms of the Xplor Customer Agreement.
- 2.0 Term
This Agreement commences on the Date of Agreement and continues for the Term.
3.0 Rights to use the Platform
Subject to Your compliance with this Agreement, Xplor grants You a revocable, non-transferable, non-sublicensable (except as contemplated by clause 4, non-assignable, non-exclusive right to access and use the Platform during the Term via the Website using the user roles available to You according to Your subscription type.
- 4.0 Hardware requirements
- (a) Xplor is not responsible for providing, maintaining or servicing suitable equipment to access the Platform or use the Services. All equipment or hardware required by You to use the Services must be procured and is used at your sole risk and expense.
(b) You acknowledge and agree that Xplor shall not be liable to You or Your Invited Users for any liability, claim, loss or damage of any kind (including consequential losses) arising directly or indirectly from or in connection with the failure of any equipment or hardware.5.0 Invited Users
- (a) Subject to clause 5(d), You may sub-license Your right to access and use some or all of the Services to Invited Users for their non-commercial purposes and strictly on the condition that You ensure such Invited Users comply with the terms of this Agreement, the EULA and all laws in their use of the Platform.
- (b) You acknowledge and agree that: (i) You determine who is an Invited User and what level of user role and access that Invited User has; and (ii) You can revoke or change an Invited User’s access, or level of access, at any time and for any reason, so that person or entity will cease to be an Invited User or shall have a different level of access, as the case may be.
- (c) If there is any dispute between You and an Invited User regarding access to the Platform, You shall decide what access or level of access that Invited User shall have, if any.
- (d) For the avoidance of doubt, the use of any part of the Services and/or the Platform by an Invited User under a licence granted by You in accordance with clause 5(a), will be deemed to be Your use and You shall be responsible for that Invited User’s compliance with the terms of this Agreement, EULA and all laws.
- (e) For the avoidance of doubt, You will be primarily responsible for the performance of all of Your obligations and responsibilities under this Agreement, irrespective of the failure by any Invited Users to undertake their obligations in relation to their sub-licence of the Services.
- 6.0 Payment obligations
- (a) In consideration of Xplor providing the Services to You, You agree to pay the Access Fee and any Minimum Monthly Fee to Xplor for Your use of the Services.
- (b) For the avoidance of doubt, the Access Fee is only payable for successful payments of invoices and is not payable for refund transactions or unsuccessful transactions, including any dishonoured direct debit.
- (c) You acknowledge and agree that Westpac may charge You a fee for: (i) Your use of the Westpac Solution; and/or (ii) other services provided to You by Westpac in relation to the Services and the Westpac Solution.
- (d) Xplor may pay a commission to Westpac in relation to your purchase and use of Xplor products and services.
- 7.0 Usage LimitationsUse of the Services is subject to the Usage Limits or such limitations as Xplor may advise from time to time, including but not limited to monthly transaction volumes and the number of calls You are permitted to make using the Services.
- 8.0 Dispute resolution
- (a) The parties must use their reasonable endeavours to resolve through negotiation all disputes, conflicts (including, without limitation, conflicts of interest) differences or questions between them arising out of or in connection with this Agreement.
- (b) If, within 14 calendar days, the dispute cannot be resolved following negotiation between the parties, either party may refer the dispute for arbitration. The dispute will be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force.
- (c) The arbitration will be administered by the Australian Centre for International Commercial Arbitration (ACICA).
- (d) The appointing authority will be ACICA.
- (e) The number of arbitrators will be one.
- (f) The place of arbitration will be Melbourne, Australia.
- (g) The language to be used in the arbitral proceedings will be English.
- 9.0 Termination
- (a) A party may terminate this Agreement on 30 days’ notice in writing to the other party.
- (b) Xplor may exercise any of its rights under clause 9(c) if: (i) in relation to a breach of this Agreement that is capable of remedy, You fail to remedy such a breach within 14 days of notice of the breach; (ii) You or Your Invited User commit a breach of this Agreement that is not capable of remedy; or (iii) the agreement between You and Westpac for the provision and/or use of the Westpac Solution ends for any reason.
- (c) Upon the occurrence of any event in clause 9(b), Xplor may: (i) immediately terminate this Agreement and use of the Services by You and Your Invited Users, if any; (ii) suspend for any definite or indefinite period of time use of the Services by You and/or Your Invited Users; and/or (iii) subject to law, including Privacy Laws, suspend or terminate access to the Data by You.
- (d) On termination of this Agreement, You must: (i) immediately cease to use the Services; and (ii) delete all copies of the Platform installed from Your and/or Your Invited Users’ devices which were used to access the Platform.
- (e) Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement, You will remain liable for any accrued charges and amounts which become due for payment before or after termination.
- 10.0 Technical ProblemsIn the case of technical problems with the Services You must make all reasonable efforts to investigate and diagnose problems before contacting Xplor. If, after taking steps to resolve the issue, You still require assistance, you may contact Xplor via one of the following means:
(a) telephone 1300 014 428;
- (b) email to firstname.lastname@example.org;
- (c) web support accessible at http://myxplor.com/support; and
- (d) such other support channels as Xplor may advise from time to time.
- 11.0 Service availability
- (a) Whilst Xplor intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable, including to permit maintenance or other development activity to take place.
- (b) Xplor will use its reasonable endeavours to publish in advance on the Website or by other means as Xplor may reasonably determine, information relating to any known significant outages or interruptions to the Services.
- 12.0 Data
- (a) Your Data remains your property.
- (b) You hereby grant to Xplor a non-exclusive licence to use, copy, transmit, store and back-up the Data to the extent necessary for the purposes of providing You the Services and performing its obligations under this Agreement.
- 13.0 Confidentiality
- (a) A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
- (b) A party may: (i) use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
- (c) Each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of the request or on termination of this Agreement for any reason.
- 14.0 Intellectual property
- (a) Xplor owns all right, title and interest in and to the Services and all intellectual property rights related to the Services.
- (b) Nothing in this Agreement operates to grant You any intellectual property rights in the Services or any part thereof.
- (c) You must not use any Marks without the prior written consent of Xplor or register or attempt to register rights in relation to the Marks, any derivative of the Marks, or anything similar to them.
- 15.0 Warranties
- (a) Xplor hereby excludes all express and implied conditions and warranties in relation to the Services and this Agreement except those conditions or warranties that cannot be excluded by law.
- (b) Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) or any equivalent Act of any State or Territory of Australia except to the extent permitted by such Acts. You warrant to Xplor that: (i) You have all licences, permits and other regulatory consents required or necessary to enter into, and perform Your obligations and rights under, this Agreement; (ii) You have the authority to grant the licence pursuant to 12(b) of this Agreement; (iii) You have the authority to enter into, perform and observe Your obligation under the terms and conditions of this Agreement; (iv) You are using the Services for the commercial purposes contemplated by this Agreement only; (v) You have attended to all backups, and have maintained copies of, the Data and You acknowledge that Xplor is not responsible for maintaining or storing the Data; and (vi) the use by Xplor of the Data will not result in any unauthorised use of the rights of any person.
- (c) Xplor provides no warranty: (i) that any result or objective can or will be achieved or attained at all by You or Your Invited Users by termination of this Agreement or by any other date; and (ii) that the Services will be fit for purpose, continuous, uninterrupted, accurate, fault-free, virus-free, secure or accessible at all times.
- 16.0 Liability
- (a) To the absolute extent permitted by law, Xplor will not be liable to You or Your Invited Users for any liability, claim, loss or damage of any kind (including consequential losses which may be, but is not limited to any loss of actual or anticipated profits, revenue, savings, business, opportunity, access to markets, goodwill, reputation, publicity use or loss of data) arising from or in connection with this Agreement or the use of the Services by You or Your Invited Users except to the extent that the liability, claim, loss or damage is directly attributable to the negligence or wrongful act or omission of Xplor.
- (b) To the fullest extent permitted by law, Xplor’s total aggregate liability for all claims relating to this Agreement is limited to the fees payable under this Agreement.
- (c) Pursuant to s64A of the Australian Consumer Law, this clause 16(c) applies in respect of any services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss51 to 53 of the Australian Consumer Law) is limited to any of the following as determined by Xplor: (i) the re-supply of the Services; or (ii) the payment of the cost of re-supplying the Services.
- (d) You hereby acknowledge and agree that Xplor shall not be liable to You or Your Invited Users for any liability, claim, loss or damage of any kind (including consequential losses which may be, but is not limited to any loss of actual or anticipated profits, revenue, savings, business, opportunity, access to markets, goodwill, reputation, publicity, or use) arising directly or indirectly from or in connection with the failure by any means of the Westpac Solution.
- 17.0 IndemnityYou are liable for and must indemnify Xplor, its directors, employees, contractors and agents (together, the Indemnified Party) from and against all damages, losses, claims and expenses incurred or suffered by the Indemnified Party arising as a direct result of: (i) breach by You or Your Invited Users of this Agreement; and (ii) any unlawful or negligent act or omission by You or Your Invited User.
- 18.0 Entire agreementThe Agreement constitutes the entire agreement between You and Xplor relating to the Services and it supersedes all prior agreements, representations (whether oral or written), and understandings between Xplor and You relating to the same.
The failure by Xplor to exercise any of its rights arising under this Agreement will not operate as a waiver of the right and the express waiving of any particular right, including a right in respect of a breach of this Agreement by You, will not operate as a waiver of any other right.
- 20.0 DelaysNeither party will be liable for any delay or failure in performance of its obligations under this Agreement if the delay or failure is due to any cause outside its reasonable control. This clause 20 does not apply to any obligation to pay money.
- 21.0 Assignment
- (a) Xplor may assign its rights under, and/or novate, this Agreement at any time by notice in writing to You.(b) You may not assign any rights under this Agreement to any other person without Xplor’s prior written consent.
- 22.0 Governing law and jurisdictionThis Agreement is governed by and is to be construed in accordance with the laws in force in Victoria. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria and waives any right to object to proceedings being brought in those courts.
- 23.0 SeverabilityIf any part or provision of this Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as is possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
- 24.0 SurvivalAny clause of this Agreement that is by its nature intended to survive termination does so, including clauses 9(e), 13, 13(c), 15, 16, 17, 22, 23 and 24.
- 25.0 NoticesAny notice given under or pursuant to this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Xplor must be sent to email@example.com or to any other email address notified by email to You by Xplor. Notices to You will be sent to the email address You have provided via the Service Panel.
- 26.0 Rights of Third PartiesUnless expressly indicated otherwise in this Agreement, a person who is not a party to this Agreement has no right to benefit under, or to enforce, any term of this Agreement.
- 27.0 Updates and amendments
- (a) You acknowledge that from time to time and as Xplor determines it necessary or desirable to do so Xplor may update any aspect of the Services.
- (b) You acknowledge that, in the event of an update of any aspect of the Services or for such other reasons as Xplor may determine, Xplor may amend these Service Terms in whole or part in its sole discretion without notice to You.
- (c) Any amendments to this Agreement will be effective immediately upon the posting of the revised Service Terms on the Website, Platform and/or Equipment. Depending on the nature of the amendment, Xplor may announce the change on the Website home page or by email. However, in any event, by continuing to use the Services following any amendments, You will be deemed to have agreed to such amendments.
- 28.0 Special TermsThe parties acknowledge and agree that any Special Terms set out in the Customer Terms form part of this Agreement.
BETA TERMS AND CONDITIONS
Important: Please read this Beta Testing Agreement (“Agreement”) carefully as it sets out the terms and conditions you must agree to in order to participate as a Beta test site.
THIS AGREEMENT CONTAINS THE TERMS AND CONDITIONS OF USE OF XPLOR BETA SOFTWARE TO BE ACCEPTED BEFORE ACCESSING OF ANY XPLOR BETA SOFTWARE. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING OR USING ANY SOFTWARE FROM THIS WEBSITE. YOU SHOULD UNDERSTAND THAT BY ACCESSING ANY SOFTWARE FROM THIS WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS CONSTITUTE A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND MYXPLOR PTY LIMITED. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, ABANDON THE REGISTRATION PROCESS AND DO NOT ACCESS OR USE XPLOR BETA SOFTWARE.
NOW, THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties hereto agree as follows:
GENERAL TERMS AND CONDITIONS
- MyXplor Pty. Ltd. (“Xplor”) frequently develops pre-release Beta versions of software functionality, not immediately available for public release, including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material (“Beta Software”).
- Xplor desires that the Beta Software be tested prior to a generally available commercial release.
- You (“User”) wish to serve as a Beta test site for such Beta Software and acknowledge the Beta Disclaimer;
THE BETA SOFTWARE MAY CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING AGREEMENT IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. User IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE BETA SOFTWARE AND/OR ACCOMPANYING MATERIALS.
- These terms and conditions apply to you regardless of how you have accessed the Beta Software and regardless of the territory in which you live or conduct business.
- LIMITED LICENSE GRANT. Xplor grants to User a non-exclusive, non-transferable, non-sublicensable revocable license to use the Beta Software solely for Beta testing and use from the date of accessing the Beta Software until the official release date of the generally available commercial version of the Beta Software, subject to the term and conditions below. Xplor may vary these terms and conditions or the duration of the test period at any time and for any reason.
- FEEDBACK. In consideration for receiving access to the Beta Software for testing, User agrees to serve as a “Beta test site” for the Beta Software and will gather and report test data to Xplor. User agrees to give Xplor feedback, comments or enhancement suggestions on the Beta Software (the “Feedback”). Feedback shall include informing Xplor about the performance, ease of use, features that may be missing, and any bugs encountered during the use of the Beta Software. Xplor may contact User and User agrees to make available a reasonable amount of time to discuss the Beta Software with Xplor if so requested. User hereby assigns to Xplor all rights, title and interest to such ideas for enhancements, including any product enhancements developed as a result of such ideas and Feedback. User agrees that Xplor may use the Feedback for any purpose.. User will not give Xplor any Feedback that (i) you have reason to believe is subject to any patent, copyright, or other intellectual property claim or right of any third party or (ii) that is subject to license terms that seek to require any Xplor product incorporating or derived from any Feedback, or other Xplor intellectual property, to be licensed to or otherwise shared with any third party.
- CONFIDENTIAL INFORMATION. The Beta Software, any information relating to beta testing progress and results, the Feedback, any product-related information and any other proprietary technology or know-how provided to you in whatever form by Xplor in connection with testing and evaluation of the Beta Software is confidential (“Confidential Information”). You will keep, and ensure that any and all persons, firms, companies or organisations associated with you keep, all Confidential Information confidential and not disclose it to any person, unless permitted under this clause. This confidentiality obligation does not apply to the disclosure of Confidential Information which: (a) is or comes into public domain, except through breach of the confidentiality obligation under this clause; (b) comes lawfully into your possession from a third party who is not bound by a confidentiality obligation relating to such Confidential Information; (c) is required to be disclosed by any court of competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body, or any law, provided that you will promptly notify Xplor in writing, or (d) is disclosed by you with Xplor’s prior written consent.
User agrees that the Beta Software is the sole and exclusive property of Xplor and includes valuable trade secrets and other intellectual property of Xplor. User agrees to treat the Beta Software and any documentation or other materials provided with the Beta Software as confidential, and will not without the prior express written authorization of Xplor:
- Demonstrate, copy, sell, market or grant access to the Beta Software to any third party; or
- Publish or otherwise disclose information relating to performance or quality of the Beta Software to any third party or share any documentation or other materials relating to the Beta Software with any third party; or
- Modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the Beta Software or any portion thereof.
- INTELLECTUAL PROPERTY. User acknowledges that this Agreement does not transfer any right, title or interest in any intellectual property right to it. Xplor maintains all rights, title and interest in and to all its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The limited rights granted to User to access and use the Beta Software under this Agreement do not convey any additional rights in the Beta Software, or in or to any Intellectual Property Rights associated therewith. All rights, title and interest in and to the Beta Software and all hardware, software and other components of or used to provide the Beta Software including all related Intellectual Property Rights, will remain with and belong exclusively to Xplor.
- NO WARRANTY. The Beta Software is prerelease code and is not at the level of performance or compatibility of a final, generally available product offering. The Beta Software may not operate correctly and may be substantially modified prior to first commercial shipment, never released commercially, or withdrawn after commercial release. The Beta Software is provided “AS IS” without warranty of any kind, express or implied, including without limitation, any warranty as to performance, non-infringement of third party rights, merchantability, or fitness for a particular purpose. The entire risk arising out of the use or performance of the Beta Software remains with User. The Beta Software may void warranty on User’s product. Should the Beta Software prove defective, User assumes the cost of all necessary maintenance, servicing or repair. It is therefore User’s responsibility to take adequate precaution against possible damages resulting from the use of the Beta Software.
In no event shall Xplor be liable for any damage whatsoever arising out of the use of or inability to use the Beta Software, including without limitation, any direct, indirect, consequential, exemplary, special, incidental or punitive damages, or damages for lost data or lost profits, even if Xplor has been advised of the possibility of such damages.
- REFERENCE. Upon completion of the Beta testing period, Xplor may request User to provide material, statistics, or information that is not deemed confidential to User’s business for use in press releases, customer testimonials, and as a reference in marketing and sales initiatives by Xplor.
- EXPIRATION. User’s rights with respect to the Beta Software will expire upon the generally available commercial release of the Beta Software. Either party may terminate this Agreement at any time with or without reason by providing advance written notice. Upon any expiration or termination of this Agreement, the rights and licenses granted under this Agreement shall immediately terminate. User participation privileges may be terminated immediately without written notice upon failure to comply with any of the terms and conditions of this Agreement or failure to provide reasonable feedback in a timely manner.
- ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire and only agreement between the parties for Beta Software and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties.
- GOVERNING LAW. This Agreement is governed by and is to be construed in accordance with the laws in force in the Commonwealth of Australia and the state of Victoria therein. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and waives any right to object to proceedings being brought in those courts.If Xplor determines, or if it is otherwise required by the laws of any jurisdiction, this Agreement may on notice to User by Xplor commence to be governed by, and/or be construed in accordance with, the laws of any other jurisdiction from which Xplor operates or in which Xplor makes the Services available in which case and from the date of notice by Xplor the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of that jurisdiction and waive any right to object to proceedings being brought in those courts.