XBert is a secure, web-based cloud accounting software add-on that detects bookkeeping errors and financial risks to your business. These terms and conditions set out the terms on which we will provide our services to you.
Please read these Terms carefully. By accepting these Terms, you agree that:
• we may amend the Services (including any features) or the Fees at any time, by providing written notice to you. If you do not agree to any amendment made to the Services or the Fees, you may terminate these Terms;
• your failure to pay any fees may result in us ceasing the provision of Services and charging interest on unpaid amounts; and
• you are liable for any fees charged by our third party payment processor as a result of a late payment.
1.1 XBert Pty Ltd ABN 26 632 237 293 (we, us or our), own the cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software (Software) which is accessible at xbert.io, and may be available through other addresses and channels (Site).
1.2 These terms and conditions (Terms):
(a) set out the terms and conditions upon which we agree to grant you a right to use the Services; and
(b) are binding on you on and from the date on which you accept these Terms (Effective Date) until the date on which your Account and these Terms are terminated in accordance with the terms (the Term).
1.3 You accept these Terms by clicking a box indicating your acceptance.
1.4 If you create an Account and are agreeing to these Terms on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means the Entity and you are binding that Entity to these Terms. If you are accepting these Terms on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so.
2.1 In consideration of payment of the Fees, we will provide the Services to you and your Authorised Users in accordance with these Terms, whether ourselves or through our Personnel.
2.2 You agree that we may amend the Services (including any features) or the Fees at any time, by providing written notice to you. If you do not agree to any amendment made to the Services or the Fees, you may terminate these Terms in accordance with clause 19.1.
2.3 We warrant and agree that, we will use reasonable effort to ensure all of our obligations under these Terms will be carried out:
(a) by suitably competent and trained Personnel; and
(b) in an efficient and professional manner.
3.1 Subject to your and your Authorised Users’ compliance with these Terms and the payment of any applicable Fees, we grant you (and your Authorised Users) a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the SaaS Services solely for your internal business purposes and as contemplated by these Terms, for the applicable Subscription Period (Licence).
3.2 You must not (and must ensure that any Authorised Users do not) access or use the SaaS Services except as permitted by the Licence and you must not and must ensure that any other person (including an Authorised User) does not:
(a) access or use the SaaS Services except as permitted by the Licence, or other than through the interface that is provided by us;
(b) use the SaaS Services in any way that breaches any applicable Laws or infringes any person's rights, including Intellectual Property Rights (and privacy rights) or gives rise to any civil or criminal liability;
(c) use the SaaS Services in any way that damages, interferes with or interrupts the supply of the SaaS Services;
(d) introduce malicious programs into our hardware and software or Systems, including any viruses or malware through any channel;
(e) directly or indirectly use, copy, decompile or reverse engineer the SaaS Services;
(f) attempt to access any data or log into any server or account that you are not expressly authorised to access;
(g) allow others to access or use your/their Account, password or authentication details;
(h) continue to use the SaaS Services after termination of their employment and/or relationship with you;
(i) use the SaaS Services to carry out security breaches or disruptions of a network. This includes accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
(j) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person's use of the SaaS Services;
(k) use the SaaS Services to circumvent user authentication or security of any of our networks, accounts or hosts or those of members or suppliers;
(l) use the SaaS Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; and
(m) if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person's privacy (such as by way of identity theft or "phishing").
4.1 You will require an Account, and each of your Authorised Users will require a login (which is linked to your Account), in order to use the Services.
4.2 Once you have created an Account using our Site, you will be able to invite your Authorised Users to create logins. You acknowledge and agree that:
(a) you determine who is an Authorised User and what level of access that Authorised User has; and
(b) you can revoke or change an Authorised User’s access at any time and for any reason, so that person will cease to be an Authorised User or shall have a different level of access, as the case may be.
4.3 If there is any dispute between you and an Authorised User regarding access to the Site, you shall decide what access that Authorised User shall have, if any.
4.4 You must ensure that any information you provide to us, or we request from you, for any Account or login, is complete and accurate, and you are authorised to provide this information to us.
4.5 It is your responsibility to keep your Account details confidential and to ensure that all Authorised Users do the same in relation to their login details. You are responsible for all activity on your Account and all activity by any Authorised User, and for ensuring that any activities on any Account and login complies with these Terms.
4.6 We are not responsible for the management or administration of your Account, any logins or your Authorised Users. It is your responsibility to upload client files in order to use our Services.
4.7 Free or Trial Account: We may offer you a free or trial Account with limited features designed to allow you to evaluate the Services and make sure it is right for you before signing up for a paid Workflow Plan. We reserve the right to change the availability of, length of, features included in and any other aspects of free or trial Accounts at any time without notice at our sole discretion. We have the right to terminate any trial Account if you are found to be misusing the Services. Despite anything to the contrary, you may terminate your Account at any time during any free or trial period. If you do not wish to continue using the Services beyond the free or trial period, you should cancel your Account before the end of this period. If you do not cancel your Account before the end of the free or trial period, we reserve the right to lock all or partial access to your Account until you have agreed to pay the Fees for the continued use of your Account. We further reserve the right to cancel or delete all or any part of your Account at any time after the free or trial period expires if you do not agree to pay the Fees for continued use of your Account or any specific subset of your Account to which separate Fees may apply.
5.1 Subject to clause 5.2, we agree to use commercially reasonable endeavours to ensure that the SaaS Services will be available and accessible at all times during the applicable Subscription Period.
5.2 During the applicable Subscription Period, from time to time, we may perform reasonable scheduled and emergency maintenance and updates in relation to the SaaS Services. You agree that access to, or the functionality of all or part of the SaaS Services, may need to be suspended for a time in order for us to do this and to the maximum extent permitted by law, we will not be liable to you for any interruptions or downtime to the SaaS Solution as a result of any scheduled or emergency maintenance.
5.3 We will endeavour to provide you with reasonable notice, where possible, of any interruptions to access and availability of the SaaS Services.
6.1 Following creation of an Account, you must select a WorkflowPlan and volume of Connected Client Plan. The applicable Fees associated with your Workflow Plan and Connected Client Plan will be set out on your Account or the Site.
6.2 If you select an annual Workflow Plan or ConnectedClient Plan, we may offer you a discount on the Fees in consideration for you paying the Fees for the applicable Subscription Period in full upfront in advance. Any applicable discount to your Fees will be set out on your Account or the Site (Discount).
6.3 Subscription Plans may require or allow you to purchase additional services by agreeing to pay the Fees for those services that are made available as an add-on or upgrade to your existing service (Additional Services). Additional Services may be made available through the product user interface or via our customer support service, email or any other method we may so choose to offer these through. You agree to be bound by any auditable commitment to pay the Fees for Additional Services regardless of the specific medium through which this commitment is made.
6.4 We may, at our discretion, provide you with written notice in the form of a scope of services or a statement of work covering any Workflow Plan, combination of Workflow Plans, Additional Services or any combination of these, including and any Fee required for us to provide the Workflow Plan(s) and/or AdditionalServices.
6.5 If you agree to any scope of services or statement of work, then we will provide the scope of services to you in consideration for the payment of the required Fees.
6.6 In the event of any conflict between any terms and conditions contained in a statement of work and these Terms, the statement of work terms and conditions will prevail.
7.1 You agree that the SaaS Services include Third Party Inputs that interface, or interoperate, with the SaaS Services, including third party software or services and that the provision of the SaaS Services is contingent on, limited to or impacted by, Third Party Inputs (for example, third party integrations (such as with your Xero system)). Connections between the SaaS Services and Third Party Inputs may drop out and you are responsible for checking the “Organisations” tab on the SaaS Services to ensure that no Third Party Input has dropped out. You release us from all Liability for the SaaS Services caused by a Third Party Input dropping out.
7.2 You must comply with our reasonable instructions and directions, whether written or verbal, in relation to use of any Third-Party Inputs. Where we provide you with any terms and conditions for use of these Third-Party Inputs, you agree that you will comply with these and are liable for any damages and/or loss that we incur as a result of any non-compliance by you.
7.3 For the avoidance of doubt, to the extent Third Party Inputs involve or concern integrations with your existing systems, you are responsible for:
(a) the purchase of;
(b) the requirements; and
(c) the licensing obligations,
related to those Third Party Inputs, including third party software and services.
7.4 To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with any third party inputs you connect to the XBert Services.
8.1 The Support Services are online support via email to support@xbert.io, our live chat found on our Site, a help centre containg product help guides and in the SaaS Services dashboards or any other dedicated channel we may choose to set up with you, between the hours of 9am and 5pm Australian Eastern Standard/Daylight Time (AEST/AEDT) on Australian Business Days, and 9am to 5pm on United Kingdom Business Days In order for you to receive the Support Services, you must place a request. We agree to respond to any such request on a timely basis and will endeavour to respond, where possible, within 48 business hours of the request being made.
Conditions
8.2 Our supply of the Support Services is subject to the following:
(a) your payment of the Fees; and
(b) you using the Services in accordance with these Terms and any reasonable instructions provided by us.
Exclusions
8.3 Our supply of the Support Services excludes support for Third Party Inputs.
9.1 You warrant, represent and agree:
(a) you will provide us with any information that we require in order to provide the SaaS Services to you;
(b) you have the legal capacity to enter into a legally binding agreement;
(c) there are no legal restrictions preventing you from agreeing to these Terms;
(d) that you have reviewed and understand these Terms (including our Privacy Policy), and will use the Services in accordance with them, our reasonable requests or requirements, and all applicable Laws;
(e) you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights and privacy rights) or in any way that damages, interferes with or interrupts the supply of the Services;
(f) to cooperate with us and provide all reasonable assistance, resources, data, people, information, facilities, access and documentation reasonably necessary to enable us to comply with our obligations under these Terms or at Law, in a timely manner;
(g) all information and documentation that you provide to us in connection with these Terms is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;
(h) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes) or any Third Party Inputs, unless expressly stipulated in these Terms;
(i) you have not made any representations or warranties to any third parties that could be construed as being representations or warranties from us in relation to the Services or any other matter;
(j) you are responsible for all users using the Services, including your Personnel and any Authorised Users;
(k) the Services and any associated programs and files are used at your own risk;
(l) the technical processing and transmission of the Services, including Customer Data, and involves:
(1) transmissions over various networks; and
(2) changes to conform and adapt to technical requirements of connecting networks or devices;
(m) you are responsible for obtaining, and providing to us in a timely manner, any consents, licences, authorities and permissions from third parties necessary for the Services to be provided in accordance with these Terms, at your cost;
(n) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users or your Personnel;
(o) the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;
(p) you have the authority to act on behalf of any person or entity for whom you are using the Services and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services;
(q) you have all hardware, software and services which are necessary to access and use the Services (other than those required to be provided by us under these Terms);
(r) you are not and have not been the subject of an Insolvency Event;
(s) if applicable, you hold a valid ABN which has been advised to us; and
(t) if applicable, you are registered for GST purposes.
9.2 To the extent contemplated, this clause 9 will survive termination or expiry of these Terms.
Fees
10.1 You agree to pay us the Fees, and any other amounts payable to us under these Terms, without set-off or delay, via any of the acceptable forms of payment we may offer from time-to-time.
10.2 If required, you also agree to complete a direct debit request form and/or direct debit request service agreement, which may be provided by us or the third-party provider. All Workflow Plan Fees, Connected Client Plan Fees and any associated Fees for Additional Services are payable in advance of the next billing cycle for your Account (Payment Date or Renewal Date).
10.3 You are responsible for reviewing the pricing schedule, features and limits associated with the Services, which are available in writing from us, on the Site and/or in your Account portal.
Direct Debit
10.4 If your WorkflowPlan or Connected Client Plan requires you to pay the Fees via direct debit, you expressly consent to, authorise and instruct us to deduct the Fees from your nominated account as an automatic payment in accordance with the relevant Payment Date. If required, you agree to complete a direct debit request form and/or direct debit request service agreement, which may be provided by us or by a third-party provider on our behalf.
You must ensure your chosen payment method has sufficient funds to pay the Fees on the relevant Payment Dates.
Renewals
10.5 Workflow Plans and Connected Client Plans automatically renew for periods of the same length as your current Subscription Period, unless you cancel your Workflow Plan and Connected Client Plan in accordance with clause 19.
Late Payments
10.6 If you are paying the Fees via direct debit, you are liable for any fees charged by our third party payment processor as a result of a late payment, except to the extent these are as a result of our error or our system failure and where this is the case you should provide us with a copy of the relevant records so that any issue can be resolved.
10.7 If any payment has not been made or is not successful in accordance with these Terms and as specified in your Workflow Plan and Connected Client Plan, we may (at our absolute discretion):
(a) immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so;
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with these Terms; and
(c) engage debt collection services and/or commence legal proceedings in relation to any such amounts.
10.8 If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.
10.9 Upon rectification of such non-payment, you agree to pay for the services from the time that non-payment occurred regardless of the time that has passed between the time of non-payment and the rectification of non-payment
Changing your Workflow Plan or Connected Client Plan
10.10 You may upgrade your Workflow Plan or Connected Client Plan, including changing the plan renewal frequency or the plan tier, at any time in the Account Payment Plan page (or similar) or by any other auditable communication medium or channel that we may support for this purpose from time-to-time.
10.11 If you upgrade your Workflow Plan, the upgrade will happen immediately and the payment method linked to your Account will automatically be charged the pro-rata Workflow Plan Fee for your new Workflow Plan.
10.12 If you upgrade your Connected Client Plan, the upgrade will happen immediately and the payment method linked to your Account will automatically be charged the pro-rata Connected Client Plan Fee for the upgrade as set out on your Account or the Site.
10.13 If you change the billing frequency of your Fees, then this change will take effect from the next Payment Date or Renewal Date.
10.14 If you downgrade your Workflow Plan, the downgrade will happen immediately and a pro-rata credit will be issued to your Account for your Workflow Plan Fees, with the credit balance being applied to future payments of Fees. The refunding of any such credit will be at our sole discretion and, if granted, can only be made to the payment method linked to your Account. If this payment method is not available for a refund, we reserve the right to withhold refundable amounts permanently, foregoing any applicable laws or regulations that may apply. This clause will not apply to any downgrades of Connected Client Plan.
10.15 You may downgrade or decrease your volume of Connected Client Plan any time by deleting or removing the Connected Client Plan files from the Software. Any change to the Connected Client Plan Fee will take effect in the following Subscription Period. You will not receive a refund or credit for the downgrade of Connected Client Plan for the current Subscription Period. If you have a yearly Connected Client Plan and have completed your first Subscription Period, any change to the Connected Client Plan Fee will take place on your next Payment Date.
10.16 You agree that XBert may amend its subscription and fee pricing for services or features at any time. You will be notified by email at least 30 days prior to any billing on your account and you may choose to terminate your account.
10.17 XBert may deploy additional add-on features or services at any time requiring additional fees and charges. Pricing will be made available in-app or on our site. If you do not agree to the additional fees, you may terminate these Terms in accordance with clause 19.
11.1 You agree that we may contact you via the platform for the Services, using in-account notifications or via-off platform communication channels, such as text messages or email with functional notifications.
11.2 You further agree that we may also send marketing and promotional material which may be of interest to you, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the Services.
11.3 You are responsible for the collection, use, and handling of Personal Information related to your business, including all matters relating to Customer Data. However, as a processor of data, we are responsible for the secure storage of such data and for ensuring its privacy in compliance with applicable laws and regulations.
11.4 You must:
(a) ensure that you, your Personnel and Authorised Users comply with all Privacy Laws applicable to all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms;
(b) not use or exploit Customer Data for purposes other than as necessary and legally permitted for your business purposes and or as expressly stated in these Terms (including that you must not on-sell Customer Data to third parties);
(c) use reasonable commercial endeavours to implement and maintain industry standard physical, technical and organisational security measures designed to protect Customer Data from unauthorised access, destruction, use, modification, or disclosure;
(d) ensure the ongoing secure storage of all Customer Data, free from unauthorised access or disclosure (including by regularly backing up Customer Data via a means separate to its storage on the SaaS Services);
(e) keep and maintain all records in accordance with and in the manner prescribed by any Laws (including Privacy Laws) and the requirements of any relevant accounting professional bodies;
(f) ensure that you are legally permitted to disclose any Customer Data (including any Personal Information) to us and you consent to us retrieving Customer Data from any Third Party Input nominated by you for use by us in accordance with these Terms;
(g) ensure that each Third Party Input is required to and handles Customer Data and any Personal Information transferred by the SaaS Services to that Third Party Input in accordance with your obligations under these Terms;
(h) only disclose Personal Information in your possession or control to us (including of Authorised Users) and direct us to perform any Services in relation to such Personal Information, if:
(1) it is reasonably necessary for one or more of your activities or functions; and
(2) you are authorised by Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by these Terms.
11.5 If requested by us, you agree to promptly provide us with sufficient evidence for us to confirm your compliance with clause 11.4.
11.6 You must not input or disclose any Personal Information to us if you have not complied with your obligations in this clause 11.
11.7 You must not do anything which will cause us to violate or infringe any applicable Privacy Laws.
11.8 We agree to handle any Personal Information provided to us, solely for the purpose of performing our obligations under these Terms, and in accordance with any applicable Laws and our Privacy Policy.
12.1 If either Party becomes aware of, or has a real suspicion that, unauthorised access to, or unauthorised disclosure of, Customer Data has occurred (each a Security Incident) which may impact on the other Party, that Party must promptly notify the other Party.
12.2 Where such Security Incident is linked to the SaaS Services each Party agrees to, within a reasonable time:
(a) contain the Security Incident and take remedial steps, to the extent that this is operationally, commercially and technically feasible; and
(b) conduct an investigation to determine whether a Security Incident has occurred, and where one has, the cause and impact of it on Customer Data and any other data related to the SaaS Services.
12.3 You agree that we may suspend the Services, without Liability to you, where a Security Incident has or may have occurred and this is considered necessary or prudent (as determined by us, in our sole discretion) to address or deal with the Security Incident.
12.4 We will bear any of our own costs associated with any investigation, containment and remedial steps taken as a result of a Security Incident, unless the incident triggering the Security Incident is by an Authorised User, a Third Party Input or is as a result of, or in connection with, non-compliance with these Terms by you or an Authorised User, in which case the costs incurred by us and associated with any investigation, containment and remedial steps taken as a result of that Security Incident will be a debt due and immediately payable to us by you.
12.5 Each Party will be responsible for its own compliance with any data breach notification obligations it may have in connection with a Security Incident (including any associated costs).
12.6 This clause 12 will survive the expiry or termination of these Terms.
13.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party;
(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
13.2 The obligations in clause 13.1 do not apply to Confidential Information that:
(a) is required to be disclosed in order for the Parties to comply with their obligations under these Terms;
(b) is authorised to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or
(d) must be disclosed by Law or by a regulatory authority, including under subpoena.
13.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 13. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 13.
13.4 This clause 13 will survive the termination or expiry of these Terms.
14.1 Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights).
14.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
14.3 Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind (including as to fitness for purpose), either express or implied, whether in statute, at Law or any other basis.
14.4 This clause 14 will survive termination or expiry of these Terms.
15.1 This clause 15 will survive termination or expiry of these Terms.
15.2 The Parties agree that nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights.
Our Intellectual Property Rights
15.3 You agree that we (or the relevant third party) owns all Intellectual Property Rights in:
(a) Our Materials;
(b) New Materials or Improvements; and
(c) any Feedback,
and these Intellectual Property Rights will at all times vest, or remain vested, in us (or, if applicable, our third-party service providers). To the extent that ownership of these Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
15.4 In the use of any Intellectual Property Rights in connection with these Terms, you agree that you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred, you must notify us immediately.
15.5 You also agree that:
(a) we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback;
(b) you must not whether directly or indirectly, without our prior written consent:
(1) copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the SaaS Services (or any part of the Services) or otherwise attempt to discover any part of the source code of the SaaS Services;
(2) use any unauthorised, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the SaaS Services;
(3) unless authorised under these Terms, use the Services in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method;
(4) rent the use of the Services to any third parties;
(5) take any action that may compromise or jeopardise our Intellectual Property Rights in the Services or otherwise;
(6) remove or deface any confidentiality, copyright or other proprietary notice placed on the Services; or
(7) use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing.
Customer Data
15.6 As between you and us:
(a) all Customer Data is and remains your property;
(b) you retain any and all rights, title, ownership and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works; and
(c) we will never sell your Customer Data or share your Customer Data with third parties who are not listed in our Privacy Policy;
(d) we will remove all of your Customer Data upon termination of the Account meaning that your Customer Data will leave with you.
15.7 You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term (and for a reasonable period after the Term), to:
(a) supply the Services to you (including to enable you and your Personnel to access and use the Services);
(b) diagnose problems with the Services;
(c) enhance and otherwise modify the Services;
(d) perform Analytics;
(e) perform benchmarking activities against other data we hold;
(f) develop other services, provided we de-identify the Customer Data; and
(g) as reasonably required to perform our obligations under these Terms.
15.8 You acknowledge and agree that:
(a) you must, at all times, ensure the integrity of the Customer Data and that the collection and use of the Customer Data is compliant with all Laws;
(b) we assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up the Customer Data; and
(c) the operation of the Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the use, output and operation of the Services.
15.9 You represent and warrant that:
(a) you have obtained all necessary rights, releases and permissions to provide or have the Customer Data provided to us and to grant the rights granted to us in these Terms; and
(b) the Customer Data is accurate and complete;
(c) the Customer Data (and its transfer to and use by us) as authorised by you, under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
(d) any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.
16.1 Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available and use the Analytics for our own purposes including benchmarking against other data we hold, provided that it:
(a) does not contain identifying information; and
(b) is not compiled using a sample size small enough to make the underlying Customer Data identifiable.
16.2 We, and our licensors own all rights, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
16.3 We may use and disclose to our service providers anonymous data about your access and use of the SaaS Servicse for the purpose of helping us improve the SaaS Services. Any such disclosure will not include details of your, or any Authorised User’s, identity or personal information.
17.1 Despite anything to the contrary and to the maximum extent permitted by law:
(a) neither Party will be liable for any Consequential Loss;
(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and
(c) a Party’s liability for any Liability arising from or in connection with these Terms will be limited to the amount of the Fees paid by you to us in the immediately preceding 12 months for the supply of the relevant Services to which the Liability relates.
17.2 This clause 17 will survive termination or expiry of these Terms.
18.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:
(a) your Computing Environment;
(b) any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
(c) any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Customer Data).
(d) any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;
(e) any Third Party Inputs; and/or
(f) any interruptions or downtime to the SaaS Services as a result of any scheduled or maintenance, unless resulting from our own gross negligence.
18.2 This clause 18 will survive termination or expiry of these Terms.
19.1 You may terminate these Terms at any time by notifying us through your Account or to our email for notices, and if you have a Workflow Plan or Connected Client Plan, termination will take effect at the end of your current Subscription Period.
19.2 We may also terminate these Terms at any time by notifying you through your Account or by email, and if you have a Workflow Plan or Connected Client Plan, termination will take effect at the end of your current Subscription Period.
19.3 If you have signed up for an annual Workflow Plan or Connected Client Plan or Subscription Period, either party may terminate these Terms on 30 days’ written notice to the other party following the initial Subscription Period. Where this termination right is exercised, these Terms, your Account and all Authorised User logins will terminate immediately. On termination under this clause 19.3, you will receive a pro-rata refund or credit of any Fees paid in advance for the current Subscription Period, less any Discount you were granted for the annual Workflow Plan or Connected Client Plan.
19.4 These Terms will terminate immediately upon written notice by a party (Non-Defaulting Party) if the other party (Defaulting Party) breaches a material clause in these Terms and that breach if capable of being remedied has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.
19.5 Upon expiry or termination of these Terms:
(a) we will immediately cease providing the Services;
(b) we will be entitled to permanently delete all Customer Data within 14 days hours from expiry or termination of these Terms;
(c) if requested prior to the expiry or termination of your Account, we may, in consideration of your payment of a service fee to be notified by us to you, provide you with a data dump of Customer Data we hold, in a form of our choosing;
(d) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;
(e) pursuant to clause 19.2, you also agree to pay us additional costs actually arising from such termination, for which we will provide you with written verification; and
(f) immediately return (where possible) or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information and Intellectual Property).
19.6 Termination of these Terms will not affect any rights or liabilities that a party has accrued under it.
19.7 This clause 19 will survive the termination or expiry of these Terms.
20.1 Unless specified otherwise, all amounts in these Terms are exclusive of GST.
20.2 If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
20.3 If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
20.4 If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
20.5 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
21.1 A party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute.
21.2 If the parties cannot agree how to resolve the Dispute at that initial meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, either party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the parties.
21.3 Nothing in this clause will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
21.4 This clause 21 will survive the termination or expiry of these Terms.
22.1 Amendment: We may update these Terms at any time. Where we update these Terms, we will notify you via an in-Account notification or via email. If you do not agree with any amendment you may terminate these Terms in accordance with clause 19.1.
22.2 Assignment: A party must not assign or deal with the whole or any of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
22.3 Email: You agree that we are able to send electronic mail to you and receive electronic mail from you.
22.4 Entire agreement: These Terms contain the entire understanding between the parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
22.5 Exclusivity: The Services will be provided to you on a non-exclusive basis.
22.6 Force Majeure: Neither party will be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond its reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into these Terms) (Force Majeure Event).
22.7 Further assurance: Each party agrees to promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.
22.8 Governing law: These Terms are governed by the laws of New South Wales. Subject to clause 21, each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
22.9 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).
22.10 Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material, with your prior written consent.
22.11 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
22.12 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and:
Account means an account accessible to you and/or your Authorised Users to use the Services, including, the SaaS Services.
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Authorised User means a user permitted to access and use the Services under your Account at your request or with your authorisation and includes your clients to whom you grant access to the Services.
Business Day means a day on which banks are open for general bank business in New South Wales, excluding Saturdays, Sundays and public holidays.
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.
Connected Client Plan mean the client accounts you connect or upload to the Software.
Connected Client Plan Fee means the fee associated with your Connected Client Plan as set out on the Site or your Account.
Confidential Information includes information which:
(a) is disclosed to the Receiving Party in connection with these Terms at any time;
(b) is prepared or produced under or in connection with these Terms at any time;
(c) relates to the Disclosing Party’s business, assets or affairs, customer data; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise:
(a) any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the parties at the time they entered into these Terms as the probable results of the relevant breach, act or omission; and/or
(b) without limiting subclause (a), any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data.
However, the parties agree that your obligation to pay us the Fees will not constitute “Consequential Loss”.
Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel, Authorised Users and any customers or users of your web platform into the Services or accessed by the Services through Third Party Inputs, or stored by the Services or generated by the Services as a result of your use of the Services.
Disclosing Party means the party disclosing Confidential Information to the Receiving Party.
Fee or Fees means those fees due and payable by you for the Services, as set out on the Site and includes the Workflow Plan Fee and the Per Connected Client Plan Fee.
Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel or Authorised Users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services.
Insolvency Event means any of the following events or any analogous event:
(a) a party disposes of the whole or any part of the party’s assets, operations or business other than in the ordinary course of business;
(b) a party ceases, or threatens to cease, carrying on business;
(c) a party is unable to pay the party’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the party’s assets, operations or business;
(e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a party’s creditors or any class of a party’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a party’s assets, operations or business.
Intellectual Property means any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.
Per Connected File Fee means the fee per client file which is connected to your Account for your Plan as set out on the Site.
Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you.
Personnel means, in respect of a party, any of its employees, consultants, suppliers, subcontractors or agents.
Plan means the plan you choose, including the Fees, billing cycle, features, as set out on the Site and post purchase, as set out within your Account.
Plan Fee means the fee for your Plan as set out on the Site.
Privacy Policy means any privacy policy set out on our Site.
Privacy Laws means the Privacy Act 1988 (Cth) and Australian Privacy Principles as set out in that Act, the Spam Act 2003 (Cth) and any other applicable Australian legislation or privacy guidelines.
Receiving Party means the party receiving Confidential Information from the Disclosing Party.
SaaS Services means our Software as a service as described on the Site.
Sensitive Information is defined in the Privacy Laws.
Services means the Software, the SaaS Services and the Support Services.
Subscription Period means the duration of your Plan(such as monthly, annually, or as otherwise set out on your Account).
System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network.
Third Party Inputs means third parties or any goods and services provided by third parties connected by the customer, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
Workflow Plan means the plan you choose, including the Fees, billing cycle, features, as set out on the Site and post purchase, as set out within your Account.
Workflow Plan Fee means the fee for your Workflow Plan as set out on the Site.
In these Terms, unless the context otherwise requires:
(a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g) a reference to time is to local time in New South Wales; and
(h) a reference to $ or dollars refers to the currency of Australia from time to time.
Last update: 30 January 2024
For any questions and notices, please contact us at:
XBert Pty Ltd (ABN 26 632 237 293)
Email: support@xbert.io
