Terms of Agreement

Last Updated: May 23, 2019

1.0       Recitals

Data Confidence Solutions Pty Ltd (Seller) grants a Customer a non-exclusive, non-sublicense able and non-transferable license to install and use DCS Software for a Subscription Term.

This Terms of Agreement (TOA) governs the establishment of the Customer Account and Customer’s use of the DCS PRODUCTS software suite.

The DCS Administrator Console provides the Customer access to the DCS PRODUCTS software suite for the Customer’s installation and use of Licenses and associated services for their Users.

By clicking “I agree” presented at the time of establishing the Subscription Order, or by using or accessing DCS Software “Products”, the Customer agrees to this Agreement.

2.0       Definitions

For the purposes of this TOA, plural and singular have the same meaning.

Administrator Console means a secure web-based software tool where the Customer gains access to the DCS PRODUCTS once these Terms of Agreement (TOA) have been accepted.

Agreement – means these Terms of Agreement (TOA).

Auto Renewal – means a new Subscription Term that commences automatically once the existing Subscription Term expires.

Billing Contact means the Customer’s nominated billing contact name and contact details.

Customer means the legal name of the Individual or Company entity that accepts the TOA for use of DCS PRODUCTS licences on behalf of their Users. This Individual or Company is effectively the Customer.

Customer Account means the account associated with granting the Customer access to the Administrator Console for the installation and use of DCS PRODUCTS. The Customer provides payment details and authorizes the Seller to deduct Fees for paid accounts from the Customer for all Licenses and associated services provided to the Customer.

Confidentiality means all information passing from one party to the other relating to the business or operations of the first-mentioned party, including but not limited to this Seller / Customer TOA, training materials, videos, multimedia, trade secrets, drawings, know-how, technical and financial information, source code, object code, beta code, patches and update code, business and marketing plans, projections, strategies, management or business operations, pricing, clients, potential clients, suppliers, security, technical data, drawings, designs, software, tapes, inventions, developments, processes, technology and other information of whatever description and in whatever form.

Copyright means that these Products are protected by the copyright laws of Australia, and international copyright treaties.

DataConfidence.com is the online website for the distribution of DCS PRODUCTS.

Day means calendar day, unless otherwise specified in accordance with Coordinated Universal Time (UTC) time and date.

DCS means Data Confidence Solution Pty Ltd a legal entity registered in Australia.

DCS Customer Billing Policy means the said policy which is made available to the Customer on dataconfidence.com.

DCS Privacy Policy – means the said policy which is made available to the Customer on dataconfidence.com.

DCS PRODUCTS means the software product suite as updated from time to time and distributed by the Seller, including but not limited to, source code, machine-readable object code, apps, images, video and any manifestation thereof the implementation of associated Intellectual Property (IP).

et al. is the abbreviation of the Latin phrase et alia, meaning “and others”.

Fees means monthly, yearly or 2 Year fees associated with the billing frequency chosen by the Customer. Fees provided in the Administrator Console are exclusive of any taxes.  The Seller reserves the right to increase these Fees by notice to the Customer with minimum advance notice of thirty (30) calendar days.

Intellectual Property (IP) means the Intellectual Property uniquely associated with DCS PRODUCTS, including but not limited to, patents, trademarks, copyrights, trade secrets, designs, logos, Licenses, advancement rights, product development rights, technical or marketing negotiation rights, software design, prototyping and manufacturing rights.

International Jurisdictional Taxes means any reporting, collection and payment of any applicable jurisdictional taxes including: taxes, duties, levies, royalties, transactions, withholding or any other tax payment which may become payable as a result of the purchase and/or sale of the Services in this TOA provided outside Australia.

 Invoice means the tax invoice that details the subscription based payment fees due, the payment due date, the defined Subscription Term, the Renewal Date and any taxes collected.

Licenses means all software licenses and associated services provided to the Customer.

Moral Rights means the right of integrity of authorship, the right of attribution of authorship and the right to not have authorship falsely attributed.

Order means the selected Product Plan, volume of User Licenses and any other services, the Subscription Term and fees payable.

Privacy Principles – the Seller adheres to a code of practice based on information privacy principles as set out in the DCS Privacy Policy.

Renewal Date means the date specified in an Order for an additional payment of Fees is required to establish a new Subscription Term.

Schedule means the commercial section of the Administrator Console.

Seller means Data Confidence Solutions Pty Ltd, the legal entity, which has distribution rights for the software suite DCS PRODUCTS and associated services.

Starter Plan means the entry-level SmartEncrypt Customer Account with limited features made available at No-Cost for use by a maximum of three (3) Users. For the avoidance of doubt, these are three legally separate human entities which can be registered as User on the Customer Account at any time.

Subscription Term means the term associated with a specific Order.

Support and Maintenance means the applicable support services as detailed in the feature list for each Product Plan. The Seller reserves the right to carry out planned and non-planned urgent maintenance on its infrastructure to maintain the DCS PRODUCT performance. DCS provided infrastructure is designed to deliver on average 99. 99% availability.

Terms of Agreement (TOA) means these Terms of Agreement, as amended from time to time, to govern the Customer’s use of DCS PRODUCTS.

Term means the period from the acceptance of the TOA until the cancellation by the Customer or Termination by the Seller. Noting that services are provided on a subscription basis for a set term specified in the initial and subsequent Orders.

Termination means termination of the Customer Account. The Seller reserves the right to terminate the Customer Account for insolvency or a breach of this TOA. Either party can terminate for convenience the Customer Account with a minimum of 30 Days notice.

Termination Procedures – means those termination procedures outlined in this TOA.

Time Zone means Coordinated Universal Time and Date (UTC).

TOA means this Terms of Agreement.

Upgrades – includes any increase in User licenses and Services that may be implemented during a Subscription Term.

Upgrade Fees – means additional fees when a product plan is upgraded or extra licenses are purchased during a Subscription Term. Pro-rata fees are payable at the time the upgrade takes place.

User means each human entity.

User License means one production instance of the DCS Software which may be installed on systems owned or operated by the Customer.

ly3.0       Plans and Payment

DCS offers multiple versions of its DCS PRODUCTS with different functionality to suit User and Business needs, these include:

  • Starter Plan is the entry level SmartEncrypt product plan which is offered at No-Cost provided its used within the intent, principles and as permitted in this TOA; and
  • Business Basic, Pro and Enterprise Plans which are all offered as paid services with different product features.

 

3.1       Starter Plan

The Starter Plan is an entry-level Customer Account offered at No-Cost on an equivalent monthly term to the Customer subject to:

  • Being used in accordance with the intent, principles and as permitted in this TOA.
  • The Starter Plan is automatically renewed each calendar month subject to any termination by either the Customer or DCS.
  • The Starter Plan Customer Account can have up to a maximum of three (3) Users. For the avoidance of doubt, these are three legally separate human entities which can be registered as Users on the Customer Account.
  • Users are permitted to use the Starter Plan for personal or commercial related activities.
  • Software support is provided via online Community Forums and Knowledge Base only.
  • Users are not permitted to use a Starter Plan Customer Account in conjunction with any other DCS PRODUCT, regardless of whether another DCS PRODUCT is paid or a No-Cost product.
  • A Starter Plan can be upgraded to a paid Business Plan. At such time, the Starter Plan will be terminated.
  • DCS will delete an Account that has never been logged into or has not been logged into within a 6 month period. Account holders will be emailed and given 30 days to activate the account before deletion.

DCS may at its sole discretion give you a minimum of thirty (30) calendar days notice to terminate your right to use the No-Cost Software at any time without cause or any liability to you.

The Starter Plan Software will from time to time include pre-commercial release software content that is still under development. Starter Plan Users will understand that any pre-commercial release software content may contain errors and bugs that could render the software inoperable on occasions.

DCS reserves the rights to limit the functionality or modify the No-Cost Software or to make certain functions subject to payment. DCS will announce such changes to Users at least 30 calendar days in advance.

To the extent permitted by law, we offer no warranty, make no obligations and disclaim all liabilities to Users of the Starter Plan account software. In the event DCS is required by law to provide indemnity, then the limitations of such an indemnity per Starter Plan account is capped at the monthly fee for the equivalent paid DCS PRODUCT.

In the event the Starter Plan Customer Account is suspected of being used in breach of this TOA, then the DCS can immediately suspend the account.

 

3.2     Business Plans

The Business Plans are offered as paid accounts on Monthly and Yearly Subscription Terms.

 

3.3     NFR Business Plans

The NFR Business Plan Customer Accounts are offered at No-Cost monthly term to the Customer subject to:

  • Being used in accordance with the intent, principles and as permitted in this TOA.
  • The NFR Business Plan is automatically renewed each calendar month subject to any termination by either the Customer or DCS.
  • DCS will delete an Account that has never been logged into or has not been logged into within 6 month period. Account holders will be emailed and given 30 days to activate the account before deletion.

DCS may at its sole discretion give you a minimum of thirty (30) calendar days notice to terminate your right to use the No-Cost Software at any time without cause or any liability to you.

The NFR Business Plan Software will from time to time include pre-commercial release software content that is still under development. NFR Business Plan Users will understand that any pre-commercial release software content may contain errors and bugs that could render the software inoperable on occasions.

DCS reserves the right to limit the functionality or modify the No-Cost Software or to make certain functions subject to payment. DCS will announce such changes to Users at least 30 calendar days in advance.

To the extent permitted by law, we offer no warranty, make no obligations and disclaim all liabilities to Users of the Starter Plan account software. In the event DCS is required by law to provide indemnity, then the limitations of such an indemnity per NFR Business Plan Customer Account is capped at the monthly fee for the equivalent paid SmartEncrypt Business Basic Account.

In the event he NFR Business Plan Customer Account is suspected of being used in breach of this TOA, then DCS can immediately suspend the account.

4.0       Intellectual Property (IP) Rights

The Customer warrants that:

  1. the DCS PRODUCTS have been procured directly from the Seller for installation;
  2. it will not attempt to reverse-engineer, decompile, or alter DCS PRODUCTS in any possible manner;
  3. the DCS PRODUCTS will not be used to infringe upon third-party IP and will only be used in accordance with legal compliance to IP rights in its relevant jurisdiction;
  4. it complies with all laws relevant to its jurisdiction, including but not limited to, any international treaties and conventions protecting IP rights;
  5. the DCS PRODUCTS will not be used for monitoring its availability, performance, functionality or for benchmarking or competitive purposes;
  6. it complies with all fair use, security, privacy, data integrity laws, international treaties and conventions and agrees to the following:
    1. not directly or indirectly falsify or misrepresent any information regarding true identity of the Customer or intentions and provide true, accurate, current and complete information as prompted by the registration process to use the Software, including Customer and User identity, legitimate email addresses and contact details;
    2. authorizes the Seller to check and verify data that the Customer has provided the Seller for use of the DCS PRODUCTS. It is the Customer’s obligation to keep all changes in its legal status of the entity updated in the Administrator Console. The Seller has the right to request further information to validate the Customer identity, failing which, access may be denied to the Customer for using DCS PRODUCTS; and
    3. managing the use of this Customer Account by its Users in accordance with this TOA; and
  1. it will not:
    1. rent, lease, sell, distribute, sublicense, transfer or provide access to a third party;
    2. reproduce, modify, adapt, create derivative works of or use the DCS PRODUCTS for the benefit of any third party beyond the intent, principles and as permitted by this TOA;
    3. incorporate any DCS PRODUCTS into a product or service you provide to a third party;
    4. use the Services or DCS Software for activities where use or failure of the Services or DCS Software could lead to physical damage, death, or personal injury;
    5. reverse engineer, derive source code, modify, hack, decompile, disassemble, translate or create derivative works for any DCS PRODUCT, in whole or in part, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any DCS PRODUCTS, except as permitted by law; or
    6. directly or indirectly remove, disable, alter, circumvent, develop any workaround, obscure or interfere any proprietary notices or labels or serial numbers contained on or within the DCS PRODUCTS; or
    7. it will not without the Seller’s written approval publicly disseminate any information regarding the DCS PRODUCTS and Services.

5.0     Customer Authorized User Access

5.1     Authorized User Access

User Accounts may only be provisioned, registered, and used by a single User, and only the specific individuals for whom the required fees have been paid and for whom have been designated through the applicable DCS PRODUCTS (“Authorized Users”) may access and use the Services.

The Customer will prevent unauthorized use of the Services by its Users and terminate any unauthorized use of or access to the Services.

The Customer and all Authorized Users are responsible for ensuring Usernames and passwords for the DCS Software are kept strictly confidential and all necessary security measures are in place and such information is not shared with unauthorized persons. Customer Administrators are responsible for managing access to the Administrator Console.

The Customer agrees to notify DCS immediately of any unauthorized access to Account or User credentials or access to the Services.

 

5.2     Customer Administration of the DCS PRODUCTS and Services

The Customer may specify a User(s) as Administrators through the DCS Administrator Console.

DCS responsibilities do not extend to the internal management or administration of the Services for the Customer.

 

5.3     Legal Compliance with international Regulations and Laws

The Customer will not take any actions that could cause DCS to violate any international Regulation or Law. The Customer will obtain and retain evidence of consents from Users to allow DCS to provide the Services using the DCS PRODUCTS.

 

5.4       Third Party Products and Integration

If a Customer uses any Third Party service or Application Programming Interfaces (APIs):

  1. DCS will not be responsible for any act or omission of the Third Party or the Third Party’s access to or use of the Customer’s Data; and
  2. DCS does not warrant or support any services provided by the Third Party.

6.0     Billing

The DCS PRODUCTS Administrator Console provides detailed pricing that applies to all DCS licenses and services provided to the Customer.

Subsequent additional services and upgrades of existing services are billed at the time they are implemented.

Subsequent downgrades to existing DCS licenses and services will result in reduced fees applicable once the current Subscription term has expired.

7.0     Payments

Payment methods offered in the Administrator Console include credit cards and bank accounts subject to conditions.

The Customer must enter and maintain valid payment details via Administrator Console.

It is the responsibility of the Customer to ensure that payments can be made to the Seller at call through their entered payment method. Failure to make payments when due will entitle the Seller to invoke Termination Procedures.

The Seller does not store full payment details, however for identification and validation purposes the Seller does record for all credit and debit cards; the first 6 digits and last 3 digits of the card number, card expiry date, card security code (also known as Card Validation Value), name on the card, and card issue country.

 

7.1     Fees

  1. The Customer agrees to pay DCS all applicable Fees and Taxes for the User Licenses and Services, in the currency and pursuant to the payment terms in accordance with each Order and as per the Order Form and DCS Customer Billing Policy.
  2. All fees are non-refundable, non-cancellable and non-creditable except as required by law or as otherwise specifically permitted in this Agreement.

 

7.2        Payments

  1. By placing an Order, the Customer makes a binding contractual obligation to purchase the relevant DCS PRODUCT and agrees to pay DCS all fees in accordance with each Order, and on the payment interval set forth in the Order.
  2. The Order will be charged in United States Dollars (USD) unless the Customer is located in Australia and provides a valid Australian Business Number (ABN) with payment method from a credit or debit card issued in Australia or an Australian Dollar (AUD) bank account located in Australia, in which case they will be billed in AUD and will have Australian Goods and Services Taxes (GST) applied to the DCS Order fees.
  3. If extra User Licenses or Services are added during your Subscription Term, DCS will charge the pro-rata cost for the increased number of Users pursuant to the then-currently applicable rates requiring payment at the time the extra User Licenses are added.
  4. In making payments, you acknowledge that you are not relying on future availability of any Products, upgrades or feature enhancements beyond the current Subscription Term.
  5. The Customer authorises DCS to deduct any payments due, including renewals, from the Customer’s nominated credit card or bank account, as applicable
  6. The Customer will provide complete and accurate billing and contact information to DCS.

 

7.3        Taxes

The DCS PRODUCT Fees provided in the Administrator Console are exclusive of any applicable taxes.

DCS will charge GST (Goods and Services Tax) on all Australian Orders. GST will added to the Order cost to provide the total payable cost.

 

 7.4  International Jurisdictional Taxes

The Customer is responsible for any International Jurisdictional Taxes applicable outside Australia.

For the avoidance of any doubt, DCS remains responsible and liable to report and pay tax on its net global income, to the taxation authority, in Australia where it is registered for global tax residency.

 

7.5 Auto-renewals and Trials

Monthly Subscriptions will automatically renew each month unless cancelled by the Customer via the DCS Administrator Console giving a minimum of ten (10) days’ cancellation notice or the Customer Account has been terminated by DCS.

Yearly Subscriptions will automatically renew unless cancelled by the Customer via the DCS Administrator Console giving a minimum of thirty (30) days’ cancellation notice.

For Trials where the Customer has already provided an acceptable method of payment, DCS may automatically charge the Customer at the end of the trial unless the Customer has disabled the automatic conversion to a paid account after the trial has expired.

 

7.6 Rate Changes

DCS reserves the right to revise rates of DCS Licenses and Services by Notice to the Customer providing a minimum of thirty (30) days’ notice prior to the application of the new rates.

8.0       Privacy

The Seller adheres to a code of practice that governs its conduct while handling personal and private information in accordance with legislation enacted by local jurisdictions based on country and state.

The Customer maintains confidentiality and security of its password and identification it uses to communicate officially with the Seller and agrees to notify the Seller immediately of any unauthorized use of the Customer Account, password, or any other breach of security.

Data collected by the Seller from the Customer includes, but is not limited to:

  1. Legal name of the entity or individual contact and registration details;
  2. Primary Contact and/or Billing Contact legal name, contact details and IP address;
  3. User contact details and IP address(es).

DCS may also collect and retain tax registration details.  Please refer to the DCS Privacy Policy for further information.

 

9.0       Liability

The parties agree that, to the full extent permitted by applicable law, that:

  1. The Seller will not under any circumstances be liable for any direct, indirect, special, incidental, punitive, exemplary, reliance or consequential damages (including but not limited to, compensation, reimbursement or damages resulting from lost profits or revenue of any kind; loss of goodwill; loss of use of or reliance on the functional implementation of DCS PRODUCTS; information provided through any executable programs; loss of use of data or equipment; or other similar damages) arising out of the use or inability to use DCS PRODUCTS by any Customer, Customers and Users, even if the Seller has been advised on the possibility of such damages;
  2. The Seller will not under any circumstances be liable for any direct, indirect, special, incidental, punitive, exemplary, reliance or consequential damages arising out of the use or inability to use DCS PRODUCTS by any of the Customer or User due to their custodial data encryption key administration issues (including but not limited to, loss of such data encryption key et al. on their part). No specific rights of recovery from Seller will arise in such instances and the Customers and Users voluntarily waive their sui generis rights in this aspect without prejudice.
  3. The Seller will not under any circumstances be liable to the Customer for damages, losses and causes of action (whether in contract, tort, or otherwise) relating to DCS PRODUCTS;
  4. The Customer has fully considered the foregoing allocation of risk, finds it reasonable, and understands that the foregoing limitations are an essential basis of the TOA to use DCS PRODUCTS; and
  5. The Seller is in no event liable to the Customer on any legal theory (including, without limitation, negligence) for any loss or damage whatsoever, including (without limitation) loss of production or operation time, loss, damage or corruption of data or records, or loss of anticipated savings, opportunity, revenue, profit or goodwill, or other economic loss, or any special, incidental, consequential, punitive or exemplary damages arising out of or in connection with the TOA, even if the Seller has been advised of the possibility of such damages. In the event the Seller is found liable to Purchaser for any damages arising out of or in connection with the TOA, the Seller’s total cumulative liability may not exceed the equivalent of the Monthly Fees for the three (3) calendar months immediately prior to the events giving rise to the Seller’ said liability.

10.0 Indemnity

The parties agree that:

  1. The Customer indemnifies, defends and holds the Seller harmless from and against all claims, liabilities, and costs, which occur in connection with or results from:
    1. a claim alleging the unauthorized use of any personal data stored by the Seller;
    2. a claim, which if true, would constitute a violation by the Customer of its representations and warranties;
    3. a violation or breach of the TOA by the Customer; and
    4. the Customer’s and/or its Users’ negligence, bad faith or wilful misconduct;
  2. The Seller reserves the right in its sole and absolute discretion, to assume the exclusive defence and control of any matter otherwise subject to indemnification by Customer, in which case Customer will fully cooperate with Seller in asserting any available defences.
  3. Within the scope of the TOA, each party’s liability to indemnify the other party under this clause will be reduced proportionally to the extent that any negligent act or omission or breach of the TOA by the other party’s human entities contribute to the loss or liability;
  4. The Customer acknowledges that DCS PRODUCTS is provided on an as is and as available basis, that is without guarantee of functional operation and use;
  5. The Customer indemnifies the Seller against third-party litigation brought against itself and its Users for any general use of DCS PRODUCTS; and
  6. The Customer warrants that it shall not on-sell DCS PRODUCTS to legal entities in embargoed regimes under international export laws and holds the Seller harmless against a breach of this condition.

11.0    General

The TOA is drafted in accordance with the prevailing laws and legal frameworks of the Commonwealth of Australia and distribution of DCS PRODUCTS is governed by Australian software export laws.

The TOA will be governed by and construed in accordance with the laws of the State of Victoria, Commonwealth of Australia, without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. Both the Seller and the Customer hereby expressly reject any application to the TOA of The United Nations Convention on Contracts for the International Sale of Good and the 1974 Convention on the Limitation Period in the International Sale of Goods, as amended by that certain Protocol, done at Vienna on April 11, 1980.

12.0    Survival

All warranties, limitations of liabilities, indemnities, IP rights, payment obligations survive the Termination of the TOA.