PROOF OF CONCEPT - TERMS OF SERVICE

The Service is owned by BroadSource Group Pty Ltd and operated by BroadSource Australia Pty. Ltd, Victorian corporations (collectively “BroadSource”) having a principal place of business at Level 13, 664, Collins Street, DOCKLANDS, VICTORIA ("Provider").  These Terms of Service governs access to and use of the Service by you and your users, and any legal entity on whose behalf you are acting for the purposes of a time bound Proof of Concept Service (“Service”).  By clicking “I agree” (or a similar button) that is presented to you in relation to these Terms of Service, or by using or accessing the Service, you indicate your assent to be bound by these Terms of Service.  We may update these Terms of Service from time to time, and your continued use of the Services constitutes acceptance by you of any updates.

1.              ACCESS

(a)             Your use of this Service is by non-exclusive, revocable, non-transferrable or sublicensable licence granted by BroadSource strictly in accordance with these Terms of Service.

(b)            You acknowledge and agree with BroadSource that you will not, as a result of being granted a non-exclusive licence, acquire any rights (including without limitation intellectual property rights) in the Service other than the non-exclusive rights granted in accordance with these Terms of Service.

2.              ACCOUNT

(a)             In order to use the Service, you will need an Account.  We will provide you with access to and use of the Service for a period of forty-five days in accordance with Your Service Application Form from the start of date indicated in Your Proof of Concept Service Order until termination of this Agreement and cancellation of Your Account in accordance with Section 7, whichever occurs first, or otherwise as provided for under these Terms of Service.

(b)            You must not permit any third party to access your Account.

(c)             You are responsible for the security of your username and password and we will assume that anyone using your Account is authorised to do so by you and you are responsible for their actions.

3.              SYSTEM INTEGRITY & USER CONDUCT

You acknowledge and agree that you must not use the Service to:

(a)             impersonate or otherwise misrepresent your identity or affiliation with any other person or entity;

(b)            input, upload, post, disclose or transmit any material that is defamatory, obscene, indecent, lewd, violent, abusive, insulting, threatening, harassing or misleading or deceptive;

(c)             input, upload, post, disclose or transmit any material which is subject to Intellectual Property Rights of BroadSource or any third party or breaches any duty of confidence or contractual obligation owed to BroadSource or any third party;

(d)            input, upload, post, disclose or transmit any material that is unlawful or violates any law;

(e)             send junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) to any person or company;

(f)             download and store electronically, reproduce, transmit, display, copy, distribute or use the Service or any materials contained in the Service;

(g)             upload any files that contain viruses, Trojan horses, worms, time bombs, corrupted files or any other similar Service or programs that may damage the operation of the Service or another’s computer or property of another;

(h)            sub-licence, rent, lease, transfer or attempt to assign the rights in the Service or the Service to any other person and any dealing in contravention of this sub-clause shall be ineffective;

(i)              falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Service;

(j)              conduct, display, or forward surveys, contests, pyramid schemes, or chain letters;

(k)             interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;

(l)              attempt to gain unauthorised access to the Service or computer systems or networks connected to the Service through any means;

(m)           commit forgery (or attempted forgery), harass any individual, or harm minors in any way;

(n)            collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses;

(o)            contravene or breach any applicable state, Commonwealth or international law, convention or regulation, including in relation to the storage, transmission, and handling of personal information and other information under the Privacy Legislation;

(p)            breach any applicable Laws.

You acknowledge and agree that you must not:

(q)            commit or permit any act which may interfere with the use of the Service by any other user;

(r)             tamper with, hinder the operation of or make unauthorised modifications to the Service or any part thereof;

(s)             commit or permit any breach of any applicable Laws;

(t)             damage or modify the Service or the Service or any part thereof;

(u)            directly or indirectly copy, reproduce or duplicate the Service for any purpose;

(v)             directly or indirectly reverse engineer, decompile, decrypt, translate, alter, modify, disassemble or otherwise attempt to discover (or reduce to human-readable form) the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any Service, documentation (except to the extent expressly permitted by us or authorised within the Service);

(w)            create derivative works based on the Service (except to the extent expressly permitted by us or authorised within the Service);

(x)             remove any proprietary markings or notices of any proprietary rights set forth in the Service;

(y)             use the Service for rental, timesharing, subscription, hosting or outsourcing purposes; or

(z)             publish any results of benchmark tests run on the Service or any component thereof, provided that you shall not be restricted in your ability to publish or grant rights to publish any results of benchmark tests run on Service-based services that it resells and that are branded as end user services and that are not identified as Service-based services.

You acknowledge and agree that you must:

(aa)           ensure that the Service Provider that delivers Your communications services;

(i)             holds a Service Provider license under the relevant Telecommunications Act in the geography they are selling the Service in or

(ii)            Is a licensed reseller of a telecommunication service from a Service Provider who does hold a license under the relevant Telecommunications Act for the geography that the Reseller is selling the Service in.

4.              INTELLECTUAL PROPERTY RIGHTS

(a)             The Service is protected by intellectual property rights. You acknowledge that BroadSource is the owner of these rights.

(b)            You acknowledge and agree that no right, title or interest in any of the intellectual property rights in the Service is transferred or granted to you, other than the rights granted expressly by these Terms of Service.

5.              WARRANTIES

(a)             You warrant to us that at the time of entering the Service, you were not relying on any representation made by us in respect of the Service.

(b)            Except as expressly provided to the contrary, and to the extent permitted by law, we make no representations or warranties of any kind, express or implied as to the operation of your access to or the results of your access to the Service (including any related or linked websites) or the correctness, accuracy, timeliness, or completeness or reliability of the information, content, materials or Services included on the Service.

6.              INDEMNITY

You agree to pay to the Provider, on demand, on a full indemnity basis, all amounts that BroadSource may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis, and any debt collection agency costs/commissions) as a result of you defaulting or otherwise breaching any of the terms in these Terms of Service.

7.              DISCLAIMER AND LIMITATION OF LIABILITY

7.1            Exclusion

The Provider provides the Service and the Account on an "as is" basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by Law. Subject to the other terms of this clause, the Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services and the Account that are not expressly set out in these Terms of Service to the maximum extent permitted by Law.

7.2            Scope

The limitations of liability in this clause will apply to any damages, however caused, and on any theory of liability, whether for breach of contract, tort (including, but not limited to, negligence), or otherwise, and regardless of whether the limited remedies available to the parties fail of their essential purpose. Notwithstanding anything else in this clause, the Provider’s liability will be reduced to the extent the loss or damage is caused by or contributed to by You (or anyone acting on Your behalf).

7.3            Limitation of Damages

1.     The liability of either party for any claim arising out of or in connection with any Services and the Account provided under these Terms of Service will not exceed an amount equal to the amount of the fees payable for the Services and/or the Account most directly related to the claim.

2.     The liability of either party for any claim arising out of or in connection with any order will not exceed an amount equal to the amount of the fees payable under such order.

3.     The total aggregate liability of either party for each and all claims arising out of or in connection with these Terms of Service will not exceed:

a)     an amount equal to the aggregate total amount of all fees paid or payable under these Terms of Service in the twelve (12) month period immediately preceding the date of the event giving rise to the claim; or

b)     AUD$1,000,000,

whichever is the lesser.

8.              OPEN SOURCE

(a)             The Service contains open source that is subject to the licence agreement identified with such open source. Your use of such open source is subject to such licence agreements. You are solely responsible for ensuring you are familiar with such terms.

9.              PRIVACY AND DATA SECURITY

(a)             In respect of any “personal information” (as that phrase is defined in the Privacy Legislation) (“Personal Information”) that is provided to us in connection with the Service, you must comply with:

(i)             the Privacy Legislation, and Personal Information including sensitive or health information must be dealt with in accordance with the Privacy Legislation (as it applies to that party); and

(ii)            the applicable policies and guidelines of BroadSource as made known from time to time.

(b)            You warrant and represent that all Personal Information that you provide to BroadSource complies with this clause at all times.

(c)             We will be responsible for the security of all Data in our possession as a result of you using the Service, and for the security of the Service to the extent that it can impact the security of your cardholder data environment.

(d)            You will ensure that you implement a program to confirm the compliance with PCI DSS of all third party service providers, including us, at least every twelve months.

(e)             You will maintain information about which PCI DSS requirements are managed by each third-party service provider, including us, including where responsibility is shared between you and the third-party service provider.

(f)             Within a reasonable period of time of any written request from you, we will provide you with the following information:

(i)             the PCI DSS compliance status for the Service and the Service; and

(ii)            information about which PCI DSS requirements we are responsible for, which you are responsible for, and which are jointly shared by us.

(g)             BroadSource will:

(i)             maintain its certification as a Level 1 PCI-DSS compliant Service Provider;

(ii)            comply with all relevant PCI-DSS requirements; and

(iii)            comply with any Data Protection Legislation,

throughout the Term of the Agreement.

10.            PROOF OF CONCEPT SERVICE ORDERING

10.1          Your Service Orders

You may order the Service by executing and delivering a Proof of Concept Service Order (“Service Order”) to BroadSource from time to time. You shall issue written Service Orders to BroadSource via email at sales@broadsource.com.au

10.2          Delivery and acceptance

(a)             BroadSource shall use commercially reasonable efforts to acknowledge receipt of Your Service Orders in writing within five (5) business days after receipt. BroadSource is entitled to accept or reject a Service Order for any reason, at its discretion.

(b)            Following the issue of the Service Order, should BroadSource accept it, and provided You have complied with its other obligations under this Agreement, BroadSource shall use commercially reasonable efforts to deliver the Service to Your  nominated address by the delivery date indicated on Your Proof of Concept Service Order. However, BroadSource shall not be liable for delivery delays. BroadSource will deliver Service to Your address specified in the Proof of Concept Service Order. You are responsible for ensuring all details in the Service Order are correct. This Agreement shall apply to all Service Orders placed after the effective date.

11.            SERVICE ORDER RESCHEDULING AND CANCELLATION OF ORDERS

11.1          Service Order Rescheduling

You may reschedule a previously requested shipping date, as specified on Your Service Order, by providing BroadSource at least five (5) days prior written notice of the requested change. If the request is received later than five (5) days prior to the previously requested shipping date BroadSource, may, at its discretion, add a five percent (5%) rescheduling fee to the order. Such rescheduling fee, if charged, will be included on BroadSource’s invoice to You for that particular Service Order.

11.2          Service Order Cancellation

You may cancel a previously placed Service Order by providing BroadSource with a written cancellation order no later than five (5) days prior to the date the order was originally requested to be shipped. If the request is received later than five (5) days prior to the previously requested shipping date BroadSource may, at its discretion, charge You a ten percent (10%) cancellation fee. Such cancellation fee, if charged, will be invoiced to You with reference provided to the original Service Order number.

12.            PRICES

12.1          Price List

For the Service ordered under a Proof of Concept Service Order, no charges will apply for the first forty-five days and You agree to pay BroadSource the price for the Service pursuant to BroadSource’s then current price list at the end of the forty-five day subscription period if the Services continue to be in operation.

13.            PAYMENT

13.1          Service Subscription

There will be no charge to You for the use of the Service unless use of the Service continues beyond the end of the applicable forty-five (45) day Proof of Concept period. You then agree to pay all fees and charges for the Services on a subscription basis pursuant to the applicable Services Order. Upon execution by both parties, each Services Order shall, to the greatest extent permitted by applicable Law, be a non-cancellable, non-refundable. Each year within a specified term requires payment in exchange for the continued provision of the Services.  Quantities of Services may not be decreased during the relevant forty-five day PoC Subscription term.

13.2          Payment Terms

You agree to pay all invoices submitted by BroadSource within thirty (30) days of the date of the invoice. Non-receipt of payment from a you shall not excuse or delay payment to BroadSource. In the event you fail to make any payment when due, BroadSource may suspend or terminate access to and use of the Service by You and Users until such time as the past-due payment is received.

13.3          Taxes

Except for taxes based on BroadSource’s net income, You shall pay any applicable sales, use, excise, value added or other taxes, or amounts levied in lieu of such taxes, now or later imposed under the authority of any national, state or local taxing authority, based on the licensing of the Service or sales of the Professional Services to or by You within the Territory.

In the event that You are required to withhold an amount for taxes from a payment that You are required to make to BroadSource under this Agreement, You will timely remit it to the appropriate governmental authority in accordance with applicable laws and you will promptly furnish BroadSource with the official receipt of payment of such Taxes to the appropriate taxing authority.  You will not rely on BroadSource to determine taxability and You are ultimately responsible for assessing and paying any applicable Taxes. If You provide an incorrect ship-to address or, where applicable, does not provide a valid tax exemption certificate prior to placing an Order, BroadSource will not provide the You with a credit for such Taxes and You will be responsible for getting a refund from the applicable tax authority.

13.4          General

(a)             You must pay BroadSource all fees and other amounts without set-off or claim under any circumstances including if a dispute exists.

(b)            Where payment is made by credit card BroadSource reserves the right to charge You a small administration fee, and Your bank or BroadSource's bank/payment provider may charge You a fee. You agree to pay such fees at the same time as paying BroadSource's fees.

(c)             BroadSource may impose or deduct foreign currency processing costs on or from any payments or payouts made in currencies other than Australian dollars.

(d)            All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of GST (if GST is payable), which will be added to those amounts and payable by You to BroadSource.

14.            RETENTION OF DATA.

BroadSource will retain, delete and dispose of all relevant information and data in relation to this Agreement in accordance with, as applicable, BroadSource’s relevant data policies and practices and the relevant requirements of PCI-DSS.

15.            ENQUIRIES AND COMPLAINTS

15.1          Enquiries

You must immediately notify BroadSource of any enquiries or complaints made by You or Your Users or authority and must provide BroadSource with:

(a)             a copy of any enquiry or complaint made in writing;

(b)            details of any enquiry or complaint including:

(c)             the date of the enquiry or complaint;

(d)            the name of the End User or authority making the enquiry or complaint; and

(e)             the nature of the enquiry or complaint.

15.2          Complaints

If You becomes aware of:

(a)             any infringement or threatened infringement of the rights of BroadSource or Vendor in relation to the Intellectual Property;

(b)            any claim against the rights of BroadSource or Vendor in relation to the Intellectual Property;

(c)             any common law passing-off which may cause deception or confusion to the public;

You must immediately notify BroadSource in writing giving particulars of the infringement or claim.

16.            Service Improvements

BroadSource may aggregate data and information related to the performance, operation and use of the Service to create statistical analyses, to perform benchmarking, to perform research and development and to perform other similar activities (“Service Improvements”). BroadSource will not incorporate Customer Data in Service Improvements in a form that could identify End Users.  BroadSource will use industry standard techniques to anonymise Customer Data prior to performing Service Improvements unless otherwise consented to by You.  Your Data will, at all times, be subject to the security controls set forth in this Agreement. BroadSource retain all intellectual property rights in Service Improvements and may make them publicly available.

17.            RELATIONSHIP.

The parties acknowledge that they are independent contractors and nothing in this Agreement creates or constitutes a relationship of employer and employee, trustee and beneficiary or of partnership or joint venture between the parties; and         

18.            NOTICES.

All notices, requests, demands, and other communications provided for under this Agreement must be given in writing and in English and will be deemed to have been delivered and given for all purposes

(a) on the delivery date if delivered by electronic mail, provided receipt of such electronic mail is confirmed by BroadSource;

(b) on the delivery date if delivered personally to BroadSource;

(c) two (2) business days after deposit with a commercial overnight carrier, with written verification of receipt; or

(d) five (5) business days after the mailing date, whether or not actually received, if sent by mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available.

Notices shall be sent to BroadSource at the following address, provided BroadSource may change its address for purposes of this clause, which change of address notice shall be effective on receipt by You:

To BroadSource:

BroadSource Australia Ltd

Level 13, 664 Collins Street, Docklands, Melbourne Victoria, Australia 3008

Attn: Chief Operating Officer

Email: legal@broadsource.com.au

19.            BREACH AND TERMINATION

BroadSource reserves the right to deny you access to, or use of, all or part of the Service including your data, without prior notice, if you engage in any conduct that BroadSource believes, in its sole discretion, is inconsistent with these Terms of Service.

20.            GENERAL

(a)             The law of the State of Victoria, Australia governs these Terms of Service. You hereby consent and submit to the non-exclusive jurisdiction and venue of the Courts of the State of Victoria, Australia and the Commonwealth of Australia for any cause of action relating to or arising under these Terms of Service.

(b)            BroadSource operates the Service in Australia. Information contained on the Service may not be appropriate or available for use in other locations. If you access the Service from other locations, you do so at your own initiative, and you are solely responsible for compliance with local laws.

(c)             Where possible, the obligations of the parties under these Terms of Service will indefinitely survive the finalisation or discontinuance of these Terms of Service.

(d)            The rights and remedies of a party to these Terms of Service are in addition to the rights or remedies conferred on the party at law or in equity.

21.            DEFINITIONS

In these Terms of Service, the following words and phrases shall have the following meanings, unless the context otherwise requires:

“Account” means a PoC Account.

"Data” means all information subject to the Privacy Legislation, and any credit card account holder information, which you transmit using the Service; or which we possess or otherwise store, process, or transmit on your behalf as a result of you using the Service or the Service.

“Laws” means:

                                          i.        all applicable laws, legislation, ordinances, regulations, by-laws, rules, and other subordinate legislation relevant to the Agreement, the Service, or the Professional Services.

                                         ii.        the Security Standards (to the extent that they are relevant to you); and

                                        iii.        all approvals (including any conditions or requirements attaching to an approval) or other requirements of any government, semi-governmental, statutory, administrative, fiscal or judicial body, department, commission, authority, tribunal, ombudsman, or public body.

“PCI DSS” means the Payment Card Industry Data Security Standards.

“PoC Account” means an account to access and use the Service for a period of forty-five days or as described in the Proof of Concept Service Order

“Privacy Legislation” means the Privacy Act 1988 (Cth), including Australian Privacy Principles, and the guidance and codes of practice issued by the Office of the Australian Information Commissioner from time to time.

“Security Standards” means any standards that apply, or which relate to any Service, including the PCI DSS, or any standards which relate to personally identifiable information or financial data.

“Service” means the Proof of Concept Service made available by BroadSource to you, and as specified in the Proof of Concept Service Order.

“Proof of Concept Service Order” means any written or electronic order form or document generated by Us and executed, accepted or otherwise approved by You with respect to Your Proof of Concept Subscription, which form, or document may detail, among other things, the number of Users authorised to use the Service under Your subscription to the Service, the Subscription applicable to Your subscription to the Service, and any charges that might be associated with Your Subscription.

“Service Provider” means a holder of a carriage service provider licence granted under section 56 of the Telecommunications Act 1997 (Cth).

“Subscription” means the subscription level for that part of or all of the Service for which You subscribe pursuant to a Proof of Concept Service Order.

“Terms of Service” means these terms of service as amended or replaced from time to time.

“Us” means BroadSource and ‘we’ or ‘our’ shall be interpreted accordingly.

"You" means the person or entity that accesses the Service and ‘your’ shall be interpreted accordingly.

“Your Data” means all electronic data or other materials submitted to the Service by You, Users and End‐Users in connection with Your use of the Service, including, without limitation, Personal Data.