TERMS OF SERVICE
1.1 These Terms of Service govern your access to and use of the Service. By accessing or using the Service you are agreeing to these Terms of Service.
2.1 In this Agreement, unless the context or subject matter otherwise requires:
(a) Agreement or Terms of Service or Terms means these terms of service as updated by M-SQUARE from time to time.
(b) Authorised Users means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
(c) Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, Liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.
(d) Confidential Information includes all information disclosed by M-SQUARE to you, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by you.
(e) Consequential Loss means:
(i) loss of revenue, profits, opportunity to make profits, reputation or goodwill, business, business opportunity, use or amenity or loss of anticipated savings;
(ii) special, exemplary or punitive damages; and
(iii) any loss or Liability which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of this Agreement,
including any of the above types of loss arising from an interruption to a business or activity.
(f) M-SQUARE means M-SQUARE Pty Ltd ACN 151 893 328 of Level 5, 115 Pitt Street, Sydney, Australia and our Related Entities.
(g) Effective Date means the date you click to accept this Agreement.
(h) Fees means the monthly fee payable by you in accordance with the Payment Policy.
(i) Force Majeure Event means an event beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation in accordance with this Agreement. Such circumstances include:
(i) adverse changes in government regulations;
(ii) any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster;
(iii) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber attacks, viruses or malware, data loss as a result of the actions of a third party;
(iv) strikes or industrial disputes;
(v) materials or labour shortage; and
(vi) acts or omissions of any third party network providers (such as internet, telephone or power provider).
(j) Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
(k) Liabilities means all liabilities (whether actual, contingent or prospective), losses, damages, costs and expenses of whatsoever description.
(l) Service means the ‘kweo’ online management platform made available to you via the Website and includes:
(i) any documentation made available to you in any format, including online or such other web address notified by M-SQUARE to you from time to time which sets out the user instructions for the Service; and
(ii) any additional services provided to you by M-SQUARE.
(m) New IP means any and all Intellectual Property Rights created on and from the date you first access to the Service, in the course of, or connection with, this Agreement, but in all instances excluding Your Data.
(n) Personnel means officers, employees, secondees, agents, contractors and subcontractors.
(o) Related Entity has the meaning given to it in the Corporations Act 2001 (Cth).
(p) Subscriber means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
(q) Term means the term of this Agreement as set out in clause 3.1.
(r) Third Party Platforms means servers, platforms, software and hardware supplied or made available by third parties utilised by M-SQUARE in the providing the Service.
(s) Third Party Provider means a third party provider of servers, platforms, APIs, software or hardware to M-SQUARE utilised by M-SQUARE in the providing the Service.
(t) Website means the Internet site at the domain www.kweo.com or any other websites operated by or on behalf of M-SQUARE.
(u) you means the Subscriber, and where the context permits, an Authorised User. “your” has a corresponding meaning.
(v) Your Data means all documents, files and information:
(i) uploaded to, entered into or stored in the Service; or
(ii) otherwise supplied or made available to M-SQUARE in connection with the Service,
by you of on your behalf.
3.1 The Term of this Agreement will begin on the Effective Date and continue until this Agreement is terminated as set out in section 15 of this Agreement.
- Use of Service
4.1 During the Term, M-SQUARE grants you a non-exclusive right to use the Service for your business purposes in accordance with this Agreement (and any rules protocols, policies or directions of M-SQUARE from time to time).
4.2 The Subscriber is responsible for all Authorised Users’ use of and access to the Service (including level of access). The Subscriber can revoke or change an Authorised User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Authorised User or shall have that different level of access, as the case may be.
4.3 You acknowledge and agree that M-SQUARE may supply products or services similar to or the same as the Service to its customers or other third parties in its sole and absolute discretion.
- Fees and Payment
5.1 If you elect to use the Service, you agree to our payment terms outlined in our Payment Policy, which we may update from time to time in accordance with clause 18.
- Your Obligations
6.1 As a condition of this Agreement, when accessing and using the Services:
(a) You must:
(i) pay the applicable Fees in accordance with the Payment Policy;
(ii) maintain the confidentiality of all certificates, usernames, passwords or other security mechanisms issued to you by M-SQUARE in order for you to access and use the Service (Access Keys) and take all reasonable security measures to ensure that the Access Keys are not disclosed to any other person;
(iii) provide M-SQUARE with all information and co-operation reasonably necessary to enable M-SQUARE to provide the Service;
(iv) provide M-SQUARE with access to your property, equipment, resources, premises, computer hardware, software, networks and systems as may be reasonably required by M-SQUARE to enable M-SQUARE to provide the Service;
(v) provide and maintain the appropriate technology, equipment and facilities to enable you to access and use the Service; and
(vi) promptly notify M-SQUARE of any event or incidents that is likely to or will impact on access and use of the Services or any other obligation of M-SQUARE.
(b) You must not, and must not permit others to:
(i) use the Service in an unlawful manner at any time;
(ii) engage in any illegal or unethical business practice;
(iii) transmit, or input into the Service any files that may damage any other person’s computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which you do not have the right to use);
(iv) use the Service to send or distribute any messages, materials or content that may be considered to be unlawful;
(v) attempt to undermine the security or integrity of M-SQUARE’s or Third Party Providers’ computing systems or networks;
(vi) attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system(s) on which the Service is hosted;
(vii) remove or tamper with any legal or copyright notices on, or contained in, the Service;
(viii) stress test or load test the Service;
(ix) perform penetration testing of the Service; and
(x) use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website.
- Your Data
7.1 Through your use of the Service during the Term, M-SQUARE will receive and have Your Data stored on M-SQUARE’s (or Third Party Providers’) servers.
7.2 You grant M-SQUARE a non-exclusive perpetual licence to host and store Your Data for the purpose of providing the Service (including in relation to developing and improving the Service), and M-SQUARE may sublicense these rights to M-SQUARE’s subcontractors.
7.3 You acknowledge and agree that you are solely responsible for making backups of Your Data and M-SQUARE will not be responsible for, or have any Liability in relation to, backups of Your Data (or the loss of any Your Data for any reason).
- Usage Limitations
8.1 Your use of the Service is subject to the usage limitations applicable to your subscription type. Such usage limitations are available by request from M-SQUARE.
8.2 M-SQUARE reserves the right to vary, within reason, such usage limitations from time to time.
- Availability of the Service
(a) You acknowledge and agree that you may not have continuous access to the Service and the provision of and access to the Service is reliant upon various factors beyond M-SQUARE’s control, including but not limited to:
(i) the provision of goods and services by Third Party Providers (including the availability, capacity, operation and performance of Third Party Platforms);
(ii) acts or omissions by you or third parties (including Third Party Providers);
(iii) your internet service provider, telecommunications provider or equipment used to access the Service (including internet browser, software and hardware);
(iv) your compliance with the recommend minimum requirements (as advised to you by M-SQUARE from time to time); and
(v) Force Majeure Events.
(b) From time to time during the Term, M-SQUARE may, but is not obliged to:
(i) make modifications to, or enhancements, updates or new releases of, the Service; and
(ii) undertake certain maintenance activities in relation to the Service.
(c) Certain activities or occurrences, including those referred to in clauses 9.1and 9.2 may cause outages, unavailability, inaccessibility or down time to the Service.
(a) You acknowledge and agree that M-SQUARE may temporarily suspend or permanently disable your access to the Service at any time without prior notice to you, including where:
(i) you are in breach of this Agreement;
(ii) you have exceeded the applicable usage limitations;
(iii) there is a security breach of any kind in relation to the Service or Your Data;
(iv) there is a malfunction, fault or breakdown of any of M-SQUARE’s or its Third Party Providers’ equipment or if M-SQUARE or any of its Third Party Providers undertakes repair, maintenance, updates, modifications or replacement of any part of the Service;
(v) M-SQUARE (or any of its Third Party Providers) is required by law to do so;
(vi) a Force Majeure Event occurs which affects or may affect M-SQUARE’ ability to provide access to the Service;
(vii) there is a Claim made that the continued provision of access to the Service infringes the rights of any person or entity, or there is a Claim made that exposes M-SQUARE to Liability or prosecution for an offence.
9.3 No Liability
M-SQUARE will not be liable to you or any other person or entity for any Claim or to any other extent for Liability or damage caused by loss of access to, or functionality of, the Service.
10.1 You acknowledge the Confidential Information is valuable to M-SQUARE.
10.2 You undertake to keep the Confidential Information secret and to protect and preserve the confidential nature and secrecy of the Confidential Information.
10.3 At the request of M-SQUARE, you must return to M-SQUARE or destroy (and certify that is has been destroyed) all the Confidential Information.
10.4 You acknowledge that a breach of this clause may cause M-SQUARE irreparable damage for which monetary damages may not be an adequate remedy. Accordingly, in addition to other remedies that may be available, M-SQUARE may seek and obtain injunctive relief against such a breach or threatened breach.
11.1 Disclosure by M-SQUARE
M-SQUARE, at its sole and absolute discretion, may publicly disclose (including in its marketing materials and on its Website):
(a) your use of the Service, including by reference to your or your business’ name, trademark, logo or other identifier; and
(b) your feedback, comments, queries, suggestions, and any other information received from you in relation to your use and/or evaluation of the Service.
11.2 Disclosure by you
You agree that no press release, notice, public disclosure or other publicity concerning this Agreement and the Service shall be issued, given, made or otherwise disseminated by you or on your behalf without the prior written consent of M-SQUARE.
- Intellectual Property
Ownership of the Service is not modified or transferred by this Agreement. The Intellectual Property Rights in the Service remain vested in M-SQUARE (or its licensors).
13.2 New IP
(a) The New IP will be the sole and exclusive property of M-SQUARE. You irrevocably assign to M-SQUARE all right, title, and interest in and to the New IP.
(b) In the event that M-SQUARE provides new features or services based on requests, ideas or suggestions made by you, you acknowledge that the Intellectual Property Rights in any such new features or services vests in and belongs exclusively to M-SQUARE and you will not be compensated for the request, idea or suggestion.
(c) In the event you become aware of New IP that is created by you in your use of the Service, you will:
(i) promptly disclose the New IP to M-SQUARE;
(ii) promptly cause that New IP to be assigned to M-SQUARE; and
(iii) not be compensated for the assignment of the New IP.
13.3 Prohibited Activities
You must not:
(a) allow or permit any person or entity to access, view or use the Service (or any associated source code or component or part of the Service) for any purpose or for any reason;
(b) allow or permit any direct competitor of M-SQUARE to access, view or use the Service (or any associated source code or component or part of the Service) for any purpose or for any reason;
(c) unless otherwise expressly authorised in writing by M-SQUARE:
(i) reverse engineer or decompile the Service;
(ii) reproduce, make error corrections to or otherwise modify or adapt the Service (including to create any derivative works based on the Service);
(iii) challenge the validity of any Intellectual Property Rights of M-SQUARE;
(iv) merge or interface any third party software (including source code or open source software) with the Service;
(v) access or permit the Service to be accessed in any unauthorised and/or unintended way, including via interfaces (including exposing or “passing through” a software API);
(d) do, or permit, or omit to do any act which infringes M-SQUARE’s Intellectual Property Rights (or those of its licensors);
(e) do or permit the use of the Services in a way that could infringe a third party’s Intellectual Property Rights;
(f) use the Service, or the Services, in any way that could damage the reputation of M-SQUARE;
(g) enter into any agreement or understanding to do any of the acts referred to in this clause; or
(h) attempt, counsel, procure or otherwise assist any person or entity (including but not limited to a Direct Competitor) to do any of the acts referred to in this clause.
13.4 Notification of infringement claim
You must notify M-SQUARE within five (5) business days of the date you become aware of:
(a) any actual or suspected breach or infringement of your obligations under this Agreement;
(b) any actual or suspected infringement of M-SQUARE’s Intellectual Property Rights by you or any third party; or
(c) any actual or threatened claim by a third party that the third party’s Intellectual Property Rights have or will be infringed by any act, omission or permission by a party in connection with this Agreement.
14.1 Exclusion of liability
(a) To the extent permitted by law, you acknowledge and agree that:
(i) the Service is provided “as is”, the Service is not completely error or defect free and that M-SQUARE will not have any Liability in connection with any defects or errors in the Service or any system outages;
(ii) the Service may become unavailable or inaccessible to you without notice or warning for an undetermined or indefinite period of time;
(iii) your use of the Service is at your own risk;
(iv) you are responsible for determining the suitability of the Service for your own purposes;
(v) your use of the Service does not constitute the receipt of accounting, legal, financial, tax, payroll, industrial relations, employment or any other professional advice from M-SQUARE or its Related Entities (or their respective Personnel);
(vi) it is your responsibility to check that storage of and access to Your Data via the Service will comply with laws applicable to you (including any laws requiring you to retain records); and
(vii) you are responsible for the cost of consumables, replacement parts, hardware, software, network upgrades and any goods and services used in connection with the Service.
(b) Without limiting the foregoing, and to the extent permitted by law, M-SQUARE does not represent or warrant that:
(i) the Service is suitable or fit for the proposed use by you;
(ii) the Service will not be affected by system outages, suspension or downtime;
(iii) the Service will be uninterrupted or error free; or
(iv) the Service will provide any functions or satisfy any requirements not expressly stated in this Agreement.
(c) To the extent permitted by law, M-SQUARE is not Liable (and you will not in any circumstances have any Claim against M-SQUARE) for or in respect of:
(i) any Claim or Liability suffered or incurred by you (or any other person or entity) in connection with:
(A) any defect, failure or non-performance of the Service or its design;
(B) system outages;
(C) the Service’s quality, merchantability or fitness for a particular purpose, or the suitability of the Service for your business, products or service;
(D) any acts or omissions by you;
(E) any acts or omissions of any Third Party Provider or internet service provider;
(F) any failure, error or non-performance of Third Party Platforms;
(G) the unavailability or non-performance of the internet;
(H) the security of the Service, Third Party Platforms, Your Data and any information stored on your servers;
(I) any interception or corruption of any Your Data or other information or data during any transmission over the internet or any telecommunications network or at any customer network access point;
(J) any content, products and deliverables displayed or offered via or in relation to the Service; or
(K) any loss or damage incurred by you as a result of third party Claims; or
(ii) any Consequential Loss of any kind,
however caused, and whether arising under contract, tort (including negligence) or otherwise, (even if you have advised us of their possibility), except to the extent caused by M-SQUARE’s gross negligence or willful misconduct.
(d) You agree that M-SQUARE is not liable to third parties in connection with this Agreement and M-SQUARE will have no Liability for Claims made by third parties arising out of or in connection with this Agreement, including on account of Claims made by any Government agency whether due to your non-compliance with applicable laws or otherwise.
14.2 Exclusions of warranties and representations
To the extent permitted by law, all warranties and representations concerning the Service (other than those expressly set out in this Agreement) are excluded.
14.3 Implied terms
(a) To the full extent permitted by law, any term which would otherwise be implied into this Agreement is excluded.
(b) In the event any statute implies terms into this Agreement which cannot be lawfully excluded, such terms will apply to this Agreement, save that the Liability of M-SQUARE for breach of any such implied term will be limited in accordance with clause 14.8.
14.4 Limitation of liability
To the fullest extent permitted by law, M-SQUARE’s cumulative Liability in the aggregate arising out of or in connection with this Agreement (whether in contract, tort, statute or otherwise) shall in no event exceed:
(a) supplying the Service to you again; or
(b) the payment of the cost of having the Service supplied to you again.
15.1 You must at all times indemnify and hold harmless M-SQUARE and its Related Entities from and against any Claim or Liability incurred or suffered by M-SQUARE and its Related Entities which is caused or contributed to by any of the following:
(a) a breach by you of your obligations pursuant to this Agreement or any warranty, representation or guarantee given by your under or in connection with this Agreement (whether express or implied);
(b) any failure by you to fully comply with all applicable laws (including all applicable accounting, tax, industrial relations, payroll, and employment laws);
(c) any breach or infringement of the Intellectual Property Rights of any person or entity (including M-SQUARE) by you; or
(d) any willful, unlawful or negligent act or omission by you.
16.1 Termination for cause
(a) breach any of the terms of this Agreement, including non-payment of Fees, and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
(b) breach any of the terms of this Agreement and the breach is not capable of being remedied (which includes (without limitation); or
(c) you or your business become insolvent or your business goes into liquidation or has a receiver or manager appointed of any of its assets or if you become insolvent, or make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction,
M-SQUARE may take any or all of the following actions, at its sole discretion:
(d) terminate this Agreement and your use of the Service;
(e) suspend for any definite or indefinite period of time, your use of the Service;
(f) suspend or terminate access to all or any of Your Data.
(g) take either of the actions in sub-clauses (d),(e) or (f) of this clause 16.1 in respect of any or all other Authorised Users.
16.2 Termination for convenience
Subject to clause 16.1, either party may terminate this Agreement for convenience (and without having to give reasons) by giving the other party at least 30 days’ written notice.
16.3 No prejudice of rights
Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.
16.4 Consequences of Termination
Upon termination of this Agreement:
(a) your access to the Service will terminate;
(b) all monies owing to M-SQUARE under this Agreement become immediately payable and due;
(c) you must return to M-SQUARE or destroy (and certify that is has been destroyed) all the Confidential Information; and
(d) you will not be entitled to any refund of Fees paid in advance.
17.1 You represent and warrant to M-SQUARE that:
(a) you are authorised to use the Service;
(b) you are authorised to use, upload and otherwise deal with Your Data in relation to the Service;
(c) the use by M-SQUARE of third party materials provided by you does not, and will not, breach any legal rights of a third party, including any Intellectual Property Rights and nothing contained in the third party materials is misleading or deceptive, or likely to mislead or deceive.
(d) All information and data provided by you to M-SQUARE is true, correct and complete in every way.
- Updates to Terms and Policies
- Free Trial
19.1 Application of this Clause 19
Where you are using a Free Trial:
(a) this clause 19 of this Agreement will apply; and
(b) clause 5 and 6.1(a)(i) of this Agreement (payment of Fees) will not apply.
In this clause 19, unless the context or subject matter otherwise requires:
(a) Free Trial means a free trial of the Service;
(b) Trial Period means a period of 30 days commencing on the Effective Date, or as otherwise agreed with M-SQUARE; and
(c) Permitted Purpose means internally testing and evaluating the Service to enable you to determine whether the Service is suitable and useful to you and your business and not for any commercial use or for any form of competitive analysis.
19.3 Access and Use
(a) During the Trial Period, M-SQUARE grants you a non-exclusive right to use the Service in accordance with this Agreement (and any rules, protocols, policies or directions of M-SQUARE from time to time) and for the Permitted Purpose only.
(b) You may only have one Free Trial of the Service.
At the expiry of the Trial Period, this Agreement will terminate and clause 16.3 (no prejudice of rights) and clause 16.4 (consequences of termination) will apply, as applicable.
- Beta Version
20.1 Application of this Clause 20
Where you are using a Beta Service, this clause 20 will apply.
In this clause 20, unless the context or subject matter otherwise requires:
(a) Beta Service means a version of the Service, or a function within the Service, that is in ‘beta’ status or is a test version; and
(b) Permitted Purpose means internally testing and evaluating (and reporting to M-SQUARE regarding) the Beta Service, to enable M-SQUARE to design, refine and produce the Service and not for any commercial use or for any form of competitive analysis.
20.3 Access and Use
During the Term, M-SQUARE grants you a non-exclusive right to use the Beta Service in accordance with this Agreement (and any rules, protocols, policies or directions of M-SQUARE from time to time) and for the Permitted Purpose only.
20.4 Your Obligations
In addition to the terms of this Agreement, you must:
(a) use the Beta Service for the Permitted Purpose only;
(b) when convenient, provide M-SQUARE with feedback on the Beta Service, including errors or difficulties encountered, useful features and, if applicable, suggestions for improvement of the Beta Service;
(c) notify M-SQUARE of any event or incidents that are likely to or will impact on access and use of the Beta Service;
(d) provide and maintain the appropriate technology, equipment and facilities to enable you to access and use the Beta Service; and
(e) not do (or authorise a third party to do) anything which could adversely impact on the operation of the Beta Service.
You agree and acknowledge that the Beta Service (including its existence, development, use, and all Intellectual Property Rights in the Beta Service) is deemed Confidential Information and the provisions of clause 10 apply to all aspects of the Beta Service and your use of the Beta Service.
20.6 Exclusion of Liability
(a) You acknowledge and agree that the Beta Service:
(i) is provided “as is” without warranty of any kind;
(ii) is not a finalised software solution and is only in a ‘beta’ or test phase;
(iii) is not error or defect free;
(iv) may become unavailable or inaccessible to you without notice or warning for an undetermined or indefinite period of time; and
(v) will be used by you at own risk.
(b) To the extent permitted by law, M-SQUARE is not Liable (and you will not in any circumstances have any Claim against M-SQUARE) for or in respect of:
(i) any Claim or Liability suffered or incurred by you (or any other person or entity) in connection with:
(A) any defect, failure or non-performance of the Beta Service or its design;
(B) system outages in relation to the Beta Service;
(C) the Beta Service’s quality, merchantability or fitness for a particular purpose, or the suitability of the Beta Service for your business, products or service;
(D) the security of the Beta Service, Third Party Platforms use in relation to the Beta Service, and Your Data and any information uploaded in to the Beta Service;
(E) any interception or corruption of any Your Data or other information or data during any transmission over the internet or any telecommunications network or at any customer network access point in relation to your use of the Beta Service; and
(F) any content, products and deliverables displayed or offered via or in relation to the Beta Service; or
(ii) any Consequential Loss of any kind,
however caused, and whether arising under contract, tort (including negligence) or otherwise, (even if you have advised us of their possibility).
(c) To the extent permitted by law, all warranties and representations concerning the Beta Service other than those expressly set out in this Agreement are excluded.
- General Provisions
This Agreement may be amended, supplemented, replaced or novated by M-SQUARE from time to time.
(a) You cannot assign, novate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of M-SQUARE.
(b) M-SQUARE can assign, novate or otherwise transfer its rights or obligations under this Agreement without your prior written consent.
If a provision of this Agreement is held by a court to be illegal, void or unenforceable, the offending provision will be severed from this Agreement to the extent and in the manner that best gives effect to the remaining provisions.
21.4 Governing law
This Agreement and the transactions contemplated by this Agreement are governed by the law in force in the State of Queensland, Australia. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of the State of Queensland, and all courts competent to hear appeals from those courts.
21.5 Contra proferentem
No provision of this Agreement is to be interpreted to the disadvantage of a party because that party (or its representative) drafted that provision.
Last updated: 1 January 2022