Last Modified: December 8th 2021
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
Our Customer Terms of Service is a contract that governs our customers’ use of the EDMISS, and other related services provided by Equator IT. It consists of the following documents:
Your Order Form is the Equator IT-approved form that contains all the details about your purchase, including your subscription term, products purchased and your fees.
Last Modified: December 7, 2021
“Access Credentials” means the necessary security keys, secrets, tokens, and other credentials to access the Service APIs.
“Add-Ons” means additional product enhancements (including limit increases, capacity packs, and other add-ons) that are made available for purchase.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” or “Customer Terms of Service” means these Master Terms and all materials referred or linked to in here.
“Apps” means applications, plugins or extensions that are designated to interoperate with EDMISS Services.
“Billing Period” means the period for which you agree to prepay fees under an Order Form. This may be the same length as the Subscription Term specified in the Order Form, or it may be shorter.
“Business Hours” means Monday to Friday from 9am to 5pm Australian Eastern Time (AEST) except for Queensland (Australia) public holidays.
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential. Confidential Information includes all information concerning: the Disclosing Party’s customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
“Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
“Custom Development”means additional EDMISS features or enhancements specifically requested by, and paid for by, You.
“Customer Data”, “Your Data” means all information that you submit or collect via the Subscription Service.
“Customer Materials”, “Your Materials” means all materials that you provide, upload or input through the Subscription Service.
“Data Extraction Fee” means the amount you pay Us to provide You an extraction of Your Data before the termination of the Agreement.
“Designated Contacts” means Users Customer identifies as primary liaisons between Customer and Equator IT for technical support.
“Equator IT”, “Equator”, “we”, “us” or “our” means EQUATOR PTY. LTD. trading as EQUATOR INFORMATION TECHNOLOGY.
“Equator IT Hosted” means that the servers and databases supporting the Subscription Service are hosted and controlled by Equator IT.
“GST”means a goods and services tax, or similar value-added tax, levied or imposed under tax Laws.
“Onboarding Phase”means the period during which Your EDMISS instance is being implemented by You with support from Equator IT in preparation for live use.
“Order” or “Order Form” means the Equator IT-approved form by which you agree to subscribe to the Subscription Service and purchase Consulting Services.
“Product Specific Terms” means the additional product-related terms that apply to your use of Equator IT products, our consulting services and Third-party Services.
“Production Environment” means the environment used for business operations.
“Sandbox Environment” means the environment used for testing, training and development purposes.
“Self-hosted” means that the servers and databases supporting the Subscription Service are hosted and controlled by You.
“Subscription Fee” means the amount you pay for the Subscription Service.
“Subscription Service” means all of our applications, tools and platforms that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us.
“Subscription Term” means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any).
“Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service.
“Third-Party Sites” means third-party websites linked to from within the Subscription Service, including Communications Services.
“Users” means your employees, representatives, consultants, contractors, agents or students who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, or Order Form as the customer.
2. USE OF SERVICES
During the Subscription Term, we will provide your Users access to use the Subscription Service as described in this Agreement and the applicable Order. You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement. You may provide access and use of the Subscription Service to your Affiliate’s Users or allow them to receive the Consulting Services purchased under this Order; provided that, all such access, use and receipt by your Affiliate’s Users is subject to and in compliance with the Agreement and you will at all times remain liable for your Affiliates’ compliance with the Agreement.
2.2 Additional Features
You may subscribe to additional features of the Subscription Service by placing an additional Order. This Agreement will apply to all additional Order(s) and all additional features that you request.
The limits that apply to you will be specified in your Order Form or in this Agreement.
Depending on your EDMISS product and plan, you may be entitled to downgrade your subscription.
We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience.
For information on the customer support terms that apply to your subscription, please refer to the Product Specific Terms.
2.7 Acceptable Use
You will comply with our Acceptable Use Policy (AUP).
2.8 Prohibited and Unauthorized Use
You will not use the Subscription Service in any way that violates the terms of the AUP or for any purpose or in any manner that is unlawful or prohibited by this Agreement.
2.9 Legacy Products
If you have a legacy Equator IT product, some of the features and limits that apply to that product may be different than those that appear in these Master Terms and/or the Product Specific Terms. If you have legacy Equator IT products, we may choose to move you to our then-current products at any time. If you determine that you are using a legacy product and would like to upgrade to a current-version, you must execute a new Order.
3.1 Subscription Fees
The Subscription Fee will remain fixed during the initial term of your subscription unless (i) you exceed the limits of your purchased products, (ii) you upgrade products, (iii) you subscribe to additional features or products or (iv) otherwise agreed to in your Order.
3.2 Fee Adjustments at Renewal
Upon renewal, we may increase your fees up to our then-current list price. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate your subscription at the end of your then-current term by giving the notice required in the ‘Notice of Non-Renewal’ section below.
3.3 Payment against invoice
If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
3.4.1 Equator IT will give the User a valid tax invoice for any supply under this Agreement to which GST applies.
3.4.2 If GST is payable by Equator IT for any supply made to the User under this Agreement, the User must:
126.96.36.199 in addition to any amount payable for the supply under this Agreement pay the GST payable in respect of that supply at the same time as the consideration for the supply is due; and
188.8.131.52 pay any penalty or other amount payable by Equator as a result of the User not making any payment on time.
4. TERM AND TERMINATION
4.1 Term and Renewal
Your initial subscription term will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for additional one year terms.
4.2 Notice of Non-Renewal
Unless otherwise specified in your Order, to prevent renewal of your subscription, you or we must give written notice of non-renewal at least thirty (30) days before the renewal term.
If you decide not to renew, you may send a non-renewal notice to us indicating that you do not want to renew by sending us an email to firstname.lastname@example.org.
4.3 Early Cancellation
You may choose to cancel your subscription early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the Subscription Term. See the ‘Notice of Non-Renewal’ section for information on how to cancel your subscription.
4.4 Termination for Cause
Either party may terminate this Agreement for cause, as to any or all Subscription Services:
(i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or;
(ii) immediately, if the other becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.
We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
4.5.1 Suspension for Prohibited Acts
We may suspend any User’s access to any or all Subscription Services without notice for: use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.
4.5.2 Suspension for Non-Payment
We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid by the due date, we may suspend your access to any or all of the Subscription Services. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
4.5.3 Suspension for Present Harm
If your use of the Subscription Service:
(i) is being subjected to denial of service (DoS) attacks or other disruptive activity;
(ii) is being used to engage in denial of service attacks or other disruptive activity;
(iii) is creating a security vulnerability for the Subscription Service or others;
(iv) is consuming excessive bandwidth, or;
(v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.
We will make commercially reasonable efforts to (a) limit the suspension to the affected portion of the Subscription Service and (b) promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
4.6 Effect of Termination or Expiration
You will continue to be subject to this Agreement for as long as you have access to our services. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service.
If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
Upon termination of this Agreement for any reason:
(i) You will remove and uninstall (where applicable) all the products provided by Us as part of the Subscription Service.
If the Subscription Service is self-hosted:
(ii) You must securely destroy all copies of EDMISS and the EDMISS database and their backup copies in the Users possession or control and provide Equator IT with written certification confirming the destruction, signed by a senior executive of the User.
(iii) You will not reverse engineer the EDMISS database or any other products provided by Us as part of the Subscription Service.
5. CUSTOMER DATA
5.1 Ownership of Customer Data
You own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as otherwise permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.2 Access to Customer Data
By You: You can only access Your Data using the products stated on the current Order Form and only during the Subscription Term.
By Us: You grant Equator IT a limited, royalty free license to reproduce and copy Your Data, but only to the extent required to perform its obligation under this Agreement. Equator IT must at all times keep all Your Data in its possession or control, in confidence and protect it from unauthorized distribution and use.
Equator IT may also access Your Live or Sandbox accounts in order to respond to your support requests.
5.3 Third-party applications and Customer Data
If You enable third-party applications for use in conjunction with the Subscription Service, You acknowledge that Equator IT may allow the providers of those third-party applications to access the Customer Data as required for the interoperation of such third-party applications with the Service. Equator IT shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by third-party application providers.
5.4 Limits on Equator IT
We will not use Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by applicable law and this Agreement.
5.5 Customer Data Hosting Location
The Customer Data is stored on Australia soil.
5.6 Responsibility for Customer Data
You represent and warrant that: (i) You have obtained all necessary rights, releases and permissions to provide all Your Data to Equator IT and to grant the rights granted to Equator IT in this Agreement and (ii) Your Data and its transfer to and use by Equator IT as authorized by You under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies.
Other than its security obligations under the Data Security section below, Equator IT assumes no responsibility or liability for Your Data, and You shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
5.7 Data Security and Data Breach
Equator IT will maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. However, You understand that use of the Subscription Service necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by Equator IT, and Equator IT is not responsible for any of Your Data lost, altered, intercepted or stored across such networks. Equator IT cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.
If Equator IT becomes aware or suspects that there has been unauthorised access to, or disclosure of Your Data or Your Data has been lost in circumstances where unauthorised access to, or unauthorised disclosure of Your Data may occur, Equator IT will notify You and provide details of the data breach via email within 24 hours.
Equator IT will also act in accordance with the Notifiable Data Breaches scheme from Office of the Australian Information Commissioner to report any data breaches to the Australian Government within 24 hours where the data breach falls under the criteria for compulsory reporting.
5.8 Retention and Deletion of Customer Data
Equator IT may remove or delete Your Data from within a reasonable period of time after the termination of this Agreement, or at a time agreed upon by You and Us.
If your Subscription Service is self-hosted, you will securely destroy the EDMISS database and its backup copies in your possession or control immediately after the termination of this Agreement.
5.9 Retrieval of Customer Data
During the Subscription Term, You may, by running reports from within EDMISS, extract all Your Data.
You may request in writing to Us an extract of Your Data if you are not renewing the Subscription Service. You agree to pay the Data Extraction Fee before we provide the extract. You also understand and agree that the Data Extract is raw data with no meta information or schema included.
5.10 Data Backups
We perform a daily backup of Your Data and keep it off-site. In case of a disaster, we will use the latest backup to restore your data.
If your Subscription Service is Self-hosted, it is your responsibility to do the backups and restore of the data if required.
5.11 Data Practices and Machine Learning
5.11.1 Usage Data: We may collect information about you and your Users when you interact with the Subscription Service as permitted by the Agreement. We may aggregate and anonymize this information and share it with third parties provided that we do not include any Customer Data or identify Users.
5.11.2 Machine Learning: We may, as permitted by the Agreement, use Customer Data in an anonymized manner for machine learning to support certain product features and functionality within the Subscription Service.
6. INTELLECTUAL PROPERTY
6.1 This is an agreement for access to and use of the Subscription Service, and you are not granted ownership to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.
6.2 We encourage all customers to comment on the Subscription Service or Consulting Services and provide suggestions for improving it. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
7.1 The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.2 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate, (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.
You grant us the right to add your name and company logo to our customer list and website. You can opt-out of this use by requesting it in writing to us.
9.1 EQUATOR IT Warrants that:
(i) it is the legal and equitable owner of EDMISS, all the associated intellectual property contained in the EDMISS database and all the products and services that are part of the Subscription Service.
9.2 User’s Warrants that:
(i) it will not sell assign or sublicense the Subscription Service at any time;
(ii) it will not reverse engineer, de-compile or disassemble EDMISS or the EDMISS database or associated products in any way seek to alter or modify EDMISS except with the written consent of Equator IT;
(iii) it will use ensure that EDMISS is maintained by the User and that no employee or consultant is authorised to have access to EDMISS or the EDMISS database after that person ceases to be an employee or consultant of the User.
You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of
(a) unauthorized or illegal use of the Subscription Service by you or your Affiliates,
(b) your or your Affiliates’ noncompliance with or breach of this Agreement,
(c) your or your Affiliates’ use of Third-Party Products, or
(d) the unauthorized use of the Subscription Service by any other person using your User information.
We will: notify you in writing within thirty (30) days of us becoming aware of any such claim; give you sole control of the defence or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defence or settlement of the claim. You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
11.1 Amendment; No Waiver
We may modify any part or all of the Agreement by posting a revised version at https://edmiss.com/legal/terms. The revised version will become effective and binding the next business day after it is posted. We will provide you notice of this revision by email.
If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms posted at http://edmiss.com/legal/terms will apply. However, if we can no longer reasonably provide the subscription to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Subscription Services will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
11.2 Force Majeure
Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.3 Actions Permitted
Except for actions for non-payment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
11.4 Relationship of the Parties
You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
11.5 Governing Law
The law of the state of Queensland, Australia governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of Queensland and of the Commonwealth of Australia.
If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
To Equator IT: Notice will be sent to the contact address set forth in the Order Form and will be deemed delivered as of the date of actual receipt.
To you: your address as specified in the Order Form. We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
11.8 Entire Agreement
This Agreement (including each Order), is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service.
You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any Equator IT affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
11.10 No Third Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.11 Contract for Services
This Agreement is a contract for the provision of services and not a contract for the sale of goods, therefore the provision or acts for the sale of goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.
Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.
In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.