1.1 These Terms of Service are an Agreement between Rise-X and the Customer.
1.2 This Agreement contains the terms and conditions that govern use of the Services.
1.3 Between Rise-X and the Customer, this Agreement takes effect on the earlier of:
1.4 If a person acquires a Service using an email address from their employer or another entity, then:
2.1 Rise-X may vary this Agreement from time to time.
2.2 Where a variation is beneficial to, or does not impose additional obligations on, the Customer then Rise-X may make the variations without notice. In all other cases, Rise-X will provide 30 days notice of variations unless a variation is required by law, or a change in law, in which case Rise-X may give less notice if reasonably required for compliance with law. If the Customer does not agree to the variations then the Customer may terminate its Agreement with Rise-X within 60 days of Rise-X giving notice. The Customer will be liable for all Services supplied up to the date of termination. If the Customer has paid in advance for Service not received then Rise-X will provide a refund of the relevant amounts.
2.3 The current version of this Agreement can be reviewed by clicking on the relevant hypertext link on Rise-X’s Website.
2.4 When Rise-X makes updates to this Agreement, Rise-X will update the date at the top of this page. By using any Service after a new version of this Agreement has been posted on Rise-X’s Website, the Customer agrees to the terms of that new version.
3.1 Rise-X agrees to provide, and the Customer agrees to acquire, the Services on the terms and conditions of this Agreement.
3.2 Rise-X grants the Customer a non-exclusive, non- transferable, licence for the Term to use the Services for its own business purposes, subject to the terms of this Agreement.
3.3 The location and method of performing the Services is at Rise-X’s discretion.
3.4 Rise-X is entitled to undertake planned maintenance of the Rise-X Software that will result in the Rise-X Software being unavailable for use by the Customer (Planned Maintenance). Rise-X shall provide the Customer with reasonable advance electronic notice to the Customer of any Planned Maintenance to the Rise-X Software. Rise-X will use all reasonable endeavours so that Planned Maintenance of the Rise-X Software occurs during Rise-X’s Planned Maintenance windows as advised to the Customer from time to time.
4.1 Where Rise-X offers or supplies Services, or features of a Service:
(the “TEB Services”) this clause 4 applies.
4.2 Notwithstanding anything in this Agreement or otherwise:
5.1 This Agreement commences on the Commencement Date and remains in effect until the expiration of the last Service Term, unless terminated in accordance with this Agreement.
6.1 If the Customer wishes to acquire, or vary, any of the Services, the Customer must submit an Order to Rise-X.
6.2 An Order takes effect on Rise-X’s acceptance of it. Each accepted Order forms part of this Agreement.
7.1 Subject to this Agreement, Rise-X will use reasonable care and skill in performing the Services and to the standard generally accepted within the industry, sector or profession in which Rise-X operates for the type of Services provided by Rise-X.
7.2 Due to the nature of software and the Services, Rise-X does not warrant that:
7.3 Without limiting the Customer’s obligations under this Agreement, and allocation of risk and liability in relation to data, Rise-X will implement reasonable and appropriate measures to help secure any Customer data hosted or stored on the Services against accidental or unlawful loss, access or disclosure. If a Rise-X Policy sets out measures relevant to the foregoing then those measures will constitute what is reasonable and appropriate.
7.4 The Services are provided via a common platform to Rise-X Group’s customers. The features and functionality of the Services are as described in the standard documentation for the Services as amended by Rise-X and made available to the Customer from time to time. Standard documentation may be provided as advised by Rise-X from time to time, including in softcopy or online.
7.5 Rise-X is not liable for any failure attributable to:
7.6 If, upon investigation, a problem with the Services is determined not to be Rise-X’s responsibility, Rise-X may invoice the Customer for all reasonable costs and expenses incurred by Rise-X in the course of or in consequence of such investigation.
8.1 The Customer must comply with Rise-X’s Policies.
8.2 The Customer is solely responsible for:
8.3 The Customer must not use the Services for any purpose that:
8.4 The Parties must refrain from doing anything that may bring the name, brand or reputation of the other Party into disrepute, including:
In this clause 8.4, Trade Controls refers to any trade sanctions, embargoes, export control, or import laws, or other regulations, orders, directives, designations, licences, or decisions relating to the trade of goods, technology, software and services which are imposed, administered or enforced from time to time by Australia, the United States, the United Kingdom, the EU, EU Member States, Switzerland, the United Nations or United Nations Security Council and also includes U.S. antiboycott laws and regulations.
8.5 The Customer must not:
8.6 The Services are not intended for, and should not be used by, anyone under the age of 18. The Customer is responsible for ensuring that all users of the Services are at least 18 years old.
8.7 The Customer is responsible for ensuring any Customer Group member, its Personnel or a third party which access or use the Services comply with its obligations in this clause 8. Any use by such a person or party is use by the Customer for the purpose of this clause 8.
8.8 The Customer indemnifies Rise-X against any claim by a third party against Rise-X that relates to the Customer’s use of the Services (including any use by a third party or Customer Material infringes the Intellectual Property rights of the third party) or breach of its obligations under this clause 8.
9.1 The Customer owns all right, title and interest in Customer Material. The Customer grants to Rise-X a non-exclusive, royalty-free licence to use Customer Material solely for the purposes of performing the Services. The licence expires on completion of the relevant Services or the termination or expiration of this Agreement, whichever occurs earlier.
9.2 Rise-X owns all right, title and interest in Rise-X Material.
9.3 Right, title and interest in this clause 9 includes all Intellectual Property.
9.4 The Customer indemnifies Rise-X against any claim by a third party against Rise-X that the Customer’s use of the Services (including any use by a third party) or Customer Material infringes the Intellectual Property rights of the third party.
10.1 The Customer will pay Rise-X the Fees for the Services.
10.2 The Fees are payable in the currency set out in this Agreement, including each Order. If no currency is specified then the Fees are payable in United States Dollars.
10.3 Rise-X may vary the Fees by notice to the Customer. Thirty days notice will be given of increases in, or new, Fees.
10.5 If no other time is specified, the Customer must pay Rise-X’s invoices within 14 days of receipt of each invoice (Due Date). All payments must be in clear funds, so that Rise-X receives into its bank account the invoiced amount in full, and without deduction of bank charges, taxes (including withholding taxes), duties or any other charges whatsoever.
10.6 If the Customer in good faith disputes an invoice, the Customer need not pay the disputed amount until the dispute is resolved. The Customer must provide reasons for the dispute. The Customer must pay all undisputed amounts by the Due Date.
10.7 If the Customer does not pay undisputed amounts by the Due Date, Rise-X shall be entitled to do any or all of the following:
11.1 The Customer must pay all Taxes on the supply of the Services or incurred by the Rise-X in performing the Services. Unless expressly stated otherwise, the charges for the Services are exclusive of any Taxes.
11.2 Where GST is imposed on a taxable supply made under or in connection with this Agreement and the recipient of that supply receives a tax invoice for that supply, the recipient must pay an additional amount equal to the GST to the supplier (without deduction, withholding, counterclaim or set-off) by the tax invoice due date.
11.3 If one Party is required to indemnify, pay or reimburse another Party (Payee) for any cost, loss or expense, the indemnity or reimbursement payable does not include any amount for which the Payee (or an entity grouped with the Payee for GST purposes) is entitled to an input tax credit, but will be increased in accordance with clause 11.2 if the amount payable is consideration for a taxable supply.
11.4 If the Customer is required by law to make a Tax Deduction from the payment, it must pay an additional amount so that, after making any Tax Deduction, Rise-X receives an amount equal to the payment which would have been due if no Tax Deduction had been required.
12.1 Each Party (Recipient) must keep all of the other Party’s (Discloser) Confidential Information confidential.
12.2 The Recipient may only use the Discloser’s Confidential Information for the purpose of performing its obligations, or receiving the benefit of its rights, under this Agreement.
12.3 A Recipient must not disclose the Discloser’s Confidential Information to any person except:
12.4 The Confidential Information does not include information which:
12.5 The Recipient must destroy physical copies, or delete electronic copies, of Discloser’s Confidential Information promptly upon request by the Discloser. This clause 12 does not apply in respect of any Confidential Information which:
12.6 An obligation of confidence under this clause 12 continues in relation to Confidential Information disclosed to the Recipient until that Confidential Information is in the public domain.
12.7 Each Party acknowledges that, in addition, to any other remedy that may be available in law or equity, the other Party is entitled to interim, interlocutory and permanent injunctions to prevent breach of this clause 12 and to ensure its specific performance.
13.1 The Customer is responsible for obtaining any consents or approvals in relation to privacy and any disclosure or use of data in connection with the Service or this Agreement (Service Data).
13.2 Rise-X may collect, use and disclose Service Data in accordance with the Rise-X Policies.
14.1 Subject to clause 14.2, each Party’s liability to the other in tort (including negligence), contract, statute or otherwise for any loss, damage, cost or expense incurred by the other Party is limited, for all claims arising from events occurring during each 12-month period from the Commencement Date of this Agreement, the first such period commencing on the Commencement Date and the second such period commencing on the day after the end of the first 12 month period and so on, to a sum equal to the Fees payable during that 12 month period.
14.2 The limitations on liability in clause 14.1 does not apply to:
14.3 Notwithstanding anything to the contrary in this Agreement neither Party is liable to the other for any loss of profits, revenue, business opportunities, goodwill, production, likely savings, good will or indirect loss.
14.4 In relation to data (including any data submitted to, used with, hosted on or created by the Services) and liability for any loss, corruption or other damage to such data:
14.5 To the extent it is possible for a party to do so, each party is solely responsible for backing up its own data so that it may be accessed or re-created if corrupted, lost or destroyed.
14.6 Each of the Parties acknowledges that:
15.1 All notices and consents must be in writing to the email addresses specified in an Order or as otherwise notified.
15.2 Notices sent by email are deemed to be received at the time of the successful receipt by the recipient (as may be evidenced by, but not limited to, the transmission of an automatic electronic read receipt from, or manual acknowledgment by, the recipient).
16.1 Rise-X may limit or suspend the provision of any or all Services to the Customer at any time:
16.2 Rise-X will provide the Customer with advance notice where it is possible to do so in the circumstances. If it is not possible to provide such notice, then Rise-X will notify Customer as soon as practicable after exercising Rise-X’s rights.
17.1 Either Party may terminate, by written notice to the other Party this Agreement if:
17.2 If this Agreement is terminated:
18.1 The following clauses survive termination of this Agreement:
19.1 The parties agree to use best endeavours to resolve in good faith any dispute concerning this Agreement. Each party must follow the procedures in this clause 19 before starting court proceedings (except for urgent injunctive or declaratory relief).
19.2 If a dispute arises between the parties that cannot be resolved promptly between the parties respective representatives, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet within 7 days of the notice (or another agreed period) to try and resolve the dispute.
19.3 If the dispute remains unresolved, the Parties must try to resolve it by mediation in Perth, Western Australia. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement within 7 days of receiving any party’s notice of dispute, by a person appointed by the Chair of Resolution Institute, or the Chair’s designated representative. The Resolution Institute Mediation Rules shall apply to the mediation.
Rise-X may use subcontractors. Where Rise-X does so it will ensure that the subcontractor has the necessary skills and resources to perform the work they undertake. Subcontracting does not relieve Rise-X of its obligations under this Agreement.
20.2 Force Majeure
Neither Party shall have any liability under, or be deemed to be in breach of, this Agreement for any breach, delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party (including in Rise-X’s case any outage or failure of a third party service provider to Rise-X used by Rise-X in the supply of the Services). The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
20.3 General Warranties
Each Party warrants and undertakes that it has the power and is duly authorised to enter into, perform and comply with its obligations under this Agreement.
20.5 Entire Agreement
This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
20.7 Further Assurance
Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
20.9 Law and Jurisdiction
This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in Western Australia, Australia. The Parties submit to the exclusive jurisdiction of the courts of Western Australia.
In this Agreement unless the context indicates otherwise, the following words shall have the following meanings:
Affiliate means, with respect to a person, any other person directly or indirectly Controlling, Controlled by, or under direct or indirect common Control with, such person.
For such purpose:
Commencement Date is defined in clause 1.3.
Confidential Information means the provisions of this Agreement, all information provided by a Party to the other Party under this Agreement, and includes a Party’s technical, operational, billing, pricing, customer and commercial information and includes all software, source or object code and any other information marked as confidential.
Customer Material means all documents, software, equipment, information and data owned or licensed by the Customer Group or which the Customer Group has a right to use (but excluding any Rise-X Material). Customer Material includes any enhancement, modification, update or upgrade to it from time to time.
Events means each step within a workflow in the Customer’s Production Environment. Each time a workflow in use progresses to the next step in that workflow is an Event.
Fees means the fees payable by the Customer to Rise-X under this Agreement, including as set out or referred to in each Order, on the Rise-X Website or as otherwise notified by Rise-X to the Customer.
Group means a Party and its Affiliates.
Indirect Taxes means any tax payable on the sale or supply of goods, services or other things and includes goods and services tax, value added tax, sales tax, consumption tax or any similar impost imposed in a jurisdiction other than Australia.
Intellectual Property means all current and future rights in respect of trademarks, service marks, patents, moral rights, copyrights and related rights, rights in designs (whether registerable or not), processes, trade secrets and know-how and confidential information (including in inventions whether patentable or not), logos, domain names, database rights information and any other intellectual property rights as defined by Article 2 of the World Intellectual Property Organization Convention of July 1967, and other similar or equivalent rights or forms of protection (whether registered or unregistered) and all applications (or rights to apply) for, and for renewals and extensions of, such rights anywhere in the world.
Order means an order for Services (including a request to vary an existing Service) submitted to Rise-X by the Customer in the form specified by Rise-X from time to time, including any online form.
Parties means Rise-X and the Customer, and Party shall mean either one of them.
Personnel means a person’s officers, employees, agents, contractors and sub-contractors.
Production Environment means the operating environment hosted on the Rise-X Software in which the Customer’s uses the Service and any Customer specific features and functionality are implemented.
Rise-X means Rise-X Digital Services Pty Ltd (ABN 45 640 133 615).
Rise-X Material means all documents, software, equipment, information and data owned or licensed by Rise-X Group or which Rise-X Group has a right to use and includes Rise-X Software. Rise-X Material includes any enhancement, modification, update or upgrade to it from time to time.
Rise-X Policies means policies generally applicable to users of the Services as published and varied from time to time by Rise-X and including as available on any website or as otherwise notified by Rise-X from time to time.
Rise-X Software means the software platform known as Rise-X Ecosystem Orchestration Platform (EOP) that is owned or licensed by the Rise-X Group, as enhanced, modified, updated and upgraded from time to time.
Rise-X Website means www.rise-x.io or any other website owned or operated by the Rise-X Group or as notified by Rise-X from time to time.
Sanction means any sanctions, restrictions or designations imposed under any laws or regulations (including any restrictions on dealing with a person that is identified on any applicable restricted persons list) of Australia or any other country with jurisdiction over this Agreement (including the Services supplied under it) and, in the Customer’s case jurisdiction over the Customer and in Rise-X’s case jurisdiction over Rise-X.
Services means the Rise-X Software provided as a service under this Agreement, as described in the Service description provided on Rise-X’s website as amended from time to time.
Service Term for a Service, is the period for which the Customer has agreed to acquire the Service, as set out in the relevant Order (for example, when ordering on Rise-X’s Website the Customer may select an option to pay for a particular period, in which case the Service Term is the period selected). The Service Term commences on the date the relevant Service is accessible by the Customer. At the end of each Service Term, the Service Term automatically renews on the same terms and conditions for a further Service Term of the same duration as the existing Service Term, unless terminated by either party providing 30 days notice.
Taxes means Indirect Taxes, taxes, levies, imposts, duties, excise, and charges, deductions or withholdings, however described, imposed by law or government authority or agency, including any related interest, penalties, fines, or other charges or other expenses, other than GST and any tax imposed on, or calculated having regard to, net income.
Term means the term of this Agreement, as determined in accordance with clause 5.1.
In this Agreement unless the context otherwise requires:
a reference to an applicable law includes any law in force in a jurisdiction where the Services are being supplied or used or which regulates the supply or use of the Services;
terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given in that Act, unless the context makes it clear that a different meaning is intended;
a reference to a Party includes a reference to the Party’s executors, administrators, successors and assigns;
the singular includes the plural, and vice versa; and
“includes”, “including”, “for example”, “such as” and similar terms are not words of limitation.
The Service is currently a Beta Service. As such, it is provided “AS IS”. For further information on Beta Services please see the Rise-X Terms of Service.
The Service is the Rise-X Software application provided as a service. The Rise-X Software is an ecosystem operating platform designed for companies who want to build, operate, and optimise business ecosystems.
The Services include hosting of the Rise-X Software by Rise-X.
The Service includes hosting of Customer data on the Service during the Service Term to the extent that the Service does so as part of its normal operation from time to time. The terms of the Agreement that apply to data, including the Customer’s obligations to secure and back data up, apply to any data hosted on the Service. At the end of the Service Term access to data hosted on the Service will cease.
Hosting includes Customer data at volumes as can be expected by reasonable use of the workflows, as determined by Rise-X acting reasonably.
When Rise-X becomes aware of excessive data hosting (e.g. large volumes of video storage), Rise-X will notify Customer and work with Customer towards an appropriate solution, which can include:
The above is subject to clause 4.4 of this Agreement.
Rise-X is entitled to undertake planned maintenance of the Rise-X Software that will result in the Rise-X Software being unavailable for use by the Customer subject to the provisions of this paragraph (Planned Maintenance). Rise-X shall provide the Customer with reasonable advance electronic notice to the Customer of any Planned Maintenance to the Rise-X Software. Rise-X will use all reasonable endeavours so that Planned Maintenance of the Rise-X Software occurs during Rise-X’s Planned Maintenance windows as advised to the Customer from time to time.