Welcome to Stax, an application providing full stack visibility and insight into the use and management of the cloud. These Terms and Conditions of Business (Terms) are intended to explain our obligations as a service provider and your obligations as a customer. Please read them carefully.
These Terms are binding on any use of Stax by you, including (a) any software products (including applications, modules and plugins) (“Software”) supplied to you by WMS-Stax Pty Ltd ACN 613 478 390 (us, or Stax), (b) our hosted services (“Hosted Services”) and our implementation, management and consulting services supplied to you (“Professional Services”) and apply to you from the earlier of (a) the time you confirm acceptance of these Terms, and (b) the time that Stax provides you with access to the Software, Hosted Services or Professional Services.
Stax’s Software, Hosted Services and Professional Services are continuously evolving, with regular updates made available. Stax reserves the right to change these terms at any time, effective upon the posting of modified terms. If a revision reduces your rights, we must notify you of the change (by, for example, sending an email or via an update in the Software itself). If we modify these Terms during the Initial Term and we have agreed fixed obligations for you for an Initial Term, the modified version of these Terms in respect of those fixed obligations will be effective at the end of the Initial Term.
By registering to use the Software, Hosted Services and Professional Services you acknowledge that you have read and understood these Terms and have the authority to act on behalf of any person for whom you are using the Software. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Software, Hosted Services or Professional Services .
These Terms were last updated on 5 May 2016.
1. Use and ordering of the software
Order. You can subscribe to the Software or Hosted Service, or order Professional Services, by executing an order form online or with a sales representative of Stax. The order form will allow you to select from the alternative ways in which the Software, Hosted Service and Professional Service can be provided.Administration. You must nominate your contacts and their contact details in an order form so that we can communicate with you, and you must notify us if these details change. You will be able to authorise one or more people to operate your user account, and to use the Software or Hosted Service. You accept responsibility for the actions of each person that you authorise or enable to operate your user account, or to use the Software and Hosted Service.Licence. Where your order is in respect of Software, subject to the provisions of these Terms, we grant you a non-exclusive non-transferable, revocable licence to use the Software for the Initial Term of the licence. In respect of the Software:
a. You acknowledge and agree that we may make changes to the Software from time to time, such as changing, adding and removing functions.
b. You acknowledge and agree that the Software may be unavailable from time to time due to maintenance activities or due to technical problems.
c. You acknowledge and agree that you are responsible for taking steps to ensure that the means by which you access and use the Software do not expose your computer systems and other devices to viruses, worms and other malicious code. Stax Hosted Services. Where your order is in respect of Hosted Services, subject to the provisions of these Terms, we grant you a non-exclusive and non-transferable right to access and use the Hosted Services for the Term. In respect of such Hosted Services:
d. You acknowledge and agree that we may make changes to the Hosted Services from time to time, such as changing, adding and removing functions.
e. You acknowledge and agree that the Hosted Services may be unavailable from time to time due to maintenance activities, technical problems, or other circumstances beyond our reasonable control.
f. You acknowledge and agree that you are responsible for taking steps to ensure that the means by which you access and use the Hosted Services do not expose your computer systems and other devices to viruses, worms and other malicious code.
Professional Services. Subject to the provisions of these Terms, we will provide you with the Professional Services set out in an order accepted by us. We may subcontract the performance of any Professional Services or any support and maintenance services, but we will remain responsible to you for the delivery of those services. Unless stated otherwise in an order, we will retain all rights, title and interest in and to any materials (including software, documentation, deliverables, modifications, enhancements and derivative works) (“Service Materials”) that are created by us or on our behalf in connection with any Professional Service or other products or services that we provide to you. Any Service Materials that we provide to you must only be used by you in relation to the applicable Software, and your use of Service Materials is subject to the same terms and conditions that apply to the applicable Software.
2. Your obligations
Restrictions. Unless expressly stated otherwise in these Terms or your order as accepted by us:
a. you may only use the Software and Hosted Service for your internal business purposes, and the only people who are permitted to use the Software are your staff and your contractors as authorised by you;
b. you must not use the Software or Hosted Service to provide services to another person, or allow the Software or Hosted Service to be used by any person through any outsourced service provision, timesharing, managed service or any similar kind of arrangement, or incorporate or combine any Software or Hosted Service in any product or service that you provide to any person;
c. you must not license, sub-license, reproduce, copy, modify, create derivative works of, sell, exploit, rent, lease, transfer, assign, distribute or disclose the Software or any part of them;d. you must not modify, reverse engineer, disassemble, decompile, reverse compile or otherwise try to access or reproduce the operation of the Software;
e. you must not modify, attack, disrupt or circumvent any software, technology or other material used by us to provide or control access to the Software;
f. you must maintain and not alter or remove any copyright, trade mark or other protective notice in the Software and Hosted Service and/or Documentation or in any copy of or any component of either of them, and you must not directly or indirectly assist or permit any other person to do any of these things.
3. Our obligations
Support. We will provide support services in relation to the Software and Hosted Service during the Term as described in the applicable order. Any additional software that we provide to you in connection with our support services for the Software and Hosted Service (including minor and major releases or updates, patches, fixes, modifications, etc.) (“Updates”) will be deemed to be Software for the purposes of these Terms.Availability. We will use commercially reasonable endeavors to make the Hosted Service available 24 hours a day, seven days a week, except for planned maintenance carried out during our maintenance window, unscheduled maintenance that we determine is required urgently or for circumstances beyond our reasonable control. To the extent permitted by law, we do not make any representation or warranty as to the availability of the Hosted Service or that the Hosted Service will be error-free or uninterrupted, and we make no representation or warranty in relation to the suitability of the Hosted Service or Software for use by you.
4. Confidentiality and data protection
Confidentiality. Except to the extent permitted or required by these Terms, each party must not use or disclose any of the other party’s Confidential Information. We may use your Confidential Information for the purpose of performing our obligations to you under these Terms or as otherwise permitted by these Terms. Each party may also disclose Confidential Information when required to do so by law or any regulatory authority, and to its representatives whose duties reasonably require such disclosure, provided the disclosure is made on a confidential basis to the extent possible. Confidential Information of a party (“Discloser”) means information treated by the Discloser as confidential or which the other party (“Recipient”) knows (or ought to know) is confidential, and which is disclosed by the Discloser to the Recipient, whether before or after the acceptance of these Terms, as well as all notes and other records prepared by the Recipient based on or incorporating that information; but excludes information that; is in or subsequently enters the public domain other than as a result of a breach of confidentiality by the Recipient or any of its permitted disclosees; is lawfully obtained by the Recipient from another person entitled to disclose such information; or is independently developed by the Recipient.
Data. We will treat any material that is uploaded by you in the course of your use of the Software (“Your Data”) as your property. The term “Your Data” includes text, data, photos, video, audio and anything else that you upload or transmit using the Software. You grant us a non-exclusive, worldwide, royalty-free and irrevocable licence and right to collect, use, copy, store, transmit, modify and create derivative works of Your Data for the purpose of providing the Software to you, as required for benchmarking, analysis and the enhancement of the Software and as otherwise permitted by these Terms. We agree to anonymise Your Data, with no traceability back to you, unless you grant us permission to do so in writing. You agree (a) that we may continue to store Your Data for as long as you deem appropriate; and (b) that we may disclose and transmit Your Data within the Stax group of entities (“Stax Group”); and (c) that the Stax Group can also store and transmit Your Data for purposes permitted by these Terms. Any services arising from the use of Your Data will be subject to a separate agreement between the Licensee and Stax.
Use of third parties. We may use third parties to host the Hosted Service and to transmit and store the data (including Your Data) used to provide the Hosted Service. You agree that the Software may incorporate components licensed to the Licensor by third parties, which may be subject to their own End User Licence Agreements (“Third Party Licences”) and that the use of the Hosted Service, in addition to these Terms and the applicable order, will be governed by any terms and conditions specified by any Third Party Licence that applies to the Software or Hosted Service. Although we use protective security measures in relation to the Software, we do not make any representation or warranty that these measures will be effective at all times and you agree that your use of the Software and Hosted Service may involve use of systems, networks and facilities that are not owned, controlled, managed or operated by us, and that we are not responsible if any of Your Data is lost, corrupted, intercepted, stored or accessed across these systems, networks and facilities.
5. Intellectual property rights
Exclusive property of Stax. You agree that any and all Intellectual Property Rights and other proprietary rights that subsist in or arise in connection with the Software, Hosted Service or the Documentation, including Updates and modifications to any of them, anywhere in the world, are our exclusive property. You have no right in or to the Software, Hosted Service or the Documentation apart from the rights expressly granted to you by these Terms, the applicable order and any rights granted by law which cannot be excluded by contract with you. We warrant to you that we have the right to grant the licences referred to in these Terms.
IPR definition. In these Terms, Intellectual Property Rights means all rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights.
6. Term and termination
Term. The term for which you are permitted to use the Software shall be as specified in your order (Initial Term) and will either be (a) limited to a specific period of time (Subscription Licence), which may or may not be capable of renewal; or (b) limited to an evaluation term (Evaluation Licence), which will not be capable of renewal. Any renewal term for a Subscription Licence will be such length of time as is specified in your order (Renewal Term).
Renewal. After the Initial Term for a renewable Subscription Licence, and following the end of each subsequent Renewal Term, unless otherwise specified in an order, the Term of this agreement will be automatically renewed for a further Renewal Term unless we notify you in writing before the start of the next Renewal Term. If you have provided us with direct debit authorisation, the fees for the renewal term will automatically be deducted from your nominated bank account at the commencement of the renewal term. If you do not want the Term to automatically renew for a further Renewal Term, you must notify us in writing at least 30 days before the start of the next Renewal Term.
Termination of Evaluation Licence. If an Evaluation Licence is purchased, the Evaluation Licence terminates automatically without notice from us on the expiration of the Initial Term, unless you elect to purchase a full licence of the Software. If we offer you an opportunity to purchase a full licence of the Software, you may do so at any time by contacting us or via any purchase functionality contained in the Software.
Suspension for breach. We may suspend your access to the Software if we reasonably believe that you have breached these Terms. Any suspension pursuant to this clause will not entitle you to any refund or credit.Termination for material breach. Either party may terminate their obligations pursuant to these Terms at any time immediately, or at such later date as that party chooses, by written notice to the other party if (a) the other party materially breaches these Terms and fails to remedy such breach within 14 days after receipt of notice from the first party specifying the breach and requiring it to be remedied; or if (b) the other party materially breaches these Terms and the breach is incapable of remedy; or if (c) you infringe our Intellectual Property Rights; or if (d) the other party is subject to an Insolvency Event; or if (e) the other party is you and you are in breach of a Third Party Licence. In these Terms, Insolvency Event means in relation to a party, where that party becomes subject to any form of insolvency administration; ceases to carry on business; ceases to be able to pay its debts as they become due; any step is taken by a mortgagee or chargee to take possession or dispose of the whole or part of the that party’s assets, operations or business; any step is taken to enter into any arrangement between that party and its creditors; or where any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person in respect of the whole or part of that party’s assets, operations or business.
Cease use. Upon termination or expiration of the Term for any reason, you must cease all use of the Software and the Documentation and ensure each person that you authorise or enable to operate your user account, or to use the Software ceases all use of the Software and the Documentation. On termination or expiration of the Term, you must, at our election, either destroy or return to us all copies of the Software, Documentation and our Confidential Information then in your possession, custody or control.
Licence and installation fees. An order will set out the fees and other charges payable by you (“Fees”) for use of the Software. The Fees may be fixed for the Initial Term as specified in the order. After the Initial Term, an order may provide for the basis on which the Fees will increase. If the order does not so provide, the Fees may be increased in accordance with Stax’s standard pricing approach and such increases will be notified by Stax to users of the Software.
Initial fees. If specified in an order, fees may be payable upfront prior to commencement. If so, once we have received any initial Fees, we will provide you with the applicable licence keys for the Software by sending these to the primary contact email address nominated on the order. You acknowledge that your right to use any Software or Hosted Service is conditional upon us having received payment of Fees specified in an order.Non-payment of fees. You acknowledge that any failure to pay the Fees by their due date will constitute a material breach of this agreement. We will be entitled to charge interest on any overdue amounts under this agreement, at a rate which is 2% above the penalty interest rate, as specified in the Penalty Interest Rates Act 1983 (VIC).Payment terms. You agree to pay all Fees in accordance with these Terms and any order. If no payment terms are specified in an order, the Fees must be paid within 30 days from the date of receipt of an applicable invoice. Except as expressly provided in these Terms or in any order, and to the extent permitted by law, all Fees and any other amounts paid or payable under these Terms or any order are non-refundable, non-cancellable and not subject to any credits.
Direct debit. If you have authorised us to direct debit your Fees from your nominated bank account, your Fees will automatically be deducted from your nominated bank account on the commencement date specified in your order and in accordance with clause 6 for any Renewal Term unless we have agreed otherwise.
No set off. All amounts payable under these Terms must be paid in full without set-off, deduction or other withholding of any amount. Should you be required by any law or regulation to make any deduction on account of tax or otherwise on any sum payable under these Terms, the sum payable will be increased by the amount of such tax to ensure that we receive a sum equal to amount to be paid under these Terms.Sales tax. If any sales tax, value added tax or goods and services tax (“Sales Tax”) is payable on any supply made under these Terms by us to you, you must pay to us the amount of the Sales Tax, subject to receipt of a valid invoice.
Usage limits. The order may specify certain limits (“Usage Limits”) in relation to your use of the Software (such as the maximum number of users). If these Usage Limits are exceeded at any time, you agree to pay us any additional Fees that are set out in the order.
Performance warranty. We warrant that (i) the Software shall perform materially in accordance with the requirements and specifications agreed in these Terms and any order and (ii) except as otherwise provided in these Terms, the functionality of the Software will not be materially decreased during the Term. For any breach of either such warranty, your exclusive remedy shall be the re-supply of the Software, or a refund of a reasonable amount of Fees to compensate for the decreased functionality, at our option.
Capacity warranty. Each party represents and warrants that it has the legal power to enter into these Terms.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.LIABILITY CAP. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, THE APPLICABLE ORDER AND EXCEPT AS EXPRESSLY PROVIDED HEREIN TO THE EXTENT PERMITTED BY LAW, OUR CUMULATIVE LIABILITY TO YOU IN RESPECT OF ALL CLAIMS MADE BY YOU UNDER OR IN CONNECTION WITH THESE TERMS, WHETHER ARISING OUT OF BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER TORT, MISREPRESENTATION, UNDER STATUTE OR OTHERWISE, WILL NOT EXCEED IN THE AGGREGATE THE FEES PAID BY YOU TO US FOR THE SOFTWARE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.NO CONSEQUENTIAL LOSS LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA, LOSS ARISING FROM INTERRUPTION TO BUSINESS, LOSS OF GOODWILL OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, MISREPRESENTATION OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Definition of Claim. In these Terms, Claim means claim, cause of action, suit, proceedings, judgment, debt, fine, penalty, damage, loss, cost, expense or liability of any kind.
Disputes. All disputes arising out of these Terms must be referred within fourteen (14) days of the dispute to a senior executive appointed by both parties, who must together meet with the view to resolving the dispute. If the dispute is not resolved within seven (7) days of that meeting, the managing directors, CEOs or equivalent of both parties will meet to resolve the dispute, and if the dispute is still not resolved then the matter will be referred to mediation within 7 days of the date of the last meeting. If a matter is referred to mediation, such mediation may occur electronically by video link or otherwise will be held in Melbourne, Australia or such other place as may be agreed by the parties. The parties agree to share equally the costs of the mediator, and both parties may be represented by a duly qualified legal practitioner. Either party may commence court proceedings relating to any dispute arising from the agreement at any time where the party seeks urgent interlocutory relief.
Force majeure. Neither party shall be responsible for failure or delay of performance of an obligation if caused by (i) an act of war, terror, hostility or sabotage, (ii) flood, fire, earthquake or other form of natural disaster, (iii) electrical, Internet, or telecommunication outage or any other problem that is not caused by the obligated party, (iv) government restrictions (including the denial or cancellation of any licence), or any other event outside the reasonable control of the party with that obligation (“Force Majeure Events”). Each party will use reasonable efforts to mitigate the effect of a Force Majeure Event. If such event continues for more than thirty (30) days, either party may terminate the Term upon written notice. This clause does not excuse either party of its obligations to take reasonable steps to mitigate the effects of a Force Majeure Event.
Notices. Any notice or communication given to a party under these Terms is only given if it is given in writing and either (i) delivered or posted to the party at its address and marked for the attention of the relevant department of officer, or (ii) faxed or sent by email to the party at its fax number or email address, or (iii) delivered by Stax through the Software. If a party gives the other party 3 business days’ notice of a change of its address, email address of fax number, any notice or communication is only given by that party if it is delivered, posted, emailed or faxed to the latest address, email address or fax number. Any notice or communication is to be treated as given at the following time: If it is delivered, when it is left at the relevant address; if it is sent by post, 2 (or in the case of a notice or communication posted to another country, 5) business days after it is posted; if it is sent by fax, as soon as the sender receives from the sender’s fax machine a report of an error free transmission to the correct fax number; if it is sent by email, as soon as the sender sends the email without indication of a subsequent sending error or rejection response; and if it is sent through the Software, at the time of posting. However, if any notice or communication is given on a day that is not a business day, or after 5pm on a business day in the place of the party to whom it is sent, it is to be treated as having been given at the beginning of the next business day.
Entire agreement. These Terms (and any documents or web links incorporated by reference) are the entire agreement between us and you regarding the Software and supersede all prior agreements, discussions, and representations regarding the subject matter hereof.
Severability. If any provision of these Terms shall be deemed invalid, illegal, void or for any reason unenforceable, that provision shall be deemed to be severable and shall not affect the validity or enforceability of any other provision.
Independent contractors. The parties are independent contractors and these Terms do not create a relationship of employment, agency, joint venture or partnership between the parties.
No assignment. You may not assign these Terms or any rights under these Terms without our prior written consent.
Amendment must be in writing. An amendment of these Terms by you may only be agreed in writing signed by us.
No waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
Governing law. The laws of the state of Victoria, Australia govern these Terms and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.Survival. The following provisions will survive any termination or expiration of the Term: confidentiality and data protection, intellectual property rights, fees, liability, and general.
Definitions. Terms which are capitalised but which are not defined in these Terms have the meaning given to them in the order.
Miscellaneous. In these Terms, unless the contrary intention appears: (laws) a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re‑enactments or replacements; (person) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; (singular, plural and gender) the singular includes the plural and vice versa, and a gender includes other genders; (headings) headings are for ease of reference only and do not affect interpretation; (executors, administrators, successors) a reference to a party is to either your or us (or both), and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes; (grammar) another grammatical form of a defined word or expression has a corresponding meaning; (meaning not limited) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; (time) a reference to time is a reference to time in Melbourne, Australia; (day) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later; (currency) unless stated otherwise, a reference to dollar or $ is to Australian currency; and (preparation of document) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms or any part of it.