These cloud service terms of use (“terms” or “agreement”) are a legal contract between customer and Deltonic Pty Ltd, t/a UniGuard. ABN: 69 108 465 550 (“UniGuard”) to access and use the cloud services including any software or hardware that UniGuard provides. These terms explain how customer is permitted to use the website located at the url: https://uniguardx.com/login ("the “site”) to access and use the cloud services including any software that uniguard provides to customer that allows customer to access the site from a mobile device (a “mobile application”). please refer to clause 19 for definitions of certain terms.
1. Cloud services
1.1. During the Term, UniGuard will in accordance with these Terms:
a) provide the Customer with access to and use of the Cloud Services through the Site using the UGX Platform and the Application Software;
b) host the UGX Platform and the Content for the Customer in accordance with clause 5;
c) provide updates and new releases to the Cloud Services in accordance with clause 4; and
d) provide the Customer such other services as agreed between UniGuard and the Customer from time to time.
1.2. Each Order for Cloud Services will be subject to these Terms and will set out the number type of User entitlements acquired on a subscription basis by the Customer.
1.3. In providing the Cloud Services to the Customer, UniGuard will:
a) act efficiently, honestly and fairly;
b) comply with applicable laws;
c) not modify, adapt, translate or copy all or any part of the Content other than for the purpose of providing the Cloud Services to the Customer; and
d) ensure that any UniGuard personnel involved in the provision of the Cloud Services are appropriately trained and qualified and comply with UniGuard’s policies and procedures.
2. Acceptable use
Customer may access a Cloud Services only to the extent of authorisations and User entitlements acquired by Customer and in accordance with the UniGuard Acceptable Use Policy set out at https://uniguard.com.au/privacy-policy/acceptable-use-policy/. Customer is solely responsible for the Content of any postings, data, or transmissions using the Cloud Services, or by any person or entity Customer permits to access the Cloud Services. A Cloud Services may not be used in any jurisdiction for unlawful, obscene, offensive or fraudulent Content or activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive, or deceptive messages, viruses or harmful code, or violating third party rights. If UniGuard has reasonable grounds to believe that Customer is utilising the Cloud Services for any such illegal or disruptive purpose UniGuard may suspend the Cloud Services immediately with or without notice to Customer. UniGuard may terminate the Agreement as contemplated in clause 16.2 if Customer in fact fails to adhere to the foregoing acceptable use standards.
3. Customer obligations
3.1. The Customer may only access and use the Cloud Services for Acceptable Use purposes and in compliance with the UniGuard Acceptable Use Policy at https://uniguard.com.au/acceptable-use-policy and these Terms.
3.2. The Customer is responsible for ensuring Users comply with these terms and conditions and for maintaining the confidentiality of the passwords associated with any account the Customer or its Users may use to access the Cloud Services.
3.3. Without limitation, the Customer must not:
a) assign or resell direct access to the Cloud Services to a third party outside Customer’s enterprise;
b) use or access the Cloud Services to provide services to third parties or combine Cloud Services with Customer’s value add to create a commercially available Customer branded solution that Customer markets to its customers without prior written consent from UniGuard;
c) reverse-engineer, decompile, disassemble or modify the Cloud Services or any part thereof;
d) circumvent any technology used by UniGuard, its licensors or any third party to protect the Cloud Services;
e) remove or alter any copyright, trademark or other intellectual property notices contained on or provided through the Cloud Services; or
f) create any derivative works based on the Cloud Services or any part thereof without prior written consent from UniGuard.
3.4. In addition to other duties of Customer set forth in these Terms, Customer is responsible for the following: (a) maintaining the security of its networks, servers, applications and access codes, including, without limitation, the backup and other protection of its system and data, against loss, damage or destruction by third parties; (b) providing information reasonably requested by UniGuard, including, without limitation, any technical and related information, that UniGuard or Third Party Cloud Provider may need from Customer necessary for UniGuard to enable the Cloud Services and shall otherwise undertake the responsibilities applicable to Customer set forth in these Terms; (c) work with UniGuard to resolve performance issues as necessary. UniGuard may assume, without inquiry or liability, that any person in possession of Customer’s account information or access codes has the authority to access Customer’s account or the Cloud Services, or modify Customer’s account. Customer must immediately notify UniGuard in writing of any unauthorised use of such information or codes.
3.5. Consent and Authorisations. Customer shall be solely responsible for obtaining all consents and authorisations from Users as may be required by any applicable law, for the collection, storage and processing of information (including Tracking Data) by UniGuard through the Users use of the Cloud Services according to Customer’s instructions, including any consent required from Users to be tracked and recorded through the Cloud Services.
3.6. Customer will not access or use the Cloud Service other than as set forth in these Terms, and any use other than in accordance with these Terms is unauthorised and is responsible for complying with any applicable laws, rules, and regulations with respect to such access and use.
4. Updates and releases
Included as part of the Subscription Charges, UniGuard will deploy any updates and new releases for the Software Applications and the Cloud Services at no additional cost to the Customer as soon as reasonably practicable after the update or new release is available in accordance with UniGuard’s normal change management process.
5. Hosting
UniGuard will host the UGX Platform and the Content on the Infrastructure controlled by a Third Party Cloud Provider nominated by UniGuard during the Term in accordance with the Third Party Cloud Provider Terms. Customer acknowledges that Third Party Cloud Provider may, at any time, amend Cloud Service descriptions or otherwise update them and any documentation relating thereto, including, without limitation, any specifications for the Cloud Services for any reason including, without limitation, legal, safety, business, or technical considerations.
6. Changes
UniGuard may make changes to the content and Cloud Services offered on the Site at any time. UniGuard can change, update, or add or remove provisions of these Terms, at any time by having Customer agree to a new version of these Terms or by posting the updated Terms on this Site and by providing Customer notice. By assenting to the updated Terms or using the Site after UniGuard has updated the Terms, Customer is agreeing to all the updated Terms; if Customer does not agree with any of the updated Terms, Customer must stop using the Site and receiving Cloud Services.
If Customer breach any of these Terms, the above license will terminate automatically and Customer must immediately cease using and delete or destroy any downloaded, electronic or printed materials.
7. Privacy and data protection security
7.1. Collection and Storage by UniGuard. UniGuard may collect, store and process additional personal information in the course of the use of special features of the Cloud Service by Customer, as detailed in the Privacy Policy including the processing and storage of: (i) data and/or metadata of Users which may be considered as personal identifiable information by some jurisdictions (such as IP addresses in logs of Users, and general User geolocation information necessary for the provision of the Cloud Services); (ii) e-mail addresses of Users using the Cloud Service, or contacting UniGuard in connection with the provision of support;. In such event, such personal information would be collected, stored and processed only for Customer’s benefit or as required to receive the features and functions of the Cloud Service, and according to Customer’s documented instructions and under UniGuard’s privacy policy available at https://www.uniguard.com.au/privacy-policy (“Privacy Policy”) which is hereby incorporated by reference to this Agreement.
7.2. Correction of Information: The Privacy Policy contains details of how Users may access, review, correct, or delete their personal data in compliance with all applicable laws, policies, and regulations relating to the collection of information from Users.
7.3. Changes in the Privacy Policy: UniGuard shall notify Customer (via the Cloud Service or through its website of material changes in the Privacy Policy, within the timeframe set in the Privacy Policy and as further detailed therein (“Privacy Notice”). In the event the changes in the Privacy Policy adversely or unlawfully changes the material rights of the Users, Customer will have the right to terminate this Agreement by providing a written notice within thirty (30) days following delivery of the Privacy Notice.
7.4. Security: Customer’s and User information is stored with logical separation from information of other customers. In addition, UniGuard shall have in place and shall comply with documented written policies and procedures, periodically reviewed, covering the administrative, physical and technical safeguards in place and relevant to the access, use, loss, alteration, disclosure, storage, destruction and control of information. Such policies and procedures will include, virus detection and firewall utilisation.
7.5. Passwords: UniGuard provides Customer with the ability to register for an account either directly to UniGuard or on the Site using Customer’s account and log-in credentials. Customer is responsible for maintaining the confidentiality of Customer’s UniGuard password and any other passwords required to access the Cloud Service (collectively, “Passwords), and Customer is responsible for all activities that occur using Customer’s Passwords. Customer agrees not to share Customer’s Passwords, let others access or use Customer’s Passwords or do anything else that might jeopardise the security of Customers Passwords. Customer agrees to notify UniGuard if any of Customer’s Passwords on this Site is lost, stolen, if Customer is aware of any unauthorised use of Customer’s Passwords on this Site or if Customer know of any other breach of security in relation to this Site.
7.6. Tracking Data and Information.
Customer own the Tracking Data. UniGuard may retain and use the Tracking Data to provide the Cloud Services. UniGuard will share Tracking Data with third parties via the approved API where UniGuard (i) have received Customer and User approval or consent; (ii) conclude that it is required by law or has a good faith belief that access, preservation or disclosure of Tracking Data is reasonably necessary to protect UniGuard’s rights, property or safety or that of UniGuard’s users or the public; (iii) provide Tracking Data in certain limited circumstances to third parties to carry out tasks on UniGuard’s behalf where required (e.g., billing or data storage) with restrictions that prevent the Tracking Data from being used or shared except as directed by UniGuard. When Customer deletes Customer’s account or on Customer’s termination of the Cloud Service, UniGuard will purge the Tracking Data on the next data deletion/clean-up cycle.
Customer agrees to make all necessary and appropriate disclosures to its authorised User’s about the collection and use of their tracking information through the Cloud Services.
8. Subscription changes and payment
8.1. Subscription Charges: Customer shall pay UniGuard the Subscription Charges identified in the Order. In addition, UniGuard reserves the right to make adjustments to pricing for reasons including, but not limited to, changing market conditions, discontinuation and unavailability.
8.2. Invoicing/Payment Terms. Subscription Charges for the Cloud Services will commence from the date the Cloud Services are made available by UniGuard to Customer and are non-refundable once consumed, unless otherwise mutually agreed in writing. Subscription Charges include: (a) recurring charges for the applicable billing period of the 1st of every month; and (b) non-recurring set up and other one-off charges, if any, for the applicable billing period. UniGuard will invoice Customer the Subscription Charges in accordance with the frequency indicated in the Order or otherwise in advance. Customer must pay all invoices in full within thirty (30) days of the invoice date. All amounts not paid when due are subject to a late fee on the outstanding balance for each month that it remains unpaid equal to the lesser of 1.5% per month and the highest rate allowable by applicable law. If any amount owing by Customer under this Agreement or any Order for Cloud Services is not paid when due, UniGuard may, without limiting UniGuard’s other rights and remedies, UniGuard reserves the right to suspend the provision of the Cloud Services to Customer until such amounts are paid in full. Customer is responsible for UniGuard's costs of collection for any payment default, including, but not limited to, court costs, filing fees and attorneys' fees.
8.3. UniGuard reserves the right to change prices for Subscriptions at any time and does not provide price protection or refunds in the event of price decreases, except that, if Customer has an Order for Cloud Services in place with prices fixed for a specific initial term, then UniGuard may increase prices only after the initial term set out in that Order and any price increase would be effective upon no less than 30 days’ prior written notice.
8.4. If new Cloud Services or features are procured, Customer will need to execute a new Order for any such new or additional Cloud Services.
8.5. Taxes: Subscription Charges or prices expressed in the Order exclude taxes of any kind. Federal, state and local sales use and excise taxes and all similar taxes and duties, (excluding taxes based on UniGuard's income, assets or net worth), are solely Customer’s responsibility.
9. Mobile applications
9.1. UniGuard makes available Mobile Applications to access and use the Cloud Services through the Site via a mobile device. To use the Mobile Application, Customer must have a mobile device that is compatible with the Mobile Application a list of compatible mobile devices is available from UniGuard. UniGuard hereby grants to Customer a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for each registered User account on one mobile device owned or leased solely by Customer, for Customer or User’s use. Customer may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any Content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. Customer acknowledge that UniGuard may from time to time issue upgraded versions of the Mobile Application and may automatically electronically upgrade the version of the Mobile Application that Customer or Users are using on their applicable mobile device. Customer consents to such automatic upgrading on Customer or User’s mobile device and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and UniGuard and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to the use of the Mobile Application. The Subscription Charge does not include the provision of a compatible mobile device which needs to be separately acquired by the Customer either through a third party or from UniGuard as the Customer may decide in its sole discretion.
9.2. The following additional terms and conditions apply with respect to any Mobile Application accessed through or downloaded from a Third Party App Store:
a. Customer acknowledge and agree that (i) the Terms are concluded between Customer and UniGuard only, and not the Third Party App Store, and (ii) UniGuard, not the Third Party App Store, is solely responsible for the App Store Sourced Application and Content thereof. Customer’s use of the Mobile Application must comply with the Third Party App Store terms and conditions.
b. Customer acknowledge that the Third Party App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Application.
c. Customer and UniGuard acknowledge that, as between UniGuard and the Third Party App Store, the Third Party App Store is not responsible for addressing any claims Customer have or any claims of any third party relating to the Mobile Application or Customer’s possession and use of the Mobile Application, including, but not limited to:
(i) product liability claims; (ii) any claim that the Mobile Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
d. Customer and UniGuard acknowledge that, in the event of any third-party claim that the Mobile Application or Customer’s possession and use of that Mobile Application infringes that third party’s intellectual property rights, as between UniGuard and the Third Party App Store, UniGuard, not the Third Party App Store, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
e. Customer and UniGuard acknowledge and agree that the Third Party App Store, and their subsidiaries, are third-party beneficiaries of the Terms as related to Customer’s license of the Mobile Application, and that, upon Customer’s acceptance of these Terms, the Third Party App Store will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to Customer’s license of the Mobile Application against Customer as a third-party beneficiary thereof.
f. Without limiting any other terms of the Terms, Customer must comply with all applicable third-party terms of agreement when using the Mobile Application.
10. Third party applications
The Customer acknowledges that UniGuard may use certain third party software and applications to provide the Cloud Services to the Customer and UniGuard is not responsible for any failure to provide the Cloud Services which is caused or contributed to by any failure of the third party software applications. If required by UniGuard, the Customer must comply with such terms and conditions notified by UniGuard from time to time as govern the use of such third party software applications, in addition to these Terms.
11. Warranties
11.1. UniGuard warrants that it provides Cloud Services using commercially reasonable care and skill and during the Term of each applicable Order, the Cloud Service will substantially conform to the specifications as set out in the UniGuard documentation. The warranty for a Cloud Service ends when the Cloud Service ends. The warranty for a hardware device ends 12 months from activation date and covers all repairs but not replacements which is at the expense of the customer.
11.2. UniGuard does not warrant uninterrupted or error-free operation of a Cloud Service or that UniGuard will correct all defects or prevent third party disruptions or unauthorised third party access. These warranties are the exclusive warranties from UniGuard and replace all other warranties, including the implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose. UniGuard warranties will not apply if there has been misuse, modification, damage not caused by UniGuard, or failure to comply with instructions provided by UniGuard.
11.3. These warranties are in addition to any rights under, and only limited to the extent permitted by, the Competition and Consumer Act 2010.
12. Confidentiality
12.1. A party (the “Discloser”) may disclose to the other party (the “Recipient”) in the course of providing, receiving or using the Cloud Services certain information that is specifically marked as “confidential” or with any similar designation or, if disclosed orally, is within five business days reduced to a writing that is marked “confidential” (“Confidential Information”). Additionally, the Tracking Data is Customer’s Confidential Information, even though it is not marked as confidential. The Recipient shall not disclose or cause to be disclosed any of Discloser’s Confidential Information to any third party, except to those employees, agents, representatives, consultants, service providers and contractors of the parties who require access to the Confidential Information for purposes relating to these Terms (“Authorised Personnel”) and who are obligated or bound not to disclose third party confidential or proprietary information disclosed to Recipient. Furthermore, the Recipient agrees to be responsible for any act or omission of any Authorised Personnel in breach of this clause 12. The Recipient shall protect the Confidential Information of Discloser by using the same degree of care, but no less than a reasonable degree of care, that the Recipient uses to protect its own confidential information of a like nature.
12.2. Confidential Information does not include information that: (i) is or becomes publicly available through no act or omission of the Recipient; (ii) was in the Recipient’s possession without restriction on disclosure prior to the disclosure by the Discloser; (iii) is disclosed to the Recipient by a third party without restriction on disclosure; (iv) is independently developed by the Recipient without access to or use of the Discloser’s Confidential Information; or (v) is approved for release. The Recipient’s disclosure of the Discloser’s Confidential Information in order to comply with a law, court order, subpoena, or other government requirement or demand shall not be a breach of this clause 12. In such cases, the Recipient shall provide prompt written notice of such required disclosure to the Discloser in order to afford the Discloser an opportunity to seek a protective order or other legal remedy to prevent such disclosure.
13. Property rights
13.1. UniGuard’s Rights. UniGuard owns and shall retain all right, title, and interest, including Intellectual Property Rights, in and to the Cloud Service and the solutions provided thereby, and all the underlying Software Applications, all as may be updated, improved, modified or enhanced from time to time; and further – in and to the brand names, logos and trademarks related to the foregoing.
13.2. Customer’s Ownership. Customer owns and shall retain all right title and interest in and to the Content which is (i) provided by Customer to UniGuard for the purpose of the provision of the Cloud Service; (ii) created by Customer using the Cloud Services;
13.3. Customer hereby grants to UniGuard a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to use the Content and its affiliates solely for the purpose of providing the Cloud Service to Customer pursuant to this Agreement and the applicable Order.
14. Intellectual property infringement
14.1. Indemnification obligation. UniGuard will defend Customer from and against any claim by a third party against Customer to the extent the claim is based on an allegation that the Application Software provided by it, infringes upon, or misappropriates, any Intellectual Property Rights of a third party (“Infringement Claim”), and shall indemnify Customer against all liabilities, damages, costs (including settlement costs and reasonable attorneys’ fees) awarded by a competent court, arbitrator/s, or in a settlement, as a result of such claim by a third party; provided that (i) Customer has notified UniGuard promptly in writing of such claim; (ii) Customer has provided UniGuard with the authority to control and handle the claim including the defence and settlement of such claim; and (iii) Customer provides to UniGuard all information and assistance (at UniGuard’s expense) as may be required for that purpose.
14.2. Exclusions. In no event will UniGuard have any obligation or liability under this clause 14 arising from: (i) use of any Application Software in a modified form or in combination with materials not furnished by UniGuard; and (iii) any failure by Customer to comply with Customer’s responsibilities under this Agreement.
14.3. Remedial Actions. In the event that the Application Software or any part thereof is likely to, in UniGuard’s sole opinion, or does become the subject of an Infringement Claim, UniGuard may, at its option and expense: (i) procure for Customer the right to continue using the Application Software (including the allegedly infringing portion/item); (ii) substitute a functionally equivalent non-infringing replacement for such allegedly infringing portion of the Application Software or otherwise modify it to make it non-infringing and functionally equivalent; or (iii) terminate the Agreement and any outstanding Order and refund to Customer fees paid to UniGuard for the infringing items in an amount prorated to reflect the period of time between the date Customer was unable to use the Application Software due to such Infringement Claim and the remaining days in the current Subscription Period.
15. Indemnity and limitation of liability
15.1. Indemnification. Customer shall defend and indemnify UniGuard for, from, and against any losses, damages, penalties, costs, and expenses, including, without limitation, reasonable attorney fees incurred by UniGuard in connection with any claims or actions by Service Provider or other third parties arising out of or resulting from (i) any Customer provided data, information or Content passing through the Third Party Cloud Provider’s network, (ii) unauthorised or misuse of Cloud Services by Customer, its employees or agents (excluding any claims that the Cloud Services, as provided by UniGuard, infringe third-party intellectual property rights), or (iii) Customer’s failure to comply with applicable law or these Terms.
15.2. To the maximum extent permitted by law and subject always to clause 15.2(b) and 15.2(c):
(a) Direct Damages Limitation. UniGuard’s maximum liability to Customer for damages arising in any way out of an Order is limited to proven direct damages and shall not exceed the total amount paid by Customer to UniGuard for the Cloud Services under that Order during the preceding twelve-month period immediately preceding the event giving rise to such liability.
(b) Indirect/Special Damages. Except for fraud, neither party will be liable for any indirect, special, incidental or consequential damages, nor damages for loss of business profits, business interruption, loss of business information and the like, arising in any way out of the Order, or the use of or inability to use any Cloud Services, even if advised of the possibility of such damages.
(c) Limitations - Applicability. Both parties understand and agree that the limitations of liabilities for each party set forth in these Terms are reasonable and they would not have entered into an Order without such limitations. Further, each party agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the order must be filed within 2 year after such claim or cause of action arose.
15.3. Notwithstanding the foregoing, these Terms must be read and construed subject to any statutory provisions, which cannot lawfully be excluded, restricted or modified. If any such statutory provisions apply then, to the extent to which UniGuard is entitled to do so and at UniGuard's option, UniGuard limits its liability pursuant to such provisions to the re-performance or refund of the cost of Cloud Services under the applicable Order.
16. Term and termination
16.1. The Term of a Cloud Service begins on the date UniGuard notifies Customer that Customer can access the Cloud Service. UniGuard will specify whether the Cloud Service renews automatically, proceeds on a continuous use basis, or terminates at the end of the term as set out in an Order. For automatic renewal, unless Customer provides written notice to UniGuard not to renew at least 30 days prior to the Term expiration date, the Cloud Service will automatically renew for the specified Term.
16.2. For Cause.
UniGuard. UniGuard may terminate an Order for Cloud Services, in whole or in part, with immediate effect, if Customer materially breaches these Terms and fails to remedy that breach within 30 days of receipt of UniGuard’s written notice of such breach. A material breach includes but is not limited to: (i) Customer’s failure to pay Fees when due, (ii) rejection, for any reason, of any charges for Subscription Charges using a credit card provided by Customer, or (iii) Customer’s breach of clause 2, 3, 6, 12 or 13. In addition, If UniGuard terminates any part or all of the Cloud Services in connection with any Use Issues, Customer shall be deemed to have been in material breach of the Order. Notwithstanding anything to the contrary in this paragraph, if Third Party Cloud Provider terminates the infrastructure hosting component of the Cloud Services in connection with any Use Issues, UniGuard may terminate the Order for Cloud Services in whole or in part, upon written notice with immediate effect unless indicated otherwise in such notice.
Customer. Customer may terminate the Order if UniGuard materially breaches these Terms and fails to remedy that breach within 30 days after receipt of Customer’s written notice of such breach. UniGuard shall not deemed in default if a Third Party Cloud Provider withholds provision of Cloud Services or suspends or terminates Customer’s access to, or use of, Cloud Services, or any part thereof, as allowed under this clause 16.2. Any such action by Third Party Cloud Provider does not give Customer the right to terminate the Order.
16.3. For Convenience. Once Cloud Services are provisioned (made available for use by Customer), an Order may not be terminated or suspended by Customer for convenience. An Order will automatically terminate with immediate effect, without any liability for such termination, upon written notice to Customer if Third Party Cloud Provider terminates its agreement with UniGuard to provide the infrastructure hosting component of the Cloud Services.
17. Marketing
UniGuard may include and use Customer’s name on a list of customers and may refer to Customer as a user of the Cloud Services in its advertising, marketing, promotional and investor materials.
18. General
18.1. These Terms and each applicable Order are the entire agreement between Customer and UniGuard and supersede all prior or contemporaneous negotiations, discussions or agreements between Customer and UniGuard with respect to the subject matter hereof. Without limitation, these Terms may not be amended, superseded, modified or extended by any purchase order, terms of purchase or other similar document of Customer, even if accepted by UniGuard. The proprietary rights, disclaimer of warranties, representations made by Customer, indemnities, limitations of liability and general provisions shall survive any termination of these Terms. If any part of these Terms is, for any reason, found to be invalid, illegal, or unenforceable, all other parts of the Order will remain in effect. UniGuard may, at its sole option, revise the Terms from time to time and post the revised terms on its website. Neither party may assign its duties or rights under the Order, whether by operation of law or otherwise, except with the other party's prior written consent; provided that UniGuard will have the right to assign the Order to a corporate successor. A delay or failure to exercise or partially exercise any right under these Terms does not operate as a waiver, nor will it preclude future exercise of that right or permit or sanction any subsequent breach of any term or condition.
18.2. Force Majeure. Except for the obligation to make timely payments, neither party will be liable for any failure or delay in the performance of the obligations under these Terms due to circumstances beyond its reasonable control, including but not limited to acts of nature, acts of government in either its sovereign or contractual capacity, national emergencies, acts of terrorism, transportation delays, labour disturbances, work stoppages or loss of electrical power; loss of telecommunications or similar infrastructure.
18.3. Governing Law. Both parties specifically agree to submit to the exclusive jurisdiction of, and venue in, the courts of New South Wales, Australia in any dispute arising out of or relating to the Agreement without giving effect to any conflict of law rules.
18.4. Contact Us. If Customer has any questions about these Terms or otherwise need to contact UniGuard for any reason, Customer can do so at: Attn: The Managing Director, Deltronic Pty. Ltd Trading As UniGuard, 6/70 Holbeche Rd, Arndell Park NSW 2148
19. Definitions
“Acceptable Use” means a set of rules to be followed by Users or Customers for access to the Site and use of the Cloud Services. An Acceptable Use Policy clearly states what the User is and is not allowed to do with these resources.
“Application” means any suite, configuration file, add-on, technical add-on, example module, command, function or application that extends the features or functionality of the applicable Cloud Service or the underlying Software Application.
“Content” means any information or data provided by Users in connection with their use of the Cloud Services, including any text, data, images, photographs, video, audio, graphics, message files and similar types of content.
“Cloud Service(s)” means any of the hosted services using the UGX Platform and Software Applications provided and maintained by UniGuard for online tracking, monitoring, analysing and reporting of machine-generated data. Cloud Services do not include Content, even if made available in connection with any Cloud Service.
“Customer” means a company or organisation that acquires the Cloud Services for its Users under an Order. Customer also includes its authorised Users.
“Effective Date” means the date the Cloud Service commences as listed on the Order.
“Intellectual Property Rights” means any and all intellectual property rights, whether registered or not, worldwide including, without limitation, all the following: (i) copyrights, including moral rights, registrations and applications for registration thereof; (ii) computer software programs, data and documentation; (iii) patents, patent applications and all related continuations, divisional, reissue, design patents, applications and registrations thereof, certificates of inventions; and (iv) trademarks, trademark applications, domain names, trade secrets and confidential information.
“Mobile Application” means a Software Application that runs on a compatible mobile device as described in clause 9.
“Order” means UniGuard’s quote or ordering document (including online order form) accepted by Customer via Customer’s purchase order or other ordering document submitted to UniGuard to order the Cloud Services.
“Site” means the UniGuard website located as url https://uniguardx.com/login through which the Customer and Users shall access and use the Cloud Services.
“Software Applications” means a specific and unique instance of the UniGuard software product that is made available to Customer as part of the UGX Platform that are interoperable with the Cloud Services, and includes any new releases or maintenance and support updates to such software as UniGuard makes available during the Subscription Period. Software Applications include the Mobile Application and other Applications but does not include Content.
“Subscription Charge” means the charges to be paid for the Cloud Services on a subscription basis as set out in an Order.
“Subscription Period” or “Term” means the duration of Customer’s subscription to the applicable Cloud Service(s) under the Agreement that begins on the Effective Date and ends on the date listed on the applicable Order.
“Third Party App Store” means a type of digital distribution platform made available by a third party through which Users may acquire for the Mobile Applications. Examples include Apple App Store and Google Play.
“Third Party Cloud Provider” means the third party cloud based infrastructure provider which hosts the UGX Platform and the Software Applications.
“Tracking Data” means the collection of location data regarding a particular User's activity across multiple locations using commercially available geolocation software and the retention, use, or sharing of location data derived from that activity as part of the Cloud Services.
“UGX Platform” means the UniGuard on-line platform known as UniGuard X and all Software Applications made available through https://uniguardx.com/login and are interoperable with the Cloud Service. The UGX Platform includes Software Applications but does not include Content.
“Use Issues” means Customer’s misuse of Cloud Services in violation of the Order, the Terms, the Acceptable Use Policy or due to any other act or omission of Customer in their use of the Cloud Services.
"User" means “Customer” and an individual whom Customer authorises to use the Cloud Services and whom Customer (or UniGuard, at Customer request) have supplied a user identification and password. Users may, for example, include Customer employees, consultants, contractors and agents.