1.2. Authentication Credentials: The public and private information used to uniquely identify users of our Service for any interaction.
1.3. AAF: means the Australian Access Federation (http://aaf.edu.au), which has a policy framework and infrastructure to facilitate trusted electronic communications and collaboration within and between higher education and research institutions both locally and internationally as well as with other organisations.
1.4. Claim means any present or future, actual or contingent, right remedy, entitlement, demand, proof of debt, action, suit or proceeding for damages, loss, debt, costs (including legal costs and expenses), restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy, whether by original claim, cross claim or otherwise, whether arising at common law, in equity, under statute, or otherwise arising out of or in connection with the facts or matters referred to or alleged in or concerning this Agreement.
1.5. Client Material means any Material provided by you to us.
1.6. Confidential Information means all know how, financial information and other commercially valuable information, in whatever form. This includes information that is by its nature confidential, information that a party claims is confidential at the time it is disclosed, information that the recipient knows or ought to know is confidential and Personal Information.
1.7. Consumer Plan: means a Time Plan whereby you are in a direct contractual relationship with us and you:
1.7.1. agree to be identified as the responsible party as represented by your AAF credentials, NCI or other Authentication Credentials as supplied by us;
1.7.2. acknowledge that any sharing arrangement undertaken by you in relation to any data placed by you on the Service or accessible by you is subject to AAF Policies and agreements or NCI policies and agreements as per clause 7;
1.7.3. agree to vouchsafe for the identities of any collaborators introduced to the Service at your invitation;
1.7.4. notify us of any breach, incursion, infection or other compromise of your in-house systems in a timely manner; and
1.7.5. irrevocably release us and agree to keep us released from all Claims arising as a result of the Service being non-operational or compromised due to any failure on your part, or any authorised collaborators or other parties to whom you have given access, to meet the above mentioned obligations.
1.8. Fee means the amount stated in the Quotation which you must pay in order to use the Service.
1.9. Force Majeure Event means any event which is outside the reasonable control of the affected party and could not have been prevented by that party taking all reasonable steps.
1.10. Material means all User-submitted content, including text, code, photos, video, music, audio, graphics and any other form of data. Some products may offer additional services where physical materials are provided. These are all included under the term “Material”.
1.11. Metadata means the data providing information about one or more aspects of the data collected, such as:
1.11.1. the means of creation of the data;
1.11.2. the purpose of the data;
1.11.3. the time and date of creation of the data;
1.11.4. the creator or author of the data;
1.11.5. the location of the data; and
1.11.6. the standard used.
1.12. NCI refers to the National Computational Infrastructure (nci.org.au).
1.13. OEM Plan: means a TimePlan entered into by organisations that repurposes Time for particular applications or consumers that are independent of us. As an OEM you agree to:
1.13.1. irrevocably indemnify us and and keep us indemnified in respect of any and all liability (including legal costs) that may arise from any action or proceedings instituted by OEM consumers;
1.13.2. irrevocably acknowledge that we have no responsibility or capability to authenticate or identify your end consumers;
1.13.3. accept a single bill regardless of the OEM consumer base;
1.13.4. notify us of any breach, incursion, infection or other compromise of your in-house systems in a timely manner; and
1.13.5. irrevocably release us and agree to keep us released from all Claims arising as a result of the Service being non-operational or compromised due to any failure by you to meet the above mentioned obligations.
1.14. Personal Information means information or an opinion about an identified individual, or corporate client, or about an individual, or corporate client, who is reasonably identifiable from the information.
1.15. Plan or Time Plan: means either a Consumer Plan, Wholesale Plan or OEM Plan.
1.16. Policies and Publications means each and all of the documents referred to in clause 17.
1.17. Registration Data means the personal information required to register as a User, including Authentication Credentials.
1.18. Service means the Time.intersect.org.au cloud services, client software products, network protocols, APIs and world wide web services initially as described in the Description section of the Quotation and any attachment thereto.
1.19. User means any individual consumer that accesses, creates, reads, writes, updates and/or deletes data and otherwise uses the Service.
1.20. Wholesale Plan means a Time Plan entered into whereby you represent an aggregation of many end consumers that you take responsibility for authenticating and for their accessing the Material you store on the Service. As a Wholesaler, you agree to:
1.20.1. vouchsafe the identities of all consumers introduced by you as users of Time;
1.20.2. maintain the integrity and availability of your in-house authentication system to allow the identity of your consumers to be verified;
1.20.3. irrevocably indemnify and agree to keep indemnified us from the actions of your consumers;
1.20.5. notify us of any breach, incursion, infection or other compromise of your in-house systems as soon as you become aware of it; and
1.20.6. irrevocably release us and agree to keep us released from all Claims arising as a result of the Service being non-operational or compromised due to any failure on your part, or any authorised collaborators or other parties to whom you have given access, to meet these obligations.
2. Acknowledgment And Acceptance Of Terms
2.1. These Terms and Conditions of Use (“Terms”) govern your use of our Time.intersect.org.au cloud services, client software products, network protocols, APIs and world wide web services (“Service”) and form a binding contractual agreement between you, the user of the Service, and Intersect Australia Limited [ACN 131 752 657]. These Terms are important and you should ensure that you read them carefully and contact us with any questions before you use the Service.
2.2. By using the Service, you irrevocably acknowledge and agree that you have had sufficient opportunity to read and understand the Quotation, these Terms, the Rates pricing schedules, the relevant Time Plan, our Policies and Procedures and any schedules, annexures and attachments thereto, and you agree to be irrevocably bound by them. If you do not agree to be so bound, you must not use the Service.
2.3. We reserve the right to modify these Terms, the Rates pricing schedules, the Time Plans, the Polices and Procedures and all schedules, annexures or attachments thereto, at any time without prior notice and at our sole discretion. You agree that any and all use of the Service, will be subject to these Terms current at the time you access the Service, including all modifications thereof. If you do not agree to any modified term, you may advise us and provide notice of termination within 90 days of that modification in writing or by e-mailing firstname.lastname@example.org
3. Licence To Use Service
3.1. Subject to your Acceptance of the Quotation and the payment of the Fees for your Time Plan as referred to in your Quotation, we grant you a non-exclusive, worldwide, non-transferable licence to use the Service for the purposes applicable to your nominated Plan, in accordance with these Terms, but not for any destructive uses.
3.2. There are three (3) categories of Time Plans: (i) Consumer, (ii) Wholesale, and (iii) OEM with differing applicability, pricing, authentication requirements and obligations.
3.3. You may access and use the Service in a conventional manner to the extent of the protocols, APIs and software clients we offer.
3.4. You agree that you must not use, access or deal with any content relating to the Service:
3.4.1. unless you have agreed to a Time Plan;
3.4.2. unless you hold all necessary rights, licences and consents to do so;
3.4.3. that would cause you or us to breach any law, regulation, rule, code or other legal obligation;
3.4.4. that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy;
3.4.5. that would, in our sole opinion (reasonably formed), bring us, or the Service, into disrepute; or
3.4.6. that, in our sole opinion (reasonably formed), infringes the intellectual property rights or other rights of any person.
3.5 The Service may contain world wide web hyperlinks to other data, sites or content added by people other than us. We do not endorse, sponsor or approve any such User generated content or any data available at any linked location. If you opt-in for third party services, we are not responsible for what you share with other parties and you irrevocably release us and agree to keep us released from all Claims arising as a result of you accessing any world wide web hyperlinks to other data, sites or content added by people other than us.
3.6 You acknowledge and agree that we are not responsible for what others do with the data that you share with them or make available to them. You release us from and agree to keep us released, and indemnify us, and agree to keep us indemnified, against any Claim that may arise as a result of your sharing or making available the data with or to others.
3.7 You acknowledge and agree that we retain complete editorial control as to the content of the Service and may alter, amend or cease the operation of the Service at any time in our sole discretion (reasonably formed). You release us from, and agree to keep us released, and indemnify us, and agree to keep us indemnified, against any Claim that may arise as a result of us altering, amending or ceasing the operation of the Service.
4.2. You agree to:
4.2.1. provide accurate, current and complete information about yourself as requested for Registration Data during any registration process;
4.2.2. maintain the security of your Authentication Credentials including any password or other confidential credential;
4.2.3. notify us immediately if you suspect unauthorised use of your Authentication Credentials;
4.2.4. ensure Registration Data is maintained and promptly updated to ensure it is complete, accurate and current;
4.2.5. be fully responsible for all use of the Service, by yourself, any collaborator or other third party;
4.2.6. pay any invoices received from us which are correct and issued with respect to the Service being provided by us;
4.2.7. provide us with Client Materials and reasonable assistance to enable us to perform our obligations with respect to the delivery of the Service;
4.2.8. take responsibility for and pay for any costs incurred by us for unanticipated expenses such as third party code licences, excess network charges, stock images and domain name registration, that are required to complete the Service.
4.4. You represent and warrant that in respect of any and all Material you store as part of the Service you will have obtained and hold from any entity or individual in respect of which any sensitive material is stored the consent to your use and storage of that material and your agree to indemnify us, and keep us indemnified, against any claim made by any such entity or individual and or of any relevant authority.
5. Warranties & Release
5.1. You represent and warrant to us that:
5.1.1. you have the legal capacity to enter this Agreement;
5.1.2. no use of the Service by you or your consumers is to be in breach of any law; and
5.1.3. that no Material provided by you (regardless of medium) will infringe the copyright of third parties.
5.2. You acknowledge and agree that despite our best endeavours the Service may not operate on a continuous basis, and may be unavailable from time to time, including for maintenance purposes. You release us, and agree to keep us released, from all Claims arising as a result of the Service being non operational for any period.
5.3. Losing your data is something we engineer against and seek to avoid, however, we are unable to unconditionally warrant and guarantee that this will not occur. You hereby irrevocably covenant and agree and hereby release and agree to keep us released from and indemnified against all Claims that may arise as a result of any such loss.
6.1. To the full extent permitted by law, we exclude all liability in respect of, but not limited to, interruption of business, incidental, special or any consequential damages or for loss of profits, savings, data or wasted expenditure, whether arising from our performance or non performance of our obligations under this Agreement, or otherwise.
6.2. To the full extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those expressly set out in these Terms.
6.3. This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, we limit our liability in respect of any claim to, at our option, in the case of goods the:
6.3.1. replacement of the goods or the supply of equivalent goods; or
6.3.2. repair of the goods; or
6.3.3. payment of the cost of replacing the goods or of acquiring equivalent goods; or
6.3.4. payment of having the goods repaired, and
6.4. in the case of services, the:
6.4.1. supply of the services again; or
6.4.2. payment of the cost of having the services supplied again.
6.5. You acknowledge and agree that we accept no liability or responsibility for any third party data, website or content accessed through our Service, nor for investigating, monitoring or checking such locations or their content for accuracy, currency, appropriateness, or completeness.
6.7 You agree to indemnify us, and keep us indemnified, from and against all Claims arising from:
6.7.1. any wilful, wrongful or negligent act or omission on your part;
6.7.2. a breach by you of the terms of this Agreement; and
6.7.3. any damages or injury (including death) caused or contributed to by the presence of your employees, servants, contractors and agents on our premises including our hosted data centre facilities at any time.
7. Visitor & User Conduct
7.1. You agree:
7.1.1. to comply with all Australian Federal, State and International legislation regarding online conduct and publication of acceptable Material;
7.1.2. not to use the Service for illegal or immoral purposes;
7.1.3. not to infringe our copyright or the copyright of any third party with respect to material uploaded by us or you to the Service or to copy copyright material on the Service.
7.1.4. not to use the Service to engage in any commercial enterprise without receiving our express consent in writing;
7.1.5. not to upload or transmit disruptive or destructive files, spam, viruses, malware or other harmful content.
7.2. You agree not to submit any material for incorporation into the Service that:
7.2.1. contains abusive, profane, vulgar, hateful, sexually explicit content or language, slurs, text or illustrations in poor taste, inflammatory attacks of a personal, sexual, racial or religious nature, or expressions of bigotry, racism, discrimination or hate;
7.2.2. is defamatory, inflammatory, disparaging, threatening, false, misleading, deceptive, fraudulent, inaccurate, unfair, contains gross exaggeration or unsubstantiated claims, violates the privacy rights of any third party, is unreasonably harmful or offensive to any individual, user, visitor, community, or tends to mislead or reflect unfairly on any other person, business or entity;
7.2.3. interferes with any person’s uninterrupted use and enjoyment of the Service;
7.2.4. is intended primarily to promote a cause or movement, whether political, religious or other;
7.2.5. discloses any personal identifying information relating to or images of a minor without consent of a parent or guardian;
7.2.6. is not otherwise in compliance with these Terms.
8. Client Materials
8.1. Ownership of all Client Material, including Property Rights in the Client Materials remains vested at all times in you.
8.2. We will keep safe and secure any Client Materials we have been given for the purpose of this Service.
8.3. We will copy and reproduce Client Materials only for the purpose of this Service and in accordance with any conditions specifically agreed on.
9. Use Of Materials
9.2. You retain all rights in such Material, however you grant us a non-exclusive, royalty-free, in perpetuity, worldwide right and licence to copy, distribute, display, publish, translate, adapt and otherwise use Metadata about this Material for any purpose, with no payment or consideration due to you.
9.3. You further grant us a non-exclusive, royalty-free, in perpetuity, world-wide right and licence to access, inspect, read, copy, translate, adapt and otherwise use your Material, with no payment or consideration due to you, for the purpose of diagnosing and troubleshooting problems that may arise from time to time with your data or our Service. We will treat any access to this Material in this circumstance as transient and confidential.
10. Intellectual Property Rights
10.1. You acknowledge and agree that the Service contains proprietary information and content that is protected by intellectual property and other laws, and may not be used except as provided in this Agreement.
10.2. You acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the identified materials from the Service without incurring any liability to you or any other party and refer the infringement claims to you.
10.3. It is strictly prohibited to copy, alter, adapt, distribute, display, re-publish or modify any materials or software contained in the Service except as authorised under the Agreement. Nothing contained in the Agreement will be construed as granting any licence or right of use of any trademark, information, material or software in the Service. To the extent that you choose to use any software of any third parties made available as an aspect of the Service, you agree to comply with the terms and conditions of use of that software as provided by the relevant supplier
10.4. You must not copy, modify, display or use in any manner any name, logo or trademark of Intersect Australia Limited, Time.intersect.org.au or any other product or service of ours except in the manner described in our Attribution Conditions (refer to clause 17.5 hereof) which are incorporated by reference into this contract and agreement.
11. Security And Credentials
11.1. Depending on your Time Plan category upon registration and payment for your nominated plan, you may be provided with Authentication Credentials and Registration Data, or you may be asked to use your own pre-existing Authentication Credentials or establish credentials with NCI.
11.2. You are solely responsible for maintaining the confidentiality of all Authentication Credentials and Registration Data under the scope of your Time Plan, and for all statements made and actions taken as a result of their use. Should you believe the security of your account has been breached, you are required to notify us immediately.
12.1. This Agreement terminates automatically if, for any reason, we cease to operate the Service.
12.2. We may otherwise terminate the Agreement immediately, on notice to you, if you have breached any provision hereof in any way, including but not limited to:
12.2.1. failure to pay any Fees on time, regardless of whether you have been asked to pay them;
12.2.2. breach of any of our Policies and Publications, which breach is not rectified within a reasonable time requested by us, except in the case of a breach which, in our sole opinion, is not capable of being rectified. In this case, termination is effective as at the date shown in the notice;
12.2.3. breach of any of these Terms, which breach is not rectified within a reasonable time requested by us, except in the case of a breach which, in our sole opinion, is not capable of being rectified. In this case, termination is effective as at the date shown in the notice;
12.2.4. if you commit an act of Insolvency, including but not limited to the appointment of an administrator, receiver, manager or liquidator.
12.2.5. if we notify you that there is a Force Majeure Event.
12.3. Upon termination, you will have no right to access the Service and, subject only to the provisions of clause 2.3, you agree that we may temporarily or permanently block access to, remove, deactivate, delete, and discard all material provided by you. We accept no liability for removed or deleted Material, data or information and you release and hold us harmless in respect of any such action.
12.4. You may terminate your Account at any time, for any reason, by giving written notice or emailing email@example.com. No financial compensation will be payable or due to you by us should you choose to terminate your Account.
12.5. You agree that we will not be liable to you or any third-party for any termination of your access to the Service.
12.6. Where this Agreement is terminated under clause 2.3 or 12.2, subject to our sole determination of risk assessment including but not limited to security exposure, safety and feasibility, we may permit you to copy or transfer your Material, data or information to an alternative means of storage. Such transfer must occur to your hardware storage facilities via a network connection acceptable to us. Subject to data centre policy compliance and our sole discretion of risk assessment including but not limited to security exposure, safety and feasibility, we may permit you to connect and activate local hardware storage facilities in physical proximity of our relevant data centre location(s) to maximise transfer speed. During the period in which you copy or transfer your Material, data or information to an alternative means of storage, the Fees applicable to your Plan will continue to be charged by us to you.
13.1. HPC.Time compute pricing is based on Service Units (SU), one virtual core consumed for one hour. OwnTime and NeCTAR pricing is time-based (as opposed to consumption) depending on the overall dimensions of virtual machines allocated.
13.2. Pricing assumes AARnet connected on-net data read and write access. Intersect may at its sole discretion shape and/or bill network traffic to/from off-locations.
13.3. You must maintain a credit balance for your account.
13.4. Billing occurs monthly in arrears for consumption (floor) or time-based pricing and monthly in advance for reservation (ceiling) pricing.
13.5. Merit and Subscription-based subsidies, if applicable, are applied as a rebate against standard rates for the life of the subsidy scheme.
13.6. Different rates apply for different Time Plans, products and services. All prices, terms and conditions are subject to change without prior notice.
Meaning of words
14.1. Words used in this clause but not defined in this Agreement have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
14.2. Amounts exclusive of GST
14.3. Unless otherwise expressly stated in this Agreement, all amounts payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.
14.4. Payment of GST
14.5. The recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid Tax Invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement.
14.6. If this Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
14.6.1. the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense (“net amount”); and
14.6.2. if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply, such that after the other party meets the GST liability, it retains the net amount.
15. Force Majeure
15.1. Neither party is liable for any breach of its obligations under this Agreement to the extent that the breach resulted from a Force Majeure Event provided that it:
15.1.1. promptly notifies the other party (with appropriate details); and
15.1.2. takes all reasonable steps to work around or reduce the effects of the Force Majeure Event.
15.2. If a Force Majeure Event continues for more than 14 days or continues beyond the Service Period, we may terminate this Agreement with immediate effect.
16.1. You must not assign, sublicence or otherwise deal in any other way with any of your rights under this Agreement.
16.2. If a provision of these Terms is invalid or unenforceable, to the extent the Law permits, it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
16.3. Each party must at its own expense do everything reasonably necessary to give full effect to the Agreement and the events contemplated by it.
16.4. The Agreement is governed by the laws of New South Wales and each party submits to the jurisdiction of the courts of New South Wales.
16.5. The Agreement may only be varied in accordance with its terms and conditions herein, or otherwise by mutual agreement of the parties.
17. Websites incorporated into these Terms
17.1. The content of the following websites, as published from time to time at the time of any use by you of the Service, are incorporated into the Agreement as if set out in these Terms:
17.2. Terms and Conditions of Use are published at http://time.intersect.org.au/terms
17.3. Time Rates pricing is published at http://time.intersect.org.au/rates
17.5. Attribution Conditions are published at http://intersect.org.au/content/attribution-policy
17.6. AAF Federation Rules are published at http://aaf.edu.au/about/federation-rules
18. Confidentiality and Protection of Data
18.1. A party must not use or permit the use of any Confidential Information of the other party except for the purposes of this Agreement, or make public or disclose any Confidential Information of the other party to any person without the authority of the other party. Each party must ensure that its employees and agents do not make public or disclose the Confidential Information of the other party.
18.2. A party must use best endeavours in accordance with industry best practice to prevent unauthorised physical and online access by third parties to any Confidential Information of the other party in its possession.
18.3. A party’s obligations under this clause 18 will not be taken to have been breached where the information is legally required to be disclosed. However, the Confidential Information (or part of it) which is disclosed by force of law will remain Confidential Information for all other purposes.
18.4. You must, on demand, return (and procure the return) to us any of our or our Related Bodies Corporate’s Confidential Information in your possession or control (or in the possession or control of any of your employees, agents, contractors or sub-contractors).
18.5. Nothing in this clause 18 will be construed to prevent a party from disclosing information including the Confidential Information of the other party to its employees, agents or contractors on a “need-to-know” basis, provided that if the information is Confidential Information the disclosing party ensures that such information is treated as confidential by its employees, agents and contractors and such disclosure is bound by terms equivalent to this clause 18.
18.6. This clause 18 survives termination or expiry of this Agreement.