1. DEFINITIONS AND INTERPRETATION
In this document:
Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Confidential Information means all information provided by one party to the other in connection with these terms and conditions where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding information that enters the public domain or is disclosed to a party by a third party, other than through a breach of these terms and conditions.
COVID Workplace Directions means workplace directions issued under section 200 of the Public Health and Wellbeing Act 2008 (Vic) with respect to COVID-19 or related matters and includes comparable legislation and directions issued in other States and Territories.
Customer means the party that has contracted with Rapid Global for the supply of the Software and Services.
Device means a device, usually electronic, that processes data according to a set of instructions, which may include workstations, personal computers, laptops, netbooks, personal digital assistants, tablets and smartphones.
Documentation means any documentation (whether electronic or printed) made available via the Website or otherwise provided by Rapid Global to the User or the Customer, which accompanies the Services or Software.
Force Majeure Event means any event beyond the control of the relevant party.
GDPR means the General Data Protection Regulation (being Regulation 2016/679 of the European Parliament and of the Council).
GST means the tax payable on taxable supplies under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means any and all, current and future, intellectual and industrial, property rights and interests, including any:
- patents, trade marks, service marks, rights in designs, trade names, copyrights, topography rights, utility models, eligible layout rights, inventions, discoveries, trade secrets, Confidential Information, know-how, software and improvements, and any applications, or rights to apply, for registration of any of them;
- rights under licences and consents in relation to any of them; and
- other forms of protection of a similar nature or having equivalent or similar effect to any of them, in Australia and in the world, whether registered or unregistered, for the duration of the rights and interests.
Liability means any claim, action, loss, cost, expense, charge, outgoing or payment (including any legal costs, on a full indemnity basis) and damage or liability of any kind.
Payment Gateway means payment for the Services made by the User via eWay, facilities provided by National Australia Bank Limited or by other means specified on the Website or as advised by Rapid Global from time to time.
Personal Information has the meaning as defined in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means any Laws relating to privacy or requiring secrecy or confidentiality in dealing with information, including:
- any laws relating to the protection of Personal Information; and
- the Privacy Act and the Australian Privacy Principles established under the Privacy Act.
Rapid Global means Rapid Global Pty Ltd (ACN 161 913 882) (ABN 79 161 913 882)
Services means the services to be provided by Rapid Global via the Website or to be accessed via Devices using the Software, together with any Documentation under the agreement between Rapid Global and the Customer.
Software means any program or data file relating to the Services supplied by Rapid Global to the Customer or User or downloaded or installed by the Customer or User on a Device but excludes any Third Party Software.
Third Party Software means freeware or open source software or software that is owned by third parties and licensed to Rapid Global.
User means the end user of the Services and Software.
User Data means all works and materials:
- uploaded to, stored on, processed using or transmitted via the Services or the Software by or on behalf of the User, or Rapid Global on the User’s behalf; and
- otherwise provided by the User to Rapid Global in connection with these terms and conditions.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website means www.rapidglobal.com
2. RIGHT TO USE THE SERVICES
2.1 The Services and Software, and all material on the Services and Software, are owned and operated by Rapid Global.
2.2 The User agrees to be bound by these terms and conditions by using the Services or downloading the Software.
2.3 If the User does not agree to be bound by these terms and conditions, the User must cease using the Services and uninstall the Software.
3. THE SERVICES
3.1 Rapid Global shall issue to the User a user name and password so as to enable access to the Services.
3.2 The User will communicate any difficulties encountered with the Services or Software to Rapid Global as soon as is reasonably practicable following detection.
3.3 The User acknowledges that certain elements of the Services or Software are provided by third parties or comprise Third Party Software and the User:
3.3.1 acknowledges and agrees that the licence agreement for any Third Party Software shall be between the User or the Customer and the relevant third party directly and the User shall comply with such terms in relation to the use of the Third Party Software; and
4. USER’S OBLIGATIONS
The User shall:
4.1.1 Provide Rapid Global with:
(a) all necessary co-operation in relation to these terms and conditions; and
(b) all necessary access to such information as may be required by Rapid Global, in order to enable Rapid Global to render the Services, including but not limited to the provision of the User Data.
4.1.2 Comply with all applicable laws and regulations with respect to its activities under these terms and conditions.
4.1.3 Be solely responsible for:
(a) procuring and maintaining its network connections and telecommunications links;
(b) the support and maintenance of any computer hardware and non-Rapid Global software operated by the User; and
(c) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the User’s network connections or telecommunications links or caused by the Internet.
4.2 Use of the Services
4.2.1 The User is responsible for maintaining the confidentiality and security of the User’s username and password. The User is responsible for any and all activities on the Services and Software which occurs under the User’s username.
4.2.2 The User shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
(f) causes damage or injury to any person or property.
4.3 Intellectual Property Rights
4.3.1 The User shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under these terms and conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or the Software in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services or Software; or
(b) access all or any part of the Services or Software in order to build a product or service which competes with the Services; or
(c) unless otherwise agreed by Rapid Global in writing, use the Services or Software to provide services to third parties; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or Software available to any third party, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services or Software, other than as provided under these terms and conditions.
4.3.2 The User shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services or Software and, in the event of any such unauthorised access or use, promptly notify Rapid Global.
4.4 Privacy & Surveillance
The User acknowledges and agrees that:
4.4.1 In providing the Services, Rapid Global will be required to collect Personal Information from the User and disclose such Perosnal Information to the Customer and the User consents to such collection and disclosure.
4.4.3 In collecting such Personal Information, Rapid Global shall be operating only as the processor of personal data, rather than as the controller of the personal data.
4.4.4 If the Services include GPS tracking services (through location services on the Device of the User or by other electronic means) (GPS Tracking), the User consents to such GPS Tracking and that where the User is an employee of the Customer, it will not use the Services until 14 days have passed after the above consent has been provided (or such other period as is required by surveillance legislation in the relevant jurisdiction).
4.4.5 Personal Information may be provided to State and Territory governmental authorities if required to ensure compliance with the COVID Workplace Directions (and such Personal Information may be used and stored by the relevant governmental authority for that purpose).
5. USER DATA
5.1 The User shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the User Data.
5.2 In the event of any loss or damage to User Data:
5.2.1 Rapid Global shall notify the User where such loss or damage to the User comprises an ‘eligible data breach’ as defined by the Privacy Act; and
5.2.2 To the extent permitted by law, the User’s sole and exclusive remedy shall be for Rapid Global to use reasonable commercial endeavours to restore the lost or damaged User Data from the latest back-up of such User Data maintained by Rapid Global. Rapid Global shall not be responsible for any loss, destruction, alteration or disclosure of User Data caused by any third party.
6. SUSPENSION OF THE SERVICES
6.1 Rapid Global may suspend access to the Services:
6.1.1 to carry out the maintenance services;
6.1.2 to carry out modifications or updates to the Services;
6.1.3 to preserve data and integrity; or
6.1.4 in the event of a security breach.
6.2 Suspension of access to the Services will continue until the maintenance services, modifications or updates are carried out, the problem or breach is rectified, or until otherwise agreed in writing between the parties.
6.3 Rapid Global also reserves the right to terminate or suspend access to the Services to the User indefinitely and without refund or compensation in the event that the User uses the Services, or appears to Rapid Global to be intending to use the Services, in a manner reasonably deemed inappropriate by Rapid Global or which breaches these terms and conditions.
7.1 If the agreement between Rapid Global and the Customer requires that the User makes payment of any applicable fees, such payment (in the amount as agreed by Rapid Global and the Customer) must be made via the Payment Gateway before any username and password is issued by Rapid Global.
7.2 All amounts payable under these terms and conditions are exclusive of GST unless stated otherwise. In respect of any taxable supply, the User must pay to the Supplier an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees.
7.3 All fees must be paid in full, without set off or counterclaim.
8. INTELLECTUAL PROPERTY
8.1 The User retains all Intellectual Property Rights in the User Data.
8.2 The User acknowledges and agrees that Rapid Global and/or its licensors own all Intellectual Property Rights in the Services, Documentation and the Software.
8.3 Except as expressly stated herein, these terms and conditions do not grant the User any Intellectual Property Rights, or any other rights or licences in respect of the Services, Documentation or the Software.
8.4 Rapid Global grants to the User a non-exclusive and non-transferable licence to use the Software and Documentation solely in connection with the Services, subject to and in accordance with the terms and conditions set out in these terms and conditions.
9.1 A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by these terms and conditions or required to do so by law or any regulatory authority.
9.2 A party may:
9.2.1 use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under these terms and conditions; and
9.2.2 disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to these terms and conditions, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
9.3 Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the receiving party’s possession or control.
9.4 Each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of Rapid Global’s request or on termination of these terms and conditions for any reason.
9.5 Rapid Global acknowledges that the User Data is the Confidential Information of the User.
9.6 This clause 9 shall survive termination of these terms and conditions, however arising.
10.1 Rapid Global:
10.1.1 takes no responsibility for any delay, malfunction, non-performance or other degradation of the Services caused by or resulting from:
(a) any alteration, modifications or amendments to the Services requested by the User; or
(b) any middleware or other software which links or interfaces with the Services, which has not been prepared by Rapid Global or sold by Rapid Global as part of the Services;
10.1.2 does not warrant that the User’s use of the Services will be uninterrupted or error-free; and
10.1.3 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the User acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10.2 The User acknowledges that the speed of response from the Services is dependent on the User’s internal connection and performance of the Services may be affected by such external factors as the User’s speed of connection, infrastructure bandwidth and the number of users on the connection.
10.3 Where the Services include pre-written materials provided by Rapid Global or other third parties (Materials), Rapid Global and its content providers will use reasonable endeavours to ensure that the Materials are accurate. However, the User acknowledges and agrees that:
10.3.1 the information provided in such Materials is intended only to provide a summary and general overview for the purposes of e-learning and training and is not intended to be a substitute for legal advice.
10.3.2 It will seek legal or other professional advice before acting or relying on any of the Materials.
10.3.3 If the Materials are edited by the User, neither Rapid Global nor its content providers will be responsible for any Liability arising from such amendments.
11. LIABILITY & INDEMNITY
11.1 To the full extent permitted by law, Rapid Global excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in these terms and conditions.
11.2 These terms and conditions are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, guarantees, conditions or obligations (including the Australian Consumer Law). If such legislation applies, to the extent possible, Rapid Global limits its Liability in respect of any claim to, at Rapid Global’s option:
11.2.1 in the case of goods:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) the payment of having the goods repaired, and
11.2.2 in the case of services:
(a) the supply of the services again; or
(b) the payment of the cost of having the services supplied again.
11.3 To the full extent permitted by law, Rapid Global excludes all Liability in respect of loss of data, interruption of business or any consequential or incidental damages, even to the extent that such Liability is caused by Rapid Global’s negligence.
11.4 The User must indemnify Rapid Global and its their employees, contractors, officers, and directors and keep Rapid Global and its employees, contractors, officers, and directors fully indemnified against all Liability which Rapid may incur to a third party or the User as a result of:
(a) The User’s use of this Services and Software or the Materials;
(b) any breach by the User of these terms and conditions; and
(c) any claims arising from any information, data, text or messages transmitted by the User using the Services and Software including claims for defamation, invasion of privacy, infringement of intellectual property rights or breach of any other applicable law, regulations or codes.
12.1 Rapid Global may terminate these terms and conditions by convenience by the provision of one month’s written notice.
12.2 These terms and conditions will also be automatically terminated if the agreement between Rapid Global and the Customer expires or is terminated.
12.3 Either party may terminate these terms and conditions by written notice to the other if any of the following events has occurred in respect of the other party:
12.3.1 a material breach of these terms and conditions which is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice; or
12.3.2 suffers an Insolvency Event.
12.4 If these terms and conditions are terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
12.4.1 the parties are immediately released from their obligations under these terms and conditions except those obligations listed in clauses 8, 9, 10 and 11 and any other obligations that, by their nature, survive termination;
12.4.2 each party retains the claims it has against the other; and
12.4.3 the User’s right to use Services immediately ceases and the licences granted under these terms and conditions terminate.
13. GENERAL PROVISIONS
13.1 Notices given by Rapid Global will be deemed to be received:
13.1.1 if given by email, on being sent, provided the notice is sent to the email address of an officer or employee of the User responsible for placing or administering orders for Services and no “out of office” or other automated reply is received indicating that the message has not been or will not be received or read by the intended recipient;
13.1.2 if given by facsimile transmission to a facsimile number shown in the application for credit (or any other number provided by the User) by production by Rapid Global of a copy of the facsimile transmission bearing the time and date of dispatch, on that date and at that time; and
13.1.3 if given by post, on the third Business Day after posting.
13.2 The User agrees to regularly check the Website for any notices of changes to these terms and conditions.
13.3 Rapid Global may appoint sub-contractors to perform Services under these terms and conditions.
13.4 The User shall not, without the prior written consent of Rapid Global, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms and conditions. Rapid Global may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms and conditions.
13.5 Nothing contained in these terms and conditions creates any relationship of partnership or agency between the parties.
13.6 If a provision of these terms and conditions are invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
13.7 Each party must at its own expense do everything reasonably necessary to give full effect to these terms and conditions and the events contemplated by it.
13.8 These terms and conditions (and any documents executed in connection with it) are the entire agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in these terms and conditions, no party has relied on any representation made by or on behalf of the other.
13.9 These terms and conditions may be amended only by a document signed by all parties.
13.10 A provision of or a right under these terms and conditions may not be waived or varied except in writing signed by the person to be bound.
13.11 A party will not be responsible for a failure to comply with its obligations under these terms and conditions to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
13.12 These terms and conditions are governed by the laws of South Australia and each party submits to the jurisdiction of the courts of South Australia.
Updated on the 28th May 2021
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