Terms of Service
HDLD Pty Ltd ABN 89 166 641 087 trading as IT Gems (IT Gems) has written software called UploadOnce™ to assist Businesses to request, manage and disclose information and documents. The Terms of Service as set out in this document will apply to your use of the UploadOnce™ Software and ancillary services provided by IT Gems to you (Our Services). The Terms of Service form the agreement for your use of Our Services unless we have entered into a separate written agreement superseding these terms. In that case you agree to use Our Services on the terms of the separate written agreement.
1. DEFINITIONS AND INTERPRETATION
In this agreement:
“Approved Purpose” means:
i. For Clients, to use Our Services to collect and store Client Data and to disclose Client Data to a Business for a lawful purpose.
ii. For a Business, and subject to a Business complying with clause 3, to use Our Services to collect and store Client Data, and to disclose Client Data to its suppliers, service providers or business partners to facilitate the provision of goods and services to Clients or potential Clients;
ii. For an Information Provider, and subject to the Information Provider complying with clause 3, to use Our Services to disclose Client Data to a Client to facilitate the provision of goods and services;
“Broker” means a person or entity including corporation or partnership, that, as an agent in the course of business negotiates or arranges for the provision of products or services on behalf of Clients and is paid for that service either by the Client, another Business or both;
“Business” means any person or entity collecting or disclosing Documentation or Personal Information;
“Business Day” means any day on which banks are open for business in each Australian state or territory, not being a Saturday, Sunday or public holiday;
“Business User” means a person or entity that elects to take a Business Pricing Plan specified on the Website to use Our Services and is licenced to use the UploadOnce™ Software, having agreed to the Terms of Service;
“Change in Control Event” means if you are a corporation:
a) a change in 15% or more of your shareholding;
b) any change in your shareholding, management or Control that may affect its ability your abide by the terms and conditions of this agreement; or
c) any other event which results in or causes a change of the person who Controls you;
“Commencement Date” means the date on which you are granted access to the UploadOnce™ Software;
“Confidential Information” of a party means the terms of this agreement and any other information , relating to the business, finances, strategy, methods, processes, products, services or other affairs of that party (“Disclosing party”) which is disclosed to, learnt by or accessed by the other party (“Receiving party”) in connection with this agreement, whether before or after the Commencement Date, whether orally, electronically, in writing or otherwise, but excludes information which:
a) is or becomes part of the public domain otherwise than as a consequence of a breach of this agreement or an obligation of confidence owed to the disclosing party;
b) the receiving party obtains from a source other than the disclosing party which source is entitled to disclose it; or
c) the receiving party developed or acquired independently before the Commencement Date;
“Control” has the meaning given in section 50AA of the Corporations Act 2001 (Cth);
“Customer” means a customer of IT Gems;
“Client” means any person or entity with whom a Business contracts or proposes to contract (whether or not that Client is a Client of a Business);
“Client Data” means: Personal Information, Details or Documentation which may be made available by IT Gems to you on the Website:
a) if you are a Business: Personal Information, Details or Documentation relating to a Client that you have in your own databases before the Commencement Date, or acquire during the Licence Period from an Individual person or organisation other than IT Gems; or
b) if you are a Client, your Personal Information, Details or Documentation that you, a Business or a Broker has uploaded to the Website using Our Services; or
c) If you are an Information Provider, Personal Information, Details or Documents that you have uploaded to the Website using our Services. This includes Personal information, Details or Documents uploaded by your officers, employees, contractors or agents on your behalf.
Data Fee means the amount set out in the Pricing Plan to store, disclose or access Personal Information, Details or Documents;
“Details” means the information provided by you to the Website so you can receive Our Services;
“Document Request Fee” means the amount set out in the Pricing Plan for that service;
“Documents” or “Documentation” means any paper or electronic information (including in original form, photographed, photocopies or facsimile) collected by an Individual, Business or Broker for an Approved Purpose, including birth certificates, passports, drivers’ licences, payslips, marriage certificates or any other document or information that assists the Approved Purpose;
“End User” means a person (including an Individual), Broker or Business who uses Our Services and is licenced to use the UploadOnce™ Software, having agreed to the Terms of Service;
“Fee” means the prices (in Australian dollars) specified in the Pricing Plan selected by you on the Website, including the Data Fee, the Document Fee, the Support and Maintenance Fee and the Licence Fee; or as otherwise agreed;
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Individual” means a natural person, whose Personal Information, Details and/or Documentation has been collected using the UploadOnce™ Software;
“Information Provider” means a Business User or Individual invited to use Our Services to provide or disclose Client Data in order to facilitate the provision of goods and services;
“Insolvency Event” means an event by which a party is:
a) declared bankrupt;
b) rendered insolvent;
c) placed in or under receivership, receivership and management, liquidation or official management or administration;
d) wound up or a resolution is made for the winding-up;
e) made subject to any arrangement, assignment or composition (otherwise than as a result of voluntary corporate reconstruction); or
f) subject to any other event that has similar effect to any of the events described in a) to e) in this definition.
“Intellectual Property Rights” means copyright and neighbouring rights (including moral rights), all rights in relation to inventions (including patents), registered and unregistered trade marks, business names, domain names, registered and unregistered designs, circuit layouts, confidential information, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
“Licence” has the meaning given in clause 4.1;
“Licence Fee” has the meaning given in clause 4.2;
“Licence Period” means the period which you have access to Our Services (including the UploadOnce™ Software) according to the option for payment selected by you on the website;
“Our services” means the UploadOnce™ software and ancillary services provided by IT Gems to You;
“Pricing Plan” means the plans set out on the Website and in the Schedule to this agreement from time to time;
“Personal Information” has the meaning given to that term in the Privacy Act 1988 (Cth) and includes all Personal Information collected for the Approved Purpose;
“Privacy Legislation” means:
a) the Privacy Act 1988 (Cth); and
b) any legislation from time to time in force in any Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia) affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of Personal Information, data and other types of information and includes the Spam Act 2006 (Cth) the Do Not Call Register Act 2006 (Cth), the Commonwealth Electoral Act 1918 (Cth) and the Telecommunications Act 1997 (Cth)
“Recipient” means an Individual, User or Business in receipt of confidential information or confidential documents;
“Support and Maintenance Fee” means the amount set out in the Pricing Plan for that service.
“Territory” means Australia;
“UploadOnce™Software” means software produced by IT Gems that enables a Client or Business, as the case may be, to:
a) request, upload and disclose copies of Documentation to the Website; and
b) request, insert and disclose Personal Information and other information on the Website
so that it may be used by a Business to assess whether a product or service is not unsuitable for a Client.
“User” means you or any of your employees or contractors granted secure identifier by IT Gems including username and password, and licence to use the UploadOnce™ Software for the Approved Purpose, having agreed to the Terms of Service;
“User Manuals” means manuals, user instructions or other documentation provided by IT Gems to you to assist you to access and use the UploadOnce™ Software;
“Website” means www.UploadOnce.com.au, the website owned by IT Gems;
“you” means the person or entity specified in the Details page of the Website that agrees to these Terms of Service by clicking “Accept” button on the Website linking these terms.
In this agreement, unless the context clearly indicates otherwise:
a) a reference to a person includes a natural person, company, statutory corporation, partnership, the Crown and any other organisation or type of legal entity;
b) a reference to a right or obligation of a party is a reference to a right or obligation of that party under this agreement;
c) including and includes are not words of limitation;
d) a requirement to do any thing includes a requirement to cause that thing to be done;
e) a reference to terminate, terminated or termination includes the circumstance where the Licence Period expires;
f) clause headings and the table of contents are inserted for convenience only and must not be used when interpreting this agreement;
g) monetary amounts ($) are expressed in Australian dollars;
h) the singular includes the plural and vice-versa;
i) a reference to a natural person includes their personal representatives, successors and permitted assigns;
j) a reference to a company includes its successors and permitted assigns; and
k) italicised terms have the meaning given to those terms in the Privacy Act 1988 (Cth) as amended and applying from 12 March 2014.
2. SUPPLY OF OUR INFORMATION SERVICES
2.01 IT Gems has rights to use the UploadOnce™ Software and operates the Website.
2.02 IT Gems has developed information technology, software and documentation that we may use to provide Our Services to you, and we have copyright and other rights in those items.
2.03 If you have legal capacity and you accept these Terms of Service, IT Gems permits you to use the UploadOnce™ Software for the Approved Purpose within Australia.
2.04 This agreement does not transfer to you any Intellectual Property Rights in the UploadOnce™ Software or the Documentation (except the Licence). We have Intellectual Property Rights in the compilation of the information we use to supply our information services to you, and in the reports we supply to you when you use Our Services.
2.05 After we accept your request for the particular services, we will supply our information services to you.
2.06 IT Gems may change this agreement by amending or deleting terms or adding new terms. Changes may take the form of a new agreement. We will give you notice in writing before we do this. We may communicate this to you using notices on the website or by email.
2.07 IT Gems provides access to the UploadOnce™ Software to you online using any of the following:
a) the Website;
b) batch data interchange methods; or
c) any other means IT Gems may determine from time to time (“the Facilities”).
2.08 IT Gems does not warrant that you will have continuous access to Our Services. Online access to the UploadOnce™ software and the Website is provided over communication links and other networks. The availability of Our Services relies on the availability of those links and networks. While we will do our best to make sure the online information services are available, we are not liable to you if the links or networks are unavailable at any time..
2.09 IT Gems may add or withdraw any service and modify or otherwise change any service without notice to you. If we change any of our procedures or instructions, or if we introduce new ones and we think those changes will affect you, we will endeavour to let you know in reasonable time taking into account the nature of those changes.
2.10 If we have given you a timetable or time estimate for providing our information services, we will use reasonable endeavours to meet that timetable or time estimate. We will let you know if we rely on you to do anything in order for us to meet the timetable or time estimate and you agree to co-operate with us.
2.11 If we charge you for services, we will make available bills and notices to your online account or send them to the last email address or postal address you have given to us.
3. YOUR USE OF OUR SERVICES
3.01 You have legal capacity and you agree to comply with the terms and conditions of this agreement and follow any procedures and other instructions we provide when you use the UploadOnce™ Software or any of Our Services.
3.02 You agree you will not transfer your rights or obligations under this agreement to any other person without first getting our written consent.
3.03 If you suffer a Change in Control Event, you must, as soon as you become aware of such a Change in Control Event, notify IT Gems in writing of the Change in Control Event.
3.04 If you use Client Data, reports or other information obtained from the Website, you agree to use the content we supply you for your own internal business use and for the Approved Purpose. You agree that you will not resell, repackage or otherwise re-use our information in any other way without prior written permission from IT Gems.
3.05 If we deliver reports electronically, you can save them onto your system, or print them for your file. If you access our services by direct link and we deliver information to you by a stream of data you can copy the information onto your system and reprocess it, for example as part of your credit approval process. You agree that you will not reproduce, modify or adapt our reports and information in any other way without prior written permission from IT Gems.
3.06 If you access our services by direct link, you will need to ensure that your system complies with our most up to date version of our system specifications to allow direct linking. You are responsible for any system changes you need to make and agree to make those changes within 2 months of us notifying you of a new version.
3.07 You agree that you will not copy, modify, adapt, reverse engineer or infect with viruses our information technology, software or documentation or intellectual property.
3.08 If we have provided you with any identifiers including Username and passwords to use our information services, you agree to keep all and any identifiers we give you confidential and secure and to manage your Users’ access to our services. If you are an organisation, each User name must only be used by one individual User within your organisation and you agree that any identifiers we give you will not be transferred between Users or disclosed to any third party and you will tell us if they are no longer required, for example, when a User is no longer engaged or employed by you. You are responsible for all use of those identifiers including all activities that occur under an identifier. If we ask you to, you agree to stop using those identifiers or use any replacement identifiers we give you.
3.09 If you are a Business, you agree not to permit any person to access Our Services other than your Users who require access for your business purposes. You must ensure that:
a) all access codes and log in keys made available to Users to access Our Services are kept secret and secure;
b) each User does not use any other person’s login key, access code or password to access Our Services for the Approved Purpose;
3.10 If you are an organisation and a User is no longer employed or engaged by you, you will ensure access codes and log in keys are de-activated from the date the employment or engagement ceases.
3.11 If you are a Business User, you agree to provide us with one contact person within your organisation or one contact for each branch of your organisation (and to notify us if they leave). That person will be responsible for liaising with us about the requirements of this agreement.
3.12 You agree to tell us if you change any contact details in a timely manner.
3.13 You agree not to, and procure that your Clients, suppliers, service providers or business partners do not, refer to IT Gems expressly or impliedly in reference to any communication or any decision made regarding Individuals who may be identified using the UploadOnce™ Software or the Website.
3.14 You agree to comply with the Privacy Legislation and all other laws that apply to the information that we provide to you or to or your use of Our Services (and to maintain documentation to demonstrate your compliance).
3.15 You agree to comply with the Privacy Legislation and all other laws that apply to Client Data used in connection with the UploadOnce™ Software, even if you are not an organisation to which the Privacy Legislation would otherwise apply. In particular you must:
a) take reasonable steps to ensure that when you use the Client Data, the Individual to whom the Client Data relates, is or has been made aware of the following, except to the extent that making the Individual aware of the matters would pose a serious threat to the life or health of any individual:
i. your identity and how to contact you;
ii. the fact that the Individual is able to gain access to the Client Data relevant to the Individual;
iii. the purposes for which the information has been collected;
iv. the End User (or the types of organisations) to which you usually disclose information of that kind;
v. any law that requires the particular information to be collected; and
vi. the main consequences (if any) for the Individual if all or part of the information is not provided; and
b) only supply the Client Data to an End User who is in a foreign country if:
i. you reasonably believe that the End User is subject to a law, binding scheme or contract which effectively upholds principles of fair handling of information that are substantially similar to the Privacy Legislation and that there are mechanisms that the Individual to whom the Client Data relates can access to take action to enforce that law or binding scheme; or
ii. you have a binding contract imposing similar obligations as the Privacy Legislation in respect of the Client Data on the End User; or
iii. you expressly inform the Individual to whom the Client Data relates that if he or she consents to the disclosure of the information, sub-clause 3.10 b) will not apply and after being so informed the individual consents to the disclosure.
3.16 You must take reasonable steps to maintain complete, accurate and up-to-date records of all Client Data accessed by your Users, which must include details of the individual User who accessed the Client Data and the date, time and manner in which it was accessed;
3.17 You agree to make copies of the records referred to in clause 3.16 available to IT Gems in real time if possible, and if not possible, within 24 hours of real time or otherwise upon request.
3.18 You must not add any content to the Website:
a) unless you hold all necessary rights, licences and consents to do so;
b) that would cause you or us to breach any law, regulation, rule, code or other legal obligation;
c) that would bring us, or the Website, into disrepute; or
d) that infringes the intellectual property or other rights of any person.
3.19 By posting or adding any content onto the Website, you grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use that content in any way (including, without limitation, by reproducing, changing, and communicating the content to the public) and permit us to authorise any other person to do the same thing.
3.20 You consent to any act or omission which would otherwise constitute an infringement of your moral rights, and if you add any content in which any third party has moral rights, you must also ensure that the third party also consents in the same manner.
3.21 You agree to permit IT Gems to monitor and collect information about your usage of Our Services. IT Gems will use this information to produce reports for its internal and external business purposes including reporting, quality control and service or product development purposes.
3.22 You agree to maintain documentation to demonstrate compliance with this agreement and the Privacy Legislation. You must not and must not allow any other person to;
a) copy the User Manuals; or
b) use the Client Data for any purpose other than for the Approved Purpose.
3.23 If asked by IT Gems, you agree to provide access to your systems and documentation to enable IT Gems to check compliance with this agreement and in some cases aspects of the Privacy Legislation within timeframes specified by us.
3.24 Compliance with data management practices and the Privacy Legislation is your responsibility. You acknowledge that nothing that IT Gems does as part of the review should be construed as providing legal or compliance advice or any imprimatur in respect of your data management practices or compliance with the Privacy Legislation.
4.1 Non-Exclusive Licence
a) Subject to the provisions of this agreement we grant to you a non-exclusive, revocable licence to use the UploadOnce™ Software in the Territory for the Approved Purpose (“Licence”) for the Licence Period.
b) The Licence is strictly restricted to you and may not be assigned or sub-licensed to or exercised by any person other than you.
c) If there is a Change of Control Event and IT Gems is not satisfied that as a result of the Change of Control Event you will be able to continue to meet your obligations under this agreement, IT Gems may terminate the Licence by notice to you.
4.2 Licence Fee
If you are a Business using our services to request information to assist you to deliver services, you must pay to IT Gems the Licence Fee in consideration of the Licence. Licence Fee means the fees specified in the Pricing Plan selected by you on the Website as published from to time, including the terms of those Pricing Plans and the financial terms applicable when your use of the UploadOnce™ Software exceeds the use allowed for your Pricing Plan, or as otherwise agreed.
If you are an Information Provider invited to upload Client Data, you will be charged the Fee specified in the Schedule for the licence to enable you to perform the task.
4.3 Licence Period
If you are a Business, the Licence granted under this agreement will commence on the Commencement Date and will continue until the end of the Licence Period unless and until terminated in accordance with these terms.
If you are an Information Provider, the Licence Period will commence when you are sent an invitation to upload documents and ends when the last request to upload Client Data is completed or when you notify the Person(s) requesting information you do not have the Client Data being requested.
5. CONFIDENTIAL INFORMATION
5.01 IT Gems has disclosed and may from time to time disclose to you Confidential Information and Documentation. You agree to use such Confidential Information and Documentation solely for the purposes of this agreement. Subject to clause 5.02, you must keep confidential and not disclose, whether directly or indirectly, to any third party the Confidential Information.
5.02 A Recipient may disclose Confidential Information of the other party only to employees and contractors of the Recipient who:
a) have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and
b) before disclosure, have been directed by the Recipient to keep confidential all Confidential Information of the other party (each a “Direction”).
5.03 A Recipient must:
a) ensure that each person to whom it discloses Confidential Information of the other party complies with its Direction; and
b) notify the other party of, and take all steps to prevent or stop, any suspected or actual breach of a Direction.
5.04 If a Recipient is required by law to disclose any Confidential Information of the other party to a third person (including but not limited to, government) the Recipient must:
a) if possible before doing so:
i. notify the other party; and
ii.give the other party a reasonable opportunity to take any steps that that party considers necessary to protect its Confidential Information; and
b) notify the third person that the information is Confidential Information of the other party
5.05 Any disclosure by the Recipient in accordance with clause 5.02 is not a breach of this agreement.
5.06 You shall ensure that all reasonable security measures are taken to safeguard the Confidential Information and Documentation from access or use by any unauthorised person.
6. OUR CHARGES
6.01 For any Fees we charge you, you agree to pay us:
b) any Fee we charge for any of our information services that you use. We may charge Fees in advance.
6.02 The Fees specified in our Pricing Plans shall be automatically increased by an amount equal to the increase in any tax, fee, levy, government charge, goods and services tax or analogous tax or any other tax or regulatory or legislative cost or statutory fee upon or in connection with the UploadOnce™ Software or the Client Data. We will notify you of the date such increase shall take effect and the nature of such increase.
6.04 We may change our Fees and charges including licence Fees for Business Plan customers, additional User changes and excess usage charges from time to time. We will tell you when the new Fees and charges apply from.
6.05 If we charge you Fees, you authorise IT Gems to debit the amount that is payable for access to the UploadOnce™ Software from your nominated credit card to pay the Licence Fee.
6.06 Subject to clause 6.08 below, you agree to make payment via a debit to your nominated credit or debit card. The amount debited will (subject to the following) be the amount shown on our webpage after you have selected your preferred Pricing Plan and have clicked the "Make Payment” button on that page. Your credit card provider may impose additional fees which are in accordance with your arrangements with that credit card provider.
6.07 If we are unable to successfully process your debit or credit card payment for our Fees, then we may notify you of dishonour and cancel your access to the UploadOnce™ Software. You will be liable to IT Gems for all dishonour fees and charges that we may incur.
6.08 From time to time direct debit facilities may not be available. When this occurs, IT Gems shall invoice you for the Fees monthly in arrears or at such other intervals as IT Gems may determine from time to time. Each invoice shall be in the form of a valid tax invoice.
6.09 Where we charge you Fees and you are not required to pay the Fees up front on the Website, you must pay our Fees within 14 days of the date of our invoice. Payment will be made by electronic funds transfer into IT Gem’s nominated bank account. If you dispute an invoice, you must pay the undisputed portion of the invoice and dispute the balance. If you dispute the whole or part of any invoice, that dispute must be resolved in accordance with clause 11 of this agreement.
6.10 You must not pay, or attempt to pay, our Fees through any fraudulent or unlawful means.
6.11 You agree to keep confidential the terms of supply including our Fees, charges and pricing arrangements with you under this and any other agreement between us.
7. GST ON OUR FEES AND CHARGES
7.01 Words used in this clause that are defined in the GST Act have the meaning given in that legislation.
7.02 Unless otherwise specified, all amounts payable under this agreement are exclusive of GST and must be calculated without regard to GST.
7.03 If a supply made under this agreement is a taxable supply, the recipient of that taxable supply (Recipient) must, in addition to any other consideration, pay to the party making the taxable supply (Supplier) the amount of GST in respect of the supply.
7.04 If there is an adjustment to a taxable supply made under this agreement then the Supplier must provide an adjustment note to the Recipient.
7.05 The amount of a party’s entitlement under this agreement to recovery or compensation for any of its costs, expenses or liabilities is reduced by the input tax credits to which that party is entitled in respect of those costs, expenses or liabilities.
7.06 We will make available to you invoices for all our fees and charges.
8. LICENCE TERM, TERMINATION AND SUSPENSION
8.01 This agreement continues for the Licence Period or until either of us terminates it by giving written notice to the other.
8.02 If this agreement is terminated, clauses 2.04, 3, 4, 5, 6, 7, 9, 10 and 11 survive termination.
8.03 We may withhold or suspend your use of any of our information services immediately if
a) you do not pay our fees and charges for any service; or
b) if we believe you are not complying with any of your other obligations under this agreement or any other agreement you have with us; or
c) if we believe you are not complying with your legal obligations in respect of the information that we supply you.
8.04 If you are a natural person, in the event of your death your Customer Data may be deleted from our systems upon presentation by the executor or administrator of your estate of evidence of your death.
8.05 If you are a person other than a natural person, your Customer Data may be deleted from our records on the occurrence of:
a) an Insolvency Event; or
b) the removal of your registration details (such as an Australian Business Number or analogous reference) from registers kept by the Australian Securities and Investment Commission or successor body.
9. CONSEQUENCES OF TERMINATION
9.01 In all cases after termination of this agreement the Licence terminates and:
a) you must immediately:
i. stop accessing and using the UploadOnce™ Software;
ii. return to IT Gems the User Manuals and any copies of either of them in your possession or control, including any backup copies made pursuant to this agreement; and
iii. if requested by IT Gems, confirm by letter signed by you that you have complied with all of your obligations under this clause;
b) return to IT Gems i. all Confidential Information of IT Gems in material form (e.g. on paper or disk);
ii. those parts of all notes and other records based on or incorporating Confidential Information of IT Gems; and
iii. all copies of Confidential Information of IT Gems and those parts of notes and other records referred to in paragraphs i. and ii.; and
c) neither party may:
i. use or disclose to any person any Confidential Information of the other party;
ii. record any Confidential Information of the other party into any form (including without limitation electronic form); or
iii. sell or otherwise transfer any Confidential Information of the other party.
10. COMPENSATION AND LIABILITY
10.01 When we provide the information services to you, we rely on information provided to us by others. While we always aim to provide quality information to you, you understand that we do not independently check all information supplied to us, or the compilation of information by our systems, and that information may become out of date.
10.02 You understand that you are responsible for assessing the value of the information we provide you, and for the business decisions that you make, regardless of whether you base them on the information we supply. You are solely liable for the results of any actions or decisions you take on the basis of, or in reliance upon, the Client Data and otherwise in connection with your use of the UploadOnce™ Software.
10.03 To the extent we are able to at law, we exclude all express or implied representations, conditions, warranties and terms relating to the information services or the agreement except those set out in this agreement.
10.04 IT Gems excludes all liability to you:
a) in any cause of action whatsoever for loss or damage arising out of or in connection with any business decision made using information supplied by IT Gems (whether or not supplied using the UploadOnce™ Software), including without limitation, lost profits, lost revenue and all costs and damages suffered as a result of claims by any third person;
b) in negligence for acts or omissions of IT Gems, its employees, agents and contractors arising out of or in connection with the UploadOnce™ Software and this agreement.
10.05 You indemnify IT Gems and its employees or officers from any and all liability, loss, claims, demands or expenses that are suffered or incurred by IT Gems in connection with:
a) any information you give us is not accurate, up to date or complete or is otherwise misleading;
b) any breach by you of the Privacy Legislation;
c) your breach of this agreement or any other misuse of the information services or the information we supply you; and
d) any claim or action against IT Gems that anything produced resulting from or in connection with the Services infringes the Intellectual Property Rights of any third party.
e) Client Data, Details, information or Documents you share with another person or entity.
10.06 Each indemnity in this agreement is a continuing obligation of the indemnifying party, whether or not legal proceedings are instituted, and survives the termination or expiry of this agreement.
10.07 Each indemnity in this agreement is an additional, separate and independent obligation of the indemnifying party and no one indemnity limits the generality of any other indemnity
10.08 The indemnities in this agreement include legal costs on a solicitor client basis and damages and other compensation paid on the advice of legal advisers to compromise or settle any claim, whether between the parties or another person.
10.09 We are not liable to you or to anyone else for any loss or damage (including without limitation loss of profit, revenue or business, indirect, consequential, special or incidental loss or damage) however such loss, damage or liability arises or might arise if it were not for this clause. This exclusion does not apply to anything the law prohibits us excluding liability for.
10.10 To the extent we are unable to exclude liability, our total liability for loss or damage you suffer or incur is limited to us resupplying the services to you, or, at our option, us refunding to you the amount you have paid us for the information service to which your claim relates.
10.11 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our services. Your co-operation includes but is not limited to providing us in a timely manner with relevant documents, access to relevant employees or any other reasonable assistance that may be required in the course of dealing with such matters, and may in some circumstances involve you being joined as a party to any litigation as well as or instead of us.
10.12 In this clause 10, references to "we" and "us" include our officers, employees, contractors and agents.
11.01 Except for disputes/disagreements arising under clause 11, if a dispute between the parties in relation to, or arising out of, this Agreement (“Dispute”) occurs, each party must not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the provisions of this clause 11, except to seek urgent interlocutory relief.
11.02 A party claiming that a Dispute has arisen must promptly notify the other parties in writing giving details of the Dispute.
11.03 The parties must use reasonable endeavours to resolve any Dispute notified in accordance with clause 11.2.
11.04 If the parties fail to resolve the Dispute within 30 days of a party receiving a notice in accordance with clause 11.2, any of the Parties may immediately refer the Dispute to the Australian Commercial Disputes Centre (“ACDC”) for mediation and the parties will use reasonable endeavours to resolve the Dispute following the ACDC Guidelines.
11.05 Each party must bear its own costs in relation to complying with this clause 11, except for the costs and expenses of the mediation, which will be borne by the parties equally.
12.01 Neither of us is liable for a failure or delay in performing an obligation under this agreement to the extent the failure or delay is because of an event beyond our reasonable control. If either of us is affected in this way, each of us will use our reasonable endeavours to minimise delays or interruptions.
12.02 Where we have referred to any legislation or a provision of any legislation, it includes that legislation or provision as from time to time re-enacted or otherwise amended.
12.03 No delay or failure to exercise a right under this agreement prevents the exercise of that or any other right on that or any other occasion.
12.04 If any term of this agreement is invalid, unlawful and unenforceable, it will be to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions and the rest of this agreement remains in force.
12.05 This agreement supersedes any other agreement you have with us for our information services unless we agree otherwise in writing.
12.06 The laws of New South Wales govern this agreement and both parties submit to the non-exclusive jurisdiction of the courts of that state.
RESPECTING INFORMATION PRIVACY
We recognise the importance of protecting personal information. We do not collect sensitive information as defined under the Privacy Act 1988 (Cth) (“Privacy Act“), such as racial or ethnicity information, political opinions or associations, criminal records or health information.
In collecting and handling personal information, we are bound by the Privacy Act, including the Australian Privacy Principles (“APPs“), and applicable privacy regulations.
THE PERSONAL INFORMATION WE COLLECT ABOUT YOU
uploadonce.com.au may collect personal information about you including, but not limited to your name, residential and work addresses, phone numbers, email, gender, occupation, birth date, personal interests and any other information sought by us and provided by you for the purpose of using our Services. If you choose to link, create, or log in to your uploadonce.com.au account with a payment provider, or if you engage with a separate app or website that uses our application programming interface (“API”) (or whose API we use), we may receive information about you or your connections from that site or app.
We may also collect personal information from you when you opt-in to receiving offers and product information from us.
We may also collect non-personal information about you including, but not limited to, data relating to your activities on the Website (including IP addresses) via tracking technologies such as cookies, web beacons and measurement software or data relating to survey responses.
You acknowledge that the personal information you provide us and which we collect from you, is your own information or information which you have been authorised to provide to us.
HOW WE COLLECT YOUR PERSONAL INFORMATION
uploadonce.com.au may collect personal information about you from a variety of sources including, but not limited to personal information you provide us in:
(a) registering to use the Website or applying to use the Service or parts of them using the application form on the Website;
(b) logging in to use our Website via your social networking site (“SNS“) account which may also include information like device IP address, access dates and times, app features or pages viewed, app crashes and other system activity, type of browser, and the third-party site or service you were using before interacting with our Services.
(c) subscribing to receive alerts/e-brochures and filling in forms, applications, surveys or research, participating in promotions and competitions on the Website or a website of our service providers;
(d) contacting us or our service providers for any reason including, but not limited to, reporting a problem with the Website, requesting further services or seeking our assistance; and
(e) posting or contributing material on our Website.
IT Gems may collect personal information about you if you subscribe to receive email alerts, media releases and other news relating to IT Gems through the Website.
We may also collect your personal information through our service providers and third parties so that we may provide a better or more relevant service or product to you.
HOW WE USE YOUR PERSONAL INFORMATION
More specifically, uploadonce.com.au may use personal information which it has collected to:
(a) ensure that content from the Website is presented in the most effective manner for you and for your computer;
(b) provide a better or more relevant service or product to you, for instance by automatically populating forms on the Website when you make further enquiries on the Website, or make enquiries in relation to a nominated transaction service provider who may rely on the information contained in the documents you upload;
(c) combine your personal information with information that uploadonce.com.au has collected from its service providers, third parties, cookies or web beacons in order to provide you with a better or more relevant and personalised experience and to improve the quality of its services;
(d) personalise and customise your services, experience, advertising and content that you view and engage with on the Website or the websites of the service providers and business partners of uploadonce.com.au;
(e) respond to or provide you with service, products, information and assistance that you request from uploadonce.com.au;
(f) contact you to conduct surveys, research and feedback about our products, services or the Website;
(g) verify your identity when you register or log into our Website via your user account or related account and remind you of your password and username;
(h) allow you to participate in interactive features of our service, when you choose to do so;
(i) help carry out our obligations arising from any contracts entered into between you and us;
(j) otherwise interacting with companies or organisations with whom we have a business relationship for the purpose of enabling the performance of our services;
(l) provide, maintain, and improve our Services, including, for example, to facilitate payments, send receipts, provide the Services you request (and send related information), notify you about changes to our Services, including new features, provide customer support, authenticate users, and send administrative messages; and
(m) perform internal operations, including, for example, to prevent fraud and abuse of our Services; to troubleshoot software bugs and operational problems; to conduct data analysis, testing, and research; and to monitor and analyse usage and activity trends.
If all or part of this information is not provided, we may not be able to provide these services.
USING AND DISCLOSING YOUR PERSONAL INFORMATION FOR MARKETING PURPOSES
(a) use your personal information to provide you with information about offers, promotions, goods or services, which we believe may be of interest to you; and
(b) share your information with our service providers and other third parties so that they can provide you with products or services on our behalf or help us to provide you with the requested products or services including contacting you in relation to the products or services.
If we do contact you by using your personal information in accordance with either of the above, we will give you the opportunity to request that your information not be used for further direct marketing in the future.
We may also, if you request us to by opting-in through your online application at uploadonce.com.au, share your information with third parties so they may contact you directly about their offers, promotions, goods or services.
HOW WE DISCLOSE YOUR PERSONAL INFORMATION
We may disclose personal information to our service providers or business partners.
We may also disclose your personal information:
(a) to real estate agents or agencies, property developers, brokers, financial institutions, financial advisors, builders, superannuation funds, trustee companies or any business that has listings or advertising on our Website and which you have requested information from by submitting an enquiry;
(b) to our service providers, so that they can carry out work on our behalf (such as data processing or data centralisation) or provide you with products or services on our behalf or products or services that you have requested directly from them, or to help us to provide you with our products or services. If you have subscribed to a service through the operating system on your mobile device (including, but not limited to Google’s “Google Now” service), we will disclose information such as your search history to Google. You can opt out of us providing such information to Google through the operating system on your mobile device;
(c) to third parties where you have requested information, services or products from them;
(d) in conjunction with a sale or similar transfer of a business;
(e) relevant public, government or regulatory authorities, our legal representatives or other concerned parties, in special situations where we have reason to believe that disclosing your personal information is necessary to help identify, contact or bring legal action against anyone damaging, injuring, or interfering (intentionally or unintentionally) with our rights or property, users or anyone else who could be harmed by such activities; and
(f) where we are otherwise authorised or required by law to do so.
We may also disclose your information to third parties in an aggregated and/or anonymised form which cannot reasonably be used to identify you. You agree that disclosure of aggregated and/or anonymised information is not a disclosure of your personal information.
DISCLOSURE AND STORAGE OF PERSONAL INFORMATION OUTSIDE AUSTRALIA
Personal information submitted by IT Gem’s customers and visitors to our Website will only be held on servers located in Australia or in the data centres of IT Gems’ outsourced data processors with data centres in Australia. We do not transfer data outside Australia.
We strive to ensure the security, integrity and privacy of personal information we collect. We have established safeguards and use reasonable security measures to protect your personal information from unauthorised access, modification and disclosure. Our employees, contractors, agents and service providers who provide services related to our information systems are obliged to respect the confidentiality of any personal information held by us. We review and update our security measures in light of current technologies. Unfortunately, no data transmission over the internet can be guaranteed to be totally secure.
CORRECTION AND ACCESS
We will endeavour to take all reasonable steps to keep accurate and up to date, any information which we hold about you. If, at any time, you discover that information held about you is incorrect or you would like to review and confirm the accuracy of your personal information, you can contact us or update the information yourself.
You can also gain access to the personal information we hold about you, subject to certain exceptions provided for by law. To request access to your personal information, please login at UploadOnce.com.au or contact us.
IT Gems is committed to providing its customers with a fair and responsible system for the handling of complaints.
If at any time you have any concerns, complaints or questions in relation to your privacy or the operation of IT Gems, please contact our Privacy Officer at our support desk so that we may resolve your concerns.
Our Privacy Officer will consider your query and endeavour to respond to you promptly.
For more information about privacy issues in Australia and protecting your privacy, visit the Office of the Australian Information Commissioner’s website.
COOKIES AND WEB BEACONS
We may combine our cookies, information collected through the cookies and web beacons on the Website with other information (including information collected by third parties using their own cookies and web beacons) to provide better or more relevant services and advertising to you on the Website. Our service providers and other third parties may do the same in order to provide more relevant services and advertising to you through other Website that you may visit.
APPLICATIONS, WIDGETS OR LINKS TO OTHER WEBSITES
Last update 24 September 2015