Effective Starting: 2/12/19
This WideSky Customer Agreement (the “Agreement”) is between you and WideSky.Cloud Pty Ltd ABN:64 086 096 648 “WideSky” or “We”. As you are agreeing to this Agreement on behalf of your company, then “Customer” or “You” means your company, and you are binding your company to this Agreement. WideSky may modify this Agreement from time to time, subject to the terms in Section 11 Changes to this Agreement below.
By submitting by using or accessing WideSky products, you indicate your assent to be bound by this Agreement.
Scope of the Agreement
This Agreement governs:
• Your initial product purchase as well as any future purchases made by you that reference this Agreement
• WideSky hosted or cloud-based or Software-as-a-Service based solutions (“Hosted Services”)
Hosted Services are referred to as “Product”.
Account Registration
You will need to register for an account in order to receive any products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your account.
Authorised Users
Only the specific individuals for whom you designate may access and use the Products. Authorised Users may be you or other third parties who are acting for your benefit or on your behalf. You are responsible for compliance with this Agreement by all Authorised Users.
Hosted Software Terms
Access to Hosted Services.
Subject to the Terms and Conditions of this Agreement, WideSky grants you a non-exclusive right to access and use the Hosted Services selected in Schedule I (The Products). You acknowledge that our Hosted Services are on-line, subscription-based products and that we may make changes to the Hosted Services from time to time.
Subscription Terms and Renewals.
Hosted Services are provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription via contacting WideSky in writing. If you cancel, your subscription will terminate at the end of the current Term. You will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
The minimum initial Term of Agreement is 3 years.
Credentials
You must ensure that all Authorised Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorised person. User IDs are granted to individual companies, and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify WideSky of any unauthorised use of which you become aware.
Your Data
“Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to WideSky.
Security
WideSky implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Hosted Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data being lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorised third parties will never be able to defeat our security measures or those of our third party service providers.
Responsibility for Your Data
Indemnity for Your Data
You will defend, indemnify and hold harmless WideSky from and against any loss, cost, liability or damage, including attorneys’ fees, for which WideSky becomes liable arising from or relating to any claim relating to Your Data.
Data Protection
WideSky may publish, share or sell your aggregated, de-identified or anonymised data in a variety of ways, such as by providing for research, or used in benchmarking and comparison purposes. When we provide this information, we take technical measures to ensure that the data does not identify you and cannot be associated back to you.
Deletion at End of Subscription Term
We may remove or delete your data within a reasonable period of time after the termination of your Subscription Term.
Optional System Support and Maintenance
WideSky will provide the support and maintenance services for the Products described in the WideSky Support Agreement document during the period for which you have paid the applicable fee. Support and Maintenance is subject to the terms of the WideSky Support Agreement and will be provided at the support level and during the support term specified in your Support Agreement order.
Term and Termination
This Agreement is in effect for as long as you have a valid License Term or Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement, with 30 days written notice, after the expiration of the Term.
Billing and Payment
You agree to pay all fees in accordance with each Order. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements. If you add additional equipment or monitoring points during your License Term or Subscription Term, we will charge you pro-rata for the increased number of equipment or monitoring points or data storage requirements pursuant to the then-currently applicable rates in your next billing cycle.
Limitation of Liability
Neither party shall be liable for any loss of use, lost or inaccurate data, failure of security mechanisms, interruption of business, costs of delay or any indirect, special, incidental, reliance or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance. Neither party’s aggregate liability to the other shall exceed the amount actually paid by You to WideSky for products in the 12 months immediately preceding the claim.
Improving Our Products.
We are always striving to improve our Products. In order to do so, we need to measure, analyse, and aggregate how users interact with our Products, such as usage patterns and characteristics of our user base.
Governing Law; Jurisdiction
This Agreement will be governed by and construed in accordance with the applicable laws in the State of Queensland, Australia.
Changes to this Agreement
We may update or modify this Agreement from time to time. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the contact you designate, or in the Product itself. If we modify the Agreement during your Subscription Term, the modified version will be effective upon your next renewal of the Subscription Term. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
Due Authority
Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if You are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
Schedule I
Products covered by this Agreement:
• WideSky Cloud
• WideSky Edge
• WideSky Hub
• TenantView