Welcome to Xakia, an online matter management service designed especially for
means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the Website (which Xakia may change from time to time on notice to You).
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through
"Intellectual Property Right"
means any patent,
means the online matter management services made available (as may be changed or updated from time to time by
means the Internet site at the domain www.xakia.com.au or any other site operated by Xakia including but not limited to www.matters.xakia.com.au and www.xakiatech.com.
means any person or entity, other than the Subscriber, that uses the Service with the
means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
means the Subscriber, and where the context permits, an Invited User. "Your" has a corresponding meaning.
2. USE OF SOFTWARE
a) the Subscriber determines who is an Invited User and what level of user role access to the relevant
b) the Subscriber is responsible for all Invited Users’ use of the Service;
c) the Subscriber controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be; and
d) if there is any dispute between a Subscriber and an Invited User regarding access to any
3. YOUR OBLIGATIONSa) Payment obligations
The Access Fee is payable monthly in advance starting one month following the date You added Your first
You are responsible for payment of all taxes and duties in addition to the Access Fee. If Xakia makes a supply under or in connection with this Agreement in respect of which GST
You may from time to time be offered preferential pricing or discounts for the Access Fees as a result of the number of
c) General obligations:
You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Xakia or condition posted on the Website. You may use the Service and Website on behalf of others or in order to provide services to others but if You do so you must ensure that You are
d) Access conditions:
- You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Xakia of any
unauthoriseduse of Your passwords or any other breach of security and Xakia will reset Your password and You must take all other actions that Xakia reasonably deems necessary to maintain or enhance the security of Xakia'scomputing systems and networks and Your access to the Services.
- As a condition of these Terms, when accessing and using the Services, You must:
- not attempt to undermine the security or integrity of
Xakia'scomputing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
- not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
- not attempt to gain
unauthorisedaccess to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
- not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
- not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
- not attempt to undermine the security or integrity of
Use of the Service may be subject to limitations such as
You indemnify Xakia
4. CONFIDENTIALITY AND PRIVACYa) Confidentiality:
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.
- Each party's obligations under this clause will survive termination of this Agreement.
- The provisions of clauses a)
iand a) iishall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
- Each of
- By using the Service, You agree that Xakia can access, aggregate and use non-personally identifiable data Xakia has collected from You. This data will in no way identify You or any other individual.
Xakiamay use this aggregated non-personally identifiable data to:
- assist us to better understand how our customers are using the Service,
- provide our customers with further information regarding the uses and benefits of the Service,
- enhance small business productivity, including by creating useful business insights from that aggregated data and allowing You to benchmark Your business’ performance against that aggregated data, and
- otherwise to improve the Service.
5. INTELLECTUAL PROPERTY AND DATAa) General:
Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of
Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Xakia Access Fee when due. You grant Xakia a
d) Third-party applications and your Data.
If You enable third-party applications for use in conjunction with the Services, You acknowledge that Xakia may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services.
We use Microsoft Azure to host our Services on servers located in Australia. If You are a non-Australian resident, this means that Your Data including Your personal information will be transferred to Australia.
By entering Data into the Services, You consent to that Data being hosted on servers located Australia. While Your Data will be stored on servers located in
If You do not want Your Data to be transferred to a server located in Australia, You should not provide Xakia with Your Data or use the Service.
However, the Internet is not in itself a secure environment and we cannot give an absolute assurance that Your information will be secure at all times. Transmission of Data over the Internet is at Your own risk and You should only enter, or instruct the entering of, Data to the Service within a secure environment.
We will advise You at the first reasonable opportunity upon discovering or being advised of a security breach where Your Data is lost, stolen, accessed, used, disclosed, copied, modified, or disposed of by any
6. WARRANTIES AND ACKNOWLEDGEMENTSa) Authority:
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You acknowledge that:
- You are
authorisedto use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorisedto use the Service. You are also authorisedto access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else). Xakiahas no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
- You are responsible for ensuring that You have the right to do so;
- You are responsible for
authorisingany person who is given access to information or Data, and you agree that Xakia has no obligation to provide any person access to such information or Data without Your authorisationand may refer any requests for information to You to address; and
- You will indemnify Xakia against any claims or loss relating to:
Xakia'srefusal to provide any person access to Your information or Data in accordance with these Terms, Xakia’smaking available information or Data to any person with Your authorisation.
- The provision of, access to, and use of, the Services is on an "as is " basis and at Your own risk.
Xakiadoes not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks andthe Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Xakiais not in any way responsible for any such interference or prevention of Your access or use of the Services. Xakiais not Your lawyer and use of the Services does not constitute the receipt of legal advice. If You have any legal questions, please contact a lawyer.
- It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
- You remain solely responsible for complying with all applicable accounting, tax
andother laws. It is Your responsibility to check that storage of and access to your Data via the Software and the Website will comply with laws applicable to you (including any laws requiring you to retain records).
d) Consumer guarantees:
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.
7. LIMITATION OF LIABILITY
a) To the maximum extent permitted by law, Xakia excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
b) If You suffer loss or damage as a result of
c) If You are not satisfied with the Service, Your sole
When You first sign up for access to the Services You can evaluate the Services with no obligation to continue to use the Services. If You choose to continue using the Services thereafter, You will be billed from the day that is one month following the date on which You first added Your billing details into the Services. If You choose not to continue using the Services, You may cancel your subscription in the Admin section of the Services.
b) Prepaid Subscriptions
c) No-fault termination:
This Agreement will continue for the period covered by the Access Fee paid or payable under clause 3a). At the end of each billing period this Agreement will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates this Agreement by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate this Agreement You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of this Agreement.
e) Accrued Rights:
Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- ii. immediately cease to use the Services and the Website.
You must ensure that you use the Services to export your Data prior to termination of this Agreement.
f) Expiry or termination:
Clauses 3a), 3f), 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms.
9. HELP DESKa) Technical Problems:
In the case of technical
b) Service availability:
If for any reason Xakia has to interrupt the Services for longer periods than Xakia would normally expect, Xakia will use reasonable
10. GENERALa) Entire agreement:
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
d) No Assignment:
You may not assign or transfer any rights to any other person without
e) Governing law and jurisdiction:
If any part or provision of this Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to
h) Rights of Third Parties:
A person who is not a party to this Agreement has no right to benefit under or to enforce any term of this Agreement.
ABN 93 612 857 593
Level 4, 50 Market Street
Melbourne VIC 3000
1300 001 071