Cerebiz Subscription Services (Cerebiz) - Terms of Use

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Last Updated: 1st August 2020

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Welcome to Cerebiz an online Subscription Services designed especially for Accountants, Business Advisors, and Businesses of any type. These Terms of Use ('Terms') are intended to explain our obligations as a service provider and your obligations as our client. Please read them carefully.
 

These Terms are binding on any subscriber to or user of the Software and Services ('You')  and apply to You from the time that Cerebiz provides You with access to the Software and Services.
 

We believe Cerebiz will evolve over time based on user feedback. These Terms are not intended to answer every question or address every issue raised by the use of Cerebiz. Cerebiz reserves the right to update these terms and will communicate these changes to You via email or notification on the Cerebiz Website. It is your responsibility to ensure that You have read and understood the Terms available via the home page on the Cerebiz Website.
 

These Terms were last updated on 1st August 2020.

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Definitions 
 

‘Terms of Use' 
means the terms under which You will be provided with access to Cerebiz Software and Services as set out on the website www.cerebiz.com and which form part of these Terms (which may be changed from time to time). 

'Confidential Information' 
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including about the Cerebiz software and services, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party. 

'Data' 
means any data input by You into the Software and subsequently transmitted and stored in the Cerebiz server. 

'Intellectual Property' 
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights related to Cerebiz, anywhere in the world whether or not registered. 

'Invited User' 
means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time. 

'Software and Services' 
means the Software and Services available (as may be changed or updated from time to time by Cerebiz) via the Cerebiz Website. 

'Subscriber' 
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. 'You' means You and your firm, company, or business and includes your employees, consultants, representatives and agents. The Subscriber, and where the context permits, an Invited User. 'Your' has a corresponding meaning. 

‘Subscription Period’
means the period for which You have paid the subscription specified on the Cerebiz Website, or as otherwise agreed in writing with Cerebiz.

‘Trial Subscription Period’
means the 14 day subscription period commencing on the date on which you subscribed to a free trial.

‘Terminology' 
‘Website’ means the Internet site at the domain www.cerebiz.com or any other site operated by Cerebiz. ‘Academy’ means the Cerebiz Academy website. 'Cerebiz' Means Cerebiz Pty Ltd and its employees, representatives, and contractors.

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1. Use of Software and Services 
   Cerebiz grants You the right to access and use the Software and Services via the Website with the user access according to your Subscription type and for the Subscription Period. This right is non-exclusive and non-transferable and limited by these Terms. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:

   1. the Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;

   2. the Subscriber is responsible for all Invited Users' use of the Service;

   3. 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;

   4. if there is any dispute between a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any. 

2. Your obligations

   1. Payment obligations: 
      All fees agreed for a Subscription Period will be billed to You in advance. An invoice for fees paid up will be provided by email to the nominated Billing Contact. You are responsible for payment of all taxes and duties in addition to the Subscription. If payment obligations are not met Cerebiz reserves the right to suspend services to You.

      1.  Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.​

   2. General obligations: 
      You must only use the software, services, and website for your own lawful internal business purposes, in accordance with these Terms and any notice sent to You by Cerebiz or as posted on the Website.

   3. Usage of third-party software and application tools: 
      Cerebiz allows You the use of third-party application tools in conjunction with Cerebiz subject to these Terms. In regard to such third-party tools, Cerebiz will not be responsible for their accuracy, integrity, or performance. Cerebiz reserves the right to pass on to You any charges applied by the suppliers of third-party tools as well as to deny access to such third-party application tools that Cerebiz considers as to posing risks of accuracy, integrity, or performance.

   4. Access conditions:

      1. You will ensure that all usernames and passwords required to access the software and services are kept secure and confidential. You will immediately notify Cerebiz of any unauthorised use of your passwords or any other breach of security and Cerebiz will reset your password.

      2. As a condition of these Terms, when accessing and using the Software, You must:

         1. not attempt to undermine the security or integrity of Cerebiz 's Software, Services, systems or networks or, where the Software or Services is hosted by a third party, that third party's computing systems and networks;

         2. not use, or misuse, the Software or Services in any way which may impair the functionality of the Software, Services, or Website, or impair the ability of any other user to use the Software, Services or Website;

         3. not attempt to gain unauthorised access to any information or materials other than those to which You have been given express permission to access or to the computer system on which the Software is hosted;

         4.  not transmit, or input into the Software, 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

         5. not modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Software or the Website except as is strictly necessary to use either of them for normal operation within the Terms of this Agreement.

   5. Usage Limitations: 
      Use of the Software and Services may be subject to limitations, including but not limited to monthly transaction volumes. Any such limitations will specified by Cerebiz as part of its subscription information.

   6. Communication Conditions: 
      As a condition of these Terms, if You use any communication tools available through the Website (such as any forum, chat room, screen sharing, or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Software including (but not limited to): offers of goods or services for sale, files that may damage any other person's computing devices or software, content that may be offensive to any of our other users, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use). When You make any communication via the Website, You represent that You own the content of the communication. Cerebiz is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Software. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. However, Cerebiz does reserve the right to remove any communication at any time in its sole discretion.

   7. Indemnity. 
      You indemnify Cerebiz against all claims, costs, damage and loss arising from your breach of any of these Terms or any obligation You may have to Cerebiz, including (but not limited to) any costs relating to the recovery of any fees for the agreed Subscription Period that has not been fully paid by You. 
       

3.  Confidentiality And Privacy

   1. Confidentiality: 
      Unless the relevant party has the prior written consent of the other or unless required to do so by law:

      1.  Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. 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 these Terms.

      2. Cerebiz will enter into a confidentiality arrangement with its employees and contractors that may have access to any Confidential Information.

      3. Each party's obligations under this clause will survive termination of these Terms.

      4. The provisions of clauses 4.1.1, 4.1.2 and 4.1.3 shall not apply to any information which:

         1.  is or becomes public knowledge other than by a breach of this clause;

         2.  is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

         3.  is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

         4.  is independently developed without access to the Confidential Information.

      5.  Privacy: 
         Cerebiz maintains a privacy policy that sets out the parties' obligations in respect of data. You should read that policy at www.cerebiz.com/privacy  since You will be taken to have accepted it when You accept these Terms

4.  Intellectual Property

   1. General: 
      Title to, and all Intellectual Property Rights in the Design, Data Structures, Algorithms, Data Outputs including Displays and Reports, Software Source and Object Code, On-Boarding, Delivery and Support Services, Website, Academy, and any documentation relating to the Software remain the property of Cerebiz (or its licensors). You may not copy, reproduce, reverse engineer, incorporate or publish any part of the property of Cerebiz without written prior authorisation from the CEO of Cerebiz and you may not use or share any Cerebiz property except as specifically provided for in these Terms of Use.

   2. Data: Title to, and all Intellectual Property Rights, in your Data remain your property. However, your access to the Data is contingent on full payment any fees due for the Trial Subscription Period. You must at all times maintain Your own copies of your Data inputted into or synchronised with the Software. Cerebiz adheres to its best practice policies and procedures to prevent Data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Cerebiz expressly excludes liability for any loss of Data no matter how caused.

   3. Third-party applications and your Data. 
      If You enable third-party applications for use with the Software, You acknowledge that Cerebiz may allow providers of those third-party applications to access your Data as required for the interoperation of such third-party applications with the Software. We shall not be responsible for any disclosure, modification or deletion of your Data resulting from any such access by third-party application providers.

5.  Warranties And Acknowledgements

   1. Acknowledgement: 
      You acknowledge that:

      1. You are authorised to use the Software and the Website and to access the information that You access using the Software, Services, and the Website (whether that information is your own or that of anyone else).

      2. If You are using the Software and accessing the Website on behalf of or for the benefit of an organisation (whether a body corporate or not) then Cerebiz will assume that You have the right to do so and that organisation will be liable for your actions or omissions (including any breach of these Terms).

      3.  The provision of, access to, and use of, the Software is on an 'as is, where is' basis and at your own risk.

      4. Cerebiz does not warrant that the use of the Software and Services will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Software and Services, including public telephone services, SMS message services, email services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Software and Services. Cerebiz is not in any way responsible for any such interference or prevention of your access or use of the Software and Services.

      5. It is your sole responsibility to determine that the Software and Services meet the needs of your business.

   2. No warranties: 
      Cerebiz gives no warranty about the Software and Services. Without limiting the foregoing, Cerebiz does not warrant that the Software and Services will meet your requirements or that it will be suitable for your purposes. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.

   3. Consumer guarantees: 
      You warrant and represent that You are acquiring the right to access and use the Software and Services and agreeing to these Terms 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 Software, the Services, the website or these Terms.
       

6.  Limitation Of Liability

   1. To the maximum extent permitted by law, Cerebiz excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of Data, profits and savings) or damage resulting, directly or indirectly, from the use of, or reliance on, the Software and Services.

   2. If You suffer loss or damage as a result of Cerebiz 's negligence or failure to comply with these Terms, any claim by You against Cerebiz arising from Cerebiz 's negligence or failure will be limited in respect of any one incident, or series of connected incidents to any fees paid by You in relation to the Subscription Period.

   3. If You are not satisfied with the Software and Services, your sole and exclusive remedy is to terminate these Terms in accordance with Clause 7.

7.  Termination

   1. Early termination of Subscription 
      There will be no refund for any fees paid in case of early termination of a Subscription Period by You.

   2. Breach: 
      If You:

      1.  breach any of these Terms and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;

      2.  breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.4 or any payment more than 14 days overdue); or

      3. the paying subscriber goes into liquidation or has a receiver or manager appointed of any of its assets or becomes insolvent, or makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction,
         Cerebiz may take any or all of the following actions, at its entire discretion:

         1. Terminate these Terms and your use of the Software and Services, and the Website;

         2. Suspend for any definite or indefinite period of time, your use of the Software and Services, and the Website;

         3. Take either of the actions in sub-clause 4 and 5 of this clause 7(3) in respect of any other persons in your organisation or who have access to your information or that of your organisation.

   3. Accrued Rights: 
      Termination of these Terms is without prejudice to the rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:

      1. remain liable for any accrued charges and amounts which become due for payment before or after termination; and

      2. immediately cease to use the Software and the Website.

   4. Survival upon Expiry or termination: 
      Clauses 3.1, 3.7, 4, 5, 6, 7, and 10 survive the expiry or termination of any Subscription to Cerebiz upon these Terms.
       

8.  Support service

   1. Technical Problems: 
      In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Cerebiz. If You still need technical help, please check the support provided online by Cerebiz or failing that email us at support@cerebiz.com

   2. Service availability: 
      Whilst Cerebiz intends that the Software should be available 24 hours a day, seven days a week, it is possible that on occasion it may be unavailable to permit maintenance or other development activity to take place. 
      
      If for any reason Cerebiz has to interrupt the Software for longer periods than Cerebiz would normally expect, we will use reasonable endeavours to publish in advance details of such activity on the Website.
       

9.  General

   1. Entire agreement:           
      These Terms, together with the Cerebiz Privacy Policy and the Terms of any other notices or instructions given to You under these Terms, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Cerebiz relating to the Software and the other matters dealt with in these Terms.

   2. Waiver: 
      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.

   3. Delays: 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.

   4. No Assignment: 
      You may not assign or transfer any rights to any other person without Cerebiz's prior written consent.

   5. Governing law and jurisdiction: 
      If You accept these Terms then South Australian law governs these Terms and You submit to the exclusive jurisdiction of the courts of South Australia for all disputes arising out of or in connection with these Terms, without reference to any conflicts of laws.

   6. Severability: 
      If any part or provision of these Terms 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.

   7. Notices: 
      Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Cerebiz must be sent to support@cerebiz.com or to any other email address notified by email to You by Cerebiz. Notices to You will be sent to the email address which You provided when setting up your Subscription details

   8. Rights of Third Parties: 
      A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.

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