Terms and Conditions

Emac (Australia) Master Cloud Services Terms and Conditions


This Master Agreement (“Agreement”) is between Emac (Australia) Pty LTD, and Customer. Parts of this Agreement may not apply to a particular Customer. This Agreement may be used as a digital or paper Document.

Part One – Introduction

Emac regards customer privacy as an important part of our relationship with our customers. The following privacy policy applies to all Emac users, and conforms to Internet privacy standards. Please read the Terms and Conditions thoroughly.

Orders
1.1. If you purchase a product or service from us, we may request certain personally identifiable information from you. You may be required to provide contact information (such as name, Email, and postal address) and financial information (such as credit card number, expiration date). We use this information for billing purposes and to fill your orders. If we have trouble processing an order, we will use this information to contact you.
2. Communications
2.1. Emac uses personally identifiable information for essential communications, such as Emails, accounts information, and critical service details. We may also use this information for other purposes, including some promotional Emails.
2.2. If at any time a customer wishes not to receive such correspondence, they can request to be removed from any mailing lists by emailing us at support@emac.com.au
3. Changes to Privacy Policy
3.1. If we decide to change our privacy policy, we will post those changes to this privacy statement, the homepage, and other places we deem appropriate so that you are aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it.
3.2 We reserve the right to modify this privacy statement at any time, so please review it frequently. If we make material changes to this policy, we will notify you here, by Email, or by means of a notice on our homepage.
4. Links
4.1 Links on the Emac site to external entities are not covered within this policy. The terms and conditions set out in this privacy statement only cover the domain name of Emac.
5. Emac Security Policy
5.1 Emac uses the eWAY Payment Gateway for its online credit card transactions. eWAY processes online credit card transactions for thousands of Australian merchants, providing a safe and secure means of collecting payments via the Internet.
5.2 All online credit card transactions performed on this site using the eWAY gateway are secured payments.
• Payments are fully automated with an immediate response.
• Your complete credit card number cannot be viewed by Emac or any outside party.
• All transactions are performed under 128 Bit SSL Certificate.
• All transaction data is encrypted for storage within eWAY’s bank-grade data centre, further protecting your credit card data.
• eWAY is an authorised third party processor for all the major Australian banks.
• eWAY at no time touches your funds; all monies are directly transferred from your credit card to the merchant account held by Emac. (For more information about eWAY and online credit card payments, please visit www.eWAY.com.au)

Part Two – Subscription Services

6. Access to the Subscription ServicesEmac (Australia) grants Customer a right to receive the Subscription Services.
6.1. The Software is located on servers that are controlled by Emac (Australia). Customer may access the Software, but has no right to receive a copy of the object code or source code to the Software.
6.2. Customer must have a high speed Internet connection, and hardware and software that is compatible with the Subscription Services, as set out in the Documentation. None of these things are Emac (Australia)’s responsibility.
6.3. Emac (Australia) regularly upgrades and updates the Subscription Services. This means that the Subscription Services are continually evolving. Some of these changes will occur automatically, while others may require Customer to schedule and implement the changes. The changes may also mean that Customer needs to upgrade its equipment in order to make efficient use of the Subscription Services. Emac (Australia) will provide Customer with advance notification in this case.
6.4. Emac (Australia) recognizes that Customer may have legitimate business reasons for not upgrading to a new version of the Subscription Services as soon as the version becomes available. However, Emac (Australia) will not support old versions indefinitely. Emac (Australia) has policy that sets out what happens when old versions reach end-of-life (to view the current policy, click on this link). When an old version used by Customer is at end-of-life, Emac (Australia) may remove Customer’s access to that version and upgrade Customer to a new version.
6.5 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;
7. Conditions of Use
The Subscription Services provided to Customer are non-exclusive, non-transferable, and are for Customer’s internal business use only. Customer’s right to use the Subscription Services is conditional upon the following. Customer may not:
7.1. transfer to any other person any of its rights to use the Subscription Services;
7.2. sell, rent or lease the Subscription Services;
7.3. make the Subscription Services available to anyone who is not an “Authorized User”. An Authorized User is an employee of Customer, or of a person to whom Customer has outsourced services, who is authorized to access the Software as either a named or concurrent user;
7.4. create any derivative works based upon the Subscription Services or Documentation;
7.5. copy any feature, design or graphic in, or reverse engineer the Software;
7.6. access the Subscription Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if Customer is an employee of a Emac (Australia) competitor;
7.7. use the Subscription Services in a way that violates any criminal or civil law;
7.8. load test the Subscription Services in order to test scalability; or,
7.9. exceed the usage limits listed in the Order Form.
8. Customer Data
8.1. Customer must provide all data for use in the Subscription Services, and Emac (Australia) is not obliged to modify or add to the Customer Data. Customer is solely responsible for the content and accuracy of the Customer Data.
8.2. The Customer Data belongs to Customer, and Emac (Australia) makes no claim to any right of ownership in it.
8.3. Emac (Australia) must keep the Customer Data.
8.4. Emac (Australia) must use the Customer Data strictly as necessary to carry out its obligations under this Agreement, and for no other purpose. However, Emac (Australia):
8.4.1. may observe and report back to Customer on Customer’s usage of the Subscription Services, and make recommendations for improved usage of the Subscription Services;
8.4.2. may identify trends and publish reports on its findings provided the reports include data aggregated from more than one customer site and do not identify Customer; and,
8.4.3. must ensure that the data center containing the Customer Data meets the following physical and electronic security requirements: (i) single point of entry; (ii) main access monitored with additional access for emergency purposes only; (iii) surveillance cameras in facility; (iv) access validation with identity check; (v) access only to persons on Emac (Australia) approved access list; (vi) log-in validation; (vii)creation of accounts only as verified by Emac (Australia) or sub-contracted hosting provider; (viii) access to servers via encrypted means; and, (ix) servers running behind secure firewall.
8.5. Emac (Australia) must comply with the principles of the EU Data Protection Directive 95/46 and the Telecoms Data Protection Directive as amended (“the Directives”) and any successor legislation, in relation to any “personal data” received by or originating from Customer and Customer clients, to the extent that the Directives apply to “data processors”.
8.6. Emac (Australia) must take reasonable technical and organizational measures to keep personal data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access; and, must deal with the information only in accordance with Customer’s instructions, provided they are reasonable and lawful.
8.7. Emac (Australia) must back up Customer Data once in each 24-hour period.
9. Subscription Services Warranties
Emac (Australia) warrants that: (i) the Subscription Services will function substantially as described in the Documentation; and (ii) Emac (Australia) owns or otherwise has the right to provide the Subscription Services to Customer under this Agreement. The remedies set out in this Section 4 are Customer’s exclusive remedies for breach of either warranty.
9.2. If the normal operation, possession or use of the Subscription Services by Customer is found to infringe any third party intellectual property right or Emac (Australia) believes that this is likely, Emac (Australia) must, at its option, either (i) obtain a license from such third party for the benefit of Customer; (ii) modify the Subscription Services so that they no longer infringe; or (iii) if neither of these options is commercially feasible, terminate the relevant Order Form under this Agreement
9.3. However, Emac (Australia) has no warranty obligations for:
9.3.1. The extent that Software has been modified by Customer or any third party, unless the modification has been approved in writing by Emac (Australia);
9.3.2. Problems in the Subscription Services caused by any third party software or hardware, by accidental damage or by other matters beyond Emac (Australia)’s reasonable control.

Part Three – Professional Services

10. Professional Services Warranties
Emac (Australia) warrants that (i) the Work Product will substantially conform to the Statement of Work; and (ii) the Professional Services will be performed with reasonable skill, care and diligence. The remedies are Customer’s exclusive remedies for breach of either warranty.
10.1. If the Professional Services do not conform to the Statement of Work or are not performed with reasonable skill, care and diligence, Emac (Australia) shall re-perform the Professional Services to the extent necessary to correct the defective performance.
11. Customer’s Responsibilities
Customer must provide Emac (Australia) with all information, access, and full good faith co-operation reasonably necessary to enable Emac (Australia) to deliver the Professional Services, and must do anything that is identified in the Statement of Work as Customer’s responsibility. If Customer fails to do this, Emac (Australia) will be relieved of its obligations to the extent that the obligations are dependent upon Customer’s performance.
12. Intellectual Property Ownership. Emac (Australia) solely owns the intellectual property in the Work Product. Upon payment in full of any amounts due for Professional Services, Customer shall have a non-exclusive, non-transferable right to use the Work Product for Customer’s internal business purposes. This right shall continue for so long as, and be subject to the same terms and conditions as the right to use the Subscription Services.

Part Four – General

13. Term of Agreement
This Agreement start on the date that Customer signs an Order Form and ends when Emac (Australia) no longer is obliged to provide Customer with Subscription Services or Professional Services under any Order Forms.
14. Payment obligations
Customer must pay the fees listed in the relevant Order Form on a monthly basis.
14.1 An invoice for the access fee will be issued on the first day of each month. All invoices will include the access fee for the preceding period one month of use. EMAC will continue invoicing your account monthly until this Agreement is terminated in accordance with clause 15.
14.2 All EMAC invoices will be sent to you, or to a billing contact whose details are provided by you, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 10 days of the invoice date. You are responsible for payment of all taxes and duties in addition to the Access Fee.
14.3. Customer must pay a finance charge on any overdue payment of one and one-half percent (1-1/2%) for each month or portion of a month that the payment is overdue, or the highest interest rate permitted by applicable law, whichever is the lower. Interest shall compound monthly. The fees do not include any taxes, and Customer shall pay any sales, use, value added or other taxes or import duties (other than corporate income taxes payable by Emac (Australia)) due as a result of any amounts paid to Emac (Australia). Customer shall bear all of Emac (Australia)’s costs of collection of overdue fees, including reasonable attorneys’ fees.
14.4. If Customer initially purchases Subscription Services for a term, and subsequently orders additional product, the purchase price for the additional product shall be pro-rated so that the added subscriptions terminate on the same day as the initial subscription.
15. Termination and Suspension.
15.1. Either party may terminate rights granted under a particular Order Form if the other breaches any material term of the Order Form (including a material term of this Agreement insofar as it applies to the Order Form) and the breach is not cured within 30 days of written notice. Customer’s breach of this Agreement shall be considered a material breach.
15.2. Instead of terminating rights granted to a Customer under an Order Form, Emac (Australia) may suspend the provision of Subscription Services to Customer for a period of up to 45 days. At any time during that period, Emac (Australia) may terminate the rights granted to Customer.
15.3. If Emac (Australia) terminates an Order Form under this Agreement because of non-payment by Customer, all unpaid fees for the remainder of the Subscription Term immediately fall due for payment.
15.4. Upon termination of Customer’s Subscription Service, Emac (Australia) must promptly provide Customer with all Customer Data in comma separated value (CSV) format. However, Emac (Australia) may retain Customer Data in backup media for an additional period of up to 12 months, or longer if required by law.
16. Warranty Disclaimer
Except as expressly provided in this agreement, the subscription services, work product and professional services are provided with no other warranties of any kind, and Emac (Australia) disclaims all other warranties, express or implied, including without limitation any warranty of merchant ability or fitness for a particular purpose. Emac (Australia) does not warrant that the use of the subscription services will be uninterrupted or error-free.
17. Limitation of Liability
Neither party shall be liable under this agreement for any indirect, special, incidental, punitive or consequential damages (including without limitation damages for loss of goodwill, work stoppage, computer failure or malfunction, lost or corrupted data, lost profits, lost business or lost opportunity), or any other similar damages under any theory of liability (whether in contract, tort, strict liability or any other theory), even if the other party has been informed of this possibility. Customer assumes all responsibility for the selection of the subscription services, software and documentation necessary to achieve customer’s intended results, and for the use and results of the subscription services or work product. Each party’s total liability for any direct loss, cost, claim or damages of any kind related to the relevant order form shall not exceed the amount of the fees paid or payable by customer to Emac (Australia) under such relevant order form during the 24 months before the event giving rise to such loss, cost, claim or damages. This limitation on liability was and is an express part of the bargain between Emac (Australia) and customer and was a controlling factor in the setting of the fees payable to Emac (Australia). However, there is no limitation on direct loss, claim or damages arising as a result of an infringement of Emac (Australia)’s intellectual property rights, or in connection with a party’s indemnification obligations.
18. Confidentiality
18.1. The Subscription Services, Software, Documentation and Work Product contain valuable trade secrets that are the sole property of Emac (Australia), and Customer agrees to use reasonable care to prevent other parties from learning of these trade secrets. Customer must take reasonable care to prevent unauthorized access to or duplication of the Subscription Services, Software, Documentation, and Work Product.
18.2. The Customer Data may include valuable trade secrets that are the sole property of Customer. Emac (Australia) must take reasonable care to prevent other parties from learning of these trade secrets.
18.3. Sections 18.1 and 18.2 do not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
19. Indemnification by Emac (Australia)
Emac (Australia) must indemnify and hold harmless Customer, its affiliates, directors and employees from any damages finally awarded against Customer (including, without limitation, reasonable costs and legal fees incurred by Customer) arising out of any third party suit, claim or other legal action alleging that the use of the Subscription Services, Documentation or Work Product by Customer infringes any copyright, trade secret or patent, (“Legal Action”). Emac (Australia) must also assume the defence of the Legal Action.
19.1. However, Emac (Australia) shall have no indemnification obligations for any Legal Action arising out of: (i) a combination of the Subscription Services, Software or Work Product with software or products not supplied, or approved in writing by Emac (Australia); (ii) any repair, adjustment, modification or alteration to the Subscription Services by Customer or any third party, unless approved in writing by Emac (Australia); or (iii) any refusal by Customer to install and use a non-infringing version of the Subscription Services, or Work Product offered by Emac (Australia) state the entire liability of Emac (Australia) with respect to any intellectual property infringement by the Subscription Services, Software or Work Product.
19.2. Customer must give written notice to Emac (Australia) of any Legal Action no later than 30 days after first receiving notice of a Legal Action, and must give copies to Emac (Australia) of all communications, notices and/or other actions relating to the Legal Action. Customer must give Emac (Australia) the sole control of the defence of any Legal Action, must act in accordance with the reasonable instructions of Emac (Australia) and must give Emac (Australia) such assistance as Emac (Australia) reasonably requests to defend or settle such claim. Emac (Australia) must conduct its defence at all times in a manner that is not adverse to Customer’s interests. Customer may employ its own counsel to assist it with respect to any such claim. Customer must bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Emac (Australia) or its counsel, or because Emac (Australia) fails to assume control of the defence. Customer must not settle or compromise any Legal Action without Emac (Australia)’s express written consent. Emac (Australia) shall be relieved of its indemnification obligation if Customer materially fails to comply.
20. Indemnification by Customer
Customer must indemnify and hold harmless Emac (Australia), its affiliates, directors, and employees from any damages finally awarded against Emac (Australia) (including, without limitation, reasonable costs and legal fees incurred by Customer) arising out of any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the Customer Data, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Customer Data (“Legal Claim”).
20.1. Emac (Australia) must give written notice to Customer of any Legal Claim no later than 30 days after first receiving notice of a Legal Claim, and must give copies to Customer of all communications, notices and/or other actions relating to the Legal Claim. Emac (Australia) must give Customer the sole control of the defence of any Legal Claim, must act in accordance with the reasonable instructions of Customer and must give Customer such assistance as Customer reasonably requests to defend or settle such claim. Customer must conduct its defence at all times in a manner which is not adverse to Emac (Australia)’s interests. Emac (Australia) may employ its own counsel to assist it with respect to any such claim. Emac (Australia) must bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Customer or its counsel, or because Customer fails to assume control of the defence. Emac (Australia) must not settle or compromise any Legal Claim without Customer’s express written consent. Customer shall be relieved of its indemnification obligation if Emac (Australia) materially fails to comply.
21. Publicity.
21.1. Emac (Australia) may list Customer as a customer and use Customer’s logo on Emac (Australia)’s website, on publicly available customer lists, and in media releases.
22. Miscellaneous.
22.1. This Agreement together with the Order Form represent the entire agreement of the parties, and supersede any prior or current understandings, whether written or oral. If there is a conflict between the Agreement and an Order Form, the Order Form will prevail.
22.2. This Agreement may not be changed or any part waived except in writing by the parties.
22.3. This Agreement will be governed by the law (excluding its choice of law rules). The parties consent to the exercise of exclusive jurisdiction by the state or federal courts for any claim relating to this Agreement.

Part Five – Definitions

23. Glossary
23.1. “Customer Data” means any electronic information stored in the Software database.
23.2. “Documentation” means user documentation provided electronically by Emac (Australia) for use with the Subscription Services, as periodically updated.
23.3. “Order Form” means a document provided by Emac (Australia) and signed by Customer that describes Emac (Australia)’s service offering.
23.4. “Professional Services” means the training, consulting, development and other professional services identified on a Statement of Work, but does not include the Subscription Services.
23.5. “Statement of Work” means a document provided by Emac (Australia) and signed by Customer that describes the Professional Services to be provided by Emac (Australia) to Customer.
23.6. “Software” means the software whose functionality is described in the Order Form.
23.7. “Subscription Services” means the hosted customer experience solutions identified in an Order Form, and any modifications periodically made by Emac (Australia), but does not include the Professional Services.
23.8. “Subscription Term” means the period of time during which Emac (Australia) is required to provide Customer with the Subscription Services.
23.9. “Work Product” means object code, source code, flow charts, documentation, information, reports, test results, findings, ideas and any works and other materials developed by Emac (Australia) in providing the Professional Services to Customer.