Terms of Service

Effective starting: 21 March 2017

Introduction

Thanks for using NEX! These terms of service ("Terms") cover your use and access to the services, client software, hardware, and websites ("Services") provided by NEX Data Management Systems Pty Ltd (ABN 57 607 179 779). Our Privacy Policy explains how we collect and use your information, our Acceptable Use Policy outlines your responsibilities when using our Services, while our Terms and Conditions of Sale explains sale of hardware, warranty, and quoted works. By using our Services, you're agreeing to be bound by these Terms, and to review our Privacy Policy, Acceptable Use Policy, and Terms and Conditions of Sale. If you're using our Services for a company or organisation, you're agreeing to these Terms on behalf of that company or organisation.

Your Data & Your Permissions

When you use our Services, you provide us with things like your personal information, acquired building data, preferences, and so on ("Your Data"). Your Data is yours. These Terms don't give us any rights to Your Data except for the limited rights that enable us to offer the Services.

We need your permission to do things like hosting Your Data, backing it up, and sharing it when you ask us to. Our Services also provide you with features like dashboards, reports, and alerts. These and other features may require our systems to access, store and process Your Data. You give us permission to do those things, and this permission extends to our affiliates and trusted third parties we work with.

Your Responsibilities

You're responsible for your conduct. You must comply with our Acceptable Use Policy.

We may review your conduct and content for compliance with these Terms and our Acceptable Use Policy. With that said, we have no obligation to do so. We aren't responsible for actions or behaviour of users via the Services.

Help us keep you informed and Your Data protected. Safeguard your password to the Services, and keep your account information current. Don't share your account credentials or give others access to your account.

You may use our Services only as permitted by applicable law, including export control laws and regulations. Finally, our Services are not intended for and may not be used by people under the age of 13. By using our Services, you are representing to us that you're over 13.

Hardware

Some of our Products include hardware ("Hardware") devices (for example Controllers and associated tools). So long as you comply with these Terms, we give you a limited, non-exclusive, non-transferable, revocable license to use the Hardware, solely to access the Services. Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so.

We make no warranty, to the extent permitted by law, including the Australian Consumer Law, regarding the accuracy or reliability of Hardware or the connectivity to these devices or our Services (for example the local network or internet connection).

You must also comply with our Terms and Conditions of Sale which details the sale of hardware, warranty, and quoted works.

Software

Some of our Services allow you to download client software ("Software") which may update automatically. So long as you comply with these Terms, we give you a limited, non-exclusive, non-transferable, revocable license to use the Software, solely to access the Services. Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so.

Accuracy, completeness, and timeliness of data

The information, acquired data, and processed data provided by our Services are not comprehensive and are intended to provide a summary of the monitored or controlled systems. While we use all reasonable attempts to ensure the accuracy and completeness, and timeliness of the information, acquired data, and processed data, to the extent permitted by law, including the Australian Consumer Law, we make no warranty regarding the information or data provided by our Services or websites.

We make no warranty, to the extent permitted by law, including the Australian Consumer Law, regarding the accuracy or reliability of devices connected to our Services (for example power meters, sensors, and internet feeds) or the connectivity to these devices or our Services (for example the local network or internet connection).

We are not liable to you or anyone else if interference with or damage to your computer systems occurs in connection with the use of Services. You must take your own precautions to ensure that whatever you select for your use from our Software is free of viruses or anything else (such as worms or Trojan horses) that may interfere with or damage the operations of your computer systems.

Paid Accounts

Billing

You can increase the number of Data Points, Users, and add extra features to your account. We'll automatically bill you once per month until cancellation. If you're on an annual plan (for example, as part of project works), we'll send you a notice email reminding you that your subscription is about to switch to monthly billing within a reasonable period of time prior to the changeover date. You're responsible for all applicable taxes, and we'll charge tax when required to do so.

No Refunds

You may cancel your NEX Account at any time. Refunds are only issued if required by law.

Downgrades

Your NEX subscription will remain in effect until it's cancelled or terminated under these Terms. If you don't pay for your subscription on time, we reserve the right to suspend or terminate your NEX Account.

Changes

We may change the fees in effect but will give you advance notice of these changes via a message to the email address associated with your account.

Termination

You're free to stop using our Services at any time. We reserve the right to suspend or terminate your access to the Services with notice to you if:

(a) you're in breach of these Terms,

(b) you're using the Services in a manner that would cause a real risk of harm or loss to us or other users, or.

We'll provide you with reasonable advance notice via the email address associated with your account to remedy the activity that prompted us to contact you and give you the opportunity to export Your Data from our Services. If after such notice you fail to take the steps we ask of you, we'll terminate or suspend your access to the Services.

We won't provide notice before termination where:

(a) you're in material breach of these Terms,

(b) doing so would cause us legal liability or compromise our ability to provide the Services to our other users, or

Discontinuation of Services

We may decide to discontinue the Services in response to unforeseen circumstances beyond NEX's control or to comply with a legal requirement. If we do so, we'll give you reasonable prior notice so that you can export Your Data from our systems. If we discontinue Services in this way before the end of any fixed or minimum term you have paid us for, we'll refund the portion of the fees you have pre-paid but haven't received Services for.

Products & Services "AS IS"

We strive to provide great Products and Services, but there are certain things that we can't guarantee. TO THE FULLEST EXTENT PERMITTED BY LAW, NEX AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES. THE SERVICES ARE PROVIDED "AS IS." WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL NEX, ITS AFFILIATES, SUPPLIERS, OR DISTRIBUTORS BE LIABLE FOR:

(a) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR

(b) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, REGARDLESS OF LEGAL THEORY.

THESE EXCLUSIONS OR LIMITATIONS WILL APPLY REGARDLESS OF WHETHER OR NOT NEX OR ANY OF ITS AFFILIATES HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES.

IF YOU USE THE SERVICES FOR ANY COMMERCIAL, BUSINESS OR RE-SALE PURPOSE, NEX, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY. NEX AND ITS AFFILIATES AREN'T RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES.

OTHER THAN FOR THE TYPES OF LIABILITY WE CANNOT LIMIT BY LAW (AS DESCRIBED IN THIS SECTION), WE LIMIT OUR LIABILITY TO YOU TO THE GREATER OF $50 AUD OR 100% OF ANY AMOUNT YOU'VE PAID UNDER YOUR CURRENT SERVICE PLAN WITH NEX.

Resolving Disputes

We want to address your concerns without needing a formal legal case. Before filing a claim against NEX, you agree to try to resolve the dispute informally by contacting dispute@nexdata.net.au. We'll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 60 days of submission, you or NEX may bring a formal proceeding.

Entire Agreement

These Terms constitute the entire agreement between you and NEX with respect to the subject matter of these Terms, and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. These Terms create no third party beneficiary rights.

Waiver, Severability, and Assignment

NEX's failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. NEX may assign its rights to any of its affiliates or subsidiaries, or to any successor in the interest of any business associated with the Services.

Modifications

We may revise these Terms from time to time, and will always post the most current version on our website. If a revision meaningfully reduces your rights, we will notify you (by, for example, sending a message to the email address associated with your account, posting on our website, or with a notification after logging in to the NEX Cloud website). By continuing to use or access the Services after the revisions come into effect, you agree to be bound by the revised Terms.