Sign Upclose

Fill In The Centre Details
Fill In The Organisation Details
  • I agree to Licence, Privacy Policy and Terms & Conditions

Let's Get Started! Kids Xap™ is a feature rich platform packed to the brim with BI tools that help you make smart decisions based on facts not impulse.
We're Here To Help
1300 543 792

Create Demo For Your Centreclose

Let's Get Started! Kids Xap™ is a feature rich platform packed to the brim with BI tools that help you make smart decisions based on facts not impulse.
We're Here To Help
1300 543 792

XAP TECHNOLOGIES PTY LTD – WEBSITE TERMS OF USE

Welcome to our website. This website is owned and operated by Xap Technologies Pty Ltd (ABN 169 623 009) its successors and assignees (we, our or us). It is available at: www.xaptech.com.au and www.kidsxap.com.au (collectively referred to as Site) and may be available through other addresses or channels.
These Terms of Use (Terms) govern your, the person, organisation or entity that uses our Site (referred to as you or your) use of our Site and form a contract between you and us if you use the Site. Please read these Terms carefully. If you have any questions, please contact us using the contact details below. Your use of the Site indicates that you have had sufficient opportunity to access these Terms and that you have read and accepted these Terms.
1. Information: The information, including statements, opinions and documents, contained in this Site (Information) is for general information purposes only. It does not take into account your specific needs, objectives or circumstances, and it is not advice. Any reliance you place on the Information is at your own risk. Before acting on any Information, we recommend that you consider whether it is appropriate for your circumstances, carry out your own research and seek professional advice, where necessary.
2. Amendment: The Information and Terms may be amended without notice from time to time in our sole discretion. Your use of our Site following any amendments indicates that you accept the amendments. You should check the Terms regularly to ensure you are aware of any changes, and only proceed to use the Site if you accept and will comply with the new Terms.
3. Your warranties: You warrant to us that you have the legal capacity to enter these Terms and form a contract, and that you have read and understood these Terms, before using the Site.
4. Licence to use the Site: We grant you a non-exclusive, royalty-free, revocable, worldwide, non-transferable right and licence to use the Site for your personal, non-commercial use, in accordance with these Terms. All other uses are prohibited without our prior written consent.
5. Prohibited conduct: You must not:
(a) Use the Site for any activities, or post or transmit any material from the Site:

-unless you hold all necessary rights, licences and consents to do so;
-that infringes the intellectual property or other rights of any person;
-that would cause you or us to breach any law, regulation, rule, code or other legal obligation;
-that defames, harasses, threatens, menaces, offends or restricts any person;
-that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy; or
-that would bring us, or the Site, into disrepute;

(b) Interfere with or inhibit any user from using the Site;
(c) Use the Site to send unsolicited email messages;
(d) Attempt to or tamper with, hinder or modify the Site, knowingly transmit viruses or other disabling features, or damage or interfere with the Site, including but not limited to the use of trojan horses, viruses, or piracy or programming routines that may damage or interfere with the Site; or
(e) Facilitate or assist another person to do any of the above acts.
6. Copyright and intellectual property rights: Our Site contains material which is owned by or licensed to us and is protected by Australian and international laws, including but not limited to the trademarks, trade names, software, content, design, images, graphics, appearance, layout and look of our Site. We own the copyright which subsists in all creative and literary works displayed on the Site.
You agree that, as between you and us, we own all intellectual property rights in the Site, and that nothing in these Terms constitutes a transfer of any intellectual property rights. Your use of the Site does not grant you a licence to, or act as a right to, use any of the intellectual property, whether registered or unregistered, displayed on the Site without the express written permission of the owner.
You must not breach any copyright or intellectual property rights connected with the Site. This includes but is not limited to:
(a) altering or modifying any of the code or the material on the Site;
(b) causing any of the material on the Site to be framed or embedded in another website;
(c) creating derivative works from the content of the Site; or
(d) using the Site for commercial purposes.
7. Republishing: You may republish, copy, distribute, transmit, or publicly display (in hard copy, soft copy or online) material on the Site on the following grounds:
(a) you must make no alterations to the material;
(b) you must attribute the material to our Site, including linking back to our Site where possible; and
(c) you must not do so in a way that could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy, or that would bring us, or the Site, into disrepute.
8. Privacy: We are committed to protecting your privacy. Please read our Privacy Policy which is available on the Site. By agreeing to these Terms, you agree to accept our Privacy Policy.
9. Your content: If you choose to add any content on the Site, you:
(a) warrant to us that you have all necessary rights to post the content;
(b) grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use that content in any way (including but not limited to, by reproducing, changing, and communicating the content to the public) and permit us to authorise any other person to do the same thing; and
(c) you consent to any act or omission which would otherwise constitute an infringement of your moral rights, and if you add any content in which any third party has moral rights, you must ensure that the third party consents in the same manner.
10. Third party information: The Site may contain third party information, including but not limited to user comments, guest articles and advertisements (Third Party Information). We do not control, recommend, endorse, sponsor or approve Third Party Information, including any information, products or services mentioned in Third Party Information. You should make your own investigations with respect to the suitability of Third Party Information for you.
11. Third party links and websites: This Site may contain links to websites owned by third parties (Third Party Sites). We do not control, recommend, endorse, sponsor or approve Third Party Sites, including any information, products or services mentioned on Third Party Sites. You should make your own investigations with respect to the suitability of Third Party Sites for you.
12. Reservation of rights: We reserve the right to amend or delete any and all of your content, Third Party Information and/or Third Party Sites, and to block any user, if we believe that there is a violation of these Terms, or for any other reason, in our sole discretion.
13. Delays and outages: We are not responsible for any delays or interruptions to the Site. We will use commercially reasonable efforts to minimise delays and interruptions. We cannot warrant that the Site will be available at all times or at any given time. We may at any time and without notice to you, discontinue the Site in whole or in part. We are not responsible for any loss, cost, damage or liability that may result from our discontinuance of the Site.
14. Limitation of liability: To the extent permitted by law, we exclude all liability for any loss, damage, costs or expense, whether direct, indirect, incidental, special and/or consequential including loss of profits, suffered by you or any third party, or claims made against you or any third party which result from any use of or access to, or any inability to use or access, the Site. To the extent permitted by law, we exclude all representations, guarantees, warranties or terms (whether express or implied) other than those expressly set out in these Terms, and the Australian Consumer Law to the extent applicable.
15. Disclaimer: The Site is provided to you without warranties, express or implied, including but not limited to implied warranties of merchantability and/or fitness for a particular purpose. We do not warrant that the functions contained in any material on the Site or your access to the Site will be error free, that any defects will be corrected, that the Site or the server which stores and transmits material to you are free of viruses or any other harmful components, or that the Site will operate on a continuous basis or be available at any time.
While we endeavour to keep the Site and Information up to date and correct, we make no representations, warranties or guarantee, express or implied, about:
(a) the completeness, accuracy, reliability, suitability or availability of any Information, images, products, services, or related graphics contained on the Site for any purpose;
(b) Third Party Information; or
(c) Third Party Sites. You read, use, and act on information contained on the Site, Third Party Information and/or Third Party Sites, strictly at your own risk.
16. Indemnity: By using the Site, you agree to defend and fully indemnify and hold us (and our officers, directors, employees, contractors and agents) harmless from and against all claims, actions, suits, demands, damages, liabilities, costs or expenses (including legal costs and expenses on a full indemnity basis), including in tort, contract or negligence, arising out of or connected to:
(a) your use of or access to the Site;
(b) any breach by you of these Terms; or (c) any wilful, unlawful or negligent act or omission by you.
This defence and indemnification obligation will survive these Terms and your use of the Site. These Terms, and any rights and licences granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction.
17. Breach: You may only use the Site for lawful purposes and in a manner consistent with the nature and purpose of the Site. By using the Site, you agree that the exclusions and limitations of liability set out in these Terms are reasonable. If you do not think they are reasonable you must not use the Site. We reserve the right to remove any and all content found to be in breach of intellectual property rights, including without limitation copyright, or which in our opinion is deemed inappropriate and/or illegal. If you breach these Terms, we reserve the right to block you from the Site and to enforce our rights against you. If we do not act in relation to a breach of these Terms by you, this does not waive our rights to act with respect to subsequent or similar breaches of these Terms by you. All rights not expressly granted in these Terms are reserved.
18. Exclusion of competitors: You are prohibited from using the Site, including the Information, in any way that competes with our business. If you breach this term, we will hold you responsible for any loss that we may sustain, and hold you accountable for any profits that you may make from non-permitted use. We reserve the right to exclude any person from using the Site and Information, in our sole discretion.
19. Enforceability: If any provision of these Terms is found to be illegal, invalid or unenforceable by a court of law, then the provision will not apply in that jurisdiction and is deemed not to have been included in these Terms in that jurisdiction. This will not affect the remainder of these Terms, which continue in full force and effect.
20. Further assurances: Each party must, at its own expense, do everything reasonably necessary to give full effect to these Terms and the events contemplated by them.
21. Termination: These Terms are effective until terminated by us, which we may do at any time and without notice to you. In the event of termination, all restrictions imposed on you by these Terms and limitations of liability set out in the Terms will survive.
22. Disputes: You agree to use your best endeavours to use mediation and negotiation to resolve any dispute arising out of or relating to these Terms, prior to resorting to an external dispute resolution process. Please notify us in writing of any dispute you may have.
23. Jurisdiction: Your use of the Site and any dispute arising out of your use of it is subject to the laws of Victoria and the Commonwealth of Australia. These Terms are governed by the laws of Victoria and the Commonwealth of Australia and subject to the exclusive jurisdiction of the courts operating in Victoria. The Site may be accessed throughout Australia and overseas. We make no representation that the Site complies with the laws (including intellectual property laws) of any country outside Australia. If you access the Site from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the Site.

For questions and notices, please contact us at:

Xap Technologies Pty Ltd (ABN 73 169 623 009)
Level 1, 61-63 Wellington Street,
St. Kilda, Vic 3182
Email: clientservices@xaptech.com.au

Last update: 25 November 2015

XAP TECHNOLOGIES PTY LTD – PRIVACY POLICY

This Privacy Policy sets out our commitment to protecting the privacy of your personal information that we collect through this website www.xaptech.com.au and www.kidsxap.com.au (collectively referred to as Site) or directly from you, being the person, organisation or entity that uses our Site or services (referred to as you or your).
Please read this Privacy Policy carefully. Please contact us if you have any questions – our contact details are at the end of this Privacy Policy.
You providing us with personal information indicates that you have had sufficient opportunity to access this Privacy Policy and that you have read and accepted it.
If you do not wish to provide personal information to us, then you do not have to do so, however it may affect your use of this Site or any products and services offered on it.
1. Collection of personal information Personal information: The type of information we collect may include:

-name;
-contact details including email address, address and telephone number;
-parent or guardian names and contact details;
-date of birth;
-demographic information such as postcode;
-preferences and opinions; and
-any other information requested on this Site or otherwise requested by us or provided by you.

Your use of our Site: As with most online businesses, we may log information about your access and use of our Site, including through the use of Internet cookies, your communications with our Site, the type of browser you are using, the type of operating system you are using and the domain name of your Internet service provider.
Your opinion and feedback: We may contact you to voluntarily respond to questionnaires, surveys or market research to seek your opinion and feedback. Providing this information is optional to you.
If we receive your personal information from third parties (such as information from child care centres or the Child Care Management System provided by Children’s Services Central), we will protect it as set out in this Privacy Policy.
2. Collection and use of personal information
We collect and use the information for purposes including:

-to provide our services to you;
-to help child care centres who use our site and services provide their services to you;
-to contact and communicate with you;
-to contact and communicate with the relevant government department and their affiliates including the Children’s Services Central;
-for internal record keeping;
-for market research and business development including website development;
-for marketing including direct marketing;
-to run competitions or offer additional benefits to you; and
-to send you promotional information about third parties that we think may be of interest to you.

3. Disclosure of personal information to third parties
We may disclose personal information to:

-credit reporting agencies and courts, tribunals and regulatory authorities where customers fail to pay for goods or services provided by us to them;
-courts, tribunals, regulatory authorities and law enforcement officers as required by law, in connection with any actual or prospective legal proceedings, or in order to establish, exercise or defend our legal rights;
-education, healthcare, child services and other authorised government or regulatory bodies or entities or related child services organisations such as the Children’s Services Central; and
-third parties, including agents or sub-contractors, who assist us in providing information, products, services or direct marketing to you. This may include parties located, or that store data, outside of Australia. Where we disclose your personal information to third parties for these purposes, we will request that the third party follow this Privacy Policy regarding handling of your personal information. If there is a change of control of our business or a sale or transfer of business assets, we reserve the right to transfer to the extent permissible by law our user databases, together with any personal information and non-personal information contained in those databases. This information may be disclosed to a potential purchaser. We would seek to only disclose information in good faith.

4. How we treat personal information that is also sensitive information
Sensitive information is a sub-set of personal information that is given a higher level of protection under the Australian Privacy Principles. In referring to ‘sensitive information’ we mean information that relates to your racial or ethnic origin, political opinions, religion, trade union or other professional associations or memberships, philosophical beliefs, sexual orientation or practices and criminal records, health information; or biometric information.
The type of sensitive information that we may collect includes health information.
Sensitive information will be used and disclosed for purposes relating to the primary purpose for which the sensitive information was collected, including but not limited to enabling child care centres to provide the necessary health or emergency medical services. Sensitive information may also be used or disclosed if required or authorised by law. Information may also be disclosed to a responsible person which has the meaning given by section 6AA of the Privacy Act 1988 (Cth).
5. Your rights and controlling your personal information
Choice and consent: Providing us with your personal information is optional to you. You can choose not to provide personal information. When you provide us with your personal information, you consent to the terms in this Privacy Policy, and to us disclosing or receiving your personal information for these purposes.
Your provision of third party information: If you provide us with third party personal information then you warrant to us that you have the third party’s consent to provide this.
Restrict: You may choose to restrict the collection or use of your personal information. If you have previously agreed to us using your personal information for direct marketing purposes, you may change your mind at any time by contacting us at the email address listed in this Privacy Policy.
Access: You may request details of personal information that we hold about you, in certain circumstances set out in the Privacy Act 1988 (Cth). An administrative fee may be payable for the provision of information. We may refuse to provide you with information that we hold about you, in certain circumstances set out in the Privacy Act.

Correction: If you believe that any information we hold about you is inaccurate, out of date, incomplete, irrelevant or misleading, please contact us by email. We rely in part upon customers advising us when their personal information changes. We will respond to any request within a reasonable time. We will endeavour to promptly correct any information found to be inaccurate, incomplete or out of date.Complaints: If you believe that we have breached the Australian Privacy Principles and wish to make a complaint about that breach, please contact us by email setting out details of the breach. We will promptly investigate your complaint and respond to you in writing setting out the outcome of our investigation, what steps we propose to take to remedy the breach and any other action we will take to deal with your complaint.

Unsubscribe: To unsubscribe from our e-mail database, or opt out of communications, please contact us using the details below.
6. Storage and Security
We are committed to ensuring that the information you provide is secure. In order to prevent unauthorised access or disclosure, we have put in place suitable physical, electronic and managerial procedures to safeguard and secure the information and protect it from misuse, interference, loss and unauthorised access, modification and disclosure.
No information transmitted over the Internet can be guaranteed to be secure. We cannot guarantee the security of any information that you transmit to us, or receive from us. The transmission and exchange of information is carried out at your own risk. Although we take measures to safeguard against unauthorised disclosures of information, we cannot assure you that personal information that we collect will not be disclosed in a manner that is inconsistent with this Privacy Policy.
7. Cookies & Web Beacons
We may use cookies on this Site from time to time. Cookies are text files placed in your computer’s browser to store your preferences. Cookies, by themselves, do not tell us your e-mail address or other personally identifiable information. However, once you choose to furnish the Site with personally identifiable information, this information may be linked to the data stored in the cookie.
We may use web beacons on this Site from time to time. Web beacons or clear .gifs are small pieces of code placed on a web page to monitor the visitors’ behaviour and collect data about the visitors viewing a web page. For example, web beacons can be used to count the users who visit a web page or to deliver a cookie to the browser of a visitor viewing that page.
8. Links to other websites
Our Site may contain links to other websites of interest. We do not have any control over those websites. We are not responsible for or liable for the protection and privacy of any information which you provide whilst visiting such websites, and such websites are not governed by this Privacy Policy.
9. Amendments
This Privacy Policy may be amended, including with changes, additions and deletions, from time to time in our sole discretion. Your continued use of our Site following any amendments indicates that you accept the amendments. You should check this Privacy Policy regularly, prior to providing personal information, to ensure you are aware of any changes, and only proceed to provide personal information if you accept the new Privacy Policy.

For any questions or notice, please contact our Privacy Officer at:

Xap Technologies Pty Ltd ABN 73 169 623 009
Level 1, 61-63 Wellington Street,
St. Kilda, Vic 3182
Email: clientservices@xaptech.com.au
Last update: 25 November 2015

Xap Technologies Pty Ltd – SOFTWARE SERVICE AGREEMENT

TERMS AND CONDITIONS FOR BUSINESS USING KIDSXAP
1. ACCEPTANCE
1.1 These Terms and Conditions (Terms) form the agreement (Agreement) between Xap Technologies Pty Ltd ABN 73 169 623 009 (referred to as “Xap”, “we” or “us”) and the user (referred to as “User” or “you”), collectively referred to as the Parties or each a Party.
1.2 Xap owns the cloud-based software (Software) which is accessible at kidsxap.com.au and any other associated sub domains (Site) and by downloading the Xap Staff application on a smart device (App).
1.3 The User wishes to use the Software.
1.4 This Agreement sets out the Terms upon which Xap has agreed to grant the User a right to use the Software. These Terms are binding on any use of the Software and apply to the User from the time that Xap provides the User with an account to access and use the Software (Account).
1.5 By using our Software and subscribing on our Site or App, you acknowledge that you have read, understood, and accepted these Terms and you have the authority to act on behalf of any person or entity for whom you are using the Software, and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Software.
1.6 Xap reserves the right to make changes to these Terms at any time, effective upon the posting of modified Terms. Xap will make every effort to communicate these changes to the User via email. It is the User’s obligation to ensure that the User has read, understood and agree to the most recent Terms available on our Site.
2. ADDITIONAL TERMS AND CONDITIONS
These Terms supplement and incorporate:
(a) the Privacy Policy and Website Terms and Conditions (Xap Policies), in each case, as amended from time to time, which are available on the Site;
(b) the Apple, Inc. Terms and Conditions including, without limitation, the Licensed Application End User License Agreement provided therein (Apple Terms); and
(c) the Android, Google Inc. Terms and Conditions including, without limitation, the License Agreement and Terms of Application (Android Terms).
If any of the provisions of the Apple Terms, the Android Terms or any applicable Xap Policies conflict with these Terms, these Terms have priority, solely to the extent such Terms apply to the App.
3. SOFTWARE AND SERVICES
3.1 The Software provides an interface for child care centre staff and managers to manage day to day tasks. The Software simplifies tasks such as: taking attendance, managing waiting lists and generating invoices.
3.2 The Software is provided to the User via the Site and the App.
3.3 The User will only be able access the Software by completing an online subscription and/or Xap creating a login for you.
3.4 Xap may, upon request by the User, customise the Software to meet the particular needs of the User. It is at our sole discretion, whether or not we customise the Software for you. If we agree to customise the Software for you, a separate written agreement will be entered into between Xap and you, outlining the terms and conditions for doing so.
3.5 The services provided by Xap include any services relating to the online management of child care centres (Services).
4. ONLINE SUBSCRIPTION AND ACCOUNT
4.1 The App may only be used by individuals aged eighteen (18) years or older. If the User is thirteen (13) years or older but under the age of eighteen (18) years, User should review these Terms with the User’s parent or guardian to make sure the User and the User’s parent or guardian understand them.
4.2 The Software is currently only intended for use in Australia. Organisations which are not registered in Australia will not be able to complete an online subscription.
4.3 When you subscribe online, the Site or App will request that you provide personal information for subscription purposes. This personal information that we collect, and how we deal with it, is set out in the Privacy Policy available on our Site.
4.4 Information that is created when you subscribe, such as log in details and passwords (User Information) are stored in servers at the Azure data center in Australia. We will take steps to ensure that User Information is kept secure and confidential by encrypting and regularly backing up the data.
4.5 You will not be required to pay a fee for your subscription to our Software. Xap may develop future updates or features to the Software or platform which may incur a subscription fee if you request to use those updates or features.
4.6 Upon subscription, the User obtains a valid Account to use the Software, and Xap agrees to grant to the User a royalty free, Australia wide, revocable, non-exclusive, non-transferable right in the form of a license to use the Software (License) which cannot be sub-licensed to third parties.
5. TERMINATION
5.1 To terminate an Account, the User must do so by sending a written notice to clientservices@xaptech.com.au and providing us with one month’s written notice. Following this the User must delete all copies of the App from all their devices.
5.2 It is the User’s responsibility to retrieve all necessary data from their Account prior to termination.
5.3 We may terminate the Terms immediately, in our sole discretion, if:
(a) you breach any of these Terms and do not remedy the breach within 7 days after receiving notice of the breach if the breach is capable of being remedied;
(b) we reasonably suspect that you are attempting to reverse engineer or hack the Software that is provided to you;
(c) we consider that a request for a License is inappropriate, improper or unlawful;
(d) you fail to provide us with clear or timely instructions to enable us to provide you with a License;
(e) we consider that our working relationship has broken down including a loss of confidence and trust;
(f) where the User is an individual, an order for the appointment of a trustee in bankruptcy or analogous step is taken; or
(g) for any other reason outside our control which has the effect of compromising our ability to provide you with the required Software or License within a required timeframe.
5.4 On termination or completion of the Services, all data, files, documents, correspondence, physical or electronic will be either destroyed by us or returned immediately after the termination is in effect (at our election). Notwithstanding the above, we may retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
6. USER OBLIGATONS
6.1 The User warrants that all information provided to Xap is true, accurate and complete.
6.2 You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior twelve (12) month period.
6.3 You acknowledge and agree that:
(a) you are authorised to use the Software and to access any information or data that you input (Data) into the Software, including any Data which has been inputted into the Software by any person you have authorised to do so;
(b) the Software must only be used for your own lawful internal business purposes, in accordance with these Terms;
(c) all usernames and passwords required to access the Software are kept secure and confidential;
Xap Technologies Pty Ltd SOFTWARE SERVICE AGREEMENT
LegalVision ILP Pty Ltd owns the copyright in this document and use without permission is prohibited. Confidential Page 3 of 9
(d) if there is any unauthorised use of your passwords or any other breach of security, you will immediately notify Xap of such activity;
(e) the Software operates within the User’s computing or smart device system (End User System);
(f) the reliability of the Software is dependent upon the User’s configuration and implementation of the Software; and
(g) it is the responsibility of the User to determine that the Software meets the needs of the User and their business, and is suitable for the purposes for which the Software is used.
6.4 You may use the Software on behalf of others or in order to provide services to others but if you do so you must ensure that you are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to you.
6.5 Xap has no responsibility to any person or entity other than you and nothing in this Agreement confers, or purports to confer, a benefit on any person or entity other than you. If you use the Software on behalf of or for the benefit of anyone other than yourself, you agree that:
(a) you are responsible for ensuring that you have the right to do so;
(b) Xap does not warrant the fitness for purpose or suitability of the Software for such third party’s purposes and third parties may not rely on Xap for any purpose;
(c) you are responsible for authorising any person who is given access to your Data, and you agree that Xap has no obligation to provide any person or entity with access to such Data without authorisation from you and may refer any requests for access to the Data to you to address; and
(d) you will indemnify Xap, on first demand, against any and all claims, expenses, liabilities or losses arising out of in connection with Xap’s refusal to provide any persons with access to your Data in accordance with these Terms and Xap making Data available to any person with authorisation from you.
6.6 The use of the Software is at the User’s own risk.
6.7 You remain solely responsible for complying with all applicable laws. It is your responsibility to ensure that the storage of and access to your Data via the Software, the Site and the App comply with laws which are applicable to you, including any laws requiring you to retain records of your Data.
6.8 Each User must have their own safeguards and back up processes in place to recover from any failures or loss of Data which might occur whilst using the Software and protecting the confidentiality of your Data with suitable management procedures, as you may see fit.
7. PROHIBITED USE
7.1 You acknowledge and agree that you will not:
(a) attempt to circumvent or disable the Software or any technology features or measures in the Software by any means or in any manner;
(b) attempt to modify, copy, adapt or reproduce the Software except as necessary to use it for normal operation;
(c) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;
(d) distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Software to any third party (except as permitted under this Agreement);
(e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or used in connection with the Software;
(f) use the Software in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;
(g) take any action that interferes, in any manner, with Xap’s rights with respect to the Software;
(h) attempt to undermine the security or integrity of Xap’s computing systems or where the Software is hosted by a third party, that third party’s computing systems and networks;
(i) use, or misuse, the Software in any way which may impair the functionality of the Software, Site, App, or other systems used to deliver the Software or impair the ability of any other user to use the Software, Site or App;
(j) attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the License for the Software is executed; and
(k) transmit, or input into the Software, Site or App, 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 any content protected by copyright or trade secrets which you do not have the right to use).
7.2 In addition, title, ownership rights and Intellectual Property rights in and to any content displayed on the Site, the App or in the Software, or accessed through the Site, the App or the Software, are the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such content.
7.3 You acknowledge that any breaches of this clause may lead to termination of this Agreement.
8. CONFIDENTIAL INFORMATION
8.1 Subject to sub-clause 2, each party receiving confidential information (a Recipient) from the other party (a Discloser) agrees:
(a) not to disclose the Confidential Information to any third party at any time;
(b) to use its best endeavours to protect the Confidential Information from any unauthorised disclosure;
(c) only to use the Confidential Information for the purpose for which it was disclosed by the Discloser and not for any other purpose; and
(d) to be responsible for and assume liability in relation to each of its employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out in this Agreement.
8.2 The Recipient’s obligations set out in sub-clause 1 do not apply to Confidential Information:
(a) that is already in the public domain, except as a result of the actions of the Recipient in breach of any of the Terms of this Agreement;
(b) received from a third party, except where there has been a breach of confidence leading to its disclosure; and
(c) that must be disclosed by law, provided that the Recipient reveals only so much of the Confidential Information as the Recipient is required by law to disclose and gives sufficient notice to the Discloser in order to allow the Discloser to object to, or otherwise prevent, the Confidential Information being disclosed.
8.3 This clause will survive termination of this Agreement.
9. PRIVACY POLICY
9.1 We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines, as set out in our privacy policy which is available on our Site.
9.2 You will be taken to have read the terms of the Privacy Policy when you accept these Terms.
10. Data
Any request to access your Data must be made in writing to us via the Site or to clientservices@xaptech.com.au and you must provide us with at least one months’ notice.
11. INTELLECTUAL PROPERTY
11.1 Title to, and all Intellectual Property rights in the Software, the Site, and the App, all parts of the code as a whole or part, and any documentation relating to the Software (including any correspondence performed with the customers) remain the property of Xap and its successors and permitted assigns. Your right to use such Intellectual Property is subject to the terms of this Agreement.
11.2 You grant Xap a non-exclusive, worldwide license to use any Intellectual Property which subsists in the Data you provide in connection with the use of your Account and the provision of the Services, including copyright in any third party logos or other materials.
11.3 Any requests to or agreements with Xap to customise, modify and/or enhance any Software for the User, or to develop programs, software or materials related to such Software, must be documented in a written agreement and signed by the Parties. No variation to the terms of this Agreement will come into effect until it is documented in writing and signed by the Parties.
11.4 Title to and all Intellectual Property rights in any data you input into the Software remain your property. However, your access to the data and continued use of the Software is contingent on continuation of your subscription.
11.5 We grant you a non-exclusive, revocable, Australia wide license to display the KidsXap logo at your centre and in your correspondence for the purpose of advising third parties of your use of our Software, during the term of this Agreement.
11.6 You grant Xap a licence to use, copy, transmit, store, and back-up your information and data for the purposes of enabling you to access and use the Software and for any other purpose related to provision of Services to you and the performance of our obligations under this Agreement.
11.7 It is the responsibility of the User to maintain copies of all data which is inputted into the Software. Xap will endeavour to prevent data loss, however, as the Software operates as a cloud-based service, provided through third parties, Xap does not make any guarantees that there will be no loss of data and does not represent or warrant that access to the Software, the Data or an Account will be available without interruption.
11.8 If the User enables third-party applications for use in conjunction with the Software, the User acknowledges that Xap may allow the providers of those third-party applications to access any inputted data as required for the interoperation of such third-party applications with the Software. Xap is not responsible for any disclosure, modification or deletion of data resulting from any such access by third-party application providers.
12. UPDATES AND SUPPORT
12.1 Xap will provide you with updates to the Software (Updates) for the duration of this Agreement.
12.2 You acknowledge that Xap has no obligation to provide you with any support for Updates to the Software, as agreed in this Agreement. Xap may, from time to time, issue updated versions of the Software and the Software may automatically connect to Xap or third-party servers via the Internet to check for available Updates to the Software, and may either
(1) automatically electronically update the version of the Software that you are using on your computer or
(2) give you the option of downloading it. By installing the Software you hereby agree to automatically request and receive Updates from Xap or third-party servers. You consent to such automatic upgrading, and agree that the terms and conditions of this Agreement will apply to all such Updates.
12.3 The Software may contain automatic communications features which relay certain non-personally identifiable information to Xap in connection with the operation of the Software. This information may include your Software settings and what version of the Software you are using. Xap may use this information for research purposes including statistical analysis of aggregate customer behaviour.
12.4 Xap can provide support to the User. If you require technical support, please contact Xap via the 24×7 ticket system at http://support.xap.technology/. All tickets are followed up by our support staff via the phone or email provided by the user in the ticket.
12.5 Whilst Xap intends that access to the Software via the Site and the App should be available on a full-time basis, it is possible that the Site or the App is unavailable to due to maintenance or other development activity.
12.6 Where possible, Xap will provide notice to its Users of any maintenance or development activity in advance by a notification on the Site and App.
13. SECURITY
Xap has implemented and will maintain security systems for the transmission of customer data, consisting of encryption and “firewall” technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. Xap does not guarantee the security of the these services and Xap will not be responsible in the event of any infiltration of its security systems, provided that Xap has used commercially reasonable efforts to prevent any such infiltration. You acknowledge and agree that you, and not Xap is responsible for the security of Data or any other information stored on your servers, and that Xap is not responsible for any other party’s servers.14. FEEDBACK AND DISPUTE RESOLUTION
14.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact any member of our staff.
14.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Victoria to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
14.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
15. LIMITATION OF LIABILITY AND DISCLAIMERS
15.1 Xap and the User agree that Xap’s liability for the Services provided via the Site, the App, and the Software is governed solely by the Australian Consumer Law to the extent applicable, and this Agreement.
15.2 Xap has no liability for use of the Software or App in countries other than Australia.
15.3 You acknowledge that whilst Xap will take reasonable steps to ensure that the Software will be fit for the purposes as advertised, Xap gives no guarantees that:
(a) the Software will meet your requirements as the functionality of the Software is dependent upon configuration with the End User System and other components;
(b) the Software will work in each of your desired use case scenarios; and
(c) the Software can be executed on every operating system, as it is impossible to test each variant.
15.4 The Software uses third party hosting services which are provided without any sort of warranties, and Xap cannot ensure that these third party hosting services are provided free of defect or without interruption.
15.5 Xap does not warrant that use of the Software will be uninterrupted or error free. The operation of the Software is dependent on public telephone services, computer networks, the Internet, which can be unpredictable and may from time to time interfere with the use of the Software. Xap accepts no responsibility for any such interference or prevention of your use of the Software.
15.6 All risk arising out of the use or performance of the Software remains with you. You understand and agree that the use of the Software, material or data downloaded or otherwise obtained through the use of the Software, is at your own discretion and risk and that you will be solely responsible for any infections, contaminations or damage to your computer, system or network. Xap is not responsible or liable for delays, inaccuracies, errors or omissions arising out of your use of the Software, any third party software or operating system.
15.7 To the maximum extent permitted by applicable law, Xap and its licensors disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party intellectual property rights or lack of viruses, for the Software. In no event will Xap or its licensors be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever arising out of this Agreement, the use of or inability to use the Software, even if Xap has been advised of the possibility of such damages.
15.8 The Software is not intended for use in the operation of medical instruments, water craft, military installations, warfare equipment, industrial control systems and or SCADA systems and or robotic systems, surgical/medical application or equipment, artificial intelligence application or system, gambling/wagering system, and prototype, experimental or single product items, nuclear facilities, aircraft navigation or communications systems or air traffic control machines or any other
Xap Technologies Pty Ltd SOFTWARE SERVICE AGREEMENT
LegalVision ILP Pty Ltd owns the copyright in this document and use without permission is prohibited. Confidential Page 7 of 9
machines in which case the failure of the Software could lead to death, personal injury or severe physical or environmental damage.
15.9 The User acknowledges that Xap may pursue any available equitable or other remedy against you as a result of a breach by the User of any provision of this Agreement.
15.10 Xap or its licensors’ liability for breach of any of its obligations under this Agreement for the Software, or breach of any warranty implied by law, will be limited, to the extent permitted by law, to the total price paid for the License to execute the Software or any related Services. Xap’s total liability to you for all damages in connection with the Software will not exceed the price paid by you under this agreement for the Software. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
15.11 The User acknowledges and agrees that Xap will not be liable for any non-compensatory damages including punitive, aggravated, multiple, exemplary, liquated or any other non-compensatory damages or the consequences of non-payment.
16. AUSTRALIAN CONSUMER LAW
16.1 Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
16.2 Nothing in these Terms removes your Statutory Rights as a consumer under the ACL. You agree that our liability for Services provided to consumers is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
16.3 Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied; and we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
16.4 If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the services for or for a result which you have told us you wish the services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our services is limited to us re-supplying the services to you, or, at our option, us refunding to you the amount you have paid us for the services to which your claim relates.
17. INDEMNITY
17.1 You will be liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from: (i) any information that is not accurate, up to date or complete or is misleading or a misrepresentation; (ii) any breach of these Terms; (iii) and any misuse of the Software and/or License; from or by you, your employees, contractors or agents. 17.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our Software and License including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
17.3 The obligations under this clause will survive termination of these Terms.
18. NOTICE
18.1 Any notice required or permitted to be given to the User under these Terms will be addressed to the User at the email address provided by the User when requesting a License.
19. RELATIONSHIP OF PARTIES
Xap Technologies Pty Ltd SOFTWARE SERVICE AGREEMENT
LegalVision ILP Pty Ltd owns the copyright in this document and use without permission is prohibited. Confidential Page 8 of 9
19.1 Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party.
19.2 The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.
20. RIGHTS OF THIRD PARTIES
20.1 Any person or entity who is not a party to these Terms has no right to benefit under or to enforce any of these Terms.
21. ASSIGNMENT
21.1 This Agreement is personal to the Parties. A Party must not assign or deal with the whole or any part of its rights and/or obligations under this Agreement without the prior written consent of the other Parties.
21.2 Any purported dealing in breach of this clause is of no effect.
22. WAIVER OR VARIATION OF RIGHTS
22.1 Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.
22.2 A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
23. POWERS, RIGHTS AND REMEDIES
23.1 Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.
24. FORCE MAJEURE
If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (Force Majeure), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
25. CONSENTS AND APPROVALS
25.1 Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.
26. FURTHER ASSURANCE
26.1 Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to this Agreement.
27. ENFORCEABILITY
27.1 If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provisions in question will not be affected.
28. COUNTERPARTS
28.1 This Agreement may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Agreement.
29. ENTIRE AGREEMENT AND UNDERSTANDING
29.1 The date of this Agreement is the date that these Terms are accepted by the User.
29.2 In respect of the subject matter of this Agreement:
(a) this Agreement contains the entire understanding between the Parties; and
(b) all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement.
30. GOVERNING LAW AND JURISDICTION
30.1 This Agreement is governed by the laws of Victoria and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.
31. DEFINITIONS
Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.

For any questions or notice, please contact us at:

Xap Technologies Pty Ltd ABN 73 169 623 009
Level 1, 61-63 Wellington Street, St. Kilda, Vic 3182
Phone: +61 39099 2345
Email: clientservices@xaptech.com.au
Last update: 25 November 2015

Xap Technologies Pty Ltd SOFTWARE SERVICE AGREEMENT

PARENT AND GUARDIAN TERMS AND CONDITIONS:
1. ACCEPTANCE
1.1 These Terms and Conditions (Terms) form the agreement (Agreement) between Xap Technologies Pty Ltd ABN 73 169 623 009 (referred to as “Xap”, “we” or “us”) and the user (referred to as “User” or “you”), collectively referred to as the Parties or each a Party.
1.2 Xap owns the cloud-based software (Software) which is accessible at kidsxap.com.au and any other associated sub domains (Site) and by downloading the Xap Parent and Guardian application on a smart device (App).
1.3 The User wishes to use the Software.
This Agreement sets out the Terms upon which Xap has agreed to grant the User a right to use the Software. These Terms are binding on any use of the Software and apply to the User from the time that Xap provides the User with an account to access and use the Software (Account).
1.4 By using our Software and subscribing on our Site or App, you acknowledge that you have read, understood, and accepted these Terms and you have the authority to act on behalf of any person or entity for whom you are using the Software, and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Software.
1.5 Xap reserves the right to make changes to these Terms at any time, effective upon the posting of modified Terms. Xap will make every effort to communicate these changes to the User via email. It is the User’s obligation to ensure that the User has read, understood and agree to the most recent Terms available on our Site.2. ADDITIONAL TERMS AND CONDITIONS
These Terms supplement and incorporate:
(a) the Privacy Policy and Website Terms and Conditions (Xap Policies), in each case, as amended from time to time, which are available on the Site;
(b) the Apple, Inc. Terms and Conditions including, without limitation, the Licensed Application End User License Agreement provided therein (Apple Terms); and
(c) the Android, Google Inc. Terms and Conditions including, without limitation, the License Agreement and Terms of Application (Android Terms).
If any of the provisions of the Apple Terms, the Android Terms or any applicable Xap Policies conflict with these Terms, these Terms have priority, solely to the extent such Terms apply to the App.3. SOFTWARE AND SERVICES
3.1 The Software provides an interface between parents and guardians and child care centres to manage day to day tasks. The Software simplifies tasks such as: managing payments, viewing daily activities and maintaining records.
3.2 The Software is provided to the User via the Site and the App.
3.3 The User will only be able access the Software by completing an online subscription and/or Xap creating a login for you.
3.4 Xap may, upon request by the User, customise the Software to meet the particular needs of the User. It is at our sole discretion, whether or not we customise the Software for you. If we agree to customise the Software for you, a separate written agreement will be entered into between Xap and you, outlining the terms and conditions for doing so.
3.5 The services provided by Xap include any services relating to the online management of child care centres (Services).4. ONLINE SUBSCRIPTION AND ACCOUNT
4.1 The App may only be used by individuals aged eighteen (18) years or older. If the User is thirteen (13) years or older but under the age of eighteen (18) years, User should review these Terms with the User’s parent or guardian to make sure the User and the User’s parent or guardian understand them.
4.2 The Software is currently only intended for use in Australia. Organisations which are not registered in Australia will not be able to complete an online subscription.
Xap Technologies Pty Ltd SOFTWARE SERVICE AGREEMENT
LegalVision ILP Pty Ltd owns the copyright in this document and use without permission is prohibited. Confidential Page 2 of 9
4.3 When you subscribe online, the Site or App will request that you provide personal information for subscription purposes. This personal information that we collect, and how we deal with it, is set out in the Privacy Policy available on our Site.
4.4 Information that is created when you subscribe, such as log in details and passwords (User Information) are stored in servers at the Azure data centre in Australia. We will take steps to ensure that User Information is kept secure and confidential by encrypting and regularly backing up the data.
4.5 You will be required to pay an annual fee for your subscription to our App (Subscription Fee) as set out on the App. You will not be given an Account to access and use the App until payment is made.
4.6 You will not be required to pay a fee for your subscription to our Site. Xap may develop future updates or features to the Software or platform which may incur a subscription fee if you request to use those updates or features.
4.7 Our pricing structure or payment methods may be amended from time to time in our sole discretion.
4.8 Upon subscription, the User obtains a valid Account to use the Software, and Xap agrees to grant to the User a royalty free, Australia wide, revocable, non-exclusive, non-transferable right in the form of a license to use the Software (License) which cannot be sub-licensed to third parties.5. PAYMENT
5.1 You agree to pay the Subscription Fee required to enable you to access and use the App.
5.2 You will be required to make payment by way of BPay or debit or credit card and you must provide your BPay or debit or credit card details when completing your online subscription.
5.3 You acknowledge and agree that:
(d) to maintain your subscription, payment to us will be made automatically on an annual payment date, from the BPay account or debit or credit card that you have provided to us;
(e) if we are unable to take payment, we will attempt to contact you via email as soon as we become aware of the payment failure. Until payment is confirmed, your Account may be locked and you will not be able to access or use our App.
5.4 If payment is not made within 14 days of the last payment date, we may lock your Account without notice to you, in which case you will not be able to access your Account or use our App and any of the User’s data on the Account may be deleted and not recoverable.6. TERMINATION
6.1 To terminate an Account, the User must do so by sending a written notice to clientservices@xaptech.com.au and providing us with one month’s written notice. Following this the User must delete all copies of the App from all their devices and terminate their subscription from their parents portal on the site.
6.2 The User’s Account will be terminated at the end of the billing cycle, and automatic payments will cease at the end of the billing period that Xap is notified of the User’s intention to terminate.
6.3 It is the User’s responsibility to retrieve all necessary data from their Account prior to termination.
6.4 We may terminate the Terms immediately, in our sole discretion, if:
(a) you breach any of these Terms and do not remedy the breach within 7 days after receiving notice of the breach if the breach is capable of being remedied;
(b) we reasonably suspect that you are attempting to reverse engineer or hack the Software that is provided to you;
(c) we consider that a request for a License is inappropriate, improper or unlawful;
(d) you fail to provide us with clear or timely instructions to enable us to provide you with a License;
(e) we consider that our working relationship has broken down including a loss of confidence and trust;
(f) where the User is an individual, an order for the appointment of a trustee in bankruptcy or analogous step is taken; or
(g) for any other reason outside our control which has the effect of compromising our ability to provide you with the required Software or License within a required timeframe.
Xap Technologies Pty Ltd SOFTWARE SERVICE AGREEMENT
LegalVision ILP Pty Ltd owns the copyright in this document and use without permission is prohibited. Confidential Page 3 of 9
6.5 On termination or completion of the Services, all data, files, documents, correspondence, physical or electronic will be either destroyed by us or returned immediately after the termination is in effect (at our election). Notwithstanding the above, we may retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.7. USER OBLIGATONS
7.1 The User warrants that all information provided to Xap is true, accurate and complete.
7.2 You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior twelve (12) month period.
7.3 You acknowledge and agree that:
(a) you are authorised to use the Software and to access any information or data that you input (Data) into the Software, including any Data which has been inputted into the Software by any person you have authorised to do so;
(b) the Software must only be used for your own lawful internal business purposes, in accordance with these Terms;
(c) all usernames and passwords required to access the Software are kept secure and confidential;
(d) if there is any unauthorised use of your passwords or any other breach of security, you will immediately notify Xap of such activity;
(e) the Software operates within the User’s computing or smart device system (End User System);
(f) the reliability of the Software is dependent upon the User’s configuration and implementation of the Software; and
(g) it is the responsibility of the User to determine that the Software meets the needs of the User and their business, and is suitable for the purposes for which the Software is used.
7.4 You may use the Software on behalf of others or in order to provide services to others but if you do so you must ensure that you are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to you.
7.5 Xap has no responsibility to any person or entity other than you and nothing in this Agreement confers, or purports to confer, a benefit on any person or entity other than you. If you use the Software on behalf of or for the benefit of anyone other than yourself, you agree that:
(a) you are responsible for ensuring that you have the right to do so;
(b) Xap does not warrant the fitness for purpose or suitability of the Software for such third party’s purposes and third parties may not rely on Xap for any purpose;
(c) you are responsible for authorising any person who is given access to your Data, and you agree that Xap has no obligation to provide any person or entity with access to such Data without authorisation from you and may refer any requests for access to the Data to you to address; and
(d) you will indemnify Xap, on first demand, against any and all claims, expenses, liabilities or losses arising out of in connection with Xap’s refusal to provide any persons with access to your Data in accordance with these Terms and Xap making Data available to any person with authorisation from you.
7.6 The use of the Software is at the User’s own risk.
7.7 You remain solely responsible for complying with all applicable laws. It is your responsibility to ensure that the storage of and access to your Data via the Software, the Site and the App comply with laws which are applicable to you, including any laws requiring you to retain records of your Data.
7.8 Each User must have their own safeguards and back up processes in place to recover from any failures or loss of Data which might occur whilst using the Software and protecting the confidentiality of your Data with suitable management procedures, as you may see fit.8. PROHIBITED USE
8.1 You acknowledge and agree that you will not:
(a) attempt to circumvent or disable the Software or any technology features or measures in the Software by any means or in any manner;
(b) attempt to modify, copy, adapt or reproduce the Software except as necessary to use it for normal operation;
(c) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;
(d) distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Software to any third party (except as permitted under this Agreement);
(e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or used in connection with the Software;
(f) use the Software in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;
(g) take any action that interferes, in any manner, with Xap’s rights with respect to the Software;
(h) attempt to undermine the security or integrity of Xap’s computing systems or where the Software is hosted by a third party, that third party’s computing systems and networks;
(i) use, or misuse, the Software in any way which may impair the functionality of the Software, Site, App, or other systems used to deliver the Software or impair the ability of any other user to use the Software, Site or App;
(j) attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the License for the Software is executed; and
(k) transmit, or input into the Software, Site or App, 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 any content protected by copyright or trade secrets which you do not have the right to use).
8.2 In addition, title, ownership rights and Intellectual Property rights in and to any content displayed on the Site, the App or in the Software, or accessed through the Site, the App or the Software, are the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such content.
8.3 You acknowledge that any breaches of this clause may lead to termination of this Agreement.

9. CONFIDENTIAL INFORMATION
9.1 Subject to sub-clause 2, each party receiving confidential information (a Recipient) from the other party (a Discloser) agrees:
(a) not to disclose the Confidential Information to any third party at any time;
(b) to use its best endeavours to protect the Confidential Information from any unauthorised disclosure;
(c) only to use the Confidential Information for the purpose for which it was disclosed by the Discloser and not for any other purpose; and
(d) to be responsible for and assume liability in relation to each of its employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out in this Agreement.
9.2 The Recipient’s obligations set out in sub-clause 1 do not apply to Confidential Information:
(a) that is already in the public domain, except as a result of the actions of the Recipient in breach of any of the Terms of this Agreement;
(b) received from a third party, except where there has been a breach of confidence leading to its disclosure; and
(c) that must be disclosed by law, provided that the Recipient reveals only so much of the Confidential Information as the Recipient is required by law to disclose and gives sufficient notice to the Discloser in order to allow the Discloser to object to, or otherwise prevent, the Confidential Information being disclosed.
9.3 This clause will survive termination of this Agreement.

10. PRIVACY POLICY
Xap Technologies Pty Ltd SOFTWARE SERVICE AGREEMENT
LegalVision ILP Pty Ltd owns the copyright in this document and use without permission is prohibited. Confidential Page 5 of 9
10.1 We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines, as set out in our privacy policy which is available on our Site.
10.2 You will be taken to have read the terms of the Privacy Policy when you accept these Terms.

11. Data
Any request to access your Data must be made in writing to us via the Site or to clientservices@xaptech.com.au and you must provide us with at least one months’ notice.

12. INTELLECTUAL PROPERTY
12.1 Title to, and all Intellectual Property rights in the Software, the Site, and the App, all parts of the code as a whole or part, and any documentation relating to the Software (including any correspondence performed with the customers) remain the property of Xap and its successors and permitted assigns. Your right to use such Intellectual Property is subject to the terms of this Agreement.
12.2 You grant Xap a non-exclusive, worldwide license to use any Intellectual Property which subsists in the Data you provide in connection with the use of your Account and the provision of the Services, including copyright in any third party logos or other materials.
12.3 Any requests to or agreements with Xap to customise, modify and/or enhance any Software for the User, or to develop programs, software or materials related to such Software, must be documented in a written agreement and signed by the Parties. No variation to the terms of this Agreement will come into effect until it is documented in writing and signed by the Parties.
12.4 Title to and all Intellectual Property rights in any data you input into the Software remain your property. However, your access to the data and continued use of the Software is contingent on payment of your Subscription Fee.
12.5 You grant Xap a licence to use, copy, transmit, store, and back-up your information and data for the purposes of enabling you to access and use the Software and for any other purpose related to provision of Services to you and the performance of our obligations under this Agreement.
12.6 It is the responsibility of the User to maintain copies of all data which is inputted into the Software. Xap will endeavour to prevent data loss, however, as the Software operates as a cloud-based service, provided through third parties, Xap does not make any guarantees that there will be no loss of data and does not represent or warrant that access to the Software, the Data or an Account will be available without interruption.
12.7 If the User enables third-party applications for use in conjunction with the Software, the User acknowledges that Xap may allow the providers of those third-party applications to access any inputted data as required for the interoperation of such third-party applications with the Software. Xap is not responsible for any disclosure, modification or deletion of data resulting from any such access by third-party application providers.

13. UPDATES AND SUPPORT
13.1 Xap will provide you with updates to the Software (Updates) for the duration of this Agreement.
13.2 You acknowledge that Xap has no obligation to provide you with any support for Updates to the Software, as agreed in this Agreement. Xap may, from time to time, issue updated versions of the Software and the Software may automatically connect to Xap or third-party servers via the Internet to check for available Updates to the Software, and may either (1) automatically electronically update the version of the Software that you are using on your computer or (2) give you the option of downloading it. By installing the Software you hereby agree to automatically request and receive Updates from Xap or third-party servers. You consent to such automatic upgrading, and agree that the terms and conditions of this Agreement will apply to all such Updates.
13.3 The Software may contain automatic communications features which relay certain non-personally identifiable information to Xap in connection with the operation of the Software. This information may include your Software settings and what version of the Software you are using. Xap may use this information for research purposes including statistical analysis of aggregate customer behaviour.
Xap Technologies Pty Ltd SOFTWARE SERVICE AGREEMENT
LegalVision ILP Pty Ltd owns the copyright in this document and use without permission is prohibited. Confidential Page 6 of 9
13.4 Xap can provide support to the User. If you require technical support, please contact Xap via the 24×7 ticket system at http://support.xap.technology/. All tickets are followed up by our support staff via the phone or email provided by the user in the ticket.
13.5 Whilst Xap intends that access to the Software via the Site and the App should be available on a full-time basis, it is possible that the Site or the App is unavailable to due to maintenance or other development activity.
13.6 Where possible, Xap will provide notice to its Users of any maintenance or development activity in advance by a notification on the Site and App.

14. SECURITY
Xap has implemented and will maintain security systems for the transmission of customer data, consisting of encryption and “firewall” technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. Xap does not guarantee the security of the these services and Xap will not be responsible in the event of any infiltration of its security systems, provided that Xap has used commercially reasonable efforts to prevent any such infiltration. You acknowledge and agree that you, and not Xap is responsible for the security of Data or any other information stored on your servers, and that Xap is not responsible for any other party’s servers.

15. FEEDBACK AND DISPUTE RESOLUTION
15.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact any member of our staff.
15.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Victoria to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
15.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.

16. LIMITATION OF LIABILITY AND DISCLAIMERS
16.1 Xap and the User agree that Xap’s liability for the Services provided via the Site, the App, and the Software is governed solely by the Australian Consumer Law to the extent applicable, and this Agreement.
16.2 Xap has no liability for use of the Software or App in countries other than Australia.
16.3 You acknowledge that whilst Xap will take reasonable steps to ensure that the Software will be fit for the purposes as advertised, Xap gives no guarantees that:
(a) the Software will meet your requirements as the functionality of the Software is dependent upon configuration with the End User System and other components;
(b) the Software will work in each of your desired use case scenarios; and
(c) the Software can be executed on every operating system, as it is impossible to test each variant.
16.4 The Software uses third party hosting services which are provided without any sort of warranties, and Xap cannot ensure that these third party hosting services are provided free of defect or without interruption.
16.5 Xap does not warrant that use of the Software will be uninterrupted or error free. The operation of the Software is dependent on public telephone services, computer networks, the Internet, which can be unpredictable and may from time to time interfere with the use of the Software. Xap accepts no responsibility for any such interference or prevention of your use of the Software.
16.6 All risk arising out of the use or performance of the Software remains with you. You understand and agree that the use of the Software, material or data downloaded or otherwise obtained through the use of the Software, is at your own discretion and risk and that you will be solely responsible for any infections, contaminations or damage to your computer, system or network. Xap is not responsible or liable for delays, inaccuracies, errors or omissions arising out of your use of the Software, any third party software or operating system.
16.7 To the maximum extent permitted by applicable law, Xap and its licensors disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party intellectual property rights or lack of viruses, for the Software. In no event will Xap or its licensors be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever arising out of this Agreement, the use of or inability to use the Software, even if Xap has been advised of the possibility of such damages.
16.8 The Software is not intended for use in the operation of medical instruments, water craft, military installations, warfare equipment, industrial control systems and or SCADA systems and or robotic systems, surgical/medical application or equipment, artificial intelligence application or system, gambling/wagering system, and prototype, experimental or single product items, nuclear facilities, aircraft navigation or communications systems or air traffic control machines or any other machines in which case the failure of the Software could lead to death, personal injury or severe physical or environmental damage.
16.9 The User acknowledges that Xap may pursue any available equitable or other remedy against you as a result of a breach by the User of any provision of this Agreement.
16.10 Xap or its licensors’ liability for breach of any of its obligations under this Agreement for the Software, or breach of any warranty implied by law, will be limited, to the extent permitted by law, to the total price paid for the License to execute the Software or any related Services. Xap’s total liability to you for all damages in connection with the Software will not exceed the price paid by you under this agreement for the Software. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
16.11 The User acknowledges and agrees that Xap will not be liable for any non-compensatory damages including punitive, aggravated, multiple, exemplary, liquated or any other non-compensatory damages or the consequences of non-payment.

17. AUSTRALIAN CONSUMER LAW
17.1 Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
17.2 Nothing in these Terms removes your Statutory Rights as a consumer under the ACL. You agree that our liability for Services provided to consumers is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
17.3 Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied; and we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
17.4 If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the services for or for a result which you have told us you wish the services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our services is limited to us re-supplying the services to you, or, at our option, us refunding to you the amount you have paid us for the services to which your claim relates.

18. INDEMNITY
18.1 You will be liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from: (i) any information that is not accurate, up to date or complete or is misleading or a misrepresentation; (ii) any breach of these Terms; (iii) and any misuse of the Software and/or License; from or by you, your employees, contractors or agents. 18.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our Software and License including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
18.3 The obligations under this clause will survive termination of these Terms.

19. NOTICE
19.1 Any notice required or permitted to be given to the User under these Terms will be addressed to the User at the email address provided by the User when requesting a License.

20. RELATIONSHIP OF PARTIES
20.1 Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party.
20.2 The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.

21. RIGHTS OF THIRD PARTIES
21.1 Any person or entity who is not a party to these Terms has no right to benefit under or to enforce any of these Terms.

22. ASSIGNMENT
22.1 This Agreement is personal to the Parties. A Party must not assign or deal with the whole or any part of its rights and/or obligations under this Agreement without the prior written consent of the other Parties.
22.2 Any purported dealing in breach of this clause is of no effect.

23. WAIVER OR VARIATION OF RIGHTS
23.1 Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.
23.2 A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.

24. POWERS, RIGHTS AND REMEDIES
24.1 Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.

25. FORCE MAJEURE
If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (Force Majeure), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

26. CONSENTS AND APPROVALS
26.1 Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.

27. FURTHER ASSURANCE
27.1 Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to this Agreement.

28. ENFORCEABILITY
28.1 If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provisions in question will not be affected.

29. COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Agreement.

30. ENTIRE AGREEMENT AND UNDERSTANDING
30.1 The date of this Agreement is the date that these Terms are accepted by the User.
30.2 In respect of the subject matter of this Agreement:
(a) this Agreement contains the entire understanding between the Parties; and
(b) all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement.

31. GOVERNING LAW AND JURISDICTION
31.1 This Agreement is governed by the laws of Victoria and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.

32. DEFINITIONS
Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.

For any questions or notice, please contact us at:

Xap Technologies Pty Ltd ABN 73 169 623 009
Level 1, 61-63 Wellington Street, St. Kilda, Vic 3182
Phone: +61 39099 2345
Email: clientservices@xaptech.com.au
Last update: 25 November 2015