Welcome to Encapto’s cloud-based solutions (Hosted Services). This Agreement (Agreement) details how You may and may not use the Hosted Services. This Agreement is legally binding, and if there is any part of it You can’t comply with, then You can’t use the Hosted Services.
1 Defined terms
In this Agreement, unless the context otherwise requires:
1.1 Encapto means Encapto Pty Ltd ABN 57 600 758 834, of 54-56 Langridge St, Collingwood, Melbourne, Victoria, 3066, Australia, the entity You have created this Agreement with and to whom You pay fees when You use the Hosted Services.
1.2 End Users means the ultimate user of the Hosted Services
1.3 Hosted Services means Encapto’s cloud-based solutions Encapto MSP or Encapto Wifi
1.4 Payment Terms are as defined in item of the Order Details section of this Agreement
1.5 Professional Services means Encapto’s installation, training, customisation and software development, as well as the provision of consulting and development activities, including project management, business analysis, training, technical configuration, IT Infrastructure engineering
1.6 Subscription is the thing that is created when You agree to abide by these rules and first access the Hosted Services and pay for the Hosted Services as detailed in this Agreement.
1.7 Support Services means Encapto’s helpdesk or maintenance services
1.8 System Users means the individuals You permit to access (and configure) the Hosted Services. When you create a System User, You agree to ensure that Your System Users comply with these rules. If You wish, You can allow Your System Users to create their own System Users. Your System Users may create End Users.
1.9 Subscriber means the person or entity that first accesses and uses the Hosted Services.
1.10 Subscriber Roles: As a subscriber, You are entirely responsible for managing and controlling how your Subscription is accessed. This means You:
(a) can transfer a Subscription
(b) allocate System Users to a specific access level and change the access level for Your System Usersat any time
(c) are responsible for resolving any disputes with any System Users over access to Your Subscription
(d) are responsible for all Your System Users’ and your End Users’ activity
1.11 You or Your mean the entity or firm You’re authorised to act on behalf of or the Subscriber.
2.1 Trial subscriptions: You may have the option to use the Hosted Services on a limited, free trial basis, based on the terms specified by Encapto at that time. If You use the Hosted Services after Your trial subscription has ended, You will be billed as detailed in clause 2.2. If You choose not to continue using the Hosted Services after the trial, Encapto may revoke Your access and delete Your content within 7 days of Your trial ending.
2.2 Hosted Services pricing plans: To use the Hosted Services, You must pay Your subscription fee (Subscription Fee), monthly, on time, in arrears, and in accordance with the Payment Terms.
2.3 Price per point increase: Subject to clause 2.4, Encapto will give you [at least 3 months] notice of any increase to Your base price per point
2.4 No price increase: If Your Subscription has a Minimum Contract Term, Your price per point will not increase during that Minimum Contract Term. No increase will apply to Your price per point before the first anniversary of Your Service Start Date (as defined in the Order Details).
2.5 All Fees are exclusive of all value-added taxes, which, if applicable, must be paid at the same time as the Fee.
2.6 If You dispute Encapto’s invoice or Encapto’s invoice to You contains an error detected by Encapto, You and Encapto will investigate such issue and work to resolve such issue within 30 days of the issue being raised. The resolved invoice must be paid within 7 days of the invoice being resolved (and, if necessary, within 7 days of the invoice being reissued).
3 Data use and privacy
3.1 Use of Your data: You grant Encapto a licence to use, copy, transmit, store, process, analyse and backup any data, including personal data that You enter into the Hosted Services, for any of the following purposes:
(a) to: enable You to use the Hosted Services; and
(b) help Encapto improve, develop and protect the Hosted Services and to create new services.
Encapto may use Your personal data to send You information Encapto thinks may be of interest to You based on Your marketing preferences. You are responsible for ensuring Your data (including Your subscription details) is accurate, correct and complete and kept up-to-date.
3.4 Anonymised statistical data: Encapto may create anonymised statistical data from Your data and usage of the Hosted Services, including through aggregation. Once anonymised, Encapto may use it for Encapto’s own purposes, such as to provide and improve Hosted services, to develop new services or product offerings, to identify business trends, and for other uses Encapto communicates to You.
3.5 Data breach notifications: Where Encapto thinks there has been unauthorised access to personal data You have entered into the Hosted Services, Encapto will let you know and give you information about what has happened. Depending on the nature of the unauthorised access, and the location of Your affected contacts, You may be required to assess whether the unauthorised access must be reported to the contact and/or a relevant authority. Encapto will rely on Your decision regarding this requirement as You’ll have the most knowledge about the personal data stored in relation to Your use of the Hosted Services.
3.6 European Economic Area (EEA): If You or Your System Users or End Users are in the EEA, Encapto will use best efforts to ensure that Your personal data remains in the EEA. If Encapto is required to move the personal data of a user in the EEA outside of the EEA (such as for support purposes), then in such instance the standard contractual clauses in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals concerning the processing of personal data and on the free movement of such data, that exist as at the date of this Agreement will apply.
4 Confidential information
4.1 Keeping it confidential: While using the Hosted Services, You may share confidential information with Encapto, and You may become aware of confidential information about Encapto. You and Encapto both agree to take reasonable steps to protect each other’s confidential information from being accessed by unauthorised individuals. You or Encapto may share each other’s confidential information with legal or regulatory authorities if required to do so.
5.1 Security safeguards: Encapto has invested in technical, physical and administrative safeguards to do our part to help keep your data safe and secure. Encapto believes these measures are reasonable; however Encapto does not guarantee that your data is absolutely secure. Encapto will notify You if Encapto learns of unauthorised access to Your account, and Encapto may also restrict access to certain parts of Encapto’s services until You verify that access was by You or a System User.
5.2 Login details: Your login details must be kept secure and confidential, so no one else may use them. You must also have strong security on Your own systems. If you realise there’s been any unauthorised use of Your Subscription then You must let Encapto know immediately.
6 Other providers
6.1 Other services: Some of Encapto’s services are available through other companies’ services or plugins from other companies, such as Facebook login API. These companies are independent of Encapto and You must investigate to see if they will charge you fees for the use of their services. These companies will have additional terms that apply to you, it is your responsibility to be aware of and comply with these.
7 Maintenance, downtime and data loss
7.1 Availability: Encapto will do our best to ensure Encapto’s services are available as much as possible. Encapto provides supportin accordance with your support package. If Encapto experiences scheduled downtime, Encapto will do its best to provide at least 2 Business Days’ notice of this, but Encapto does not guarantee notice will always be given.
7.2 Data loss: Data loss is an unavoidable risk when using any technology. You agree to ensure You have a backup of anything You enter into the Hosted Services.
7.3 No compensation: We do not compensate for downtime or loss of data.
8 How you can and how you cannot use our Hosted Services
8.1 Use of the Hosted Services: Provided You comply with this Agreement, including by paying for Your Subscription, Encapto will permit You to use the Hosted Services, until Your Subscription is cancelled, or – if You’re a System User or End User – until Your access is revoked.
8.2 You will ensure Your System Users enter into an agreement that gives Encapto the same rights in relation to Your System User as this agreement gives Encapto with you.
8.3 You are responsible for anything Your System Users (and where applicable, their System Users) and all End Users do in our Hosted Services.
8.4 Your Feedback: Encapto may use it without restriction.
8.5 No-charge or beta services: If Encapto offers a service at no charge – for example a beta service, or a time-limited trial account. Because of the nature of these services, You use them at Your own risk.
8.6 Prohibited Conduct: You must not ever:
(a) undermine the security or integrity of Encapto’s computing systems or networks;
(b) use Encapto’s services in any way that might impair functionality or interfere with other people’s use;
(c) access any system without permission;
(d) introduce or upload anything to our services that includes viruses or other malicious code;
(e) share anything that may be offensive, violates any law, or infringes on the rights of others;
(f) modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of our services;
(g) commit fraud or other illegal acts through our services; or
(h) act in a manner that is abusive or disrespectful to an Encapto: employee, contractor, partner, or customer. We will not tolerate any abuse or bullying of Encapto’s employees or contractors in any situation and that includes interaction with Encapto’s support teams.
9 The end of your Subscription
9.1 Cancel for no reason: You can cancel Your Subscription by giving us one month’s written notice. If You cancel, You must pay all relevant Fees up to and including the day of termination including any Minimum Term Fees. Encapto may cancel Your Subscription by giving you thirty days’ written notice.
9.2 Cancelling for a reason: Either You or Encapto may cancel or suspend your Subscription or use of our services immediately if:
(a) the other party breaches any portion of this Agreement does not remedy the breach within 14 days after receiving notice of the breach,
(b) a party reasonably suspects fraud by the other party or any other person in connection with the Service
(c) the other party breaches any of this Agreement and that breach cannot be remedied,
(d) the other party becomes insolvent, its business goes into liquidation or has a receiver or manager appointed over any of its assets, the other party become insolvent or make any arrangement with its creditors, or become subject to any similar insolvency event in any jurisdiction.
9.3 Encapto can also cancel Your Subscription if you fail to pay your Subscription Fees as and when they fall due.
9.4 No refunds: No refund is due to You if You terminate Your Subscription or Encapto terminates it in accordance with these terms.You must pay any Subscription Fees that accrued prior to the date your Subscription was terminated.
9.5 Once your Subscription is terminated, You must cease using the Service immediately.
9.6 Retention of Your data: Once a subscription is terminated by You or Encapto, it is archived and the data submitted or created byYou is no longer available to You. Encapto retains it for a period 30 days after the termination of Your Subscription after which Your data is permanently deleted.
10 Our Intellectual Property
10.1 Encapto owns the intellectual property rights in everything in the Hosted Services and our services except for content owned by You and any Third-Party licensed content. This means Encapto owns or has the right to licence the rights in the design, compilation, and look and feel of our services. Encapto owns the rights in all copyrighted works, trademarks, designs, inventions, and any other recognised intellectual property right. You must not to copy, distribute, modify or make derivative works of any of our services or use any of our intellectual property rights in any way not expressly permitted by Encapto (and You will ensure that Your System Users and Your End Users do not do any of these acts either).
11 Liability and indemnity
11.1 You indemnify Encapto: You indemnify Encapto against all losses, costs (including legal costs), expenses, demands or liability that Encapto incurs arising out of, or in connection with, a third-party claim against Encapto relating to your use of our services or any third-party product (except as far as Encapto is at fault).
11.2 Disclaimer of warranties: Our services and all third-party products are made available to You on an “as is” basis. Subject to the consumer law terms in section 13.3, we disclaim all warranties, express or implied, including any implied warranties of non-infringement, merchantability and fitness for a particular purpose. Encapto does not warrant that any availability of Encapto services beyond your Subscription Term nor does Encapto warrant to provide any service upgrades or feature enhancements.
11.3 Limitation of liability: Other than liability that Encapto can’t exclude or limit by law, Encapto’s liability to You in connection with Encapto’s services or these terms, in contract, tort (including negligence) or otherwise, is limited as follows:
(a) Encapto has no liability arising from Your use of the Hosted Services, the Support Services or the Professional Services or any other Encapto services for any loss of revenue or profit, loss of goodwill, loss of customers, loss of capital, loss of anticipated savings, legal, tax or accounting compliance issues, damage to reputation, loss in connection with any other contract, or indirect, consequential, incidental, punitive, exemplary or special loss, damage or expense.
(b) For loss or corruption of Your data, Encapto’s liability will be limited to taking reasonable steps to try and recover that data from Encapto’s available backups.
(c) Encapto’s total aggregate liability to You in any circumstance is limited to the total amount You paid Encapto in the 12 months immediately preceding the date on which the claim giving rise to the liability arose.
12.1 Dispute resolution: Please contact us with Your concerns, and Encapto will do its best to resolve them quickly and to everyone’s satisfaction. If Encapto is unable to resolve Your complaint to Your satisfaction (or if Encapto hasn’t been able to resolve a disputeEncapto has with You after attempting to do so informally), you and Encapto agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. You and Encapto agree that any dispute must be brought in the parties’ individual capacity and not as a plaintiff or class member in any purported class or representativeproceeding.
12.2 The courts of Victoria, Australia will have jurisdiction over any claim arising from, or related to, a visit to our Websites or the use of or any attempted use of any Encapto services although we retain the right to bring proceedings against you for breach of these conditions in your country of residence or in any other relevant country.
12.3 These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Victoria, Australia.
13 General Terms
13.1 USD: All Fees charged by Encapto are charged in United States Dollars.
13.2 Events outside our control: Encapto is not liable to You for any failure or delay in performance of any of our obligations under these terms arising out of any event or circumstance beyond Encapto’s reasonable control.
13.4 Assignment: Both You and Encapto promise to only assign this agreement after you have obtained the other party’s prior written consent to do so.
13.5 Consumer laws: The Australian Consumer Law contains non-excludable warranties, guarantees or other rights (non-excludable consumer guarantees). They apply to these rules and these rules do not exclude, restrict or modify them. Except for non-excludable consumer guarantees and other rights You have that Encapto cannot exclude, Encapto is bound only by the express promises made in these terms. Encapto’s liability for breach of a non-excludable consumer guarantee is limited, at Encapto’s option, to either replacing or paying the cost of replacing the relevant service (unless the non-excludable consumer guarantee says otherwise).
13.6 Relationship between the parties; assignment: Nothing in these rules implies or is to be interpreted as constituting a partnership, joint venture, employment or agency relationship between you and us, or between you and any other subscriber or System User.
13.7 No disrepute: You must not do anything to bring Encapto or the Hosted Services into disrepute.
13.9 Enforcement of terms: If there’s any part of these terms that either one of us is unable to enforce, both You and Encapto will ignore that part but everything else will remain enforceable.
13.10 Interpretation: Words like ‘include’ and ‘including’ are not words of limitation and where anything is within our discretion we mean our sole discretion.