Terms of Service

Terms and conditions governing provision of services

Clevertar^TM and other services we provide are subject to the following terms and conditions.

Definitions and Interpretation

Unless the context otherwise requires the following words have the following meaning:-

“App” means an app which is used to access a solution delivered using the Platform;
“Approved App User Terms” means terms and conditions relating to access and use of Services by Users, as approved by us from time to time. A copy of the current approved version is attached as Attachment B;
“Business Day” means a weekday, other than a gazetted public holiday in Adelaide,
Australia.
“Confidential Information” of a party (discloser) means all information of the discloser or its related bodies corporate which is marked as confidential or can reasonably be inferred to be confidential due to its nature or from the circumstances in which it is disclosed, but does not include information which:
1. is in or comes into the public domain, other than by disclosure in breach of these terms and conditions;
2. was already in the lawful possession of the recipient at the time of first disclosure to the recipient; or
3. is disclosed to the recipient from a third party entitled to disclose it;
“Content” means the combination of Your Content, Our Content and any Third Party Content incorporated in the Platform;
“Contract” means this agreement.
“Contract Duration” means the initial term of our engagement specified in the Proposal plus any agreed extensions;
“Deliverable” means a work product or service to be delivered by us under the
Contract.
“Fees” means the fees set out in the Proposal.
“Our Content” means any scripts and other content that we make available on the Platform for access and use by your Users but does not include Third Party Content;
“Password” means the code or codes required for you or a User to obtain access to or use the Platform;
“Payment Terms” means the terms for payment of Fees set out in the Proposal;
“Platform” means the instance(s) of the ClevertarTM platform established for you;
“Proposal” means the proposal provided by us to you (including all attachments) and includes any written variations to that proposal agreed to by us;
“Restrictions” means any limitations on the types or extent of use specified in the Proposal or these terms and conditions;
“Services” means the provision of the Platform and other services identified in the Proposal and any other services which we agree to provide;
“Services Program” means the program set out in the Proposal (if any) for the trial and subscription to any of the Services;
“Submitted Data” means any data submitted by you or by Users in the course of the use of the Services;
“Third Party Content” means any third party licensed scripts and other content that is made available on the Platform for access and use by your Users,
“User” means any of your staff, contractors , customers or anyone else that you have validly authorised to access or use the Services;
“we”, “us” or “our” means Clevertar Services Pty Ltd (ACN 630 423 380) and its related corporations and their respective officers, employees, agents and contractors including (without limitation) site hosts, operators, developers and contributors of Our Content;
“you” or “your” means the customer(s) identified in the Proposal:
“Your Content” means any scripts or other content provided by you which is incorporated in our Platform and includes any Submitted Data: and
“Your Responsibilities” means your responsibilities as specified in the Proposal and these terms and conditions.

Payment for Services
1. You must pay us the Fees in accordance with the provisions of the Payment Terms.
2. Subject to clause 2.3, payment of Fees must not be refused or delayed, notwithstanding any dispute between you and us.
3. If a genuine dispute arises regarding the amount of a Fee, you may suspend payment of the disputed amount pending resolution of the dispute but you must pay all other amounts in accordance with the Payment Terms.
4. Subject to clause 2.3, If you fail to pay any amount to us by the due date, then (without limiting any other remedies) we may temporarily or permanently suspend the provision of all or some Services on five clear Business Days’ written notice to you.
5. Any periodic fees or time and materials rates specified in the Proposal may be increased by us from time to time by written notice. Unless exceptional circumstances arise which substantially increase our costs, we will only increase our fees once in each calendar year in line with CPI, with the increase taking effect on 1 July of the relevant year (a “Review Date”). No annual increase will apply on the first Review Date if this occurs within the first 12 months after the date of your acceptance of the Proposal (but increases may apply on each subsequent Review Date).
6. If any new or varied tax is introduced (other than on our income) which increases our costs or reduces our profit in providing Services, the parties may agree in writing to make an appropriate adjustment to our Fees.
Access to and use of Services
1. Subject to your payment of Fees and prior acceptance by a User of the Approved App User Terms, you and Users are authorised to access and use the Services for the Contract Duration. In order to access the Services, a User will need to have downloaded an appropriate App to a device running a supported version of an operating system. You are responsible for ensuring that Users read and accept the Approved App User Terms prior to using the Services (for example by displaying the terms on your web site and prominently and effectively directing Users’ attention to them).
2. You must ensure that your access to and use of the Services complies at all times with any Restrictions.
3. You must not resell our Services and you must not permit third parties (apart from Users) to access or use our Services, except to the extent expressly authorised by us in writing.
4. We will take all reasonable measures to prevent unauthorised access and use of the Services but you acknowledge that notwithstanding these measures unauthorised access and use of the Services may occur.
5. We do not monitor Your Content or act as a moderator and we accept no responsibility for Your Content including any Submitted Data. You must immediately remove any of Your Content if we notify you that we consider it objectionable and you acknowledge that if you fail to do so then (without limiting our other remedies) we may remove the relevant parts of Your Content or may suspend access to and use of the relevant Services.
6. You may only “white label” or otherwise rebadge our Services or any part of the Platform if (and to the extent that) we expressly authorise this in the Proposal.
Provision of Services
1. We will provide the Services to you in accordance with the Proposal and in a timely way and to a standard reasonably to be expected of an expert software developer with particular expertise in artificial intelligence applications and free from material errors (Required Standard)
2. The Services will be provided to you for the Contract Duration unless our engagement is terminated at some earlier time in accordance with these terms and conditions
3. The Services are provided to you on a non-exclusive and non-transferable basis.
4. The Services will be provided in accordance with all applicable laws, due care and skill and with sound and accepted professional practice existing at the date of your acceptance of the Proposal.
5. Our provision of the Services is subject to you:
  1. complying with Your Responsibilities as and when required by us; and
  2. paying Fees to us in accordance with the Payment Terms.
6. The Services may be provided by us or by a suitable contractor appointed by us.
7. We will endeavour to provide the Services without unreasonable delay but we will not be liable for any failure or delay in the provision of the Services which is caused or contributed to by you or your contractors or an event outside our direct reasonable control.
8. You acknowledge that our provision of Services and your access to and use of the Services will be dependent in part on the adequacy and reliability of your infrastructure and on various third parties over whom we have no control (such as telecommunications service providers and ISP’s). Accordingly, we do not provide any warranty or assurance regarding the time for completion by us of any Services or the reliability, availability or quality of Services.
9. You acknowledge that from time to time the Services will be unavailable due to scheduled or unscheduled maintenance and that we will have no liability for such unavailability. We will use reasonable endeavours to program scheduled maintenance so as to limit its impact on your operations.
10. Where the Services suffer from a defect which is within our direct control, we will endeavour to achieve the problem resolution times set out in the following table, but cannot always guarantee this:

Defect severity

Target resolution time

Critical - Services are not available or
response times or outage levels are so
high that Services are not used; A
significant component of Content is corrupted, lost or functionally disabled.

1 business days after we receive notification of the defect.

Serious – A significant proportion of Services are not available or response times or outage levels are so high that those Services are not used.

3 business days after we receive notification of the defect.

Defects other than Critical or Serious defects.

10 business days after we receive notification of
the defect.

‍

A “defect” is where the Services are not being provided in accordance with the Proposal or any specifications published by us as a result of some deficiency in our software or as a result of the corruption, loss or functional disablement of any Content. A “defect” does not include any problems caused by your improper use of the Services or Content, your failure to comply with any of our recommendations or requirements including any requests for assistance, your use of the Services with equipment or third parties’ programs or services other than those approved by us, or supplying information available through recommended training or in user documentation. If any services you request are not covered by defect support, then you must pay for those services at our then applicable rates.
You agree to provide us with particulars of the defect in a format specified by us and to provide us with any required assistance in the diagnosis of the defect.
Your Content will be stored in the cloud within Australia using suitable third party cloud service providers who will apply industry standard security processes to protect Your Content. For so long as this agreement continues and Fees are paid when due, Users will be able to access and use Your Content.
On reasonable notice to you, we may modify the functionality and other characteristics of the software used to provide the Services from time to time and this may have consequential impacts on the Services provided to you.
If a payment by you is conditional upon achievement of a milestone or your acceptance of satisfactory completion, we will notify you when we consider the relevant items have been satisfactorily completed (a “Completion Notice”). Upon receipt of a Completion Notice, you must respond in writing within 7 days and your response must either confirm satisfactory completion or reject satisfactory completion and provide details of the grounds of the rejection (a “Rejection Notice”). If you issue a Rejection Notice, then (providing we do not dispute its validity) we will address the issues raised in the Rejection Notice and then issue a further Completion Notice. The provisions of this clause will apply with respect to any re-issued Completion Notice. If you fail to respond to a Completion Notice or a re-issued Completion Notice within the specified time, then you will be deemed to accept satisfactory completion of the relevant items.

Variation of Services to be provided
1. If we suggest or if you request a variation of the Services to be provided pursuant to the Proposal including (without limitation) the provision by us of additional services, we will provide you with a written proposal specifying the cost and other terms upon which we would be prepared to agree to that variation.
2. Neither you nor we are obliged to agree to any variation, but you and we agree to review and discuss any variation proposal in good faith.
Intellectual Property Rights, Data, Confidentiality & Privacy
1. We retain all copyright and other intellectual property rights in our software, Our Content, know how and the materials we apply or produce in delivering the Services including any deliverables and we retain or obtain all intellectual property rights with respect to any copies, reproductions, adaptations, additions to, enhancements, alterations, modifications or translations made of that software, know how or those materials. The relevant third party will retain all copyright and other intellectual property rights in any Third Party Content.
2. We warrant that our provision of the Services will not infringe the intellectual property rights of any third party and we agree to indemnify you against any liability you may reasonably sustain if our provision of the Services infringes the intellectual property rights of any third party. If any aspect of the Services infringes a third party’s intellectual property rights, we will arrange a non-infringing work-around, obtain a licence at our cost permitting your use of the relevant Services or suspend the availability of such Services.
3. You will give us notice of any infringement of our copyright or any other right of ours that comes to your attention.
4. Subject to our obligations under clause 6.5, you grant us a perpetual, non-revocable, royalty-free worldwide licence to use, reproduce, sub-license, modify and exploit Your Content and any other material you provide to us in order to:
  1. provide the Services;
  2. improve the Services and any products and services offered to our customer base;
  3. develop new products and services, including but not limited to market, branding, consumer and commerce insight and intelligence services; and/or
  4. train conversational AI agents.
5. You warrant that our use of any of Your Content or other material provided by you will not infringe the intellectual property rights of any third party. You will indemnify us and our contractors against any liability we or they may reasonably sustain if Your Content or other material you provide infringes the intellectual property rights of any third party.
6. You will retain ownership of, and all intellectual property rights in, Your Content. To the extent that we use Your Content for any purpose other than providing the Services to you, we will appropriately aggregate, modify and/or de-identify Your Content prior to use in order to comply with our confidentiality and privacy obligations set out at clauses 6.7 and 6.10.
7. We must:
  1. not transfer Your Content outside Australia, or knowingly allow any person who is located outside of Australia to access Your Content, without your prior consent;
  2. comply with any reasonable direction given by you in relation to security, use or disclosure of Your Content provided that any additional security requirements may need to be addressed as a variation with an appropriate increase in our Fees.
8. We must treat your Confidential Information as confidential. We agree not to disclose such information to any other party without your prior written permission or except as required by law. We may only use such information and may only disclose this information to the extent necessary to enable us to perform our obligations in accordance with the Proposal.
9. You must treat our Confidential Information as confidential. You agree not to disclose such information to any other party without our prior written permission or except as required by law. You may only use such information and may only disclose this information to your employees and contractors to the extent necessary to give effect to the objectives identified in the Proposal.
10. You must treat our Confidential Information as confidential. You agree not to disclose such information to any other party without our prior written permission or except as required by law. You may only use such information and may only disclose this information to your employees and contractors to the extent necessary to give effect to the objectives identified in the Proposal.
11. The confidentiality obligations set out at clauses 6.7 and 6.8 continue for the Contract Duration and for 5 years thereafter.
12. Each party must comply with the Australian Privacy Principles (or any future replacement of these privacy requirements) and privacy laws with respect to any personal information they receive or obtain in connection with the Services including, without limitation, personal information obtained from Users or third parties. You are responsible for ensuring that Submitted Data is collected in accordance with the Australian Privacy Principles (for example, by displaying an appropriate collection statement), and that Users effectively consent to the use, storage and disclosure of Submitted Data as contemplated by these terms and conditions. Each party will promptly notify the other if a notifiable data breach occurs or it becomes aware of a possible breach of privacy law and the parties will co-operate and determine an agreed approach to the investigation, management and reporting of any notifiable data breach in compliance with all applicable laws.
13. The provisions of this clause 6 shall survive and continue to be binding upon you and us, notwithstanding termination.
Warranties & liability
1. If any warranty or condition is implied by law which may not be excluded or restricted (a “non-excludable term”) our liability for any breach of a non-excludable term is limited solely to the resupply of the relevant Service or payment to you of the cost of having the Service provided again (at our option).
2. Apart from the express warranties contained in these terms and conditions and subject to any non-excludable terms, all warranties with respect to the Services are hereby expressly excluded. We accept no liability for the provision of the Services, whether arising by reference to the provisions of the Proposal, implied terms, tort or otherwise howsoever. If circumstances arise where you are entitled to claim damages from us notwithstanding the provisions of these terms and conditions, our liability to you for the aggregate of all such claims (regardless of the basis on which you are entitled to claim from us including, without limitation, negligence) is limited to the lesser of:
  1. the amount of any actual loss or damage which you sustain;
  2. the higher of (i) two times the Fees received by us from you during the preceding 12 months; and (ii) any amount actually received by us from our insurers with respect to our liability to compensate your loss or damage.
3. The liability cap in clause 7.2 will not apply with respect to our liability to you for death, personal injury, damage to tangible property, infringement of third party intellectual property rights or breach of confidentiality obligations.
4. You acknowledge that you have relied upon your own skill and judgement in determining the appropriateness of the Services for your own particular purposes and you have not relied on any statement or representation made by us or on our behalf prior to the date of entry into this agreement.
5. In no event will a party be liable for any indirect or consequential loss or damage, loss of profits, loss of savings or loss of revenue even if it has been advised of the possibility of such damages.
Default
1. If a party (the “Defaulting Party”) commits any default with respect to the due observance or performance of any of its obligations under these terms and conditions, then the other party (the “Innocent Party”) may, without prejudice to any other rights the Innocent Party may have, give written notice to the Defaulting Party identifying the default and requiring that the default be remedied (a “Default Notice”).
2. If the Defaulting Party fails to remedy a default within 14 days after receipt of a Default Notice or, where the default is not capable of being remedied within 14 days and the Defaulting Party fails within that period to commence to remedy the default or fails to diligently proceed to remedy the default, then the Innocent Party may terminate the arrangements between you and us by written notice to the Defaulting Party.
3. A party may terminate the arrangements governed by these terms and conditions by written notice if it reasonably considers that the other party is or is likely to become insolvent.
4. If termination occurs, then (without limiting any other remedies) you must pay us any amounts that are due plus an amount equal to the value of any work completed or partially completed by us up to the date that the termination takes effect and which has not yet been invoiced (including any third party expenses incurred by us in connection with the Services). No refund of any pre-payment will be made if termination occurs.
Additional terms
1. You agree not to assign or transfer or otherwise deal in any way with any rights we grant or obligations you undertake without our express written permission, which permission may be granted or granted subject to conditions or refused in our absolute discretion.
2. Neither party shall, without the prior written consent of the other party, employ or enter into contractual arrangements with, offer employment or contractual arrangements to, or solicit requests for employment or contracts from, any current or former employee or contractor of the other party for a period commencing on the acceptance of the Proposal and ending 12 months after termination of all contractual arrangements between you and us.
3. No right will be waived by a party except by express written notice signed by that party.
4. If any provision of these terms and conditions is found to be invalid, unenforceable or illegal, then that provision will be deemed to be deleted to the extent necessary to remove the invalid, unenforceable or illegal portion and the balance of these terms and conditions will remain binding.
5. If any dispute arises between you and us which can not be resolved by negotiation within 14 days of a party sending the other party written notice containing details of the dispute, either party may commence proceedings, provided that this provision will not apply where you or we reasonably conclude that injunctive or other urgent proceedings are necessary to protect its position.
6. Notices or other formal communications may be given by hand delivery, by mail or by email transmission and will be deemed to be received:
  1. in the case of hand delivery, upon delivery;
  2. in the case of mail, three (3) business days after the date of posting the article; or
  3. in the case of email, upon completion of transmission (except where transmission is completed after 5:00 pm on a business day, in which case receipt is deemed to occur at 9:00 am on the next business day).
7. The Proposal is the complete and exclusive statement of the agreement between you and us and it supersedes all proposals or prior agreements, oral or written, and all other communications relating to the subject matter of the Proposal.
8. The parties are independent contractors and are not in a partnership or joint venture relationship. Neither you nor we may purport to act on behalf of the other party unless expressly authorised to do so in writing.
9. Due to the ongoing nature of these arrangements, we may vary any aspect of the arrangements (including any of these terms and conditions and the provisions of the proposal) by giving you not less than 60 days written notice of the variation(s). If you do not wish to be bound by the variation(s), you may terminate the agreement by written notice of termination to be provided to us not less than 30 days before the variation(s) takes effect.
10. If any provision of these terms is unlawful, void or for any reason unenforceable, then that provision shall be deemed severed from these terms and shall not affect the validity and enforceability of any remaining provisions.
11. The arrangements between you and us are made in accordance with, and are subject to, the laws of South Australia. You and we irrevocably agree that all legal proceedings arising in connection with these arrangements must be prosecuted in the Courts of South Australia.
12. Any person accepting the Proposal on your behalf warrants that they are duly authorised to do so.

Attachment B – Approved App User Terms

APP USER TERMS

Scope and Definitions
1. The following App User Terms govern all access to and use of the App by a User.
2. IMPORTANT – You must not access or use the App unless you accept these App User Terms and any additional terms and disclaimers which may be brought to your attention in connection with your access and use of the App.
3. IMPORTANT – Use of the App is not a substitute for appropriate professional advice.
4. In these terms and conditions:

“App” means an app which allows the User to access and use a Solution;

“Applicable Duration” means a period during which you are validly authorised to access and use the App;

“Content” means any content made available by use of the App and includes any content and scripts the Customer provides, any content and scripts we provide, any third party content and scripts and any Submitted Data;

“Customer” means the entity which has engaged us to provide the Solution and which authorises Users to access and use the Solution;

“Solution” means the solution established on the ClevertarTM platform for the Customer;

“Submitted Data” means data submitted by a User or collected by us in the course of use of the App;

“User”, “you” and “your” means any person who accesses and uses the App; and

“we”, “us” and “our” means Clevertar Services Pty Ltd (ACN 630 423 380) ) and its related corporations and their respective officers, employees, agents and contractors including (without limitation) site hosts, operators, developers and contributors of content.

General conditions of access and use
1. By accessing or attempting to access the App, each User agrees to be bound by and to comply with these User Terms and any instructions and directions issued by us from time to time.
2. In order to use the App, a User will need to download the App to a device running a supported version of an operating system. The versions supported may change from time to time and the User may need to update the User’s device in order to continue using the App.
3. A User may only access and use the App for the Applicable Duration.
4. A User must not cause or permit a third party to access or use the App unless that third party has registered as a User and accepted these User Terms.
5. Each User must take reasonable precautions to prevent unauthorised access or use of the App and Content and must maintain the security and secrecy of their user name, password and any other access code(s).
6. A User must not (and must not permit anyone else to) contravene any laws of Australia or of any other country, engage in the mass distribution of unsolicited advertising or promotional material, attempt any “denial of service” attack, attempt to obtain unauthorised access to any computer systems or data, store or distribute defamatory material or material which incorporates executable instructions which produce an undesired result (such as software viruses) or material which constitutes sexual harassment, interfere with the use or enjoyment of internet access by other internet users or do or omit to do anything which may detrimentally affect our software, data, computer systems or business.
7. We do not monitor, control or verify the accuracy or completeness of Content and we are in no way responsible for the Content or any other information or data accessed or transmitted by you.
8. Software and/or infrastructure updates relating to the App may be periodically scheduled and provided by us. Your ability to access and use the App may be suspended or limited during these and other maintenance activities.
9. We do not provide end user support for Users. Any issues you experience should be reported to the provider of the Content accessed through the App.
Copyright, confidentiality & privacy
1. We retain all copyright and other intellectual property rights in our software and the App and any related material and any associated modifications, enhancements and adaptations. We or the Customer or third party content providers retain intellectual property rights in the Content which each of them makes available as part of the Solution.
2. The Customer will retain ownership of Submitted Data. The User acknowledges that access to and use of Submitted Data will depend on continuation of the User’s rights to access and use the App.
3. Each User consents to (a) the disclosure and use of Submitted Data as reasonably required to enable effective functioning of the App; and (b) our use of a de-identified version of the Submitted Data for any reasonable purposes.
4. Subject to the provisions of this clause, you and we will comply with the Australian Privacy Principles with respect to any personal information which you or we receive in connection with the provision of the App. Details of our privacy policy can be viewed at our website https://www.clevertar.com. Notwithstanding anything in these terms or our privacy policy, we will not use your personal information for the purpose of direct marketing, or for any other commercial purpose.
Warranties and liability
1. We warrant that access to and use of the App by a User in accordance with these terms will not infringe the intellectual property rights of any third party. If such access or use infringes a third party’s intellectual property rights, we will either arrange a non-infringing work-around, obtain a licence at our cost permitting such access or use or suspend the availability of such access or use.
2. Unauthorised access and faults in software can and do occur. Accordingly, we do not warrant that the App will be available on a continuous or uninterrupted basis or that the App will be error free.
3. We shall be under no liability to a User or any other party in respect of any loss or damage (including loss of profit or savings, loss of or damage to data or any direct, indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the App or in respect of a failure or omission on our part to comply with our obligations or otherwise. Without limitation, we will not be liable for any loss, damage or expense arising from your failure to obtain and follow regular and appropriate medical and other professional advice.
4. To the maximum extent permitted by law, all warranties (apart from the warranty in clause 4.1 above) whether express, implied, statutory or otherwise, relating in any way to these terms or access and use of the App are excluded. Where any term is implied in this agreement by law and cannot be excluded by express agreement, that term is included. Our liability for any breach of such an implied term is limited (at our option) to resupplying the relevant App or paying the reasonable cost of having the App supplied again.
5. Each User must indemnify us and keep us indemnified against all loss, liability, costs and expenses (including without limitation, legal expenses on a solicitor-client basis) which we may incur as a direct or indirect result of access or use of the App by that User or as a consequence of the observation of the App in operation (facilitated by the User) including (without limitation) any claims against us based on the acts or omissions of an observer.
Additional matters
1. Each User’s access and use of the App is subject to the laws of South Australia and each User irrevocably agrees that all legal proceedings arising in connection with these arrangements must be prosecuted in the Courts of South Australia.
2. If any provision of these terms is unlawful, void or for any reason unenforceable, then that provision shall be deemed severed from these terms and shall not affect the validity and enforceability of any remaining provisions.Heading 2