These Customer Terms of Service (the “Customer Terms”) describe your rights and responsibilities when using our OCMP platform (the “Services”). Please read them carefully. If you are a Customer (defined below), these Customer Terms govern your access and use of our Services. If you are being invited to a Course by an Organisation, the User Terms of Service (the “User Terms”) govern your access and use of the Services.
The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.
For the purposes of these Terms and Conditions:
These are the Terms and Conditions governing the use of this Service and the agreement that operates between You and the Company. These Terms and Conditions set out the rights and obligations of all users regarding the use of the Service.
Your access to and use of the Service is conditioned on Your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all visitors, users and others who access or use the Service.
By accessing or using the Service You agree to be bound by these Terms and Conditions. If You disagree with any part of these Terms and Conditions then You may not access the Service.
You represent that you are over the age of 18. The Company does not permit those under 18 to use the Service.
If you continue to use the OCMP Platform to manage an Organisation (i.e., a digital space where a group of users may access the Services), invite users to that Organisation, after being notified of a change to these Customer Terms, you acknowledge your understanding of the then-current Contract and agree to the Contract on behalf of the Customer. Please make sure you have the necessary authority to enter into the Contract on behalf of the Customer before proceeding.
Who is “Customer”? (Hint: There can be only one)
“Customer” is the organisation that you represent in agreeing to the Contract. If your Organisation is being set up by someone who is not formally affiliated with an organisation, the Customer is the individual creating the Organisation. For example, if you signed up using a personal email address and invited a couple of friends but haven’t formed a company yet, you are the Customer.
What This Means for the Customer—and for Us
Individuals authorised by the Customer to access the Services (an “Authorised User”) may submit content or information to the Services, such as messages or files (“Customer Data”), and the Customer may exclusively provide us with instructions on what to do with it. For example, the Customer may provision or deprovision access to the Services, choosing to use third party integrations, manage permissions, given higher level access to someone not related to the Customer or it’s users since these choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all Customer Data.
Customer will (a) inform Authorised Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) ensure the transfer and processing of Customer Data under the Contract is lawful.
Subscriptions and Payment Agreement
No matter the role, a Company subscription is required for each Authorised User. The authorised user will be the Organisation/Company Admin and will have the highest access level within that organisation. A subscription could be requested via the Customer’s authorised person to us. The Authorised User must agree to the User Terms to activate their account. Each Customer subscription is for a single term (currently only yearly) the Customer needs to inform us at least 30 days prior to the current subscription ends if they want to discontinue the service.
If no written service termination notice is provided before the due date (30 days prior the subscription end date), the subscription will automatically get renewed and the Customer is liable to pay the renewal fee as agreed.
We may or may not agree with a Customer to have admin access to a demo account to use for a maximum of 14 days. The access to the account will automatically get revoked after that period.
If a customer agrees to subscribe to use OCMP, they will let us know which plan they want to subscribe to and with the agreed payment. The details of the plan & the pricing are in https://www.ocmp.com.au/#ocmp-pricing
Use of the Services
Customers must comply with the Contract and ensure that its Authorised Users comply with the Contract and the User Terms.
Customer is (i) to use commercially reasonable efforts to prevent unauthorised access to or use of the Services, and notify us promptly of any such unauthorised access or use, (ii) not to create derivative works based on the Services except as authorised herein, (iii) not to copy, frame or mirror any part or content of the Services, other than copying or framing on the Customer’s own intranets or otherwise for the Customer’s own internal business purposes, (iv) to the extent permitted by law, not reverse engineer the Services, (v) not to access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services and (v) to use the Services only in accordance with our Acceptable Use Policy and applicable laws and government regulations. The Customer must not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services unless agreed with the Company, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorised access to the Services or related systems or networks.
We may review conduct for compliance purposes, but we have no obligation to do so. We aren’t responsible for the conduct of any Customer or the way the Customer or its Authorised Users choose to use the Services to store or process any Customer Data. The Services are not intended for and should not be used by anyone under the age of 16. The Customer must ensure that all Authorised Users are over 16 years old or appropriate parental consent has been secured. The Customer and their Authorised Users are solely responsible for providing high speed internet service to access and use the Services.
Our Removal Rights
If we believe that there is a breach of the Contract that can simply be remedied by the Customer’s removal of certain Customer Data or the Customer’s disabling of Non-Smart Catalog content, we will, in most cases, ask the Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if the Customer does not take appropriate action, or if we believe there is a credible risk of harm to us (including risk of legal action), the Services, Authorised Users, or any third parties. Without limiting our other rights under this Contract or at law, we may, at our discretion, suspend, restrict or downgrade access to or the functionality of the Services if we (acting reasonably) determine or suspect you to be engaging in prohibited or at risk use of the Services.
For Customers that use our Services, fees are specified in the invoice unless agreed on any other format. The subscription must be paid in advance. Once agreed and set up, the Payment obligations are non-cancelable and the fees paid are non-refundable.
If we agree to invoice the Customer by email, full payment must be received within two weeks (10 business days) from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). The Customer will be responsible for paying all Taxes associated with its purchases ie. GST.
If any fees owed to us by the Customer (excluding amounts disputed reasonably and in good faith) are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, we may suspend the Customer Services until those amounts are paid in full, so long as we have given the Customer ten (10) or more days’ prior notice that its account is overdue. Notwithstanding the second paragraph of the “Providing the Services” section below, the Customer acknowledges and agrees that a suspension will result in a loss of access to features, functionality and Customer Data.
Providing the Services
Customer isn’t the only one with responsibilities; we have some, too. We will (a) make the Services available to the Customer and its Authorised Users as described in our website feature list non-exclusive basis for the use of the Customer in its own internal business activities; and (b) not use or process Customer Data for any purpose without the Customer’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Services by Authorised Users and any processing related to such use or otherwise necessary for the performance of the Contract.
Keeping the Services Available
We will use commercially reasonable efforts to make the Services 99% available, excluding planned downtime. We expect planned downtime to be infrequent and will endeavour to provide the Customer with advance notice (e.g., through the Services), if we think it may exceed two (2) continuous hours. Our Services are only available as an application accessible through and hosted on a cloud platform. Our services are subject to the limitations, delays, and other problems inherent in the use of the cloud platform and the vagaries of Internet and electronic communications and protocols. We are not responsible for any delays, delivery failures, or other damage or loss resulting from such problems.
Protecting Customer Data
The protection of Customer Data is a top priority for us so we will maintain administrative, physical, and technical safeguards at a level not materially less protective than as described in our Security Practices page. Those safeguards will include measures for preventing unauthorised access, use, modification, deletion and disclosure of Customer Data by our personnel. Before sharing Customer Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorised access. The Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in the Customer’s or its representatives’ or agents’ possession or control. We are not responsible for what the Customer’s Authorised Users do with Customer Data. That is the Customer’s responsibility.
For the absence of doubt, the Customer (i) remains fully and exclusively liable for your obligations under your local privacy laws and legislation, including the General Data Protection Regulations (GDPR) at all times as the controller of the data; (ii) represents and warrants that the Customer is in and will remain in compliance with GDPR if it is obliged by law to comply with GDPR; and (iii) acknowledge and agree that in the event of a conflict or inconsistency between our own obligations under GDPR and this Contract, our obligations under GDPR shall prevail and the Customer has no claim or remedy against us for such conflict or inconsistency.
If the GDPR applies to processing of Customer Data, our handling of Customer Data is subject to the terms and conditions of Annexure A (Data Processing Provisions).
The Smart Catalog Extended Family
We may leverage our employees, those of our related body corporate and affiliates and third party contractors (the “Smart Catalog Extended Family”) in exercising our rights and performing our obligations under the Contract. We will be responsible for the Smart Catalog Extended Family’s compliance with our obligations under the Contract.
What’s Yours is Yours…
As between us on the one hand, and the Customer and any Authorised Users on the other, Customer will own all Customer Data. Subject to the terms and conditions of the Contract, Customer (for itself and all of its Authorised Users) grants us and the Smart Catalog Extended Family a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, and any Non-Smart Catalog content created by or for Customer, only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted by the Data Request Policy; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorised Users as may be necessary to grant this license.
And What’s Ours is Ours
We own & will continue to own our services, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the services. We grant to the Customer a non-sublicensable, non-transferable, non-exclusive, limited license for the Customer and its Authorised Users to use these components, but solely as necessary to use the services and in accordance with User Terms. All of our rights not expressly granted by this license are hereby retained.
As further described below, using the Platform has a term that may expire or be terminated. The Contract remains effective until the subscription expires or terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and all Order Forms. The Customer may want to discontinue the contract but needs to give a written notice as mentioned above.
Unless a relevant agreement says something different, (a) all user subscriptions automatically renew for additional periods equal to one (1) year or the preceding term, and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a user subscription term to stop the subscriptions from automatically renewing.
Termination for Cause
We or the Customer may terminate the Contract on notice to the other party if the other party materially breaches the terms of service and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. The Customer is responsible for its Authorised Users, including for any breaches of this Contract caused by its Authorised Users. We may terminate the Contract immediately on notice to the Customer if we reasonably believe that the Services are being used by the Customer or its Authorised Users in violation of applicable law or our policies.
Effect of Termination
Upon any termination for cause by the Customer, upon providing us with notice to us, the termination will take effect at the end of the current billing period, unless otherwise agreed in writing by Smart Catalog. Upon any termination for cause by us, the Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve the Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
Data Portability and Deletion
During the term of an organisation’s subscriptions, the Customer will be permitted to export or share certain Customer Data from the Services; provided, however, that because we have different products with varying features and the Customer has different options, the Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention, sharing or invite settings enabled. Following termination or expiration of an Organisation’s user subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control. Please review our Security Practices section for more information on how the Customer itself can initiate deletion.
Representations Disclaimer of Warranties
Customer represents and warrants that it has validly entered into the user terms and has the legal power to do so. The Customer further represents and warrants that it is responsible for the conduct of its Authorised Users and their compliance with the terms of this User Terms.
Except as expressly provided for herein and as permitted law, the services and all related components and information are provided on an “as is” and “as available” basis without any warranties of any kind, and we expressly disclaim any and all warranties, whether express or implied, including the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. The customer acknowledges that we do not warrant that the services will be uninterrupted, timely, secure, or error-free.
Application of Australian Consumer Law
The OCMP is a Strata/OC management platform intended for use by Starta/OC or their managers, residents and service providers ie. security companies, cleaning etc and not for consumer purposes.
To the maximum extent permitted by law, the Customer hereby acknowledges and agrees that any statutory warranties, guarantees or implied conditions under consumer laws do not apply in respect of the Services or are incorporated as part of these Customer Terms. If however any consumer laws (e.g., in Australia, the Competition and Consumer Act 2010 (Cth)) do apply and such statutory warranties, guarantees or implied conditions cannot otherwise be lawfully excluded or negated, nothing in these Customer Terms will restrict, exclude or modify any statutory warranties, guarantees, benefit of implied conditions or other rights or remedies you have. Our liability in respect of failure to meet any such statutory warranties, guarantees or implied conditions is limited to the extent permitted by law to the supplying of the relevant Services again or the payment of the cost of having the relevant Services supplied again.
Limitation of Liability
Other than in connection with a party’s indemnification obligations hereunder or as permitted by law, in no event will either the customer’s or the Smart Catalog extended family’s aggregate liability arising out of or related to the contract or the user terms (whether in written agreement or tort or under any other theory of liability) exceed the total amount paid by the customer hereunder in the twelve (12) months preceding the last event giving rise to liability except in respect of any liability we may have for damage to your personal property or in respect of your personal injury or death. The foregoing will not limit the customer’s payment obligations under the “payment terms” section above.
Except to the extent permitted by law, in no event will either the customer or any member of the Smart Catalog extended family have any liability to the other party or to any third party for any lost profits or revenues or for any indirect, special, incidental, consequential, exemplary or punitive damages however caused, whether in written agreement, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by applicable law.
The Customer and it’s users are responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorised Users. We will not be responsible for any damages, losses or liability to the Customer, Authorised Users, or anyone else, if such information is not kept confidential by the Customer or its Authorised Users, or if such information is correctly provided by an unauthorised third party logging into and accessing the Services.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in written agreement, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this service agreement between the parties, and the parties have relied on these limitations in determining whether to use and pay for the Services.
Customer grants us the right to use the Customer’s company name, location, business type and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers.
Neither us nor the Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Relationship of the Parties; No Third Party Beneficiaries
The parties are independent entities. Using the service does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to this agreement - unless specified.
As our business evolves, we may change these Customer Terms and the other components of the platform. If we make a material change to the services, we will provide the Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with the Customer’s account.
No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the service agreed will be effective unless made in writing and signed by an authorised representative of the party being deemed to have granted the waiver.
Except with respect to the Smart Catalog Extended Family, neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Contract in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets. The Customer will keep its billing and contact information current at all times by notifying Smart Catalog of any changes. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. In the event of such a termination by the Customer, we will refund the Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
The Customer Terms and all referenced pages/urls constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this terms of service supersedes the terms of any online agreement electronically accepted by the Customer or any Authorised Users.
Last revised on 06 October 2018