This website and the associated online Products are provided by SPACE COMMAND PTY LTD ACN: 639435868 (referred to as “MODRON”, “Spaces”, “MODRON Spaces”, “we”, “us” or “our”). Any capitalised terms used but not defined below have the meanings in the Definitions Page.

By creating a User Account and/or accessing the Products offered by this Site, you (“you”, “your”, “User”) agree to be bound by these Terms of Use, including our Privacy Policy and our Acceptable Use Policy. You acknowledge that you have fully read, understood and agree to be bound by these Terms of Use, as well as by our Privacy Policy and our Acceptable Use Policy, and all other applicable operating rules, policies and/or procedures that may be published by us from time to time on the Site, each of which is incorporated by reference and each of which may be updated from time to time without notice to you (“Policies and Procedures”). If you do not agree to any of these Terms of Use or our Polices and Procedures, do not request a username/password, do not create a User Account and do not use or access the Site whatsoever.

MODRON may from time to time vary these Terms of Use and our Policies and Procedures by publishing updated Terms of Use on this Site or by notifying you in any other way. You agree that your use of this Site after any such change will be subject to, and you will comply with, the revised Terms of Use subsequent to that change. Please be sure to check the Terms of Use regularly to keep up to date with any changes.

1. Scope of the Agreement

This Agreement, and all our Polices and Procedures, governs all subscriptions and/or purchases made by you of our Products offered by this Site.

2. Types of MODRON Products

This Agreement governs MODRON’s hosted or cloud-based solutions including (a) MODRON’s Professional Solutions, including Resolve and Flow, (b) MODRON Enterprise Solutions, including the Gateways, (c) MODRON Education Solutions and (d) any related support or maintenance services provided by MODRON, together referred to as “Products”.

3. Account Registration

You may be required to register for a User Account in order to access or receive our Products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.

4. User Accounts

(a) You may access the Products only by registering for a User Account on the Site. By registering for a User Account you agree to be legally bound by this Agreement.

(b) When a User creates a User Account (or authorises a User Account to be created in the User’s name by a person authorised to act on the User’s behalf (“Authorised User”)), the User and/or the Authorised User will be provided with a username and will select their own password.

(c) You agree, and will procure any Authorised User to agree, to keep your User Account password(s) confidential and secure at all times and to not provide your username and password to any person or entity that is not an Authorised User acting on your behalf for the purposes of the Dispute Resolution Services offered by the Site. Except in the case of an Authorised User, you may not provide access to the Site to anyone else under your username and password(s) for any reason whatsoever.

(d) You agree to notify us promptly if you become aware of, or have reasonable grounds to suspect, the loss, theft or disclosure of your user name and password to any third party or of any unauthorised use of your username and password or User Account. If we have reasonable grounds to believe that unauthorised users are accessing your User Account with or without your knowledge, we may, without prior notice, suspend your rights to use the Site.

(e) By creating a User Account, you represent and warrant that:

• i. if you or any Authorised User are a natural person, you and any Authorised User are at least eighteen (18) years of age;
• ii. you and any Authorised User agree to, and will comply with, this Agreement;
• iii. the information provided by you or any Authorised User to create the User Account is current, true and correct in every detail and you will correct it if necessary and update it if any of the details provided change;
• iv. you and any Authorised User will only use your User Account and the One Account for your own benefit; and
• v. neither you nor any Authorised User will attempt, in any manner whatsoever, to (i) gain access to the Site by any means other than through your own User Account, (ii) gain any access or interfere with or to impair the proper operation of the Site, or (iii) catalogue, download or otherwise reproduce, store or distribute content available on the Site except as expressly permitted by this Agreement.
• vi. You will assume full responsibility for any and all use of the Site and Product(s) by you, your Authorised Users or by any person accessing your User Account and the Site using your username and password, including any unauthorised use or misuse. Any breach by such users of any of these Terms of Use shall constitute a breach of such Terms of Use by you. That is why it is essential that you maintain the security of your username and password and tell us immediately if that security has been compromised.

5. Authorised Users

Only you or the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorised Users”) may access and use the Product(s). Authorised Users may include you or your affiliates, employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may increase the number of Authorised Users permitted to access your instance of the Product(s) by following the instructions within the Product site. In all cases, you must pay the applicable fee for the increased number of Authorised Users. You are responsible for compliance with this Agreement by all Authorised Users.

6. Access to Products

Subject to the terms and conditions of this Agreement, MODRON grants you a non-exclusive right to access and use the Product(s) during the applicable Subscription or License Term (as defined below) in accordance with this Agreement and our Policies and Procedures. You acknowledge that our Products are online and subscription or license-based, and that we may make changes to the Products from time to time.

7. Subscription or Licence Terms

Our Products are provided on a subscription or license basis for a set term specified in your order (“Subscription or Licence Term”). Subscription or Licence Terms, and renewal terms, may vary between Products and You are responsible for reading the specific terms for each Product as set forth in our Products Specific Terms.

8. Your Data

You will retain all right, title and interest in and to Your Data in the form provided to MODRON. Subject to the terms of this Agreement, you hereby grant to MODRON a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Product to you and (b) for Products that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorised Users) direct or enable through the Product. MODRON may also access your account or instance in order to respond to your support requests.

9. Security

MODRON implements security procedures to help protect Your Data from security attacks. All content supplied by you and generated for Dispute Resolution purposes will be securely stored and will not be released to anyone except as required by law or within any Dispute Resolution Agreement generated, or submitted to, by you. However, given the nature of the Internet:

(a) we cannot guarantee that any data transmission is totally secure. Whilst we take precautions to protect information, we do not warrant and cannot ensure the security of any information you transmit to us or the Site. You therefore transmit to the Site at your own risk. However, once we receive data, we will take reasonable steps to preserve its security. If you become aware of any problems with the security of the data or the Site, please contact us immediately by email at support@modron.com.

(b) we cannot guarantee that the Site is free from viruses, “malware”, fault or other conditions which could damage, use or interfere with your computer systems. You must take its own precautions to ensure that your systems are not infected with any such code and assume the risk of any damage or loss as a result of using the Site or any of the Products.

10. Storage Limits

There may be storage limits associated with a particular Product. These limits are described in the Products descriptions on our Site. MODRON reserves the right to charge for additional storage or overage fees at the rates specified on our Site. We may impose new, or may modify existing, storage limits for the Products at any time in our sole discretion, with or without notice to you.

11. Responsibility for Your Data

11.1 General

You must ensure that your use of the Products and all Your Data is at all times compliant with our Acceptable Use Policy and all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to MODRON and to grant the rights granted to MODRON in this Agreement and (ii) Your Data and its transfer to and use by MODRON as authorised by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 9. (Security), MODRON assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.

11.2 Indemnity for Your Data

You will defend, indemnify and hold harmless MODRON from and against any loss, cost, liability or damage, including legal fees, for which MODRON becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Products in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonable necessary cooperation of MODRON at your expense.

11.3 Removals and Suspension

MODRON has no obligation to monitor any content uploaded to the Product(s). Nonetheless, if we deem such action necessary based on your violation of this Agreement or in response to takedown requests that we receive, we may (1) remove Your Data from the Product(s) or (2) suspend your access to your User Account and the Product(s). We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Products or other Users, we may suspend your access immediately without notice. You will continue to be charged for the Product(s) during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Products as described in this section.

11.4 Deletion at End of Subscription or Licence Term

We may remove or delete Your Data within a reasonable period of time after the termination of your Product subscription or licence.

11.5 Service-Specific Terms

Some of our Products may be subject to additional terms specific to that product as set forth in our Products Specific Terms.

12. User equipment and software

You agree that it is your responsibility to provide, at your own expense, all equipment and software necessary to access the Product(s) and to use the Site, including computers, terminal equipment, software including operating systems and applications and any updates thereof, internet access and communications services. You are solely responsible for any errors made by, or the failure of, such equipment and software that you use to access the Product(s) and the Site.

13. Termination

(a) We reserve the right, immediately, and without notice to you, to suspend or to terminate your right to access the Product(s) and our Site, or to continue to have access to the benefits of any Subscription or Licence Term taken up by you, for any reason whatsoever, including if:

• i. you fail to comply with any provision of this Agreement including without limitation in respect of failure to make any payment due;
• ii. you misuse the Site or fail to comply with your obligations under our Policies and Procedures as to the use of and access to the Site; and
• iii. you fail to comply with any other agreements, including but not limited to any Dispute Resolution Agreement or Non-Disclosure Agreement entered into by you and other Users, or as communicated by us from time to time by display on the Site.

(b) You acknowledge that access to the Product(s) may be suspended or terminated at any time in our sole discretion.

14. Site Availability

You agree that:

(a) the Site or any part of the Product(s) may be temporarily or permanently unavailable;

(b) we make no representation or guarantee that access to the Product(s) or Site will be secure, uninterrupted or error free;

(c) we make no representation or assurances that the Product(s) or Site will satisfy your requirements;

(d) we make no representation or assurances that the Product(s) or Site will comply with any particular laws, regulations, codes or industry standards;

(e) we will not be liable to you in the event of suspension of operation of or interruption to the Product(s) or Site for any reason;

(f) we may change the Product(s) or Site at any time and without notice to you.

15. MODRON’s Confidential Information and Privacy

(a) You must treat as confidential all Confidential Information.

(b) You must not, without our prior written permission, use or disclose Confidential Information to a third party, or otherwise use or exploit the Confidential Information.

(c) These obligations not to disclose Confidential Information shall not apply to disclosure where required by law or a regulatory body.

(d) We may, in our absolute discretion, retain and assess any data or information concerning your use of the Site, subject to MODRONʼs Privacy Policy.

(e) The Site requires the use of cookies to gather and maintain data in relation to your use of the Site, in accordance with MODRON's Privacy Policy, and you consent to MODRON doing so.

16. Intellectual Property

(a) The making of copies of copyright material to the extent necessary for the purpose of giving or receiving legal advice will generally not be an infringement of copyright and this will generally extend to a Dispute Resolution.

(b) MODRON is the owner or licensee of all intellectual property in the Site.

(c) Nothing in these Terms of Use or on the Site constitutes any form of assignment of any intellectual property rights, unless something you do in using the Site amounts to an assignment.

17. Subcontractors

We may subcontract the whole, or any part, of our rights or obligations under this Agreement without requiring your prior consent.

18. Indemnity

You must hold harmless, defend, indemnify and keep us indemnified from and against all loss, cost, expense (including legal costs and expenses on a solicitor and own client basis) or liability whatsoever incurred by us arising from any claim, demand, suit, action or proceeding by any person against us where such loss or liability arose out: (i) a breach by you of these Terms of Use including any representation or warranty made herein, (ii) your use or misuse of the Site or the Products; (iii) a dispute with another User: (iv) your violation of any law or the rights of a third party; or (v) any work or other subject matter you provide under these Terms of Use, including any claims for intellectual property infringement or violation of personal rights. You agree to cooperate as fully as reasonably required in the defence of any claim. We reserve the right to assume the exclusive defence and control of any matter subject to indemnification by you for which you will remain responsible for indemnifying us and holding us harmless.

19. Complaints

If you or any third party has a problem or difficulty with the Product(s) or under a Dispute Resolution Agreement, Non-Disclosure Agreement or any of our Policies and Procedures from time to time, we may, in what we regard as an appropriate case, but shall not be obliged to, deal with such a dispute in accordance with the MODRON Complaints Policy.

20. Implied Terms

(1) Subject to paragraph (2) below, any condition or warranty which would otherwise be implied in these Terms of Use is hereby excluded.

(2) Where legislation implies in these Terms of Use any guarantee, condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in these Terms of Use. However, our liability for any breach of such condition or warranty shall be limited, at our option, to one or more of the following;

(a) the supplying of any goods or the Products again; or

(b) the payment of the cost of having the goods or Products supplied again.

21. Disclaimer and Exclusion of Liability

(a) You acknowledge and agree that:

• i. in accessing the Site and using any of the Products, you have relied on your own skill and judgment in determining its and their sufficiency for the use and results which you intend to obtain;
• ii. we have made no promise, representation or warranty in respect of the profitability, benefits or any other consequence in your use of the Site or any of the Products, or in respect of the suitability of the Site to your operations, business or needs.

(b) The Site is and the Products are provided “as is,” and we hereby expressly disclaim any and all conditions, guarantees and warranties of any kind or nature, whether express, implied, or statutory. We do not warrant or represent that the Site will be free from bugs or that the use of Site or any of the Products will be uninterrupted or error free, and we do not make any other representations regarding the use, or the results of use, of the Site in terms of accuracy, reliability, or otherwise.

(c) We shall not be liable for any loss of use or goodwill, interruption of business, loss or inaccuracy of business information or data, lost profits, cost of procurement of substitute services, or any indirect, special, incidental, exemplary, or consequential damages of any kind regardless of the form of action, whether in contract, tort (including negligence), strict product liability, or otherwise, even if it has been advised of the possibility of such damages.

(d) In no event shall our total liability for all damages, losses, and causes of action resulting from your use of the Site or of any of the Products, whether in contract, tort (including, but not limited to negligence) or otherwise, exceed the amount paid to us for the applicable Product(s). Without limiting the foregoing, in no event shall we have any liability for any damages or losses arising out of or otherwise incurred in connection with the loss of any content, data or information generated for the purpose of a Product, contained in a User Account or otherwise stored by or on behalf of MODRON.

(e) The rights and obligations of each of the parties under this paragraph (Disclaimer and Exclusion of Liability) will survive expiration or termination of these Terms of Use.

22. Force Majeure

We will not incur any liability in respect of the results of any delay or failure to perform its rights or obligations pursuant to these Terms of Use if such delay or failure is caused by acts of God, acts of government, strikes, lockouts or other industrial disturbances, blockades, wars, insurrections or riots, epidemics, landslides, fires, storms, floods, explosions or other similar causes beyond its control of a party.

23. Further Assurances

You will upon our request at any time and from time to time, execute, sign and deliver all documents and do all things necessary or appropriate to evidence or carry out the intent and purposes of these Terms of Use.

24. Entire Agreement

These Terms of Use constitute the entire agreement between the parties and supersede all prior representations, agreements, statements an understanding, whether verbal or in writing.

25. Other Websites

(a) The Site may contain links to other websites that are owned or operated by third parties. These links are provided for convenience only and may not remain current or available. We should not be understood to be endorsing, approving, recommending or giving preference to these third parties or their websites, or any information, products or services referred to on those third party websites unless expressly stated. If the User links to these websites, it/he/she does so at its/his/her own risk and should make its/his/her own enquiries as to the privacy policies of these third parties. We are not responsible for information on, or the privacy practices of, such websites.

(b) You must not create, cause or permit any linkages to this Site without our written permission first being obtained.

26. Governing Law and Jurisdiction

These Terms are governed by and construed in accordance with the laws of the location of MODRON, and you irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of that location. If you access this Site in a jurisdiction other than such location, you are responsible for compliance with the laws of that jurisdiction, to the extent that they apply. We make no representations that the content of this Site complies or any of the Products comply with the laws of any country other than in its location.

27. General

(a) We may, from time to time, change, add or remove information, content or Products from this Site without notice.

(b) We reserve the right to amend these Terms of Use at any time without notice. The by you use of this Site after such amendment will represent an agreement by you to be bound by these Terms of Use as amended. Where your access to this Site is terminated for any reason, all obligations of confidentiality, with respect to intellectual property rights, indemnities, disclaimers and limitations of liability set out in these Terms of Use will survive.

(c) If any provision of these Terms of Use is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of these Terms, which will continue in full force and effect.

(d) A provision of or a right created under these Terms of Use (including under the Complaints Policy) may be waived or varied by us at its discretion. Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by law or under these Terms of Use by us does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under these Terms of Use. No waiver of a breach of a term of these Terms of Use operates as a waiver of another breach of that term or of a breach of any other term of these Terms of Us