Date of last revision: 4 June 2015
At Switch Automation we are devoted to providing an excellent service to you and your business. Use of our online software, our web site and any other services we offer (“Services“) are subject to the following Terms of Service (“Terms“).
- “SWITCH” refers to Switch Automation Inc. or Switch Automation Pty Ltd and any of its wholly owned subsidiaries.
- SWITCH reserves the right to vary these Terms from time to time.
- If there are any changes to our Terms or our Pricing then they will be effective at least one week from posting on the SWITCH website. Use of the Service after that date constitutes acceptance of the amended Terms.
- These Terms supersede any prior Terms of Service.
- “Customer” means the person or entity that entered an agreement with SWITCH for services will derive the benefit from the subscription to any of the SWITCH Services.
- “Customer Data” means all Information submitted by Customer or on behalf of Customer and other permitted information submitted by Customer to, or collected by Customer via any SWITCH Service. Customer Data does not include Sensitive Information.
- “Customer Materials” means any file, document, report, or other information provided by the Customer or a third party on behalf of the Customer in order for SWITCH to create Customer Data.
- “User” – means any individual who is either invited or authorised by the Customer to access the Customers Data using any of the SWITCH Services.
- “Access Authority” – means the prescribed level of access to SWITCH Services
- “Services” – means any product name or service including but not limited to the software platform that hosts Customer Data, the Customer Data acquisition service or the software-as-a-service provided by SWITCH to a User and by signing on for use using Access Authority.
- “Password” – means a confidential alphanumeric, which when used with other Access Authority information, gives access to Services.
- We, us and/or our – means SWITCH.
- You and/or your – means the Customer to the Services and includes a User when applicable.
- SWITCH Logo’s – means any logo, brand, trademark, image or other material we provide containing any SWITCH associated trademarks, trading names, URL’s be they registered or otherwise.
- Add-on – Widgets, Plug-ins, Web Applications, Software, Components, Integration, Integrator, Connector and/or any other technology that communicates, interacts or embeds SWITCH or is embedded in SWITCH.
Terms of Service
- You must provide all equipment necessary to make a connection to the Internet and pay any service fees to your relevant provider for access to internet.
- You must obtain access to and pay for the use of Services. This is accomplished by registering as a SWITCH Customer or by using any UserID on the site provided by us or any third party.
Unless the parties have entered into a Master Services Agreement or a Service Level Agreement, the following provisions apply:
- You agree to pay all Service Subscription fees SWITCH charges you for the Services when you register.
- You also agree to pay all Consulting Service Fees for staff services if any are specifically requested by you and provided by our staff.
- You agree to pay all taxes applicable to the access, use or receipt of the Service, these will always be disclosed to you clearly in advance.
- If SWITCH are required to collect overdue fees from you, you agree to pay all reasonable costs (including legal fees), if any, incurred by SWITCH in collecting those overdue fees from you, and to pay a late charge on any overdue fees at our bank’s business cheque account overdraft rates.
- If you fail to pay your fees for Services by any Expiry or Due date, SWITCH reserves the right to restrict access to all files that belong to the unpaid Subscription.
- You accept that when a Subscription is locked, all users of the affected files will be unable to view, edit or add any Customer Data to the file. Full access will be restored upon receipt of all accumulated unpaid Subscription fees.
- You may Subscribe to SWITCH Services using the SWITCH website sign-up page.
- You may invite Users to have Access Authority.
- We may suspend or terminate your account and refuse use of Services if you provide any information (including a valid contact email address and phone number) that is false, misleading, inaccurate, not current or incomplete, or if SWITCH has reasonable grounds to believe that such information is false, misleading, inaccurate, not current or incomplete or any terms in this agreement are breached.
- We may suspend or terminate your account and refuse use of Services if you do not comply with our Terms or if you are deemed to be abusive (including using language that is deemed to be abusive to staff, such deeming shall be at the sole discretion of SWITCH).
- You agree that when Subscribing you will select a secure password that complies with the SWITCH password registration rules.
- You accept responsibility for maintaining confidentiality of any password and other access information used by yourself and your authorised Users who have Access Authority.
- You acknowledge that the Internet is an open system and SWITCH cannot and does not warrant or guarantee that third parties cannot intercept your information.
Communications Between You and SWITCH
- SWITCH reserves the right to contact you by web page, email, post, internet chat, phone text messaging (SMS) or telephone (or other means in the future as they are developed from time to time) to communicate important information regarding the use of the Service and related products and services such as but not limited to third party add-ons, widgets, components, connectors, plug-ins, applications and software.
Your Non-Transferable License
- We grant you a non-transferable, non-exclusive and terminable right licence to use the Services under these Terms.
- You agree that title and ownership of the Services remain with us.
- You agree not to copy (or allow a third party to copy), modify, create a derivative work, reverse engineer or reverse assemble, disassemble, or decompile the Software, or any other action to allow its whole or partial re-use by the Customer or others.
- You are licenced for the number of installations (projects or buildings) and data points specified in the Subscription plan to which you are a Customer.
- We agree that in the event of an upgrade, the Licence hereby granted shall automatically transfer to the new version.
- You agree that all rights in respect of the original version shall lapse and no further use of same shall be permitted.
- You agree that the Licence in this agreement is effective until suspended or terminated by us or by ceasing subscription payments.
- You agree that payment for your Subscription is due in advance of the next Subscription expiry date.
- In the event you choose to end your Subscription Service, you agree that you can choose to export your Customer Data using the export functions provided by the Service.
- We reserve the right to charge you for time and materials if you request your Customer Data be exported by us rather than you doing this yourself.
- You agree to use your best endeavours to ensure the safeguard of your Password(s) for your organisation in order to ensure there is no unauthorised access to, copying of, or collection of information from your Customer Data and you indemnify SWITCH for any and all losses you may incur as a result of failing to safeguard your Password.
- As between the parties, Customer shall own and retain all rights to the Customer Data. This Agreement does not grant SWITCH any ownership rights to Customer Materials or Customer Data. Customer grants permission to SWITCH to use the Customer Materials and Customer Data only as necessary to provide the SWITCH Service to Customer, and not for any other purpose, unless specifically allowed.
- Limits on SWITCH. SWITCH will not use, or allow anyone else to use, Customer Data to contact any individual or company except as directed by Customer. SWITCH will use Customer Data only in order to provide the SWITCH Service to Customer and only as permitted by applicable law and these Terms. SWITCH will not use Customer Data for any other purpose.
- Aggregate Data. SWITCH may monitor use of the SWITCH Service by all of its customers and use Customer Data related to such use in an aggregate and anonymous manner, including delivery of benchmarking, statistical and performance information related to the SWITCH Service. Customer agrees that SWITCH may use and publish such information, provided that such information does not identify any Customer Data and/or Customer.
- Safeguards. SWITCH will maintain commercially appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data.
- No Sensitive Information. CUSTOMER AGREES NOT TO USE THE SWITCH SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. SWITCH DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- You accept that by setting any of your Customer Data to be shared publicly that you allow others to view and share that information.
- You accept that by letting your subscription expire, requesting your Subscription be closed or by failing to meet the Terms that we may delete all your Customer Data permanently at a time or date of our choosing but not within 30 days.
- You accept that SWITCH offers data recovery services at its discretion and may charge a fee for any such service.
- You accept the responsibility of having your own practises to cover risk associated with our data management where you don’t feel our practises are appropriate for you.
- You accept that our practises for data management may change from time to time and we reserve the right to make these changes.
Terminating Your Service
- Once SWITCH has been notified of Customer’s intent to terminate this Agreement, Customer will have the capability to convert their data from its representation within the SWITCH system repository into a standard file-based format such as .csv. Customer must complete any conversion of data prior to the effective date of such termination. Customer, at its option, may engage SWITCH professional services team under a separate Statement of Work and price quote to extract data into a transportable media format such as csv.
- You may end the Service by not renewing at your next Expiry Date.
- Customers who terminate will not receive a refund for any unused portion of the Service.
SWITCH General Practices Regarding Use of the Service
- We may establish general practices and limitations that apply to the use of the Service.
- You accept that we may change these general practices and limits at any time, at our discretion.
- You accept that we may disable accounts that are inactive for a period of more than 6 months.
- You accept that we may log off (also referred to as sign off or sign out) users who have been inactive for a reasonable period of time or for the purposes of conducting reasonable system maintenance and repairs.
- You accept that we reserve the right to disable or change features of the service if those features are infrequently used by our users or at our discretion.
Website and other publications (our Content)
- You assume all risks concerning the suitability and accuracy of the information within the web site and publications.
- While we will do everything reasonably possible to ensure our Content is accurate and without error, we may from time to time have inaccuracies or errors in our Content.
- You accept that we will, from time to time, alter information in the web site which contains pricing, market information, and/or product specifications, and that these product offerings may not be relevant, suitable or available to you.
- You accept that links to other third-party sites can lead you to Content not under our control or responsibility and thus you accept that using such a third-party site is at your own risk.
- You accept that the inclusion of any link does not imply that SWITCH is endorsing or is accepting responsibility for the content, products or services of third-party websites.
- You accept that the Content we provide is educational and information only and is not legal, taxation and/or financial advice.
- You agree to obtain professional legal, taxation and/or financial advice rather than rely on Content we provide.
- You accept that use of the Services is at your risk.
- You accept that SWITCH is not responsible for any adverse consequences arising out of the use of the Services.
- Each party agrees to indemnify, defend, and hold harmless the other party from and against any and all claims, proceedings, damages, liability and costs incurred by the indemnified party as a result of any claim arising from the indemnifying party’s breach of these Terms.
- Under no circumstances shall either party to this agreement be liable to the other party for lost profits, loss of use, or for any special, indirect, consequential, or punitive damages, whether or not such damages are caused by the fault or negligence of such party and whether or not such party is notified or is aware of the possibility of such damages. In no event shall either party be liable to the other party for an amount greater than the total fees paid or due SWITCH during the preceding twelve months.
- You accept that these obligations survive termination of the Service.
- You accept that we will not accept liability for failures in providing Services which are outside normal usage or reasonably foreseeable including force majeure, natural disasters, acts of God, war, terrorism and civil disobedience.
Disclaimer of Warranties
- You accept that the Services (including all content, software, functions, and operational hosting services) are provided “as is”, without warranty of any kind.
- SWITCH expressly disclaims all warranties of any kind, whether express or implied, including without limitation, title, security, accuracy, uninterrupted timely and error free service, errors in software will be corrected, service will meet user requirements, damages or injury caused by any failure of performance, computer virus, communication failure and unauthorised access.
Proprietary and Confidential Information
- You acknowledge and agree that the Services may contain proprietary and confidential information that is protected by intellectual property and other laws.
- . You agree not to loan, modify, lease, sell, distribute or create derivative works based on the Service.
- You agree not to use or display any SWITCH trademarks, logos, product and services names or other SWITCH material of any form (including any derivations) without our written approval or as described elsewhere in these Terms where you are a SWITCH Partner.
- Unless covered by another agreement, you may not assign, sell, distribute, lease, rent, lend, sub-license, or transfer the Subscription Services or this licence (subject to the prior written consent of SWITCH)
- We provide technical support where issues arise for the Services such as defects.
- We provide comprehensive online help screens.
- We reserve the right to limit the time spent on email and telephone support calls to 10 minutes or less for a single support enquiry.
- We reserve the right not to provide Support Service even if it has been purchased if we deem the Support Service is being used in an unethical, abusive or fraudulent manner.
- You accept that support is only available while an online service is current and paid in full.
- You accept that any instruction we give you is general educational information that may or may not meet your specific requirements.
- You accept that the Support Service is for basic usability and functionality queries
- You agree that in reporting any defects to our Support Service, to be specific and provide at least one identifiable example of the defect.
- You agree to allow us access to your Customer Data to troubleshoot or problem solve a defect.
- You agree that Internet, network, hardware, software inquiries relating to third party providers are not resolved by SWITCH.
- You agree that our Support Team will deem if the inquiry falls within the nature of the SWITCH Support Service.
- You accept that Support Team availability and response times may be affected by call or email volumes, staff absence, server maintenance and upgrades relating to new releases.
Fair Play Promise
Our Fair Play Promise is a policy that ensures SWITCH delivers you consistent value and service as a paying Customer. We will –
- Limit the resources hosting services or processing throughput or other resources you are allowed to use to a reasonable amount for the subscription level you are paying for.
- Set the limit based on reasonable averages for other users like you.
- Allow you to add users as long as the number of users added doesn’t exceed a reasonable level of users when compared to the average number of active users we see per account across all our Customers.
- Set limits for the common good in order to prevent one user inadvertently using excessive resources that should be shared with other users.
- Reserve the right to terminate service to you if you exceed your limits or abuse the service or our staff or communication channels in any way.
- Tell you well in advance (normally) if you breach any limits and we will give you the option of reducing your usage back below the limit or upgrading to a more appropriate plan.
- Be flexible and try to give you the benefit of the doubt so we will normally not prevent you operating if you breach limits briefly and return to within limits in a reasonable time.
- We reserve the right to vary prices or features for all Customers, including free users, at any time but will always try to give you reasonable notice.
- Monitor your use of the system and ensure allocation of resources between User is fair using methods that may be adjusted at our discretion in the event you abuse the system.