Terms and Conditions – Compute & Storage Services

Definitions

In this Agreement, capitalised words have the following meanings unless defined elsewhere:

Account means the account created between Client and Intersect as set out in the Quotation.
Agreement means the Quotation for provision of Services from Intersect Australia Limited [ACN 131 752 657] (“We/Us/Our”), the Acceptance of the Quotation and these Terms and Conditions.
Authentication Credentials means the username and password and other means of authentication used to uniquely identify Users accessing Service, which is either issued by us or NCI, or authenticated through AAF.
AAF means the Australian Access Federation (http://aaf.edu.au), which has a policy framework and infrastructure to facilitate trusted electronic communications and collaboration within and between higher education and research institutions both locally and internationally as well as with other organisations.
Claim means any present or future, actual or contingent, right remedy, entitlement, demand, proof of debt, action, suit or proceeding for damages, loss, debt, costs (including legal costs and expenses), restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy, whether by original claim, cross claim or otherwise, whether arising at common law, in equity, under statute, or otherwise arising out of or in connection with the facts or matters referred to or alleged in or concerning this Agreement.
Client (“You/Your”) means any person or corporation (or any “related” or “associated” person or corporation of them, within the meaning of those terms in the Corporations Act 2001 (Cth)) that procures the Services from Intersect as listed in the Quotation, and without limiting the foregoing includes statutory body corporates.
Compute means access to ARDC Nectar Research Cloud (nectar.org.au) or National Computational Infrastructure (nci.org.au) or any similar computational infrastructure identified in the Quotation.
Confidential Information means any information that is disclosed under this Agreement that:
  • is identified or marked as confidential by the disclosure;
  • is by its nature confidential; or
  • is by its nature confidential or that otherwise the recipient of the information knows or ought reasonably know, is confidential,
but excludes information that:
  • is already known to the recipient prior to its disclosure by the discloser; or
  • is independently developed or legally acquired by the recipient (including by lawful disclosure by a third party), or
  • is or becomes publicly available without breach of this Agreement by the recipient.
Effective Date means the earlier of the date you sign the Quotation and the date you first access Storage.
Fee means the amount we charge you for the provision of the Service as set out in the Quotation.
Force Majeure Event means any event which is outside the reasonable control of the affected party and could not have been prevented by that party taking all reasonable steps.
Insolvency Event means an event where:
  • You fail to pay when due any amount payable under this Agreement; or
  • An application or an order is made, proceedings are commenced, a resolution is passed or proposed in a notice of meeting or an application to a court or other steps are taken to commence:
    • the winding up, dissolution, official management or administration of the Client; or
    • the Client enters into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them;
  • The Client is, or is deemed under any applicable legislation to be, unable to pay its debts when they fall due (other than as a result of a failure to pay a debt or claim the subject of a good faith dispute) or stops or suspends or gives notice that it intends to stop or suspend payment of all or any class of its debts; or
  • a receiver, receiver and manager, administrative receiver, trustee in bankruptcy or similar officer is appointed to the Client.
Intellectual Property Rights or Intellectual Property means all intellectual property rights, including without limitation: patents, copyright, registered designs, trademarks, all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields and the right to have confidential information kept confidential; and any application or right to apply for registration of any of those rights;
Intersect Employee means any person employed or contracted by us.
Intersect’s Background IP means any Intellectual Property Rights owned by Intersect prior to the commencement of this Agreement and/or developed outside the scope of this Agreement.
Material means all User-submitted content, including text, code, photos, video, music, audio, graphics and any other form of data. Some products may offer additional services where physical materials are provided. These are all included under the term “Material”.
Metadata means the data providing information about one or more aspects of the data collected, such as:
  • the means of creation of the data;
  • the purpose of the data;
  • the time and date of creation of the data;
  • the creator or author of the data;
  • the location of the data within Storage; and
  • the standard used.
NCI refers to the National Computational Infrastructure (nci.org.au).
Personal Information means information or an opinion about an identified individual, who is reasonably identifiable from the information including but not limited to:
  • full name;
  • date of birth;
  • Gender;
  • current or last known address; and
  • the individual’s current or last known employer.
Privacy Legislation means any Commonwealth or State legislation which deals with personal information, sensitive information or health information, and includes without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles made under that Act, the Health Record and Information Privacy Act 2002 (NSW) and the Health Privacy Principles made under that Act, and the Privacy and Personal Information Protection Act 1988 (NSW) and the Information Privacy Principles made under that Act;
Quotation means the quotation for the provision of the Service provided by us to you, which identifies the services to be provided and the amount to be paid for the provision of the Service, and in case we have provided a proposal, Quotation includes the proposal submitted by us.
Registration Data means the information required by Intersect from time to time to manage provision of service to the users and includes name, email address and contact phone number for users and other Client personnel.
Services (or Service) means Intersect’s Storage solution and/or Intersect Compute solution made available from time to time and described in the Quotation and includes any tools provided to access the Storage, including client software products, network protocols, API.
Storage refers to the large scale, high performance, collaborative, and cost-effective digital storage system offered by Intersect.
Subscription Term means the period from the Effective Date to the termination of this Agreement for any reason whatsoever, including expiry or breach.
Terms means these Terms and conditions as amended from time to time.
User means any individual or their collaborator or other third party, authorised by you, that accesses, creates, reads, writes, updates and/or deletes data and otherwise uses the Services.

Acknowledgment and Acceptance of Terms and Conditions

These Terms and Conditions for the provision of the Service (“Terms”) govern your use of our Services and form a binding contractual agreement between you and Intersect. You agree to, and will contract with your Users to agree to comply with these Terms. These Terms are important and you should ensure that you read them carefully and contact us with any questions before you use the Service.

By engaging us to provide Services, you acknowledge and agree that you have had sufficient opportunity to read and understand these Terms and you agree to be bound by them. If you do not agree to these Terms, please do not use our Services.

You acknowledge and agree that:

  • Intersect may use the services of third parties to provide you with the service; and
  • Intersect may relocate the services or part thereof to any location with Australia.
  • that any sharing arrangement undertaken by you in relation to any data placed by you on the Service or accessible by you is subject to AAF Policies and agreements or NCI policies and agreements

We reserve the right to modify, at our sole discretion, any of these Terms, and, the policies and procedures for the sole purpose of ensuring that the Service quality is maintained or to comply with any legislation or government requirement.

Accepting the Quotation, Payment & Your Obligations

  • You must pay any invoices received from us that are correct and issued in accordance with the provision of the Service, in the time period stated.
  • You will provide us with reasonable assistance including, where relevant, instructions and or decisions on queries, to enable us to perform our obligations in the delivery of the Service.
  • You represent and warrant that your request and subsequent use of the Service does not violate any applicable law or regulation, and that you agree to abide by the entirety of these Terms in relation to use of the Service.
  • If any consents (which may include, without limitation, consents for Intersect to access use, store and disclose data of the Client) are required for Intersect to provide the Services, Client must procure those consents before Intersect is required to provide the Services.

Our Obligations

  • We will perform the Service, complying with any agreed specifications on the Service in accordance with this Agreement and comply with any applicable laws and regulations.
  • We will seek your consent (which you will not unreasonably withhold) if we need to use third party products or libraries in delivering the Service
  • We will act in accordance with any reasonable additional instructions or directions given by the Client from time to time.

Warranties & Release

Each Party represents and warrants that:

  • it has the legal capacity to enter into the Agreement; and
  • its provision or use of the Service will not be in breach of any law; and

You represent and warrant to us that:

  • any Material provided by you (regardless of medium) will not infringe the copyright of third parties.
  • in respect of any and all Material you store in the Service, you will have obtained and hold from any entity or individual in respect of which any sensitive material is stored, the consent to your use and storage of that material;

Liability

  • To the full extent permitted by law, we exclude all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
  • To the full extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those expressly set out in these Terms.
  • These Terms are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, we limit our liability in respect of any claim to, at our option to the following:
    • If the breach relates to goods:
      • Replacement of the goods or the supply of equivalent goods;
      • Repair of the goods;
      • Payment of the cost of replacing the goods or of acquiring equivalent goods; or
      • Payment of having the goods repaired.
    • If the breach relates to services:
      • Supply of the services again; or
      • Payment of the cost of having the services supplied again.

The parties agree that:

  • Intersect’s entire liability arising out of or related to this Agreement will not exceed the total Fees paid by Client for the six (6) month period prior to the incident giving rise to the liability that arises irrespective of the theory of liability; and
  • to the extent permitted by law, under no circumstance will Intersect be liable in respect of, but not limited to, interruption of business, incidental, special or any consequential damages or for loss of profits, savings, data or wasted expenditure, whether arising from our performance or non performance of our obligations under this Agreement, or otherwise.

You acknowledge and agree that we accept no responsibility for any third party data, website or content accessed through the Service, nor for investigating, monitoring or checking such locations or their content for accuracy, currency, appropriateness, or completeness.

You acknowledge and agree that your use and reliance on the information referred to in clause 6.5 is voluntary, and at your own risk and must be undertaken in accordance with the terms of use for the individual locations. By using our Service, you acknowledge that we are neither responsible for the availability of, nor the content located on or through any third party locations.

You acknowledge and agree that despite our best endeavours the Service is reliant on third parties to operate and may not operate on a continuous basis, and may be unavailable from time to time, including for maintenance purposes. You release us, and agree to keep us released, from all Claims arising as a result of the Service being non operational for any period.

You agree to release Intersect and to indemnify and hold Intersect harmless from all Claims and losses (including legal costs on a full indemnity basis) arising or resulting from:

  • Service being non-operational
  • Loss of data and Materials
  • Termination of access to the Service
  • Breach of third party Intellectual Property Rights contained in any Materials or content uploaded by you, or a User or other third party authorised by you; and
  • Any Claim from any User or third party authorised by you to access the Service.

Licence to use Services

  • Subject to your compliance with the Agreement and the payment of Fees, for the Subscription Term, we grant you and your users a limited, non-exclusive, worldwide, non-transferable, revocable licence to use the Services solely for the purposes as set out in the Quotation, in accordance with these Terms.
  • Client is responsible for the use of the Service by its Users and for any breach of this Agreement by any of its Users. Notwithstanding anything to the contrary in this Agreement, any use of the Service by Client or its Users in breach of this Agreement or applicable law or that threatens the security, integrity or availability of the Service may result in the immediate suspension of Client’s access to the Service; however, Intersect will use commercially reasonable efforts to provide Client with notice and an opportunity to remedy such breach or threat prior to such suspension.
  • You or your users must not add any Materials or other content to the Service unless you have agreed to the Service Plan;
  • the Service may contain world wide web hyperlinks to other data, sites or content added by Users other than Intersect. We do not endorse, sponsor or approve any such User generated content, Materials or any data available at any linked location. If you opt-in for third party services, we are not responsible for what you share with other parties and you irrevocably release us and agree to keep us indemnified from all Claims arising as a result of you accessing any world wide web hyperlinks to other data, sites or content added by people other than us.
  • You acknowledge and agree that, if you are in breach of these terms & conditions, we may take complete editorial control as to the content stored in the Service and may alter, amend or cease the storage and display of such content at any time in our sole discretion (reasonably formed). You release us from, and agree to keep us released, and indemnified, against any Claim that may arise as a result of us altering, amending or deleting any User content or Materials.
  • You agree to, and will contract with your Users to agree to:
    • provide accurate, current and complete information as requested for Registration Data during any registration process;
    • maintain the security of Authentication Credentials including any password or other confidential credential;
    • notify us immediately if you suspect unauthorised use of your Authentication Credentials;
    • ensure Registration Data is maintained and promptly updated to ensure it is complete, accurate and current;
    • notify us of any breach, incursion, infection or other compromise of your in-house systems in a timely manner.

Security and Credentials

  • You and your users are responsible for maintaining the confidentiality of the Authentication Credentials used to access the service. Should you believe the security of your Account has been breached, you are required to notify us immediately.
  • You and your users agree to vouchsafe for the identities of any user and collaborators introduced to the Service at your invitation.

Use of Materials and User content

  • Subject to our Privacy Policy, any Material that you submit, whether electronic or physically, or by other means, will be treated as confidential and proprietary unless you specify otherwise.
  • You warrant and represent that any Materials submitted by you and any User do not breach the Intellectual Property Rights of any third party and that you are authorised and/or licensed to submit and publish such Material.
  • You retain all rights in such Material, however you grant us a non-exclusive, royalty-free, in perpetuity, world-wide right and licence to copy, distribute, display, publish, translate, adapt and otherwise use Metadata about this Material for any purpose, with no payment or consideration due to you.
  • You further grant us a non-exclusive, royalty-free, world-wide right and licence to access, inspect, read, copy, translate, adapt and otherwise use your Material, with no payment or consideration due to you, for the sole purpose of providing you Services.
  • You acknowledge and agree that we are not responsible for what others do with the Material and data that you share with them or make available to them on the Service. You release us from, and agree to keep us released and indemnified, against any Claim that may arise as a result of your sharing or making available the data with or to others.

User Conduct

You agree, and will contract with your Users to agree:

  • to comply with all Australian Federal, State and International legislation regarding online conduct and publication of acceptable Material and content;
  • not to use Services for illegal or immoral purposes;
  • not to infringe our copyright or the copyright of any third party with respect to material uploaded by us or you to Services or to copy material uploaded in Services without obtaining the relevant licences and permissions to do so.
  • not to use the Services to engage in any commercial enterprise without receiving our express prior consent in writing;
  • not to upload or transmit disruptive or destructive files, spam, viruses, malware or other harmful content.

You agree, and will contract with your Users to agree, to not submit any material for incorporation into Services that:

  • contains illegal, abusive, profane, vulgar, hateful, sexually explicit content or language, slurs, text or illustrations in poor taste, inflammatory attacks of a personal, sexual, racial or religious nature, or expressions of bigotry, racism, discrimination or hate;
  • is defamatory, inflammatory, disparaging, threatening, false, misleading, deceptive, fraudulent, inaccurate, unfair, contains gross exaggeration or unsubstantiated claims, violates the privacy rights of any third party, is unreasonably harmful or offensive to any individual, User, community, or tends to mislead or reflect unfairly on any other person, business or entity;
  • that would cause you or us to breach any law, regulation, rule, code or other legal obligation;
  • interferes with any person’s uninterrupted use and enjoyment of their the Service subscription;
  • unless you hold all necessary rights, licences and consents to do so;
  • is intended primarily to promote a cause or movement, whether political, religious or other;
  • discloses any Personal Information relating to, or images of, a minor without consent of a parent or guardian;
  • that would, in our sole opinion (reasonably formed), bring us, or the Service, into disrepute;
  • that, in our sole opinion (reasonably formed), infringes the intellectual property rights or other rights of any person;
  • is not otherwise in compliance with these Terms.

Intellectual Property Rights

  • Nothing in this Agreement alters Intersect’s ownership of Intersect’s Background IP.
  • Unless these have been specifically varied in the Quotation, the following terms apply:
    • You acknowledge and agree that the Service contains proprietary information and content that is protected by intellectual property and other laws, and may not be used except as provided in the Agreement.
    • You acknowledge and agree that upon receipt of a notice of a claim of Intellectual Property Right infringement whether by You or any User:
      • we will refer the infringement Claims to you; and
      • you authorise us to remove, or otherwise restrict access to, the infringing Materials from the Service without incurring any liability to You or any User or other party.
  • It is strictly prohibited to copy, alter, adapt, distribute, display, republish or modify any materials or software contained in the Service except as authorised under the Agreement. Nothing contained in the Agreement will be construed as granting any licence or right of use of any trademark, information, material or software in the Service. To the extent that you choose to use any software of any third parties made available as an aspect of the Service, you agree to comply with the terms and conditions of use of that software as provided by the relevant supplier.
  • To the extent the Service utilises Intersect Background IP, Intersect grants non-assignable non-transferable rights in Intersect Background IP to the Client for the sole purpose of using the Services during the term of this Agreement.
  • If any third party Claim, based on alleged infringement of an Intellectual Property Right in a document Deliverable is asserted against You, by virtue of your use of the Service, You will immediately notify us. We will promptly investigate such Claims and prepare any defence of such Claims or settle such Claims at our cost. You may participate in any defence or settlement of Claims that we are obliged to defend or settle, at your own cost. We have the right, at our discretion, to control and direct the investigation, defence or settlement and You agree to reasonably cooperate and assist us in defending or settling any such Claim.
  • We have no obligation or liability for any claim of infringement arising out of or in connection with:
    • your use of superseded materials or software contained in the Service, of the infringement would have been avoided by using a current version release of the materials or software contained in the Service;
    • any modification of the materials or software contained in the Service not expressly authorised or instructed by us;
    • any breach by you of the Agreement, if the infringement would have been avoided by not breaching the Agreement.
  • In the event that our Services or any of the materials or software contained in our Services are held by a court of competent jurisdiction to be, or are to our knowledge or belief, infringing, then we have the option, at our expense, to:
    • modify the Deliverables, Service or materials or software contained in the Service to be non-infringing; or
    • obtain a licence to continue using the Services, Deliverables or materials or software contained in the Services.

Termination

  • This Agreement terminates automatically at the end of the Subscription Period, or if for any reason we cease to operate the Service.
  • We may otherwise terminate the Agreement immediately, on notice to you, if you have breached any provision hereof in any way, including but not limited to:
    • failure to pay any Fees on time, and remains unpaid 21 days after the due date ;
    • breach of any of these Terms, which breach is not rectified within a reasonable time (14 days) requested by us, except in the case of a breach which, in our sole opinion, is not capable of being rectified. In this case termination is effective as at the date shown in the notice;
    • if you commit an act of Insolvency, including but not limited to the appointment of an administrator, receiver, manager or liquidator.
    • if we notify you that there is a Force Majeure Event in accordance with clause 14.
  • You may terminate your Account at any time, for any reason, by giving 90 days’ written notice or emailing help@intersect.org.au. No financial compensation will be payable or due to you by us should you choose to terminate your Account.
  • The Client may terminate this Agreement under circumstances as agreed in the Quotation.
  • You agree that we will not be liable to you or any third-party for any termination of your access to the Service, and the Service Plan or any component of the Service.
  • Upon termination:
    • you will have no right to access the Service or any of the component of the Services except to transfer any of your Material, data or information in accordance with clause 11.7 below;
    • we may temporarily or permanently block access to, remove, deactivate, delete, and discard all Material provided by you. We accept no liability for removed or deleted Material, data or information and you hold us harmless in respect of any such Claim.;
    • Subject to our sole determination of risk assessment including but not limited to security exposure, safety and feasibility, we will permit you to copy or transfer your Material, data or information to an alternative means of storage. Such transfer must occur to your hardware storage facilities via a secure network connection acceptable to us. During the period in which you copy or transfer your Material, data or information to an alternative means of storage, the terms of this Agreement, including any of the Fees applicable to your the Service Plan, shall remain in full force and effect for the period during which the transfer of your Materials, data or information occurs.

Privacy Legislation

Intersect and the Client must comply with any applicable Privacy Legislation and must not do anything which would cause the other party to be in breach of the Privacy Legislation.

Billing

Fees are calculated based on the Rates applicable to the relevant Services and whether you are a member or non-member as set out in the Quotation.

In relation to Storage services, usage is sampled on a daily basis and the monthly high-water mark in decimal gigabytes is used as the basis for calculating the consumption. In relation to Compute services provided by NCI, compute pricing is based on Service Units (SU), one virtual core consumed for one hour. NeCTAR pricing is time-based depending on the overall dimensions of virtual machines allocated. For any other Compute services the usage will be as defined in the Quotation.

Pricing assumes AARnet connected on-net data read and write access. Intersect may at its sole discretion shape and/or bill network traffic to/from off-locations.

Unless these have been specifically varied in the Quotation, the following terms apply:

  • Intersect will invoice annually in advance.
  • Payment terms are net 30 days from invoice and will be agreed to by both parties prior to the commencement of any Service.
  • Invoices are due and payable on the date indicated on the document.

GST

  • Meaning of words used in this clause but not defined in the Agreement have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  • Amounts exclusive of GST. Unless otherwise expressly stated in the Agreement, all amounts payable or consideration to be provided under or in accordance with the Agreement are exclusive of GST.
  • Payment of GST. The recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid Tax Invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with the Agreement.
  • If the Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
    • the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense (“net amount”); and
    • if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply, such that after the other party meets the GST liability, it retains the net amount.

Force Majeure

  • Neither party is liable for any breach of its obligations under the Agreement to the extent that the breach resulted from a Force Majeure Event provided that it:
    • promptly notifies the other party (with appropriate details); and
    • takes all reasonable steps to work around or reduce the effects of the Force Majeure Event.
  • If a Force Majeure Event continues for more than 14 days or continues beyond the Service Period, we may terminate this Agreement with immediate effect.

General

  • You must not assign, sub-licence or otherwise deal in any other way with any of your rights under these Terms.
  • If a provision of these Terms is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
  • Each party must at its own expense do everything reasonably necessary to give full effect to the Agreement and the events contemplated by it.
  • In the event of any dispute the Client may have with Intersect regarding the Service, it must first contact the Service at help@intersect.org.au to resolve any such dispute prior to commencing any action against Intersect.
  • The Agreement is governed by the laws of New South Wales and each party submits to the jurisdiction of the courts of New South Wales.
  • This Agreement sets out the entire agreement between the parties and supersedes all prior oral or written agreements, representations, acknowledgements and communications regarding the subject matter of the Agreement and neither party may rely on any such prior written agreements, representations, acknowledgements or communications.

Confidentiality and Protection of Data

  • Each party:
    • May use Confidential Information of the other party for the purposes of the Service.
    • Must keep confidential all Confidential Information of the other party; and
    • May disclose Confidential Information of the other party only to employees and contractors who have a need to know and are aware that Confidential Information must be kept confidential.
  • A mutual Non Disclosure Agreement is required to be executed for projects that result in the creation or alteration of sensitive material or Intellectual Property.
  • A party must use their best endeavours in accordance with industry best practice to prevent unauthorised physical and online access by third parties to any Confidential Information of the other party in its possession.
  • A party’s obligations under this clause 16 will not be taken to have been breached where the information is legally required to be disclosed. However, the Confidential Information (or part of it) which is disclosed by force of law will remain Confidential Information for all other purposes.
  • You must, on demand, return (and procure the return) to us any of our or our Related Bodies Corporate’s Confidential Information in your possession or control (or in the possession or control of any of your employees, agents, contractors or sub-contractors).
  • Nothing in this clause 16 will be construed to prevent a party from disclosing information including the Confidential Information of the other party to its employees, agents or contractors on a “need-to-know” basis, provided that if the information is Confidential Information the disclosing party ensures that such information is treated as confidential by its employees, agents and contractors and such disclosure is bound by terms equivalent to this clause 16.
  • Our Privacy Policy explains to you how we treat your Personal Information and protects your privacy when you use the Service. By using the Service, you agree that we can use such Personal Information in accordance with our Privacy Policy.

Survival

Any term of this Agreement that by its nature is intended to survive termination of this Agreement survives termination of this Agreement. Without limitation to the foregoing, the following clauses will survive the termination of this Agreement: clauses 5, 11, 19 and this clause