These Client Terms of Service (the “Client Terms”) describe your rights and responsibilities when using our online client portal or other platforms (the “Services“). If you are a Client or an Authorized User (defined below), these Client Terms govern your access and use of the Services. “Client” is the organization that you represent in agreeing to the Contract (e.g. your employer). These Client Terms form a binding “Contract” between Client and us. If you personally use our Services, you acknowledge your understanding of the Contract and agree to the Contract on behalf of Client.
Clients give access to Authorized Users
Individuals authorized by Client to access the Services (an “Authorized User”) may submit content to the Services, such as textual data or files (“Client Data”). Client will:
- (a) inform Authorized Users of all Client policies and practices that are relevant to their use of the Services; and
- (b) ensure the transfer and processing of Client Data under the Contract is lawful.
Upgrading to a paid subscription
A paid subscription allows Client and its Authorized Users to access the Erudito's creative services on an ongoing basis (the “Subscription”). You may upgrade to a Subscription during, or at the end of, your trial period. Subscriptions commence immediately and continue for the term specified in the “billing” interface. Each Subscription is for a single team for a specified term.
Purchase based on now; not the future
We may share information about our future product plans (e.g. linking to our public roadmap). These public statements are an expression of intent. Do not rely on them when making a purchase decision. If you decide to purchase a team subscription to our Services, that decision should be based on the functionality or features we have made available at that moment, and not on the delivery of any future functionality or features.
If Client sends us any feedback or suggestions regarding the Services, there is a chance we will use it, so Client grants us (for itself and all of its Authorized Users and other Client personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Client, any Authorized User or other Client personnel.
You’re responsible for your content
Client must comply with the Contract and ensure that its Authorized Users comply with the Contract and the User Terms. Except as stated herein, we aren’t responsible for the content of any Client Data or the way Client or its Authorized Users choose to use the Services to store or process any Client Data.
Our removal rights
If we believe there is a violation of the Contract that can be remedied, we will, in most cases, ask Client to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if Client does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.
Fees are specified in the “billing” interface and must be paid in advance. Payment obligations are non-cancelable and fees paid are non-refundable except as stated herein. For clarity, in the event Client cancels any subscriptions for convenience, Client will remain responsible for any unpaid fees under the paid subscription, and Services under the paid subscription will be deemed fully performed and delivered upon expiration of the initial team subscription term. If you decide to cancel part way through your subscription term, we will not refund you for the remainder of the term unless termination is due to our breach.
Team subscriptions paid by credit card automatically renew for additional periods equal to the preceding term, without the need to go through the Services “billing” interface. Team subscriptions paid by invoice will renew immediately after the invoice has been paid by Client, or, in the case of a bank transfer, once the funds arrive in our account.
Downgrade for non-payment
If any fees owed to us by Client remain unpaid seven (7) days after written notice of non-payment, we may, without limiting our other rights and remedies, pause any team subscriptions until those amounts are paid in full. Client acknowledges and agrees that pausing their team subscription will result in a temporary loss of access to Erudito's creative services.
We’ll provide the Services
We will make the Services available to Client and its Authorized Users as described in the Contract; and not use or process Client Data for any purpose without Client’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Services by Authorized Users and any processing related to such use or otherwise necessary for the performance of the Contract.
We’ll keep the Services available
We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will endeavor to provide Client with advance notice if we think it may exceed sixty (60) continuous minutes.
We’ll protect your Client Data
The protection of Client Data is a top priority for us so we will maintain administrative, physical, and technical safeguards in accordance with industry best practices. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Client Data by our personnel. Before sharing Client 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 Client Data and preventing unauthorized access. Client (not us) bears sole responsibility for adequate security, protection and backup of Client Data when in Client’s or its representatives’ or agents’ possession or control. We are not responsible for what Client’s Authorized Users do with Client Data. That is solely Client’s responsibility.
We will notify Client of any unauthorized access or misuse of Client Data (a “Data Breach”) as soon as reasonably possible after discovery of the Data Breach. We will not notify any third-parties of the involvement of Client’s Data in the Data Breach other than Client without Client’s prior written permission. We will immediately investigate and take appropriate remedial actions to mitigate the effects of the Data Breach. Such investigation and remediation activities shall be in accordance with applicable laws, regulations, industry standards, and industry best practices. Upon request, we will provide Client with a summary report of its investigation and remediation activities.
You own your Client Data
Client will own all Client Data. Subject to the terms and conditions of the Contract, Client (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Client Data, 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; and
- (d) as expressly permitted in writing by Client. Client represents and warrants that it has secured all rights in and to Client Data from its Authorized Users as may be necessary to grant this license.
We own our Services
We own and will continue to own our Services, including all related intellectual property rights. We grant to Client a non-sublicensable, non-transferable, non-exclusive, limited license for Client and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Contract and the User Terms. All of our rights not expressly granted by this license are hereby retained.
Client and its Authorized Users must not breach any copyright or intellectual property rights connected with the Services. This includes but is not limited to:
- (a) altering or modifying any of the code in the Services;
- (b) causing any of the material in the Services to be framed or embedded in another website without our permission;
- (c) decompiling or reverse engineering, including attempting to decompile or reverse engineer, any software in the Services;
- (d) undertaking or attempting to undertake any act which would otherwise constitute an infringement of our moral rights;
- (e) transferring the Services to a third party or mirroring the Services on another server;
- (f) creating derivative works from the Services.
As further described below, a team subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions.
Termination for cause
We or Client may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Client is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to Client if we are notified, or reasonably believe, that the Services are being used by Client or its Authorized Users in violation of applicable law.
Upon any termination for cause by Client, we will refund Client any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, the Client 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 Client of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
Termination without cause
Client may terminate its team subscriptions immediately without cause. We may also terminate Client’s team subscriptions without cause, but we will provide Client with thirty (30) days prior written notice.
Representations disclaimer of warranties
Client represents and warrants that it has validly entered into the Contract and has the legal power to do so. Client further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the User Terms.
Limitation of liability
To the extent permissible at law, each party is not liable for any indirect, punitive, incidental, special, consequential damages including without limitation any claims, losses, liability, loss of data, loss of profits, revenue, business or goodwill arising out of or in any way connected with the provision of or failure to provide the Services under these Client Terms.
To the extent permitted by law, we exclude all representations, guarantees, warranties or terms (whether express or implied) other than those expressly set out in these Client Terms, and the Australian Consumer Law to the extent applicable. We cannot guarantee specific results for our Services. It is Client’s sole responsibility to determine that the Services or any part of these meet Client’s needs or are otherwise suitable for the purposes for which they are used.
These Client Terms are to be read subject to any legislation that prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. Subject to such legislation, each party limits liability for any claims relating to these Client Terms to the fees payable under this agreement (if applicable) for the preceding one (1) month.
The foregoing limitations do not apply with respect to (a) our breach of our obligations under the section titled ‘We’ll protect your Client Data’, (b) our obligations under the section titled ‘Our indemnification of Client’, (c) Client’s obligations under the section titled ‘Client indemnification of Us’ or (d) either party’s breach of the section titled Confidentiality.
This clause survives the termination or expiry of these Client Terms for whatever reason.
Our indemnification of Client
We agree to defend, indemnify and hold Client harmless from any losses or damages (“Claims”) brought against or sustained by Client by a third party, which relates to the infringement of a third-party Intellectual Property Rights caused by Client’s use of the Services.
Our indemnity does not include any actions, suits, claims, demands, liabilities, costs, expenses, losses and damage (including reasonable legal fees) brought against or sustained by Client by a third party, which:
- (a) relates to unmodified Client Data;
- (b) relates to a product or service of another entity to the extent such third party product or service is not reasonably necessary for the use of our service; or
- (c) arises out of any unlawful modification of the Services;
- (d) arises out of any breach by Client of these Client Terms; or
- (e) arises from an admission or settlement by Client without our prior written consent.
For any Claims arising under this clause, Client must:
- (a) provide us with prompt notice of any Claim brought against Client;
- (b) provide reasonable assistance to defend the Claim, including providing us with any relevant documents or evidence that we request;
- (c) allow us to maintain exclusive control over the Claim, including as to any settlements that we may agree upon; provided that we may not settle any Claim that requires Client to admit fault, take any action, or pay any monies without Client’s written consent signed by an authorized officer.
This clause is Client’s exclusive remedy and our sole liability against any Claim brought against or sustained by Client by a third party.
This clause survives the termination or expiry of these Client Terms for whatever reason.
Client indemnification of Us
Client agrees to defend, indemnify and hold us, our affiliates, employees, agents, contributors, third party content providers and licensors harmless from and against all actions, suits, claims, demands, liabilities, costs, expenses, losses and damage (including legal fees on a full indemnity basis) brought against or sustained by us, which:
- (a) is directly or indirectly caused by Client’s breach of these Terms;
- (b) is directly or indirectly caused by any willful, reckless or negligent act of Client;
- (c) concerns personal injury to any person caused or contributed to by Client;
- (d) is caused by Client’s act or omission and constitutes a loss of or damage to property;
- (e) is brought by any third-party in respect of personal injury, death or damage to third-party property; or
- (f) arises from Client’s act or omission.
For any claims arising under this clause, we must:
- (a) provide Client with prompt notice of any claim brought against us;
- (b) provide reasonable assistance to defend the claim at Client’s expense, including providing Client with any relevant documents or evidence that Client requests;
- (c) allow Client to maintain exclusive control over the claim, including as to any settlements that Client may agree upon; provided that Client may not settle any claim that requires us to admit fault, take any action, or pay any monies without our written consent signed by an authorized officer.
This clause is Client’s exclusive remedy and our sole liability against any Claim brought against or sustained by Client by a third party. Except as required by law, we will not be liable for any claim, loss or liability for personal injury, death or damage to Client or its property however it may be caused.
We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by Client, and in such case, Client agrees to cooperate with our defence of such claim. In no event will we be liable to Client for any indirect, incidental or consequential damages including, without limitation, direct, indirect, special, punitive, or exemplary damages.
In these Client Terms, “Confidential Information” means information that:
- (a) is by its nature confidential; or
- (b) is designated by a party as confidential; or
- (c) the receiving party knows or ought to know is confidential;
- but does not include information which:
- (d) is or becomes public knowledge other than by breach of these Client Terms or by any other unlawful means;
- (e) is in the possession of the party without restriction in relation to disclosure before the date of receipt from the other party; or
- (f) has been independently developed or acquired by the other party.
A party who receives Confidential Information under these Client Terms agrees not to disclose it to any other party without the prior written consent of the other party.
We will restrict disclosure of such Confidential Information only to such of our employees, agents or subcontractors that need to know it for discharging our obligations under these Client Terms, and shall ensure that such employees, agents or subcontractors are subject to the same obligations of confidentiality.
All Client Data is Confidential Information for Client. We shall use a commercially reasonable effort to protect Client Data as they would protect their own data.
The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.
You agree to use your best endeavors to use mediation and negotiation to resolve any dispute arising out of or relating to these Client Terms, prior to resorting to an external dispute resolution process.
The Client grants us the right to use the Client’s company name 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. Client may send an email to us stating that it does not wish to be used as a reference and we will cease using Client’s name and logo in any marketing or promotional material.
Relationship of the Parties
The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Contract.
These Terms may be amended without notice from time to time at our sole discretion. Your use of the Services following any amendments indicates that you accept the amendments. Please check these Terms regularly to ensure you are aware of any changes, and only proceed to use the Services if you accept the new Terms.
Your use of the Services and any dispute arising out of your use of it is subject to the laws of New South Wales and the Commonwealth of Australia. These Client Terms are governed by the laws of New South Wales and the Commonwealth of Australia and subject to the exclusive jurisdiction of the courts operating in New South Wales. The Services may be accessed throughout Australia and overseas. We make no representation that the Services complies with the laws (including intellectual property laws) of any country outside Australia. If you access the Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the Services.
The Contract, including these Client Terms and all referenced pages 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, the Contract supersedes the terms of any online agreement electronically accepted by the Client or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Client Terms and any other documents or pages referenced in these Client Terms, the following order of precedence will apply: (1) the portions of the Client-Specific Supplement that apply to the Client (if any), (2) the Client Terms, and (3) any other documents or pages referenced in the Terms.