RTO Data Cloud – Terms and Conditions

1. ABOUT THESE TERMS

1.1 These are the terms and conditions for our supply of RTO Data Cloud to you, including our obligations to each other (Terms).

1.2 These Terms apply to all RTO Data Cloud and all of it components and systems.

1.3 If you accept these Terms in Australia, these terms do not exclude, restrict or modify:

a. the application of any provision of the Australian Consumer Law (whether applied as a law of the Commonwealth or any State or Territory of Australia) (ACL);

b. the exercise of any right or remedy conferred by the ACL; or

c. the liability of Newbery Consulting for a failure to comply with any applicable consumer guarantees where to do so would:

(1)   contravene the ACL; or

(2)   cause any part of these Terms to be void.

1.4 Some words in these Terms have specific meanings:

a. Business means the business for which the application is made and accepted for RTO Data Cloud. This would include, but is not limited to, sole traders, partnerships, companies and trusts.

b. Business Hours means 9 am to 5 pm in Australian Eastern Standard Time.

c. Business Days means Monday to Friday and excludes Saturday, Sunday and Public Holidays for the State of Victoria.

d. Compliance with Regulatory Requirements means the obligation to comply with legislative and statutory requirements relating to operating as a Registered Training Organisation in Australia including but not limited to complying with  the Education and Training Reform Act 2006 in the State of Victoria, the Vocational Education and Training Act 1996 in the State of Western Australia and the National Vocational Education and Training Regulator Act 2011 applicable to all States and Territories of Australia and their associated regulations and legislative instruments.

e. Compliance with Contractual Requirements means the obligation of a Registered Training Organisation to comply with any contract it may have entered with any government agency or private entity to access payment for services including the use of RTO Data Cloud as a component of the service delivery.

f. Employees means employees of the Business.

g. Fees means the fees and charges relating to the provision of RTO Data Cloud, as notified to you from time to time and published on our website at:  https://newberyconsulting.com.au/ and specified at section 12 of these terms and conditions.

h. Loss or Claim means any loss, liability, action, proceeding, damage, cost or expense (including all reasonable legal costs and expenses), including liability in tort and consequential and economic losses.

i. RTO Data Cloud means any of the services, features or functionality which form part of RTO Data Cloud and which we make available to you from time to time.

j. Other Application means an application or service developed by a third party to integrate and be used in conjunction with RTO Data Cloud. Other Application may include but are not limited to financial accounting software, learning management software, work diary or working profiling software, cloud based assessment software, student management system software.

k. Personal Information means that term as defined in the Privacy Act. Basically, this is information about an identifiable individual.

l. Privacy Act means the Privacy Act 1988 (Cth) as updated, amended or replaced from time to time.

m. Professional Partner means a person who provides data entry support or administrative support, and who may be appointed as a User.

n. Remote Access Technology means TeamViewer which is used by the RTO Data Cloud Technical Support Team to view your account. Newbery Consulting does not otherwise have any access to a user account. TeamViewer can be downloaded at the following website https://www.teamviewer.com/en/download/windows/

o. Software as a Service means a delivery model for software applications whereby the vendor hosts and operates the application over the Internet. Customers pay for using the software without owning the underlying infrastructure. With Software as a Service subscriptions, customers will pay for usage through their RTO Data Cloud account on a monthly basis.

p. Third Party means any person we have contracted with to help us provide RTO Data Cloud. This includes any other service providers engaged by us for the delivery, maintenance and administration of RTO Data Cloud.

q. User means a person authorised to use RTO Data Cloud (including a Professional Partner). RTO Data Cloud is a multi-user system.

r. We, us and our means The Trustee for Newbery Consulting Trust ABN 45 088 229 315.

s. You or your means the Business, including each Employee and User.

2. GENERAL TERMS

2.1 Services. We agree to supply, and you agree to use, RTO Data Cloud as a Software as a Service on the terms and conditions set out in these Terms.

2.2 Protecting your username and password

a. Unless you take adequate security precautions, it could be possible for an unauthorised person to gain access to your RTO Data Cloud data. It is important to take all reasonable precautions to ensure that your username and password are not misused, and remain secure and confidential. In particular:

(1)   you must not tell anyone your username or password, including any member of your family;

(2)   you must not let anyone else, whether acting as your agent or not, access RTO Data Cloud using your username and password; and

(3)   you must be extra careful when accessing RTO Data Cloud from public computers.

b. If you think anyone else might know your password you should reset your password from within RTO Data Cloud, or contact us as soon as possible to arrange a new password.

c. You agree to be liable if your login details are used by an unauthorised person.

2.3 Other responsibilities you have as a User

a. No interference with RTO Data Cloud – You will not

(1)   interfere with the operation of RTO Data Cloud or overload the system;

(2)   reverse-engineer, reverse-assemble, decompile, or otherwise attempt to discover source code, formulas or processes in respect of the software behind RTO Data Cloud;

(3)   copy, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from RTO Data Cloud except where we have given you permission;

(4)   use RTO Data Cloud in way that is prohibited by law, regulation or government order in any relevant jurisdiction, or in a way that violates a third party’s legal rights;

(5)   use RTO Data Cloud in a way that could harm or impair anyone else’s use of it;

(6)   use RTO Data Cloud to gain unauthorised access to any service, data, account or network by any means;

(7)   falsify any protocol or email header information;

(8)   upload any material (including pdf. files) into RTO Data Cloud which:

(a) is harmful, threatening, abusive, vulgar, obscene or otherwise objectionable;

(b) is fraudulent, false, misleading or deceptive;

(c) contains Personal Information of any other person, without that person’s express or implied consent;

(d) infringes on the intellectual property rights of any other party; or

(e) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.

(9) use RTO Data Cloud to send “spam” or otherwise make available any offering designed to violate these Terms; or

(10) remove, modify, tamper with any regulatory or legal notice or link that is incorporated into RTO Data Cloud.

b. Cooperation and limited authority in relation to Third Parties – You:

(1) must do all things we consider reasonable and appropriate to enable us to fulfil our obligations to Third Parties in relation to RTO Data Cloud; and

(2) authorise us to give a Third Party or other person any authority, consent or instruction in respect of RTO Data Cloud, as reasonably required to enable us to provide RTO Data Cloud to you.

c. Compliance with Regulatory Requirements and Contractual Requirements – It is your responsibility to retain your Business records for compliance purposes (as applicable). We are not liable for your failure to meet your legal obligations for record retention, in relation to any data that you input into RTO Data Cloud. If you decide to terminate RTO Data Cloud we strongly advise you to extract your data in its entirety as soon as possible following termination.

d. Giving access to other Users – If you are listed as the owner of the Business or the authorised administrator for your subscription, you can authorise other people (including Professional Partners) to have access to your RTO Data Cloud data as Users. Subject to the access rights you grant, they will be able to view and modify your RTO Data Cloud data. Their use of RTO Data Cloud is subject to these Terms, so we suggest that you provide them with a copy. You are responsible for their use of RTO Data Cloud. You can stop their access by removing them from your User list within RTO Data Cloud or by contacting us.

e. Change of details – You must let us know of any changes to the details that you have provided to us in relation to RTO Data Cloud, and provide any proof of the change we that require.

f. Accuracy of Data – You are responsible for verifying the Data that you input into RTO Data Cloud and ensuring that it is accurate and complete.

2.4 Use of RTO Data Cloud and our intellectual property

a. What you can do – Until your use of RTO Data Cloud is terminated, you have a non-exclusive and non-transferable licence to use RTO Data Cloud in the way that we authorise from time to time.

b. We retain our intellectual property rights – Except where specifically set out in these Terms, these Terms do not give you any intellectual property or other rights in any of our:

(1) software, documents, templates, marketing material, trademarks, business names, logos, trading styles, processes or methodologies; or

(2) other intellectual property, and you (including your staff, agents or contractors) must not otherwise use, reproduce or modify these intellectual property rights.

c. Intellectual property rights deriving from your use of RTO Data Cloud – You agree that any intellectual property rights in any systems, processes or methodologies developed by you which derive from your use of RTO Data Cloud become our intellectual property.

2.5 Trial User

a. If you are a Trial User, you will be able to use RTO Data Cloud free of charge for 7 days. At the end of this period, you have the option of subscribing to RTO Data Cloud for a fee. If you do not subscribe, your access to RTO Data Cloud will be terminated.

b. As a Trial User of RTO Data Cloud, you agree to comply with and are bound by all other Terms and Conditions herein expressed with particular reference to section 2.3 relating to “No interference with RTO Data Cloud”.

c. If you choose not to subscribe to RTO Data Cloud following your trial, we strongly recommend that you extract your data for compliance and archive purposes as soon as possible and prior to your trial ending. Failure to extract and retain your data following the end of your trial may result in you being unable to comply with your record retention obligations under Regulatory and Contractual Requirements.

2.6 Payment of Fees and Direct Debit Authority

a. This section applies to you if you are responsible for paying the Fees for your RTO Data Cloud subscription. If another person is responsible for paying the Fees in relation to your use of RTO Data Cloud, and they stop paying us, then you will need to pay the fees to continue your use of RTO Data Cloud, in compliance with this section. In accepting and agreeing to these Terms, you also accept and agree to the Direct Debit Terms and Conditions / Payment Terms and Conditions and provide us with a valid direct debit authority. The following apply:

(1) Payment of Fees – You must pay all Fees due to us in relation to your use of RTO Data Cloud, on the due date. The current fees and charges are specified at Section 13.

(2) The RTO Data Cloud service is initiated by authorising us to debit your nominated credit card the initial set-up and provisioning fee at the end of the introductory period which is eight (8) days. To cancel your RTO Data Cloud account before this initial payment is debited from your credit card, you must give notice to us no later than 4 pm on the seventh (7th) business day of your introductory period so that the planned debit of your credit card can be canceled.

(3) For ongoing usage charges, we will calculate your ongoing monthly usage on the first (1st) day of each month and send you a usage summary and tax invoice. We will automatically debit the monthly usage charges from your nominated credit card on the eighth (8th) day of each month.

(4) Changes to Fees – By giving you at least 30 days’ notice before the change takes effect, we may:

(a)   change the amount of any Fee and introduce a new Fee; and

(b)   change the circumstances in which, or frequency with which, a Fee is payable.

(5) Termination rights – If we make a change that you do not agree with, then you have the option to terminate your RTO Data Cloud subscription under section 5.1.

(6) Direct Debit Authorisation – You authorise us to deduct monthly usage charges and any other fees payable to us in respect of your use of RTO Data Cloud. You give us this authority by providing us with your credit card or other payment details. Please refer to the Direct Debit Terms and Conditions.

(7) Refunds – Under no circumstances is Newbery Consulting liable to refund payments made to it in relation to initial payments and monthly usage charges of RTO Data Cloud.

(8) Processing Fee payments:

(a)   Debiting of Fees will ordinarily occur on the 8th Business Day of each month (but may occur at other times as required or permitted under these Terms) in arrears. We will provide a monthly statement/tax invoice detailing the fees to be debited.

(b)   It is your responsibility to ensure that:

(i) you have provided us the details of a valid credit card;

(i) you have sufficient credit or funds available in your nominated credit card or bank account to cover your monthly payment; and

(iii) your credit card or account details are current and correct.

(9) Declined or failed payment:

(a)    If your direct debit is declined, we will attempt the debit the supplied credit card each day following the initial decline. After each of these attempts, you will be sent an email notifying you if the payment was successful or unsuccessful. If these attempts fail, we will advise you and you will have until the 28th day of the month to respond and provide details of a valid credit card to enable this payment.

(b)    A dishonour fee may also be charged by both us and your financial institution to cover reasonable administrative and processing costs. The current fees and charges are specified at Section 13.

(c)    If the Fees remain unpaid for 28 days, we will suspend or terminate your use of RTO Data Cloud immediately. To be clear, if your account remains unpaid for a period of 28 days, your access to RTO Data Cloud will be terminated.

(d)    If there is a problem – If you believe there has been an error in debiting your credit card, you should notify us immediately at support@newberyconsulting.com.au so that we can resolve the issue promptly. If we conclude that your credit card has been incorrectly debited, we will arrange a refund of the incorrect debit.

(e)    Where your access to RTO Data Cloud is terminated due to an unpaid account, the termination process specified at Section 5 does not apply. You will have no further access to the system to extract your data.

2.7 Goods and services tax (GST) and duties

a. All payments due to us (eg. Fees, reimbursement by you to us of any amounts or payments under indemnities), unless already stated to be GST inclusive, are to be increased by the amount of any GST liability we have in relation to supplies we make to which those payments relate.

b. You must pay all duties (eg. stamp duty, other government charges or financial institution account fees, if applicable) payable in relation to your use of RTO Data Cloud. If we have paid them, they must be reimbursed by you on our request.

2.8  No Licence

a. RTO Data Cloud is provided on a software-as-a-service basis. You agree and acknowledge that any reference in Newbery Consulting’s or RTO Data Cloud literature to RTO Data Cloud being licensed is a reference to it being made available on a software-as-a-service basis over the Internet.

3. OTHER APPLICATIONS

3.1 From time to time we may offer Other Applications for RTO Data Cloud.

3.2 We make no warranties in relation to any Other Application offered in relation to RTO Data Cloud, regardless of whether an Other Application is provided by a Professional Partner or is otherwise recommended by us.

3.3 If you install or enable an Other Application for use with RTO Data Cloud, you consent to us allowing the Other Application to access your data as required to enable RTO Data Cloud and the Other Application to operate together. Any exchange of data or other interaction between you and an Other Application provider is solely between you and them. We are not responsible or liable for any disclosure, modification or deletion of your data as a result of any access to RTO Data Cloud by an Other Application provider.

4. AVAILABILITY OF RTO DATA CLOUD

4.1 RTO Data Cloud could be disrupted if systems failure occurs due to technology used by either us or Third Parties involved in providing RTO Data Cloud. Delayed receipt of Data Feeds Data could result in transactions not being available on a particular day.

4.2 RTO Data Cloud may also be unavailable for short periods because of necessary or desirable system maintenance or upgrades. If this is needed, we will try to inform you beforehand.

4.3 Subject to the terms of section 6 below, we are not responsible or liable to you or the Business for any Loss or Claim arising from RTO Data Cloud or any part of it being delayed, disrupted or unavailable.

4.4 In order to maximise your business continuity and make it easier to comply with your record retention obligations, we encourage you to take steps to archive your business records.

5. TERMINATION

5.1 How can you end your RTO Data Cloud subscription?

a. You can terminate your RTO Data Cloud subscription anytime by contacting us and nominating a date that you request your account to be closed. This date is identified as the effective date of termination. To be clear, the effective date of termination will be the date you nominate.

b. Your RTO Data Cloud subscription will cease on the effective date of termination. However, during the notice period, you are still liable for any Fees in relation to your use of RTO Data Cloud up to the effective date of termination. Refer also to section 5.3 below for other important content about what happens on the effective date of termination.

c. The termination arrangements described in this section do not apply where Fees remain unpaid. Please refer to section 2.6.

5.2 When we can terminate your RTO Data Cloud subscription without prior notice

a. Circumstances – These are the situations in which we can terminate your RTO Data Cloud subscription without prior notice. We will notify you of your suspension or termination as soon as possible.

b. The situations are:

(1)   A breach occurs:

(a)    you fail to remedy a material breach of these Terms within 7 days after we give you notice of the breach.

(2)   Something threatens RTO Data Cloud:

(a)    in our opinion, a change to any Third Party arrangement necessary for RTO Data Cloud renders the ongoing operation of RTO Data Cloud substantially unworkable or non-functional;

(b)    in our opinion, the actions of a regulator or a change in law or regulation makes the ongoing operation of RTO Data Cloud substantially unworkable or non-functional; or

(c)     we believe this is necessary either to protect the security, integrity or reputation of RTO Data Cloud or any RTO Data Cloud function, service or facility, or to otherwise protect our interests.

(3)   We have concerns about the Business:

(a)    we receive notification of a dispute from one or more of the directors or principals of the Business;

(b)    you go into liquidation, administration, insolvency, bankruptcy or such other similar arrangement with creditors, or in our opinion, it is reasonably likely you will do so; or

(c)     there is a change in who owns or controls the Business.

(4)   breach any law, regulation or legal obligation, or the legal rights of any person.

c. Notification:

(1)   We will notify you in writing (by email) of the suspension or termination.

(2)   We can reinstate a termination in our absolute discretion by written notice to you, and this takes effect on receipt or any later time specified in the notice, subject to you meeting any conditions set out in the notice.

(3)   If you become aware that a circumstance which would permit us to terminate your RTO Data Cloud subscription under section 5.2.a.3. has arisen or may arise, you must advise us in writing as soon as possible.

5.3 What happens on the effective date of termination?

a. Limited period for data extraction –

(1)   You will have until the effective date of termination to extract your data from RTO Data Cloud, after which time you and other Users (including your Professional Partner) will have no further access to RTO Data Cloud or your data. We may take steps to delete your data from our servers at any time after the effective date of termination, whether or not you have extracted your data.

(2)   We strongly recommend that you extract your data for compliance and archive purposes as soon as possible following termination of RTO Data Cloud. Failure to extract and retain your data following termination may result in you being unable to comply with your record retention obligations.

b. Continuation of limitations on liability. Any limitations on liability which you have given under these Terms continue after termination in relation to your use of RTO Data Cloud.

6. LIABILITY, WARRANTIES, REPRESENTATIONS AND INDEMNITIES

6.1. No warranty that RTO Data Cloud is suitable for your needs

a. RTO Data Cloud is a generic service and its capabilities are likely to change over time. This means that RTO Data Cloud may not be, or may not remain, suitable for your needs.

b. You must assess the ongoing suitability of RTO Data Cloud for you and your Business. We are not aware of your individual business needs and cannot provide any specific recommendations regarding your use of RTO Data Cloud.

6.2 Liability for other conditions or warranties

a. To the extent permitted by law (and subject to section 1) if you accept these Terms, we provide no warranty and make no claim in relation to our performance, the performance of RTO Data Cloud, or any service associated with RTO Data Cloud.

b. Our liability to you for any non-compliance with a statutory guarantee, or Loss or Claim arising out of or in connection with the supply of goods or services under these Terms, or any breach by us of these Terms however arising (whether for breach of these Terms, tort (including negligence), statute, custom, law or on any other basis), is limited to:

(1)   the resupply of RTO Data Cloud or the service (as applicable); or

(2)   the cost of resupply of RTO Data Cloud or the service (as applicable), and in any event will be limited to the fullest extent permitted by law.

c. All representations, conditions, warranties and terms that would otherwise be expressed or implied in these Terms by general law, statute or custom are expressly excluded (to the extent that such representations, conditions, warranties and terms can be excluded at law).

b. If you accept these Terms, sections 6.2.b and 6.2.c above are not intended to have the effect of excluding, restricting or modifying:

(1)   the application of all or any of the provisions of the ACL; or

(2)   the exercise of a right conferred by such a provision; or

(3)   any liability of us in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.

6.3 When we and Third Parties will not be liable to you. We and Third Parties are not responsible or liable to you or the Business for:

a. any Loss or Claim relating to the provision of system data made available through RTO Data Cloud, including delays, disruptions, inaccuracies or the loss of data;

b. any Loss or Claim relating to your use of, or reliance upon, system data provided to you through RTO Data Cloud;

c. the actions or inaction of Third Parties, Other Application providers or other persons (including those which may be negligent or unauthorised) relating to RTO Data Cloud;

d. any Loss or Claim arising from a failure by us to comply with the Terms for any cause which could not reasonably be controlled or prevented by us; or

e. any Loss or Claim arising from a failure by you or the Business to maintain archive records of your data.

6.4 Indemnity to us and Third Parties

a. You indemnify us, our staff, and Third Parties (Indemnified Parties) against any Loss or Claim suffered or incurred by the Indemnified Parties or any of them arising from your negligence, misrepresentation, fraud, breach of law or breach of these Terms. You indemnify the Indemnified Parties for any Loss or Claim suffered or incurred from the unauthorised use of your Username or a Password.

b. If the Indemnified Party caused or contributed to a Loss or Claim, then your liability under section 6.4.a above is limited to the amount of the Loss or Claim which is directly attributable to your conduct.

7. CHANGES TO TERMS

7.1 What can we do? – We may change any of these Terms (including the Fees, which are specifically dealt with in section 2.6.b. above).

7.2 Prior notice – We’ll give you at least 10 days’ prior notice (longer if required by legislation or any other code of conduct we subscribe to) of any change that is likely to materially affect or disrupt the manner in which you use RTO Data Cloud.

7.3 Urgent changes – However if we need to restore or maintain the security of RTO Data Cloud immediately, we may change your use and access to RTO Data Cloud without advance notice.

7.4 Right of termination – If we make a change to RTO Data Cloud or these Terms under sections 5.1. or 5.2 above, then you have the option to terminate your RTO Data Cloud subscription under section 5.1.

8. NOTICES

8.1 You will agree that all communications between you and us in relation to RTO Data Cloud will be by email, by in-product notification, or by us posting a notification on the Newbery Consulting website (https://newberyconsulting.com.au/), unless another method is agreed to by the addressee.

8.2 Any notice or other communication to or by a party by email is regarded as being given by the sender and received by the addressee when a delivery confirmation report is received by the sender which records the time that the email was delivered to the addressee’s email address (unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee).

8.3 If the delivery or receipt is after 5.00pm (addressee’s time) it is regarded as received at 9.00am on the following day.

8.4 We may provide a notice or other communication to you by a posting to the Newbery Consulting website (https://newberyconsulting.com.au/) or within your product. That notice or other communication is regarded as being given by us and received by you when the posting is made. We recommend that you regularly check the Newbery Consulting website and your product for notices or other communications.

9. LEGAL

9.1 This is our complete agreement – These Terms and the documents incorporated by reference, including your application for RTO Data Cloud and any price increase notifications provided to you by email, letter or phone from time to time, contain the whole of the agreement between us and you in relation to RTO Data Cloud. Any representations or warranties made by our staff before you are accepted for your RTO Data Cloud subscription are not effective unless expressly set out in these Terms. Any waiver of our rights or powers under these Terms may only be given in writing signed by our authorised officer.

9.2 What happens if some of these Terms can’t operate? – If any part or provision of these Terms are void, unenforceable or illegal in a jurisdiction, that part or provision does not apply in that jurisdiction. However, the remainder of the Terms continue in operation in that jurisdiction unless this would alter the basic agreement between you and us, in which case we can terminate your use of RTO Data Cloud at our election.

9.3 No waiver by us – If we do not insist upon strict performance of any part or provision of these Terms, that waiver will not be deemed to be a waiver of a subsequent breach or default of these Terms.

9.4 Assignment – You cannot assign or otherwise transfer the benefit of the agreement between us and you without our prior written consent. We can assign or otherwise transfer the benefit of the agreement between us and you.

9.5 Which laws apply to the Terms – If you accept these Terms, these Terms are governed by the laws of New South Wales and the courts of New South Wales have jurisdiction over the parties to these Terms (being you and us).

10. YOUR PRIVACY

10.1 We collect, disclose and use your Personal Information to provide the products and services you have asked for and associated support, respond to your enquiries or feedback and to promote the products and services offered by us and Third Parties. We may collect Personal Information from you, from public sources such as social media websites, and from Third Parties that provide us with marketing leads.

10.2 To do these things, we may provide your Personal Information to our related companies, Third Parties and to people to whom we outsource functions. Some of the entities may be located in Australia or other countries. If you do not provide your Personal Information, it may affect our ability to do business with you.

10.3 You consent to us collecting, using and disclosing your Personal Information for the purposes set out in section 10.1 above.

10.4 If you accept these terms:

a. You can ask us not to use your information to promote products and services by following the process outlined in the Newbery Consulting Privacy Policy.

b. You can ask us not to use your information to promote our products and services by following the process outlined in the Newbery Consulting Privacy Policy.

10.5 The Newbery Consulting Privacy Policy contains information on how to:

a. update your preferences about the marketing and promotional material we send to you;

b. request access to and seek correction of the Personal Information we hold about you;

c. make a privacy complaint; and

d. how we will deal with your complaint.

10.6 You can contact us about your privacy by email at support@newberyconsulting.com.au  or by post at:

Managing Director,
Newbery Consulting,
PO Box 928,
GUNNEDAH NSW 2380.

10.7 Notwithstanding the Privacy Policy, we may observe your use of RTO Data Cloud and access all information you input or can access through RTO Data Cloud. This will enable us to assist you with problems and make improvements for future versions of RTO Data Cloud and other products and services.

10.8 You must ensure that all Users read this ‘Your privacy’ section and the policies described above before using RTO Data Cloud or providing their Personal Information to us.

10.9 If you provide any Personal Information about third party individuals to us, you must take reasonable steps to ensure that those individuals are aware of the matters in this ‘Your Privacy’ section and that we may collect, use and disclose their information to provide you with RTO Data Cloud.

10.10 Newbery Consulting may be compelled under s 62 of the National Vocational Education and Training Regulator Act 2011 (Cth) to provide information to the National VET Regulator about an RTO to which it provides a service by issuing a written notice to Newbery Consulting to give information and documents. It is an offence under s 64 of the National Vocational Education and Training Regulator Act 2011 not to provide information and documents when ordered to do so.

11. TECHNICAL SUPPORT

11.1 Standard Technical Support.We will provide technical support to you during business hours (9 am – 3 pm AEST) on Business Days (Monday to Friday). RTO Data Cloud technical support is not available outside of these defined timings.

11.2 We will provide technical support to any authorised user of RTO Data Cloud representing your business if they have a reasonable working knowledge of RTO Data Cloud. All authorised users of RTO Data Cloud are recommended to undertake user level training to ensure they can operate RTO Data Cloud competently.

11.3 Technical support includes

a. responding to general questions about RTO Data Cloud functions, configuration, workflow and capabilities;

b. providing training via remote access technology on any aspect of RTO Data Cloud functions, configuration, workflow and capabilities; and

c. gathering details of and coordinating remedies of any fault or error that is identified by users in RTO Data Cloud functions, configuration, workflow and capabilities.

11.4 Technical support does not include

a. the provision of onsite technical support or any onsite training;

b. making enhancements to RTO Data Cloud;

c. making changes to any user generated content including altering user data; and

d. providing advice or assistance with any user Regulatory or Contractual Requirement or obligation.

11.5 To access technical support the user agrees to

a. only use RTO Data Cloud in accordance with the user instructions and operating guidelines;

b. contact us as soon as you become aware any fault or error that is identified by users in RTO Data Cloud functions, configuration, workflow and capabilities;

c. provide RTO Data Technical Support Team access to your account via remote access technology; and

d. be responsive to any recommendations that are made by RTO Data Technical Support Team in relation to data entry.

11.6 Rude, offensive or abusive behaviour toward the RTO Data Technical Support Team by you or any representative from your organisation, will not be tolerated. Any rude, offensive or abusive behaviour reported by the RTO Data Technical Support Team will result in a written warning from the Managing Director for suspension or termination of your use of RTO Data Cloud. Rude, offensive or abusive behaviour that is repeated will result in an immediate suspension or termination of your use of RTO Data Cloud.

11.7 Advanced Technical Support. Sometimes you may request us to access your instance of RTO Data Cloud to make changes to your data. This may be due to a user error that has occurred or due to changes in reporting requirements. This type of support is beyond the scope of standard technical support and will be performed by a member of the development team who have advanced programing and database editing skills. Advanced Technical Support will incur an additional Fee. Please refer to section 13 for the details of Fees for Advanced Technical Support. Please also note that Newbery Consulting will only perform Advanced Technical Support under the following circumstances

a. The Fee for Advanced Technical Support is paid in advance;

b. You have provided written permission (via email) for us to access your instance of RTO Data Cloud; and

c. You have provided us specific and accurate instructions about what changes you require us to make whilst providing the Advanced Technical Support.

12. USING THE SMS SERVICE

12.1 When using the SMS Service within RTO Data Cloud, you must comply with any applicable Laws.

12.2 You must not use the SMS Service, and you must ensure that your employees or users do not use the SMS Service:

a. to send Restricted Content;

b. for publishing, reproducing or advertising any message, information, symbol or other communication which is offensive or abusive or of an indecent, obscene or menacing character or for the purpose of causing annoyance, inconvenience or needless anxiety to any person, or for any unlawful purpose;

c. to defame any person;

d. to breach the rights of any person;

e. to infringe copyright;

f. to create, transmit or communicate communications which are defamatory, obscene, pornographic, discriminatory, offensive, in breach of confidence, illegal or which bring us or any of our suppliers into disrepute;

g. to host or transmit Content which contains viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or computer or communications equipment;

h. to send, allow to be sent, or assist in the sending of Spam, to use or distribute email harvesting software, or otherwise breach the Spam Act;

i. in a way that is misleading or deceptive, where that is contrary to Law;

j. in a way that results, or is likely to result, in damage to property or injury to any person; or

k. in any way that damages or interferes with our Services to other customers, our suppliers or any facilities or exposes us to liability.

12.3 You are solely responsible for all acts or omissions that occur under your Account including the Content of any messages transmitted through the SMS Service. You acknowledge and agree that any messages sent using your Account are deemed to have been sent and/or authorised by you.

12.4 The SMS Service allows a maximum message size of 160 characters. If a user sends a longer message, the Service splits the message into two or more separate messages that may be reassembled on delivery so that they appear to be a single message (or, on some handsets, may be delivered as a series of separate SMS message). When a longer message is split in this way, the components are no more than 153 characters long, because seven characters are used to facilitate re-joining on delivery. As a result, a longer message will result in more than one SMS message being transmitted, and charges apply accordingly, as described in the Prices and Usage Charges Section of these Terms.

12.5 Charges for an SMS Service will be based on the number of SMS you send, calculated in accordance with the following rules:

a. If you include any Unicode characters and send via a Unicode supported service, content that contains no more than 70 characters counts as one SMS. In all other cases, content that contains no more than 160 characters counts as one SMS.

b. If you include any Unicode characters and send via a Unicode supported service, content that contains more than 70 characters counts as one SMS for each block of 67 characters or part thereof. In all other cases, content that contains more than 160 characters counts as one SMS for each block of 153 characters or part thereof.

c. A ‘character’ includes each individual letter, digit, punctuation and other symbol in the Content.

d. Each press of a ‘spacebar’ generates a separate character.

e. Some special symbols and non-English letters may comprise more than one character and you will be charged accordingly.

f. Where an SMS is sent to multiple End Users, each one is counted separately.

13. PRICES AND USAGE CHARGES

13.1 The following charges apply to the usage of RTO Data Cloud:

a. Initial set-up and provisioning – $1,100.00

b. Monthly access fee – $100.00. Primary user (1 user)*

c. Additional user fee – $2.00 per user / per day

d. Base data storage – 100 gigabyte

e. Additional data storage – 8 cents per gigabyte per month

f. SMS Messaging credits per month – 50

g. Additional SMS messaging – 10 cents per message

h. Payment dishonour fee – $50.00

i. Transition Fee – $1,100.00 (see note)

j. Advanced Technical Support – $154.00 per hour

Note: All Fees quoted in Section 13.1 are inclusive of GST.

Note: The monthly access fee is based on an annualised fee of $1,200.00 divided by 365 days resulting in a cost per day of $3.2877 . The monthly access fee is calculated by multiplying the number of days in the month by the cost per day. So, as an example:

  • For the month of October – 31 days x 3.2877 = $101.91 monthly access fee.
  • For the month of February – 28 days x 3.2877 = $92.05 monthly access fee.

Note: The transition fee will apply where a client requests to transition to RTO Data Cloud from RTO Data Desktop and their current support subscription has expired after the 1st October 2018 but before the 1st November 2019.

13.2 The following terms apply to the usage charges for RTO Data Cloud:

a. Charges will be debited each month from an authorised credit card in accordance with the Direct Debit Terms and Conditions.

b. The SMS messaging service provided within RTO Data Cloud is provided as a paid service with a specified number of SMS message credits provided each month for free. The user may then send further SMS messages to their customers for the additional fee. You agree that you are liable for any and all SMS messages which are sent from your RTO Data Cloud services you you or any other user you have given user access to the service.

c. The SMS message credits which are provided each month are non-cumulative. Any unused portion of these SMS message credits will expire at the end of each monthly billing period.

d. The additional user fees is calculated based on the specified charge for each day that the user is an authorised user in the system settings accessed via the menu at Company/General/Users. To remove or reduce this fee, the user should be removed as an authorised user. The additional user fee is not influenced by the number of days the user actually “used” the service.  The authorised additional user may not access the service for the entire month, but regardless of this the additional user fee still applies.

e. The additional data storage fee is determined programmatically by the software checking once per month at the end of the billing period the level of data storage in each user account. Any portion of the data storage amount which is in excess of the allocated base data storage amount will incur the additional data storage fee. The basis for determining portion of the data storage amount which is in excess of the allocated base data storage amount is to measure each full Gigabyte (GB) that exceeds the allocated base storage amount.

f. Newbery Consulting reserve the right to make changes to RTO Data Cloud prices and usage charges at its discretion in accordance with section 2 (General Terms) and section 7 (Changes To Terms).

14. ACKNOWLEDGEMENT OF TERMS AND CONDITIONS

14.1 These terms and conditions should be read in-conjunction with the other related terms and conditions. Acknowledgement of these terms and conditions implies acknowledgement of all related terms and conditions.

14.2 By purchasing RTO Data Cloud you acknowledge that you on behalf of your business entity you understand and agreed to these Terms and Conditions.

14.3 By accessing RTO Data Cloud via the secure login, you further acknowledge and agree to these terms and conditions.

Updated – 1st August 2018

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