LoginThe Agreement. These terms and conditions, the Acceptable Use Policy, and any applicable Order Form (the Agreement) lay out the rules and conditions for your use of the Simulations and forms a contract between XINTRA LABS Pty Ltd (ABN 30 669 232 026) of 285A Crown Street, Surry Hills NSW 2010, Australia and XINTRA PTY LTD (ABN 42 662 830 202) (also referred to as “XINTRA”, "we," "us," or "our") and you or the organisation you're representing ("you" or "your").
Agreement Start. This Agreement becomes effective the moment you click the "I Agree" button, when you start using any of the Simulations, or on the Effective Date of your Enterprise Customer Order Form, whichever happens first (the Effective Date).
Capacity. By agreeing to this Agreement, you're confirming that you have the legal right and capacity to enter into contracts, including that you are not a minor. If you're agreeing on behalf of an organisation, you're also confirming that you're authorised to bind your organisation to this Agreement.
For the meaning of specific terms used in this Agreement, please refer to clause 19.
Provision of the Labs (also referred to as “Simulations”)
Access. During the Term, XINTRA will provide access to the Simulations in accordance with the Agreement:
1) if you’re an Individual User, you will have access to the Simulations available to you via this link https://www.xintra.org/login. To access the Simulations, each User needs their own account. You are in charge of giving us the right information to set up your account, keeping your password safe, and how your account is used. XINTRA doesn’t have to give more than one account to a User, and
2) if you’re an Enterprise Customer purchasing Enterprise Live, you will have access to the Enterprise Live environment via a link sent to you by XINTRA. To access the Simulations, the Enterprise will need to arrange an account for each of its Users. You are in charge of entering the right information to set up your Users’ account, and your Users are in charge of keeping their password safe.
Premium features. Enterprise Customers and their Authorised Users will be provided access to Enterprise Live which is not available to Individual Users if Enterprise Live is purchased as specified in the Enterprise Customer Order Form.
Modifications
Modifications to the Simulations. We may update or change the Simulations in ways that we believe will benefit you, always aiming to enhance your experience and challenge you to achieve more. When we do make changes that could significantly affect how you use the Simulations, we’ll make sure to let you know (via email and/or our social accounts, at our sole discretion), especially if you've told us you want to be kept in the loop about these updates. This is all part of our commitment to ensure the Simulations keep meeting your needs and pushing the boundaries of what you can achieve. We recommend that you follow our social accounts for updates @XintraOrg.
Modifications to this Agreement. We may update or change the terms of this Agreement occasionally. When we do, we'll post those changes on this website. These changes will apply when you next log into the Simulations. By continuing to use the Simulations after these changes take effect, you agree to the new terms. This section doesn't cover changes made to other documents or web pages linked from our Agreement.
Discontinuation of the Simulations. We will inform you at least 12 months in advance if we plan to stop offering any of the Simulations or their key features, except when we're able to replace the discontinued Lab or feature with something very similar in function and value. We retain the right to make changes if necessary to follow the law, handle significant security issues, or avoid major financial or technical difficulties. This notice doesn't apply to other services we provide or to Simulations and features that are not yet broadly available to all users.
Modification of Simulations. We may, at our sole discretion, decide what features are offered as part of the Simulations, and may modify, add, or remove the premium features at any time, without prior notice. Enterprise Customers acknowledge that the scope and nature of the Enterprise Live offering may change, and that we are under no obligation to maintain, replace, or provide specific features.
Scheduled Downtime and Maintenance
Right to Suspend for Maintenance: XINTRA reserves the right to temporarily suspend access to the Simulations, in whole or in part, from time to time in order to perform scheduled or unscheduled maintenance, updates, upgrades, repairs, or other necessary technical work (collectively, “Maintenance Activities”).
Notice of Scheduled Maintenance: Where practicable, XINTRA will provide you with reasonable advance notice of any scheduled Maintenance Activities that are likely to affect the availability of the Simulations. Such notice may be provided via email, through the Simulations portal, or by other reasonable means.
Emergency Maintenance: In the event that emergency Maintenance Activities are required to address critical issues, security vulnerabilities, or other urgent matters, XINTRA may suspend access to the Simulations immediately and without prior notice. XINTRA will use reasonable efforts to notify you as soon as possible following the commencement of such emergency maintenance.
No Liability for Downtime: You acknowledge and agree that temporary unavailability of the Simulations due to Maintenance Activities does not constitute a breach of this Agreement, and XINTRA will not be liable for any loss, damage, or inconvenience suffered as a result of such downtime, provided that XINTRA uses reasonable efforts to minimise the duration and impact of any such Maintenance Activities.
Restoration of Service: XINTRA will use reasonable endeavours to restore access to the Simulations as soon as reasonably practicable following the completion of any Maintenance Activities.
Subscription Cost for Individual Users
As an Individual User, you have the flexibility to access the Simulations through our dedicated login portal at xintra.org/login. For this access, there are the following subscription options available to you:
1) Free Trial Subscription: you can choose to use the Simulations for seven (7) days with no fees applicable. While we don’t charge you fees for the Free Trial, you still have to comply with these terms and conditions, and the Acceptable Use Policy. In this case the Term of your Agreement will be seven days, starting from the Effective Date. At the end of the Term, your access to the Simulations will end unless you sign up for a Monthly or Annual Subscription. Signing up for multiple Free Trial Subscriptions is a breach of these terms and conditions.
2) Monthly Subscription: you can choose to pay USD $45 each month. This fee is billed in advance, meaning we charge you at the start of your billing cycle for the upcoming month's access. In this case the Term of your Agreement will be four weeks, starting from the Effective Date.
3) Annual Subscription: if you prefer a longer commitment with a bit of savings, you can opt for the annual subscription at USD $459. This option is also billed in advance, covering your access to the Simulations for the entire year. In this case the Term of your Agreement will be 365 days, starting from the Effective Date.
4) Cancellation: you can cancel any time without notice to XINTRA, by selecting the cancel option in the Simulations portal, but you will forfeit the balance of the subscription fee for the remainder of the Term. We will not refund you for that part of the subscription Term you have paid for but do not use.
Payment Terms. As an Individual User:
1) when you choose to access the Simulations, you agree to make payments in the currency displayed on XINTRA's payment portal. Your payment is due immediately upon your subscription selection – this means you need to pay upfront for the access you're about to enjoy; and
2) if you've opted for a monthly subscription, you're also agreeing to authorise us to process ongoing payments. This authorisation allows us to charge your chosen payment method each month automatically, ensuring you have continuous, uninterrupted access to the Simulations. This process is designed to be hassle-free, allowing you to focus on making the most out of the Simulations without worrying about manual payment submissions each month.
These terms ensure you know exactly what the costs are upfront, making it easier for you to plan and enjoy uninterrupted access to the Simulations.
Subscription Cost for Enterprise Customers
To accommodate the unique needs of our Enterprise Customers, we offer a bespoke subscription arrangement that reflects the scale and scope of your access to the Simulations. Enterprise Customers are required to engage directly with XINTRA to discuss and agree a subscription arrangement that suits the number of Authorised Users and the level of access required by you.
We will agree the subscription particulars with you in an Enterprise Customer Order Form, which will detail the agreed payment terms, including the total cost and payment schedule.
Payment Terms. As an Enterprise Customer you agree:
1) to abide by the terms and conditions of payment as detailed in the Enterprise Customer Order Form, and
2) to pay the Fees set out in the Enterprise Customer Order Form. We will issue an invoice to you for payment of the Fees under this Agreement, and we will send that invoice electronically to your designated email address for invoice submissions, and
3) that you will not purchase licenses on an Individual User basis, for example, to circumvent Enterprise Customer licensing arrangements.
We pride ourselves on providing a tailored experience for our Enterprise Customers, and as such, we do not offer a one-size-fits-all pricing model for these accounts. Instead, we work closely with you to understand your needs and to craft a subscription arrangement that aligns with your organisational goals and budget.
Enterprise Customers and their Authorised Users get access to premium features not available to Individual Users.
Please contact us at your earliest convenience to initiate this process and to learn more about how XINTRA can support you and your team.
Taxes
All Fees we have quoted here are quoted on a tax exclusive basis.
Goods and Services Tax (GST). We will add the current GST rate to the Fees stated in this Agreement. We will give you a tax invoice that meets all the rules of the Goods and Services Tax Act 1999 (Cth) and any related laws. You need to pay this GST amount to us on top of the Fees. If there's a change in the GST amount because of the law, we will send you a new note to adjust the GST amount. We are registered for GST and will tell you if we're not registered anymore.
Taxes Imposed on XINTRA. We are solely responsible for the payment of all taxes, levies, duties, or similar governmental assessments (including, without limitation, income taxes, GST, VAT, and withholding taxes) that are imposed on us as a result of or in connection with the payments made under this Agreement.
Your Obligations
Permitted Users. Use of the Simulations under this Agreement is permitted only by:
1) Individual Users. You’re probably an Individual User if you are personally taking on the cost of accessing our Simulations. This means you are using your own funds, not those of an employer or any other organisation, to pay for your subscription. You’re probably using your personal email address (such as one from Gmail, Hotmail or similar) to sign up and maintain your Account with us. This arrangement highlights the direct relationship between you and us, emphasising the personal investment you're making in accessing our cutting-edge resources, and
2) Authorised Users. You are an Authorised User if an Enterprise Customer has purchased access to the Simulations in accordance with clause 5 and the Enterprise Customer provided an Account to you in accordance with this Agreement. If you are an Enterprise Customer you are responsible for all acts and omissions of your Authorised Users.
Sharing Accounts.
1) No User is permitted to share their Account with anyone else. This means you cannot give anyone else access to your Account or let others use it. Keeping your Account to yourself helps ensure a safe and secure experience for everyone. If you let someone else use your account and log in details, you are breaching the terms of this Agreement, and we may terminate your access to the Simulations.
2) Enterprise Customers have the flexibility to reassign a license to a different Authorised User in the following circumstances:
1) where the original Authorised User is no longer part of the organisation, and
2) from one Authorised User to a second Authorised user provided that a license is only transferred once in a 12 month period.
This ensures that your team’s access to our Simulations remains uninterrupted and fully utilised, even as changes occur within your team. If this happens, contact us so we can help you sort it out. We are not responsible for use of your Simulations access by people no longer employed by your organisation if you don’t let us know that there are changes needed to your Authorised Users. Authorised Users must not let someone else use their account and log in details. If they do so, they are breaching the terms of this Agreement, and we may terminate their access to the Simulations, and in the case of repeated or ongoing breaches of this sort, we may terminate you and your access to the Simulations.
Compliance
1) You agree to, or, where you are an Enterprise Customer, you agree to ensure that your Authorised Users agree to:
1) follow the rules of this Agreement when using the Simulations;
2) prevent and stop any use of the Simulations that isn't allowed under this Agreement, including any unauthorised access to the Simulations or sharing of log in information; and
3) quickly notify us if you become aware of any use of the Simulations, your Account, or your password that isn’t allowed.
2) We have the right to look into any actions by a User that might be breaking the rules of our Acceptable Use Policy, which can include checking the data that a User has provided. Where, in our absolute discretion, we determine it is necessary, we can terminate a User’s access to the Simulations as a result of any investigation into such actions.
Restrictions. You acknowledge and agree that any breach of this clause 7 constitutes a material breach of this Agreement.
Restrictions of use. You and any Users cannot do the following with our Simulations:
1) copy, change, reproduce, take screenshots of, photograph, film, record, store, modify, translate into any language, disassemble, reverse engineer, reverse assemble or otherwise create derivative works of any Simulations Material or the Simulations themselves or their contents, or use the Simulations or Simulations Material for any purpose, unless such actions are expressly permitted by this Agreement;
2) use the Simulations in any manner that interferes with, disrupts, degrades, or threatens to interfere with, disrupt, or degrade the performance, functionality, security, or integrity of the Simulations, or its respective servers and networks;
3) try to see, translate, take apart, or get the source code of the Simulations, unless the law says you can;
4) sell, rent out, give a sublicense for, hand over, or spread any part of the Simulations; or
5) use the Simulations:
1) for any purpose beyond those described in this Agreement;
2) for activities with a high risk of causing damage;
3) against our Acceptable Use Policy;
4) to avoid paying fees (like making multiple accounts to act as one, get around usage limits or use the Simulations as an Individual User when you should be using an Enterprise Customer);
5) for mining for cryptocurrency;
6) dealing with materials or activities that the U.S. government controls under the International Traffic in Arms Regulations;
7) in a way that breaks, or causes someone else to break, laws about exporting goods; or
8) use the Simulations in any manner that infringes, violates, or misappropriates the rights, including Intellectual Property Rights, of us or any third party.
Non-compete. You agree that you will not, and will ensure that your Authorised Users do not, directly or indirectly use, reproduce, adapt, modify, disclose, or otherwise exploit any Simulations Material or Confidential Information for the purpose of developing, offering, marketing, or assisting in the development, offering, or marketing of any products or services that compete with, are similar to, or could reasonably be considered a substitute for, the Simulations or any training services provided by XINTRA. This restriction applies during the Term of this Agreement and for a period of three (3) years following its termination or expiry, regardless of the reason for termination.
Prohibition of Harmful Code. Unless the Simulations you're using says it's okay, you or your Authorised Users can't use or share any dangerous software or code like viruses or malware in the training materials, in the Simulations, or any third-party systems we use. If you do, or if an Authorised User does, it will be considered a material breach of the Agreement. This could lead to us ending the Agreement right away and might lead to other legal actions. If harmful software does get through because of you or your Authorised Users, you will be expected to take the necessary remediations at your own expense to fix the situation. This clause 7.7will survive the termination or expiry of this Agreement.
Third-Party Products. The Simulations may require you or Authorised Users to use products or services from other companies (Third-Party Products), and where that happens, the applicable terms of those Third Party Products apply to their use. We don’t have control over these Third Party Products, can't guarantee they’ll always be compatible with our Simulations, or be available, and we're not responsible for them. If these Third Party Products change or update, it might affect how they work with our Simulations, but that's out of our hands. By using these Third-Party Products, you agree not to hold us responsible for any issues that arise with them. Also, remember that using these Third Party Products means you’re also agreeing to any applicable or associated privacy and security policies. Your or your Authorised Users might have to sign up or log in on their websites, and where necessary, and we will endeavour to inform in advance. You’re okay with letting us use your login info to make these connections work.
Feedback.
1) Users might give, or we might ask for, ideas, comments, or other types of feedback about the Simulations. When feedback is given by Users, Users are letting us use the feedback however we see fit, like making our Simulations better. Once a User has given feedback, the User agrees that it transfers ownership (including Intellectual Property Rights) to us and Users won't have any rights to it anymore.
2) We acknowledge that feedback is just given as it is, without any guarantees from Users about its quality or usefulness, and Users make no warranties whatsoever about any feedback.
3) You also say that you've checked with your Authorised Users and anyone else needed to make sure it's okay for us to use the feedback like this. If we ask, you'll show us the permission you got from your Authorised Users.
Representation and Warranty Regarding Personal Information
1) If you are an Enterprise Customer, you confirm that you have all required consents, authorisations and permissions from Authorised Users to share their Personal Information with us for the reasons outlined in this Agreement. You also warrant that your collection, use, and sharing of Personal Information follows all relevant data protection and privacy laws.
2) You will indemnify us and our staff, directors, agents, and affiliates against any legal actions, damages, losses, costs, claims or expenses, including lawyer's fees, arising out of or related to our use of the Authorised Users’ Personal Information or your Personal Information based on the permission you gave us. This protection includes any issues arising from you not properly getting the needed required consents, authorisations and permissions, which might lead to claims of misusing Personal Information or breaking privacy laws.
Representation and Warranty Regarding Unauthorised Use
1) You warrant to us that you will not, and you will ensure that you or your Authorised Users will not, use the Simulations in a way that contravenes the restrictions in this Agreement, including at clause 7.4.
2) You acknowledge and agree that any breach of this warranty constitutes a material breach of this Agreement, entitling us to pursue all available legal remedies, including but not limited to seeking injunctive relief, damages, and termination of this Agreement.
Mandatory Notice and Acknowledgement for Authorised Users. If you are an Enterprise Customer, you must provide each Authorised User with a copy of the intellectual property and confidentiality provisions of this Agreement prior to granting them access to the Simulations. You must obtain a written acknowledgement from each Authorised User confirming that they have read, understood, and agree to comply with these provisions. You must retain such acknowledgements for the duration of the Term and provide copies to XINTRA upon request. Failure to comply with this requirement constitutes a material breach of this Agreement.
Survival. The warranties and indemnities described in this clause 7 will survive the termination or expiry of this Agreement.
XINTRA’s Representations and Warranties
No Warranty. We make no promises or guarantees about the Simulations or the training, or the materials we provide, except where the law says we can't exclude those guarantees. Essentially, we're saying that the Simulations and everything available on our website comes as it is. There might be issues with availability, quality, or how current the information is, and it might not perfectly meet your needs or expectations. We also can't promise that everything will work without interruptions or errors. It's up to you to decide if the Simulations work for you and/or your Authorised Users, knowing that we're not responsible for any shortcomings. This part of the Agreement is really important and stays in effect even if other parts change.
No Guarantee of Outcomes. We make no promises that the Simulations and training will guarantee specific results, skills, or certifications for Users. Success in the training available through the Simulations depends on the User’s effort, prior knowledge, and ability to use what they learn. We won't be responsible for any lack of progress or outcomes. You understand that you’re taking on the risk of you or your Authorised Users’ participation and any results they achieve.
Not Professional Advice. The Simulations and training we provide is for learning and information only, and it's not meant to replace professional advice from a security expert, a lawyer, business consultant, IT expert, or any other professional. We can't promise that the Simulations and training will be perfect for your exact needs. If you need specialised advice, it's up to you to find and talk to an expert. Joining or using our Simulations doesn't mean you have a professional relationship with us or our staff. You're taking part knowing this, and if you act on anything we teach, that's your decision.
Intellectual Property Rights
Ownership. You and your Authorised Users understand that you do not own any part of the Simulations or Simulations Material including any Intellectual Property Rights connected to them. These remain solely our property. You and your Authorised Users also agree not to claim any ownership or rights over the Simulations material or to challenge our ownership in any way. This includes preventing any of your Authorised Users from making such claims against us.
User License. We grant all Users a limited, non-exclusive, non-transferable license to use the Simulations solely for the purpose of receiving and participating in the Simulations experience and training for the Term. This license does not include the right to sublicense.
Transfer of License. We give you permission to transfer the license at clause 9.2 from an Authorised User that is exiting your organisation to another Authorised User from your organisation where you confirm with us in advance in writing the details of the new Authorised User.
User Content. Users retain all rights to User Content they submit, post, or display on or through the Simulations and are responsible for protecting those rights as appropriate. However, by submitting, posting, or displaying User Content on or through the Simulations, Users grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute such User Content in any and all media or distribution methods (now known or later developed) for the purposes of operating, providing, and promoting the Simulations. This license includes the right for us to make such User Content available to other companies, organizations, or individuals who partner with us for the syndication, broadcast, distribution, or publication of such User Content on other media and services.
Prohibition on Derivative Works. You must not, and must ensure that your Authorised Users do not, create, attempt to create, or assist any third party to create, any derivative works based on the Simulations, Simulations Material, or any part thereof, whether in whole or in part, for any external, commercial, or non-commercial purpose. This includes, without limitation, adapting, translating, modifying, or incorporating any portion of the Simulations Material into other works, training materials, or products, regardless of the extent of use or adaptation.
Intellectual Property Indemnity by You. You will indemnify, defend and hold harmless XINTRA, its affiliates, directors, officers, employees, agents and contractors (the “Indemnified Parties”) from and against any and all claims, damages, actions, proceedings, damages, losses, liabilities, costs, and expenses (including reasonable legal fees and disbursements) arising out of or in connection with:
1) any actual or alleged infringement, violation, or misappropriation of any intellectual property rights (including but not limited to copyright, trademark, patent, trade secret, or moral rights) by you (in the case of an Individual User), your Authorised Users (if you are an Enterprise Customer), or any other personnel or third party acting on your behalf, in connection with your or their use of the Simulations, Simulations Material, or any content, data, or materials submitted, posted, or otherwise made available through the Simulations,
2) any breach of your obligations under this Agreement relating to the use, reproduction, distribution, or disclosure of XINTRA’s intellectual property, Confidential Information, or Simulations Material, or
3) any claim that User Content or any other materials provided or uploaded by you or your Authorised Users infringe the intellectual property rights of any third party.
Process for Claims. If any claim is made or threatened against any of the Indemnified Parties that may give rise to indemnification under clause 9.6:
1) XINTRA will promptly notify you in writing of the claim (provided that any delay in notification will not relieve you of your obligations except to the extent you are materially prejudiced by such delay),
2) you will, at your own cost, assume control of the defence and settlement of the claim, provided that you may not settle any claim without XINTRA’s prior written consent (not to be unreasonably withheld or delayed) if such settlement imposes any liability or obligation on XINTRA or does not include a full and unconditional release of XINTRA from all liability, and
3) XINTRA will provide reasonable assistance at your expense, and you will keep XINTRA informed of the progress of the claim.
Survival. This Intellectual Property Rights clause, including the indemnity, will survive the termination or expiry of this Agreement.
Confidentiality
Non disclosure. You agree to keep our Confidential Information, trade secrets and information related to our Intellectual Property secret and ensure your Authorised Users and relevant personnel do the same unless prior written consent has been provided by us. You must not share the Simulations Material with anyone else unless you have clear permission from us in writing. This includes sharing your screen or projecting your screen so that others can see. Also, you can't use this Confidential Information for anything not covered by this agreement, especially if it's to create, make, or sell products or services that compete with what we do. Only Users should have access to our Confidential Information, and you need to make sure you and your Authorised Users understand they have to keep it secret too. You're not allowed to give the Lab Materials to anyone else that is an Authorised User. If you do, or if an Authorised User does, it will be considered a material breach, and breaks our Agreement. This could lead to us ending the Agreement right away and might lead to other legal actions.
Return. When this Agreement ends or if we ask you in writing, you need to give back or destroy of any Confidential Information (including trade secrets and information related to our Intellectual Property) from us that you have within 30 days of our written request. This includes any notes, data, sketches, drawings, and records related to the confidential information. If we ask for it, you must also give us a written promise that you've returned or destroyed all the Confidential Information.
Permitted disclosures. You may disclose Confidential Information if required by law but only after you notify us in writing (if permissible by law).
Restrictions. You, and all Users agree to not do any of the following without our written permission:
1) make the Simulations, Simulations Material or any part of it public, share, distribute, sell, rent, give away, or in any way expose it to anyone. This includes any method of sharing, whether it's online, live, recorded, revamped, in print, or through any other means and
2) use the Simulations or Simulations Material in any way that could put us at risk of legal trouble, claims, or liability. This includes using the Simulations in a way that might infringe on someone else's intellectual property rights or break any laws or regulations.
Remedies.
1) If you don’t, or any User doesn’t, follow the rules about keeping things confidential or using the Simulations and Simulations Material properly, it could really harm us or third parties. In that case, we have the right to ask a court to make you stop immediately using injunctive relief, in addition to any other legal actions we might take.
2) Even if our Agreement ends, you and all Users still have to stick to the rules about confidentiality and how the Simulations are used. This applies to you, any Authorised Users, or anyone else who acts on your behalf.
Survival. This Confidentiality clause will survive the termination or expiry of this Agreement.
Privacy
Our Access. We understand that during our Simulations, we might need to use some Personal Information about Users. We may also use the Personal Information for Individual Users to contact you about new Simulations and other products we may offer. We promise to only use this information to meet our responsibilities as outlined in this Agreement and for nothing else.
Disclosure. We'll treat any Personal Information we get through this Agreement as confidential. We won't share, move, or let anyone else see this information unless you say it's okay in writing, the law makes us do it, or we need to for our work under this Agreement.
Data Breach. If there's a security issue that results in the accidental or illegal destruction, loss, change, unauthorised sharing, or access to Personal Information, we'll quickly let you know about the incident. We'll also fully support and assist you in looking into, lessening the impact of, and fixing the breach.
Return. If this Agreement ends or at any point you ask us to, we can (at our choice) either give back all the Personal Information we have, or make sure it's completely and securely destroyed, depending on what we choose.
Survival. This Privacy clause will survive the termination or expiry of this Agreement.
Audit Rights
Liability and Indemnity
Limitation of Liability.
1) Notwithstanding anything to the contrary in this Agreement or any other agreement between the parties, our total liability to you for all claims arising out of or relating to this Agreement, regardless of the form of action, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will not exceed the total fees paid by you to us under this Agreement during the twelve (12) months immediately preceding the date on which the claim arose.
2) Neither party will be liable for any indirect, special, incidental, consequential, or punitive damages, including but not limited to loss of profits, business interruption, loss of business opportunity, or loss of goodwill, even if advised of the possibility of such damages.
Intellectual Property Indemnity by XINTRA
Indemnity by XINTRA: XINTRA will indemnify, defend, and hold harmless you (whether an Enterprise Customer or Individual User), and your respective officers, directors, employees, and agents (each, “Your Indemnified Party”), from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable legal fees) arising out of or in connection with any claim, demand, suit, or proceeding brought by a third party alleging that the Simulations or any Simulations Material, as provided by XINTRA and used in accordance with this Agreement, infringes or misappropriates any third party’s Intellectual Property Rights (an “IP Claim”).
Notification and Cooperation: Your Indemnified Party must promptly notify XINTRA in writing of any IP Claim for which indemnity is sought. Failure to provide prompt notice will not relieve XINTRA of its obligations under this clause, except to the extent that XINTRA is materially prejudiced by such delay. Your Indemnified Party will provide XINTRA with all reasonable assistance and cooperation, at XINTRA’s expense, in the defence and settlement of the IP Claim.
Control of Defence: XINTRA will have the sole right to control the defence and settlement of any IP Claim, including the selection of legal counsel and the right to settle on such terms as XINTRA deems appropriate, provided that XINTRA will not settle any IP Claim in a manner that imposes any liability or obligation on Your Indemnified Party (other than the payment of amounts indemnified under this clause) or that admits fault or wrongdoing on behalf of Your Indemnified Party, without Your Indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed).
Mitigation: If the Simulations or any Simulations Material become, or in XINTRA’s reasonable opinion are likely to become, the subject of an IP Claim, XINTRA may, at its sole option and expense: (a) procure for you the right to continue using the Simulations or Simulations Material; (b) modify or replace the Simulations or Simulations Material so that they are no longer infringing, provided such modification or replacement does not materially diminish the functionality or value of the Simulations; or (c) if neither (a) nor (b) is commercially reasonable, terminate your access to the affected Simulations or Simulations Material and refund any prepaid fees for the period after termination.
Exclusions: XINTRA will have no liability or obligation under this clause to the extent that any IP Claim arises from: (a) use of the Simulations or Simulations Material in combination with any product, service, software, or data not supplied or authorised by XINTRA, if the infringement would not have occurred but for such combination; (b) modification of the Simulations or Simulations Material by anyone other than XINTRA or its authorised agents; or (c) use of the Simulations or Simulations Material in a manner not permitted by this Agreement or not in accordance with the documentation provided by XINTRA.
Sole Remedy: This clause states your sole and exclusive remedy, and XINTRA’s entire liability, with respect to any IP Claim relating to the Simulations or Simulations Material.
Survival. This Liability and Indemnity clause will survive the termination or expiry of this Agreement.
Dispute Resolution
Dispute. In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof (Dispute), the parties will first seek to resolve the Dispute through amicable negotiations between themselves within thirty (30) days from the date of notification of the Dispute by one party to the other.
Mediation. If the parties are unable to resolve the Dispute within thirty (30) days of written notification of the Dispute by one party to the other, either party may initiate mediation. The mediation will be conducted in accordance with the mediation rules of the Australian Disputes Centre, and the place of mediation will be Sydney, New South Wales, Australia. The language of the mediation will be English.
Referral. Should the mediation fail to result in a resolution of the Dispute within sixty (60) days from the date of initiation of the mediation, or such longer period as the parties may agree in writing, either party may then refer the Dispute to the courts of New South Wales, Australia, for resolution.
Survival. This Dispute Resolution clause will survive the termination or expiry of this Agreement.
Suspension of Access.
Suspension for potential breach. If we, have reason to believe, suspect, or anticipate that you (or any of your Authorised Users) have breached, might breach, are in the process of breaching, or are likely to breach this Agreement, including any terms laid out in our Acceptable Use Policy, we reserve the right to temporarily suspend your access to the Simulations. This measure is taken to prevent any potential violations and protect the integrity and security of our services. The suspension will remain in place until we can verify compliance with the Agreement or resolve any concerns related to the potential breach. We are committed to ensuring a fair process and will communicate with you promptly regarding the reasons for any such suspension and the steps that can be taken to restore access.
What Happens if We Suspend Your Services. If we suspend your access to our Simulations you won’t receive a refund for the portion of time your account is suspended for.
Term and Termination
Term of Agreement. This Agreement starts on the Effective Date and will continue until the end of your chosen subscription period. If you're an Individual User, your subscription period could either be month-to-month or for a full year, based on what you've selected. If you're an Enterprise Customer, your subscription period will be as outlined in your Enterprise Customer Order Form. This setup ensures that the Agreement's duration matches your specific commitment, whether it's the flexible monthly option or the annual commitment for a bit of savings or the custom term agreed upon for Enterprise Customers.
Termination for convenience by you. We understand that circumstances change, and flexibility is important. Therefore, you may terminate this Agreement at any time, for any reason, simply by notifying us in writing. If you choose to end the Agreement early, please remember that you won't get a refund for any portion of your subscription fees that you’ve already paid. Once you've told us you want to terminate, your access to the Simulations will stop immediately.
Termination for convenience by us. If we decide to terminate for our convenience, your access to the Simulations will stop immediately, and we will refund you for the unused portion of your subscription fees within 10 business days. This means if you've paid for access to Simulations that you haven't yet received, we'll calculate the remaining value of your subscription from the date of termination and refund that amount to you. This approach ensures fairness and acknowledges the dynamic nature of your needs and plans.
1) Termination for Cause. If, in our view, you (or one of your Authorised Users) fail to comply with any of your (or their) obligations under this Agreement, we reserve the right to terminate this Agreement for cause. This includes any breach of your duties as outlined in this Agreement. We will make the decision, at our sole discretion, to determine whether the breach you've committed is one that can be fixed. If we decide it's capable of remedy, we may or may not choose to give you the opportunity to correct the issue within a timeframe that we specify. If the breach is deemed not fixable, or if a fixable breach is not fixed within the given timeframe, we may terminate this Agreement immediately. This action is to protect the integrity and security of our Simulations and ensure all users can continue to benefit from them without disruption.
2) If we end this Agreement in accordance with clause 14.4(a) (Termination for Cause) because you've broken its terms, you'll lose access to the Simulations immediately. Also, we won't return any part of the subscription fees you've already paid, even if you haven't used the Simulations for the full time you paid for. This means you won't get back money for the time left on your subscription after the termination.
Effects of Termination. Upon the termination of your subscription, whether by you or us, the following conditions will apply:
1) Access Ends: your access to the Simulations will immediately cease. You will no longer be able to log in or use any of the Simulations' features or content from the moment of termination.
2) No Refunds: if you terminate your subscription, or if we terminate it for cause due to a breach of this Agreement by you, you will not be entitled to a refund for any prepaid fees. This means we won't give back the money for the remaining period of your subscription that you won't be using.
3) Data Deletion: you should ensure to remove or backup any personal data or information you may have stored or entered in the Simulations prior to termination, as we may delete all such data after termination.
4) Obligations Survive: certain obligations and responsibilities you've agreed to during the term of your subscription will continue even after termination. This includes any obligations related to confidentiality, indemnity, and any other responsibilities meant to survive termination as laid out in this Agreement.
5) Legal Remedies: XINTRA may seek injunctive relief or pursue other legal actions as appropriate to prevent further harm or to recover losses resulting from the breach.
It's important to consider these effects carefully when deciding to terminate your subscription or in understanding the implications if your subscription is terminated by us.
Survival. This Term and Termination clause will survive the termination or expiration of this Agreement and will be binding upon the parties and their respective successors and permitted assigns.
Miscellaneous
Force Majeure. Neither party will be liable for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, war, government regulation, disaster, strikes (excluding strikes involving the you or yours or our personnel), civil disorder, or any other cause beyond the reasonable control of the party invoking this clause. The affected party will notify the other party in writing within five (5) business days of the occurrence of such an event.
Notices. All notices, requests, demands, and other communications under this Agreement will be in writing and will be deemed to have been duly given on the date of delivery when delivered, in the case of you, to the email addresses specified in your Simulations portal or your Enterprise Customer Order Form, and, in the case of us, to us via our “Contact Us” page. If the notice is sent by email, the sender will request a read receipt or send a follow-up email or communication via another method listed above to confirm delivery. Notice will be deemed received upon confirmation of receipt of email.
Modifications. We reserve the right to modify the terms and conditions of this Agreement at any time without prior notice. By continuing to use the Simulations after such modifications are made, you agree to be bound by the revised terms. We will post all changes on the website and recommend that you review the terms and conditions on the website periodically to stay informed of any updates. If you do not agree to the new terms, you must stop using the Simulations immediately.
Entire Agreement. This Agreement, including any attachments and exhibits referenced herein, constitutes the entire agreement between us and you concerning the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the parties.
Enurement. This Agreement will enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any other person any rights, remedies, obligations, or liabilities under or by reason of this Agreement.
Assignment. You may not assign or novate these terms in whole or part without the consent of us. We may assign these terms if we provide prior written notice to you.
Waiver. No waiver of any of the provisions of this Agreement will be deemed or will constitute a waiver of any other provisions hereof (whether or not similar), nor will such waiver constitute a continuing waiver unless otherwise expressly provided.
Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and the remainder of the Agreement will continue in full force and effect as if such invalid, illegal, or unenforceable provision had never been included herein.
Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are to be governed by and construed in accordance with the laws of New South Wales, Australia. The parties irrevocably agree that the courts of New South Wales will have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Definitions and Interpretation
In these terms and conditions, unless the context otherwise requires:
1) words importing the singular include the plural and vice versa;
2) words importing gender include all genders and the use of any gender will be applicable to all genders as the context may require;
3) references to persons include individuals, corporations, partnerships, joint ventures, trusts, unincorporated organisations, and any other legal entities;
4) "including" means including without limitation, and "includes" means includes without limitation;
5) references to "days" mean calendar days unless otherwise specified;
6) references to any legislation or legislative provision include any statutory modification, amendment, re-enactment thereof, and any subordinate legislation issued under such legislation or legislative provision;
7) references to any agreement or document include that agreement or document as amended, novated, supplemented, or replaced from time to time;
8) headings and titles are included for convenience only and do not affect the interpretation of this Agreement;
9) where any word or phrase is given a defined meaning, any other part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning;
10) any reference to "writing" or cognate expressions includes transmissions by facsimile, email or other forms of electronic communication, but excluding text messages, recognised as having legal effect;
11) a reference to a clause, paragraph, schedule, exhibit, attachment, or annex is a reference to a clause, paragraph, schedule, exhibit, attachment, or annex of or to this Agreement; and
12) any reference to time is to local time in the place where the duties under this Agreement are to be performed.
In the event of any inconsistency or conflict between the documents forming this Agreement, the order of precedence will be as follows:
1) the Enterprise Customer Order Form, including any amendments or addendums thereto;
2) these Terms and Conditions;
3) the Acceptable Use Policy;
4) any other documents or attachments specifically referenced and incorporated into this Agreement.
The document listed first will have the highest priority, and to the extent of any inconsistency or conflict with documents of a lower priority, the provisions of the higher priority document will prevail. Notwithstanding the foregoing, specific terms in later documents will not be deemed to be overridden or replaced by general terms in earlier documents unless such intention is expressly stated.
Account means the unique set of account credentials assigned to either an Individual User or an Authorised User, which facilitates access to the Simulations in accordance with the terms and conditions of this Agreement.
Authorised User means an individual who is designated and named by the Enterprise Customer on the Enterprise Customer Order Form, and thereby authorised to access and use the Simulations as permitted under this Agreement.
Core Simulations means the core plan and features as set out at https://www.xintra.org/simulations.
Confidential Information will include all data, materials, products, technology, computer programs, specifications, manuals, software, financial information, and other information disclosed or submitted, orally, in writing, or by any other media, to you and the Users by us. Confidential Information does not include information that: (i) is known to you at the time of disclosure as evidenced by written records of you; (ii) has become publicly known through no wrongful act of you; (iii) has been rightfully received from a third party authorised to make such a disclosure without breach of this Agreement; or (iv) has been independently developed by you or an Authorised User without use of or reference to our Confidential Information, as evidenced by written records.
Effective Date means the earliest of: (a) the date on which you click an "I Accept" button indicating your acceptance of these terms; (b) the date on which you begin using any of the Simulations, thereby indicating your agreement to abide by these terms; or (c) the date specified in your Enterprise Customer Order Form as the start date of your subscription. This date signifies the commencement of your legal obligations under this Agreement.
Enterprise Customer means an organisation, rather than an individual, that engages with XINTRA for access to the Simulations under the terms and conditions specified in an Enterprise Customer Order Form. This form outlines the bespoke subscription arrangement, including the number of Authorised Users, level of access required, payment terms, and total cost, tailored to the unique needs and goals of the organisation.
Enterprise Customer Order Form means the document executed by an Enterprise Customer and XINTRA that specifies the details of the Enterprise Customer's subscription. This form is a binding agreement that forms part of the contract between XINTRA and the Enterprise Customer, setting forth the terms under which the Enterprise Customer and its Authorised Users are granted access to the Simulations.
Enterprise Live means the premium enterprise live plan and features as set out at https://www.xintra.org/simulations/enterprise.
Fees means the payment amount owed by you to us for the chosen subscription to access the Simulations.
Individual User has the same meaning given to that term in clause 4.
Intellectual Property Rights means all forms of intellectual property, including but not limited to copyrights, trademarks, service marks, trade secrets, patents, patent applications, trade dress, rights of publicity, rights of privacy, moral rights, and all other forms of protection of proprietary or creative works, inventions, discoveries, ideas, software, databases, innovations, and improvements, whether registered or unregistered, and including all renewals, extensions, restorations, and reversions thereof, and all applications for any of the foregoing, anywhere in the world.
Simulations means the for:
1) Individual Customers the Core Simulations, and
2) Enterprise Customers it means the Enterprise Live offering.
Simulations Material means all content, data, information, software, tools, features, functionalities, and resources provided, made available, or otherwise accessible to Users through the Simulations, including but not limited to training modules, exercises, simulations, software code, programming environments, documentation, articles, multimedia (including video, audio, and images), user interfaces, graphics, design, compilations, instructional material, and any other materials or content offered as part of the Simulations experience. It also encompasses any updates, modifications, enhancements, and derivatives of the foregoing, whether provided by XINTRA or by any third-party at the direction of or through integration with XINTRA. For clarity, Simulations Material includes any physical or digital materials provided to Users for use in connection with the Simulations, whether downloaded, streamed, accessed online, or otherwise obtained through the Simulations platform. Simulations Material does not include content, data, or materials that Users submit, post, transmit, or otherwise make available through the Simulations, which is defined separately under "User Content."
Maintenance Activities has the meaning given to that term in clause 3.1.
Personal Information has the meaning set out in the Privacy Act (Cth)1988.
Term means the period during which this Agreement is in effect, starting from the Effective Date and continuing until the end of the subscription period chosen by the User, unless earlier terminated in accordance with the provisions of this Agreement. For Individual Users, the Term may be either a month-to-month basis, commencing on the Effective Date and renewing automatically each month, or an annual basis, commencing on the Effective Date and covering a full twelve-month period from the Effective Date. For Enterprise Customers, the Term is defined by the duration specified in the Enterprise Customer Order Form, starting from the Effective Date. The specific start and end dates of the Term will be determined based on the user's selection at the time of subscription or as detailed in the Enterprise Customer Order Form, and may be subject to renewal or extension by mutual agreement of the parties in writing.
Third-Party Products is defined in Clause 6.6.
User means either an Individual User or an Authorised User, as the context of their access and use of the Simulations under this Agreement requires.
User Content refers to any and all content, data, information, text, images, videos, audio clips, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Simulations by Users. This includes but is not limited to posts, comments, links, reports, custom projects, and any other material that Users submit, upload, display, or share through the Simulations. User Content does not include any element of the Simulations themselves, such as the underlying software, interfaces, graphics, design, compilations, and any Simulations Material as previously defined.
This Acceptable Use Policy outlines the guidelines for using the Simulations provided by us. By accessing the Simulations, you and your Authorised Users agree to use them responsibly and in compliance with this policy to ensure a secure and productive environment for all Users.
Account Responsibility: you are responsible for all activities that occur under your Account. Ensure your account credentials are kept secure. Sharing of Account credentials is strictly prohibited.
Prohibited Activities: the Simulations may not be used for the following activities or for any other activities of a similar nature or effect, including but not limited to the following:
excessively profane content
hate-related or violent content;
content advocating racial or ethnic intolerance or content which threatens or encourages harm on the basis of race, ethnicity, national origin, religion, caste, sexual orientation, sex, gender, gender identity, serious disease or disability, or immigration status;
content that promotes illegal gambling;
phishing or malicious content;
impersonate another person or otherwise misrepresent yourself;
remove any copyright, trademark or other Intellectual Property contain in the Simulations;
modify, adapt, translate or reverse engineer any portion of the Simulations;
sell, trade or otherwise exploit the bias for any commercial purpose;
illegal or fraudulent activity;
violating the rights of others;
threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm;
any content or activity that promotes child sexual exploitation or abuse;
violate the security, integrity, or availability of the Simulations, any User, third party, network, computer or communications system, software application, or network or computing device. This includes hacking and distributing malware;
distribute, publish, send, or facilitate the sending of unsolicited mass email or other messages, promotions, advertising, or solicitations (or “spam”); and
activities that could damage, disable, or overburden the Simulations.
Data Integrity: do not upload, store, or share content that is illegal, offensive, or infringes on the intellectual property rights of others. You are responsible for ensuring the data you handle complies with all applicable laws and regulations.
Fair Use: the Simulations are designed to foster innovation and learning. Ensure your usage does not unfairly inhibit the access or performance of others.
Compliance with Laws: you must comply with all local, state, national, and international laws and regulations applicable to your use of the Simulations.
Monitoring and Enforcement: we want to make sure everyone uses the Simulations the right way, so we keep an eye on how they're used. If we find that someone isn't following the rules, we might have to stop or completely end their access to the Simulations – our Agreement with you enables us to do this. This is to make sure everyone can enjoy a safe and productive environment.
By using the Simulations, you commit to upholding these principles to maintain a secure and effective environment for all Users.
Policy Updates: We may update this Policy from time to time.