IMPORTANT LEGAL NOTICE: Nivio Australia Pty Ltd ACN 139 052 654("we" or "us") agrees to provide the Nivio service to you, and you agree to access the Nivio service, subject strictly to these Terms and Conditions of Use (these "Terms"). These Terms create a binding legal contract between you and us which sets out our respective legal rights and obligations in relation to the provision, access and use of the Nivio service. Accessing, viewing and searching this website is free, but when you access or use the Nivio service, you automatically accept these Terms and agree to use the Nivio service in accordance with these Terms. We therefore recommend that you read these Terms carefully before registering with us or subscribing for the Nivio service. If you do not accept these Terms, you should not register with us or subscribe for the Nivio service.
 
 
 
 
 
1.1 The Nivio service provides you with a range of computer-orientated services (including a personalised online Windows desktop environment, helpdesk services and internet connectivity) as further described elsewhere on this website. You can sign up for the Nivio service online from this website. When you have done this, our binding legal contract with you (as set out in, and created by, these Terms) commences.
1.2 We may accept instructions regarding the Nivio service directly from you or from someone that we are reasonably satisfied has your authority.
1.3 When we provide the relevant services to you, we undertake to do so using a reasonable level of skill and care such as you would expect from a reasonably competent internet service provider.
1.4 For Business Users, our legal contract with you is for term elected by you when you register for Nivio Business Suite service, being either 12, 24 or 36 months (Initial Contract Term), extended monthly thereafter.
Minimum Total Contract Value per Nivio Business Suite account:
12 month - $780.00 Inc GST
24 month - $1,440.00 Inc GST
36 month - $1,980.00 Inc GST
 
     
 
 
 
2.1 You will need to have access to suitable computer hardware, software, telecommunication equipment and other basic telecommunication services in order to access and use the Nivio service. These Terms do not cover the provision of such basic equipment or services necessary to obtain access to the internet or to connect to the Nivio service.
2.2 We ask that you register with us using your correct name, e-mail address and other requested personal information. You agree to provide true, current and complete information about yourself as prompted by our registration form and to promptly update the information that you provide to us from time to time in order to keep it true, current and complete. If we have reasonable grounds to suspect that any information that you have provided to us is in fact untrue, inaccurate or incomplete, we may suspend or terminate your access to the Nivio service. If any of the information that you give to us when you register for the Nivio service changes, including your payment details, you must inform us immediately. Any personal information collected by us will be treated in accordance with our Privacy Policy.
2.3 By signing up for the Nivio service, you are agreeing to immediate provision of those services to you by us.
2.4 If, within thirty (30) days of using the Nivio Business Suite service you wish to cancel your contract with us (Paid Trial Cancellation), you may do so via the NivioCentre within the nDesktop service. In the event of a Paid Trial Cancellation you will not be entitled to a refund of user charges applicable to the first month's payment. Any cancellation of the Nivio service after this time will be dealt with in accordance with paragraph [9] below.
 
     
 
 
 
3.1 When you sign up for the Nivio service, we will issue you with a username and a password. These are essential for your secure use of the Nivio service, so in turn you must ensure that they are kept confidential, secure and are used in accordance with all relevant instructions from us.
3.2 If we think there is likely to be a breach of security or any other misuse of the Nivio service we may
(a) change your password, in which case we will notify you that we have done this and/or
(b) suspend your username and password access to the Nivio service (please also see paragraph 8 below).
3.3 If you think that your username or password has become known by someone not authorised to use it, or if any password is being or is likely to be used in an unauthorised way, you must inform the Nivio support team immediately at support@nivio.com.au
3.4 If you have forgotten your password, you should also contact the Nivio support team at support@nivio.com.au
3.5 We will have no liability to you, under these Terms or otherwise, in connection with any unauthorised access to (or use of) your Nivio account and/or your data that occurs directly or indirectly as a result of any lost, stolen username and/or password.
3.6 We are not obliged to monitor, detect or report any unauthorised use of the Nivio service and you shall be solely responsible and liable for all user charges that are incurred as a result of any such unauthorised use.
 
     
 
 
 
4.1 We may need to temporarily suspend the Nivio service for operational reasons (e.g. for repairs, planned or emergency maintenance, upgrades etc.) but, before we do, we will give you as much notice as we can and we will restore the service as soon as possible after any such suspension. We may also have to alter code or access numbers or technical specifications associated with the Nivio service for operational reasons and, where we need to tell you about this, we will give you as much notice as we can.
(a) If we give you instructions about health and safety issues when using the Nivio service, or regarding your use of the Nivio service to ensure the quality of the service that we provide to you and other users, you agree to fully observe those instructions.
4.2 Although we attempt to provide you with the best possible level of service, we cannot guarantee that the Nivio service will be free of faults and defects. However, we will correct all reported faults and defects as soon as we reasonably can. If there is a fault or defect with any aspect of the Nivio service, you should contact the Nivio support team at support@nivio.com.au
4.3 We may monitor messages to or from, and conversations with, the Nivio support team for training purposes and to improve our customer service.
4.4 If we cannot do something that we have promised to do in these Terms because of circumstances that are beyond our reasonable control (including, without limitation, any industrial dispute(s) involving any or all of our employees), we will not be liable to you for this. If the applicable circumstances continue for a period of more than three (3) consecutive months, we can terminate the legal contract between you and us immediately by giving you written notice pursuant to paragraph 7.1 below.
4.5 These Terms set out the full extent of our obligations and liabilities to you in respect of the deployment and provision of the Nivio service to you. All conditions, warranties, collateral warranties, representations and other terms concerning the Nivio service which might otherwise be implied into these Terms (whether arising by statute, operation of law or otherwise) are hereby expressly excluded to the fullest extent permitted by law.
4.6 Due to the nature of the internet, the Nivio service is provided "as is" and "as available" with any and all faults and (save as stated herein) we do not warrant the quality or functionality of the Nivio service or any results obtained by you from using the same, nor do we warrant that the Nivio service
(i) will be free from inaccuracies, bugs, viruses, interruptions or other limitations or that it will operate without fault, error or interruption
(ii) will meet your strict requirements or
(iii) is fit for a particular purpose.
 
     
 
 
 
5.1 As part of the Nivio service, we may provide you with applications, data, information, video, graphics, sound, music, photographs, software or other material. This content is always changing, as we try to provide you with the best possible service, and therefore, from time to time, you may notice changes in the content you can access through the Nivio service.
5.2 The content that we provide to you from time to time can only be used for your own private purposes and is protected by copyright, trademark and all other applicable intellectual property rights. You are not allowed to copy, reproduce, store, adapt, modify, dis-assemble, transmit, distribute externally, play or show in public, broadcast or publish any part thereof.
5.3 Although we take suitable precautions, we cannot guarantee the accuracy or completeness of any of the content that we provide or make available to you through the Nivio service. For this reason, your use of that content (for whatever purpose) is entirely at your own risk.
5.4 Some of the content that we provide or make available to you through the Nivio service will have its own (separate) terms and conditions which apply to the use of that content. Those terms and conditions may be displayed online or elsewhere. If you access any such content, you will need to comply with the applicable terms and conditions. Furthermore, your ability to access any content provided by us to you on a subscription basis, as part of the Nivio service, will cease when our legal contract with you ends.
 
     
 
 
 
6.1 In order to use the Nivio service, you must pay any and all applicable user charges, as notified by us to you from time to time. All user charges payable by you to us must be paid by you without set-off or deduction.
6.2 You must take all reasonable precautions to ensure that no one (including you) uses the Nivio service:
(a) fraudulently and/or in connection with any other criminal offence;
(b) to send, knowingly receive, upload, store, download or use any material which is offensive, abusive, indecent, libelous, obscene or menacing, or in breach of copyright, confidence, privacy or any other intellectual property rights or other third party rights;
(c) to cause annoyance, inconvenience or needless anxiety to anyone;
(d) to 'spam' or to send, or provide, unsolicited advertising or promotional material, or to knowingly receive responses to any 'spam', unsolicited advertising or promotional material, sent or provided by any third party;
(e) in an unlawful manner, in contravention of any applicable legislation, laws, codes of practice, licenses or third party rights)
(f) in a way that does not fully comply with any and all instructions that we may give to you from time to time. The action(s) that we can take if the Nivio service is used in contravention of this paragraph 6.2 are explained in paragraph 8 below.
6.3 If we think that your use of the Nivio service at any time may:
(a) impair the security or efficiency of the system and/or the network used to provide the Nivio service; or
(b) interfere with, disrupt or cause the detrimental performance of the Nivio service for you and/or for any other user,
  we may suspend your access to the Nivio service. Suspension of your access to the Nivio service is further explained in paragraph 8 below. If possible, we will give you prior notice if we do decide to suspend your access to the Nivio service.
6.4 Where we provide you with email facilities, web-hosting or other services that involve us providing storage space on our systems, we may impose limits (which we may vary from time to time) on the storage space that we provide to you in order to ensure the continued quality of the services that we provide to you and other users. These limits may relate to the physical amount of storage space or the number of mailboxes made available to you, the number of email messages that can be stored and/or the size of any attachments that you can send. We may reject or delete any material that exceeds the relevant limit(s).
6.5 We may make software available to you that enables you to use different parts of the Nivio service. You must not copy or modify this software or any part of it. It is important that, if applicable, you only access the relevant part of the Nivio service through this software or in any other way that is expressly permitted by us. You must not attempt to circumvent any security measures that we choose to put in place from time to time in relation to the Nivio service or any part thereof.
6.6 When we provide you with the Nivio service it, and any associated software, is intended strictly for your use only. Therefore, except in accordance with paragraph 6.8 below you must not re-sell, transfer, assign, charge, license or sub-license the Nivio service (or any part of it), or any associated software, to anyone else.
6.7 The Nivio service allows you to access the internet. The internet is separate from the Nivio service and your use of the internet is conducted at your own risk and subject to any and all applicable laws and codes of practice. We have no responsibility for any goods, services, information, data, applications, software or other materials that you download, access or otherwise obtain when using the internet through the Nivio service.
6.8 Your administrator may transfer any of your Nivio Business Suite accounts provided as part of the Nivio service to a different user within your organisation without cancelling or terminating your legal contract with us, by contact us.
 
     
 
 
7.1 You are solely and exclusively responsible for the accuracy, completeness, currency and legality of any data that you choose to store on our servers from time to time in connection with your use of the Nivio service. Any and all such data remains your property at all times.
7.2 We will back-up your stored data regularly in accordance with our usual policies and procedures but you hereby specifically acknowledge and agree that back-ups of your data are performed by us for disaster-recovery purposes only and not for the purposes of restoring individual data files.
7.3 You further acknowledge that you have been granted only a temporary right for your stored data to occupy the hard drive space on our servers that is allocated for your data from time to time, as determined by us, and that nothing in these Terms grants any proprietary interest to you in, or in respect of, that hard drive space, the servers themselves or any part of any of the Nivio service.
7.4 You hereby warrant to us that you have all necessary proprietary rights, title and interest in (and in respect of) any and all data that you store on our servers from time to time and, where applicable, that you have obtained all necessary consents, approvals, licences, permissions and/or releases so as to enable us to store that data on our servers in accordance with these Terms and the general law.
7.5 We hereby reserve the right to remove any of your data that is stored on our servers where we reasonably suspect that your storage or use (or intended or proposed use) of such data breaches the terms of paragraph 6 above and/or any other provision of these Terms.
7.6 You hereby agree to fully indemnify us (on demand) from and against any and all damages, liabilities, losses, costs and/or expenses (including reasonable professional fees) that we may suffer or incur as a result of any action or claim brought by any party that any of your data stored on any of our servers breaches, or may breach, the terms of paragraph 6 above and/or any other provision of these Terms.
7.7 As part of the Nivio service, all of your data that is stored with us is stored in Australia.
 
     
 
 
 
8.1 The contract between you and us created by these Terms, and the provision of the Nivio service by us to you, can be terminated without cause and without any liability by us giving one (1) month's prior notice to you.
8.2 We can also suspend the provision of the Nivio service to you, and/or terminate the legal contract between you and us, at any time:
(a) with immediate effect, if you fail to pay any user charges due from you in connection with your use of the Nivio service or if you otherwise materially breach any of these Terms;
(b) with immediate effect, if we believe that the Nivio service is being used by you in a manner prohibited by paragraphs 6.2 and/or 6.3 above, even if you do not know that the Nivio service is being used by you in such a manner;
(c) upon reasonable notice, if you breach this contract in any other way and fail to remedy the breach within a reasonable period of being asked to do so by us;
(d) with immediate effect, if bankruptcy or insolvency proceedings of any sort are brought against you, you make any arrangement with your creditors or a receiver or administrator (or any equivalent manager or official) is appointed over any or all of your assets;
(e) with immediate effect, if we have terminated your use of any Nivio service previously provided to you due to your breach or default;
(f) with immediate effect, if we are required to suspend the Nivio service by law or by any governmental or regulatory authority; or
(g) in the circumstances described in paragraph 4.7 above
If we do suspend the provision of the Nivio service to you, or terminate the contract created by these Terms, pursuant to paragraphs (a), (b), (d) or (e) above, we will inform you of such suspension or termination as soon as reasonably possible and also explain why we have taken this action.
(g) impair the security or efficiency of the system and/or the network used to provide the Nivio service; or
(g) interfere with, disrupt or cause the detrimental performance of the Nivio service for you and/or for any other user,
we may suspend your access to the Nivio service. Suspension of your access to the Nivio service is further explained in paragraph 8 below. If possible, we will give you prior notice if we do decide to suspend your access to the Nivio service.
8.3 If we decide to suspend the provision of the Nivio service to you and/or to suspend your use of any password or username, for any reason whatsoever, we will restore your access to the Nivio service (if neither of us have terminated this contract in the interim) when you satisfy us that you will only use the Nivio service as agreed pursuant to these Terms.
8.4 If we decide to suspend the Nivio service, the legal contract created by these Terms will continue during the period of suspension and you will still have to pay all relevant user charges arising during such period.
8.5 If you do not use your Nivio.com account for a period of 180 days or more, we may suspend your account without further notice to you. In such circumstances we will
(i) suspend access to your data
(ii) reject all e-mails sent to your Nivio e-mail account (if provided) and notify the sender that your e-mail account is inactive and
(iii) cancel all functionality provided to you as part of the Nivio service. We will restore your account, as soon as reasonably practicable, if you seek to use it at any time after suspension and provided that you have paid all applicable user charges in full.
8.6 On the termination of the legal contract between you and us, all of the provisions of these Terms will cease to have effect save that any provision which can reasonably be inferred as continuing, or is expressly stated to continue, shall continue in full force and effect notwithstanding any such termination. We shall have no liability to you in connection with the termination of the legal contract between you and us, including for any compensation, reimbursement or damages, but the termination of that contract will not release you from your liability to us with respect to any user charges or other sums accruing prior to such termination nor prohibit us from pursuing any remedies available to us to recover the same.
 
     
 
 
Cancellation
 
9.1 If you cancel the Nivio Business Suite services before the end of the Initial Contract Term, you will be required to pay all relevant user charges arising during the entire Initial Contract Term, including the remaining months of the Initial Contract Term.
9.2 You may cancel the legal contract between you and us after the Initial Contract Term by giving us one (1) months prior notice.
9.3 If notice of cancellation is given on the 1st to the 27th of any month, the Nivio Business Suite service will be cancelled at the end of that month. If notice of cancellation is given on the 28th to the 31st of any month, the Nivio service will not be cancelled until the end of the following month and you will be required to pay all associated user charges for the Nivio Business Suite Services for that month.
 
     
 
 
 
10.1 We will be liable to you if you are injured or die as a result of our negligence in the provision of the Nivio service. We do not seek to limit or exclude our liability to you in such circumstances, whether under this paragraph 10 or in any other way, nor do we seek to limit or exclude any other liability which, as a matter of law, we cannot limit or exclude.
10.2 We will have no liability to you of any sort (whether in contract, negligence or otherwise) for
(i) any special, punitive or incidental damages or for any loss that is not reasonably foreseeable when our provision of the Nivio service to you starts, nor for any loss of opportunity, goodwill, reputation, business, revenue, profit (actual or anticipated) or savings that you expected to make, wasted expenditure, data being lost or corrupted or for any other indirect or consequential loss of any kind
(ii) the acts or omissions of any third party providers of telecommunication services or for any faults in (and/or any failures of) any of their networks, services and/or equipment
(iii) any unauthorised access to (or use of) your Nivio account and/or your data that occurs as a result of any lost, stolen or misused username and/or password
(iv) any damage to any hardware, software or data (including your own data) stored or used in connection with the Nivio service including, without limitation, the cost of repairing, replacing or recovering the same
(v) any loss or damage suffered or incurred by you as a result of any performance or communication failure, operational delay, error, omission, interruption, deletion, defect, computer virus or security breach arising in connection with the provision of the Nivio service or any part thereof
(vi) any threatening, defamatory, obscene, offensive or illegal data or other content which is or becomes available or accessible as a result of your use of the Nivio service or
(vii) the conduct of any third party or any infringement of any third party's rights (including intellectual property rights) arising out of your use of the Nivio service (or any part thereof).
10.3 Any other liability to you of any sort (including any liability to you for negligence), arising in relation to our provision of the Nivio service to you, is limited to the equivalent of the minimum total contract value, as outlined in clause 1.4, for any single event or related series of events in any twelve (12) month period.
10.4 Each provision of this paragraph 10 operates and applies separately and survives independently of the others.
 
     
 
 
 
11.1 The Nivio service and each part or element thereof, including any and all related software, source code and object code, all of our proprietary intellectual property rights, any know-how or works arising in connection with the Nivio service and any and all other information or data (in whatever form or medium and including all copies thereof) related to the Nivio service and/or our business is, and will at all times remain, our sole and exclusive property but we hereby grant to you a non-exclusive, non-transferable, royalty-free, limited licence thereof to the extent required for your use of the Nivio service. Such licence will automatically and irrevocably terminate on the termination of the legal contract between us.
11.2 You undertake to us that you shall not copy, reverse engineer, decompile, dis-assemble, sell, lease, license or sub-license the Nivio service or any software provided to you in connection with the Nivio service.
 
     
 
 
 
12.1 Variations: we may change any of these Terms, including (without limitation) the amount or rate of any of our applicable user charges, at any time. However, we will give you at least fourteen (14) days notice of any such change before it takes effect. Please note that certain provisions of these Terms may be superseded by express legal notices and/or specific terms located elsewhere on this website.
12.2 Assignment: neither we nor you are entitled to assign or transfer the benefit or burden of these Terms, nor any part of them, save that we may transfer all or any part of the benefit of these Terms to any company that is a subsidiary or holding company of ours or to any subsidiary of any such holding company (all as defined in the Corporations Act 2001).
12.3 Notices: if either we or you give notice to the other party pursuant to these Terms, such notice must be either sent by e-mail using the Nivio service or sent in writing and delivered by hand, or sent by pre-paid first-class post, to the addressee at
(i) in our case, the postal address or e-mail address shown on the appropriate web site or any alternative postal or e-mail address which we may give to you from time to time for this purpose
(ii) in your case, if you are a company, at your registered office address or principal place of business, at the postal address you specify when registering for the service, at any alternative postal or e-mail address which you may give to us for this purpose or at your Nivio e-mail address (if provided to you as part of the Nivio service). You are responsible for checking all e-mails that are sent to the e-mail address which you provide to us at the time of your registration with us as well as the e-mails sent to your Nivio e-mail address (if provided to you as part of the Nivio service).
12.4 Waiver: neither we nor you shall be considered to have waived any right under these Terms because of any failure or delay in exercising that right nor shall any waiver of any breach of any provision of these Terms be deemed a waiver of any preceding or succeeding breach of the same (or any other) provision. A waiver of any right arising hereunder is only effective if it is in writing and shall apply only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise herein, all rights and remedies arising under these Terms are cumulative and do not exclude any other rights or remedies provided or available by law.
12.5 Third party rights: a person who is not a party to the contract formed by these Terms has no right to enforce any provision of these Terms.
12.6 Validity: if any provision (or any part of any provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall nevertheless remain applicable and in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if part of it were to be deleted or otherwise modified, the provision shall apply with whatever deletion or other modification is necessary to give effect to the commercial intention of the parties
12.7 Governing Law: the laws of Victoria, Australia govern these Terms and we and you both agree to submit to the exclusive jurisdiction of the Victorian courts in connection with any dispute arising out of these Terms.