End User Agreement

Introduction

This section describes the terms that apply to your use of the Xceptional Services.

Thanks for using the Xceptional services. Services offered by Xceptional Testing Pty Ltd ABN 24 617 787 836 of Level 2, 11 York Street Sydney NSW 2000 (“Xceptional”, “we”, “us”) include cloud-based online skills assessment technology, applications and game-based profiling, reporting tools and other services (“Xceptional Services”) as further described on the Xceptional Website at xceptional.io (“Xceptional Website“).

1. Who these terms apply to: These terms apply to “Users” (also referred to as “you” or “your”) who are individuals who access the Xceptional Services whether on their own behalf or through the account of an organisation that subscribes to Xceptional’s Services (“Customer”) and includes visitors to the Xceptional Website, applicants and Customer’s employees.
2. Terms: The terms on this page (“General Terms”) together with the terms referred to in clause 29 (Other Terms) below (such as our privacy policy and service specific terms) are referred to as “Terms“. Please read these Terms carefully as they will apply if you use the Xceptional Services.

Xceptional Services

This section sets out your rights and obligations when using the Xceptional Services.

3. Right to use Xceptional Services: We grant you the right to use the Xceptional Services and any reports created by you using the Xceptional Services for personal purposes only based on the services that have been purchased or signed up for, your role and the access level that you have been granted.
4. Xceptional Services used at your own risk: Your use of any reports or information arising from the use of the Xceptional Services is at your own risk and Xceptional is not responsible for any applications, business or hiring decisions or recommendations that may be made by any organization or person based on the Xceptional Services.
5. Xceptional Service Availability:  Xceptional will use reasonable commercial efforts to make the online Xceptional Services available 24/7, but a failure to meet this target does not constitute a breach of these Terms. Xceptional may suspend access to the Xceptional Services for purposes of routine or emergency maintenance, if Xceptional considers it necessary for the protection of its systems or other users of the Xceptional Services or due to a systems event external to Xceptional including without limitation failure of Xceptional’s third party hosting provider, power outage or telecommunications outage that are beyond the reasonable control of Xceptional.
6. Ownership of Xceptional Services: We own all rights in everything on the Xceptional Services except content that is owned by others such as content and information you provide when using the Xceptional Services. This includes algorithms, copyright, trade marks, the design, compilation and look and feel of the Xceptional Services and all other intellectual property. You must not copy, distribute, modify or make copies of the Xceptional Services or any content on the Xceptional Services or use any of our intellectual property rights except as permitted by these Terms or expressly permitted by us in writing.
7. Restrictions:  Below is a list of things you must not do:
   • use the Xceptional Services in a way that impairs its functionality, compromises the security or integrity of our systems or networks or interferes with other people’s use of the Xceptional Services;
   • decompile, reverse engineer disassemble rent or sublicence anything on the Xceptional Services or extract the source code, algorithms or data of any part of the Xceptional Services;
   • access any system or account without our permission; or
   • use the Xceptional Services for any illegal or fraudulent purpose or upload anything that may be offensive, discriminatory, defamatory, abusive or infringes the rights of others including intellectual property rights and privacy rights.

Xceptional Accounts

This section provides information about your Xceptional Account.

8. Accessing the Xceptional Services: You may need to create an account (“Xceptional Account”) with us to access some of the services, reports, content, benefits or offers available from the Xceptional Services. A Customer may also grant you permission to create an account linked to a subscription or service purchased by the Customer. 
9. User Accounts: If you are a User who has been granted access to an Xceptional Account you must comply with these Terms.
10. Protect your login information: You must keep your user name and password secure and not let anyone access your Xceptional Account. You must notify us of any actual or suspected unauthorised use of your Xceptional Account or if you suspect someone has access to your login credentials.

Subscriptions, Fees and Payment

This section explains your obligation to pay fees and information free services.

11. Fees: Pricing for Xceptional Services and reports and content offered through the Xceptional Services are as set out on the Xceptional Website unless otherwise agreed with you in writing.
12. No-charge Services: We may offer services at no charge (“No-charge Services“). Your use of No-charge Services may be subject to additional terms that we specify and may be available only for a limited time period. We may change, suspend or terminate your right to use No-charge Services at any time at our sole discretion.
13. Payment Methods: You may be required as part of the registration process or prior to accessing parts of the Xceptional Services to provide a valid payment method or other payment information (such as payment card details). If you provide such payment information you authorise Xceptional to process payments using that payment method for services purchased from us. Please ensure that any payment information you provide to us remains up to date.
14. Changes to Fees: We may change the pricing of the Xceptional Services by providing 30 days written notice to you. If you continue to use the Xceptional Services after the price change takes effect, you accept the new price.

Data Use, Privacy and Confidential Information

This section describes how we will deal with your personal and confidential information, and how you should protect our confidential information.

15. Your Data:  Xceptional does not own the data, information and content entered or upload to the Xceptional Services by Users or Customers (“Your Data“). You grant us a licence to use Your Data for the purpose of providing services under these Terms, to enable you to use the Xceptional Services, to allow us to improve the Xceptional Services, to carry data analytics using deidentified aggregated data, to communicate with about the Xceptional Services and our services and to send information we think may be of interest to you.
16. Use of Personal Data: We take your privacy and data protection seriously and we will comply with applicable data protection and privacy laws. In addition to these Terms, our Privacy Policy sets out in detail how we deal with personal data that you enter or upload to the Xceptional Services or otherwise provide to us. By agreeing to these Terms you consent to our use of Your Data as described in our Privacy Policy.
17. Other People’s Information: If you enter or upload another person’s personal information, confidential information or intellectual property to the Xceptional Services, you must ensure that you have the rights and gained necessary consents to allow us to store and use that personal information, confidential information and intellectual property as required to provide the Xceptional Services and as permitted by these Terms. You indemnify us, our directors, officers, employees, agents and licensors against all losses and costs (including legal costs), third-party claims, expenses or liability that arise out of your failure to comply with this clause.
18. Removal and Suspension: We have no obligation to monitor Your Data uploaded to the Xceptional Services. However we have the right to (but we are not obliged to) remove Your Data or suspend or terminate your access to the Xceptional Services if we consider that Your Data contravenes these Terms or any law or in response to a take-down request or allegation that Your Data breaches any persons intellectual property or other rights. We are not liable for any losses you may incur if we take any actions permitted by these Terms.
19. Our Confidential Information: While using the Xceptional Services you may have access to our confidential information such as information that is not publicly available about our business, operations, trade secrets, technical information, non-public pricing information, information about the characteristics, features and performance of pre-release or beta versions. You agree to protect our confidential information and not to share it without our express written permission unless required to by law.
20. Your Confidential Information: We will protect your confidential information that you provide to use and only use it to perform our obligations under these Terms and as permitted by these Terms.

Liability and Indemnity

This section describes liability terms between us and you.

21. Warranty Disclaimers: The Xceptional Services is provided on an “as is, as available” basis. To the maximum extent permitted by law, Xceptional disclaims any and all express or implied warranties, guarantees or representations including but not limited to merchantability, reliability, that the Xceptional Services will be uninterrupted or error free and fitness for a particular purpose of the Xceptional Services including any reports, content, services and products or that the Xceptional Services will meet your requirements. We do not warrant that all features of the Xceptional Services will continue to be available, or that particular features will be developed in the future.
22. Liability Exclusions: Except for liability that cannot be excluded or limited by law, and except for your indemnity in clauses 17 each party excludes liability for loss of profits or revenue, loss of goodwill, loss of opportunity, damage to reputation, loss of anticipated savings, loss or corruption of data, and any indirect, consequential, incidental, punitive, exemplary or special loss, damage or expense.
23. Limitation of liability: Except for liability that cannot be excluded or limited by law, our total aggregate liability to you under these Terms and in connection with the Xceptional Services  is limited to direct damages up to the total paid by you to us during the 6 month period preceding the first event that gave rise to our liability under these Terms.
24. Consumer Laws:  You may have the benefit of non-excludable warranties, guarantees or other rights provided under applicable laws including under the Australian Consumer Law set out at Schedule 2 to the Competition and Consumer Act 2010 (“Non-excludable Conditions“). These Terms are subject to any Non-Excludable Conditions that apply to you. Our liability for a Non-excludable Conditions is limited, at our option, to the cost of replacing or paying for the costs of replacing the relevant goods or services (except if the liability for any Non-excludable Conditions cannot be so limited by law, in which case our liability for that Non-excludable Condition will be limited to the extent permitted by law).

Term, Termination and Suspension

This section sets out information about the term and termination and suspension rights.

25. Termination: Unless we have agreed on a minimum contract term or minimum notice period in writing such as in an Order, Xceptional Accounts or access to some or all services associated with the Xceptional Services may be terminated by either you or us by providing written notice. If we terminate any services under this clause and you have not breached these Terms, we will refund any prepaid fees that relate to terminated services on a pro-rata basis.
26. Termination by us: We may also terminate your access to the Xceptional Services (either in whole or in part):
    • if you breach any of these terms and does not remedy the breach within 14 days of being asked to do so, or immediately if the breach is not capable of being remedied; and
    • if you are accessing the Xceptional Services through a Customer, the Customer’s agreement with Xceptional is terminated, or any fees payable by the Customer for your use of the Xceptional Services have not been paid by the Customer.
27. Suspension by us: We may suspend your access to any part of or all of the Xceptional Services or the provision of any services under these Terms at our sole discretion including if:
    • you are in breach of these Terms;
    • if you are accessing the Xceptional Services through a Customer and the Customer is in breach of its agreement with Xceptional;
    • payment of any fees are overdue; or
    • we believe suspension is required to protect the Xceptional Services, our systems or other users of the Xceptional Services.
28. Your data: We have no obligation to store or provide access to Your Data on the Xceptional Services after termination of your Xceptional Account or termination of your access to the relevant part of the Xceptional Services. We will not be liable for losses incurred directly or indirectly from the loss of Your Data.

General Terms

This section sets out other important terms.

29. Other Terms: Other terms or policies may also apply to specific services, content or benefits offered by Xceptional. These include:
    • our privacy policy, which describes how we collect, hold and use personal information;
    • terms that apply to specific Xceptional Services; and
    • terms agreed in writing between us, for example in a service order form (“Order”).
30. Priority of Terms: If there is any inconsistency between the terms that apply to specific Xceptional Services (including those referred to above in clause 29) and these General Terms, the terms in the service specific terms will take priority in relation to those specific services.
31. Updated Terms: Xceptional is always improving its products and services. We may amend or add to these General Terms from time to time by posting updated General Terms to the Xceptional Website. If you have an Xceptional Account we may also notify you of any changes through your account or by email. You should check the Xceptional Website from time to time for changes.
32. Adverse Changes: If we have notified you, or you otherwise become aware of, a change in the General Terms and Conditions that adversely affects your use of the Services, you may terminate your account with Xceptional and stop using the Xceptional Services within 30 days of being notified of or becoming aware of the change. By continuing to use the Services the Customer agrees to the amended General Terms and Conditions.
33. Notices: Any notices under these Terms to us must be sent to us by emailing support@xceptional.io. We may send legal notices to you by email to the email address you have provided to us or through the notification functionality in your Xceptional Account.
34. Things beyond our control: We are not liable for any delay or failure to perform obligations under these Terms due to events that are beyond our reasonable control, including without limitation failure of power, telecommunications or data networks, natural disasters, government orders, strikes, wars, epidemics or pandemics.
35. Assignment: The rights given to you under these Terms are personal and you may not assign or transfer your rights or obligations under these Terms without our prior written consent. We may assign our rights and obligations under the Terms (in whole or in part) without your consent.
36. Our Relationship: We are independent contractors. Nothing in these Terms are to be interpreted as forming a partnership between Xceptional and any Users, or as forming any other type of legal association that would give any User the right power or authority to bind or create any duty or obligation of Xceptional.
37. Survival of Terms: Any terms that by their nature should continue to apply after termination of these Terms will continue to apply.
38. Governing Law and Disputes: These Terms are governed by the laws of New South Wales, Australia and subject to the exclusive jurisdiction of the courts of New South Wales, Australia. If you have any concerns or complaints about us or the Xceptional Services please contact us by emailing support@xceptional.io.