Effective date: January 1, 2025
Entity: Smartpath Pty Ltd (ACN 070 801 759),
Level 2, 696 Bourke Street,
Melbourne, VIC 3747
Australia.
Email: legal@smartpath.com.au
1. Acceptance & Scope
These Terms of Service (“Terms”) govern access to and use of Smartpath’s software-as-a-service platform, mobile apps, and related documentation (the “Services”). By using the Services, the customer identified on an Order (“Customer”) agrees to these Terms. If an individual accepts on behalf of an entity, they represent they have authority to bind that entity.
2. Definitions
Affiliate, Acceptable Use Policy (AUP), Australian Consumer Law (ACL), Beta Services, Business Hours, Confidential Information, Consumer, Customer Data, Documentation, DPA, Order, Personal Information, Privacy Laws, Scheduled Maintenance, Services, Subprocessor, Support, Update, Uptime Target.
3. Accounts
Customer must keep account information accurate and credentials secure; notify Smartpath without undue delay of any suspected compromise. Credentials may not be shared outside Customer and its authorised users.
4. Right to Use & Restrictions
Subject to payment and compliance, Smartpath grants a non-exclusive, non-transferable, non-sublicensable right to access and use the Services for Customer’s internal business purposes in accordance with the Documentation. Restrictions include: no copying, reverse engineering, circumventing technical limits, publicly benchmarking without consent, or using the Services to build a directly competing SaaS. Use must comply with the AUP referenced below.
5. Plans, Fees, Taxes & Billing
Fees and plan details are set out in the applicable Order or pricing page. Fees are exclusive of GST, taxes and withholdings. Invoices are payable within the agreed payment terms. Smartpath may suspend the Services for overdue amounts after notice. Pricing or plan changes take effect on renewal. Refunds apply only as expressly stated in these Terms or the Order.
6. Support, Availability & Maintenance
Support is provided per the Support & SLA Policy. Target monthly availability (Uptime Target) is 99.9% excluding Scheduled Maintenance and force majeure. Service credits are Customer’s sole and exclusive remedy for availability shortfalls. Beta Services are excluded from SLAs.
7. Data Protection & Privacy
- 7.1 Ownership. As between the parties, Customer retains all rights in Customer Data.
- 7.2 Licence to Operate. Customer grants Smartpath a limited licence to host, process, transmit and display Customer Data to provide, secure, maintain, and improve the Services, and to comply with law.
- 7.3 Privacy. Smartpath will handle Personal Information in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles, and Smartpath’s Privacy Policy. Where required, Smartpath will enter into a Data Processing Addendum (DPA) incorporating appropriate cross-border transfer safeguards.
- 7.4 Security. Smartpath implements administrative, technical and physical safeguards appropriate to the nature of the data, including encryption in transit and at rest, access controls, logging/monitoring, vulnerability management, backups, and incident response.
- 7.5 Subprocessors. Smartpath may use Subprocessors to provide the Services. A current list is published on Smartpath’s website. Smartpath will provide prior notice of new Subprocessors and will remain responsible for their performance.
- 7.6 Incident Response & NDB. Smartpath will notify Customer without undue delay of a data incident impacting Customer Data and will comply with the Notifiable Data Breaches scheme where applicable.
- 7.7 Data Location. Primary hosting regions are described in the Subprocessors/Security pages. 7.8 Export & Deletion. During the term and for 30 days after termination, Customer may export Customer Data in a reasonable format. Thereafter Smartpath will delete Customer Data within 60 days, subject to legal retention requirements.
- 7.9 Prohibited Data. Unless expressly agreed, do not submit protected health information, payment card data (PAN/CVV), or government identifiers outside designated fields.
8. Third‑Party Services
Integrations and third‑party services are governed by their own terms. Smartpath is not responsible for third‑party services or how they handle data once transmitted from the Services.
9. Smartpath Payments
Payment processing for Customer’s end customers is provided by third‑party payment processors (e.g., Stripe). Smartpath does not store raw card data. Customer is solely responsible for its transactions and compliance with scheme and processor terms.
10. Confidentiality
Each party will protect the other’s Confidential Information using at least a reasonable degree of care and use it only for purposes of these Terms. Permitted disclosures include to professional advisors under confidentiality and as required by law with reasonable notice.
11. Warranties & Disclaimers
Smartpath warrants the Services will materially conform to the Documentation and that it will provide the Services with reasonable care and skill. Except as expressly stated, the Services are provided “as is” and Beta Services are provided without warranties. Smartpath does not provide accounting, legal, or compliance advice.
12. Indemnities
- 12.1 IP Indemnity by Smartpath. Smartpath will defend and indemnify Customer against third‑party claims alleging that the Services infringe intellectual property rights, and pay amounts finally awarded or agreed in settlement, subject to prompt notice, control of defence, and cooperation. Remedies may include procuring rights, modifying or replacing the Services; if not feasible, either party may terminate the affected Services and Smartpath will refund prepaid fees for the unused term.
- 12.2 Customer Indemnity. Customer will defend and indemnify Smartpath against claims arising from Customer Data, AUP violations, or unlawful use of the Services.
13. Liability
To the maximum extent permitted by law, neither party is liable for indirect, special, incidental or consequential loss, or loss of profits, revenue, goodwill, or data. Each party’s aggregate liability arising out of or in connection with the Services is capped at fees paid or payable for the Services in the 12 months preceding the first event giving rise to liability. The cap does not apply to: death or personal injury caused by negligence; fraud or wilful misconduct; breach of confidentiality; amounts payable under the IP indemnity; or to the extent liability cannot be limited under the ACL.
14. Australian Consumer Law
Nothing in these Terms excludes, restricts or modifies any consumer guarantees, rights or remedies under the ACL that cannot be excluded, restricted or modified. Where permitted, Smartpath’s liability is limited to resupplying the Services or paying the cost of having the Services supplied again.
15. Changes to the Services & Terms
Smartpath may modify the Services or these Terms. Material adverse changes will be notified at least 30 days in advance (except for urgent security/legal updates). If Customer does not agree to a material adverse change, Customer may terminate before it takes effect and receive a pro‑rata refund of prepaid fees for the unused term. Pricing changes apply on renewal.
16. Term, Suspension & Termination
These Terms continue for the subscription term set out in the Order and renew per the Order. Either party may terminate for material breach not cured within 15 days after notice. Smartpath may suspend for overdue amounts, security risk, or AUP violations, with prior notice where feasible. On termination, Customer’s access ends; data export and deletion apply per Section 7.8.
17. Publicity
Smartpath may use Customer’s name and logo in customer lists and marketing materials, unless Customer opts out by notice.
18. Assignment
Customer may not assign without consent, except to an Affiliate or in connection with a bona fide change of control upon notice. Smartpath may assign freely. These Terms bind successors and permitted assigns.
19. Governing Law & Disputes
These Terms are governed by the laws of Victoria, Australia. The courts of Victoria have exclusive jurisdiction. The parties will first attempt good‑faith resolution for 30 days; by mutual agreement, the parties may refer disputes to arbitration under the Commercial Arbitration Act 2011 (Vic).
20. Force Majeure
Neither party is liable for delay or failure due to events beyond reasonable control, including failures of third‑party hosting providers or telecommunications.
21. Entire Agreement & Order of Precedence
These Terms, the Order, the AUP, Support & SLA Policy, Privacy Policy, and any DPA form the entire agreement. In case of conflict, the Order prevails, then the Terms, then policies.