Clause 1
About the Website
(a)
Welcome to www.nexshift.com.au (Website). The Website allows you to access and use the Nexshift manufacturing execution system (Services).
(b)
The Website is operated by Nexshift Technologies Pty Ltd ACN 697 060 638 / ABN 73 697 060 638. Access to and use of the Website, or any of its associated products or Services, is provided by Nexshift Technologies Pty Ltd. Please read these terms and conditions (Terms) carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of its Services, immediately.
(c)
Nexshift Technologies Pty Ltd reserves the right to update these Terms from time to time. For minor operational updates, such as clarifications, formatting changes, or updates required by law, changes will take effect upon posting to this page. For material changes, including changes to pricing, liability, termination rights, or core service obligations, Nexshift Technologies Pty Ltd will provide no less than 30 days' written notice to registered Users. If you do not agree to a material change, you may terminate your Subscription before the change takes effect by notifying us in writing. Continued use of the Services after the effective date of any change constitutes your acceptance of the updated Terms. Before you continue, we recommend you keep a copy of the Terms for your records.
Clause 2
Acceptance of the Terms
You accept the Terms by remaining on the Website. Where the option is available in the user interface, you may also accept the Terms by clicking to accept or agree to the Terms.
Clause 3
About the Service
(a)
Nexshift is a cloud-based manufacturing execution system (MES) platform providing production management, quality control, maintenance tracking, safety management, recipe and batch traceability, and operational reporting for Australian manufacturers.
(b)
Nexshift subscriptions are structured across four tiers based on the number of machines connected to the platform: Tier 1 (1–5 machines), Tier 2 (6–10 machines), Tier 3 (11–20 machines), and Tier 4 (20+ machines). Optional add-ons are available including NexIQ (AI-powered operational insights) and the Data API (read-only access to operational data for external reporting tools). All tiers include access to the full suite of Nexshift modules. Subscription pricing is provided during onboarding and is available on request.
(c)
Some accounts may be governed by a separate Software Licensing Agreement or SaaS Agreement with Nexshift Technologies Pty Ltd, which may amend these Terms. For the avoidance of doubt, these Terms apply unless otherwise agreed or amended by the terms of an applicable Software Licensing Agreement or SaaS Agreement.
Clause 4
Eligibility and B2B Verification
(a)
The Services are intended for use by Australian businesses only. By registering for an account, you warrant that you are accessing the Services on behalf of a registered Australian business. Nexshift Technologies Pty Ltd reserves the right to request verification of your Australian business registration, including your ABN or ACN, or other documentation reasonably required to confirm your eligibility to access the Services. Access may be denied or suspended where such verification cannot be provided.
Clause 5
Acceptable Use of the Service
(a)
Nexshift, its related features, and website must only be used lawfully. Nexshift Technologies Pty Ltd reserves the right to suspend, cancel, or otherwise deny access to users and accounts who use the Services:
(i)
to engage in any act that would disrupt the access, availability, and security of Nexshift and other Nexshift Technologies Pty Ltd services, including but not limited to:
(A)
tampering with, reverse-engineering, or hacking our servers;
(B)
modifying, disabling, or compromising the performance of Nexshift or other Nexshift Technologies Pty Ltd services;
(C)
overwhelming, or attempting to overwhelm our infrastructure by imposing an unreasonably large load on our systems that consume extraordinary resources; or
(D)
compromising the integrity of our system, including probing, scanning and testing the vulnerability of our system unless expressly permitted by Nexshift Technologies Pty Ltd;
(ii)
for any illegal purpose, or to violate any laws, including data, privacy, and export control laws;
(iii)
to stalk, harass or threaten users and any member of the public;
(iv)
to misrepresent or defraud any user or member of the public through phishing, spoofing, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with Nexshift Technologies Pty Ltd or any third party;
(v)
to access or search any part of the Services other than through Nexshift's publicly supported interface, or as otherwise permitted in an applicable Software Licensing Agreement or SaaS Agreement; or
(vi)
to post, upload, share, or otherwise circulate content in violation of Nexshift's content policy.
Clause 6
Security and Data Privacy
Nexshift Technologies Pty Ltd takes your privacy seriously. Information provided through your use of the Website and/or Services is subject to Nexshift Technologies Pty Ltd's Privacy Policy, which is available on the Website.
Nexshift Technologies Pty Ltd will notify Users of confirmed security breaches affecting User Data as soon as practicable, and in any event within 30 days of becoming aware of the breach, in accordance with the Privacy Act 1988 (Cth) notifiable data breach requirements. Such notification will include the nature of the breach, the data affected, remediation steps taken, and any obligations on the User. Users must notify Nexshift Technologies Pty Ltd of any suspected breach within 24 hours of detection via the contact details available on the Website. Nexshift Technologies Pty Ltd will investigate all reported suspected breaches and provide an incident report to the affected User within 30 days of completing its investigation.
Clause 7
Data Use
Nexshift Technologies Pty Ltd collects, stores, and processes your data to provide Services to you and to facilitate its business operations. The Privacy Policy outlines how your data is collected, stored, and processed by Nexshift Technologies Pty Ltd. The Privacy Policy also addresses Nexshift Technologies Pty Ltd's processes, policies, and obligations in respect of data encryption and removal requests.
Clause 8
Subscription to Use the Service
(a)
In order to access the Services, you must first purchase a subscription through the Website (Subscription) and pay the applicable fee for the selected Subscription (Subscription Fee). After purchasing a Subscription, you will be considered a member ('Member').
(b)
In purchasing the Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription you elect to purchase is suitable for your use.
(c)
Before, during or after you have purchased the Subscription, you will be required to register for an account through the Website before you can access the Services (Account).
(d)
As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself, including but not limited to name, email address, username, role and site assignment within the platform, and login activity and session data.
(e)
You warrant that any information you give to Nexshift Technologies Pty Ltd in the course of completing the registration process will always be accurate, correct and up to date.
(f)
Once you have completed the registration process, you will be a registered user of the Website and agree to be bound by the Terms ('User'). As a Member you will be granted immediate access to the Services from the time you have completed the registration process until the subscription period expires (Subscription Period).
(g)
You may not use the Services and may not accept the Terms if:
(i)
you are not of legal age to form a binding contract with Nexshift Technologies Pty Ltd; or
(ii)
you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
Clause 9
Data Ownership and Retention
User Data, including production records and quality logs, remains the User's property at all times. Nexshift Technologies Pty Ltd retains rights to anonymised, aggregated operational insights derived from User Data for product improvement purposes, which may be retained indefinitely in accordance with the Privacy Policy. Upon termination, the User has 90 days to export all User Data. Following the expiry of that period, or upon completion of the User's data export (whichever occurs earlier), Nexshift Technologies Pty Ltd will delete all User Data within 30 days. For the avoidance of doubt, Nexshift Technologies Pty Ltd may retain certain records, including safety incident reports and other records subject to applicable workplace health and safety legislation, for as long as required by law. Under the Work Health and Safety Act 2011 (Qld) and related legislation, certain incident records must be retained for a minimum of five (5) years.
Clause 10
Payments
(a)
Subject to the terms of any applicable Software Licensing Agreement or SaaS Agreement, the Subscription Fee may be paid by all payment methods available on the Website, and may change from time to time.
(b)
Payments made in the course of your use of Nexshift may be made using third-party applications and services not owned, operated, or otherwise controlled by Nexshift Technologies Pty Ltd. You acknowledge and agree that Nexshift Technologies Pty Ltd will not be liable for any losses or damage arising from the operations of third-party payment applications and services. You further acknowledge and warrant that you have read, understood and agree to be bound by the terms and conditions of the applicable third-party payment applications and services you choose to use as a payment method for Nexshift services.
(c)
You acknowledge and agree that where a request for the payment of the Subscription Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Subscription Fee.
(d)
You agree and acknowledge that Nexshift Technologies Pty Ltd can vary the Subscription Fee at any time by providing you with no less than 30 days' prior written notice of the varied Subscription Fee, and that the varied Subscription Fee will come into effect following the conclusion of the existing Subscription Period. For the avoidance of doubt, continued use of the Services following the conclusion of the existing Subscription Period constitutes your acceptance of the varied Subscription Fee.
Clause 11
Refund Policy
(a)
Nexshift Technologies Pty Ltd offers refunds in accordance with the Australian Consumer Law and on the terms set out in these Terms. Any benefits set out in these Terms may apply in addition to consumer rights under the Australian Consumer Law.
(b)
Subject to your rights under the Australian Consumer Law, which cannot be excluded, restricted or modified, Nexshift Technologies Pty Ltd does not otherwise offer refunds of the Subscription Fee except in the following circumstances:
(i)
where Nexshift Technologies Pty Ltd is unable to continue to provide the Services; or
(ii)
where the Service experiences unplanned downtime exceeding the committed uptime threshold as set out in the applicable Software Licensing Agreement or SaaS Agreement;
(iii)
where a billing error results in an incorrect charge being applied to your account;
(iv)
where Nexshift Technologies Pty Ltd terminates the Service other than for cause before the end of a paid Subscription Period; or
(v)
where the manager of Nexshift Technologies Pty Ltd determines, at its absolute discretion, that a refund is reasonable in the circumstances.
(c)
Where a refund is approved under this clause, the refund will be calculated as a proportional amount of the Subscription Fee that remains unused by the Member as at the date of the refund (Refund). Nothing in this clause limits or excludes any rights you may have under the Australian Consumer Law or any other applicable law that cannot be lawfully excluded.
Clause 12
Copyright and Intellectual Property
(a)
The Website, the Services and all of the related products of Nexshift Technologies Pty Ltd are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Nexshift Technologies Pty Ltd or its contributors.
(b)
All trademarks, service marks and trade names are owned, registered and/or licensed by Nexshift Technologies Pty Ltd, who grants to you a worldwide, non-exclusive, royalty-free, revocable licence whilst you are a User to:
(i)
use the Website pursuant to the Terms;
(ii)
copy and store the Website and the material contained in the Website in your device's cache memory; and
(iii)
print pages from the Website for your own personal and non-commercial use.
(c)
Nexshift Technologies Pty Ltd does not grant you any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved by Nexshift Technologies Pty Ltd.
(d)
Nexshift Technologies Pty Ltd retains all rights, title and interest in and to the Website and all related Services. Nothing you do on or in relation to the Website will transfer any:
(i)
business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright; or
(ii)
a right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or
(iii)
a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
(e)
You may not, without the prior written permission of Nexshift Technologies Pty Ltd and the permission of any other relevant rights owners: broadcast, republish, upload to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.
Clause 13
General Disclaimer
(a)
Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
(b)
Subject to this clause, and to the extent permitted by law:
(i)
all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(ii)
Nexshift Technologies Pty Ltd will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
(c)
Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you "as is" and "as available" without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Nexshift Technologies Pty Ltd make any express or implied representation or warranty about the Services or any products or Services referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(i)
failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(ii)
the accuracy, suitability or currency of any information on the Website, the Services, or any of its related products (including third party material and advertisements on the Website);
(iii)
costs incurred as a result of you using the Website, the Services or any of the products of Nexshift Technologies Pty Ltd; and
(iv)
the Services or operation in respect to links which are provided for your convenience.
Clause 14
Limitation of Liability
(a)
Nexshift Technologies Pty Ltd's total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the greater of: (i) the resupply of the Services to you; or (ii) the total Subscription Fees paid by you to Nexshift Technologies Pty Ltd in the three (3) month period immediately preceding the event giving rise to the claim.
(b)
You expressly understand and agree that Nexshift Technologies Pty Ltd, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This includes, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
(c)
Nothing in these Terms excludes, restricts or modifies any guarantee, condition, warranty, right or remedy which you may have under the Competition and Consumer Act 2010 (Cth) or any similar consumer protection laws in the relevant jurisdiction ('Non-Excludable Guarantees'), and our liability is limited to the extent permitted by law. Where our liability cannot be excluded but can be limited, our liability is limited to resupply of the Services or payment of the cost of resupply.
(d)
The liability cap in clause 14(a) does not apply to:
(i)
data loss or corruption caused by Nexshift Technologies Pty Ltd's negligence;
(ii)
breaches of confidentiality or security obligations;
(iii)
claims arising from Nexshift Technologies Pty Ltd's gross negligence or wilful misconduct; or
(iv)
Non-Excludable Guarantees.
Clause 15
Termination of Contract
(a)
The Terms will continue to apply until terminated by either you or by Nexshift Technologies Pty Ltd as set out below.
(b)
If you want to terminate the Terms, you may do so by:
(i)
not renewing the Subscription prior to the end of the Subscription Period;
(ii)
providing Nexshift Technologies Pty Ltd with 30 days' notice of your intention to terminate; and
(iii)
closing your accounts for all of the services which you use, where Nexshift Technologies Pty Ltd has made this option available to you.
(c)
Any notices pursuant to clause 15(b) above should be sent, in writing, to Nexshift Technologies Pty Ltd via the 'Contact Us' link on our homepage.
(d)
Nexshift Technologies Pty Ltd may at any time terminate the Terms with you if:
(i)
you do not renew the Subscription at the end of the Subscription Period;
(ii)
you have breached any provision of the Terms or intend to breach any provision;
(iii)
Nexshift Technologies Pty Ltd is required to do so by law; or
(iv)
Nexshift Technologies Pty Ltd decides to discontinue the Services, provided that Nexshift Technologies Pty Ltd gives you no less than 60 days' written notice of such discontinuation.
(e)
Subject to local applicable laws, Nexshift Technologies Pty Ltd reserves the right to suspend or cancel your Subscription or Account where you breach any provision of the Terms, any applicable law, or where your conduct materially impacts Nexshift Technologies Pty Ltd's reputation or violates the rights of another party. Suspension or cancellation will be subject to the notice and cure provisions in clause 15(f).
(f)
Where Nexshift Technologies Pty Ltd suspends or terminates your access pursuant to clause 15(e) above, Nexshift Technologies Pty Ltd will provide you with 14 days' written notice and an opportunity to remedy the breach, except where immediate suspension is required due to security threats, illegal activity, or non-payment after 7 days' notice, and you will retain read-only access to export your data for 30 days following any suspension.
(g)
Following termination, the User will retain read-only access to export all User Data for 90 days. Following the expiry of that period, or upon completion of the User's data export (whichever occurs earlier), Nexshift Technologies Pty Ltd will delete all User Data within 30 days and provide written confirmation of deletion within 5 business days, in accordance with the Privacy Act 1988 (Cth) obligations.
Clause 16
Indemnity
You agree to indemnify Nexshift Technologies Pty Ltd, its affiliates, employees, agents, contributors, third party content providers and licensors from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with:
(a)
any content you submit, post or transmit through the Website or Services;
(b)
your misuse of the Website or Services, including any unlawful or unauthorised use;
(c)
your breach of these Terms or any applicable law; or
(d)
any claim by a third party arising from your use of the Services, except to the extent that such claim arises from Nexshift Technologies Pty Ltd's own negligence or wilful misconduct.
Clause 17
Dispute Resolution
Compulsory
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
Notice
A party to the Terms claiming a dispute (Dispute) has arisen under the Terms must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
Resolution
On receipt of that notice (Notice) by that other party, the parties to the Terms (Parties) must:
(a)
within 28 days of the Notice, endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b)
if for any reason the Dispute has not been resolved within 28 days after the date of the Notice, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the Resolution Institute;
(c)
the Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing. The Parties must each pay their own costs associated with the mediation; and
(d)
the mediation will be held in Brisbane, Australia.
Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and, to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
Termination of Mediation
If 2 months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
Clause 18
Venue and Jurisdiction
The Services offered by Nexshift Technologies Pty Ltd are intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland.
Clause 19
Governing Law
The Terms are governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia, without reference to conflict of law principles. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
Clause 20
Severance
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.