Clause 1
About the Website
(a)
Welcome to nexshift.app (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 and New Zealand manufacturers.
(b)
Nexshift is offered in two editions: Core (manual data entry) and Connected (which includes NexIoT machine monitoring). Each edition is priced by the number of production lines, with additional lines available. Optional add-ons are available, including NexIQ (AI-powered operational insights) and NexData (read-only API access to operational data for external reporting tools). Both editions include access to the full suite of Nexshift modules. Subscription pricing is provided during onboarding and is available on request.
(c)
Customers who subscribe to the Services do so under a written SaaS Services Agreement with Nexshift Technologies Pty Ltd (SaaS Agreement). If anything in these Terms is inconsistent with a SaaS Agreement, the SaaS Agreement prevails to the extent of the inconsistency. These Terms otherwise apply to all use of the Website and the Services.
Clause 4
Eligibility and B2B Verification
(a)
The Services are intended for use by Australian and New Zealand businesses only. By registering for an account, you warrant that you are accessing the Services on behalf of a registered Australian or New Zealand business. Nexshift Technologies Pty Ltd reserves the right to request verification of your business registration, including your ABN, ACN or New Zealand Business Number (NZBN), 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. Subject to clauses 15(e) and 15(f), Nexshift Technologies Pty Ltd may suspend or 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 maintain reasonable technical and organisational measures to protect User Data, including encryption in transit and at rest, restricted staff access, role-based access controls administered by the User, and logical separation of each customer's data.
If Nexshift Technologies Pty Ltd becomes aware of any unauthorised access to, or disclosure or loss of, User Data, it will notify the affected User without undue delay, and in any event within 72 hours of becoming aware of it. The notice will include the information reasonably available about the nature and likely impact of the breach. Nexshift Technologies Pty Ltd will take reasonable steps to contain the breach and prevent it recurring, and will cooperate reasonably with the User in meeting any obligations under the Privacy Act 1988 (Cth), including the Notifiable Data Breaches scheme. Users should notify Nexshift Technologies Pty Ltd promptly of any suspected breach via the contact details available on the Website.
Clause 7
Data Use and Hosting
(a)
Nexshift Technologies Pty Ltd collects, stores and processes User Data to provide the Services. The Privacy Policy outlines how data is collected, stored and processed.
(b)
User Data is stored at rest in Australia, on cloud infrastructure located in Sydney, New South Wales. Nexshift Technologies Pty Ltd will not move the primary storage of User Data outside Australia without giving at least 30 days' prior written notice.
(c)
If a User elects to use NexIQ, the data needed to answer its queries is sent to the AI service provider named in the SaaS Agreement, which processes it in the United States under commercial terms that prohibit it from training its models on that data. NexIQ can be switched off at any time.
(d)
Nexshift Technologies Pty Ltd's material subcontractors, and where they process data, are listed in the SaaS Agreement and the Privacy Policy.
Clause 8
Subscription to Use the Service
(a)
In order to access the Services, you must first enter into a SaaS Agreement or order form with Nexshift Technologies Pty Ltd (Subscription) and pay the applicable fees (Subscription Fee). After entering into a Subscription, you will be considered a member ('Member').
(b)
In entering into a Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription you select is suitable for your use.
(c)
Before or after you have entered into a Subscription, you will be required to register for an account 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 have access to the Services for as long as your Subscription continues (Subscription Period). Subscriptions continue month to month until terminated under clause 15.
(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
(a)
User Data, including production records, quality logs and incident reports, remains the User's property at all times, together with any data based on or derived from it that is provided to the User as part of the Services.
(b)
Nexshift Technologies Pty Ltd may collect and analyse information about the provision, use and performance of the Services, and may use it to improve the Services. Nexshift Technologies Pty Ltd will only disclose that information in aggregate or other de-identified form that does not identify the User or any individual.
(c)
On termination of a Subscription:
(i)
if the User asks in writing within 90 days after the date of termination, Nexshift Technologies Pty Ltd will provide the User with an export of its User Data, in CSV or another commonly used, machine-readable format, within 5 business days of the request;
(ii)
after that period ends, or once the User confirms its export is complete (whichever is earlier), Nexshift Technologies Pty Ltd will delete all User Data from its live systems within 30 days;
(iii)
copies held in backups will be deleted automatically as those backups expire under the backup retention period in the SaaS Agreement, and until then Nexshift Technologies Pty Ltd will not restore, access or use them except as required by law;
(iv)
Nexshift Technologies Pty Ltd may retain User Data where required by law, or to comply with a legal hold, regulatory requirement or court order, but only for as long as required; and
(v)
Nexshift Technologies Pty Ltd will give written confirmation of deletion within 5 business days of completing it, noting the date by which backup copies will have expired.
Clause 10
Payments
(a)
Subject to the terms of any applicable SaaS Agreement, the Subscription Fee is payable by invoice or by any other payment method we make available. Unless stated otherwise, all fees are exclusive of GST.
(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)
Nexshift Technologies Pty Ltd may change the Subscription Fee by giving you at least 30 days' prior written notice, no more than once in any 12 month period. If you do not accept the change, you may terminate your Subscription before the change takes effect, without penalty.
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 and any applicable SaaS Agreement. 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;
(ii)
where you are entitled to a refund under the success measure, or to service credits under the service levels, in your 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 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), unless the SaaS Agreement provides otherwise. 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)
Subject to clause 14(c), each party's total aggregate 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, is limited to the greater of:
(i)
the Subscription Fees paid or payable in the 12 months before the event giving rise to the liability; and
(ii)
$20,000.
(b)
Nexshift Technologies Pty Ltd's total liability for any unauthorised access to, or disclosure or loss of, User Data caused by its breach of its security obligations is limited to two (2) times the amount calculated under clause 14(a).
(c)
Clauses 14(a) and 14(b) do not limit:
(i)
your obligation to pay the Subscription Fee;
(ii)
a party's liability for fraud or wilful misconduct;
(iii)
a party's liability for death or personal injury caused by its negligence; or
(iv)
any liability that cannot lawfully be limited.
(d)
Except for liability under clause 14(c)(ii) and (iii), neither party is liable to the other for any loss, damage, cost or expense of an indirect or consequential nature, including any economic loss or loss of turnover, profits, business or goodwill.
(e)
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'). Where the law permits, our liability for breach of a Non-Excludable Guarantee is limited, at our option, to supplying the Services again or paying the cost of having them supplied again.
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)
Subscriptions continue month to month. You may terminate your Subscription at any time by giving Nexshift Technologies Pty Ltd at least 30 days' written notice, and closing your accounts where that option is available to you. There is no minimum term unless agreed in writing in your SaaS Agreement.
(c)
Any notices pursuant to clause 15(b) above should be sent, in writing, to [email protected] or via the 'Contact Us' link on our homepage.
(d)
Nexshift Technologies Pty Ltd may terminate the Terms with you if:
(i)
you materially breach the Terms and do not remedy the breach within 30 days of written notice (or without notice, in the case of non-payment);
(ii)
Nexshift Technologies Pty Ltd is required to do so by law; or
(iii)
Nexshift Technologies Pty Ltd decides to discontinue the Services, provided that it gives you no less than 60 days' written notice.
(e)
If you breach clause 5, Nexshift Technologies Pty Ltd may suspend access to the affected part of the Services, but only:
(i)
after giving you written notice of the breach and at least five (5) business days to remedy it; or
(ii)
without prior notice, where suspension is reasonably necessary to prevent a security threat, harm to the Services or other customers, or a breach of law, in which case we will notify you as soon as practicable.
(f)
Any suspension must be limited to what is reasonably necessary to address the breach, and access will be restored promptly once the breach is remedied. During any suspension, Nexshift Technologies Pty Ltd will still provide an export of your User Data if you ask for one in writing, unless doing so would itself cause the harm the suspension is intended to prevent. Non-payment may also result in suspension, after at least 7 days' written notice.
(g)
On termination, clause 9(c) applies to your User Data.
Clause 16
Indemnity
(a)
You indemnify Nexshift Technologies Pty Ltd against any claim by a third party, and any resulting loss, damage or reasonable costs, to the extent the claim is caused by:
(i)
User Data, including any claim that User Data infringes a third party's intellectual property or privacy rights, or was collected or disclosed unlawfully;
(ii)
your use of the Services in breach of clause 5; or
(iii)
your fraud or wilful misconduct.
(b)
Nexshift Technologies Pty Ltd indemnifies you against any claim by a third party, and any resulting loss, damage or reasonable costs, to the extent the claim alleges that the Services, used in accordance with these Terms, infringe that third party's intellectual property rights.
(c)
Neither party is required to indemnify the other to the extent a claim is caused by the negligence, wilful misconduct or breach of the party seeking the indemnity, or of its personnel.
Clause 17
Dispute Resolution
Compulsory
If a dispute arises out of or relates to the Terms, neither party may 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 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 (Notice).
Resolution
On receipt of the Notice, the parties to the Terms (Parties) must:
(a)
within 7 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 the Dispute has not been resolved within 21 days after the date of the Notice, either agree upon a mediator or request that a mediator be appointed by the President of the Resolution Institute or their nominee, and attend a mediation;
(c)
be equally liable for the fees and reasonable expenses of the mediator and the cost of the venue, and 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)
hold the mediation in Queensland, Australia, or by video conference if both Parties agree.
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 30 days 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. Either Party may then commence legal proceedings concerning the Dispute.
Clause 18
Venue and Jurisdiction
The Services offered by Nexshift Technologies Pty Ltd are intended to be viewed by residents of Australia and New Zealand. In the event of any dispute arising out of or in relation to the Website or the Services, you submit to the non-exclusive jurisdiction of 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.