Background

A.    James Cook University (JCU) has developed the eSpaces Service which will allow a contributor to securely store and share their Content via the web.

B.     The eSpaces Service has been developed as a useful tool for researchers, academics and students to securely store and share their Content by creating an eSpaces Site and to collaborate with other contributors or End Users.

Operative terms

 1.     Definitions and interpretation

1.1.   Definitions

In this Agreement:

(a)   Cloud Provider means the Amazon Elastic Compute Cloud (Australia) or as amended from time to time.

(b)   Content means any form of electronic medium including but not limited to text, software, scripts, graphics, photos, sounds, music, images, audio, video, audiovisual combinations, interactive features, spreadsheets, presentations and other materials which may be viewed on, accessed through, or contributed to the eSpaces Service.

(c)    End user means anyone who accesses the eSpaces Service and may include foreign nationals.

(d)   eSpaces Service means a tool that allows a contributor to store and share their Content with other contributors or End Users. The eSpaces Service allows a contributor to control who can view or modify their data and to create and share content that supports research collaboration. The eSpaces Service may contain links to third party websites that are not owned or controlled by Us. We have no control over, and assume no responsibility for, the content, privacy policies or practices of any third party websites.

(e)   eSpaces Site means the eSpaces Site including  the Content and  any associated metadata.

(f)     Terms and Conditions means the terms of use of the eSpaces Service and the eSpaces Site as contemplated under clause 2.1.

(g)    We/Us/Our means James Cook University or any other organisation which is running or hosting the eSpaces Service from time to time.

(h)   You/Your/Yours means the contributor or End User who is accessing the eSpaces Service by contributing, viewing or otherwise accessing Content and who agrees to be bound by the terms and conditions set out herein.

  2.     Acceptance of Terms and Conditions

 2.1.  Your acceptance

By using or visiting the eSpaces Service or creating an eSpaces Site, You confirm Your acceptance of these Terms and Conditions. If You do not agree to any of these Terms and Conditions please do not use, or attempt to use the eSpaces Service or to create an eSpaces Site.

2.2.   Variations to Terms and Conditions

Although We may attempt to notify You when major changes are made to these Terms and Conditions, You should periodically review the most up-to-date version (http://www.espaces.edu.au/terms). We may, in Our sole discretion, modify or revise these Terms and Conditions at any time, and You agree to be bound by such modifications or revisions. Nothing in these Terms and Conditions shall be deemed to confer any third-party rights or benefits unless otherwise specified.

3.      eSpaces Site

3.1.   Provision of an eSpace Site

In setting up and operating an eSpaces Site, You acknowledge and agree:

(a)     to comply with all applicable laws;

(b)     We may determine where the eSpaces Site is stored or hosted; and

(c)     We may:

(i)   suspend or terminate use of or access to the eSpaces Site at any time and are not obliged to give any period of notice or reasons for that suspension or termination; or

(ii) issue a “take down” notice to You if We become  aware or suspect that the eSpaces Site contains Content that is in breach of these Terms and Conditions, any applicable laws or the intellectual property rights of any party.

3.2.   Use of eSpaces Site

You grant Us permission to access the eSpaces Site including by making the eSpaces Site available to:

(a)   the End Users;

(b)   third party service providers or technicians; and

(c)   Cloud Providers for storage or replication.

For the purpose of this clause 3.2, You grant to Us a perpetual, non-exclusive, world-wide, sub licensable, royalty free licence to exercise any copyright subsisting in the eSpaces Site for the purpose of providing access to the eSpaces Site including the rights to reproduce, publish, perform, communicate, adapt and modify any Content stored on the eSpaces Site.

3.3.   eSpaces Accounts

(a)   You can create an eSpaces account either automatically via accessing the Australian Access Federation (Institutional) login or by special request in the case of local accounts. You must never use another’s account without permission. You are solely responsible for the activity that occurs on Your account, and must keep Your password secure. We are not liable for any losses caused by any unauthorised use of your account. 

(b)   Australian Access Federation (Institutional) accounts

When You log into the eSpaces Site for the first time, an eSpaces account will be created automatically.  You must notify Your research organisation immediately of any unauthorised use of Your account, as authentication is provided by Your research organisation, not Us. 

(c)    Local accounts

You can also create an eSpaces local account upon special request. You must notify Us immediately of any unauthorized use of Your account.

In order to allow users to collaborate on an eSpaces Site, you agree to share your name, user identifier (shared token or login identity) and organisation with other eSpaces account holders.  If you choose to contribute additional personal details, these will be shared as well.

3.4.   Warranty

You warrant and represent that:

(a)   To the best of Your knowledge, the Content and the grant of the licence contemplated by clause 3.2 will not infringe intellectual property rights (including copyright and patent rights) of any third party;

(b)   The manner in which the Content was created is consistent with any applicable privacy laws;

(c)   You have obtained all necessary permissions, consents and ethical approvals required to provide the Content to Us for use in accordance with these Terms and Conditions;

(d)   You  will not engage in fraudulent behaviour, defame any third party, harass any third party or gain unauthorized access to or interfere with any third party’s online resources or systems in the provision of the Content;

(e)   Storage of the Content by Us (or any other service provider acting on Our behalf ) will not breach:

    1. any laws including laws relating to discrimination, terrorism, hate based material or weapons of mass destruction; or
    2. regulations concerning material that is restricted from public display; and

(f)    Your eSpaces Site does not incorporate any data or content that contains:

        1. Virus, worms or other software agents; or
        2. Files or programs that are designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment. 

3.5.   Limitations

You acknowledge and agree that:

(a)   We are not obliged to update or otherwise maintain the eSpaces Service but may elect to do so;

(b)   We may charge a fee to You or to End Users:

        1.  For value-added services in connection with the eSpaces Site;
        2. For storing the eSpaces Site after 31 December 2014; or
        3. For storing data other than research related eSpaces Sites approved by Us from time to time;

(c)    You must not rely solely upon Us or any related party to back up the Content stored on the eSpaces Site.

(d)    You are solely responsible for the security and visibility of your Content stored on an eSpaces site to others.  You should familiarise yourself with permissions and security settings before contributing any content.

4.      End Users

4.1.   Terms for End Users

(a)   We will include End User Terms on the eSpaces website which govern the use of the service by third parties who may not be contributing Content and include the general public.

(b)   You are responsible for setting sharing permissions regarding access to the Content by other contributors, End Users and the general public.

(c)    As an End User or contributor You agree not to alter or attempt to alter the eSpaces Service or an Espaces Site.

(d)   In Your use of the eSpaces Service, You will comply with all applicable laws.

(e)   You agree not to use the eSpaces Service for any commercial purpose.

(f)     You agree not to use or launch any automated system, including but not limited to, “robots”, “spiders”, or “offline readers”, that accesses the Service in a manner that sends more request messages to the espaces.edu.au servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser.

5.      Liability

5.1.   Limitation and Disclaimer

(a)   Except to the extent that any express guarantees have been given by a party as contemplated by section 59 of the Competition and Consumer Act 2010 (Cth), We exclude all guarantees, conditions, warranties and representations in relation to:

        1. availability of the eSpaces Site to You or to End Users;
        2. suitability of the eSpaces Site for You or for End Users; or
        3. security of the eSpaces Site.

(b)   Subject to clause 5.2 We do not accept liability for any loss or damage however caused (including due to the negligence of Us or the Cloud Provider or the breach of these Terms and Conditions  by Us or the Cloud Provider and even if that liability for any loss or damage was reasonably foreseeable and We had been notified of the possibility of that liability for any loss or damage arising) in connection with the contents of, use of or access to the eSpaces Site by Us, the Cloud Provider, End User’s or any third party including as a result of:

        1. Storage of the eSpaces Site:
          1. Viruses, worms or other software agents, files or programs that are designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications which are obtained in connection with uploading the Content to eSpaces or accessing the eSpaces Site;
          2. being interrupted, being error or fault free, being insecure;
          3. being corrupted.
        2. Access to the eSpaces Site being withdrawn or restricted by Us or the Cloud Provider in its discretion;
        3. the Content of any eSpaces Site breaching any laws or regulatory requirements;
        4. the eSpaces Site infringing any third party rights (including copyright and moral rights);
        5. unauthorized release of the eSpaces Site; or
        6. Us or the Cloud Provider not maintaining a backup copy of the eSpaces Site.

 

(c)    subject to clause 5.2, You indemnify Us from and against, and are liable for, any loss or damage suffered or incurred by Us, the Cloud Provider, End Users or any third party.

(d)   Subject to clause 5.2, Our liability for any loss or damage however caused (including due to the negligence of Us or the Cloud Provider) in connection with these Terms and Conditions is limited to $100.00.

(e)   Subject to clause 5.2, We are not liable to You in connection with these Terms and Conditions for any loss or damage however caused (including due to Our negligence) that constitutes consequential loss, indirect loss, loss or profits, loss of revenue, loss of reputation, loss or bargain or loss of opportunity.

5.2.   Requirements of law

If any applicable legislation prohibits the exclusion of liability by a party in the manner contemplated by this clause 5 with respect to particular loss or damage, then:

(a)     The exclusion does not apply to that loss or damage; and

(b)     The party’s liability is only limited or excluded with respect to that loss or damage in the manner permitted under that legislation (if any).

 6.      General

 6.1.   Entire Agreement

These Terms and Conditions (including any End User Terms):

(a)     Contain the entire agreement between the parties; and

(b)     Supersedes all prior representations, conduct and agreements,

with respect to its subject matter, except to the extent that any express guarantees have been given by a party as contemplated by Section 59 of the Competition and Consumer Act 2010 (Cth).

6.2.   Severability

To the extent that any portion of this agreement is void or otherwise unenforceable, then that portion will be severed and this Agreement will be construed as if the severable portion had never existed. 

 6.3.   Waiver

A right under this Agreement may only be waived in writing signed by the party granting the waiver and is effective only to the extent specifically set out in the waiver.

 6.4.   Jurisdiction

The laws of Queensland, Australia apply to these terms and conditions and the parties irrevocably submit to the non exclusive jurisdiction of the courts of Queensland.

6.5.   Variation

You acknowledge that We may amend these terms and conditions in our discretion by making new terms available on the JCU websites from time to time and those amended terms will apply from the date they are made available.