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Terms of Service

These Terms of Service (this “Agreement”) are by and between the customer entity listed on an SOW (“Client”) and Upcroft Works Pty Ltd (ACN 696 443 133), having its principal place of business at Level 2, 65 Dover St, Cremorne VIC 3121 (“Upcroft”, “Company”,”we”, “us”). The Parties hereby agree to the terms of this Agreement, which shall form a binding contract between them and be effective on the earliest of: (i) Customer’s access to or use of the Platform; (ii) where the Agreement is linked or referenced in an SOW, on the date of last signature to such SOW; or (iii) where a click-through or checkbox is provided, on Customer’s clicking “I agree” or similar.

This Agreement does not have to be signed in order to be effective. If Customer does not agree to the terms of this Agreement, Customer shall not access or use the Platform.

With respect to any individual assenting to this Agreement on behalf of an entity, that individual represents and warrants that they: (i) have full legal authority to bind that entity; (ii) have read and understood this Agreement; and (iii) agree to this Agreement on behalf of the entity they represent.

1. Definitions

In this Agreement:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means direct or indirect ownership or control of more than 50% of the voting interests or equity of the subject entity.

“Authorised Delivery Partner” means a third party authorised by Upcroft to provide access to or operate the Platform as part of its services.

Authorised Users” means the employees, contractors, or agents of the Client authorised to access and use the Platform.

“Confidential Information” means any non-public information disclosed by one party to the other, whether in written, oral, or electronic form, that is designated as confidential or would reasonably be understood to be confidential, excluding information that is (a) publicly available without breach of this Agreement, (b) independently developed by the receiving party without reference to or use of the disclosing party’s information, (c) already lawfully known to the receiving party at the time of disclosure, or (d) disclosed to the receiving party by a third party who had the right to make such disclosure without restriction.

“Client” means any entity that accesses or uses the Platform, whether directly or via an Authorised Delivery Partner.

“Data” means all data, content, and information submitted to, accessed by, ingested into, or processed through the Platform by or on behalf of the Client, including data retrieved from the Client’s third-party systems pursuant to Clause 6.1.

“Documentation” means any manuals, guides, or technical documentation provided or made available to the Client in connection with the Platform.

“Effective Date” means the earliest of: (i) the date the Client first accesses the Platform; or (ii) the date specified in the applicable SOW.

“Fees” means the fees payable by the Client as set out in the applicable SOW.

“Output” means any analytics, insights, reports, or results generated by the Platform based on the Data.

“Platform” means Upcroft’s proprietary software platform, including its AI models, data pipelines, data infrastructure, tools, interfaces, integrations, MCP connectivity, Documentation, and all associated technology made available by Upcroft to the Client from time to time.

“Services” means the provision of access to, and use of, the Platform.

“Statement of Work” or “SOW” means a document agreed between the parties that describes the services, scope, and any applicable commercial terms.

“Term” means the term of this Agreement as set out in Clause 8.1.

2. Provision of Services

2.1 Subject to the terms of this Agreement and the applicable Statement of Work (“SOW”), Upcroft grants the Client a limited, non-exclusive, non-sublicensable, non-assignable, and revocable right to access and use the Platform during the Term, solely for Client’s internal business purposes.

2.2 The Platform provides data ingestion, processing, analytics, integration, and AI-enabled operational intelligence capabilities, as further described in the applicable Documentation, SOW.

2.3 The Client shall be solely responsible for providing all equipment, systems, and access needed to use the Platform and for ensuring their compatibility with the Platform. Upcroft shall have no liability for any failure of the Platform resulting from Client’s equipment or systems that do not meet compatibility requirements set out in the Documentation.

2.4 Upcroft may modify or update the Platform at any time at its discretion, including to improve functionality, security, or compliance with applicable laws. All updates provided to Upcroft’s customers generally will also be made available to the Client. After the effective date of an update, Upcroft bears no obligation to maintain or support legacy versions.

2.5 Except as expressly permitted under this Agreement (including access via an Authorised Delivery Partner), the Client must not, and must not permit any third party to:

  1. reverse engineer, decompile, or derive source code of the Platform; (b) copy, modify, or create derivative works of the Platform; (c) resell, sublicense, or commercially exploit the Platform; (d) use the Platform to develop or support a competing product or service; (e) disclose the results of any testing or benchmarking of the Platform to any third party without Upcroft’s prior written consent; (f) use the Platform unlawfully or in breach of third-party rights; (g) allow access to the Platform to any person other than Authorised Users; or (h) use the Platform in a manner that generates, facilitates, or promotes unlawful, harmful, deceptive, or misleading content or outputs..

2.6 The Platform may integrate with and depend on third-party systems and services, including third-party APIs which may be subject to rate limits, throttling, or revocation. Upcroft is not responsible for the availability, performance, security, or data quality of any third-party systems.

3. Authorised Users

3.1 The Platform may be accessed solely by Authorised Users. The Client shall immediately report any unauthorised access or use of the Platform to Upcroft.

3.2 The Client will ensure that Authorised Users comply with the terms of this Agreement at all times and shall be fully responsible and liable for any breach of this Agreement by an Authorised User.

3.3 The Client will require that all Authorised Users keep their credentials strictly confidential and shall not share credentials among multiple users or permit any user to access the Platform using another user’s credentials.

4. Access via Authorised Delivery Partner

Where the Platform is accessed by the Client through an Authorised Delivery Partner, that Authorised Delivery Partner is responsible for the provision of services, support, and any commercial arrangements with the Client.

Upcroft’s obligations under this Agreement are limited to the provision and operation of the Platform.

5. Intellectual Property

5.1 Upcroft retains all right, title, and interest in and to the Platform, including all intellectual property rights in the Platform and any improvements, enhancements, or modifications. The Platform is licensed, not sold.

5.2 The Client retains all right, title, and interest in and to its Data.

5.3 Nothing in this Agreement transfers ownership of any intellectual property rights from Upcroft to the Client.

5.4 The Client may use, reproduce, and share Output as part of its business operations, including in the provision of services to its end customers. All intellectual property rights in the Platform and its underlying technology, models, and methodologies remain with Upcroft, and no ownership rights in the Platform are transferred to the Client by virtue of access to or use of the Output.

5.5 If Upcroft receives any feedback (questions, comments, suggestions, or similar) from the Client regarding the Platform (“Feedback”), all intellectual property rights in such Feedback shall belong exclusively to Upcroft. The Client hereby irrevocably assigns to Upcroft all intellectual property rights it has in such Feedback and waives any moral rights therein. Upcroft is under no obligations to use or implement any Feedback.

5.6 Upcroft warrants that, to its knowledge, the Platform, as provided by Upcroft and used in accordance with this Agreement, does not infringe the intellectual property rights of any third party.

If a claim is made or, in Upcroft’s reasonable opinion, is likely to be made alleging that the Platform infringes third-party intellectual property rights, Upcroft may, at its sole discretion:

  1. modify or replace the affected portion of the Platform so that it becomes non-infringing; or

  2. suspend or terminate the affected Services or SOW.

This clause sets out the Client’s sole and exclusive remedy, and Upcroft’s entire liability, in respect of any intellectual property infringement claims relating to the Platform.

This clause does not apply to claims arising from:

  1. modifications to the Platform made by or on behalf of the Client;

  2. misuse of the Platform in breach of this Agreement;

  3. use of the Platform in combination with software or systems not provided or authorised by Upcroft; or

  4. third-party integrations or systems not provided by Upcroft.

6. Data and Privacy

6.1 Client Authorisation and Consent

The Client authorises Upcroft (and where applicable, its Authorised Delivery Partner) to access, retrieve, and process Data from the Client’s systems and third-party platforms for the purpose of providing the Services.

The Client:

  1. acknowledges that this authorisation forms part of the legal basis for Upcroft’s processing data under this Agreement;

  2. agrees to Upcroft’s Privacy Policy, as updated from time to time in accordance with this Agreement; and

  3. warrants that it has obtained and will maintain all necessary rights, consents, and permissions to provide and authorise access to such Data, including from its end customers and personnel whose personal information is included in the Data, and acknowledges that any breach of this warranty may give rise to the indemnity set out in Clause 12.

6.2 Data Processing

Upcroft will process Data in accordance with the data handling practices described in the applicable SOW, or Documentation, which may include data ingestion, aggregation, filtering, and storage.

The specific data processing capabilities, including any personally identifiable information (PII) filtering or masking, will be as described in the applicable SOW or Documentation.

The Client remains solely responsible for ensuring that Data it authorises for ingestion is appropriate, lawful, and compliant with applicable data protection laws. Upcroft’s data processing activities do not relieve the Client of its own obligations under applicable privacy or data protection laws.

6.3 Data Retention

Upcroft will retain processed Data for the duration of the Term and for such period following termination or expiry as specified in the applicable SOW, or Documentation, after which it will be securely deleted or de-identified, unless retention is required by applicable law.

Retention periods may vary depending on the nature, source, and classification of the Data, and the applicable service configuration.

Security measures applicable to store the Data are described in Upcroft’s Privacy Policy.

6.4 Use of Aggregated and Analytics Data

Upcroft may aggregate and de-identify Data using reasonable technical measures, such that the resulting data is not reasonably likely to identify the Client or any individual (“Analytics Data”).

Upcroft may use Analytics Data for:

  1. improving and enhancing the Platform;

  2. developing new features and functionality;

  3. internal analytics, benchmarking, and general know-how; and

  4. statistical purposes in aggregated, non-identifiable form.

Analytics Data is owned by Upcroft and may be used in accordance with this clause. This right survives termination of this Agreement.

For the avoidance of doubt, Upcroft does not use identifiable Client Data to train AI models for use by other clients.

6.5 Output

Output is provided for informational purposes only. The Platform does not provide legal, financial, or professional advice. Upcroft does not warrant the accuracy, completeness, or reliability of any Output.

The Client is solely responsible for reviewing, validating, and acting on any Output, and for any decisions made in reliance on such Output. The Client acknowledges that it does not rely on the Platform or any Output as a substitute for independent judgment.

Upcroft does not control, monitor, or moderate outputs generated by connected AI tools and is not responsible or liable for any outputs, decisions, or actions arising from the use of such tools.

6.6 Upcroft as Data Processor

To the extent that Data processed under this Agreement includes personal data or personal information (as defined under applicable data protection laws), Upcroft acts as a data processor or service provider on behalf of the Client and will:

  1. process Data only as necessary to provide the Services and in accordance with the Client’s documented instructions as set out in this Agreement and the applicable SOW, or, where applicable, as communicated by an Authorised Delivery Partner acting on behalf of the Client, and will not sell, disclose, or use such Data for any purpose other than providing the Services, except as expressly permitted under Clause 6.4;

  2. implement and maintain reasonable technical and organisational measures to protect Data against unauthorised or unlawful processing, and against accidental loss, destruction, or damage, including as described in Upcroft’s Privacy Policy;

  3. provide reasonable assistance (either directly or via the Authorised Delivery Partner, as applicable) to enable the Client to comply with its obligations under applicable data protection laws, including in responding to data subject requests; and

  4. notify the Client or, where applicable, the Authorised Delivery Partner without undue delay upon becoming aware of a security incident involving unauthorised access to, or loss of, Data processed on behalf of the Client, and provide reasonable cooperation to support the Client’s compliance with applicable data breach notification laws.

Upon reasonable written request, Upcroft will provide the Client with information reasonably necessary to demonstrate compliance with its obligations under this clause, including through documentation, certifications, or audit summaries, where available.

Nothing in this clause grants the Client any right to conduct on-site audits or inspections of Upcroft’s systems unless otherwise expressly agreed in writing.

Where the parties have entered into a separate Data Processing Agreement in relation to personal data, that agreement will apply in respect of such data processing and will prevail over this clause to the extent of any inconsistency.

6.7 Sub-processors and Data Location

Upcroft may engage sub-processors (including cloud infrastructure providers) to assist in delivering the Services, and will ensure appropriate contractual data protection obligations are in place with each sub-processor. Upcroft may update its sub-processors from time to time.

Data may be stored or processed in any jurisdiction where Upcroft or its sub-processors operate. Where Data is transferred or stored outside the Client’s jurisdiction, Upcroft will take reasonable steps to ensure that such Data is handled in accordance with applicable data protection laws.

A current list of sub-processors is available at /legal/sub-processors.

6.8 Third-Party System Dependency

Upcroft’s ability to ingest and process Data depends on third-party systems and services authorised by the Client.

Upcroft is not responsible for any data gaps, delays, errors, incomplete ingestion, or access issues arising from such third-party systems, including outages, API limitations, or changes to access permissions.

Upcroft may suspend or cease supporting any third-party integration where the relevant provider modifies or withdraws its service in a manner that materially affects functionality.

6.9 Privacy and Data Protection

Upcroft will comply with applicable data protection and privacy laws in connection with its processing of Data under this Agreement.

Further details regarding Upcroft’s data handling practices are set out in Upcroft’s Privacy Policy, which is incorporated into this Agreement by reference and may be updated from time to time in accordance with this Agreement.

7. Fees and Payment

7.1 The Client will pay the Fees set out in the applicable SOW. All fees are non-refundable unless otherwise specified.

7.2 Upcroft will invoice the Client in accordance with the SOW.

7.3 Unless otherwise stated in the applicable SOW, invoices are payable within fourteen (14) days of the invoice date. All amounts are exclusive of GST and any other applicable taxes, which shall be payable by the Client in addition to the Fees.

7.4 The Client must notify Upcroft in writing of any invoice dispute within fourteen (14) days of the invoice date. Undisputed amounts remain payable by the due date regardless of any dispute.

7.5 Any amount not paid when due accrues interest at 1.0% per month (or the maximum rate permitted by law), calculated daily from the due date.

7.6 Upcroft may, without liability to the Client:

  1. suspend access to the Platform if any undisputed Fees remain unpaid following written notice, and such suspension will continue until all outstanding amounts are paid in full; and

  2. suspend or restrict access to the Platform immediately where reasonably necessary for security purposes, suspected misuse, or to comply with applicable law or regulatory requirements.

7.7 Upcroft may adjust Fees by providing at least fourteen (14) days’ written notice prior to the start of the next billing cycle, unless otherwise agreed in the applicable SOW.

7.8 Suspension of access to the Platform does not limit Upcroft’s right to terminate this Agreement in accordance with Clause 8.

7.9 Where the Platform is accessed via an Authorised Delivery Partner, the Client acknowledged that:

  1. all fees payable by the Client are payable solely to the Authorised Delivery Partner; and

  2. Upcroft has no obligation to invoice or collect payment from the Client.

Any fees payable to Upcroft are payable by the Authorised Delivery Partner under a separate agreement.

7.10 Where a subscription renews in accordance with Clause 8.2, the Client authorises Upcroft to charge the applicable subscription fees for the renewal period using the payment method on record, unless otherwise agreed in writing.

8. Term and Termination

8.1 This Agreement commences on the Effective Date and continues until all SOWs have expired or been terminated (the “Term”), unless earlier terminated in accordance with this clause.

8.2 Unless otherwise specified in the applicable SOW, subscriptions will automatically renew for successive billing periods (monthly or annually, as applicable), and will continue to renew unless the Client provides prior written notice of cancellation.

The Client may cancel the Services at any time by providing written notice to Upcroft. To avoid renewal for the next billing period, such notice must be received at least fourteen (14) days prior to the start of the next billing period.

8.3 Either party may terminate this Agreement or an SOW immediately by written notice if the other party:

  1. commits a material breach and fails to remedy that breach within fourteen (14) days of written notice specifying the breach (or, in the case of non-payment, within ten (10) days); or

  2. becomes insolvent, enters administration, or is otherwise unable to pay its debts as they fall due.

8.4 Either party may terminate this Agreement for convenience only after the expiry of the initial subscription term specified in the SOW, by providing not less than thirty (30) days’ written notice to the other party.

8.5 All Fees accrued prior to termination, and any committed Fees under an applicable SOW, remain payable in full and are not affected by termination, including termination for convenience.

8.6 Upon termination or expiry of this Agreement:

  1. all licences and rights granted to the Client cease immediately; (b) the Client must immediately cease accessing and using the Platform; (c) Upcroft will securely delete the Client’s Data within ninety (90) days of termination, unless the Client requests return of the Data in writing within that period, or unless retention is required by applicable law. If no such request is received within that period, Upcroft may proceed with deletion. The Client is solely responsible for exporting its Data prior to termination. Upcroft may, upon written request, provide reasonable assistance to export Data at the Client’s cost; and (d) Upcroft may retain Analytics Data in accordance with Clause 6.4, which right survives termination.

8.7 The following clauses survive termination or expiry of this Agreement: Clause 1 (Definitions), Clause 5 (Intellectual Property), Clause 6.4 (Analytics Data), Clause 6.6 (Data Processor obligations, to the extent required by law), Clause 7 (Fees and Payment), Clause 9 (Warranties), Clause 10 (Limitation of Liability), Clause 11 (Confidentiality), Clause 12 (Indemnity), and Clause 13 (Governing Law and Dispute Resolution).

9. Warranties and Disclaimers

9.1 Each party represents and warrants that: (i) it is duly organised and validly existing under the laws of its jurisdiction; (ii) any individual assenting to this Agreement on its behalf is authorised to do so; and (iii) the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.

9.2 Upcroft warrants that, under normal authorised use, the Platform will perform materially in accordance with its Documentation. As Client’s sole and exclusive remedy for breach of this warranty, Upcroft shall use commercially reasonable efforts to repair or replace the non-conforming functionality. If neither is commercially feasible, Upcroft may terminate the affected SOW and provide a pro-rata refund of prepaid Fees for the unused period. This clause sets out the Client’s sole and exclusive remedy, and Upcroft’s entire liability, for any breach of this warranty.

9.3 The warranty in Clause 9.2 does not apply where non-conformance results from: (i) modification of the Platform by persons other than Upcroft; (ii) misuse or negligence; (iii) use other than in accordance with the Documentation; or (iv) combination of the Platform with equipment or software not authorised by Upcroft.

9.4 Except as expressly set out in this Agreement, the Platform is provided on an “as is” and “as available” basis. To the maximum extent permitted by law, Upcroft expressly disclaims all other warranties, whether express or implied, including any implied warranty of merchantability, satisfactory quality, or fitness for a particular purpose. Upcroft does not warrant that the Platform will be uninterrupted, error-free, or free from security vulnerabilities. Upcroft will not be liable for delays or interruptions inherent in use of the internet or third-party infrastructure.

10. Limitation of Liability

10.1 To the maximum extent permitted by law, neither party shall be liable for any indirect, incidental, special, punitive, or consequential damages, or any loss of revenue, profits, business opportunity, or reputation, or any loss or corruption of data, whether or not such loss was foreseeable.

10.2 To the maximum extent permitted by law, Upcroft’s total aggregate liability arising out of or in connection with this Agreement is limited to the total Fees paid by the Client in the three (3) months immediately preceding the event giving rise to the claim.

10.3 The limitations in clauses 10.1 and 10.2 do not apply to liability arising from:

  1. fraud or wilful misconduct; or

  2. the Client’s obligation to pay Fees or any other amounts due to Upcroft under this Agreement.

10.4 The liability cap set out in this clause applies in aggregate to all claims arising out of or in connection with this Agreement and is not applied on a per-claim or per-incident basis, and survives termination to the extent necessary to resolve such claims.

10.5 Where the Platform is accessed via an Authorised Delivery Partner, Upcroft shall not be responsible or liable for any loss arising from or in connection with:

  1. any services, outputs, or deliverables provided by the Authorised Delivery Partner;

  2. any implementation, configuration, or operation of the Platform performed by the Authorised Delivery Partner;

  3. any failure by the Authorised Delivery Partner to meet its obligations to the Client; or

  4. any acts or omissions of the Authorised Delivery Partner.

11. Confidentiality

11.1 Each party must keep the other party’s Confidential Information confidential and must not use or disclose it except as required to perform its obligations under this Agreement. Each party shall take reasonable measures, at least as protective as those it takes to protect its own similar confidential information, but in no event less than reasonable care.

11.2 A party may disclose Confidential Information:

  1. where required by law or regulation, provided the disclosing party gives the other party prompt written notice (to the extent permitted by law) to enable it to seek a protective order or other appropriate relief; or (b) to its employees, advisers, affiliates, agents, or subcontractors who have a need to know for the purposes of this Agreement and who are bound by confidentiality obligations at least as restrictive as those set out herein. The receiving party shall remain liable for any acts or omissions of such persons.

11.3 Upon termination or expiry of this Agreement, each party must, within thirty (30) days, return or securely destroy the other party’s Confidential Information, except to the extent retention is required by law.

11.4 All right, title, and interest in Confidential Information remains the sole and exclusive property of the disclosing party.

12. Indemnity

The Client indemnifies Upcroft and its officers, employees, contractors, and agents against any claims, liabilities, damages, losses, costs, and expenses (including reasonable legal fees) arising from or in connection with, to the extent caused by:

  1. the Client’s misuse of the Platform in breach of this Agreement;

  2. the Client’s breach of any representation, warranty, or obligation under this Agreement or violation of applicable law; or

  3. any Data provided or authorised by the Client, including any claim that such Data infringes third-party rights or was provided or authorised without required rights, authorisation, or consent.

13. Governing Law and Dispute Resolution

13.1 This Agreement is governed by the laws of Victoria, Australia, and the parties submit to the exclusive jurisdiction of the courts of Victoria.

13.2 In the event of a dispute, the parties must first attempt to resolve it through good faith negotiations for a period of not less than fourteen (14) days following written notice of the dispute

13.3 If the dispute is not resolved through negotiation, either party may submit the dispute to the courts of Victoria.

13.4 Notwithstanding the foregoing, either party may seek equitable or injunctive relief in any court of competent jurisdiction to protect its intellectual property or confidential information.

14. General

14.1 This Agreement, together with any SOW(s), and the Privacy Policy, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, representations, and understandings relating to its subject matter.

14.2Upcroft may update this Agreement from time to time. Material changes will be notified to the Client in writing. Continued use of the Platform following such notice constitutes acceptance of the updated terms.

14.3 Upcroft may assign or novate this Agreement without the Client’s consent in connection with a corporate reorganisation, merger, or sale of all or substantially all of its assets. The Client may not assign or novate this Agreement without Upcroft’s prior written consent, not to be unreasonably withheld.

14.4 All notices must be in writing. Email is a valid form of notice. Notices to Upcroft must be sent to legal@upcroft.ai (or such other address as notified). Notices are deemed received on the next business day after sending, unless a delivery failure notice is received.

14.5 Neither party is liable for any delay or failure to perform due to events beyond its reasonable control, provided it notifies the other party as soon as practicable and uses reasonable efforts to resume performance.

14.6 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will continue in full force and effect.

14.7 A failure or delay in exercising any right or remedy does not constitute a waiver. Any waiver must be in writing.

14.8 Upcroft may use the Client’s name and logo in its marketing materials unless the Client notifies Upcroft otherwise in writing.

Effective date: 2026-04-09
Version: UP-AU-TOS-v1