Terms of Service

1. Parties & acceptance

These Terms of Service (the "Terms") form a binding agreement between Absence Pty Ltd (ABN 886 7966 5356) ("Absence", "we", "us" or "our") and the organisation that subscribes to or uses the Service ("Customer" or "you").

By creating an account, signing in, or otherwise using the Service, you accept these Terms and agree to be bound by them. If you accept these Terms on behalf of an organisation, you warrant that you are at least 18 years old and that you are authorised to bind that organisation, and references to "you" mean that organisation.

2. The Service

The "Service" is the Absence / UPA Tracker software-as-a-service platform made available at absence.cloud and app.absence.cloud, including any associated mobile interfaces, application programming interfaces, documentation and support, and any updates to them from time to time.

The Service is designed to help Australian businesses log unplanned absences, run return-to-work conversations, and report on absence patterns. It is a tool to support, not replace, your obligations as an employer under the Fair Work Act 2009 (Cth), the National Employment Standards, applicable awards or enterprise agreements, workplace health and safety laws, and the Privacy Act 1988 (Cth). You remain responsible for those obligations.

3. Accounts & access

To use the Service you must create an account. You agree to provide accurate, current and complete information at sign-up, to keep that information up to date, and to maintain the confidentiality of your login credentials. You are responsible for all activity that occurs under your account, including the activity of any user you invite. You must notify us promptly at Jesse@absence.cloud if you become aware of any unauthorised access to your account or any other security incident.

The Service is intended for use by businesses and not by consumers in a personal or domestic capacity. Use of the Service by individuals under 18 is not permitted.

4. Plans, the free tier and trials

The Service is offered on a tiered subscription basis (currently: Free, Starter, Growth, Pro, Scale and Enterprise), as described on our pricing page. We may change the plans, headcount bands, features and prices from time to time in accordance with clause 16.

The Free tier permits use for up to five (5) employee records and is provided "as is", without any availability or support commitments. Some paid plans include a 14-day Pro trial, which automatically converts to a Free tier subscription at the end of the trial unless you choose a paid plan. We do not require a credit card to begin a trial or use the Free tier.

5. Fees, GST, billing & renewal

Paid plans are billed in advance, monthly or annually, in Australian dollars (AUD). All amounts shown on our pricing page are inclusive of GST (Goods and Services Tax) for Australian customers, except where expressly stated otherwise. We will issue a valid tax invoice for each charge as required under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Subscriptions automatically renew at the end of each billing period at the then-current price for your plan, unless you cancel before the renewal date. By providing payment details you authorise us (and our payment processor) to charge the nominated payment method for each renewal. If a payment fails, we may suspend access to paid features after providing reasonable notice and an opportunity to update your payment details.

If you exceed the headcount limit for your plan, we will notify you and may upgrade your plan to the next tier on a pro-rated basis from the date of notification, unless you reduce headcount within a reasonable period.

6. Cancellations & refunds

You can cancel a paid subscription at any time from your account settings or by writing to us. Cancellation takes effect at the end of the current billing period: monthly plans continue until the end of the paid month, and annual plans continue until the end of the paid year.

We do not offer pro-rated refunds for unused portions of a billing period that you have already paid for, except where required by the Australian Consumer Law (see clause 13) or where we determine, in our discretion, that a refund is appropriate (for example, where the Service has experienced a significant unplanned outage materially affecting your use).

7. Acceptable use

You agree not to (and not to permit any other person to):

• use the Service in a way that breaches any law (including the Privacy Act, the Fair Work Act 2009 (Cth), anti-discrimination laws, or the Spam Act 2003 (Cth));
• upload to or transmit through the Service any data that is unlawful, defamatory, harassing, infringing of third-party rights, or that contains malicious code;
• attempt to gain unauthorised access to the Service, any other Customer's account, or any underlying systems;
• probe, scan, penetration-test or otherwise interfere with the Service's security or integrity, except with our prior written consent;
• resell, sublicense, lease, rent, or otherwise commercially exploit the Service to or for the benefit of any third party that is not your own organisation;
• reverse engineer, decompile or disassemble any part of the Service, except to the extent that applicable law expressly permits;
• use the Service to make decisions about an employee (such as termination or formal disciplinary action) without independently verifying the underlying facts and complying with your obligations under applicable workplace and privacy laws; or
• copy, frame or mirror any part of the Service for any purpose other than your internal business use.

8. Your data ("Customer Data")

"Customer Data" means all data, content, information and records (including personal information about your employees and other personnel) that you or your authorised users submit to, upload to, or generate within the Service. As between you and us, you own all Customer Data. We do not claim any ownership of it.

You grant us a limited, non-exclusive, royalty-free, worldwide licence to host, store, transmit, display, process and back up Customer Data, in each case solely for the purposes of providing, securing, supporting and improving the Service, and for the other purposes set out in our Privacy Collection Notice & Privacy Policy. This licence ends when the relevant Customer Data is deleted from the Service, except to the extent we are required by law (or by reasonable security and backup retention practices) to keep it.

You are responsible for the accuracy, quality and legality of Customer Data, for having all necessary consents, notifications and lawful bases to provide it to us, and for the way you and your authorised users use the Service. In particular, you acknowledge that the Service may receive sensitive employee information (including information that relates to a person's health) and you agree to handle that information in accordance with the Privacy Act.

9. Privacy

Our handling of personal information is set out in our Privacy Collection Notice & Privacy Policy, which forms part of these Terms. In handling personal information that we hold for or on behalf of you about your employees, we act on your reasonable instructions as set out in these Terms and in your use of the Service.

We will notify you without undue delay if we become aware of an eligible data breach (within the meaning of Part IIIC of the Privacy Act) affecting your Customer Data, and we will reasonably assist you to meet your own notification obligations under that scheme.

10. Security

We take reasonable and appropriate technical and organisational measures to protect the Service and Customer Data, including encryption in transit using TLS, encryption at rest, role-based access controls, hashed passwords, secure session cookies, cross-site request forgery protection, audit logging and least-privilege access for our personnel. Customer Data is hosted in Australia.

You are responsible for the security of your own credentials, your network, your endpoints, and the configuration of role-based access for your authorised users within the Service.

11. Confidentiality

Each party may receive information about the other that is non-public and that a reasonable person would treat as confidential, including Customer Data and details of the Service that are not generally known (the "Confidential Information"). Each party agrees to use the other's Confidential Information only for the purpose of performing or receiving the Service under these Terms, to protect it with at least the same degree of care it uses for its own confidential information (and no less than a reasonable degree of care), and not to disclose it to a third party except to its personnel and professional advisers on a need-to-know basis under equivalent obligations of confidence, or as required by law.

12. Service availability & support

We aim to keep the Service available to you 24 hours a day, but we do not guarantee uninterrupted access. The Service may be unavailable during scheduled maintenance, in the event of a fault, or due to circumstances outside our reasonable control (see clause 21). Standard plans are provided without a specific service-level commitment. Enterprise plans may include a separately documented service-level agreement.

Paid plans include email-based support during Australian Eastern Standard Time (AEST) business hours. Free plans receive best-effort community-style support. We will provide such support consistently with our published support policy, as updated from time to time.

13. Australian Consumer Law & consumer guarantees

Certain laws (including the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) may give you rights and impose guarantees in relation to the Service that cannot be excluded, restricted or modified by these Terms ("Non-Excludable Rights"). Nothing in these Terms excludes, restricts or modifies any Non-Excludable Right.

Where we are entitled to limit our liability for breach of a Non-Excludable Right in relation to a service that is not of a kind ordinarily acquired for personal, domestic or household use, our liability is, at our option, limited to: (a) supplying the Service again; or (b) the payment of the cost of having the Service supplied again.

14. Disclaimers

Subject to clause 13, the Service is provided on an "as is" and "as available" basis. To the maximum extent permitted by law, we exclude all express or implied representations, warranties, conditions and terms of any kind in relation to the Service, including any warranty that the Service will be uninterrupted, error-free, free of harmful components, secure against unauthorised access, or that it will meet your specific business or legal requirements.

The Service does not provide legal, HR, medical or industrial-relations advice. Statistics, benchmarks and educational content displayed in or alongside the Service are general in nature and are not a substitute for professional advice.

15. Limitation of liability

Subject to clause 13, and to the maximum extent permitted by law:

• neither party will be liable to the other for any indirect, incidental, special, consequential, exemplary or punitive loss or damage, or for any loss of profits, loss of revenue, loss of business, loss of anticipated savings, loss of goodwill, or loss or corruption of data, in each case howsoever arising (whether under contract, tort (including negligence), statute, equity or otherwise), even if that party has been advised of the possibility of such loss or damage; and
• our total aggregate liability arising out of or in connection with these Terms or the Service (whether under contract, tort (including negligence), statute, equity or otherwise) is limited to the total amount of fees paid by you to us under these Terms in the twelve (12) months immediately preceding the event giving rise to the liability (or, where you are on the Free tier and have paid us no fees, A$100).

16. Changes to the Service or these Terms

We may modify the Service from time to time, including by adding, changing or removing features. We will not materially reduce the core functionality of a paid plan during a paid billing period without your consent or a refund of the unused portion.

We may amend these Terms by giving you at least 30 days' notice (by email or by an in-product notice). If you do not agree with a change, you may cancel your subscription before the change takes effect and we will refund any pre-paid fees for the unused portion of your billing period. Your continued use of the Service after the change takes effect is taken as your acceptance of the amended Terms.

17. Suspension & termination

You may cancel your subscription at any time as described in clause 6.

We may suspend or terminate your access to the Service, in whole or in part, if: (a) you materially breach these Terms and do not remedy the breach within 14 days of being notified; (b) you fail to pay an amount that is due and payable and do not pay it within 14 days of being notified; (c) we are required to do so by law; or (d) we reasonably believe that your continued use poses a security risk to the Service or to other Customers.

For 30 days after termination (the "Export Window") we will, on request, provide you with a reasonable means to export your Customer Data in a machine-readable format. After the Export Window, we may delete your Customer Data from active systems. Limited residual copies (including in backups, security logs and other systems) may persist for a reasonable period in accordance with our standard retention practices and applicable law, and will continue to be protected in accordance with these Terms and our Privacy Collection Notice & Privacy Policy.

Clauses that by their nature should survive termination (including clauses 8, 9, 11, 13–15, 17, 18, 20 and 22) survive termination of these Terms.

18. Intellectual property

As between you and us, we (and our licensors) own all intellectual property rights in the Service, including the underlying software, documentation, brand, design and trade marks. Subject to your compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable, revocable licence to access and use the Service for your internal business use during your subscription term. No other rights are granted by implication, estoppel or otherwise.

You may, from time to time, provide us with feedback or suggestions about the Service. You grant us a perpetual, irrevocable, royalty-free, worldwide licence to use that feedback to operate and improve the Service, without any obligation to you.

19. Publicity

We will not use your name, logo or other trade marks in our marketing without your prior written consent (email is sufficient). If you give us consent, you may revoke it at any time on reasonable notice.

20. Indemnity

To the maximum extent permitted by law (and subject to clause 13), you agree to indemnify us against any third-party claim, action, demand or proceeding brought against us, and any related loss, damage, cost or expense (including reasonable legal costs), to the extent it arises out of or relates to: (a) your breach of clause 7 (Acceptable use); (b) your breach of clause 8 (Customer Data), including any allegation that Customer Data you uploaded infringes the rights of, or has been unlawfully collected from, a third party; or (c) your breach of any law in connection with your use of the Service.

21. Force majeure

Neither party is liable for any failure or delay to perform an obligation under these Terms (other than an obligation to pay money) to the extent that the failure or delay is caused by an event beyond that party's reasonable control, including acts of God, fire, flood, earthquake, pandemic, war, civil unrest, terrorism, industrial dispute, network or telecommunications failure, denial-of-service attack, or action by a government or regulator. The affected party must take reasonable steps to mitigate the effect of the event.

22. Governing law & jurisdiction

These Terms are governed by the laws of New South Wales, Australia. Each party submits to the exclusive jurisdiction of the courts of New South Wales and the courts competent to hear appeals from them, in respect of any dispute arising out of or in connection with these Terms.

23. Dispute resolution

Before commencing court proceedings (other than for urgent injunctive or equitable relief), the parties will use reasonable endeavours to resolve any dispute by good-faith discussion between senior representatives within 30 days of one party giving the other written notice of the dispute.

24. Notices

Notices to us must be sent to Jesse@absence.cloud. Notices to you may be sent to the email address associated with your account or displayed as an in-product notice, and are taken to be received on the day of sending.

25. General

• Assignment. You may not assign or novate these Terms without our prior written consent. We may assign or novate these Terms (in whole or in part) to a related body corporate or to an acquirer of all or substantially all of our business or assets.
• Subcontracting. We may use subcontractors (including the service providers listed in our Privacy Collection Notice & Privacy Policy) to perform our obligations, but we remain responsible for their acts and omissions.
• Severability. If any provision of these Terms is held to be invalid, illegal or unenforceable, it will be read down to the minimum extent necessary, or severed, and the remainder of these Terms will continue in full force.
• Waiver. A failure to enforce a right is not a waiver of that right.
• No partnership. Nothing in these Terms creates a partnership, joint venture, employment or agency relationship between the parties.
• Entire agreement. These Terms (including the Privacy Collection Notice & Privacy Policy and any plan-specific terms expressly agreed in writing) are the entire agreement between the parties about its subject matter and supersede all prior representations and agreements.

26. Contact

Absence Pty Ltd · ABN 886 7966 5356 · Jesse@absence.cloud · absence.cloud