Cloud Service Agreement

00About this agreement

If documents conflict, they apply in this order: (a) the Order Form; (b) clause 6 (Data protection); (c) the rest of these terms; (d) the Security Policy; and (e) the Documentation. An Order Form overrides clause 6 only if it says so expressly.

Previous versions are available on request. A signed Order Form stays on the version it refers to until both parties agree to move to a later one.

01Definitions and interpretation

1. 1.1

   In this agreement:

   • Affiliate means an entity that controls, is controlled by, or is under common control with a party.
   • Agreement means these terms, the Order Form and any documents they incorporate.
   • Alto Foundry means Alto Foundry Pty Ltd (ABN 26 700 585 093).
   • Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Victoria.
   • Confidential Information means information disclosed by or for a party that is marked confidential or that a reasonable person would understand to be confidential. Customer Data is the Customer's Confidential Information. The Service, Documentation and the terms of the Order Form are Alto Foundry's Confidential Information.
   • Customer means the organisation named in the Order Form.
   • Customer Data means data and content submitted to the Service by or for the Customer or its Users, including meeting content, transcripts, notes, decisions and organisation profiles, and any output the Service generates from them.
   • Documentation means the user guides and product information we make available for the Service.
   • Fees means the fees in the Order Form.
   • Order Form means an ordering document or online order for the Service that refers to these terms.
   • Personal Information has the meaning in the Privacy Act 1988 (Cth).
   • Privacy Laws means the Privacy Act 1988 (Cth), the Australian Privacy Principles and any other privacy or data protection law that applies to a party's handling of Customer Data.
   • Security Incident means a confirmed unauthorised access to, or disclosure or loss of, Customer Data in systems Alto Foundry controls.
   • Security Policy means Alto Foundry's security policy published at alto-foundry.com.au/security.
   • Service means Archer Cloud: the hosted Archer service, the Archer desktop app, and related features and updates, as described in the Order Form and Documentation.
   • Sub-processor means a third party Alto Foundry engages that processes Customer Data.
   • Subscription Period means the period in the Order Form, and each renewal period.
   • Usage Data means measures of how the Service is used, such as counts and timings of events, which do not contain Customer Data content.
   • User means an individual the Customer authorises to use the Service, such as an employee or contractor.
2. 1.2

   "Including" and similar words do not limit what comes before them. Headings are for convenience only. Amounts are in Australian dollars. A reference to a law includes that law as amended or replaced.

02The Service

1. 2.1

   Access. During the Subscription Period, Alto Foundry will provide the Service, and grants the Customer a non-exclusive, non-transferable right for its Users to use it for the Customer's internal business purposes, within the limits in the Order Form.

2. 2.2

   Affiliates. The Customer may let its Affiliates' personnel be Users. The Customer is responsible for its Affiliates' use as if it were its own.

3. 2.3

   Users and accounts. The Customer controls which accounts can join its workspace. It is responsible for its Users' compliance with this Agreement and for activity in their accounts, and must tell Alto Foundry promptly of any unauthorised use it becomes aware of.

4. 2.4

   Support. Alto Foundry will provide support by email during Business Days, and any additional support and service levels set out in the Order Form.

5. 2.5

   Changes. Alto Foundry may update the Service. It will not materially reduce the Service's overall functionality, or the overall protection given by the Security Policy, during a Subscription Period.

6. 2.6

   Early access features. Features labelled early access, beta, pilot or preview are optional, may change or be withdrawn, and are provided as they are. Clause 11.3 and any service levels do not apply to them.

03Customer obligations and acceptable use

1. 3.1

   Lawful recording. The Customer is responsible for making sure that every recording made with the Service is lawful, including telling participants and getting any consent required by surveillance or listening devices laws or the Customer's own policies.

2. 3.2

   Notices and rights. The Customer is responsible for giving any privacy notices, and having any rights and consents, needed for Alto Foundry to process Customer Data under this Agreement.

3. 3.3

   Restrictions. The Customer must not, and must not let anyone else:

   • resell, sublicense or provide the Service to third parties, other than as clause 2.2 allows;
   • copy, modify, reverse engineer or decompile the Service, except as the law allows despite this restriction;
   • run security or load tests against the Service without Alto Foundry's prior written agreement;
   • use the Service to build a competing product, or bypass usage limits or security controls;
   • upload malware, or use the Service unlawfully or to infringe anyone's rights; or
   • use AI output from the Service as the only basis for a decision that significantly affects an individual's legal rights, employment, health, credit or access to services, without meaningful human review.
4. 3.4

   Restricted data. Unless the Order Form allows it, the Customer must not use the Service to process government-issued identifiers, payment card data, or information subject to a legal secrecy obligation. The Customer may process sensitive information as part of meeting content, but must tell Alto Foundry before using the Service for meetings that routinely involve health information.

5. 3.5

   Devices. The Customer is responsible for securing the computers its Users run the Archer desktop app on, including encryption, access control and backups, because the app keeps local copies of transcripts for meetings the User is in.

6. 3.6

   Suspension. Alto Foundry may suspend a User's or the Customer's access if it reasonably believes that (a) their use breaches clause 3.3 or creates a security risk to the Service or others, (b) suspension is required by law, or (c) undisputed Fees are more than 30 days overdue and remain unpaid 10 Business Days after Alto Foundry's written notice. Alto Foundry will give notice beforehand where it reasonably can, limit the suspension to what is necessary, and restore access promptly once the cause is fixed.

04Customer Data

1. 4.1

   Ownership. As between the parties, the Customer owns Customer Data.

2. 4.2

   Licence to Alto Foundry. The Customer grants Alto Foundry a non-exclusive licence to host, copy, process and transmit Customer Data only as needed to provide, secure and support the Service under this Agreement, and as the Customer instructs.

3. 4.3

   No training. Alto Foundry will not use Customer Data to train, fine-tune or improve AI models, and will not let its Sub-processors do so.

4. 4.4

   Usage Data. Alto Foundry may use Usage Data to operate, secure, support and improve its products. It will disclose Usage Data outside Alto Foundry only in aggregated form that does not identify the Customer or any individual.

5. 4.5

   Export. During the Subscription Period and for 30 days after it ends, the Customer may export Customer Data using the Service's export features or by asking Alto Foundry, which will provide it in a commonly used, machine-readable format.

6. 4.6

   Accuracy. The Customer is responsible for the accuracy and quality of Customer Data it submits.

05AI features

1. 5.1

   How AI is provided. The Service uses AI models provided through Microsoft Azure OpenAI and called only by the Archer service. Speech recognition and speaker separation run on Users' devices. Meeting audio is not stored or sent to Alto Foundry.

2. 5.2

   Output. AI output can be inaccurate or incomplete. The Customer is responsible for having its Users review output before relying on it. Notes generated by the Service are drafts until a User reviews them.

3. 5.3

   Connected AI apps. If a User connects a third-party AI app to the Service, the app acts as that User. Customer Data the app reads is then handled under the terms between the Customer or User and the app's provider, and that provider is not Alto Foundry's Sub-processor. The Customer controls whether connected apps can read transcripts.

06Data protection

1. 6.1

   Roles. Alto Foundry processes Personal Information in Customer Data on the Customer's behalf, to provide the Service. Each party will comply with the Privacy Laws that apply to it.

2. 6.2

   Instructions. Alto Foundry will use Personal Information in Customer Data only to provide the Service, in line with this Agreement and the Customer's documented instructions, or as the law requires. If the law requires otherwise, it will tell the Customer beforehand unless the law prohibits that.

3. 6.3

   Personnel. Alto Foundry will ensure that people it authorises to access Customer Data are bound by confidentiality obligations and access it only as needed.

4. 6.4

   Security. Alto Foundry will maintain reasonable technical and organisational measures to protect Customer Data, including those described in the Security Policy.

5. 6.5

   Location. Alto Foundry will store and process Customer Data in Australia, including AI processing. Customer Data may be accessed or processed outside Australia only (a) by sign-in and calendar providers that a User chooses to use, (b) by a connected AI app under clause 5.3, or (c) as the Customer instructs.

6. 6.6

   Sub-processors. The Customer authorises the Sub-processors listed in the Security Policy. Alto Foundry will:

   • impose data protection terms on each Sub-processor that protect Customer Data at least as well as this clause 6;
   • give the Customer at least 30 days' notice before adding or replacing a Sub-processor; and
   • remain responsible for its Sub-processors' performance.

   If the Customer reasonably objects to a new Sub-processor on data protection grounds and the parties cannot resolve the objection within 30 days, the Customer may terminate the affected part of the Service and receive a pro-rata refund of prepaid Fees.

7. 6.7

   Security Incidents. Alto Foundry will notify the Customer without undue delay, and in any case within 72 hours, after it confirms a Security Incident. It will give the Customer the information it reasonably needs to assess the incident and meet its own obligations, including under the Notifiable Data Breaches scheme, take reasonable steps to contain and remedy the incident, and keep the Customer updated.

8. 6.8

   Assistance. Taking into account the nature of the processing, Alto Foundry will give the Customer reasonable assistance with (a) requests from individuals to access, correct or delete their Personal Information, (b) privacy impact assessments, and (c) enquiries from a regulator. If Alto Foundry receives a request from an individual about Customer Data, it will refer it to the Customer.

9. 6.9

   Information and review. Once in each 12-month period, and after any Security Incident, Alto Foundry will on request answer a reasonable security questionnaire, and give the Customer the information reasonably needed to show it is complying with this clause 6. Information provided is Alto Foundry's Confidential Information.

10. 6.10

    Deletion. Within 60 days after the end of the export period in clause 4.5, Alto Foundry will delete Customer Data from the Service, except where the law requires it to be kept. Copies in encrypted backups are deleted as the backups expire, within 35 days, and are not restored in the meantime except to recover from a disaster. Alto Foundry will confirm deletion in writing on request.

07Fees, invoicing and GST

1. 7.1

   Fees. The Customer will pay the Fees. Unless the Order Form says otherwise, subscription Fees are invoiced annually in advance, and usage-based Fees monthly in arrears.

2. 7.2

   Payment. Invoices are payable within 30 days of the invoice date, by the method in the Order Form.

3. 7.3

   GST. Fees are exclusive of GST unless stated otherwise. If GST is payable on a supply under this Agreement, the Customer will pay the GST amount at the same time as the Fees, once it has received a valid tax invoice. Terms used in this clause have the meanings in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

4. 7.4

   Other taxes. The Customer will pay any other indirect taxes on the Fees, other than taxes on Alto Foundry's income.

5. 7.5

   Disputes. If the Customer disputes an invoice in good faith, it must tell Alto Foundry in writing before the due date and pay the undisputed part. The parties will try to resolve the dispute within 15 Business Days.

6. 7.6

   Price changes. Alto Foundry may change the Fees for a renewal period by giving the Customer at least 60 days' notice before the renewal.

7. 7.7

   Additional Users. If the Customer adds Users beyond the number in the Order Form, the additional Users are charged at the Order Form rate, pro-rated to the end of the current Subscription Period.

08Term and termination

1. 8.1

   Term. This Agreement starts on the date the Order Form is signed or accepted and continues until every Subscription Period under it has ended.

2. 8.2

   Renewal. Unless the Order Form says otherwise, each Subscription Period renews for a further period of the same length unless either party gives written notice of non-renewal at least 30 days before it ends. Alto Foundry will remind the Customer at least 45 days before an annual renewal.

3. 8.3

   Termination for breach. Either party may terminate this Agreement by written notice if the other party materially breaches it and does not remedy the breach within 30 days after receiving notice describing it, or immediately if the breach cannot be remedied.

4. 8.4

   Insolvency. Either party may terminate this Agreement by written notice if the other party becomes insolvent, has an administrator, receiver or liquidator appointed, or stops carrying on business, to the extent the law allows.

5. 8.5

   Refunds. If the Customer terminates under clause 8.3, or under clauses 6.6 or 15.3, Alto Foundry will refund prepaid Fees for the period after termination.

6. 8.6

   Effect. When this Agreement ends: Users' access to the Service ends; clauses 4.5 and 6.10 apply to Customer Data; each party returns or destroys the other's Confidential Information on request, subject to clause 6.10 and legal record-keeping; and the Customer pays Fees owing up to the date it ends.

7. 8.7

   Survival. Clauses 4, 6, 7 (for amounts owing), 8.6, 10, 12, 13, 14 and 15, and any other clause that by its nature should continue, survive the end of this Agreement.

09Intellectual property

1. 9.1

   Alto Foundry's rights. Alto Foundry and its licensors own the Service, the Documentation and all improvements to them. Nothing in this Agreement transfers those rights to the Customer, other than the right to use the Service under clause 2.

2. 9.2

   Customer's rights. The Customer and its licensors own Customer Data. Nothing in this Agreement transfers those rights to Alto Foundry, other than the licence in clause 4.2.

3. 9.3

   Feedback. Alto Foundry may use feedback about its products without restriction or obligation, provided it does not identify the Customer or its Users as the source without consent.

10Confidentiality

1. 10.1

   Obligations. Each party will use the other's Confidential Information only to perform or receive the benefit of this Agreement, will not disclose it except as this clause allows, and will protect it with at least reasonable care.

2. 10.2

   Permitted disclosure. A party may disclose Confidential Information to its and its Affiliates' employees, contractors, Sub-processors and professional advisers who need to know it and are bound by confidentiality obligations at least as protective as this clause.

3. 10.3

   Exclusions. Confidential Information does not include information that is or becomes public through no fault of the recipient, that the recipient already knew or independently developed, or that it lawfully receives from a third party without a duty of confidence.

4. 10.4

   Required disclosure. A party may disclose Confidential Information if required by law or a stock exchange, after giving the other party reasonable notice where the law allows, so it can seek protection.

11Warranties

1. 11.1

   Mutual. Each party warrants that it has the authority to enter this Agreement, and will comply with the laws that apply to its performance of it.

2. 11.2

   Customer. The Customer warrants that it has the rights, notices and consents needed for Alto Foundry to process Customer Data under this Agreement.

3. 11.3

   Alto Foundry. Alto Foundry warrants that during the Subscription Period the Service will perform materially as described in the Documentation, it will provide the Service with due care and skill, and it will use industry-standard measures to keep malicious code out of the Service.

4. 11.4

   Remedy. If the Service does not meet clause 11.3 and the Customer tells Alto Foundry within 45 days of becoming aware of it, Alto Foundry will use reasonable efforts to correct it. If it cannot do so within 30 days, the Customer may terminate the affected Service and receive a refund of prepaid Fees for the period after termination. Subject to clause 12.2, this is the Customer's exclusive remedy for breach of clause 11.3.

12Disclaimer and Australian Consumer Law

1. 12.1

   Disclaimer. Except as expressly set out in this Agreement, and to the extent the law allows, Alto Foundry does not warrant that the Service will be uninterrupted or error-free, or that AI output will be accurate, and excludes all other warranties, conditions and guarantees.

2. 12.2

   Australian Consumer Law. Nothing in this Agreement excludes, restricts or modifies any guarantee, right or remedy under the Australian Consumer Law or other law that cannot be excluded. Where the law allows Alto Foundry to limit its liability for failing to meet such a guarantee, its liability is limited to supplying the services again or paying the cost of having them supplied again.

13Limitation of liability

1. 13.1

   General cap. Subject to clauses 13.3 and 13.4, each party's total liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence), under statute or otherwise, is limited to the General Cap in Schedule 1.

2. 13.2

   Increased cap. For an Increased Claim, each party's total liability is limited to the Increased Cap in Schedule 1. This amount is in addition to, not part of, the General Cap. An Increased Claim is a claim arising from a party's breach of clause 6 (Data protection) or clause 10 (Confidentiality).

3. 13.3

   Excluded loss. Except for an Increased Claim, neither party is liable for loss of profit, revenue, goodwill or anticipated savings, or for indirect or consequential loss. Reasonable costs of notifying affected individuals and regulators, and of restoring Customer Data, after a Security Incident caused by Alto Foundry's breach are direct losses.

4. 13.4

   Unlimited liability. Clauses 13.1 to 13.3 do not limit liability for: (a) death or personal injury caused by negligence; (b) fraud or wilful misconduct; (c) a party's obligations under clause 14 (Indemnities); (d) the Customer's obligation to pay Fees; or (e) any liability that cannot be limited by law.

5. 13.5

   Contribution. Each party's liability is reduced to the extent the other party, or its personnel, caused or contributed to the loss. Each party must take reasonable steps to mitigate its loss.

14Indemnities

1. 14.1

   By Alto Foundry. Alto Foundry will defend the Customer against any third-party claim that the Service, as provided by Alto Foundry and used in line with this Agreement, infringes that third party's intellectual property rights, and will pay the damages and costs finally awarded, or agreed in a settlement Alto Foundry approves.

2. 14.2

   By the Customer. The Customer will defend Alto Foundry against any third-party claim arising from (a) Customer Data, including a claim that a recording was made unlawfully, or (b) the Customer's breach of clause 3.3, and will pay the damages and costs finally awarded, or agreed in a settlement the Customer approves.

3. 14.3

   Process. The party seeking protection must notify the other promptly, let it control the defence and settlement (provided no settlement admits fault or imposes obligations on the protected party without its consent), and give reasonable help at the other party's cost.

4. 14.4

   Exclusions. Clause 14.1 does not apply to claims arising from Customer Data, third-party services, modifications not made by Alto Foundry, or use combined with products Alto Foundry did not supply where the claim would not have arisen otherwise.

5. 14.5

   Mitigation. If the Service is, or Alto Foundry reasonably believes it may be, subject to an infringement claim, Alto Foundry may obtain the right for the Customer to keep using it, modify it so it doesn't infringe without materially reducing its functionality, or, if neither is reasonably possible, terminate the affected Service and refund prepaid Fees for the period after termination.

15General

1. 15.1

   Entire agreement. This Agreement is the entire agreement between the parties about its subject matter. Terms in a purchase order or other Customer document do not apply, even if Alto Foundry accepts or signs it.

2. 15.2

   Variation and waiver. This Agreement may be varied only in writing signed or accepted by both parties. A failure or delay in exercising a right is not a waiver of it. If a provision is unenforceable, it is read down or severed and the rest continues.

3. 15.3

   Force majeure. Neither party is liable for a delay or failure caused by events beyond its reasonable control, other than an obligation to pay money, provided it notifies the other party and takes reasonable steps to limit the effect. If the event prevents the Service from operating materially for more than 30 consecutive days, either party may terminate the affected Service by written notice.

4. 15.4

   Assignment and subcontracting. Neither party may assign this Agreement without the other's consent, which must not be unreasonably withheld, except to a successor in a merger, restructure or sale of all or substantially all of the relevant business, with notice. Alto Foundry may subcontract, and remains responsible for its subcontractors.

5. 15.5

   Publicity. Neither party may use the other's name or logo in marketing without its prior written consent.

6. 15.6

   Notices. Notices must be in writing and sent to the addresses in the Order Form, or for Alto Foundry to hello@alto-foundry.com.au. An email notice is received when it enters the recipient's information system, unless the sender receives a delivery failure.

7. 15.7

   Relationship. The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency or employment relationship, or confer rights on third parties.

8. 15.8

   Compliance. Each party will comply with anti-bribery laws, including Division 70 of the Criminal Code Act 1995 (Cth), with Australian sanctions laws, and, where it applies, the Modern Slavery Act 2018 (Cth).

9. 15.9

   Disputes. Before starting court proceedings (other than for urgent interim relief), a party must give the other written notice of the dispute, and senior representatives of both parties must meet and try in good faith to resolve it within 20 Business Days. If they cannot, either party may refer it to mediation administered by the Resolution Institute, or start proceedings.

10. 15.10

    Governing law. This Agreement is governed by the laws of Victoria, Australia, unless Schedule 1 says otherwise. Each party submits to the non-exclusive jurisdiction of the courts of Victoria and the courts that can hear appeals from them.

11. 15.11

    Execution. An Order Form may be signed electronically and in counterparts, which together form one document.

S1Schedule 1: Order Form variables

The Order Form may set the following. Where it doesn't, these defaults apply.