By subscribingto use the Service you acknowledge that You have read and understood these Terms, the Order Form and the terms of any Additional Termsand agree to be bound by them and that you and have the authority to act on behalf of any personor entity for whom You are using the Service.
This Agreement will remain in effect for the Term specified in the Order Form, or until this Agreement is terminated.
Except as otherwise specified in an order form, subscriptions will automaticallyrenew for a periodequal to the expiring Term unless either party gives the other notice of nonrenewal at least 30 days before the end of the Term. If our fees increase from the Fees payable in the prior term, the increased Fees will apply to the renewedTerm.
to the terms and conditions of this Agreement, We grant You a non-exclusive, non-transferable, non-assignable right to use the Services solely for Your internal business purposes and only as specified in each fully executed Order Form.
3.1. Provision of purchased services
make the Services and Platform available to you pursuant to this Agreement and the applicable Order Forms;
provide our standard support for the Services to You at no additional charge, and/or upgraded support if purchased;
use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for:
planned downtime, of which we shall give advance electronic notice;
any unavailability caused by circumstances beyond our reasonable control, including, for example an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror industrial action, Internet service provider failure or delay, or denial of service attack.
Our Services and your access to the Platform are purchased as subscriptions. You must only use the Services for Your internal business purposes, in accordance with these Terms and any amended Terms conditions posted on the Website.
4.2. Your responsibilities
be responsible for Your compliance with this Agreement, the Order Form and any Special Conditions;
use commercially reasonable efforts to prevent unauthorised access to or use of Services and notify us promptly of any such unauthorised access or use;
use the Services only in accordance with this Agreement, Special Conditions Order Forms and applicable Laws and Government Regulations.
4.3 Access Conditions
You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Us of any unauthorised use of Your passwords or any other breach of security and We will reset Your password and You must take all other actions that We reasonably deem necessary to maintain or enhance the security of Our computing systems and networks and Your access to the Services.
4.4 Usage restrictions
You must not:
Make the Service or Platform available to, or use the Service or Platform for the benefit of, anyone other than You or Users unless expressly stated otherwise in an Order Form;
not attempt to undermine the security or integrity of Our systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
not use, or misuse, the Services in any way which may impair the functionality of the Services, or other systems used to deliver the Services or impair the ability of any other user to use the Services;
not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
not transmit, or input into the Platform, any files that may damage any other person's computing devices or software; software material or Data or that may be offensive, or in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Platform except as is strictly necessary to use either of them for normal operation.
Any use of the Services in breach of this Agreement, Special Conditions or Order Forms by you or users that in our reasonable opinion threatens the security, integrity or availability of our services may result in our immediate suspension of the Services; however we will use commercially reasonable efforts under these circumstances to provide you with notice and an opportunity to remedy such breach or threat prior to such suspension.
4.5. Invited Users
You acknowledge and agree that, subject to any applicable written agreement between the You and Your Invited Users, or any other Applicable Laws;
You determine who is an Invited User and what level of user role access to the Service and Platform that Invited User has;
You are responsible and liable for all Invited Users’ use of the Service;
You control each Invited User’s level of access to the Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
if there is any dispute between You and an Invited User regarding access to the Service, You shall decide what access or level of access to the Service that Invited User shall have, if any, and We take no responsibility for this decision.
Any breach of this Agreement by an Invited User, will be treated by Us as a breach of this Agreement by You, and will be dealt with in accordance with the terms of this Agreement.
You must implement suitable and appropriate terms and conditions for the use of the Services by Invited Users and indemnifyUsagainst any and all costs, claims, damages, compensation and expenses in respect same.
We provides no assurance guarantee or representation that the Services comply with the National Employment Standards, State or National Awards, entitlements or any other workplace laws and You unreservedly releases Usfrom any claims made in relation to workplace laws and regulations.
You warrant and agree that You will disclose and obtain consent and permission from Invited Userin relation to the Servicesability to track and store the information of the Invited User and indemnify Us absolutely in respect of same.
To the extent permitted by law, We accept no liability for the accuracy of any information made available using the Platform. Any reliance on the information available through the Platform is at the Individual’s own risk.
Any consent or statement made by an Individual through the Services is valid and binding unless and until revoked by the Invited User, and We may rely on a consent or statement made through the Services without any need to further verify the veracity of that consent;
The Services may be hosted on servers located outside Australia and may also use email servers located outside of Australia.
You will pay all fees specified in Order Forms. Except as specified in these terms or in an order form fees are based on services subscriptions purchased and not actual usage.
5.2. Prepaid Subscriptions
We will not provide any refund for any remaining prepaid period for a prepaid Fee subscription.
The Fees are exclusive of GST. If any GST is imposed on any supply made under this Agreement, then the party making the supply will collect the GST from the recipient in addition to the Fees. The GST is calculated by multiplying the amount or value of the consideration for the supply by the GST tax rate prevailing as at the date the supply is made.
The recipient will pay the increased amount in the same manner and at the same time as the consideration, which may be due under this Agreement.
The supplier of a taxable supply made in connection with this agreement must issue a tax invoice for the supply in accordance with GST Law to the recipient of the supply
Each party agrees to do all things, including providing invoices or other documentation in such form and detail that may be necessary to enable or assist the other party/ies to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under this Agreement or in respect of any supply under this Agreement.
You indemnify us against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to Us, including (but not limited to) any costs relating to the recovery of any Fees that are due but have not been paid by You.
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.
Each party's obligations under this clause will survive termination of the Agreement.
The provisions of this clause 8.1 shall not apply to any information which:
is or becomes public knowledge other than by a breach of this clause;
is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
is independently developed without access to the Confidential Information.
We shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data.
We shall not:
disclose your Data except, as compelled by law, or as you expressly authorise in writing, or
access your Data except to provide the Services and prevent or address service or technical problems, or at your request in connection with customer support matters.
You agree that is your responsibility to keep your Data up to date.
We may collect, use and disclose all such transactional and performance data for our business purposes (including Software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you.
During the Term, We may disclose Your name as a customer of ours and/or subscriber of the Services, and You hereby grant us the right to display Your name and logo in our marketing materials and on the Platform, in each case in accordance with any branding guidelines you may provide to us.
Title to, and all Intellectual Property Rights in the Services, the Platform and any documentation relating to the Services remain the property of Us (or Our licensors).
We grant You a royalty free, perpetual, licence to use, and otherwise exercise all Intellectual Property Rights in the Software which is required to enable You to fully Utilise the Services and the Software.
8.2. Ownership of Data
Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of Fees when due.
You grant Us a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
You acknowledge that:
You are authorised to use the Services and the Plaform and to access the information and Data that You input into the Plaform, including any information or Data input into the Plaform by any person you have authorised to use the Service.
We have no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Platform on behalf of or for the benefit of anyone else You agree that:
You are responsible for ensuring that You have the right to do so;
You are responsible for authorising any person who is given access to information or Data, and you agree that we have no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
You will indemnify Us against any claims or loss relating to:
Our refusal to provide any person access to Your information or Data in accordance with these Terms,
Our making available information or Data to any person with Your authorisation.
The provision of, access to, and use of, the Services is on an as is basis and at Your own risk.
We do not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. We are not in any way responsible for any such interference or prevention of Your access or use of the Services.
It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used. We take no responsibility for your legal obligations to any employee or contractor employed or contracted by you or otherwise acting under your instruction and direction. You are liable to provide to your own employees the benefits and conditions normally paid or provided to employees pursuant to contracts of service including superannuation contribution, workers compensation cover, sick leave, paid public holidays, Pay As You Go payment summaries, paid annual holidays, long service leave, and a safe working environment.
Nothing in this Agreement shall be construed to create a joint venture, partnership or agency relationship between you and us and neither party shall have the right or authority to incur any Liability debt or cost or enter into any contracts or other arrangements in the name of or on behalf of the other.
9.2. No warranties:
We do not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
You acknowledge that Software is never wholly free from defects, errors and bugs, and We give no warranty or representation that the Software will be wholly free from such defects, errors and bugs.
9.4. Consumer guarantees:
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Platform or these Terms.
To the maximum extent permitted by law, We exclude all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any direct or indirect loss howsoever caused (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
If You suffer loss or damage as a result of Our negligence or failure to comply with these Terms, any claim by You against Us arising from Our negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Fees paid by You in the previous twelve (12) months.
If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with this Agreement.
materially breach this Agreement and do not remedy such breach within thirty (30) days of written notice provided by Us;
fail to pay the Access Fee as required by this Agreement, We may elect to suspend your access to the Service, but is not obliged to do so. We may terminate this Agreement if You have not made the required payments within seven (7) days of notice from Us;
breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any payment of Fees that are more than 30 days overdue); or
or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
We may take any or all of the following actions, in our sole discretion:
Terminate this Agreement and Your use of the Services and the Platform;
Suspend for any definite or indefinite period of time, Your use of the Services and the Platform;
Suspend or terminate access to all or any Data.
If a dispute arises out of or relates to these Terms, Special Conditions or the Order Form, or the breach, termination, validity or subject matter thereof, or as to any related claim in restitution or at law, in equity or pursuant to any statute, the parties to the agreement and the dispute expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation.
The mediation shall be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ACDC.
The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved.
The terms of the Guidelines are hereby deemed incorporated into this agreement.
This clause shall survive termination of this Agreement.
This clause may be pleaded asa plea in bar in any proceeding commenced without the terms ofthe clause being complied with.
14.1. Entire agreement:
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under this Agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
14.4. No Assignment:
You may not assign or transfer any rights to any other person without Our prior written consent.
14.5. Governing law and jurisdiction:
These Term are governed by and construed in accordance with the law of New South Wales and both parties hereby submit to the exclusive jurisdiction of the courts of New South Wales.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Unless otherwise stated within this Agreement, notices to be given to either party shall be in writing and shall be delivered by electronic mail at the email address you supplied to us or to us at our registered office.
The provisions of clauses that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such.
14.9. Electronic Records and Signature:
It is agreed by the Parties that, notwithstanding the use herein of the words “writing,” “execution,” “signed,” “signature,” or other similar words, the Parties intend that the use of an Electronic Signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable law including Electronic Transactions Act 2000 (NSW), or any other similar laws.
Headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership.
Words denoting persons includes natural persons, partnerships, limited Liability partnerships, bodies corporate and unincorporated associations of persons.
References to includes or including or like words or expressions shall mean without limitation.
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