JGID BUSINESS MANAGEMENT SOFTWARE - SERVICE AS A SOFTWARE - (SaaS) WEBSITE SERVICES AGREEMENT TERMS & CONDITIONS
This JGID BMS SaaS Website Services Agreement is entered into between JGID BMS PTY LTD (ACN: 607 149 422 / ABN: 86 607 149 422 ) an Australian company, of 57D Addison Road, Manly, New South Wales 2095 (“JGID BMS”, “Company” or “We”), and you the Customer (“Customer” or “You”).
The person entering into this Agreement as or on behalf of Customer warrants that they are authorised to enter a binding legal agreement and that they agree to these Website Terms and Conditions (“Website T&C”). These Website T&C together with the corresponding Quote, Order Form and SaaS Services Agreement and Schedules thereto together constitute the entire Agreement (“the Agreement”) between JGID BMS and you the Customer.
JGID BMS may update and amend these Website T&C from time to time without notice to you although we shall endeavour to provide 30 days notice of forthcoming changes where time permits. New and updated services and software that we may issue are also subject to the Website T&C and the Agreement.
Services: JGID BMS provide access for Customer’s Authorised Users or Company Profiles to the JGID Business Management Software Services provided in the cloud as Software as a Service and accessed via the Company’s Portal at myjgid.com, utilising a password provided by the Company; and provision of the related Implementation, Training and Materials, and Support Services; for use by the Customer for the Permitted Purpose of assisting the efficient management of the Customer’s business (the “Services”).
The Company’s Software as a Service currently includes the following Modules: CRM (Customer Relationship Management), Enquiry, Opportunity, Quote, Job, Invoice, Calendar, Tasks, Notes, JHA, DLS, Worksheet, Timesheet, Checklist.
Additional Modules may be added to the Software from time to time and made available to the Customer on the terms and conditions herein or as otherwise agreed between the Parties in writing.
Additional Users/People within the Customer’s organisation can be activated for Services access up to the number catered for in the relevant package upon written request by the Customer and upon payment of any corresponding additional per User Service fees or upgraded Services package fees. Activation must be requested via email to email@example.com or by telephone to +61 (0)2 8916 6150. For more information related to pricing please refer to our pricing page at https://jgid.com/pricing-plans or request a quote via email on firstname.lastname@example.org or by telephone on +61 (0)2 8916 6150.
Service Level Agreement
The Services Availability shall be achieved to 99% during each calendar year of the Services Term.
“Services Availability” means the number of minutes in a year that the key components of the SaaS Services are operational as a percentage of the total number of minutes in such year, excluding downtime resulting from (a) scheduled maintenance; (b) events of Force Majeure; (c) malicious attacks on the system that disable or pose an unacceptable risk to provision of Services; (d) issues associated with Customer’s computing devices or systems, local area networks or internet service provider connections; (e) inability to deliver services because of acts or omissions of Customer or any User; (f) public holidays and weekends.
If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation.
Company reserves the right to take the Services offline for scheduled maintenance for which Customer has been provided reasonable notice and Company reserves the right to change its maintenance windows upon prior notice to the Customer.
Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Services Availability shall be that for each period of downtime lasting longer than one hour (60 minutes) attributable to failure or default of SaaS Services, Company will credit Customer 1% of Monthly Service fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Such downtime shall begin to accrue as soon as Customer notifies Company that downtime is taking place, and continues until the availability of the Services is restored. In order to receive such downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement. Downtime credits will not accrue in relation to downtime that is due to faults or failures in Customer’s systems or actions or failure to act, nor in relation to other causes not attributable to the adequacy of the Services. Company may elect to issue downtime credits in the form of extension of time rather than for the corresponding monetary value.
Company will provide Technical Support to Customer via both telephone and electronic mail on business days (Monday to Friday) during the hours of 9:00 am through 5:00 pm AEST, with the exclusion of public holidays and weekends (“Support Hours”).
Customer may initiate a Request for Support at any time (24/7) by calling +61 (0)2 8916 6150.
Company will only respond to Requests for Support during Support Hours.
Company will use commercially reasonable efforts to respond to all Requests for Support within one (1) business day.
Training and Implementation
Implementation and Training services will commence following payment of the Implementation and Training Fee (+GST) and the first Monthly or Yearly Services Fee (+GST) in advance.
Implementation shall involve provisioning or set-up of user accounts as per the agreed pricing package, establishing payment channels, assessment of Customer’s profile, establishment of appropriate training programme; and then after training, to demonstrate to Customer how to use the Services in their business.
The designated Users in the Customer’s organisation must undertake training to implement the Use of the SaaS Services in its business. An appropriate timetable for training will be ascertained and established by the Company at the Quote or Evaluation stage and will generally depend on the size of the Customer’s organisation and the number of people to be trained.
Training will take place over a period of approximately 2-8 weeks depending on the size and nature of the Customer’s business and the number of people to be trained as Users.
Training will include a combination of on-site instruction and/or remote screen sharing, as well as telephone and online support if required.
Training shall include at least two (2) training sessions of three (3) hours per week until completed to a satisfactory level in order to maintain 110% Money Back Guarantee on Implementation and Training.
Training sessions must be booked at least 10 days in advance to ensure availability. Blocks of 3 consecutive weeks should be allowed for training in order to maintain the continuity and efficacy of the training. Failure to complete the training programme within the allotted time and to meet the other terms and conditions voids the 110% Money Back Guarantee on Implementation and Training.
Note that the word “Training” refers to training in the use of the JGID BMS SaaS Services and not to any other sort of training.
Charges for Services and Support exceeding core Service Capacity, Service Level Agreement and Support levels: refer to Pricing page
Charges for Services and Support exceeding core Service Capacity, Service Level Agreement and Support levels are to be calculated on a time spent basis, currently @ AUD$125 per hour + GST, subject to change from time to time by notice from the Company; includes time spent on advice by telephone, email, or other electronic communications, face to face meetings, travelling time; and related miscellaneous disbursements.
01 Saas Services, Implementation, Training and Support
- Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Agreement.
- As part of the registration process, Customer will identify an Administrative User name and password for Customer’s account with the Company. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
- Company will use commercially reasonable efforts to provide Customer the Implementation and Training and Support services as described above.
- Company provides 110% Money Back Guarantee on Quoted Implementation programs to the Customer if it cannot successfully implement the Use of the Services in the Customer’s business after 3 months from the Commencement Date and completion of the Implementation and Training Program, subject to terms and conditions of this Agreement.
- The Customer agrees to comply with the training requirements and timetable determined by the Company to be appropriate to the Customer in the Quote (for example, according to its size the Implementation and Training the length of Implementation and Training may be longer). The 110% Money Back Guarantee in relation to fees paid for Implementation Services is voided by (a) failure to attend more than one (1) training session or (b) having to reschedule more than one (1) training session, or (c) by failing to switch off phones during a training session, or (d) if less than two implementation sessions per week are performed during the one-on-one training sessions; or (e) if homework is not completed in between lessons; or (f) if the inability to successfully implement the Use of the Services is due to some other fault or failure on the Customer’s side, whether technical or otherwise, including non-use or no data entry by the Customer between lessons, or other circumstances causing inability to deliver the Services.
02 Restrictions and Responsibilites
- Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software other than for the permitted purposes of this Agreement; or remove any proprietary notices or labels; copy, reproduce, sell or exploit any part of the Services, or the use of and access to the Services, apart from the Permitted Purposes, without the express written consent of the Company; nor modify, adapt or hack the Service or otherwise falsely deal with the Services; nor upload, host or otherwise deal with unsolicited email; nor transmit worms, virus or code of a destructive nature and Customer warrants that its security is sufficient to protect against such.
- With respect to any of Company’s Software or Materials that may be necessary to distribute or provide to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software and Materials during the Term only in connection with the Services for the Permitted Purposes.
- Customer represents, covenants, and warrants that Customer will use the Services and Materials only for the permitted purposes of this Agreement and in compliance with Company’s standard * policies then in effect (the “Policies”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses (including consequential losses), liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged breach of this Agreement or otherwise from Customer’s use of the Services.
- Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
- Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, add-ons such as Dropbox, Stripe, Maestrano or any other 3rd party software(s), and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
03 Confidentiality; Proprietary Rights
- The Customer acknowledges and agrees that the Services, Software and the Materials contain and communicate Confidential Information and Proprietary Information which shall not be disclosed to any third party without the written consent of the Company.
- All Confidential Information obtained by either of the Parties from and/ or about the other Party as a result of the negotiation, execution or implementation of this Agreement shall remain Confidential Information, and must not be disclosed to any third party (other than independent accountants, auditors or lawyers, who are under a duty of confidentiality and who have a need to know such information) without the prior written consent from the other Party, unless such information is generally known or publicly accessible at the time of disclosure.
- Notwithstanding clause 3.4(a), disclosure shall be permitted to the extent required by court order or law enforcement, or as may be required for the performance of the Services, and the disclosing Party shall notify the other Party in advance of its intention to disclose all or a portion of the Confidential Information.
- The terms of this clause shall be binding on the Parties and shall survive the expiration or earlier termination of this Agreement.
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
- Customer shall own all right, title and interest in and to the Customer Data except as provided in this Agreement. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing, including any changes to the Master Matrix whether made by Company or Customer.
04 Intellectual Property
- The Customer acknowledges and agrees that Company owns or is authorised to use all Intellectual Property in and related to the Services, including all rights in the Software, all copyrights in website and Materials and other Company works and data, trademarks, domain names, trade secrets. Customer agrees not to challenge in any way the ownership or validity of the Intellectual Property Rights in the Services, Software and the Materials, or other Company works or data, nor to assert any claim to such rights, nor to assist others in such challenges or claims.
- The Customer must not alter, remove or obscure any trade mark or copyright symbol or legend or other proprietary mark on the Software or the Materials.
- Customer owns Intellectual Property in Customer data and other Customer works that are created or uploaded by Customer, except that in relation to suggestions or improvements to the Services, Software and Materials created or uploaded by the Customer, the Customer grants the Company an irrevocable royalty free worldwide licence to use same.
- Customer warrants that they own or are permitted to use the Intellectual Property in all data and works uploaded by Customer to Company’s website in using the Services. Customer shall defend Company against any claim, demand, suit or proceeding brought against Company alleging that Customer’s Content, data or works infringes or misappropriates the Intellectual Property of one or more third parties, or is otherwise in breach of this Agreement. Customer shall indemnify Company for all loss, consequential loss and/or damages suffered or awarded against Company. Company shall promptly notify Customer of any such claim and allow Customer to defend and/or settle such claim/s, on the basis of the aforementioned indemnity and that any such settlement unconditionally releases Company from all liability.
- Company reserves all rights in all aspects of the Services, including copyright in the appearance, look and feel of the website and Materials.
05 Payment of Subscriptions and Service Fees
- Customer will pay Company the Service fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Service Fees”). If Customer’s use of the Services exceeds the Service Capacity, Service Level Agreement or Support Terms stated in this Agreement (including in the Order Form) or otherwise requires the payment of additional fees/overages (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees calculated in the manner provided in the Pricing page of the Website.
- Company reserves the right to change the Service Fees and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email); however Company also reserves the right to change the Service Fees at its absolute discretion.
- If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
- Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company prior to commencing Implementation and/or Training, or in relation to payment of monthly services in advance, within seven (7) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 2.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Service. Customer shall be responsible for payment of all taxes and duties associated with the Services, other than Australian taxes based on Company’s net income.
- For the avoidance of doubt, the Customer will pay the Monthly or Yearly Services Fees to the Company from the Commencement Date, whether or not the Customer actually uses the Software and/ or the Materials.
- The Customer shall pay the Company by direct deposit (including by way of credit card by prior arrangement) to a bank account notified by the Company. The Customer will be liable for all bank charges for transactions of this nature including, without limitation, wire transfer and other charges.
- If the Customer fails to remit two consecutive payments of Services Fees to the Company on or before their due date, the Company reserves the right to terminate this Agreement.
- The Customer’s responsibility for any deduction, withholding, income or similar tax relating to or imposed on Services Fees will include, but not be limited to, responsibility for any retroactive assessments of such deductions or withholdings that may be made at any time during or after the Term of this Agreement by any competent tax authorities of the Territory.
- The Company shall be entitled, by notice to the Customer, to increase the Monthly Services Fees and other Services Fees as and when Company deems appropriate.
Invoicing and payment
- The Company will issue the Customer a Tax Invoice for payment of the Implementation Fee on or as soon as practicable after the Effective Date of this Agreement.
- The Company will issue the Customer a Tax Invoice on a monthly basis in advance in respect of the Monthly Services Fee for the next month. The monthly terms run from the Commencement Date.
- The Customer agrees to pay the Implementation Fee and Monthly Services Fee within the Payment Period. The Customer acknowledges that failure to comply with these conditions may result in the termination of this Agreement.
- The Company reserves the right to engage a Credit and Collections Agency of its choosing to assess the Customer’s fitness to pay the Service Fees, and to recover any losses arising from the Customer’s failure to meet its obligations under this Agreement.
Termination Due to Overdue Payment
Should any subscription payment remain outstanding for a period exceeding 14 days from its due date, the Company expressly reserves the right to suspend access for all users associated with the account until all dues are settled.
Annual Subscription Policy
All annual subscription fees, once paid, are non-refundable under any circumstances. This applies irrespective of account usage frequency or any subsequent decrease in the number of required users during the subscription period. In instances where there is a need to increase the user quota, the associated fees will be calculated on a pro-rata basis and will be applicable for the remaining duration of the current monthly or yearly subscription period, contingent on the specific subscription plan chosen by the customer.
06 Term and Termination
- Subject to earlier termination as provided below, this Agreement is for the Services Term corresponding to the selected Pricing Package and shall be automatically renewed for additional periods of the same duration unless the Agreement is terminated. Termination and cancellation of the Agreement requires at least 30 days written notice to the other party, except that Company may at its sole discretion and without notice to you immediately suspend or terminate your account and your permission to use the Services in the event of Violation of the Website T&C and/or Agreement. JGID BMS is not liable for any loss, consequential loss or damage to Customer’s business or that of any third party as a result of such suspension or termination of the Services.
- In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. This is an irreversible action. Customer will be charged at an hourly rate of $125.00+GST for any works that require more than 60 minutes of Company personnel time.
- All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. The terms of Clauses 2, 3, 4 6, 7 and 9 through to 12 shall survive the expiration or termination of this Agreement.
- Verbal, physical, written or other abuse (including threats of abuse or retribution) against any Company employee, member, or officer will result in immediate account termination.
- If Customer’s bandwidth usage significantly exceeds the average bandwidth usage (as determined solely by Company) of other Company customers, we reserve the right to immediately disable Customer’s account or throttle your file hosting until Customer’s bandwidth consumption is reduced. Company will make a reasonable attempt via email to warn the account owner prior to engaging such actions.
07 Warranty and Disclaimer
- Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S SPECIFIC REQUIREMENTS OR EXPECTATIONS OR THAT ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
- All information concerning Work Health and Safety (“WHS”), Job Hazard Assessment (“JHA”) and other risk assessment and management, statutory and regulatory compliance, other legal requirements and/or advisory issues is provided on a strictly without liability basis for the Customer’s assistance only. Customer MUST rely on his/her own knowledge, expertise and judgment in determining the correct equipment and manner of deployment of such equipment for each specific job. Company accepts no responsibility for an loss, injury, damage or death arising either directly or indirectly from use of the Services including any error or omission in the information relating to WHS, JHA and other risk assessment and management, statutory and regulatory compliance, or other legal requirements
- The information and tools provided on the JGID website and by the Services and Materials should not be Customer’s only source of information when making decisions relating to Customer’s business and operations. The Services and Materials are a tool to assist the efficient management of Customer’s business but they do not constitute a replacement for the exercise of the Customer’s own discretion, judgment, experience and due diligence.
08 Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS),OFFICERS,AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE THREE (3) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY, ITS SUBSIDIARIES, EMPLOYEES AND PARTNERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) UNAUTHORISED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSION OR DATA; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; (D) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
09 Third Party Providers
10 External Force Majeure (``EFM``)
Neither Party will be liable for any failure to perform its obligations under this Agreement (other than the payment of money) to the extent that such failure is caused by a Force Majeure event (“EFM”). To the extent that either Party is unable to perform its obligations as a result of an EFM, then the relevant obligations of such Party which have been prevented from being performed by the EFM shall be suspended for so long as the EFM continues.
11 Dispute Resolution
- In the event of a dispute arising between the Parties in respect of any right or obligation under this Agreement, each party covenants with the other in good faith to take all steps necessary to attempt to resolve the dispute by negotiation.
- In the event that the parties are unable between themselves to resolve a dispute within a reasonable period (not exceeding 20 Business Days or such longer period as the Parties may agree), having regard to the nature of the Agreement and the dispute, then either Party may apply to the Technology Dispute Centre located in Sydney, New South Wales, or a comparable Alternative Dispute Resolution Centre located in Sydney, New South Wales, for resolution of the dispute under the ADRoIT Principles.
- Nothing in this clause shall prevent a Party from seeking urgent equitable relief before an appropriate court or from instructing credit or debt collection agents to pursue payment of outstanding invoices.
- Customer shall promptly notify Company of any and all threats, claims and proceedings related to any allegations of infringement by Customer’s Use of the Services of any patent, trade mark, design, copyright or other intellectual property right or misappropriation of any trade secret and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. Company further assumes no liability with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
12 Personal Data and Privacy
- Customer acknowledges and agrees that Company’s performance of this Agreement may require Company to process, transmit and/or store Customer personal data or the personal data of Customer employees and Affiliates. By submitting personal data to the Company, Customer agrees that Company and its Affiliates may process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose of, enabling Company to perform its obligations under this Agreement. In relation to all Personal Data provided by Customer to Company, the Customer shall be responsible for ensuring compliance with all applicable data protection and privacy laws. Customer agrees to obtain all necessary consents and make all necessary disclosures before including Personal Data in Content and using the SaaS Services. Customer confirms the Customer is solely responsible for any Personal Data in Content including any information shares with third parties on Customer’s behalf. Customer confirms that Customer is responsible for ensuring that the Customer Personal Data used in the SaaS Services will not breach applicable data protection laws and regulations. Prior to processing, Customer will inform Company of any special categories of data contained within the Customer Personal Data and any restrictions or special requirements in the processing of such special categories of data, including any cross border transfer restrictions. Customer wlll ensure that Company’s processing of Customer’s Person not al Data does breach any such data protection laws or regulations.
- Company reserves the right to provide the SaaS Services from Host locations worldwide including by way of subcontractors. Company accepts no liability for defaults and breaches caused by acts, omissions or failures by Hosts or subcontractors.
- Company will only process Customer Personal Data in a manner that is reasonably necessary to provide the Services and only for that purpose. Customer agrees to provide any notices and to obtain any consent required for Company’s use of Customer’s data for provisioning the Services, including those relating to collection, use, processing, transfer and disclosure of personal information.
- Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer data.
- We and our subcontractors and third party providers protect your data, and ours, with high level security. We do not however provide any guarantee or warranty that there will be no loss or failure of data security, nor do we or our providers give any indemnity against any loss, consequential loss or damages arising from any data loss or system failures or any other cause. Where you use third party websites you do so on the terms and conditions applicable to those websites and we are not responsible for loss, consequential loss, damage or breach of laws or regulations arising from your use of third party sites. Further information regarding our security can be found by clicking on the “Security” icon on our website.
- You agree to keep your password confidential. Each user has an individual password. We will not ask you for your password except as may be required to provide support for you.
- We specifically exclude liability for any loss or damage arising from use of the Services, to the fullest extent allowed by law.
14 General Provisions
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
- This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
- Any waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No waiver of the terms of this Agreement by either Party shall be construed as a continuing waiver of the same or of any other breach or default under this Agreement.
- No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever; and neither Party shall hold itself out in advertising or otherwise in any manner which would indicate or imply any such relationship with the other.
- In any action or proceeding by the Company to enforce rights under this Agreement, the Company will be entitled to recover legal costs.
- All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
- This Agreement shall be governed by the laws of the State of New South Wales, without regard to its conflict of laws provisions. The parties to this Agreement hereby submit to the non-exclusive jurisdiction of the Courts of New South Wales.
In this Agreement the following words and expressions shall have the following meanings:
- ADRoIT Principles means the Alternative Dispute Resolution over Information Technology Principles.
- Agreement means this Services Agreement, including the Quote, Order Form, SaaS Services Agreement, Service Level Agreement, Support Terms, as amended, supplemented or updated from time to time by written agreement between the Parties.
- Business Day means a day which is not a Saturday, Sunday or public holiday in Sydney.
- Commencement Date means the date for commencement of use of the Services by the Customer, which is deemed to be 14 days after the first day of Implementation and Training.
- Confidential Information means and includes all information relating to:
- the business, customers, suppliers, financial affairs, commercial and economic policies of the Disclosing Party;
- the methods, processes, systems, techniques, practices and procedures employed by the Disclosing Party; and
- in the case of information received by the Customer, all information related to the design and formulation of the Software and all information contained in the Materials.
- External Force Majeure (“EFM”) means an event beyond the reasonable control of either Party, including without limitation: acts of God; flood; fire; lightning; explosion; accident; riot; civil strife; war; rebellion; enemy acts; strikes; satellite or other technical failure; breakdown in law and order, the operation of any directive or regulation of government; malicious damage; sabotage; denial of service attacks or other acts of online sabotage; disablement of computer access or functionality due to any other cause, including but not limited to computer viruses or malware; communication failures; and power failures.
- Electronic Devices means any desktop, tablet, mobile devices or any other portable computerised device developed in the future which is capable of connecting to the Internet.
- Host means the computer equipment on which the Software is installed, which is owned and operated by the Company, its related companies or its subcontractors
- Implementation and Training Fees means the fees for providing the Implementation and Training by Company to teach the Customer’s Users how the system works (Training) and how to use it in their business (Implementation)
- Intellectual Property Rights means any and all intellectual property rights throughout the world, including:
- any patent, copyright (including future copyright), trade mark, design, drawing, procedure, process, method, techniques, technical information, specifications, tool, operation (including manufacturing processes and operations), software, modules, components, utilities, templates, concepts, analysis, formula, input, equation, layout, trade, business or company name or other proprietary right or any right to registration of such rights; and
- all present and future rights in an invention, discovery, trade secret, know-how, concept, idea, plan, process, method, techniques, technical information, specifications, tool, operation (including manufacturing processes and operations), software, modules, components, utilities, templates, concepts, analysis, data or formula and rights in information, including any serendipitous discoveries, granted by law or equity from time to time under the law of any jurisdiction.
- Service Fee/s means the Monthly Service fees specified in the pricing package, the Implementation and Training Fees, and any overages
- Materials and Training means the documentation, materials, user guides, online help, education, assistance and information provided or made available by the Company to the Customer regarding the use and operation of the Services.
- Package or Pricing Package means the pricing package details shown on the Website at https://jgid.com/pricing-plans/
- Payment Period means a period of thirty (30) days starting on the date of a Tax Invoice issued by the Company (which for the avoidance of doubt will include invoices delivered electronically) or as mutually agreed.
- Permitted Number of Users/People/Staff/Personnel means the number of people designated permitted and authorised by Customer and Company to access the Services
- Permitted Purposes means the purposes permitted by this Agreement.
- Portal means the Company’s Website portal which is to be used by the Customer to access the Software.
- Services means Providing access for Customer’s Permitted Number of Authorised Users or Company Profiles to the JGID Business Management System (“JGID BMS”) Software, provided in the cloud as Software as a Service (“SaaS”) accessed via the Company’s Portal at myjgid.com utilising a password provided by the Company, to the designated Service Levels ; and provision of the related Implementation, Training and Materials, and Support Services; for use by the Customer for the Permitted Purpose of assisting the efficient management of the Customer’s business.
- Services Availability means the number of minutes in a year that the key components of the SaaS Services are operational as a percentage of the total number of minutes in such year, excluding downtime resulting from (a) scheduled maintenance; (b) events of Force Majeure; (c) malicious attacks on the system that disable or pose an unacceptable risk to provision of Services; (d) issues associated with Customer’s computing devices or systems, local area networks or internet service provider connections; (e) inability to deliver services because of acts or omissions of Customer or any User; (f) * public holidays and weekends.
- SaaS Services means the internet-accessible services that provide use of the JGID Business Management Software that is hosted by the Company or its hosting service providers and made available to Customer over a network on a subscription and term-use basis.
- Software means the object code version of the JGID Business Management System computer software to which the Customer is provided access as part of the Services.
- Supplier means a third party entity which supplies any goods or services ordered by the Customer via the SaaS Services
- Territory means Australia.
- Use means the right to access the Software Services via the Company’s portal by the Permitted Number of Authorised Users and/or Company Profiles.
- User means each person designated by the Customer and authorised by the Company to access the Services on Customer’s behalf. Each active User must complete the training requirements reasonably required by Company. Any person/personnel/staff that is listed in the company’s system, whether they are actively logging in or are just “passively” managed in the system are classified as a user for the purpose of pricing packages.