The following are the terms and conditions for use of Dataforce ASAP service described herein (the “Service”) between Dataforce and you (either an individual or a legal entity that you represent as an authorized employee or agent) (“You”).
These Terms are binding on any use of the Service and apply to You from the time that Dataforce provides You with access to the Service.
By registering to use the Service you acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service.
“Agreement” means these Terms of Service.
“Add on” means an additional, activated, service that enhances the Dataforce ASAP platform.
“Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
“Data” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by You, another customer of the Service, or any other third party.
“Minimum Usage Fee” is the minimum usage fee regardless of the number of jobs in any given week.
“Intellectual Property Right” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Invited User” means any person or entity, other than You, that uses the Service with Your authorisation from time to time.
“Service” means the online job management and ancillary services made available (as may be changed or updated from time to time by Dataforce) via Dataforce.
“Dataforce” means Dataforce Services Pty Ltd trading as Dataforce.
“Subscriber” means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
“Usage Fee” means a fee (calculated weekly) based on jobs completed, plus any costs associated with any enabled “add on’s in the Dataforce ASAP service, payable by You, in accordance with the agreed fee schedule.
“You” means the Subscriber, and where the context permits, an Invited User. “Your” has a corresponding meaning.
“Website” means the Internet site at the domain www.dataforce.com.au or any other site operated by Dataforce.
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
2. USE OF SOFTWARE
Dataforce grants You the right to access and use the Service via the Website and an Android mobile device with the particular user roles available to You. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:
the Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;
- the Subscriber is responsible for all Invited Users’ use of the Service;
- the Subscriber controls each Invited User’s level of access to the relevant organisation and 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 a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any.
The use of Dataforce ASAP means by extension you agree to:
3. YOUR OBLIGATIONS
Should Your use fall below the Miminum Usage Fee in any week, a charge will be levied and an invoice will be issued for the agreed Minimum Usage Fee. All invoices will include the Usage Fee for the preceding period (week) of use. Dataforce will continue invoicing You weeky until this Agreement is terminated in accordance with clause 10. All Dataforce invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. You must pay all amounts specified in any invoice by the due date.
You must only use the Service for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Dataforce or condition posted on the Website. You may use the Service on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.
You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Dataforce of any unauthorised use of Your passwords or any other breach of security and Dataforce will reset Your password and You must take all other actions that Dataforce reasonably deems necessary to maintain or enhance the security of Dataforce’s computing systems and networks and Your access to the Services.
As a condition of these Terms, when accessing and using the Services, You must:
- not attempt to undermine the security or integrity of Dataforce’s computing 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 Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
- 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 Website, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data 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 Website.
Use of the Service may be subject to limitations, including but not limited to weekly transaction volumes and the number of calls You are permitted to make against Dataforce’s application programming interface. Any such limitations will be advised.
As a condition of these Terms, if You use any communication tools available through the Website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
When You make any communication on the Website, You represent that You are permitted to make such communication. Dataforce is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. However, Dataforce does reserve the right to remove any communication at any time in its sole discretion.
You indemnify Dataforce against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to Dataforce, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
5. SPAM ACT
Dataforce has a strict anti-spam policy. Our SMS messaging services and email services must only be used in accordance with the SPAM Act of 2003. We do not allow sending unsolicited SMS or email messages. You must have consent to send SMS messages to each recipient before sending an SMS messages to them, in accordance with the SPAM Act. Any marketing messages must give the recipient the option to opt-out of further marketing messages.
6. CONFIDENTIALITY AND PRIVACY
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 these Terms. 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 these Terms.
Each party’s obligations under this clause will survive termination of these Terms.
The provisions of clauses 4.1.1 and 4.1.2 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.
7. INTELLECTUAL PROPERTY
Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Dataforce (or its licensors).
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 the Dataforce Access Fee when due. You grant Dataforce 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.
Backup of Data:
Dataforce adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Dataforce expressly excludes liability for any loss of Data no matter how caused.
Third-party applications and your Data:
If You enable third-party applications for use in conjunction with the Services, You acknowledge that Dataforce may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. Dataforce shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
8. WARRANTIES AND ACKNOWLEDGEMENTS
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You acknowledge that:
- You are authorised to use the Services and to access the information and Data that You input into the Services, including any information or Data input into the Services by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Services (whether that information and Data is Your own or that of anyone else).
- Dataforce has 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 Services on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) 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 Dataforce has 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 Dataforce against any claims or loss relating to:
- Dataforce’s refusal to provide any person access to Your information or Data in accordance with these Terms,
- Dataforce’s 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.
- Dataforce does 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. Dataforce is 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.
Dataforce gives no warranty about the Services. Without limiting the foregoing, Dataforce does 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 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 Website or these Terms.
9. LIMITATION OF LIABILITY
To the maximum extent permitted by law, Dataforce excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service.
If You suffer loss or damage as a result of Dataforce’s negligence or failure to comply with these Terms, any claim by You against Dataforce arising from Dataforce’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.
If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 10.
These Terms will continue while You continue to use the Service, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.
- breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
- breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.4 or any payment of Access Fees that are more than 30 days overdue); or
- You 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,
Dataforce may take any or all of the following actions, at its sole discretion:
- Terminate this Agreement and Your use of the Services and the Website;
- Suspend for any definite or indefinite period of time, Your use of the Services and the Website;
- Suspend or terminate access to all or any Data.
- For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to the Service is not made in full by the relevant due date, Dataforce may: suspend or terminate Your use of the Service, the authority for all or any of Your Organisations to use the Service, or Your rights of access to all or any Data.
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- immediately cease to use the Services.
11. THIRD PARTY PRODUCTS AND SERVICES
12. HELP DESK
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Dataforce. If You still need technical help, please check the support provided online by Dataforce on the Website or failing that email us at email@example.com.
Whilst Dataforce intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place. If for any reason Dataforce has to interrupt the Services for longer periods than Dataforce would normally expect, Dataforce will use reasonable endeavours to publish in advance details of such activity on the Website.
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 these Terms 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.
You may not assign or transfer any rights to any other person without Dataforce’s prior written consent. Governing law and jurisdiction: Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement.
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.
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Dataforce must be sent to firstname.lastname@example.org or to any other email address notified by email to You by Dataforce. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
Rights of Third Parties:
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
Force Majeure Event:
If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must promptly notify the other; and inform the other of the period for which it is estimated that such failure or delay will continue.
A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.