JOBFILE MOBILE SERVICE TERMS AND CONDITIONS OF LICENCE AGREEMENT RECITALS
A. JobFile Pty Ltd ACN 112 222 223 of Suite 6, 2-16 Bishop Street, Morley, in the State of Western Australia (JI’) has developed the JobFile Service ‘JF Service’) to assist the Customer to communicate more efficiently with its suppliers, customers and contractors by way of the automated management, collation and processing of information and interchange of data.
B. The Customer wishes to obtain the right from JI to access and use the JF Service through a server hosted by JI.
C. JI has agreed to provide the Customer with mobile-based access to the JF Service during the Term in accordance with these Terms and Conditions which are hereby accepted by the Customer.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions In this Agreement, including the Recitals and the Schedule, the following terms will have the following meanings unless the contrary intention appears: ‘Additional Services’ means any additional services to be provided to the Customer, by JI, as nominated by the Customer in its JF Account Settings. ‘Agreement’ means the agreement formed by the terms of the Customer’s JF Account Settings and these terms and conditions and any variations as may be agreed from time to time between the parties in writing. ‘Authorised Users’ means the Customer’s personnel specified as the authorised users in the JF Account Settings. ‘Business Hours’ means the hours of 9.00am to 5.00pm Monday to Friday local time in Perth, Western Australia, excluding public holidays. ‘Customer’ means the entity specified as such in the JF Account Settings. ‘Commencement Date’ means the date the Customer commences use of the JF Service. ‘Fees’ means the fees payable by the Customer (if any) as specified in the JF Account Settings. ‘GST’ means any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or service made under or in respect of this Agreement. ‘Intellectual Property rights’ means: (a) patents, copyright, circuit layout rights, designs, trade marks and confidential know-how; and (b) any application or right to apply for any of the rights referred to in paragraph (a). ‘JF Account Settings’ means the account settings entered by the Customer when opening its account for the purpose of accessing the JF Service as may be updated by the Customer or JI from time to time. ‘JF Service’ means the mobile-based data interchange service using the JobFile transaction hub (being a facility to enable the electronic interchange of data between the Customer and its Nominated Partners) as hosted on the Server by JI. ‘Maintenance Services’ means routine maintenance services as considered necessary by JI to ensure the proper functioning of the JF Service during the Term including: (a) the operation and general maintenance of the Server; (b) reviewing the JF Service on a regular basis and applying Product Updates where appropriate; and (c) performing regular security and maintenance checks. ‘Nominated Modules’ means the specific modules of the JF Service chosen to be accessed by Customer, as stated in their JF Account Settings. ‘Nominated Partners’ means persons nominated by the Customer in its JF Account Settings as the entities it wishes to communicate with via the JF Service. ‘party’ or ‘parties’ means a party or the parties to this Agreement. ‘Product Updates’ means the updates specified in Clause 8.1 of this Agreement. ‘Server’ means the server or servers located at JI or its nominee’s premises, and includes the serving computers, hardware and operating systems necessary to operate and support the JF Service. ‘Term’ means one year from the Commencement Date.
1.2 Interpretation In this Agreement unless the contrary intention appears: (a) clause headings have been inserted for convenience only and will not be taken into account in interpreting the Agreement; (b) words importing the singular will include the plural and vice versa; (c) words importing natural persons will include firms and corporate bodies or other legal persons and vice versa; (d) reference to a party to this Agreement includes reference to that party’s successors and assigns; and (e) references to currency are references to Australian dollars (AUD$).
2. JF SERVICE AND SUPPORT
2.1 In consideration of the Customer accepting and complying with the terms of this Agreement, JI will provide the Customer with: (a) access to the JF Service; (b) the Maintenance Services; and (c) the Additional Services; during the Term in accordance with the terms and conditions of this Agreement.
3. ACCESS TO THE JF SERVICE
3.1 Subject to the payment of the Fees, JI will provide access to the JF Service to the Customer in accordance with the terms and conditions of this Agreement.
3.2 The Customer will only allow the JF Service to be used by the Authorised Users.
3.3 Unless specifically authorised by JI in writing, any such use will be subject to this Agreement and such other terms as may be specified by JI in writing.
3.4 The Customer will follow all reasonable instructions given by JI from time to time with regard to the use of the JF Service.
4. JI OBLIGATIONS
4.1 In consideration of the payment of the Fees, JI will provide the Customer with technical advice and assistance as is reasonably required by the Customer to enable the Customer to connect to the JF Service.
4.2 JI reserves the right to make such amendments or modifications to the JF Service as required by law or which JI, in its sole discretion, decides are in the interest of quality, efficiency and security of the JF Service as a whole.
4.3 JI will provide such Additional Services as may be agreed between the parties on the terms as set out in the Customer’s JF Account Settings.
5. USE OF JF SERVICE
5.1 JI reserves the right to give such instructions or directions to the Customer concerning access to and use of the JF Service as required by law or which JI, in its sole discretion, decides are in the interest of quality, efficient and security of the JF Service as a whole.
5.2 The Customer must comply with all reasonable directions regarding access to, and use of, the JF Service provided to the Customer from time to time by JI including any procedures imposed by JI to prevent unauthorised access to the JF Service.
5.3 The Customer must take all reasonable precautions to ensure the security of access to the JF Service and must not, under any circumstances, allow any third party to access or use the JF Service for any purpose without the prior written consent of JI.
5.4 The Customer agrees to inform JI immediately if it becomes aware of any unauthorised use of the JF Service by any person.
6. AVAILABILITY OF JF SERVICE
6.1 The Customer acknowledges that the speed of response from the JF Service is dependant on the Customer’s internal connection and performance of the JF Service may be affected by such external factors as speed of connection and infrastructure bandwidth from the Customer’s equipment to the Server and the number of users on the connection.
6.2 JI takes no responsibility for any delay, malfunction, non-performance or other degradation of the JF Service caused by or resulting from any alteration, modifications or amendments to the JF Service requested by the Customer.
7. SUSPENSION OF ACCESS
7.1 Subject to Clause 7.2, JI may suspend access to the JF Service: (a) to carry out the Maintenance Services; (b) to carry out modifications or updates to the JF Service, (c) to preserve data integrity; (d) in the event of a security breach; or (e) if the Server malfunctions.
7.2 JI may suspend the JF Service in respect of the transmission of data from a particular Nominated Partner, if any of the Nominated Partners so requests, by way of 7 days written notice to JI and the Customer may, likewise, give JI 7 days written notice that it wishes to suspend the interchange of data between the Customer and a particular Nominated Partner and in complying with such notice, JI will have no liability to either party in respect of such suspension or the consequences thereof.
7.3 JI will use its best endeavours to provide the Customer with forty eight (48) hours notice of any scheduled downtime required by JI in order to perform the Maintenance Services or any modifications or updates.
7.4 JI also reserves the right to terminate or suspend access to the JF Service to the Customer indefinitely and without refund or compensation in the event that the Customer uses the JF Service, or appears to JI to be intending to use the JF Service, in a manner reasonably deemed illegal or inappropriate by JI or which breaches the terms of this Agreement.
7.5 Suspension of access to the JF Service will continue until the Maintenance Services, modifications or updates are carried out, the problem or breach is rectified, or until otherwise agreed in writing between the parties.
7.6 JI will not be liable to the Customer, its officers, employees, contractors or agents or any third party whatsoever as a result of taking the action referred to in this Clause 7 where such action is taken on a view which is formed on a reasonable basis by JI.
8. PRODUCT UPDATES
8.1 JI may, in its sole discretion, make enhancements, updates or new releases of the Product available through the JF Service from time to time in order to, inter alia, enhance or improve the functionality or operation of the JF Service or comply with legislative requirements (‘Product Updates’).
8.2 JI will upload any Product Updates onto the Server for access and use by the Customer through the JF Service as soon as reasonably practicable following the creation and general release of such Product Updates by JI.
8.3 Use of the Product Updates by the Customer through the JF Service will be subject to the same terms and conditions as use of the Product under this Agreement.
9. CUSTOMER DATA
9.1 The Customer warrants that it has the right to transmit the data which it will be transmitting via the JF Service and acknowledges that JI has no liability whatsoever in respect of the content, accuracy, timeliness or otherwise of data transmitted or received by the Customer via the JF Service.
10. USE OF PRODUCT
10.1 The Customer acknowledges and accepts that it is the Customer’s sole responsibility to ensure that: (a) the facilities and functions of the JF Service meet the Customer’s requirements; and (b) the JF Service is an appropriate means to assist the Customer with its own compliance requirements and business requirements generally.
10.2 JI will not be liable for any failure of the JF Service attributable to accident, abuse or misapplication of the JF Service by the Customer.
10.3 If, upon investigation, a problem with the Customer’s access to the JF Service is determined not to be JI’s responsibility, JI may invoice the Customer immediately for all reasonable costs and expenses incurred by JI in the course of or in consequence of such investigation.
11. PAYMENT OF FEES 11.1 The Customer will pay the Fees applicable, if any, to their Nominated Modules during the Term in the manner specified in the JF Account Settings or as otherwise invoiced to the Customer by JI from time to time. 11.2 Where applicable, GST and any other taxes, duties or levies will be paid by the Customer at the then prevailing rate. 11.3 Where payment of any part or the whole of the Fees is to be made before the Customer may access the JF Service, JI may withhold access until such payments have been made in full. 11.4 If any sum payable under this Agreement is in arrears for more than thirty (30) days, JI reserves the right to charge interest on such overdue sum on a daily basis from the original due date until paid in full.
12. CONFIDENTIAL INFORMATION 12.1 Each party shall treat all Confidential Information disclosed by the other party as confidential. 12.2 The Customer acknowledges that JI has no liability whatsoever in respect of the data being transmitted between the Customer and its Nominated Partners as JI is solely providing a facility for the interchange of such data and the Customer agrees that it will indemnify JI against any loss or damage suffered by JI as a result of a breach of confidentiality by the Customer or its officers or employees or subcontractors, or in respect of the content of the data or its ability to be so transmitted or the timing of transmission.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 JI owns and retains, and the Customer acknowledges that JI owns and retains all Intellectual Property Rights in the JF Service and components thereof including, without limitation, any modifications or improvements to, or customisation of the JF Service or software used in the JF Service as may be carried out by JI, the Customer or any third party pursuant to this Agreement but excluding any third party materials used within the JF Service.
13.2 The Customer warrants that it will: (a) follow all reasonable instructions given by JI from time to time regarding JI’s Intellectual Property Rights; (b) not do anything to diminish the value of, or contest in any way, JI’s Intellectual Property Rights; (c) title to any and all proprietary rights in the Service components including, without limitation, the Software,the website and user interface will remain in and be the exclusive property of JI; (d) will be the owner of all data or information created by themselves (the 'Customer') and stored on JI's application servers (collectively, "Customer Data"); (e) hereby grants to JI a non-exclusive, fully paid, world-wide and irrevocable license permitting JI to copy, anonymise, aggregate, process and display Customer Data to derive anonymous statistical and usage data, and data about the functionality of the Service, provided such data cannot be used to identify the Customer or its individual users ("Anonymous Data"), for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as "Aggregate Data"), so as to permit JI to provide services including the copying, publication, distribution, display, licensing or sale of Aggregate Data and related or similar other statistics or data to third parties (and to Customer should Customer elect to subscribe for same) pursuant to a separate licensing or services arrangement or agreement. JI will be the owner of all right, title and interest in and to Aggregate Data; and (f) any access by Customer to Aggregate Data shall be pursuant to an additional license or services agreement.
14. LIMITATION OF LIABILITY
14.1 While the JF Service has been designed to assist the Customer with the interchange of data from Nominated Partners, the Customer acknowledges and agrees that: (a) JI does not provide any warranty regarding the ability of the JF Service to ensure the Customer’s compliance with all applicable laws and regulations in the Customer’s jurisdiction; and (b) the Customer is entirely responsible for (i) its access to, and use of the JF Service in accordance with the terms of this Agreement including: (A) transmission of data or information via the JF Service; (B) backup of all data and information obtained via the JF Service; (C) interpretation or use of, or reliance on, any data, information, reports, or any other output received via the JF Service; (D) keeping its data up to date; and (E) keeping its JF Account Settings (including details of its Nominated Partners) up to date; and (ii) the consequences of any use of the JF Service by the Customer.
14.2 Except in relation to liability which is not excludable at law, JI is under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the Customer’s access to, or use of the JF Service or any other goods or services supplied pursuant to this Agreement including (without limitation) loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill, or in respect of a failure or omission on the part of JI to comply with its obligations under this Agreement.
14.3 Without limiting the generality of any other provision of this Agreement, JI will not be liable to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred by the Customer or any third party or which may arise directly or indirectly in respect of: (a) any defect, malfunction, error, loss, delay or breakdown in the transmission, reception, use or storage of information or records obtained by the Customer from the JF Service; (b) any suspension of access to the JF Service by JI pursuant to this Agreement; (c) delays in transmission, communications failures or internet access difficulties caused by third party service providers beyond JI’s control; (d) introduction of viruses affecting the functioning of the JF Service; (e) malfunction of third party equipment or software; or (f) any other act or omission by any third party which affects the ability of the Customer to access, or use, JF Service.
14.4 Subject to Clause 14.5, the Customer warrants that it has not relied on any representation made by JI which has not been expressly stated in this Agreement, or upon any descriptions or specifications contained in any document including catalogues or publicity material produced by JI.
14.5 The Customer acknowledges that to the extent that JI has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.
14.6 The Customer will at all times indemnify and hold harmless JI and its officers, employees and agents in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or indirectly from or in respect of: (a) a breach by the Customer of its obligations under this Agreement; (b) any wilful, unlawful or negligent act or omission of the Customer; or (c) the data transmitted by the Customer.
5. IMPLIED TERMS
15.1 Subject to Clause 15.2, any condition or warranty which would otherwise be implied in this Agreement by law is hereby excluded.
15.2 Where legislation implies into this Agreement any condition or warranty which cannot be excluded at law, JI’s liability for any breach of such condition or warranty will be limited, at JI’s sole discretion to: (a) the supplying of the services again; or (b) the payment of the cost of having the services supplied again; during the relevant period.
16. TERM AND RENEWAL 16.1 This Agreement will commence on the Commencement Date and will continue until the expiry of the Term unless earlier terminated pursuant to Clause 17.
16.2 Unless the Customer notifies JI in writing 30 days prior to the end of the Term that it does not wish to renew this Agreement, this Agreement will automatically renew, subject to Clause 16.3 on the same terms and conditions and for subsequent periods of the same length as the Term provided that the Customer is not in breach of this Agreement.
16.3 Renewals of this Agreement will be subject to any changes in the Customer’s JF Account Settings, (including fees), applicable to such renewal period.
17.1 Either party may terminate this Agreement with immediate effect by giving notice to the other party if: (a) the other party breaches any of its obligations under this Agreement capable of remedy and fails to remedy that breach within thirty (30) days after receiving notice requiring it to do so; or (b) the other party breaches any of its obligations under this Agreement incapable of remedy; or (c) any event referred to in Clause
17.2 occurs in relation to the other party. 17.2 Each party will notify the other immediately if: (a) it ceases to carry on business; (b) it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business; (c) any step is taken to enter into any arrangement between that party and its creditors; (d) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of its assets or business; or (e) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator of the whole or any part of its assets or business.
17.3 This Agreement will terminate with effect from the first day after the end of the Term if the Customer has not prepaid its Fees for any renewed Term.
17.4 The Customer may terminate this Agreement on 30 days written notice.
17.5 JI may terminate without cause on 60 days written notice and will reimburse to the Customer any pre-paid fees applicable to the period after termination.
18. ACTION ON TERMINATION
18.1 Upon the expiry or termination of this Agreement: (a) JI will immediately terminate the Customer’s connection to the JF Service and cease providing all services to the Customer under this Agreement; and (b) the Customer will immediately: (i) cease to access and use the JF Service; (ii) cease to use all Intellectual Property Rights of JI; and (iii) pay all sums owing to JI pursuant to this Agreement.
18.2 Termination of this Agreement for any reason will not affect the accrued rights or remedies of either party.
19. FORCE MAJEURE
19.1 Neither party will be liable to the other for delay or failure to perform its obligations under this Agreement if such delay or failure is caused by declaration of war, strikes, acts of God or the public enemy, riots, interference by military authorities, compliance with Government laws and regulations, delays in transit, inability to secure necessary governmental priorities or any fault beyond its reasonable control or without its fault or negligence.
20.1 The Customer may not sublicense, transfer or assign any of its rights or obligations under this Agreement without the prior written consent of JI.
21.1 Severance If any part of this Agreement is deemed unenforceable, then if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed or in any other case the provision is severed and the rest of this Agreement will continue to be legal and enforceable.
21.2 Waiver The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right: (a) to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and (b) at any other time to insist on performance of that or any other obligation of the other party under this Agreement.
21.3 Notices (a) Each party notifying or giving notice under this Agreement will do so by email addressed to the email address of the recipient specified in JF Account Settings. (b) A notice given in accordance with Clause 21.3(a) is deemed received on the day the email is recorded as received.
21.4 Variation Except as otherwise permitted by this Agreement, no variation to its terms will be effective unless agreed and accepted by both JI and the Customer as recorded in writing or by electronic communication.
22. ENTIRE AGREEMENT
22.1 This Agreement is the entire agreement between the parties in relation to the subject matter of this Agreement and supersedes any prior agreement, oral or written and any other communications between the parties in relation to the subject matter of this Agreement.
23. GOVERNING LAW
23.1 This Agreement shall be governed by the laws of the State of Western Australia and each party agrees to submit to the non-exclusive jurisdiction of the courts of Western Australia.