Terms and Conditions

These terms and conditions (“Agreement”) apply between Easy Clocking Australia Pty Ltd 64 602 077 092 (“Company”, “We”) and you (“Customer”, “You”, “User”). These terms of use apply to your purchase of products and/or services and support (“Product”) sold in Australia by the Company, including its affiliates or subsidiaries.

By accepting delivery and/or using the Product, you accept and are bound to the terms and conditions of this Agreement.

1. Services and Support

• Subject to the terms of this Agreement, the Company will use commercially reasonable efforts to provide the Customer the Services in accordance with the Service Level Terms in this Agreement.

• Subject to this Agreement, the Company will provide the Customer with reasonable technical support services in accordance with the Company’s standard practice.

2. Term of Agreement

• This Agreement commences on the Commencement Date and, unless extended or terminated earlier in the manner set out in this Agreement will continue for a period set in the Initial Service Term as specified in the Quote, Order Form and/or Agreement.

• It shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

• If it is found that the subscription or services has been reduced from the initial service term or extended service term, the rate or Fee will be changed accordingly to reflect the correct charge for the service going forward. This charge will be immediate and there will be no refund or credit provided.

3. Payment of Fees

• The Customer will pay the Company the applicable fees for the Subscription, Services and Implementation Services in accordance with this Agreement (the “Fees”). All fees for Subscriptions and Services will be charged in advance on a monthly, annual or on an agreed term and will be non-refundable, including cancellation of the Service, upgrading or downgrading of subscription and services or partial or no use of the subscription and services.

• If the Customer has not paid the Fees on time and the service is suspended, the Company may charge additional Fees to re-establish the service.

• The Company reserves the right to change the Fees or applicable charges 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 the Customer (which may be sent by email).

• If the Customer believes that the Company has billed the Customer incorrectly, The Customer must contact the Company no later than 30 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 the Company’s customer support department.

• The Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company thirty (30) days after the mailing date of the invoice.

• Unpaid amounts are subject to an interest charge of 1.5% 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.

• Where applicable, 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 and any other taxes, duties or levies will be paid by the Customer at the then prevailing rate.

4. Taxes

• Terms used in this clause have the same meaning as those terms in A New Tax System (Goods and Services Tax) Act 1999 (CT).

• If the supply of Products under this Agreement is subject to GST, the Customer must pay the Company the price plus an amount equal to the GST payable on the supply (unless the price is expressly stated as being inclusive of GST).

• The Company must issue a tax invoice in the format required by the Customer and the law to the Customer for the supply. The tax invoice must set out the amount of the GST payable by the Customer.

• The Company warrants that it is registered with an Australian Business Number and for GST purposes at each time a taxable supply is made.

• If any services, including hardware, is provided outside of Australia, the Customer must bear the cost of any administrative costs, customs, taxes, duties, tariffs or levies that is imposed.

5. Restrictions and Responsibilities

• Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by Easy Clocking Australia Pty Ltd, the Customer must not reverse compile, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of the Services or any software, documentation or data related to the Services: (a) With respect to any Services that is distributed or provided to the Customer for use on the Customer’s premises or devices, the Company hereby grants the Customer a non-exclusive, non-transferable, non-sub-licensable license to use such Services during the Term only in connection with the Services.

• The Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with the Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.

• The Customer hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Customer’s use of Services. Although the Company has no obligation to monitor the Customer’s use of the Services, the 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.

• The 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 and the like (collectively, “Equipment”). The Customer shall also be responsible for maintaining the security of the Equipment, the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account or the Equipment with or without the Customer’s knowledge or consent.

6. Warranty and Disclaimer

• The 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 proper manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, the 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.

• While all due care has been taken, the Company does not warrant that the operation of the Services will be uninterrupted or error free or that any third party components of the Services, will be accurate or error free or that the Services will be compatible with any application, program or software not specifically identified as compatible by the Company.

• The Customer acknowledges and accepts that it is the Customer’s sole responsibility to ensure that:

  (a) the facilities and functions of the Services meet the Customer’s requirements;

  (b) the Services are appropriate for the specific circumstance of the Customer and are within the laws and regulations of the Customer’s jurisdiction.

  (c) the Company does not purport to provide any legal, taxation or accountancy advice by providing the Service under this Agreement.

• The Company will not be liable for any failure of the Services to provide any function not described in the documentation (provided online as part of the Services) or any failure attributable to:

  (a) any modification to the Services other than by the Company;

  (b) accident, abuse or misapplication of Services by the Customer;

  (c) use of the Services with other software or equipment without the Company’s written consent;

  (d) use of other than the latest, unaltered current release of the Services;

  (e) or use other than in accordance with this Agreement.

• If, upon investigation, a problem with the Services is determined not to be the Company’s responsibility, the Company may invoice the Customer immediately for all reasonable costs and expenses incurred by the Company in the course of or in consequence of such investigation.

• "Back to Base" warranty means that it is the responsibility of the customer/end-user to arrange the cost of transportation and handling of all products sent in for repair or assessment whether or not the product is under warranty.
  
  
• Customers should ensure that their product(s) are properly packaged before sending it to the Company so as to ensure no damage occurs to the product during transit.

7. Confidentiality and Proprietary Rights

• 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 (referred to as “Proprietary Information” of the Disclosing Party).

• Proprietary Information of the Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of the Customer includes non-public data provided by the Customer to the Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees:

  (a) to take reasonable precautions to protect such Proprietary Information, and;

  (b) not to use (except in performance of the Services or as otherwise permitted in this Agreement) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party or (v) is required to be disclosed by law.

• The Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to the Customer as part of the Services. The Company shall own and retain all right, title and interest in and to

  (a) the Services, 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.

• Notwithstanding anything to the contrary, the Company shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Company will be free (during and after the term) to

  (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and

  (b) disclose such data solely in aggregate or other de-identified form in connection with its business.

• No rights or licenses are granted except as expressly set out in this Agreement.

8. Indemnity

• The Customer must indemnify and hold the Company harmless from and against all claims and losses arising from loss, damage, liability, injury to the Company, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Customer by the Company, its employees or suppliers, or supplied to the Company by the Customer within or without the scope of this Agreement.

9. Limitation of Liability

• Except in the case of death or personal injury caused by the Company's negligence, the liability of the Company under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the fees paid by the Customer to the Company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not the Company has been advised of the possibility of such damages.

• Neither party is liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.

10. Software

• All software is provided subject to a license agreement and you agree that you will be bound by such license agreement in additional to these terms. Title to software remains property of Easy Clocking Inc and/or Easy Clocking Australia (if applicable).

11. Hardware

• The Company warrants that all Products and/or hardware supplied to the Customer:

  (a) are new;

  (b) are of merchantable quality;

  (c) are free from defects;

  (d) are fit for their intended purpose;

  (e) are of good material and workmanship;

  (f) in quality and in manufacturing process, comply with all relevant standards adopted by such bodies as the Australian Standards Association and with any requirements of the Commonwealth, State or Territory and local government authorities;
  
  (g) Adhere to "Back to Base" warranty conditions as mentioned in the Warranty and Disclaimer section

• For further information of the terms and conditions of trade, please refer to our Terms of Trade which shall form part of these Terms and Conditions.

12. Privacy

• Easy Clocking Australia will process Personal Data in accordance with the terms of this Agreement, the Global Data Privacy Policy, the Privacy Act 1988 (Cth) and all other applicable data protection laws. The Customer must maintain its own data collection, disclosure, retention, and storage policies in compliance with applicable law.

• Customers are also responsible for maintaining the security of their account details and their user name and passwords. Easy Clocking Australia will not be held liable for any loss or damage that may occur due to a failure of the Customer not securing their credentials or information.

• The Company Privacy Policy can be found at: https://easyclocking.com.au/privacy-policy which shall form part of these Terms and Conditions.

13. Termination

• 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 non-payment), if the other party materially breaches any of the terms or conditions of this Agreement.

• The Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, the Company will make Customer Data available to the Customer in a form the Company deems appropriate for a period of fourteen (14) days, but thereafter the Company may, but is not obligated to, delete stored Customer Data.

• 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.

14. Variation or Amendment of Terms

• The Company reserves the right to amend or modify these Terms from time to time without notice to you and you will be subject to the Terms in force at the time you purchase the subscription or services or download the software whichever is applicable.

15. Website Disclaimer

• All care is taken in the preparation of the information and published materials on this site. Easy Clocking Australia does not make any representations or give any warranties about its accuracy, reliability, completeness or suitability for any particular purpose. To the extent permissible by law, Easy Clocking Australia will not be liable for any expenses, losses, damages (including indirect or consequential damages) or costs which might be incurred as a result of the information being inaccurate or incomplete in any way and for any reason.

• This site may contain hypertext links, frames or other references to other parties and their websites. Easy Clocking Australia cannot control the contents of those other sites, and make no warranty about the accuracy, timeliness or subject matter of the material located on those sites. Easy Clocking Australia do not necessarily approve of, endorse, or sponsor any content or material on such sites. Easy Clocking Australia make no warranties or representations that material on other websites to which this website is linked does not infringe the intellectual property rights of any person anywhere in the world.

• If you have any concerns regarding the content of the Website, please contact Easy Clocking Australia.

16. Governing Law and Jurisdiction

• This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Victoria, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria.

17. General

• 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 sub licensable by the Customer except with the Company’s prior written consent. The 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, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided in this Agreement.

• No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees.

• 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 recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

Last Updated: October 2020