Terms and condition
By accessing our Website or Software you confirm that you have read, understood and agree, on behalf of the entity specified in the Order (you), to be bound by these terms and conditions and our Acceptable Use Policy which forms part of these terms and conditions.
- 1Use of our Software
- We grant you a personal, non-transferable, non-exclusive licence to use the Software through our Website, together with the Documentation, on the terms of this Agreement. The Licence begins on the date we provide you with access to use the Software and continues, subject to payment of applicable Fees, until terminated in accordance with the terms of this Agreement.
Independently obtain and pay for the necessary communications links, communications and computer hardware and software necessary to access the Electronic Services;
Not allow more people to use any component of the Software than the number of Users for which you have paid us the applicable licence fees with respect to that Software component;
Comply with all laws (including the Privacy Act as if the Act applies to you even if it does not) in connection with your use of the Electronic Services and the Documentation;
Comply with, and ensure each User complies with, the Acceptable Use Policy;
Ensure that each User is allocated one account with a unique username;
Ensure that each User maintains the secrecy of their usernames and passwords for accessing the Software; Take all reasonable security precautions to prevent unauthorised access to or copying, use or disclosure of the Electronic Services or the Documentation or any parts of them;
Use the Software and the Documentation only to process your own internal data;
not, and must ensure the Users do not, modify, decompile, reverse engineer or disassemble the Software and must not copy, reproduce or disseminate the Software or the Documentation (except as permitted by non-excludable law, if applicable);
indemnify us and our Personnel, and keep them indemnified, from and against all Loss and other liability arising from your and any Users use of the Electronic Services and the Documentation, breach of this Agreement, violation of any law, infringement of another’s rights or otherwise arising out of Data made available through your and your Users use of the Electronic Services or the Documentation; and Ensure that before providing a User with a username and password to access the Software, you have paid us the then current Fees applicable for that User access.
- We may monitor the total number of Users with access to the Software during the course of each month and suspend one or more User access to the Software if you have failed to pay the applicable Fees for that number of Users.
That the Software and the Documentation is licensed to you on the terms of this Agreement and all other rights in the Software and the Documentation remain our and our licensors property;
To maintain a backup of all your Data by using the data backup facility available through our Electronic Services or otherwise; and
To our communicating with you regarding our various activities, events, Electronic Services and your Data by electronic messages.
- You authorise us to allow Third Party Providers to access your Data and User information if you activate their Third Party Applications to interface with our Electronic Services. You acknowledge and agree that your use of any Third Party Applications is governed by the Third Party Providers terms, and that we are not responsible for those Third Party Applications or liable for any Loss resulting from or associated with their use, to the maximum extent permitted by law.
Support services and other facilities
You agree that it is your sole responsibility:
To establish proper operating methods consistent with the instructions contained in the Documentation; and
To comply with any requirements of telecommunications authorities or Internet service providers.
- If you encounter a technical problem, you must use your best endeavours to solve the problem, including checking the support provided online at http://support.Fieldomobify.com before contacting us. If you still need technical assistance, you may email us at support@Fieldomobify.com
- Our Electronic Services may occasionally be unavailable for maintenance, updating or otherwise. If for any reason it is necessary to make our Electronic Services unavailable for an extended period of time, we will use reasonable endeavours to notify you by publishing such details on our Website or notifying you in any other way.
- You agree that it is your sole responsibility:
Fees and payments
You must pay us the Fees for the Licence in accordance with this clause 3. We may issue Tax Invoices for the Fees, together with any other fees or charges payable to us immediately before the commencement of the time period to which the Fee relates. We may change our Fees with effect from the start of the next period for which a Fee is payable or at any other time on 30 days notice to you.
You must pay us the Fees by credit card in advance before the commencement of the time period to which the Fee relates.
To the full extent permitted by law, Fees and other charges payable under this Agreement are non-refundable.
In addition to our other remedies, we may suspend performance of our obligations under this Agreement for any period during which any money owing by you is overdue.
To the full extent permitted by law, we do not warrant:
The performance, accuracy or reliability of the Electronic Services or any associated software or equipment;
That the Electronic Services comply with any particular laws, regulations, codes or industry standards; That Software or access to the Electronic Services will be secure, error free or uninterrupted; or That the Electronic Services will be suitable for your (or your Users’) purpose.
- You acknowledge and agree to use the Electronic Services at your own risk and accept responsibility for ensuring or confirming compliance with all applicable laws in connection with your access to our Electronic Services or any consequent transactions or dealings with other users, third parties or us.
- Each party warrants that it has full power and authority to enter into this Agreement and it has not relied on any representation made by the other which has not been expressly stated in this Agreement.
- Except as provided in this clause 4 and subject only to any implied warranties which cannot legally be excluded, we make no other warranties, either express or implied, as to any matter whatsoever, including the merchantability or the fitness for any particular use of the Software. Clause 7.1 applies to non-excludable warranties, to the extent applicable.
- To the full extent permitted by law, we do not warrant:
Termination and Suspension
We may suspend your access to our Electronic Services without notice:
Where required for urgent maintenance;
If you breach this Agreement;
To prevent damage to our Electronic Services; or
Where we reasonably suspect that our Website is being used, accessed or attacked in an unauthorised or otherwise illegal manner.
We may terminate this Agreement immediately by written notice to you if at any time:
Any amount payable by you under this Agreement remains outstanding for 14 days after our request for payment of that amount; or
You commit a breach of or fail to perform any or all of your obligations under this Agreement and do not remedy that breach or non-performance (if capable of remedy) or make reasonable compensation in money (if not capable of remedy) within 30 days after receipt of notice requiring you to do so.
- You may terminate this Agreement with immediate effect by written notice to us if we commit a breach of or fail to perform any or all of our material obligations under this Agreement and do not remedy that breach or non-performance (if capable of remedy) or make reasonable compensation in money (if not capable of remedy) within 30 days after receipt of notice requiring us to do so..
- Without limiting the generality of clauses 5.2 and 5.3, a party may terminate this Agreement with immediate effect by written notice to the other party if that other party is unable to pay its debts as and when they fall due
- After expiry of the Minimum Term, either party may terminate this Agreement on 30 days prior written notice to the other without cause
- Termination of this Agreement in accordance with clauses 5.2 – 5.5 in no way limits or prejudices any right or remedy which either party may have in consequence of any breach by a party of this Agreement.
- Upon termination of this Agreement each party must promptly return to the other party all Confidential Information, software, data, materials and other property of the other party held by it
- Termination of this Agreement for any reason does not affect the rights and obligations of either party arising prior to termination. Clauses 3.4, 3.5, 4, 5.7, 5.9, 6, 7, and 10-12 survive termination of this Agreement.
- We may suspend your access to our Electronic Services without notice:
Intellectual Property and Confidentiality
- You acknowledge that all Intellectual Property in the Electronic Services, including in the Software, the Documentation and any technical information or data relating to the Software, belongs to us or our licensors and you assign all Intellectual Property you otherwise have in the Electronic Services (excluding your Data) to us and must treat that material as our Confidential Information.
You warrant that:
you own all the Intellectual Property in the Data or hold licences for that Data which entitle you to use it in connection with the Electronic Service; and
Our dealings with the Data in accordance with this Agreement will not infringe the Intellectual Property rights of a third party.
A party receiving access to the other party’s Confidential Information must:
Treat that Confidential Information as secret and confidential and as the property solely of the disclosing party; and
Not use that Confidential Information for any purpose other than the performance of this Agreement.
Clause 6.3 does not apply to Confidential Information which either party is required to disclose by any applicable law or legally binding order of any Court, or by a lawful requirement of any government or regulatory department, body, instrumentality, Minister, agency, recognised stock exchange or other authority which has jurisdiction over either party. Before such disclosure the receiving party must:
Use its best endeavours to give the disclosing party details of the information to be disclosed and the law or order requiring disclosure; and
Notify the entity requiring the information that it is the Confidential Information of the disclosing party and request the entity to whom the disclosure is to be made to treat the information as confidential.
- Limitation of liability
If any Act implies in this Agreement any term, condition or warranty and that Act avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under, that term, condition or warranty, that term, condition or warranty is deemed to be included in this Agreement. However, to the full extent permitted by law, our liability for a breach of the applicable term, condition or warranty (other than a warranty implied by Section 69 of the Trade Practices Act 1974 or any corresponding provision of any State Act) is limited to any one or more of the following, at our option:
If the breach relates to goods:
The replacement of the goods or the supply of equivalent goods;
The repair of the goods;
The payment of the cost of replacing the goods or of acquiring equivalent goods; or
The payment of the cost of having the goods repaired; and
If the breach relates to services:
The supplying of the services again; or
The payment of the cost of having the services supplied again.
- Subject to clause 7.1 and to the full extent permitted by law, we have no liability to you for any Consequential Loss, however caused (including by breach of contract, negligence or breach of statute), which is suffered or incurred in connection with or relating to this Agreement, the Electronic Services or otherwise arising out of the relationship between the parties.
To the full extent permitted by law, our liability to you for any Loss, however caused (including by breach of contract, negligence or breach of statute), which is suffered or incurred by you in connection with or relating to this Agreement, the Electronic Services or otherwise arising out of the relationship between the parties, is limited to the fees (less any tax) paid to us by you under this Agreement in the 6 months prior to the Loss occurring (less any other claims paid by us in that period).
- You access material through the Electronic Services at your own risk. We are not liable for any Loss resulting from or associated with the use or download of any material, to the maximum extent permitted by law.
- Force Majeure
Any notice to or by a party under this Agreement must be in writing and signed by the sender or, if a corporate party, an authorised officer of the sender.
Any notice may be served by delivery in person, by post or transmission by fax or email to the address or number of the recipient specified in this Agreement or most recently notified by the recipient to the sender.
Any notice is effective for the purposes of this Agreement upon delivery or transmission to the recipient, or production to the sender of a fax or email transmittal confirmation report, between Business Hours in the place in or to which the written notice is delivered or sent or otherwise at 9.00am on the next Business Day thereafter.
Unless stated otherwise, all Fees and other charges are stated exclusive of GST, which you must also pay when invoiced by us.
The law of this Agreement is the law of New South Wales and the Commonwealth of Australia. The parties submit themselves to the jurisdiction of the Courts of New South Wales and the Commonwealth of Australia for all proceedings arising in connection with this Agreement which proceedings must be issued in New South Wales.
Any failure or delay by any party to exercise any right under this Agreement does not operate as a waiver. This Agreement contains the entire understanding of the parties relating to the subject matter of this Agreement.
There is no other written or oral understanding, agreement, warranty or representation whether express or implied in any way extending, defining, varying or limiting this Agreement or otherwise relating to the subject matter of this Agreement.
If a Court determines that a word, phrase, sentence, paragraph or clause is unenforceable, illegal or void then it will be severed and the other provisions of this Agreement will remain operative.
You must not sub-license, transfer or assign any or all of your rights and obligations under this Agreement without our prior written approval, and on terms including any transfer and other fees which we consider appropriate. We may assign our rights and obligations under this Agreement without your consent.
Unless the subject matter or context requires otherwise, in this Agreement the following words and expressions have the meanings assigned to them below:
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or bank holiday in the place where an act is to be performed or a payment is to be made;
Business Hours means the hours of 9.00am to 5.00pm Indian Standard Time on Business Days;
Confidential Information means any material or information of a confidential nature including details of suppliers, customers, business practices and plans and in our case , the Intellectual Property Rights, provided by or emanating from a party (the disclosing party) to the other party (the receiving party) in relation to or in accordance with this Agreement but excludes material or information which: Is at the time of disclosure, or subsequently becomes, material or information in the public domain otherwise than by a breach by the receiving party of this Agreement; or
Becomes known by a party independently of the other party, otherwise than by any breach of a confidentiality obligation owed by a third party to the disclosing party.
Consequential Loss means indirect or consequential loss or damage, including without limitation, loss of profit or anticipated profit, loss of data, loss of use, damage to goodwill and loss due to delay; Data means material uploaded to our Website or otherwise distributed through an Electronic Service by you or a User using the Electronic Service;
Documentation means operating manuals or user manuals prepared by us which are designed to assist the understanding or application of an Electronic Service;
Fees means the amounts payable to us by you. Fees may vary from time to time.
Intellectual Property means:
Any commercial information, industrial or intellectual property (whether in material form or not) or rights of a proprietary nature, including without limitation: any copyright, invention, patent, design, trade mark, service mark, domain name, semiconductor, idea, confidential information, trade secret, know-how, database; or
Any rights protected or recognised under any laws anywhere in the world related to the above or any similar laws; and
anything (whether in material form or not) copied or derived from the above property or rights; Licence means the licences granted to you under clause 1.1;
Loss means claims, liabilities, losses, costs, expenses and damages (including Consequential Loss and legal costs and disbursements on a full indemnity basis) sustained or incurred, whether directly or indirectly or consequentially or in any other way;
Minimum Term means 1 calendar month or such other minimum term as specified in your Order; Order means your order for Electronic Services, whether made through our Website or otherwise, once accepted by us; Personnel means an officer, agent, employee or sub-contractor;
Software means those modules of the software we make available to you through our Website, as modified from time to time, and for which you have paid us the applicable Fee;
Tax Invoice has the meaning given by GST law;
Third Party Applications means the software and data services which interoperate with the Software as specified in the Order, as modified from time to time;
Third Party Providers means the suppliers of Third Party Applications;;
User means each of your Personnel who uses the Software; and
Website means the Internet site at www.Fieldomobify.com or at any other address as we notify you from time to time.
The singular includes the plural and the plural includes the singular. Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have corresponding meanings.
Headings are for ease of reference and do not affect the construction of this Agreement. The words “includes”, “including” and “such as” and similar words are not intended to be words of or imply any limitation.
If there is any inconsistency between any provision of this Agreement and a provision contained in a Schedule, the provision of this Agreement prevails to the extent of the inconsistency. All monetary amounts are in the currency as specified in your Order.
Each obligation of a party, other than the obligation to pay money, will be suspended during the time and to the extent that the party is prevented from or delayed in complying with that obligation by Force Majeure.
For the purpose of this clause, “Force Majeure” means a circumstance beyond the reasonable control of a party which occurs without the fault or negligence of the party affected, and includes inevitable accident, storm, flood, fire, earthquake, peril of navigation, strike, lock-out, boycott or other industrial dispute, hostility, war (declared or undeclared), insurrection, executive or administrative order or act of either general or particular application of a government, whether de jure or de facto, or of any official purporting to act under the authority of such a government, prohibition or restriction by domestic or foreign laws, regulations or policies and quarantine or customs restrictions.
If a party is prevented from or delayed in complying with an obligation under this Agreement by Force Majeure for a period of at least 60 days then either party may by notice to the other party terminate this Agreement.