This User Agreement (Agreement) is a legally binding agreement and governs the licensing and use of the Zenshifts Rostering software from Zenshifts Holding Pty Limited ACN 169 018 419 (We, Us or Our). By clicking “I agree” or by using or installing the Software, You (You or Your) acknowledge and agree that You have read and understood the Agreement and agree to be bound by its terms and that if You are using the Software on behalf of an entity other than Yourself, You have the power and authority to bind that entity and consent to this Agreement.
- DEFINITIONS. The following terms apply to this Agreement:
Confidential Information means all trade secrets, ideas, know how, concepts and information whether in writing or otherwise relating in any way to Us or to You, Our sub-licensees, agents and employees, Your or Our affairs or businesses, sales, marketing or promotional information, this Agreement including any such information in Our or Your power, possession or control concerning or belonging to any third party but does not include information that: (a) is, or becomes part of, the public domain otherwise than by breach of this Agreement by You or Us; (b) is lawfully obtained by either party from another person without any restriction as to use and disclosure; or (c) was in the receiving party's possession prior to disclosure to it by You or Us.
Fees means the Subscription Fee and any additional fees that You and Us agree are payable under this Agreement.
First Term means the term specified in the Plan that You and We agree for the use of the Software under this Agreement.
Subscription Fee means the non-refundable fee owed by You under the Plan specified in the Order for the license to use the Software.
Moral Rights has the same meaning as the term has in Part IX of the Copyright Act 1968 (Cth).
Order means Your purchase of the right to use the Software during a Term based on information you provided in a form on Our Website.
Our Intellectual Property Rights means copyright, and all rights in relation to inventions, registered and unregistered trade marks (including service marks), registered and unregistered designs, circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields under the laws of any jurisdiction throughout the world and includes data and usage statistics that We collect from Users of the Software but excludes Your Confidential Information.
Plan means the monthly, quarterly or yearly plan that select in your Order for the Software.
Renewal Term Subscription Fee means the fee owed by You to Us to extend the license and this Agreement for the Renewal Term.
Renewal Term means the period that starts at the end of the First Term and is usually equal in length of the First Term unless You have changed Plans and includes each subsequent Renewal Term.
Software means the Zenshifts Rostering software program and includes any updates, upgrades, modifications and documentation that We provide to You.
Term means the First Term and any subsequent Renewal Term.
User means a single person member of Your staff, whether engaged by You as an employee or contractor and a User account may not be shared with other people].
Website means the Zenshifts website, including its content, or the website of a partner of Ours who is authorised to distribute the Software.
- LICENSE. We grant You a non-exclusive, non-transferable, limited licence to use the Software from Our Website for the Term specified in the Order. You may only use the Software for the number of Users specified in the Order. This license does not allow You to use the Software to operate a service bureau, SaaS, hosting service or other similar service. Neither this Agreement nor the Software may be sold, leased, assigned, sublicensed or transferred by You, in whole or in part.
- SCOPE OF USE. You may only use the Software for Your internal business purposes and You may not modify, alter or adapt the Software or merge all or part of it with any other Software without Our prior written consent. You may not reverse engineer, reverse compile, decompile the Software or create derivative works, reproductions or adaptions of the Software or access or discover its source code or any trade secret related to the Software. You may not remove or obscure any notice relating to Our Intellectual Property Rights. You may not use the Software or the Website other than for its intended purpose and You must immediately notify us if You become aware of any unauthorised use of the Software. You acknowledge that We may incorporate technical features into the Software to enforce this Agreement.
- RECORDS INSPECTION. You acknowledge that we may audit the number of Users that You have for the Software. You agree to pay for Your excess usage of the Software.
- FEES. You agree to pay the First Term Subscription Fee as specified in the Order. You must pay a Renewal Term Subscription Fee to use the Software for a Renewal Term. We may increase the Fees at any time to reflect changes in Our standard rates and charges. The Fees that you pay to us are exclusive of taxes, levies and duties imposed by taxing authorities and You are liable for such taxes, levies and duties including the Australian goods and services tax (GST).
- CONFIDENTIAL INFORMATION. We and You agree not to disclose, duplicate or otherwise reproduce, directly or indirectly, each other’s Confidential Information in whole or in part. We and You further agree to use each other’s Confidential Information solely for the purposes of exercising each other’s rights stated under this Agreement or other rights that are clearly contemplated by this Agreement.
- WARRANTY DISCLAIMER. The Software and the Website are provided “as is” without warranties of any kind, either express or implied. We do not warrant that the Software or the Website will operate uninterrupted or error free or that any materials made available to You are accurate, complete, reliable, current or error free. We disclaim all warranties, express, statutory, and implied, including, but not limited to, the implied warranties of accuracy, quiet enjoyment, non-infringement, merchantability and fitness for a particular purpose.
- INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY. You agree that We own Our Intellectual Property Rights in the Software, including improvements, modifications or enhancements to the Software and that You obtain no right or interest in the Software or any part of the Software. You agree that We may use Our Intellectual Property Rights to further develop, improve and promote the Software.
If We are held by a court of competent jurisdiction to have infringed a third party’s copyright in a country where You are authorised to use the Software, then we may at Our own expense: (a) modify the Software so that it becomes non-infringing; (b) obtain for You a license to continue to use the Software; or if (a) or (b) cannot be accomplished on terms reasonable to Us, remove any infringing work from You and refund to You the last payment made for a First Term Subscription Fee or Renewal Term Subscription Fee. We are not liable under this indemnity if the infringement results directly or indirectly from: (i) Your use of the Software other than in accordance with the documentation or in a manner that is in breach of the Agreement: (ii) unauthorised copying, modification, adaptation or translation of the Software; or (iii) use or operation of the Software in combination with equipment, software, materials or services not authorised by Us and You indemnity Us for all losses, costs, expenses and demands that arise from the foregoing. This clause 9 states Our exclusive liability with respect to any claim of intellectual property infringement or other misappropriation and is in lieu of all other remedies, liabilities and obligations.
- LIMITATION OF LIABILITY. We are not responsible for and We specifically disclaim all liability for any loss, liability, damage (whether direct, indirect or consequential), personal injury or expense of any nature whatsoever which may be suffered by You or any third party that may be attributable, directly or indirectly, to the Software or to Your use of the Website. We are not liable for any loss or damage that may arise in connection with Your use of the Software or the Website and in no event are We liable for indirect, special, incidental or consequential damages or loss of profit or revenue, loss of anticipated savings, loss of chance, loss of opportunity and loss of reputation even if We have been notified of the possibility of such damage and notwithstanding any failure of essential purpose of any limited remedy of any kind.
- AUSTRALIAN CONSUMER LAW. Under the Australian Consumer Law included in the Competition and Consumer Act 2010 (Cth) (ACL), consumers have certain rights that cannot be excluded, including guarantees as to the fitness for purpose of goods or services. Nothing in this Agreement will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified. This Agreement must be read subject to these statutory provisions. Subject to any consumer rights under the ACL and to the extent permitted by law, We limit Our liability in respect of any claim under those provisions, at Our option, to re-supplying the Software or services again; or paying the cost of having the services supplied again.
- TERMINATION. We may terminate this Agreement immediately by notice to You if You breach a provision of this Agreement and fail to remedy the breach within 14 days. We may terminate this Agreement on 7 days’ written notice for any reason whatsoever. Either party may terminate this Agreement if the other party becomes or threatens to become subject to any form of bankruptcy or insolvency administration. Upon termination, You are no longer permitted to use the Software and You must immediately cease to us it and delete or destroy all copies of the Software in Your possession. Termination of this Agreement does not prejudice any rights or any claim that either party may have accrued against the other party up to the date of termination.
- GOVERNING LAW. This Agreement and Your use of the Website are governed by the laws of New South Wales and You and We submit to the non-exclusive jurisdiction of the courts of New South Wales and courts entitled to hear appears from those courts. This Agreement contains the entire agreement and understanding between You and Us about the Software and all prior agreements and representations made between You and Us are superseded by this Agreement.
- EXPORT. You represent and warrant that the Software will not be downloaded or used in, or transported to, a country that is subject to an Australian government embargo, or has been designated by the Australian Government as a "terrorist-supporting" country. You must not export or re-export, or permit exportation or re-exportation of the Software in violation of any export provisions of Australia or any other applicable law.
- GENERAL PROVISIONS. A. Relationship -- This Agreement -- does not create any partnership, joint venture or agency relationship between You and Us. B. No Authority -- Neither We nor You may enter into any agreements or incur any liabilities on behalf of the other party without the other party's prior written consent nor may represent to any person that it has any authority to do so. C. Publicity -- You agree that We can use Your logo in presentations to prospective users and customers and on Our Website. You agree to consider issuing a joint press release with Us about Your use of the Software. All other publicity is subject to Your and Our prior written approval. D. Waiver -- No right under this Agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right. E. Assignment -- We may assign Our rights under this Agreement without Your consent. You may not assign Your rights without Our consent. F. Information Provided by You - We require You to provide information such as Your name, address, email address, credit card number or other details when You place on Order on Us (Information). We may subsequently require further details to enable the processing of any additional Orders that You make. You agree to provide Us with current, complete and accurate Information and We agree not to sell or disclose Your Information to third parties without Your consent.