Terms and Conditions
IMPORTANT – READ CAREFULLY
This is a legal agreement ("Agreement") between you ("You" or "CUSTOMER" or “Your”) availing Cloud SERVICES and Sixth Force Solutions Pty Ltd. (“we”, “us”, “our” or “SELLER”) – "the Parties".
This Agreement sets forth the terms and conditions that govern the order placed under this Agreement by CUSTOMER to SELLER. The complete list of services, name of the Cloud vendor and their specifications mentioned in the order are referred to as Service Specifications or ”SERVICES”.
Object of the Agreement
The object of this Agreement is the temporary provisioning of SERVICES and granting of rights to use the Services to the CUSTOMER by SELLER and the provision of User Support along with our VENDOR (Refers to Cloud vendor from whom we avail services or products to fulfill the Service Specifications) during the term of this Agreement in return for the payment of a fee. A perpetual license to use the SERVICES beyond the term of the Agreement is explicitly not granted.
- By virtue of this Agreement, the Parties may disclose to each other information that is confidential (“Confidential Information”). Confidential Information shall be limited to the terms and pricing under this Agreement and Your order, Your content residing in the SERVICES, and all information clearly identified as confidential at the time of disclosure.
- A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
- Each party agrees not to disclose the other party’s Confidential Information to any third party other than as set forth in the following sentence for a period of two years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, SELLER will protect the confidentiality of Your content residing in the SERVICES for as long as such information resides in the SERVICES. Each party may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement, and each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity as required by law. We will protect the confidentiality of Your Content residing in the SERVICES in accordance with the security practices defined as part of the Service Specifications applicable to Your order.
Provisioning of the SERVICES and Documentation
- We will make the SERVICES as per Service Specifications available to You pursuant to this Agreement and Your order. The agreed features/functionality of the SERVICES follows the Service Specifications valid at the time the Agreement was concluded.
- You grant the SELLER the right to host, use, process, display and transmit Your Content to provide the SERVICES pursuant to and in accordance with this Agreement and Your order. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Content, and for obtaining all rights related to Your Content required by us to perform the SERVICES.
- The number of individuals permitted to access the SERVICES is based on the number of "USERS" requested and subsequently fully paid for by the CUSTOMER. A "USER" can be an individual, who is either (i) an employee of the CUSTOMER, (ii) an employee of a company within the CUSTOMER'S group of companies or (iii) someone, who is working under direction of the CUSTOMER or under direction of a company within the CUSTOMER's group of companies based on a contractual Agreement (e.g. external consultant, contractor).
- We shall provide the CUSTOMER with User documentation for the SERVICES in electronic form, in English either by download or by making the documentation accessible online. If we UPDATE the SERVICES, the user documentation shall be modified accordingly. This only applies, however, if the effects on the user documentation are substantial
- The CUSTOMER shall be entitled to store and print out the documentation provided, and to duplicate the same in reasonable quantities for the purposes of this Agreement, subject to retaining all logos, ownership, confidentiality and other property right notices. In all other respects, the restrictions on use agreed of the SERVICES as per section “Rights of use, Ownership Rights, and Restrictions”
Rights of Use and Restrictions
- The CUSTOMER and its Affiliates receive, with the full payment of the fee, a non-exclusive, non-perpetual, royalty free, non-sublicensable, enterprise wide, worldwide, and non-transferable right of use for the SERVICES and the Documentation, limited to the term of this Agreement, in accordance with the following provisions:
- The CUSTOMER and its Affiliates shall be entitled to use the SERVICES for the duration mentioned in the invoice or quote provided to the CUSTOMER by us.
- The conveyance of the SERVICES to the CUSTOMER takes place on a temporary basis. The CUSTOMER may only use the SERVICES for its own commercial activities.
- The CUSTOMER shall be entitled to use the SERVICES itself and through its affiliates and their respective employees or authorized agents in so far as these have been registered by it as authorized USERS. A replacement of authorized USERS with other USERS is possible at any time. The licensee is exclusively the CUSTOMER and its Affiliates. Authorized USERS are not allowed to share their user name or passwords (or other login credentials) with others, either in the employment of the CUSTOMER, its Affiliates or otherwise.
- The CUSTOMER shall not be entitled to make any changes to the SERVICES. CUSTOMER shall not embed any third-party software into the SERVICES other than what is permitted in the Documentation. For the purpose of integration with an independently developed computer program, the required application programming interface (API) may be licensed from SELLER for an optional additional license fee.
- All documents delivered to the CUSTOMER (the "Documentation") are to be kept confidential unless otherwise publicly available. Their contents may not be disclosed to third Parties without the prior written consent from us.
- If the CUSTOMER does not terminate the Agreement before the applicable period of cancellation, then SELLER shall notify the CUSTOMER within reasonable time before the expiration of the license file and update the license file, which determines the number and type of the licenses, with renewed license information. The technical effectiveness of the license file is limited to the respective fixed term of the Agreement between the Parties (hereinafter "TERM").
- The CUSTOMER retains all ownership and intellectual property rights in and to their Content. The SELLER or VENDOR retain all ownership and intellectual property rights in and to the SERVICES, derivative works thereof, and anything developed or delivered by or on behalf of SELLER under this Agreement.
- You may not cause or permit others to: (a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish download or copy any part of the SERVICES (including data structures or similar materials produced by programs); (b) access or use the SERVICES to build or support, directly or indirectly, products or services competitive to our products; or (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the SERVICES to any third party except as permitted by this Agreement or Your order.
- The CUSTOMER shall not be entitled to any additional rights which have not been expressly granted under this Agreement. The CUSTOMER shall not be entitled to use the SERVICES beyond the agreed scope or to make the SERVICES accessible to third Parties without our written approval.
- The CUSTOMER and its Affiliates’ third-party service providers may use the SERVICES as set forth herein for the purpose of performing services for CUSTOMER and its Affiliates.
- You may not cause or permit others to: (a) use the SERVICES to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (b) perform or disclose any benchmarking, availability or performance testing of the SERVICES; or (c) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Services. In addition to other rights that we have in this Agreement and Your order, we have the right to take remedial action if the policies mentioned under “Rights of Use and Restrictions” is violated, and such remedial action may include removing or disabling access to material that violates the policy.
Responsibilities and Obligations of CUSTOMER
The CUSTOMER shall fulfil all duties and obligations as necessary for the performance of the agreement. It shall in particular:
- Keep the authorizations of use and access credentials and rights allocated to it and/or to its USERS confidential, protect the SERVICES from access by third parties not specifically allowed under this Agreement and not pass on the same to unauthorized USERS. This authorization data and credentials are to be protected by appropriate and usual measures. The CUSTOMER shall immediately notify us if the suspicion exists that non-authorized individuals may have become aware of any USER's access credentials or passwords, or have otherwise circumvented the provided USER authentication methods of the SERVICES; and
- Comply with the restrictions/obligations in relation to “Rights of Use, Ownership Rights, and Restrictions” in particular and:
- Name all USERS intended to use the SERVICES under “Rights of Use and Restrictions”, and also any changes to the USERS and to keep all USER-relevant information up-to-date
- All USER accounts must be specified by using a non-ambiguously assigned e-mail address (login name) for each authorized USER according to section “Rights of Use and Restrictions”. The use of e-mail distribution lists or generic user names or sharing of passwords to access the SERVICES is explicitly not allowed;
- obligate the authorized USERS that they will comply with all provisions of this Agreement applicable to them.
Support will be provided by SELLER and VENDOR for all the Parties as mentioned in the “Rights of Use and Restrictions” section.
- Details of Self-help resources shall be made available to the CUSTOMER by us
- "User Support" includes end user email support for the use of the SERVICES.
- We shall provide User-Support in English and by email only.
- Support queries can be categorized in to 3 levels:
- Level 1: Production SERVICES down caused by a defect in the SERVICES
- Level 2: Any unknown defects in the SERVICES
- Level 3: Help query
- All three levels of support queries will be acknowledged within 1 business day from the receipt of the query.
- L1 queries caused by APPLICATION (refers to all components of the software application provided by us) will be resolved in one business day. Other L1 queries shall be resolved as per Support levels set by our VENDOR.
- L2 queries shall be resolved by SELLER on a case-to-case basis. Resolution will be taken in agreement with the CUSTOMER
- L3 queries shall be resolved by SELLER in one to two business days.
- For all three levels of queries, SELLER shall make sure the CUSTOMER is updated about the ongoing proceedings.
- We shall make commercially reasonable efforts to not fail in the service levels.
Maintenance of the SERVICES
During the SERVICES Period, the SELLER or VENDOR may update the SERVICES to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of Third-Party Content.
We will ensure updates to the SERVICES will not materially reduce the level of performance, functionality, security or availability of the SERVICES during the SERVICES Period of Your order.
Protection of your Content
- Both Parties understand and agree that all data submitted by CUSTOMER to the SERVICES and subsequently contained in any reports, spreadsheets or analysis of any kind generated by the SERVICES (together "CLIENT DATA") is exclusive property of CUSTOMER and nothing contained herein shall restrict CUSTOMER from using such CLIENT DATA in any way it deems fit. SELLER shall only use CLIENT DATA for the benefit of CUSTOMER as required to its obligations under this Agreement.
- We, through the VENDOR, will protect Your Content by providing administrative, physical, technical and other safeguards and describe other aspects of system management applicable to the SERVICES. The SELLER or VENDOR may perform certain aspects of the SERVICES (e.g., administration, maintenance, support, disaster recovery, data processing, etc.) from locations and/or through use of subcontractors, worldwide.
- You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content, including any viruses, Trojan horses, worms or other harmful programming routines contained in Your Content, or from Your use of the SERVICES in a manner that is inconsistent with the terms of this Agreement.
- You may disclose or transfer Your Content to a third party, and upon such disclosure or transfer we are no longer responsible for the security or confidentiality of such content.
- Unless otherwise specified in the Service Specifications, Your Content may not include any health, payment card or similarly sensitive data that imposes specific data security or data protection obligations on the processing of such data. If such sensitive data is would be included in the SERVICES You have ordered, You may purchase additional services from SELLER designed to address particular data security or data protection requirements applicable to Your business or Your Content.
Warranties, Disclaimers, and Exclusive Remedies
- We warrant that for a period of 180 days from the date the APPLICATION is purchased, the APPLICATION will perform in conformance with its specifications. In the event APPLICATION is not performing as per the specifications within the 180-day warranty period, at CUSTOMER’s option, SELLER shall correct or repair the SERVICES. If SELER is unable to correct or repair the APPLICATION, the SELLER shall make commercially reasonable efforts to correct or repair the APPLICATION. Any corrected APPLICATION will be warranted on the same basis as provided in this Section for 180 days from the date of acceptance of the repaired or replaced APPLICATION.
- We warrant that the SERVICES furnished to CUSTOMER shall not contain any Malicious Code which is defined as (i) any undisclosed program routine, device or other feature or hidden file, including, without limitation, a time bomb, virus, software lock, trojan horse, drop-dead device, worm, malicious logic or trap door, that is designed to delete, disable, deactivate, interfere with or otherwise harm the Software or any hardware, software, data or other programs of CUSTOMER or its Affiliates, or (ii) any transmitting or activating computer program, any communication feature or tool which enables us to collect information regarding CUSTOMER’s activities or data, or any hardware-limiting, software-limiting, or services-limiting function (including, but not limited to, any key, node lock, time-out or other similar functions), whether implemented by electronic or other means, or (iii) any viruses or malware. Notwithstanding the foregoing, it is understood that access to the SERVICES may be limited by means of License expressly set forth in the Agreement.
- WE DO NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT SELLER SHALL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. WE ARE NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT OR THIRD-PARTY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES.
- TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability
- IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), SALES, DATA, DATA USE GOODWILL OR REPUTATION.
- IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SELLER AND THEIR AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID FOR THE SERVICES UNDER THE ORDER GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY UNDER SUCH ORDER.
- THE EXCLUSIONS AND LIMITATIONS IN SECTION I. AND SECTION II. DO NOT APPLY TO LIABILITY FOR SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
- We shall defend, indemnify, and hold harmless CUSTOMER, its Affiliates, and each of its employees against any and all liability, damages, losses, claims, demands, actions, causes of action, or any of them arising out of third party claims to ownership of the SERVICES or that the SERVICES otherwise infringes or misappropriates any intellectual property rights of any third party. SELLER shall have the right to control the defense of any litigation, and to settle or compromise all claims or lawsuits subject to its indemnity. In the event the use of the SERVICES furnished by us hereunder, or any part thereof, is held to constitute infringement, we agree that it shall, at its option and sole expense, either (1) procure for CUSTOMER the right to continue using the infringing subject matter, or (2) replace the infringing items with non-infringing items of equivalent value and functionality or modify the same so that it becomes non-infringing and retains its full value and functionality.
- Except for our indemnification obligations, and damages related to SELLER’s breach of its obligations of confidentiality, or damages arising in connection with SELLER's obligations regarding malicious code, neither CUSTOMER nor their affiliates shall be liable to the other under any contract, negligence, strict liability or other legal or equitable theory for any special, incidental, indirect, consequential, or punitive damages.
Breach of Provisions by CUSTOMER
Should the CUSTOMER breach the provisions for reasons for which it is responsible, and should the CUSTOMER continue to breach or repeatedly breach the provisions for a period of thirty (30) days after written notice is sent to the CUSTOMER by SELLER and if the CUSTOMER is responsible for the same, SELLER may terminate the Agreement without any additional period of notice.
- Agreements subject to charge which have been concluded for a fixed period or for which a minimum Agreement term has been agreed shall be extended by the agreed period or minimum term, at the most, however, by 1 (one) year, unless they have been terminated by one of the Parties providing a written notice of 90 (ninety) calendar days in advance of the expiration date of the current minimum Agreement term. This applies subject to any deviating agreements with the CUSTOMER.
- Either party may terminate the Agreement for the other party's material breach of this Agreement; provided such material breach has not been cured within 30 (thirty) days of the non-breaching party's notice thereof. it is considered agreed for any other material breach, that the immediate termination must be preceded by a written reminder to the defaulting party with a deadline of 30 (thirty) working days.
- Notices of termination must be given in written form.
- This Agreement may only be modified in writing and signed by both Parties,
- Either Party is allowed to transfer this Agreement including all rights and obligations to an affiliated corporation. “Affiliate” means any legal entity in which a party, directly or indirectly, holds fifty percent (50%) or more of the shares or voting rights or controls or is under common control with that legal entity. “Control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract or otherwise. Each party shall inform the other party in writing about the new contractual partner within a period of 30 (thirty) calendar days before the effective date of the transfer. Supplier is not allowed to assign this Agreement to any third party without prior written consent of the Customer.
- For security purposes, the CUSTOMER may not be allowed access to the cloud servers. “Cloud Server” refers to the components in the SERVICES that are used to host the APPLICATION and its databases.
- To the extent the execution of this Agreement shall entail processing of personal data (the “Personal Data”) within the meaning of applicable data protection laws and especially the General Data Protection Regulation 2016/679 (“GDPR”) (the "Data Protection Legislation"), each party agrees to comply with the Data Protection Legislation. Each party shall ensure that any Personal Data provided to the other party by, or on its behalf or by, or on behalf of a related data subject has been collected lawfully, fairly and in a transparent manner, so as to enable such Personal Data to be processed by each party. Where necessary, each party will provide or procure to provide the other party with all necessary evidence as to the adequate information of data subjects whose Personal Data will be processed, as may be reasonably requested by each party.