These terms and conditions (which we refer to as the “Terms”) relate to the etz Technologies Ltd (etz Technologies Ltd Pty for Customers in Australia) services and products and should be read carefully because they are legally binding and enforceable. If you are acting on behalf of an entity then you represent that you have the authority to agree to these Terms on behalf of that entity.
For ease of reference certain terms have specific meanings which are set out in Schedule 1 which sets out how these Terms are to be understood.
The Terms together with the Order Form make up the Agreement between etz and you (a single entity) in relation to the Service.
1. COMMENCEMENT AND DURATION
1.1 Unless we or you end this Agreement in accordance with clause 15, this Agreement shall take effect on the Effective Date set out in the Order Form and shall continue in force for the Initial Term.
1.2 At the end of the Initial Term and any further term arising under this clause 1.2, this Agreement shall automatically renew for one or more for successive renewal terms (each a “Renewal Term”) equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at our then current fees.
2. OUR PROVISION OF THE SERVICE
2.1 In consideration of the Fees we will make the Service available to your Users by setting up an account and providing login details for that account as soon as practicable following the Effective Date and we permit your Users to access the Service for the duration of this Agreement.
2.2 We warrant to you that we shall provide the Service to your Users using reasonable skill and care.
3.1 The licence granted to you under this clause 3 shall be subject to the restrictions on use set out in clauses 4 and 5.
3.2 We grant you a non-exclusive, non-transferable licence (with no right to sub-licence except in relation to your Affiliates in accordance with clause 3.3) during the term of this Agreement to permit your Users to access and use the Service via a standard web browser to process timesheets and payment and billing for your internal business purposes. This licence includes our permission for Clients and Candidates to upload information on to the Service for processing by you.
3.3 You may with our prior written permission allow an Affiliate company to permit access and use of the Service by its Users provided that the terms of this Agreement shall apply to such use by your Affiliate. You are responsible for all acts and omissions of your Affiliates and Users as if they were your acts and omissions.
3.4 Nothing in this Agreement restricts us from providing the Service to any third party.
4. YOUR USE OF THE SERVICE
4.1 You shall comply and shall procure that all Users comply with the terms of the acceptable use policy set out on the ETZ Website.
4.2 You shall ensure that no unauthorised person accesses the Service using your account and shall immediately notify us if you know or suspect unauthorised access or other security breach.
4.3 To help us provide support to you, you shall appoint one User from your organisation who will have comprehensive knowledge of your systems to act as the single point of contact for your organisation in relation to our support of the Service.
4.4 Our provision of data storage to you is subject to a fair use policy set out on the etz Website. If you exceed the limits set out in the fair use policy we shall notify you in writing (which may be by email to your designated contact). Where you continue to exceed those limits following our notice we may increase our Fees to reflect your increased use of the Service.
4.5 We may from time to time during this Agreement and for a period of 60 days following its termination at our expense monitor and electronically audit your use of the Service to ensure your compliance with this Agreement. The audit will only relate to information held on our systems and will not involve any inspection of your systems. We will conduct the audit in such a manner as not to substantially interfere with your use of the Service. If our audit reveals that you have underpaid Fees, you agree to pay to us an amount equal to such underpayment promptly following our written request for the same together with any interest (if applicable).
4.6 It is your responsibility to ensure that you comply with the laws of the jurisdiction(s) in which you operate, including in respect of the Service.
5. RESTRICTIONS ON YOUR USE OF THE SERVICE
5.1 To the extent permitted by applicable law, the licence(s) granted in clause 3 shall be subject to the following prohibitions set out below. Unless we expressly agree otherwise in this Agreement, you shall not:
5.2 You do not have permission to access the object code or source code of etz Technology used to provide the Service, either during or after the term of the Agreement.
6.1 If you are a Customer, you will be provided with account and technical contact information. Support will be delivered during local business hours.
7.1 This Clause 7 shall apply to you unless we have a written agreement with a Partner under which the Partner commits to pay the Fees on your behalf. If for any reason the Partner fails to pay the Fees or you request to pay us for the Service directly, we will permit you to continue to receive the Service subject to your payment of the Fees at our then current rates as published on the etz Website.
7.2 Unless otherwise stated in the Order Form, the initial fees will be equal to the first month’s subscription fee and any setup and training charges where applicable.
7.3 Invoices shall be issued in respect of each Billing Period or as otherwise mutually agreed upon.
7.4 We shall collect payment from you in advance of our provision of the Service for each Billing Period.
7.5 Charging in relation to the Service shall commence from the date when we activate the Service for you (by making the Service accessible to you through web pages and by providing login details to you). If the Service commences partway through a month, the Fees for that month shall be reduced pro rata.
7.6 Fees shall be calculated on the basis set out in the Order Form.
7.7 You are responsible for paying the Fees for each Billing Period during the term of this Agreement. At the end of each Billing Period we will reconcile your actual usage against the basis set out in the Order Form and will adjust the invoice for the following Billing Period to include additional Fees due in respect of any excess usage. We will not issue a credit or refund if your actual usage is less than the relevant allocation set out in the Order Form.
7.8 Fees must be paid by direct debit, standing order or bank transfer (using such payment details as we notify you from time to time) and you agree to assist us in setting up the agreed payment method.
7.9 All amounts and fees referred to in this Agreement are payable in pounds sterling or such other currency specified in the Order Form and are exclusive of value added tax or applicable sales tax which shall be added at the appropriate rate.
7.10 You shall provide us with complete and accurate billing and contact information at all times during the term of the Agreement.
7.11 If you reasonably and in good faith dispute an invoice or part of it, you shall notify us of the dispute within 7 days of receipt of the disputed invoice, including details of why the invoiced amount is incorrect and, if possible, how much you consider is due and you and we shall endeavour to promptly resolve any such dispute in accordance with the dispute resolution procedure set out in clause 18. You will pay all undisputed Fees by their due date.
7.12 If you do not pay any amount properly due to us, we may claim interest on the late payments at the rate of 2% above the base lending rate of Barclays Bank Plc from the due date until the date on which the payment is made in full.
7.13 Without limiting our rights under clauses 7.12, 14.1 and 15.3, we may suspend the Service if you either: (i) cancel your direct debit instruction or standing order for payment of the Fees; or (ii) default in your payment obligations for a continuous period of 30 days, such period to be calculated from the due date provided that we have given you at least seven (7) days prior written notice that Fees are overdue. If, following a suspension the Service, we receive from you by way of cleared funds to our bank account all outstanding amounts due and (for suspension under (i) above) you set up a new direct debit instruction or standing order for the payment of Fees, the Service shall no longer be suspended and we shall resume the provision of the Service. Resumption of the Service shall not apply where we have terminated the Agreement under clause 15.3.
7.14 We may increase the Fees in accordance with clause 17 (Changes).
7.15 Where we agree to provide professional services in respect of work which is outside the scope of the Service, we shall charge for such professional services at our prevailing rates on the basis set out on the etz Website.
7.16 You cannot cancel your payment obligations regarding the Fees and you are not entitled to a refund of Fees which you have paid to us.
8. CONFIDENTIAL INFORMATION
8.1 Each party will keep secret and treat in strictest confidence all Confidential Information of the other party obtained in connection with this Agreement. Neither party will, without prior consent of the other, disclose or make any Confidential Information available to any third party, or use the same for its own benefit, other than as contemplated by this Agreement.
8.2 You acknowledge that details of the Service (including pricing information and the terms of this Agreement) constitute our Confidential Information. We acknowledge that the Customer Materials and all personal data relating to Users and Candidates are Confidential Information which belongs to you.
8.3 Each party may disclose Confidential Information to those of its personnel and its sub-contractors who need to know the Confidential Information for the purposes of implementing this Agreement provided that that, prior to such disclosure, each of those sub-contractors and members of its personnel are made aware of these confidentiality obligations and agree to adhere to such terms.
9. PERSONAL DATA
9.1 If you provide us with personal data, you shall be the data controller and we shall process such personal data as a data processor as follows: (a) we shall not transfer such personal data to a country outside the EEA without your prior written consent; (b) you shall ensure that you are entitled to transfer the personal data to us and have informed all relevant third party data subjects of the transfer and obtained their consent to our processing of the personal data to provide the Service; (c) we will process the personal data only in accordance with this Agreement and any lawful instructions reasonably given by you or on your behalf from time to time; and (d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
9.2 Individual Users, when they initially log in, may be asked whether or not they wish to receive marketing and other non-critical Service-related communications from us from time to time. They may opt out of receiving such communications at that time or at any subsequent time by changing their preferences under ‘Personal Setup’. You acknowledge and agree that that we may also communicate directly with individual Users in relation to the Service.
9.3 If you are a Customer, you agree that we can disclose the fact that you are a customer in relation to the Service.
10. INTELLECTUAL PROPERTY
10.1 All Intellectual Property Rights to the etz Technology, ETZ Materials and the Service belong to us and our licensors at all times during the Agreement. All Intellectual Property Rights in the Customer Materials belong to you.
10.2 We warrant to you that we have the right to permit your Users to access and use the Service and that their use of the same in accordance with the Agreement shall not infringe third party Intellectual Property Rights.
10.3 You warrant to us that in relation to any content you provide to us or submit to the Service (including but not limited to the Customer Materials) that you own the Intellectual Property Rights to such content or you have the authority of the owner to provide such content and to grant us and our subcontractors permission to use the same for the purpose of providing the Service and that our authorised use of the same in accordance with this Agreement shall not infringe third party Intellectual Property Rights.
10.4 You grant to us a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Service for the purposes of performing this Agreement.
10.5 You grant to us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by you or Users relating to the operation of the Service.
10.6 We may include the text and logo ‘Powered by etz logo’ at the foot of the Customer-branded pages on the Service.
11. THIRD PARTY APPLICATIONS
11.1 We or third parties may (without obligation) make available interfaces such as APIs to facilitate the transfer of data between the Service and third party applications. Third party applications may also contain the capability to transfer data directly to the Service and receive data directly from the Service. In relation to the transmission of any data between the Service and any third party application used by you or on your behalf, whether directly or via an interface:
11.2 You acknowledge that the transmission of data between the Service and third party applications does not form part of the Service and requires expert technical knowledge. You agree that any such data transfers are undertaken at your risk and we do not accept any responsibility for any loss, destruction or corruption of data arising from any such data transfer.
12.1 Our commitments relating to the Service (including the warranty we give to you in clause 2.2) are comprehensively expressed in this Agreement and are given in lieu of all other representations, warranties, terms and conditions (whether oral or written, express or implied) including satisfactory quality, fitness for any particular purpose and availability, which are excluded to the maximum extent permitted by law. Except to the extent expressed in this Agreement, the Services are provided on an ‘as is’ and ‘as available’ basis.
13. OUR LIABILITY TO YOU
13.1 We will be liable to you without limit to the extent our negligence causes death or personal injury or for our fraudulent misrepresentations. The remaining provisions of clause 13 shall be subject to this clause 13.1.
13.2 We will not be liable to you for indirect or consequential loss or for the following types of loss irrespective of whether they are a foreseeable consequence of our breach: (i) loss of profit; (ii) loss of business; (iii) loss of revenue; (iv) loss of opportunity; (v) loss of goodwill; (vi) loss of anticipated savings; and (vii) loss of contracts.
13.3 Our total liability to you under this Agreement in respect of all claims in any year shall be limited to the annual Fees paid by you for that year.
13.4 We shall not be liable for any delay or failure in the provision of the Service to you to the extent that such delay or failure is caused by your failure to comply with your obligations under this Agreement.
13.5 We shall not be liable for any error, inaccuracy or omission in the output of the Service based on any inaccurate or incomplete information which you have provided to us.
13.6 We shall not be liable to you for any act or omission by us due to events outside of our reasonable control including but not limited to acts or restraints of governments or public authorities; war, revolution, riot or civil commotion; strikes, lock-outs or other industrial action; failure of supplies of power, fuel, transport, equipment or other goods or services (including internet and telecommunications equipment and services); denial of service attacks; and explosion, fire, flood or natural disaster.
14. SUSPENDING THE SERVICE
14.1 Without limiting clause 7.13, we may suspend or restrict your use of the Service if we reasonably believe that you are in breach of this Agreement or are likely to be in breach of this Agreement while we investigate the suspected breach. Any investigation will be carried out promptly and you agree to cooperate with us in connection with any such investigation.
14.2 We can suspend or restrict the Service to carry out necessary planned maintenance services or during any technical failure of the Service where it is necessary to protect the security of the Service or the data or our systems provided that in each case we will aim to keep all service suspensions to a minimum. We shall use reasonable efforts to carry out planned maintenance outside Business Hours and we shall endeavour to give you at least 8 hours prior notice of any planned maintenance.
14.3 Any suspension of the Service will not affect your obligation to pay the Fees due during any period of suspension.
15. ENDING THIS AGREEMENT
15.1 You or we may terminate this Agreement for convenience at the end of the Initial Term or then current Renewal Term by giving written notice to the other party at least thirty (30) Business Days prior to the date of the invoice for the following Renewal Term.
15.2 Either party may terminate a demonstration account used for the purpose of evaluating the Service at any time.
15.3 Each party may terminate this Agreement immediately on written notice if the other party:
15.4 We may terminate this Agreement immediately on written notice to you if we reasonably believe that any of your personnel have behaved towards our personnel in a manner which is threatening, abusive or which amounts to harassment.
16. CONSEQUENCES OF EXPIRY OR TERMINATION
16.1 Subject to clause 16.2 below, when this Agreement comes to an end for any reason:
16.2 If the Agreement is terminated for any reason, we shall subject to your continued compliance with the terms of this Agreement (including in relation to payment) make the Customer Materials accessible to you via the Service for 60 days following termination for the sole purpose of allowing you to download and remove the same from the Service. It is your responsibility to remove Customer Materials promptly following termination and after the end of the 60 day period we shall without further notice irrevocably delete from the Service and our other computer systems all your Confidential Information and Customer Materials.
16.3 Clauses 16.2 shall not apply to Customer Material stored in relation to a demonstration account used for evaluation purposes only which we shall irrevocably delete from the Service on termination of the account without further notice to you.
17.1 We can make changes to the Service, the Fees and/or this Agreement at any time by giving you at least 30 days prior written notice (the “Notice Period”) of the increase (which we may give by publishing the changes on the ETZ Website). If we do make changes to the Service or the Fees or this Agreement which are materially to your detriment which you do not accept then you may terminate this Agreement on written notice to us at any time during the Notice Period and we will provide you with a refund of fees paid in advance in respect of the period following termination. If you have not terminated this Agreement during the Notice Period then the changes will apply from the end of the Notice Period.
18.1 The parties shall use their best efforts to negotiate in good faith and settle amicably any dispute that may arise out of or relate to this Agreement (or its construction, validity or termination) (a "Dispute"). If a Dispute cannot be so settled either party may give to the other a notice in writing (a "Dispute Notice"). Within seven (7) Business Days of the Dispute Notice being given the parties shall each refer the Dispute to a senior director of etz and a senior director of your organisation (or equivalent) who shall meet in order to attempt to resolve the Dispute. If the Dispute is not settled by agreement in writing between the parties within ten (10) Business Days of the Dispute Notice the parties shall act in good faith in seeking to agree whether the Dispute should be settled through mediation.
19.1 We may give notice to you by means of:
such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
19.2 You may give notice to us (such notice shall be deemed given when received by us) at any time by letter addressed to the Managing Director and delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us at the address set out in the table at clause 20.1.
20. GOVERNING LAW, JURISDICTION, CONTRACTING ENTITY AND NOTIFICATION ADDRESS
20.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the Relevant Jurisdiction.
20.2 The parties irrevocably submit to the exclusive jurisdiction of the courts in the Relevant Jurisdiction.
21.1 You may not transfer, assign or otherwise dispose of this Agreement to any person without our consent. We may assign this Agreement on notice to you. We may appoint sub-contractors to perform some or all of our obligations under this Agreement provided that we shall remain fully liable to you for the acts and omissions of our subcontractors.
21.2 A person which is not a party to this Agreement may not enforce any terms of this Agreement.
21.3 The Agreement and the acceptable use policy referred to in this Agreement contains the entire agreement between you and us relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between you and us in relation to such matters. You and we acknowledge that neither you nor we have entered this Agreement relying on any non-fraudulent statement which is not expressed in this Agreement.
21.4 Except as set out in clause 17, this Agreement may only be varied by a document signed by both parties.
21.5 Each party shall comply with applicable Anti-Corruption Laws and shall not do, nor omit to do, any act that will cause the other party to in breach of any of the Anti-Corruption Laws.
21.6 The parties are independent contractors and nothing in this Agreement and no action taken by either or both of the parties under this Agreement shall operate to constitute a relationship of principal/agent, partnership or joint venture of any kind.
21.7 If we fail to enforce a right under this agreement, that failure will not prevent us from enforcing other rights or the same type of right on a later occasion.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Term, unless otherwise defined, capitalised terms shall have the following meanings:
“Affiliate” means an entity that controls, is controlled by, or is under common control with the relevant entity;
“Agreement” means the agreement between us and you relating to the Service comprising these Terms and the Order Form and any amendments to the Agreement from time to time;
“Anti-Corruption Laws” mean the laws and regulations of the Relevant Jurisdiction relating to bribery and corruption as applicable to the parties;
“Billing Period” means the period in respect of which we invoice for the Service as set out in the Order Form;
“Business Day” means any week day, other than a bank or public holiday in the Relevant Jurisdiction;
“Business Hours” means between 09:00 and 17:30 on a Business Day;
“Candidate” means a temporary worker contracted by you to work for a Client;
“Client” means an organisation which contracts with you for the supply of Candidates;
“Confidential Information” means any information which is marked as ‘confidential’ or which is proprietary or confidential in nature but shall not include any information which the recipient can show: (a) was at the time of disclosure or has subsequently become public knowledge other than by breach of this Agreement; (b) is received by the recipient from an independent third party who has a lawful right to disclose the same without restriction; or (c) was already in the recipient’s lawful possession at the date of disclosure without obligation of confidence;
“Customer Materials” means all information, data and material uploaded to, stored on, generated by, processed using or transmitted via the Service by or on behalf of you or a Client or a Candidate or otherwise provided by you to us in connection with the Service;
“Customer” means a single entity whose Users are permitted to access the Service pursuant to a Customer Contract with us;
“Customer Contract” means a contract between us and a Customer in relation to the Service;
“data controller”, “data processor”, “personal data”, “process” and “processing” shall have the meanings given in the Data Protection Legislation;
“Data Protection Legislation” means the applicable data protection laws and regulations in the Relevant Jurisdiction;
“Documentation” the documentation relating to the Service which we may from time to time produce and make available to Customers and/or Partners specifying how the Service should be used;
“etz”, “we”, “us”, “our” and “ours” shall refer to the etz contracting entity as set out in the table at clause 20.1 corresponding to your place of establishment as set out in the Order Form;
“etz Material” means the audio and visual information, documents, software, products and services made available to you as part of the Service;
“etz Technology” means all of our proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) which we make available in the course of providing the Service;
“etz Website” means the country-specific part of the etz website at the URL set out in the table at clause 20.1 corresponding to your place of establishment as set out in the Order Form;
“Effective Date” the date on which the Agreement is made being the date on which you accept the Terms and Order Form;
“Fees” means the fees payable in respect of the Service as set out in the Order Form and such other fees as are expressed in these Terms,
“Initial Term” the initial period during which your are obliged to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement;
“Partner” means any person or entity which promotes the Service to potential Customers where we grant a licence to Customers directly;
“Relevant Jurisdiction” means (i) Australia if you are a company incorporated in Australia or New Zeland, or (ii) England and Wales if you are not incorporated in Australia or New Zeland;
“Schedule” means a schedule attached to the Agreement;
“Service” means all the etz Technologies Ltd (etz Technologies Ltd Pty for Customers in Australia) services and products provided or to be provided by us to the Customer, including without limitation the provision of the online timesheet service and (where applicable) support services;
“User” means a Customer employee, representative, consultant, contractor or agent who is authorized to use the Service and has been supplied user identifications and passwords by you (or by us at your request); and
“you”, “your”, “yours” shall be a reference to the Customer entity identified in the Order Form.
1.2 References to you performing any obligation or being subject to any restriction shall be deemed to include a reference to you procuring its Users (as defined in the Order Form) to comply with that obligation or restriction.
1.3 Words in the singular include the plural and vice versa and words in one gender include any other gender.
1.4 a reference to:
1.5 Headings are for convenience only and shall not affect the interpretation of the Agreement.
1.6 a reference to a statute or statutory provision includes:
1.7 In the event of any conflict or ambiguity between the provisions of the Order Form and the Terms, the Order Form shall prevail.