“Access Fee” means the monthly fee payable by You in accordance with the fee schedule set out on the Website (which Martian Logic may change from time to time on notice to You), or the fee which is otherwise payable (whether upfront or in instalments) for a Fixed Term Agreement.
“Backup File” means a copy of your Data which we create and store in the form of a SQL Server backup file.
“Confidential Information” includes all information exchanged between the parties to this Agreement including employee Personal Information, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
“Data” means any data inputted by You or with Your authority into the Website.
“Fixed Term Agreement” has the meaning given to it by clause 8.1(b).
“Invited User” means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
“Intellectual Property Right” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Martian Logic” means Martian Logic Pty Limited.
“Month-to-Month Agreement” has the meaning given to it by clause 8.1(a).
“Personal Information” means having the meaning provided in section 6 of the Privacy Act 1988 (Cth).
“Proposal Document” means the document which Martian Logic may have provided to You that includes the Support Matrix.
“Service” means the online Recruitment & Onboarding Software Services made available (as may be changed or updated from time to time by Martian Logic) via the Website.
“Subscriber” means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
“Support Matrix” means the table located under the heading “Support Matrix” in the Proposal Document.
“Website” means the Internet site at the domain www.martianlogic.com or any other site operated by Martian Logic Pty Limited.
“You” means the Subscriber, and where the context permits, an Invited User. “Your” has a corresponding meaning.
2. USE OF SOFTWARE
2.1 Subject to Your ongoing compliance with the terms of this Agreement, Martian Logic grants You the right to access and use the Service via the Website with the particular user roles available to You according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.
2.2 You acknowledge and agree that:
(a) the Subscriber determines who is an Invited User;
(b) the Subscriber determines what level of user access an Invited User has;
(c) the Subscriber determines which organisationsan Invited User has access to;
(d) the Subscriber is responsible for all Invited Users’ use of the Service;
(e) the Subscriber controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
(f) if there is any dispute between a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any.
3. YOUR OBLIGATIONS
3.1 You must pay all amounts specified in any invoice which Martian Logic issues to You under this clause 3 within 14 days of the invoice date.
3.2 Martian Logic will issue invoices to You for the amounts and at the intervals specified in the Proposal Document it provides to You.
3.3 If Martian Logic does not issue a Proposal Document to you or the Proposal Document does not contain terms as to payment, then Martian Logic will issue an invoice for the Access Fee to you each month starting one month from the date You added Your first organisation to Your Martian Logic account.
3.4 All invoices Martian Logic issues under clause 3.3 will include the Access Fee for the preceding one month of use. If this month-to-month arrangement applies, Martian Logic will continue invoicing You monthly until this Agreement is terminated in accordance with clause 8.
3.5 All Martian Logic invoices will be sent to You, or to a billing contact whose details are provided by You, by email.
3.6 Martian Logic may from time to time offer You preferential pricing or discounts for the Access Fees as a result of the number of organisations that You have added to the Service or that have been added with Your authority or as a result of Your use of the Service. Eligibility for such preferential pricing or discounts is conditional upon Your acceptance of responsibility for payment of any Access Fees in relation to all of Your organisations.
3.7 Notwithstanding clause 3.6 of the Agreement, Martian Logic reserves the right to render invoices for the full (non-discounted) Access Fees due (which You must pay immediately upon receipt) or suspend or terminate Your use of the Service in respect of any or all of Your organisations if any invoices for the discounted Access Fees are not paid in full by the due date for payment.
3.8 You must only use the Service and Website for Your own lawful internal business purposes, and in accordance with this Agreement.
3.9 You must ensure that all usernames and passwords required to access the Service are kept secure and confidential.
3.10 You must immediately notify Martian Logic of any unauthorised use of Your passwords or any other breach of security and Martian Logic will reset Your password and You must take all other actions that Martian Logic reasonably deems necessary to maintain or enhance the security of Martian Logic's computing systems and networks and Your access to the Services.
3.11 As a condition of this Agreement, when accessing and using the Services, You must:
(a) not attempt to undermine the security or integrity of Martian Logic's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
(b) not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
(c) not gain, and not attempt to gain, unauthorised access to any materials or data other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
(d) not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
(e) not, and not attempt to, modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
3.12 As a condition of this Agreement, if You use any communication tools available through the Website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful purposes.
3.13 You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
3.14 When You make any communication on the Website, You represent that You are permitted to make such communication. Martian Logic is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. You must exercise caution when using the communication tools available on the Website.
3.15 Martian Logic reserves the right to remove any communication at any time in its sole discretion.
3.16 You indemnify Martian Logic against any claims which any person or entity makes against Martian Logic concerning misuse or unauthorised use by You (or any of Your employees or agents) of any Data or Personal Information.
4. CONFIDENTIALITY AND PRIVACY
4.1 Unless the relevant party has the prior written consent of the other or unless required to do so by law:
(a) each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement;
(b) neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement;
(c) each party's obligations under this clause will survive termination this Agreement;
4.2 The provisions of clause 4.1 shall not apply to any information which:
(a) is or becomes public knowledge other than by a breach of this clause;
(b) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
(c) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(d) is independently developed without access to the Confidential Information;
(e) is required to be disclosed by law.
5. INTELLECTUAL PROPERTY
5.1 Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Martian Logic (or its licensors as the case may be).
Ownership of Data
5.2 Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Access Fee when due. You grant Martian Logic a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
5.3 Upon receipt of a written request from You, Martian Logic will provide you with a Backup File within 30 days of receipt of such a request, provided that at the time of your request, no invoices for any Access Fees are overdue and You are not otherwise in breach of any terms of this Agreement.
Backup of Data
5.4 You must maintain copies of all Data inputted into the Service. Martian Logic adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data.
Third-party applications and your Data
5.5 If You enable third-party applications for use in conjunction with the Services, You acknowledge that Martian Logic may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. Martian Logic shall not be liable for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
6. WARRANTIES AND ACKNOWLEDGEMENTS
6.1 You warrant that if You have registered to use the Service on behalf of another person, You have the authority to enter into this Agreement on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of this Agreement, without limiting Your own personal obligations under this Agreement.
Your other warranties
6.2 You warrant that:
(a) You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorised to use the Service;
(b) You are authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else);
(c) You have authority from any person who has any right in relation to any Data to use that Data for the purpose connected with You acquiring the Service;
(d) You have complied with any obligations imposed upon You or the entity you represent under the Privacy Act 1988 (Cth) in connection with any Data;
(e) You are acquiring the Services for business purposes only.
6.3 You acknowledge and agree that:
(a) Martian Logic has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You;
(b) If You use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
(i) You are responsible for ensuring that You have the right to do so;
(ii) You are responsible for authorising any person who is given access to information or Data, and you agree that Martian Logic has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
(c) Martian Logic does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Martian Logic is not in any way responsible for any such interference or prevention of Your access or use of the Services; and
(d) it is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
Martian Logic’s warranties
6.4 Martian Logic warrants that it will perform the Services as detailed in the Support Matrix in accordance with the service levels detailed in the Support Matrix.
6.5 Martian Logic warrants that it is the legal and beneficial owner of the Intellectual Property Rights comprised in the Services and the Website.
6.6 Apart from the above, and to the extent permitted by law, Martian Logic gives no warranty about the Services. Without limiting the foregoing, Martian Logic does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose.
7. LIMITATION OF LIABILITY
7.1 Subject to the following subclause, to the maximum extent permitted by law, Martian Logic excludes all liability and responsibility to You (or any other person) under any cause of action whatsoever for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
7.2 If a consumer guarantee under the Australian Consumer Law applies to Martian Logic’s provision of the Service, Martian Logic’s liability to You for a breach by Martian Logic of that consumer guarantee or a breach of the warranties contained in clause 6.4 and 6.5 is limited to Martian Logic:
(a) supplying the Services to You again; or
(b) paying You the cost of having the Services supplied again.
8.1 Subject to a party’s right to terminate the Agreement in accordance with this clause, this Agreement will continue for the period
(a) covered by the Access Fee paid or payable under clause 3 (Month-to-Month Agreement); or
(b) for a fixed term agreed by the parties and recorded in the Proposal Document (Fixed Term Agreement).
8.2 Martian Logic will not provide any refund for the Access Fee for a Fixed Term Agreement unless you terminate this Agreement under clause 8.7.
8.3 For Month-to-Month Agreements, at the end of each billing period this Agreement will automatically continue for another period of the same duration as that period, unless either party terminates this Agreement by giving notice to the other party at least 30 days before the end of the relevant payment period.
8.4 If You terminate this Agreement, You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of this Agreement.
Breach by You
8.5 If You:
(a) breach a term of this Agreement and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
(b) breach a term of this Agreement and the breach is not capable of being remedied;
(c) You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction; or
(d) breach any of clauses 3.9 to 3.11,Martian Logic may take any or all of the following actions, at its sole discretion:
(e) terminate this Agreement and Your use of the Services and the Website;
(f) suspend for any definite or indefinite period of time, Your use of the Services and the Website:
(g) suspend or terminate access to all or any Data; or
(h) take any of the actions in sub-clauses (d), (e) and (f) of this clause in respect of any or all other persons whom You have authorised to have access to Your information or Data.
8.6 Notwithstanding any other term of this Agreement, if payment of any invoice for Access Fees is not made in full by the relevant due date, Martian Logic may: suspend or terminate Your use of the Service, the authority for all or any of Your Organisations to use the Service, or Your rights of access to all or any Data.Breach by Martian Logic
Breach by Martian Logic
8.7 If Martian Logic:
(a) breaches any term of this Agreement and does not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
(b) breaches any term of this Agreement and the breach is not capable of being remedied; or
(c) becomes insolvent, goes into liquidation, has a receiver or manager appointed of any of its assets, makes any arrangement with its creditors, or become subject to any similar insolvency event in any jurisdiction,
You may terminate this Agreement with immediate effect upon serving a notice of termination in writing on Martian Logic, and Martian Logic will reimburse You for any amounts paid in advance prorated for the time between the date of termination and the end of the period the payment was intended to cover.
8.8 Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
(a) subject to subclause 8.7 of this Agreement, remain liable for any accrued charges and amounts which become due for payment before or after termination; and
(b) immediately cease to use the Services and the Website.Expiry or termination
Expiry or termination
8.9 Clauses 4, 5, 6, 7 and 11 survive the expiry or termination of this Agreement.
9. HELP DESK
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Martian Logic. If You still need technical help, please check the support provided online by Martian Logic on the Website or failing that email us at [email protected]
9.2 Whilst Martian Logic intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place
9.3 If for any reason Martian Logic has to interrupt the Services for longer periods than Martian Logic would normally expect, Martian Logic will use reasonable endeavours to publish in advance details of such activity on the Website.
10.1 Unless any other clause in this Agreement states otherwise the recipient of a supply pursuant to, or arising as a result of this Agreement agrees that:
(a) consideration for such supply is exclusive of GST;
(b) the recipient will pay the amount of GST to the supplier at the same time as the consideration is payable subject to the receipt of a tax invoice;
(c) the recipient indemnifies the supplier in respect of the suppliers liability for GST; and
(d) this clause shall survive the completion of the transaction or the termination of this Agreement.
11.1 This Agreement and the Proposal Document (if one has been issued to You) supersedes and extinguishes all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Martian Logic relating to the Services and the other matters dealt with in this Agreement.
11.2 If either party waives any breach of this Agreement, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
11.3 Neither party will be liable for any delay or failure in performance of its obligations under this Agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
11.4 You may not assign or transfer any rights under this Agreement to any other person without Martian Logic's prior written consent.
Governing law and jurisdiction
11.5 The Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement.
11.6 If any part or provision of this Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Martian Logic must be sent to [email protected]
or to any other email address notified by email to You by Martian Logic. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
Rights of Third Parties
11.8 A person who is not a party to this Agreement has no right to benefit under or to enforce any term of this Agreement.