“Access Fee” means the fee payable by You to use the Service as set out on or notified to you via the Website (which Martian Logic may change from time to time on notice to You), or as set out in a Proposal Document.
“Applicable Privacy Laws” means any legislation, regulations or other statutory rules that regulate the use, storage and disclosure of Personal Information in the jurisdiction in which You are located.
means a file containing a copy of the following:
(a) in respect of any of Your candidates or employees, all:
(i) contact details;
(ii) uploaded files such as resumes, covering letters and any attachment thereto;
(iii) comments made on a candidate or employee record by an Invited User;
(b) all jobs including job title and any posting copy in respect of a job;
(c) details of all Invited Users.
“Commencement Date” means the date on which Martian Logic first provides You with access to the Service or, in the case of this Agreement rolling over in accordance with clause 8.2, the anniversary of that date.
“Confidential Information” includes all information exchanged between the parties to this Agreement including 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.
“Data Breach” has the meaning given to it by clause 4.4.
“Invited User” means any person or entity that uses the Service with Your authorisation.
“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.
means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not;
(b) whether the information or opinion is recorded in a material form or not.
“Proposal Document” means the document which Martian Logic may have provided to You containing a proposal to supply the Service that includes the Support Matrix;
“Service” means the online human resource information system (HRIS) made available (as may be changed or updated from time to time by Martian Logic) via the Website, containing the modules specified on the Website.
“Term” means a period of 12 months from the Commencement Date or such other period as agreed by the parties in a Proposal Document.
means the Internet site at the domain www.martianlogic.com
or any other site operated by Martian Logic Pty Limited through which Martian Logic provides the Service.
“You” means the entity that has subscribed to use the Service, 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.
You acknowledge and agree that:
you determine who is an Invited User;
you determine what level of user access an Invited User has;
you determine which organizations an Invited User has access to;
you are responsible for all Invited Users’ use of the Service;
you control each Invited User’s level of access to the relevant organization 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;
if there is any dispute between You and an Invited User regarding access to any organization or Service, You will 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 pursuant to this Agreement within 14 days of the invoice date.
Unless otherwise agreed to by Martian Logic in a Proposal Document:
(a) Martian Logic will issue an invoice for the Access Fee to you before providing You access to the Service;
(b) You must pay the Access Fee before Martian Logic will allow you to use the Service.
3.3 All Martian Logic invoices will be sent to You, or to a billing contact whose details are provided by You, by email.
Preferential pricing or discounts
3.4 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.
3.5 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.
3.6 You must only use the Service and Website for Your own lawful internal business purposes, and in accordance with this Agreement.
3.7 You must ensure that all usernames and passwords required to access the Service are kept secure and confidential.
3.8 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. 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 Service.
As a condition of this Agreement, when accessing and using the Service, You must:
not attempt to undermine the security or integrity of Martian Logic's computing systems or networks or, where the Service is hosted by a third party, that third party's computing systems and networks;
not use, or misuse, the Service in any way which may impair the functionality of the Service or Website, or other systems used to deliver the Service or impair the ability of any other user to use the Service or Website;
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 Service is hosted;
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
not, and not attempt to, modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Service or to operate the Website except as is strictly necessary to use either of them for normal operation.
3.10 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.
3.11 You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Service, 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 Service 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).
3.12 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 Service. You must exercise caution when using the communication tools available on the Website.
3.13 Martian Logic reserves the right to remove any communication at any time in its sole discretion.
3.14 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 Invited Users (or any of Your officers, employees or agents) of any Data or Personal Information.
4. CONFIDENTIALITY AND PRIVACY
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement;
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;
each party's obligations under this clause will survive termination of this Agreement.
The provisions of clause 4.1 shall not apply to any information which:
is or becomes public knowledge other than by a breach of this clause;
is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party;
is independently developed without access to the Confidential Information;
is required to be disclosed by law.
a party (acting reasonably) needs to rely on to enforce its rights under this Agreement.
4.4 If Martian Logic becomes aware of any unauthorised access, use or disclosure of Data or Personal Information (“Data Breach”) that occurs as a direct result of an act or omission of Martian Logic or its officers, employees, agents or contractors, Martian Logic will: (a)
take immediate steps at its own cost to contain the Data Breach;
notify You of the fact of the Data Breach and the steps that have been implemented to contain it;
provide You with such other information regarding the Data Breach that Martian Logic is required to provide to You under Applicable Privacy Laws.
4.5 If You become aware of a Data Breach that occurs as a result of any act or omission other than those described in the preceding subparagraph, You must, at Your own cost: (a)
take immediate steps to contain the Data Breach;
notify Martian Logic of the fact of the Data Breach and the steps that have been implemented to contain it;
provide Martian Logic with such other information regarding the Data Breach that You are required to provide to Martian Logic under Applicable Privacy Laws.
5. INTELLECTUAL PROPERTY
5.1 Title to, and all Intellectual Property Rights in the Service, the Website and any documentation relating to the Service 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 Service 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 Martian Logic adheres to industry-standard practice 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 Service, 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 Service. 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
You warrant that:
You are authorised to use the Service 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;
You are authorised to access the processed information and Data that is made available to You through Your use of the Website and the Service (whether that information and Data is Your own or that of anyone else);
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;
You have complied with any obligations imposed upon You or the entity you represent under Applicable Privacy Laws in connection with any Data and Personal Information;
You are acquiring the Service for business purposes only.
You acknowledge and agree that:
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;
If You use the Service 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:
You are responsible for ensuring that You have the right to do so;
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;
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 Service. Martian Logic is not in any way responsible for any such interference or prevention of Your access or use of the Service;
It is Your sole responsibility to determine that the Service meets the needs of Your business and is suitable for the purposes for which they are used.
Martian Logic’s warranties
6.4 Martian Logic warrants that it will perform the Service 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 Service and the Website.
6.6 Apart from the above, and to the extent permitted by law, Martian Logic gives no warranty about the Service. Without limiting the foregoing, Martian Logic does not warrant that the Service will meet Your requirements or that it will be suitable for any particular purpose.
7. LIMITATION OF LIABILITY
To the maximum extent permitted by law:
Martian Logic will not be liable for any loss that includes loss of profits, loss of data, loss or damage incurred in connection with a Data Breach, loss of sales, loss of business, loss of revenue, loss of or damage to reputation or goodwill, loss of opportunity, wasted management or other staff time, losses or liabilities in connection with any other contract or indirect, consequential or special loss or damage;
Martian Logic’s total liability to You for any loss and damage not excluded under subparagraph (a) for any and all causes of action howsoever arising in connection with this Agreement, the Service, and the Website which during the Term will be limited to an amount equal to two months’ worth of the Access Fee (on a pro rata basis) that You have paid for the Term.
7.2 For the avoidance of doubt, nothing in this clause 7 limits or excludes any right or remedy You have which Martian Logic cannot exclude under any consumer protection laws that apply to Martian Logic’s supply of the Service to You.
8. TERM AND TERMINATION
8.1 Subject to a party’s right to terminate the Agreement in accordance with this clause 8, this Agreement will continue for the Term.
8.2 Unless otherwise agreed in a Proposal Document, this Agreement will continue for a further Term unless You provide Martian Logic with written notice of termination at least 30 days before the end of the Term.
8.3 You may terminate this Agreement at any time without reason or cause by giving Martian Logic 30 days’ notice in writing. However Martian Logic will not provide any refund for the Access Fee if You terminate the Agreement pursuant to this clause.
8.4 Martian Logic may terminate this Agreement at any time without reason or cause by giving You 30 days’ notice in writing, in which case, Martian Logic will refund to You any unused portion of the Access Fee on a pro rata basis calculated from the date on which termination takes effect up to the end of the Term. Martian Logic will pay the refund to You within 30 days after the date on which termination takes effect.
Breach by You
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;
breach a term of this Agreement and the breach is not capable of being remedied;
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;
breach any of clauses 3.9 to 3.11;
Martian Logic may take any or all of the following actions, at its sole discretion:
terminate this Agreement and Your use of the Service and the Website;
suspend for any definite or indefinite period of time, Your use of the Service and the Website;
suspend or terminate access to all or any Data;
take any of the actions in sub-clauses (e), (f), and (g) of this clause in respect of any or all other persons whom You have authorized 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 and this Agreement, 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
If Martian Logic:
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;
breaches any term of this Agreement and the breach is not capable of being remedied; or
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 8.6 of this Agreement, remain liable for any accrued charges and amounts which become due for payment before or after termination; and
immediately cease to use the Service and the Website.
Survival of clauses on expiry or termination
8.9 Clauses 4, 5, 6, 7, 10 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 Service should be available 24 hours a day, seven days a week, it is possible that on occasions the Service 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 Service 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. TAXES AND DUTIES
You will be liable for and You indemnify Martian Logic against all taxes (other than Martian Logic’s own income tax) and duties that arise or are imposed as a result of You entering into this Agreement and entering into any transactions contemplated by this Agreement.
11.1 This Agreement 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 Service and the other matters dealt with in this Agreement.
11.3 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.
11.4 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.
11.5 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
11.6 The laws of Australia govern 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.
11.7 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 provided the sender does not receive a failed delivery notice. 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
11.9 A person who is not a party to this Agreement has no right to benefit under or to enforce any term of this Agreement.
MARTIAN LOGIC SUPPORT MATRIX
|SEVERITY||DESCRIPTION||RESPONSE TIME||RESOLUTION TIME|
|Critical||A problem is classified as Critical if the Business is unable to perform key, critical functions e.g. creating or uploading vacancies, or if live vacancies cannot be accessed or viewed.||30 minutes||2 hours|
|High||A problem is classified as High if the Business is unable to perform non-key but critical functions such as reporting or accessing archived data.||60 minutes||4 hours|
|Medium||A problem is classified as Medium if the Business is unable to perform a non-key business process or is unable to complete non-key business processes in a timely manner.||2 hours||1 business day|
|Minor||A problem is classified as Minor if it causes no data loss or major loss of time. Or is a minor cosmetic or consistency issue.||4 hours||3 business days|