Earlymark Solutions Pty Ltd (Earlymark) has developed specific Software and web applications that it makes available for Customers to use.
Earlymark agrees to provide the Software to the Customer who agrees to use and pay for Earlymark’s services, which are subject to the following terms and conditions.
This Software as a Service agreement, hereby known as the “Agreement” sets out the Terms and Conditions between Earlymark and the Customer. Agreement has the same meaning as “Contract” and visa versa.
Both Earlymark and Customer are collectively known as “Party” or “Parties”.
Definitions
Authorised User: Users that are authorized by the Customer, like independent contractors, agents, or employees, to use the Services and Documentation.
Order Form: Means the document which details the items the Customer has committed to purchase from Earlymark and forms part of the Agreement along with these Terms and Conditions.
Content: means all data contained in the Services, other than Customer Data.
Contract Start Date: means the date the Earlymark Order Form is signed by the Customer.
Customer means the Company and/ or individual, who has entered into the Contract, for the use of the Services for their desired number of Users for business purposes.
Customer Data: Data inputted by the Customer, Supplier, or Authorized Users. Earlymark may input Customer Data on behalf of the Customer for the purpose of using the Services or to facilitate the Customer’s use of said Services.
Earlymark: means Earlymark Solutions Pty Ltd, registered company of Australia (ABN 78 662 962 085).
ENTERPRISE User: As nominated in the Order Form.
Normal business hours: For the purpose of these Terms and Conditions, “Normal Business Hours” means 9am to 5pm local (AES) time, Monday through Friday except NSW public holidays. Renewal Period: successive 12 month terms, unless detailed otherwise on the Order Form.
Services: Subscription services provided by Earlymark to the Customer under these Terms and Conditions and any other services, products or training provided by Earlymark or affiliated Companies. Earlymark reserves the right to invoice separately for fees relating to Services.
Software: The online software applications provided to the Customer by Earlymark as part of its Services.
Subscription Fee: means the fee payable by the Customer, to Earlymark, for the use of the Services. Noting the fee maybe $0 as offered by Earlymark in the Order Form, however these Terms and Conditions will remain applicable and in full force.
Subscription Term: means the period of time outlined in Earlymark’s Order Form, being 12 months if nothing stated.
Support Services: Includes the support provided by Earlymark in relation to the Services.
Terms and Conditions: means these terms and conditions which govern the Agreement (together with any amendments provided by Earlymark in writing) and which may be updated from time to time. The current version of the Terms and Conditions is available at Policies – Earlymark.
User Subscription: The subscription purchased by the Customer under this Agreement gives them and their Authorized Users access to the Services and Documentation.
Virus: Anything (including software, file, code, or program) that could affect, impair, or prevent portions of the operations of Services or Documentation.
General
Earlymark Services are provided “AS IS,” for your personal, non-commercial use or internal business purpose only.
Neither the information contained, nor the information provided through the Services are intended, and accordingly shall not be relied upon, either as a substitute for professional advice or judgement, or to provide legal or other advice with respect to any particular circumstance.
Earlymark incorporates Content and features to assist with descriptions. These descriptions are a starting point only and must be reviewed by the Customer and their Authorized Users for their specific project suitability and content. Earlymark will use reasonable endeavours to maintain accurate content, which also relies on manufacturer’s input, however this content may be out of date from time to time, which the Customer and their Authorized Users should satisfy themselves of its suitability and accurateness. You are responsible for what you insert, type, amend, don’t amend, post, comment, print and issue.
The Customer and Authorised Users acknowledge this Agreement represents a business-to-business transaction and consumer legal protections shall not apply.
The Customer may allow its Authorised Users to access and use the Services, provided that the Customer shall procure that its Authorised Users shall, at all times, act in accordance with these Terms and Conditions.
User subscriptions terms
Earlymark grants to the Customer a non-transferable, non-exclusive right, without the right to grant sublicenses, to permit the Authorized Users to use the Services and Documentation during the Subscription Terms solely for internal business operations and for no other purpose.
In regards to the Customer’s Authorized Users, the Customer agrees to:
- Provide accurate registration information that is true, accurate, current and complete; and maintain such accuracy of information promptly.
- Not exceed the maximum amount of Authorized Users based on the number of User Subscriptions purchased;
- Not use more than one Authorized User per User Subscription;
- Enforce that each Authorised User shall keep a secure password for use of the Software provided and that each User shall keep this password confidential;
- Not transmit or distribute any Viruses, or anything that could be considered harmful, threatening, offensive, harassing, obscene, illegal, sexually explicit, violent, discriminatory, or a direct encouragement to hurt a person or a person’s property.
- permit Earlymark or its designated auditor to audit and/ or monitor the Software use in order to establish the identity of each User;
- if any of the audits reveal that the Customer has underpaid the Subscription Fee to Earlymark, then without prejudice to Earlymarks’ other rights and remedies, the Customer shall pay to Earlymark an amount equal to such underpayment within 10 days of the date of the relevant audit.
Customer data
The Customer affirms to Earlymark that the Customer Data will not violate the intellectual property rights or any other legal rights and will not break the provisions of any law, regulation, or statute in any jurisdiction under applicable laws.
The Customer is responsible for the Customer Data and expressly agrees to reimburse Earlymark for any and all losses that we may suffer because of your breach of these Terms, including any third party’s intellectual property rights, or applicable law.
Earlymark shall not, in any circumstance, be liable for the legality, reliability, integrity, quality or accuracy of the Customer Data or any data or Content (including any Supplier Data) which is supplied by a third party (including a Supplier) which is provided to the Customer through use of the Services. The Customer agrees to create a backup copy of data daily, sufficient enough to be restored should it need be. Earlymark is not responsible for any lost data the Customer incurs due to improper use, misuse, nor are they responsible for lost data incurred from a blackout or Virus.
Earlymark shall follow its standard archiving procedures for Customer Data held within its Software. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Earlymark shall be for Earlymark to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Earlymark. Earlymark shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
Support services
Earlymark may provide varying support services to align with the available subscriptions. Earlymark, at its discretion, will offer ‘ENTERPRISE’ Customers:
- a Quarterly Business Review (QBR) every 3 months to review the previous 3 months of Customer use. This will either be face-to-face or online.
- an Account Executive to assist with Customer use of software as well as company and industry insights.
- the opportunity to select up to a total of 4 ‘Early Support’ Keys per Subscription Term, with the option to purchase additional Keys. One Key will be available each quarter. Refer to the Early Support document for further details.
For all other Users, Earlymark shall be under no obligation to provide any support or maintenance services to the Customer in respect of its use of the Services but may, in its absolute discretion, provide to the Customer the assistance and support in relation to the Services upon the request of the Customer.
Earlymark reserves the right, in its absolute discretion, to withhold any such assistance or support, or to charge the Customer an additional fee for any assistance or support that it considers to be excessive, or which is required in response to operating difficulties caused by matters outside Earlymarks’ control including the Customer’s operating errors or shortcomings, or defects in any of the Customer’s hardware or software.
Charges and Payments
The Services and/ or Software will become available to the Customer on full payment of the Subscription Fee.
For ‘ENTERPRISE’ Users:
- Earlymark shall provide invoices for the Subscription Fee to the Customer from time to time during the term. The Customer is required to pay the said Subscription Fee to Earlymark within 30 days after issuing the invoice.
- If the Customer does not pay the Subscription Fee within 60 days, Earlymark may, by written notice (including email), deem the Contract to be terminated by default, resulting in cancellation charges of 100% of the remaining value of the Subscription Fee for the current Subscription. In addition to interest payments the Customer shall pay all reasonable costs and expenses incurred by Earlymark in enforcing this Agreement and recovering monies owed to Earlymark by the Customer.
- The Customer shall only be granted access to the Services once the Subscription Fee is paid in full.
All other Users:
- You consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until such time as you cancel your Subscription.
Additional Services or Software may be purchased and added to Your account at any time. Unless otherwise agreed in writing by the parties, promotional or discounted pricing is one-time. New purchases or renewals of Services or Software shall be as stated in the Order Form, or if nothing stated, then at the applicable fee in effect on the date of such new purchases.
Earlymark reserves the right to refuse any Customer or their Aurthorised Users.
Proprietary Rights
No term in this Agreement allows the transfer or assignment of any intellectual property rights from Earlymark to the Customer or from the Customer to Earlymark. Earlymark owns 100% of the Services and Documentation included in this Agreement.
The Earlymark logos and all other Earlymark trademarks, product names, and trade names logos appearing in, on or in connection with the Services are owned by Earlymark. The Customer may not use or display any such trademark, product name, trade name, or logo without Earlymarks’ prior written consent.
The Customer grants to Earlymark a non-exclusive, transferrable, royalty free licence, including the right to sub-licence, to use, copy, modify, reproduce, publish, adapt, re-use, distribute, communicate and host the Customer Data.
Prohibited Uses
The Customer may not reproduce in any form, any part of any Services, the Content or any materials or software used or created except as expressly provided for in these Terms and Conditions.
Except with the prior written consent from Earlymark, the Customer and its Authorised Users shall not:
- use or permit others to use the Services or the Content for the purpose of developing or providing an alternative service provision which either directly or indirectly competes with the Services or Earlymark;
- attempt to copy, modify, duplicate, republish, commercially exploit or distribute all or any portion of the Content, the Services or any materials or software used or created in the provision of the Services in any form or media or by any means.
Limitation of Liability
To the maximum extent permitted by law:
- Earlymark’s maximum aggregate liability under this agreement (including the performance or non-performance of the Services), whether under the law of contract, in tort, in equity, under statue or otherwise, is the net amount actually recovered under Earlymark’s professional indemnity insurance policy.
- Earlymark has no liability to the Customer in respect of any indirect, consequential or special losses (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other agreement).
If any of Clause 1 or 2 directly above is void as a result of Section 64 of the Australian Consumer Law (or equivalent State or Territory legislation) then Earlymark’s liability for a breach of a condition of warranty is limited to Earlymark rectifying or supplying the Services again.
Liability is reduced to the extent it arises out of or in connection with any negligent act or omission or breach of contract by the Customer. Neither party is liable to the other for loss of actual or anticipated revenue or profits, increased capital or financing costs, increased operational costs or increased costs of borrowing, pure economic loss, exemplary or punitive damages or indirect or consequential damages.
Nothing in these Terms and Conditions will:
- limit any liability for personal injury or death resulting from negligence;
- put parties liable for any loss of business, contracts, or opportunities;
- limit any liability for fraudulent misrepresentation;
- put parties responsible for any loss of savings or profits;
- limit any liabilities not allowed under related laws; or
- prohibit any liabilities that may not be excluded under applicable law.
Terms and Termination
The Subscription shall commence on the Contract Start Date and continue for the Subscription Term, and thereafter shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
- For ‘ENTERPRISE’ Users:
- Either Party terminates this Agreement by giving the other Party at least 60 days of written notice before the end of the Subscription Term or Renewal Period.
- All other Users:
- You can cancel your subscription at anytime by logging into your account. Your cancellation will take effect at the end of the current Subscription Term or Renewal Period, as applicable.
- If any Party commits a material breach of this Contract, which cannot be remedied within 14 days, any Party can terminate the Agreement immediately.
- If either Party is dissolved, ceases conduct of all of its business, an administrator is appointed, or becomes insolvent, the Agreement will be terminated.
On Termination the Customer shall:
- cease to access the Software and cease to use all data provided by Earlymark, including through its Software.
- Be entitled to use Customer data that has been produced during the Subscription Period for the intended and singularly named specific project(s) only;
- Not receive a refund for the Subscription Fee or any fees paid to Earlymark;
- Ensure the Customer and Authorised Users fully comply with all Termination requirements.
Earlymark may retain the Customer Data relating to the Services for up to two years from the date of termination and may, on request and subject to payment of its fees for the same, provide an export of such Customer Data to the Customer during such two year period.
If you have any questions or are unsatisfied with the Services, please email us at Info@earlymark.com.
General Terms
No waiver
A breach in said terms and conditions shall not be waived except with the written consent of the Party not responsible for the violation.
Severability
If any provisions of these terms and conditions are determined to be unlawful or enforceable by any court or competent authority, all other provisions in these terms and conditions will continue in effect.
Entire agreement
These terms and conditions includes the entire agreement between Earlymark and the Customer and replaces all past Agreements, understandings, and representations of the Parties, whether written or oral.
Governing law
These terms and conditions shall be governed by and constructed in accordance with New South Wales (NSW). The parties agree that the courts of NSW have exclusive jurisdiction to settle any claim or dispute that arises out of these terms and conditions.
Change to Services
Earlymark is committed to continually improving its Services and Software, and as such, they may evolve over time. These changes may include, but are not limited to, the introduction of new features, limitations on certain functionalities, or restricted access the Services and Software. Earlymark reserves the right to revise, modify, or update the Services and Software at its sole discretion. While Earlymark will make efforts to notify the customer of a material change that may adversely affect you, such notification may not always be practical. Additionally, Earlymark reserve the right to remove features, functionality, or decommission Services or Software features.