Date Effective: 7 May 2020
The following Terms of Service (Terms) constitutes a legal agreement between the entity or company you represent or to which the Proposal was addressed (you, or your) and OfficeMaps Pty Ltd (ABN 87 640 006 239) (we, us or our). These Terms are binding on you immediately upon your acceptance of these Terms, which is the earliest of the following:
1(a) you accepting the Proposal in writing or online; or
1(b) by clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of signing up from the OfficeMaps website; or
1(c) you accessing the SaaS Software via a secure login; or
1(d) you downloading or installing the Self-Hosted Software; or
1(e) you accessing the Self-Hosted Software.
(which is deemed to be the ‘Start Date’) and continues until terminated under the provisions of this agreement. You warrant that you have the authority to bind the legal entity or company that you are representing if you are agreeing to the Terms on behalf of the legal entity or company.
Subject to these Terms and your Subscription, we will provide you with the right to access and use the Software for the duration of your Subscription, in accordance with all applicable documentation. Except as expressly set out in these Terms or your Subscription, you are solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for your use of the Software.
We reserve the right to modify, change, or discontinue any of the Services or Plans at any time. If we make modifications to any of the Plans that remove or materially alter features that were previously available under your Plan, these modifications will not apply to you until the start of your next Billing Period. On renewal, the current Plan features, capacity limits and price shown on the OfficeMaps website (www.officemaps.com) will apply to your Subscription, unless otherwise specified in the Proposal or you and we otherwise agree in writing.
You acknowledge that the use of the Software is provided solely for your benefit. You agree not to use the Software for the benefit of any other third parties (other than your related companies and related businesses). You agree not to (nor attempt to, nor allow any third party to): (a) use the Software in any manner that could damage, disable, overburden, or impair our servers or networks or interfere with any other party’s use and enjoyment of the Software; (b) attempt to gain unauthorised access to any services, user accounts, computer systems or networks through hacking, password mining, or any other means. You may not use any automated means, including agents, robots, scripts or spiders to access or manage your Subscription or the Software, except solely to the extent as may be specifically enabled and authorised in writing by us.
We may take any legal and technical measures to prevent the violation of this provision and enforce these Terms.
Provided you have a current Subscription we will provide technical support to you at no additional charge. We will provide support for the most recent release of our Software and for the immediate prior release for up to four months from the most recent release date. Technical support covers support on standard functionality and a means of reporting to us, and for us to remedy Software defects. Technical support does not include the provision of customisation advice, training, consulting services or problems caused by your administrators, such as your accidental or inadvertent destruction of your own data, or Force Majeure. Appendix A provides further details of our technical support service.
The Software may include features that interoperate with third party services or software, either through agreements that we have with the third party service or software providers, or through other means of interoperability made generally available by them, such as application programming interfaces. Such third parties may modify, suspend or terminate their own services and software at any time. To the extent that this is outside of our control, we are not liable for the acts or omissions of any such third parties. You are responsible for ensuring that you comply with all agreements, policies, terms and rules imposed by such third parties in relation to your use of the Software.
We warrant to you that the Software will perform in all material respects with its published specifications and will be reasonably fit for the purpose for which it is provided. We also warrant to you that the Software will be free of malicious code, and that we will take all reasonable steps to ensure that we do not introduce (whether by our action or our inaction) any malicious code into your systems. We do not warrant that the Software will be error-free.
This clause applies to any SaaS Software (if any) included in your Subscription.
This clause applies only to SaaS Software included in your Subscription (if any).
3.2(a) We will take all reasonable measures to keep uptime at or above 99.9 per cent. If, due to our error, act or omission, an error or issue with Software or our facility, or a matter within our control, the SaaS Software is either inaccessible or not operating or available to full capacity (an ‘Outage’) for more than 0.1 per cent of the time in a given calendar month, outside Planned Downtime, you will be entitled to a 50 per cent credit of the monthly fee for that month (or equivalent if you have an annual subscription) applied to your account.
3.2(b) However, you acknowledge and agree that the Subscription Service may be unavailable (in whole or in part) from time to time due to: (i) equipment, software or service malfunctions; (ii) maintenance, update or upgrade procedures or repairs; or (iii) causes beyond our control, including, without limitation, interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that, without limitation, we shall not be liable for any unavailability caused by any such issues other than to the extent described in clause 3.2(a).
We reserve the right to make some or all of the SaaS Software unavailable from time to time as is required for upgrades, maintenance and updates (‘Planned Downtime’) provided that prior notice of not less than 5 days will be given to you where we are aware or reasonably suspect that unavailability for Planned Downtime will exceed 10 minutes during client business hours or 20 minutes outside client business hours. We will use all reasonable measures to ensure that any Planned Downtime is conducted outside of client business hours.
In order to receive a service credit under clause 3.2(a) you must log a support ticket on or before the 14th day of month following the unplanned downtime event or events, identifying the start and end time of each downtime event and details of the specific problems encountered. We will provide a written response either confirming the application of the credit or providing a reasonable explanation in the event a credit is not applicable. Your right to receive a service credit does not limit your rights in the event of a significant Outage, or repeated or persistent Outages, or any other breach of these Terms (including clause 3.3).
We agree that we will comply with, and that the hosting facility that we provide for the hosting of the SaaS Software and our procedures and practices relating to the operation of that hosting facility will at all times comply with the Data Security and Technology terms which we publish on our website at https://www.officemaps.com/legal/data-security-technology/.
This clause applies to any Self-Hosted Software (if any) included in your Subscription.
For the term of this agreement, and subject to the terms of this agreement, and payment of the applicable Fees, we grant you a non-exclusive licence to install and use the Self-Hosted Software in the ordinary course of conducting your business.
Without limiting your rights at law, and subject to any conflicting rights granted by this agreement, you must not, without our prior written consent:
4.3(a) reverse engineer, reverse assemble or reverse compile the Software or any part of the Self Hosted Software;
4.3(b) combine or incorporate the Self-Hosted Software in any other program or system without our prior consent in writing;
4.3(c) copy the Self-Hosted Software, in whole or in part, except that you may make copies of your data where necessary or prudent for your internal needs and for business continuity and data security;
4.3(d) use the Self-Hosted Software for any purpose other than for the purposes contemplated in these Terms or the Proposal; or
4.3(e) run or attempt to run more than one instance of the Self-Hosted Software for each Subscription.
You may log in securely to your Subscription account to manage your Subscription including changing your contact details or account details, changing any plans applicable to your Subscription, or cancelling your Subscription.
5.2(a) You are responsible for managing user accounts and permissions under your Subscription. You must take reasonable measures to prevent any unauthorised person from accessing the Software or using your secure login for your Subscription, and you are responsible for any damage caused or fees incurred by such person.
5.2(b) You are responsible for, and expressly agree that we are not required to provide any installation, training, implementation or integration services, except as specified in your Subscription or otherwise agreed with us in an accepted Proposal for professional services.
5.2(c) You warrant and undertake that:
5.2(d) You are responsible for, and expressly agree that we are not responsible for:
5.3(c) You must ensure that you have all relevant consents from individuals who use the Software which we make available to you. You indemnify us for any loss or damage suffered by us, or any claim made against us by you or by a third party arising from your failure to comply with these Terms of Service and all relevant and applicable legislation (including applicable data protection laws) when you use OfficeMaps to collect, process or retain Personal Information.
5.4(a) Recent important changes to data protection laws in the European Union makes a distinction between entities that process Personal Information for their own purposes (known as “data controllers”) and organisations that process Personal Information on behalf of other organisations (known as “data processors”). In general, a question or complaint about how Personal Information which is subject to those European laws is handled should be directed to the relevant data controller because they have primary responsibility for that Personal Information. We may act as either a data controller or a data processor or both in respect of that Personal Information, depending on the circumstances. For example, if you as a Europe-based customer create an account with us to use our Software, we will be a data controller in respect of your Personal Information that you provide to us as part of the registration process to open your account with us.
5.4(b) Alternatively, if you create an account with us in order to collect, process and retain Personal Information received by you from individuals or otherwise collected by you, we will process that Personal Information on your behalf by enabling the functionality of the Software. In these circumstances, we merely provide the “tools” for you; We do not decide what Personal Information is imported by you into OfficeMaps, or whether that Personal Information is accurate. In that case, you will be the data controller, not us, and you will be responsible to comply with European privacy legislation (if applicable) and to answer any questions from an individual or other third party relating to Personal Information collected by you.
5.4(c) In summary, if you are a European resident or you are collecting Personal Information from European residents and in that event, when we are acting as a data processor and you are the data controller then European privacy legislation requires that you should agree to the terms of our Data Processing Agreement (DPA). Please review that agreement, because it forms a legally binding addendum to this Agreement.
We reserve the right to use your usage statistics in de-identified form, to allocate resources appropriately and to improve our Software and Services.
We may appoint employees, sub-contractors or third party service providers to provide all or part of the Services from time to time. We are responsible for the acts, omissions or defaults by any of our subcontractors or personnel in relation to these Terms and Conditions, the Software or the Services, or your data, as if they were our own acts, omissions or defaults. In the event that the DPA applies to you, then our list of Sub-Processors is available here.
6.3(a) You must pay the Subscription Fee in advance for each Billing Period.
6.3(b) Payment processing for Fees is provided by a third party payment processor nominated by us, and you may be required to agree to the payment processor’s terms and conditions. We do not collect or store your credit card information. By providing a credit card or other payment accepted by us, you warrant that you are authorised to use that payment method, and that you authorise our payment processor to charge your payment method for our Fees as and when due.
6.3(c) All fees are exclusive of government-imposed value-added taxes such as GST or VAT, or import duties or tariffs. If any such tax is imposed on a supply under this agreement, you must pay the amount of such tax with and in addition to the Fees.
6.3(d) Fees are expressed in Australian dollars unless otherwise specified in your Subscription.
6.3(e) If you make plan changes to your Subscription during a Billing Period that affect your Subscription Fees, any applicable additional charges or fee rebates will be calculated on a pro rata basis for the balance of that Billing Period.
If you reasonably believe that an invoice contains an error, and you wish to dispute an invoice, you must notify us within 14 days of the invoice date, ensure all undisputed fees on the invoice are paid, and provide detailed information about any disputed fees. We will not suspend or terminate any Services for non-payment of the disputed fees while the dispute is being investigated. Your payment of an invoice will not prejudice your right to subsequently raise a dispute in relation to the invoice, and is not an admission that the Services or Software are in conformity with these Terms or the agreement. Our records are prima facie evidence of fees owing and paid (absent manifest error).
7.1(a) Each party acknowledges that in the course of performing its obligations under this agreement, it may receive Confidential Information which is proprietary and confidential to the other party and any of that party’s clients, directors, employees, contractors or agents. This includes information about your premises, operations, and personnel which we may receive or process as part of our operation and hosting of the SaaS Software.
7.1(b) Each party agrees not to use or disclose Confidential Information of the other party and any of that party’s clients, directors, employees, contractors or agents. However, a party may disclose Confidential Information of the other party to its officers, employees or contractors bound by the same confidentiality obligation, and only to the extent necessary for the party to carry out its obligations under this agreement.
7.1(c) Despite clauses 7.1(a) and 7.1(b) above, either party may use or disclose Confidential Information only to the extent necessary to:
7.1(d) At the request of a party, the other party must return all Confidential Information received and must not retain any copies of, or other reproductions or extracts of, the Confidential Information, except as it may retain in accordance with prudent business practices. Any retained material shall remain subject to the provisions of this agreement without any time limit.
7.1(f) If you are outside Australia then we will comply with Australian privacy laws in the treatment of your Personal Information unless you are legally subject to the GDPR in which case we will comply with the GDPR in the treatment of your Personal Information.
7.1(g) We use Amazon Web Services, a top tier, third party hosting provider to host our SaaS Software on servers located in Australia, the USA and the United Kingdom. This means, if you use our SaaS Software, the Personal Information uploaded by your users will be stored in the country nominated in your subscription, that is, either Australia, the USA or the United Kingdom and it will not be transferred. Unless otherwise instructed the country nominated is determined by the currency of your subscription.
8.1(a) You (or where applicable, any third party owner) retain ownership of all relevant Intellectual Property rights in the Client Materials (and any modification of the Client Materials that we may make) and such rights are not assigned or transferred to us.
8.1(b) You grant us (and our employees, contractors and agents, as applicable) an irrevocable, royalty-free, licence to use, copy, modify and adapt the Client Materials as reasonably necessary to provide the Services or Software during the Subscription period.
8.2(a) We (or the applicable third party) retain ownership of all relevant Intellectual Property rights in the Software, including any customisation, updates, and modules.
8.2(b) Any improvements, modifications or enhancements to the Software, and any other material developed by us in the course of providing the Services (other than any improvement to, or modification or enhancement of any Client Materials), will vest in and are owned by us upon creation, even if based on your new feature request or user feedback.
8.2(c) Unless otherwise agreed, each party retains ownership of all material owned or created by that party independently of this agreement, and no Intellectual Property is assigned or transferred by way of this agreement.
8.2(d) We assign to you all rights (including any future Intellectual Property Rights) in any improvements, modifications or enhancements to the Client Materials that we make or develop pursuant to these Terms and Conditions or in the course of performing the Services.
You grant us a non-exclusive licence to use your business name and logo to identify your business as a customer of the Software for advertising or promotional purposes; and to display, link to, or promote your business as part of our portfolio.
9.1(a) Each party (the “indemnifying party”) agrees to indemnify the other party against any Claim or Liability, except to the extent that the Claim or Liability is caused by the act, omission or negligence of the other party, arising from or in relation to:
9.1(b) You agree to release us and our Indemnified Officers against any Claim or Liability arising from or in relation to:
Laws in your jurisdiction may limit the operation of this clause. However, subject to clause 9.3, to the fullest extent allowable at law:
9.2(a) indirect, special, pure economic or Consequential Loss (whether arising under contract or tort) are expressly excluded under this agreement;
9.2(b) all Services are provided under this agreement on an ‘as is’ basis and all warranties that may be implied by law or statute (other than those set out in this agreement) are excluded.
9.2(c) our Liability, and Liability of our Indemnified Officers under this agreement is limited to (at our election):
9.2(d) Our total Liability and the total Liability of our Indemnified Officers in connection with this agreement whether under contract or tort, will not exceed AUD 10,000 aggregate in any circumstances.
The limitations and exclusions from liability in clause 9.2 do not apply in relation to:
9.3(a) any third party Claim or Liability for such Claim arising as a result of personal injury or death;
9.3(b) breach of any applicable law;
9.3(c) breach of any obligations as to confidentiality or privacy; or
9.3(d) wilful misconduct.
10.1(a) We may suspend all Services and your access to the Software at any time and give you a Notice of Default if:
10.1(b) Suspension under this clause does not affect your liability to make payment, and we will immediately end the suspension when the issue giving rise to the suspension is remedied.
You may give us a Notice of Default if we are in material default of our obligations or warranties under this agreement.
10.3(a) Either party may end this agreement by Written Notice for any reason at any time, to take effect at the end of the then applicable Billing Period.
10.3(b) Either party may end this agreement immediately by Written Notice if the other party fails to remedy a Notice of Default, or experiences an Insolvency Event, or if the other party is guilty of dishonesty, serious misconduct or serious neglect of duty.
10.4(a) If this agreement ends for any reason, then in addition to any other rights we may have we may issue an invoice for other work not previously invoiced, and you must pay all of our properly issued invoices that are still outstanding, whether or not the due date has passed.
10.4(b) If this agreement ends for any reason other than our default, you are not entitled to any refund of any portion of Subscription Fees or any other fees you paid to us under this agreement.
10.4(c) Termination of this agreement is without prejudice to any right or liability that arose prior to the date of termination.
If a dispute arises between the parties in relation to this agreement, either party may give the other party a written notice of the dispute, requiring it to be remedied. The parties’ respective chief executives (or their respective delegates) will meet within 10 days of the notice of dispute (or a longer period if the parties agree in writing) with a view to settling the matter in dispute. If such dispute is not resolved within that period, either party may give the other party a written notice that they intend to arrange mediation in relation to the dispute. The parties must refer the dispute to an independent mediator within 21 days of the written notice. If the parties cannot agree on a suitable mediator, either party may contact the Queensland Law Society and request that they provide a mediator. The mediation will be conducted in Brisbane. The costs of the mediation must be paid by the parties in equal shares. No party may commence court proceedings unless the dispute remains unresolved after 28 days from the date of the written notice provided under this clause.
If a party to this agreement is affected, or likely to be affected, by a Force Majeure Event, that party must immediately give the other party prompt notice including full particulars of the Force Majeure Event, an estimate of its likely duration and impact, and any steps taken or proposed to mitigate and reduce the duration or impact. Provided the party complies with this clause, the party’s obligations under this agreement are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.
12.2(a) You may only assign, novate, or transfer any of your rights under this agreement with our written consent, which must not be unreasonably withheld.
12.2(b) We may in our absolute discretion assign, novate, or transfer all or any of our rights under this agreement to a party acquiring our business of licensing the Software and providing associated Services, with 7 days’ Written Notice.
12.2(c) Upon assignment or novation, the parties’ obligations and benefits under this agreement are binding on and shall benefit their respective representatives, successors and assigns.
Where applicable, the parties’ rights and obligations under clause 2.3, 4.3, 5.2, 7, 8, 9, 10.4, 11, 12, and 13 will survive the termination of this agreement for whatever reason.
Nothing in this agreement constitutes an agency, partnership or contract of employment, or as a guarantee of future employment or engagement. It is the express intention of the parties to deny any such relationships.
The laws of Queensland, Australia apply to this agreement and the parties submit exclusively to the courts of that jurisdiction (and any applicable courts of appeal).
If any provision of this agreement is ruled by a court to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision or part provision of this agreement.
Any delay or failure to enforce any rights in relation to a breach by the other party will not be construed as a waiver of those rights.
This agreement contains the entire agreement between the parties and supersedes all previous negotiations or agreements in relation to the subject matter of this agreement.
Any variation or amendment to these Terms must be in writing and accepted by all parties. Acceptance by either party may be: via physically or electronically signing, by email acknowledgement; or by you taking any of the actions set out in clause 1(a) or 1(b) or 1(d) after we have given you reasonable written notice of a variation or amendment to these Terms.
In this agreement:
13.1(a) Billing Period means our billing interval as applicable to your Subscription, beginning on the same day (of the month or year, as applicable) as the Start Date.
13.1(b) Business Day means a day (other than a Saturday or Sunday) upon which banks are ordinarily open for business in Brisbane, Queensland, Australia.
13.1(c) Claim means any claim notice, demand, action, litigation, or judgment however arising, whether present, future or contingent, whether based in contract, tort (including negligence) or statute and whether involving a party to this agreement or third party.
13.1(d) Client Materials means all information, data and Intellectual Property (including Personal Information about any individual) relating to your business, which you upload or input into the Software, or provide directly to us.
13.1(e) Confidential Information means all spoken, written or electronically stored information belonging to or relating to either party and includes without limitation: any kind of technical, financial or business information; details of employees, suppliers, or customers; material developed under this agreement; Intellectual Property, concepts, know-how and trade secrets; but excludes information in the public domain (other than by default under this agreement) or information independently known to the other party. To avoid doubt, Client Materials are your Confidential Information.
13.1(f) Consequential Loss includes, without limitation:
13.1(g) Fee(s) means any fees you are required to pay to us, including Subscription Fees, and any other fees for additional services as separately agreed between the parties from time to time.
13.1(h) Force Majeure Event means any of the following: an act of God; war, terrorism, riot, insurrection, hacking, vandalism or sabotage; strike, lockout, ban, limitation of work or other industrial disturbance; or law, rule or regulation of any government or governmental agency, and executive or administrative order or act of general or particular application, which is unforeseen by the affected party, beyond the control of the affected party, and occurs without the fault or negligence of the affected party.
13.1(i) Indemnified Officers means, in relation to a party, its directors, employees, contractors, agents and representatives.
13.1(j) Insolvency Event in relation to a party means the party is wound up, or has a liquidator, administrator, or receiver appointed, or if the party is placed under official management, or commits an act of bankruptcy.
13.1(k) Intellectual Property means all intellectual property rights, including copyright, inventions, patents (including patent applications), trade marks (whether registered or not), designs (whether registrable or not), eligible circuit layout rights, domain name licences, know-how and other confidential information and rights, and includes the right to register any intellectual property rights.
13.1(l) Liability means any liability (whether actual or prospective), loss, damage, cost or expense of any description, including legal fees on a solicitor and own client basis.
13.1(m) Notice of Default means a Written Notice that states that it is a notice of default, specifies the default with sufficient detail and particulars, and gives a reasonable deadline by which the default must be remedied, of not less than 5 Business Days.
13.1(n) Plan means the product tier you subscribe to.
13.1(o) SaaS Software means the Software hosted on servers controlled and maintained by us in a third party data centre, which you access via a secure login.
13.1(p) Services means the provision of associated services as applicable to your Subscription.
13.1(q) Self-Hosted Software means the Software in a form suitable for installation on servers controlled and maintained by you.
13.1(r) Software means the interactive visualisation and mapping tool known as OfficeMaps, whether in Self-Hosted Software or SaaS Software form, and includes any updates or customisations we provide to you under this Agreement.
13.1(s) Subscription means the type of licence and Plan you purchased in relation to the Software for the Billing Period, and as amended from time to time in accordance with this agreement.
13.1(t) Subscription Fee means the amount you are required to pay for the Subscription Service as set forth on the OfficeMaps website pricing page or the proposal accepted by you.
13.1(u) Written Notice means providing information in writing, including by email.
The following rules of interpretation apply unless the context requires otherwise:
13.2(a) if something comes within the meaning of Confidential Information in this agreement and Intellectual Property in this agreement, and there is any conflict in this agreement regarding its provisions concerning Intellectual Property and Confidential Information, the provisions concerning Confidential Information prevail; and
13.2(b) nothing in this agreement shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.
We shall maintain a technical support telephone service based in Brisbane, Australia, which will be staffed by people capable of providing technical assistance regarding the Software, its functionality, operations, and supporting documentation. Telephone technical support will be available to you every Business Day 9:00 am to 5:00 pm AEST.
We will provide 24 hour, 7 days per week web-based customer support at https://help.officemaps.com. You will have access to our support knowledgebase and may submit technical support requests.
You will be able to log a new support request by email firstname.lastname@example.org . You will receive an automated email in response providing details of the automatically generated support ticket.
You will be notified via email or telephone as support tickets progress through the process to resolution. Details of technical support telephone calls may be logged in our web-based customer support system, depending upon the nature of the call and whether or not an immediate resolution is provided. New tickets logged out of hours via email or our web based customer support will be responded to next Business Day.
Support request tickets will be treated as follows:
1.2(a) Support Issue: A question about standard functionality that does not involve changes to the core Software, although it may involve changes to the configuration made by the administrator. Support Issues can generally be resolved by the administrator within a few hours of submission based on advice provided by our support staff.
1.2(b) Enhancement Request: A request to add functionality to the core Software. Enhancement requests may be scheduled at our discretion, based on the perceived usefulness of the request to other customers. Enhancement requests may also be performed as paid custom development at your request, should we choose not to incorporate them as a general enhancement.
1.2(c) Bug: A defect in the Software. We shall respond to and use reasonable commercial efforts to resolve issues deemed to be Bugs in accordance with the priority levels indicated below.
Target times are expressed in business hours.