Terms & Conditions of Use
Hi-Key Resources Pty. Ltd. (ACN 603 178 276)
By registering to use the Service You acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity or person for whom You use the Service.
These Terms were last updated on 22 March 2016.
- “Access Fee” means the fees payable by the Customer for use of the Software and the Services.
- “Admin Portal” means the web portal provided by HiKey that allows the Customer to manage the Software it has licensed.
- “Customer” means the legal entity that enters into a business relationship with HiKey in respect of the use of the Software and provision of the Services.
- “Data” includes all information or data submitted by You or on behalf of the Customer and its Users via the Software.
- “HiKey” means Hi-Key Resources Pty. Ltd. (ACN 603 178 276).
- “Intellectual Property” includes all rights throughout the world in relation to patents, copyright (including moral rights), designs, registered and unregistered trademarks, trade secrets, know-how, confidential information and all other intellectual property and any right to register those rights, whether created before or after the date of this Agreement, and in all cases for the duration of those rights and any renewal, and for the avoidance of doubt, includes all such rights in respect of the Software in source code and object code format.
- “Party” means the Customer, a User or HiKey as the context requires, and “Parties” means the Customer, a User and HiKey together.
- “Service” means the online digital timesheet tool together any Customisation or Maintenance services relating to the Software and made available by HiKey from time to time.
- “Software” means any mobile applications, administrative codes, application programming Interfaces (API’s), plug-ins or other software HiKey makes available to You, and includes any Interfaces, applications and Admin Portals made available in connection with the use of any specific software programs. For the avoidance of doubt, HiKey’s Software includes but is not limited to the software application known as “Time2L”.
- “User” is an individual who is authorised by a Customer to use or access the Software. Users can be but are not limited to a Customer’s employees, contractors, agents and any third party the Customer invites to use the Software. For the avoidance of doubt, multiple Users of the Software may belong to one single Customer.
- “Website” the HiKey website at www.hikey-resources.com
- “You” means the Customer, and where the context permits, a User. “Your” has a corresponding meaning.
In this document, unless a contrary intention is expressed:
(a) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(b) the singular includes the plural and the plural includes the singular;
(c) a reference to any document is a reference to that document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(d) a reference to a party to this document includes that party’s executors, administrators, successors and permitted assigns; and
(e) the word “including” is not to be treated as a word of limitation.
3. Use of Software
HiKey grants You the right to access and use the Service via the Website with the particular user roles available to You according to an agreement between HiKey and the Customer. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Customer and the Users, or any other applicable laws:
(a) the Customer determines who is a User and what level of user role access to the relevant organisation and Service that User has;
(b) the Customer is responsible for all Users’ use of the Service;
(c) the Customer controls each User’s level of access to the relevant organisation and Service at all times and can revoke or change a 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 User or shall have that different level of access, as the case may be;
(d) if there is any dispute between a Customer and a User regarding access to any organisation or Service, the Customer shall decide what access or level of access to the relevant Data or Service that User shall have, if any;
(e) HiKey may suspend or terminate Your use of the Service in the event that any invoices for Access Fees are not paid in full by the due date for payment; and
(f) You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by HiKey or condition posted on the Website. You may use the Service and Website on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.
4. Access Conditions
(a) By entering into this Agreement, or accessing and using the Software, or requesting the Services of HiKey, You are representing to HiKey that you have read, understood, accepted and agreed to be bound by the provisions of this Agreement.
(b) As a condition of these Terms, when accessing and using the Services, You must:
(i) not attempt to undermine the security or integrity of HiKey’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
(ii) 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;
(iii) not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
(iv) if the Customer is a company or other entity or organisation: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
(iv) 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.
(c) At any time and in its sole discretion HiKey reserves the right to discontinue, update, revise, remove or otherwise change Software features and functionality, and the right to revise, update and modify the Terms. Such modifications to this document will be effective immediately or at such future date as may be specified by HiKey. HiKey will use its reasonable efforts to notify You of any changes to this Agreement or to the Software. Your continued use of the Software and or the Services thereafter will be deemed acceptance of such changes to this Agreement and/or the Software.
(d) The Customer and each of its invited Users must, and must ensure that its Users, comply with any rules, regulations, guidelines or similar documentation posted or otherwise made available by HiKey in respect of the Software and or the Services.
(e) The provision of, access to, and use of, the Services is on an “as is” basis and at Your own risk.
5. General Representations and Warranties
You represent and warrant to HiKey that:
(a) You have the full right, power and authority (including corporate right, power and authority, as applicable) to enter into the Agreement;
(b) the acceptance of the Agreement and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is bound;
(c) You agree to comply with all applicable federal, territory and state laws and regulations in the performance of its obligations under the Agreement;
(d) The Customer is solely responsible for its Data and the Data of its invited Users, including without limitation, the security of such Data;
(e) You have all necessary rights and licenses, consents, permissions, waivers and releases to use the Data and submit it via the Software, including in respect of use and management of Data in accordance with the Agreement terms;
(f) if You are an individual, that you are at least eighteen (18) years of age and have the legal capacity or permission of a legal guardian to enter into the Agreement; and
(g) the information You provide in connection with entry into the Agreement is accurate, complete and in compliance with the requirements of the Agreement;
(h) if You are a company or other entity or organisation:
(i) such entity or organisation is duly authorised to do business in Australia and any other country or countries where it operates,
(ii) the individual entering into this Agreement on behalf of the Customer meets the requirements of clause 5(f) above and is an authorised representative of such entity or organisation, and
(iii) it will take all steps required to ensure that the Users authorised by the Customer to access and use the Software comply with the terms of the Agreement as applicable.
(i) You are acquiring the right to access and use the Software and or the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Software, the Services, the Website or these Terms
6. Provision of Maintenance Services
(a) If it is agreed that HiKey will provide Maintenance Services to the Customer, HiKey will perform these services at such frequency and duration as it considers reasonable to ensure that:
(i) errors in the Customisations supplied by HiKey that are identified by the Customer or which otherwise come to the attention of HiKey are rectified; and
(ii) the Customisations remains in conformity with the specifications agreed between the Customer and HiKey
(b) The Maintenance Services will be provided by HiKey for the duration agreed by the parties and at the sole option of HiKey will take the form of:
(i) telephone or email advice;
(ii) remote access error correction;
(iii) on-site attendance followed by such advice, programming or re-configuration as HiKey considers necessary;
(iv) provision of third party assistance; and
(v) such services as HiKey considers are more effectively provided off-site.
(c) HiKey will provide the Maintenance Services in response to a report by the Customer of a suspected defect or error in the Customisations, which allegedly causes the Customisations to deviate from the agreed specifications.
(d) The Customer acknowledges and agrees that HiKey may in its discretion appoint a sub-contractor to provide some or all of the Maintenance Services to the Customer.
(e) HiKey will provide the Maintenance Services between 9 am and 5 pm on any Business Day. HiKey does not warrant that it will be capable of promptly receiving, processing or otherwise acting upon a request for support which is made outside HiKey’s normal business hours.
(f) Immediately after making a request for Maintenance Services which may involve error correction or program modification, the Customer must give HiKey a documented example of the defect or error which it alleges prevents conformity of the Customisations with the applicable specifications.
(g) The Customer must, if so requested by HiKey, give HiKey a listing of output and any other data which HiKey requires in order to reproduce operating conditions similar to those present when any alleged defect or error in the Customisations was discovered.
(h) Unless otherwise expressly stated, Maintenance Services to be provided by HiKey under this document do not include:
(i) changes to the Software;
(ii) correction of errors or defects caused by operation of the Software or Customisations in a manner other than that currently specified by HiKey;
(iii) correction of errors or defects caused by modification, revision, variation, translation or alteration of the Software or other Customisations not authorised by HiKey;
(iv) correction of errors or defects caused by the use of the Software or Customisations by a person not authorised by this document or HiKey;
(v) correction of errors in the Customisations caused in whole or in part by the use of computer programs other than the Software;
(vi) correction of errors caused by the failure of the Customer to provide suitably qualified and adequately trained operating and programming staff for the operation of the Software or Customisations;
(vii) training of operating or programming staff;
(viii) rectification of operator errors;
(ix) rectification of errors caused by incorrect use of the Software or Customisations;
(x) rectification of errors caused by an equipment fault;
(xi) equipment maintenance;
(xii) diagnosis or rectification of faults not associated with the Software or Customisations;
(xiii) furnishing or maintenance of accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by HiKey;
(xiv) correction of errors arising directly or indirectly out of the Customer’s failure to comply with this document or any other agreement with HiKey; or
(xv) correction of errors or defects which are the subject of a warranty under another document.
(i) If the Customer so requests in writing, HiKey may at its option provide any of the Maintenance Services referred to in clause 6(h). Such services will be charged on a time and materials basis.
(j) The Customer must ensure that HiKey’s personnel are provided with all information, facilities, assistance and accessories reasonably required by HiKey to enable HiKey to comply with its obligations under this document.
(k) If reasonably requested by HiKey, the Customer must provide a suitably qualified or informed representative to HiKey’s personnel and provide such advice or assistance to those personnel as may be necessary in order to enable HiKey to effectively perform the Maintenance Services.
7. Service interruptions
(a) HiKey can modify or cease to offer the Software, or any part thereof, at any time without prior notice.
(b) To the full extent permitted by law, Hi-Key does not warrant that the Software or Services (or any part of them) will be error free, or that the Customer’s use of the Software will be uninterrupted, or meet the requirements of the Customer.
(c) To the full extent permitted by law, HiKey will not be liable for any damages arising out of or related to interruption of, or defects in use or transmission of, the Software, including without limitation interruptions or defects due to inability to access the Internet or any part thereof, equipment modifications, upgrades, relocations, or repairs. No reduction of payments will be made in the case of temporary interruption of or defects in use or transmission of the Software.
(d) HiKey will not be liable for interruption of or delays in use or transmission of the Software caused by acts of god, fire, water, riots, acts of Government, acts or omissions of Internet providers, or any other causes beyond HiKey’s control.
8. Cancellations and Termination
(a) You can terminate the Agreement at any time at which time Your access to the Software or the Service will cease.
(b) HiKey can temporarily suspend Your entitlement to use the Software without prior notice and/or terminate the Agreement where:
(i) You have committed a material breach of the Agreement that is not capable of remedy;
(ii) You have committed a material breach capable of remedy and has failed to remedy that breach within 7 calendar days after receiving notice in writing requiring the breach to be remedied;
(iii) an Insolvency Event has occurred, or is threatened to occur, in respect of the Customer; or
(iv) the Customer ceases business.
(c) Without affecting subclause (b), HiKey can at any time terminate this Agreement with immediate effect.
(e) Termination of these Terms 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:
(i) the Customer will remain liable for any accrued charges and amounts which become due for payment before or after termination; and
(ii) You will immediately cease to use the Software, the Services and the Website.
(f) The rights and obligations under clauses 3, 5, 7, 8(d), 8(e), 9, 10, 10(c), 12(a), 12(b) and 15 survive the expiry or termination of the Agreement and continue in full force and effect, together with any other rights and obligations which are by their nature or effect intended to survive.
9. Intellectual Property
(a) HiKey is the sole and exclusive owner of the Software, including all associated Intellectual Property, and reserves all rights accordingly.
(b) You must not, and must ensure that Users and all other third parties do not, attempt to reverse engineer, decompile, disassemble, re-engineer, or otherwise discover, recreate, or attempt to discover or recreate the Software or its source code, or otherwise infringe the Intellectual property of HiKey. You must ensure that You and other third parties authorised by You do not, modify or attempt to modify the Software.
(c) The Customer is the owner of all Data. You grant to HiKey a fee-free, perpetual licence to access and use the Data to the extent necessary for HiKey to provide the functionality of the Software and its Services. You are responsible for ensuring that all Data is truthful, accurate and correct.
(e) HiKey will use reasonable efforts to ensure that Data is maintained in a secure manner, but this will not affect or restrict the operation of clause 11(b).
(f) You acknowledge for the avoidance of doubt that Data may be transferred to any successor in title ofHiKey.
(a) You will at all times be responsible for and indemnify HiKey and its affiliates, employees, officers, directors, agents, and successors (those indemnified) from and against any claims made against, or losses, damage or liability incurred by, any of those indemnified (and including without limitation solicitor’s fees on a solicitor-own client basis) that arise out of, in connection with or in respect of:
(i) any breach by the Customer or any of its Users of any of their obligations under the Agreement, or any warranty or representation given under the Agreement;
(ii) any unauthorised acts, fraud, wilful default, dishonesty or negligence of the Customer or any of its Users;
(iii) the violation by the Customer or any User of any rights, including without limitation Intellectual Property, of HiKey, or those of any third party which result from the use of the Software by the Customer;
(iv) HiKey’s refusal to provide any person access to Your information or Data in accordance with these Terms; or
(v) HiKey making available information or Data to any person with Your authorisation.
(b) Your obligation to indemnify those indemnified will survive the expiration or termination of this Agreement for any reason.
(c)The indemnity referred to in this clause will be granted whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination, and will survive termination or expiration of the Agreement.
11. Limitation of Liability and Warranty
(a) To the fullest extent legally permitted, HiKey makes no warranties, express or implied, in respect of the Software, the Services, or any aspect thereof. Without limiting the foregoing, HiKey specifically disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability, acceptable quality, or fitness for any purpose. HiKey does not warrant that the Software will meet Your requirements or operate without error, interruption or downtime.
(b) Furthermore, to the full extent permitted by applicable law, HiKey will not be liable to the Customer or any User for any loss, including loss of Data or special, indirect or consequential damages (such as loss of profits), or claim, arising out of breach of the Agreement (including for the avoidance of doubt any unauthorised access to or disclosure of Data) or HiKey’s negligence, or arising out of the supply of defective Software or Services.
(c) Without limiting the preceding subclauses or clause 5(i), to the full extent permitted by applicable law, HiKey’s liability for any term, condition, guarantee or warranty that is implied by law and cannot lawfully be excluded by HiKey, including the consumer guarantees set out in the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and all similar or equivalent legislation, rules and regulations is limited to (at HiKey’s option):
(i) in the case of goods, including the Software (to the extent the Software is considered a good under applicable law) – repairing, replacing or supplying equivalent goods, or paying the cost of any of those remedies to the Customer; or
(ii) in the case of services, including the Services – supplying the services again or re-paying the cost of the Services rendered.
(d) To the extent permitted by law, Your sole and exclusive remedy, if it is dissatisfied with the Software or with any terms, conditions, rules, policies, guidelines, or practices of HiKey is to discontinue using the Software and terminate the Agreement.
(e) Without limiting or affecting any other provision of the Agreement, to the full extent permitted by applicable law, HiKey’s maximum aggregate liability to the Customer or any User is limited the total value of the Access Fees paid by the Customer to HiKey in the preceding two (2) months prior to termination of this Agreement.
12. Limitations on the utilisation of the Service and the Software
(a) You acknowledge that the Software is not a payroll system and You agree to take full responsibility to validate the accuracy of Data produced by the Software when used by Customer for its own payroll or billing purposes. You assume sole and full responsibility for compliance with all applicable laws, including workplace relation laws and reporting obligations, in connection with its use of the Software and the output of the Software, and must indemnify HiKey on demand against any liability HiKey may incur in respect of the Customer’s use of the Software. Certain features of the Software, including multiplying hours tracked by a monetary figure supplied by Customer, are provided for convenience and Your reference only and do not and will not reflect the actual calculation of any payment payable by Customer to any person or entity and can never be relied on as such and are not warranted or guaranteed by HiKey to be a payroll calculation or any other payment calculation.
(b) You must not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Software. You must only access the Software through the interfaces and protocols provided or authorised by HiKey. You may not compile or use the HiKey provided materials or any other information obtained through the Software or the Website for the purpose of unsolicited direct marketing, spamming, unsolicited contacting of customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate the Spam Act 2003 (Cth) or the Privacy Act 1988 (Cth).
13. Access and Security
(a) You responsible for maintaining the confidentiality of any passwords used by the Customer or its Users to access the Software, and must not disclose such passwords to any unauthorised third parties. Each party will promptly notify the other of any unauthorised access to or use of Data or passwords. The parties will use reasonable efforts to take remedial measures to address any such unauthorised access.
(b) HiKey has no obligation to monitor the Software or its use, but may do so in its discretion. HiKey has the right to monitor use of the Software and to disclose any information arising out of it, including without limitation Data, to the extent necessary to satisfy any law, regulation, or demand of government or of internal auditors or to protect HiKey or its customers. HiKey can, but is not obliged to, remove or refuse to post any materials that it finds, at its sole discretion, to be offensive, undesirable, in violation of the Agreement, or otherwise unacceptable.
14. Dispute Resolution
(a) All disputes between the parties must be referred in writing to a representative appointed by each party (Representative) who will attempt to resolve the dispute by negotiations in good faith.
(b) If the dispute is not settled within 14 days of the receipt by each representative of notification of a dispute pursuant to clause 14(a), the parties agree to refer the dispute to a mediator to be mutually agreed, or in default of agreement within five days of either party requesting the other to agree a mediator, to be appointed by the President for the time being of the Law Society of New South Wales. The mediation will be held in Sydney, New South Wales, and the parties will equally share the costs of the mediator while otherwise each bearing their own costs of attending and participating in the mediation.
(c) If mediation pursuant to clause 14(b) fails to resolve the dispute, each party is free to commence legal proceedings to resolve the dispute.
(d) Nothing in this clause 14 is to be interpreted as preventing either party from obtaining interlocutory relief from an appropriate court if it is reasonably necessary to do so to protect the interests of that party.
15. General Conditions
(b) The Customer acknowledges and understands that HiKey may use third party vendors to supply the necessary storage, software, hardware, networking and all other technologies related to the operation of its products and services, including the Software.
(c) If any provision of this document is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this document or affecting the validity or enforceability of that provision in any other jurisdiction.
(d) In the event that any provision of the Agreement is held to be prohibited, invalid or unenforceable in any jurisdiction, , that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of the Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
(e) HiKey is controlled, operated and administered by its offices within Australia. HiKey makes no representation that HiKey’s Software or other products or services are appropriate or available for use at other locations outside of Australia. If You access or use the Software from locations outside of Australia, You are responsible for compliance with all local laws.
(f) The Agreement is governed by the law in force in the State of New South Wales. The Parties submit to the exclusive jurisdiction of the courts of that State and the New South Wales Registry of the Federal Court of Australia in respect of all proceedings arising in connection with this document.
(g) You will promptly do all things required by law or reasonably requested by HiKey to give effect to the Agreement.
(h) No waiver by HiKey of any breach or default by You is effective unless reduced to writing and signed by HiKey, and any such waiver does not constitute a waiver of any other continuing breach or default under the Agreement.
(i) Other than as provided in the Agreement, the rights and remedies provided under the Agreement are cumulative and not exclusive of any rights or remedies provided by law or of any other such right or remedy. Any single or partial exercise of any power or right does not preclude any other or further exercise of it or the exercise of any other power or right under the Agreement. The rights and obligations of the Parties pursuant to the Agreement are in addition to and not in derogation of any other right or obligation between the parties under any other deed or agreement to which they are parties.
16. Help Desk
Technical Problems: In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting HiKey. If You still need technical help, please check the support provided online by HiKey on the Website or failing that email us at info@HiKey-resources.com
Please send any questions about the above terms and conditions to info@HiKey-resources.com