This KeepShift Services Agreement (“Agreement”) is entered into on this date
Between: KeepShift Pty Ltd ACN 658 911 721 (“Company”),
And: (“Client”).
This Agreement includes and incorporates terms and conditions and contains, among other things, warranty disclaimers, liability limitations and use.
Except as otherwise permitted by this Agreement, no variation to its terms will be effective unless in writing and signed by both the Company and the Client.
Definitions
In this Agreement, including the Recitals, the following terms will have the following meanings unless the contrary intention appears:
Account means the KeepShift online account for the Client containing the Client’s business details.
Agreement’ means this agreement comprising the Client KeepShift Account details and the KeepShift Licence and SaaS Agreement Terms and Conditions.
Authorised Users means the employees or contractors of the Client as nominated by the Client in their KeepShift Account.
Business Hours’ means the hours of 9.00am to 5.00pm Monday to Friday, excluding public holidays.
Commencement Date means the date the Client executes this KeepShift Agreement.
Company means KeepShift, we and our refer to KeepShift Pty Ltd (ACN 658 911 721)
Client or Client means the party named as such in the KeepShift Account. Users who are given the opportunity to purchase the Services.
Documentation means the documentation provided online as part of the Service.
Fees means the fees specified in the Client’s KeepShift Account.
Taxes means any goods or services tax, charge, impost, or duty payable in respect of this Agreement or the supply of any goods or service made under or in respect of this Agreement.
Hosting means a web hosting service is a type of Internet hosting service that hosts the application for the company and the company’s client’s information. This includes the hardware and operating systems necessary to operate and support the KeepShift Service.
Intellectual Property means all intellectual property rights of whatever nature anywhere in the world conferred under statute, common law or equity and includes rights in respect of or in connection with copyright, whether or not registered or registrable, and includes the right to apply for or renew the registration of such rights.
Licence Period means one calendar month from the Commencement Date and each month thereafter until termination pursuant to these Terms and Conditions.
Location means from any computer or mobile device.
Maintenance Services’ means the services described in Clause 6.4.
Party or Parties means a party or the parties to this Agreement.
Payment card industry compliance (PCI) refers to the technical and operational standards that businesses follow to secure and protect credit card data provided by cardholders and transmitted through card processing transactions. PCI standards for compliance are developed and managed by the PCI Security Standards Council.
Product means KeepShift’s online mobile web-based business and workplace management system.
Privacy policy refers to KeepShift’s privacy policy located at keepshift.com/keepshift-privacy-policy/
Product Updates means the updates described in Clause 9.1 of this Agreement.
Renewal Period means each monthly renewal.
Reverse Compile or Reverse Engineering mean to obtain or decipher the source code of the software application and to find out how an object or system works.
SAAS means Software as a Service
Security policy refers to KeepShift security policy located at keepshift.com/keepshift-security-policy/
Service means the service provided by KeepShift pursuant to which access is provided to the Product via a Server hosted by Google or a provider of choice chosen by KeepShift.
Stripe refers to the Online payment processing for the company
Support means the support any support services that may be offered as part of this Agreement.
Term refers to initial subscription period or month by month subscription period to the KeepShift service
Website means the website http://KeepShift.com.au and application login or any other website owned or operated by KeepShift.
You and your refer to an individual, company or organisation that has visited, read or is using the KeepShift service, Website and/or its associated products or services.
In this Agreement unless the contrary intention appears:
a. clause headings have been inserted for convenience only and will not be considered in interpreting the Agreement; KeepShift Licence & SaaS Agreement
b. words importing the singular will include the plural and vice versa.
c. words importing natural persons will include firms and corporate bodies or other legal persons and vice versa.
d. reference to a party to this Agreement includes reference to that party’s successors and assigns
2. KeepShift Software as a Service (SAAS) and Support
2.1. Subject to the terms of this Agreement, the Company will use commercially reasonable efforts to provide the Client the Services in accordance with the Service Level Terms attached in Schedule
2.2. Subject to this Agreement, the Company will provide the Client with reasonable technical support services in accordance with the Company’s standard practice.
3.1. Except as otherwise permitted by the Copyright Act 1968 or agreed to in writing by the Company, the Client must not reverse compile, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of the Services or any software, documentation or data related to the Services
3.2. With respect to any Services that is distributed or provided to the Client for use on the Client’s premises or devices, the Company hereby grants the Client a nonexclusive, non-transferable, non-sublicensable license to use such Services during the Term only in connection with the Services.
3.3. The Client represents, covenants, and warrants that the Client will use the Services only in compliance with the Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations in the relevant jurisdiction.
3.4. The Client hereby agrees to indemnify the Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Client’s use of Services. Although the Company has no obligation to monitor the Client’s use of the Services, the Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
a. The Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”. The Client shall also be responsible for maintaining the security of the Equipment, the Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Client account or the Equipment with or without the Client’s knowledge or consent.
b. During the Term, The Company grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to access and use the hosted software products and related documentation included in the Service and all modifications and/or enhancements to any of the foregoing (collectively, the “Software”) via a web browser or other device owned or controlled by you for your internal business use. Nothing in this Agreement obligates. The Company to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. You agree to use the Service, only in compliance with all applicable local, state, national, and international laws, rules, and regulations (“Applicable Law”). You shall not, and shall not agree to, and shall not authorize, encourage, or permit any third party to use the Service.
c. to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, fraudulent, pornographic, obscene, threatening, abusive, hateful, contains viruses, or is otherwise objectionable as reasonably determined by the Company.
d. for any fraudulent or inappropriate purpose, or in a manner for which it is not intended to be used (as determined by the Company in its sole discretion);
e. to attempt to decipher, decompile, delete, alter, or reverse engineer any of the Software.
f. to duplicate, make derivative works of, reproduce or exploit any part of the Service without the express written permission of the Company.
g. with any robot, spider, other automated device, or manual process to monitor or copy any content from the Service other than copying or exporting of the Data as contemplated in the documentation; or
h. to rent, lease, distribute, or resell the Software, or access or use the Software or Services for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or displayed in connection with the Service.
3.5. The Company may from time to time offer additional services such as pre-loaded document package templates that can be utilised by Clients. You may read, edit, and copy the information on the Company for your own needs but you may not publish, resell or sub-licence any materials. The Company makes no guarantees, representations or warranties about the accuracy or legal correctness of any of the information on The Company
4.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party’) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (referred to as “Proprietary Information’ of the Disclosing Party)
4.2. Proprietary Information of the Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of the Client includes non-public data provided by the Client to the Company to enable the provision of the Services (‘Client Data’)
a. to take reasonable precautions to protect such Proprietary Information, and
b. not to use (except in performance of the Services or as otherwise permitted in this Agreement) or divulge to any third person any such Proprietary Information.
5.1. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
5.2. The Client shall own all right, title, and interest in and to the Client Data, as well as any data that is based on or derived from the Client Data and provided to the Client as part of the Services. The Company shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, provided documentation templates or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing
5.3. Notwithstanding anything to the contrary, the Company shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and the Company will be free (during and after the term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
5.4. No rights or licenses are granted except as expressly set out in this Agreement.
6.1. Access to the software is dependent on the service levels provided by the hosting platform. To ensure the service is accessible and runs proficiently it is each client’s responsibility to ensure they have a suitable internet network connection to run and access the service. The company cannot guarantee that the service will run as intended in areas where an internet connection is not sufficient.
6.2. The service is cloud based software application and runs a Progressive Web Application (PWA) for mobile use. The Companies service will run off the most common browsers such as Chrome, Firefox and Safari. As the mobile application is a PWA it will work on most mobile phones and tablets.
6.3. Accounts will be accessed through a user name and password access. The Company also has implemented a 2-factor authentication (2FA) as a second layer of protection. It is by default disabled but is the Client’s responsibility to enable this service for an added layer of protection. Please refer to security breach within these terms clause 10.
6.4. Scheduled maintenance of the Application of the service for updates and improvements will happen from time to time. The Company will endeavour to notify the Client on the date and times of upcoming maintenance with 2 business days.
6.5. Privacy obligations – will be managed in accordance with the Privacy Policy
7.1. The Client will pay the Company the applicable fees every month they are subscribed to the service
7.2. The Subscription Service is offered on payment of a per user basis to be automatically debited on a monthly subscription basis. All services are automatically debited from the clients nominated payment method with user numbers calculated on the last day of every calendar month and automatic billing on the first day of every calendar month, unless the last day of the calendar month is a weekend or public holiday, then it will be processed on the next business day.
7.3. An active user which contributes to the subscription numbers payable, is anyone who has been activated for the calendar month regardless if they have then been deactivated by the client.
7.4. The Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or the current renewal term, upon thirty (30) days prior notice to the Client {which may be sent by email).
7.5. If the Client believes that the Company has billed the Client incorrectly, The Client must contact the Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Company’s client support department.
7.6. The service offered includes storage space of up to 2 Gigabit (gb) to hold client’s documents, photos and text depending on the subscription service taken. If a client exceeds 2gb, they will be charged at a rate of $30 per gb over and above the 2gb allowance.
7.7. The Company does not hold your payment details; we use the PCI compliant payment gateway provided by Stripe – your card details will be held by Stripe. For Stripe terms and conditions, clients should visit www.stripe.com
7.8. Unpaid amounts or rejected payments are subject to an interest charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
7.9. The Company may from time to time offer additional services which are completely optional such as pre-loaded document package templates. These templates will only be offered as a one-off payment at a price determined by the company.
7.10. The client is responsible for paying any applicable state taxes that may be incurred as a result of purchasing and/or using our products/services. These taxes will be calculated based on the customer’s shipping address or location of use, as required by state law. The customer agrees to indemnify and hold the company harmless from any liability arising from the customer’s failure to pay these taxes.
8.1. Subscriptions purchased by you commence on the start date specified when you complete the initial payment process. If you add an additional subscription service at a later date, the new service will commence on the start date specified at the time you added the new service.
8.2. Subscriptions are on a month-by-month basis unless terminated.
8.3. Cancellation. You are solely responsible for the proper cancellation of your subscription. You may cancel your subscription at any time by sending a cancellation request email to support@keepshift.com.
8.4. The company requires all Clients to give thirty days’ notice when they wish to cancel the service.
8.5. In the event your subscription is terminated, other than in instances where it is terminated by The Company for your non-payment or violation of this agreement, you will continue to have the ability to download the information provided, inputted or uploaded to your databases in the Companies Service by you or on your behalf (“Data”) for 30 days after the effective date of expiration or termination of your subscription.
8.6. After such 30-day period or if your subscription is terminated due to your non-payment or violation of this agreement, The Company shall have no obligation to maintain any Data and shall thereafter, unless legally prohibited to do so, or required pursuant to Additional Terms, delete all of your Data contained in the Company Service
9.1. The Client acknowledges and accepts that it is the Client’s sole responsibility to ensure that:
9.2. the facilities and functions of the Services meet the Client’s requirements.
9.3. the Services are appropriate for the specific circumstance of the Client and are within the laws and regulations of the Client’s jurisdiction
9.4. the Company does not purport to provide any legal, taxation, Work Health and Safety, Employment, or accountancy advice by providing the Service under this Agreement.
9.5. The Company will not be liable for any failure of the Services to provide any function not described in the documentation (provided online as part of the Services) or any failure attributable to
9.6. any modification to the Services other than by the Company.
9.7. accident, abuse or misapplication of Services by the Client.
9.8. use of the Services with other software or equipment without the Company’s written consent.
9.9. use of other than the latest, unaltered current release of the Services.
9.10. or use other than in accordance with this Agreement.
9.11. If, upon investigation, a problem with the Services is determined not to be the Company’s responsibility, the Company may invoice the Client immediately for all reasonable costs and expenses incurred by the Company in the course of or in consequence of such investigation.
10.1. Internal Breach. In the event of a Security Breach, as defined by Applicable Law, which is perpetrated by your affiliate, employee, contractor, or agent, or due to your failure to maintain your systems, network or Data in a secure manner, you shall have sole responsibility for initiating remedial actions and you shall notify the Company immediately of the Security Breach and steps you will take to remedy such breach.
10.2. In our sole discretion, we may take any action, including suspension of your access to the Service, to prevent harm to you, us, the Service, or other third parties. You waive any right to make a claim against us for losses you incur that may result from our actions.
10.3. External Breach. In the event of an accidental, unauthorized or unlawful destruction, loss, alteration, disclosure of, or access to, personal data (a “Security Breach”), that impacts the personal data you maintain through the Company Service, and which is perpetrated by anyone other than your employees, contractors or agents, upon discovery of such Security Breach, The Company will: (a) initiate remedial actions that are in compliance with Applicable Law and consistent with industry standards; and (b) as required by Applicable Law, notify you of the Security Breach, its nature and scope, the remedial actions The Company will undertake, and the timeline within which The Company expects to remedy the Security Breach. You will be responsible for fulfilling your obligations under Applicable Law.
11.1 The Client will at all times indemnify and hold harmless the Company and its officers, employees, directors, affiliates, and agents in respect of any third-party claim for any injury, loss, damage or expense occasioned by or arising directly or indirectly from
a) a breach by the Client of its obligations under this Agreement.
b) any wilful, unlawful, or negligent act or omission of the Client.
(Including reasonable legal fees), judgments, losses, and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or in connection with
a) your use of the Software Service and/or Service in violation of this Agreement,
b) any employment decision or action you take due to information available through or your use of the Service.
12.1. Certain features of the service will enable users to submit, upload, post, share, or display (hereinafter, “post”) comments or content, (such comments and content shall be collectively referred to as “User Content”). User Content includes any comments or reviews you provide to The Company, whether through client support or otherwise, about the Service and/or Service, but excludes all Data.
12.2. You hereby grant to The Company an irrevocable, perpetual, non-exclusive, transferable, sublicensable, assignable, royalty-free, worldwide right and license to use, reproduce, display, perform, distribute, and prepare derivative works of any User Content you post on our website or about the Service, for any purpose and in all forms and all media, whether now known or that become known in the future, and you waive any and all claims that you may have now or may hereafter have in any jurisdiction to any moral rights and all rights of “droit moral” in your User Content. If you post User Content, you represent and warrant to the Company that you own or control all rights in and to such User Content and have the right to grant the rights above to The Company
13.1. Except in the case of death or personal injury caused by the Company’s negligence, the liability of the Company under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the fees paid by the Client to the Company for the Services under this Agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not the Company has been advised of the possibility of such damages.
13.2. Neither party is liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs, or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.
14.1. The Website, the Services and all of the related products of the Company are subject to copyright. The material on the Application is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the application (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) (the “Content”) are owned or controlled for these purposes and are reserved by the Company or its contributors.
14.2. The Company retains all rights, title, and interest (including copyrights, patents, and trademarks) in and to the Website, Services, products and all related content therein. Unless otherwise indicated, the Terms do not transfer to you any the Company or third party’s right, title, and interest in copyrights, patents, and trademarks.
14.3. You may not, without the prior written permission of the Company and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show, or play in public, adapt or change in any way the Content or third-party content for any purpose.
14.4. To the extent that anything in this agreement, any written document or anything spoken by us prior to the date of this agreement could be taken to (impliedly or expressly) confer or grant any rights in relation to our Intellectual Property Rights, they are void and of no effect. You are not entitled to use any of our Intellectual Property Rights whatsoever unless we expressly authorise you in a document titled ‘Grant of Licence to Use Intellectual Property Rights’. You may only use our Intellectual Property Rights to the extent set out in that document, and for no other purpose.
14.5. You agree to indemnify us for any loss or damage we incur, or any commercial benefit you or any third party makes, from your breach of this clause.
15.1. The Service may be made available in free or paid versions at different levels. Not all features and functionality of the Service may be available in each version or level. The Company reserves the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the Service on a temporary or permanent basis, without liability to you or any third party.
15.2. Exclusive Remedy. If you are dissatisfied with the terms of this Agreement or any modifications to this Agreement or the Service, you agree that your sole and exclusive remedy is to terminate your subscription and discontinue use of the Service.
15.3. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
15.4. This Agreement is not assignable, transferable, or sublicensable by the Client except with the Company’s prior written consent. The Company may transfer and assign any of its rights and obligations under this Agreement without consent.
15.5. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided in this Agreement.
15.6. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Client does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees.
15.7. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
In consideration of the services provided by KeepShift and to facilitate efficient and effective support assistance, the “Client” agrees to provide KeepShift support with automatic access to the “clients” KeepShift Account as part of this user agreement solely for the purpose of delivering technical support and troubleshooting assistance.
16.1 Scope of Access:
16.1.1 The automatic access granted to KeepShift allows for streamlined support services and access to the necessary functionalities and data within the “Clients” database to resolve technical issues.
16.1.2 KeepShift shall not, under any circumstances, access, use, or modify any data or information within the “Clients” database beyond the scope required for providing support services.
16.2 Security and Confidentiality:
16.2.1 KeepShift acknowledges and agrees to treat all information and data accessed through the “Clients” database as strictly confidential.
16.2.2 KeepShift shall implement reasonable security measures to prevent unauthorized access, disclosure, or misuse of the Client’s data during the support process.
16.2.3 Any information or data obtained during the support process shall not be shared with third parties or used for any purpose other than providing support to the Client.
16.3 Compliance with Applicable Laws:
16.3.1 Both parties shall comply with all applicable laws, regulations, and industry standards governing data protection, privacy, and security during the provision of support services.
16.3.2 KeepShift shall not use the automatic access to the “Clients” database for any unlawful or unauthorized activities.
16.4 Liabilities:
16.4.1 KeepShift shall not be held liable for any loss of data, damage, or other issues arising from actions taken or not taken within the “Clients” database during the support process, except in cases of gross negligence or intentional misconduct.
16.4.2 KeepShift’s liability is limited to providing support assistance as outlined in this agreement.
16.5 Termination:
16.5.1 This access agreement shall remain in effect until the completion of the support services or termination of the main contract between the parties.
16.5.2 Upon termination of the main contract or written request from the Client, KeepShift shall promptly delete any access credentials and related information provided by the Client and cease accessing the “Clients” database
By proceeding with the support services, both parties agree to abide by the terms and conditions set forth in this clause. This agreement is an integral part of the broader Service agreement between the KeepShift and the Client.
This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Queensland, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Queensland.