Thank You for choosing the Nexus Suite Software. This document sets out the terms and conditions for using the Nexus Suite Software in addition to those in your Customer Agreement with the Licensor. Please read through these Terms. By clicking “I Accept” or by accessing the Nexus Suite Software, You acknowledge You have read these terms and conditions (“Terms”) and agree to comply with them. If You disagree with any of these Terms, please do not use the Nexus Suite Software.
TIK may change these terms from time to time. You will be required to click “I Accept” each time the terms have been updated. The continued use of the Nexus Suite Software by You after notification of a change indicates your acceptance of the updated Term.
1. Licence to Software
1.1. TIK grants to You a limited, non-exclusive, revocable, non-transferrable, non-assignable and non-sub-licensable licence to use the Nexus Suite Software.
1.2. Your Licence permits the use of the Nexus Suite Software by You and for the following purposes:
1.2.1. the use of the Nexus Suite Software for internal purposes only in accordance with the Documentation;
1.2.2. to enable the Licensor to provide the Licensor Services; and
1.2.3. not for any commercial purposes.
1.3. TIK may temporarily suspend access to the Nexus Suite Software and Documentation at any time without notice if it forms the reasonable view that:
1.3.1. You are in breach of these Terms; or
1.3.2. You are in breach of any material obligations or terms of use agreed with the Licensor.
2. Conditions of Use
You will:
2.1. comply with any instructions relating to the use and operation of the Nexus Suite Software including in relation to any operating environment designated by TIK or the Licensor for best use of the Nexus Suite Software;
2.2. comply with any security guidelines;
2.3. remain responsible for actions of any employee or user of the Nexus Suite Software;
2.4. be responsible for and supervise all use of the Nexus Suite Software whether by your employees, authorised personnel or otherwise;
2.5. address any issues or complaints in relation to the Nexus Suite Software with the Licensor;
2.6. provide every assistance to the Licensor in relation to the Customer Agreement;
2.7. not engage third parties to provide support or maintenance services in relation to the Nexus Suite Software without prior written consent of TIK;
2.8. pay all fees for the Licence to the Licensor in accordance with the Customer Agreement;
2.9. not make any part of the Nexus Suite Software and information provided through the Nexus Suite Software available as part of another application, website or public use or disclosure in any way;
2.10. not use any device, application, software, item or equipment, or take any action, which does or may affect the operation of the Nexus Suite Software.
3. Your Data
3.1. You own all Customer Data inputted into the Nexus Suite Software.
3.2. You warrant that You have the right to input the Customer Data into the Nexus Suit Software and the provision or use of Customer Data does not breach these Terms, the Intellectual Property Rights of another or any applicable law.
3.3. TIK is not responsible for any Customer Data inputted into the Nexus Suite Software.
4. Data Security and Privacy
4.1. You are responsible for:
4.1.1. keeping the use of the Nexus Suite Software secure by your users;
4.1.2. the back-up of all content used, entered or inputted into the Nexus Suite Software including Customer Data; and
4.1.3. the implementation of appropriate technical and organisational measures necessary to protect the Nexus Suite Software and Customer Data from damage, unauthorised access or misuse.
4.2. You and TIK both agree to comply with all relevant Privacy Laws in relation to its use of the Nexus Suite Software including in relation to Notifiable Data Breaches.
4.3. If TIK requires access to your installed version of the Nexus Suite Software to provide a support service, You authorise the access and acknowledge that this may involve the disclosure of personal information or confidential information to TIK.
4.4. You agree to comply with all reasonable instructions from the Licensor or TIK in relation to handling personal and sensitive information.
5. Intellectual Property
5.1. Nothing in these Terms grants You any ownership rights in the Nexus Suite Software.
5.2. You must:
5.2.1. not adapt, modify, alter, copy, reproduce, reverse engineer, disassemble, merge, decode in any way or decompile in whole or any part of the TIK Intellectual Property, by any means;
5.2.2. not threaten, institute, invalidate, challenge or put in dispute the ownership, use or title of the TIK Intellectual Property anywhere in the world;
5.2.3. not infringe the TIK Intellectual Property;
5.2.4. not remove, obscure or deface the Nexus Suite Software, Documentation or any trade mark, label or notice on, used by or in the Nexus Suite Software or Documentation including copyright notices;
5.2.5. not register or use a business, company or association (whether incorporated or not) name, domain name or trade mark which is identical, substantially identical with or deceptively similar to, capable of being confused with or contains any part of TIK’s trade marks anywhere in the world; and
5.2.6. not assist, support or encourage any person to do any of the things contained in this clause.
5.3. Any Improvement to the Nexus Suite Software, regardless of the author or developer, shall be the property of the TIK.
5.4. You assign all of your right, title and interest in and to any Improvements made to the Nexus Suite Software and any Intellectual Property Rights created as a result of performing your obligations under These Terms or as a result of your use of the Nexus Suite Software excluding Customer Data to TIK and You will sign any documents and provide every assistance to transfer the same to TIK.
5.5. TIK confirms that:
5.5.1. the Nexus Suite Software does not infringe the Intellectual Property Rights of a third party; and
5.5.2. the Nexus Suite Software is original and not copied wholly or substantially from any third party works.
6. Warranties
6.1. All warranties, express or implied, and whether arising by virtue of statute or otherwise, are hereby excluded except the warranties contained in these Terms, any applicable state or federal law that cannot be excluded.
6.2. You warrant that:
6.2.1. nothing in these Terms confers on You any rights of ownership over the Nexus Suite Software or TIK Intellectual Property;
6.2.2. TIK is not responsible for the preparation or conversion of Customer Data into the form required for use with the Nexus Suite Software;
6.2.3. You are solely responsible for its use of the Nexus Suite Software and any data inputted or generated from the Nexus Suite Software including Customer Data;
6.2.4. the Nexus Suite Software cannot be entirely error or fault free and that the existence of any minor error or fault that does not materially affect the performance of the Nexus Suite Software and shall not constitute a breach of these Terms;
6.2.5. to the extent permitted by law, TIK will not be liable:
6.2.5.1. in the event that the Nexus Suite Software is unavailable to You due to downtime;
6.2.5.2. for the actions of the Licensor;
6.2.5.3. for the deletion, correction, destruction, damage, loss or failure to store any Customer Data or information that may be held and stored in the Nexus Suite Software by any means.
6.2.5.4. for any defects with the performance, stability and security of the Nexus Suite Software that result from the activities relating to the Site, the storage server, the Licensor or You; and
6.2.5.5. any Defect caused by any means other than by TIK’s error or mistake or are beyond the control of TIK.
6.3. TIK does not warrant:
6.3.1. the completeness or suitability of the Nexus Suite Software for your specific requirements;
6.3.2. that the Nexus Suite Software can be used without interruption, be available continuously or be entirely secure;
6.3.3. that the operation of the Nexus Suite Software will be error free;
6.3.4. the security measures implemented under these Terms will prevent a third party from attempting to disrupt the integrity or performance of the Nexus Suite Software or unauthorised hacking; and
6.3.5. the accuracy of the information contained within the Nexus Suite Software or that the Nexus Suite Software provides legal advice or is compliant with all relevant legislative requirements.
7. Liability and Indemnity
7.1. To the extent permitted by law, TIK will not be liable to You for losses, costs, actions, claims, demands, expenses, judgments, court orders or other liabilities arising directly out of or in connection with your use of the Nexus Suite Software or these Terms including any consequential or indirect loss or damage of any kind.
7.2. You will indemnify, hold harmless and at all times hold TIK fully and effectively indemnified against any losses, costs, actions, claims, demands, expenses, judgments, court orders or other liabilities arising directly out of or in connection with:
7.2.1. any breach by You of any of your representations, obligations, warranties or undertakings contained in these Terms;
7.2.2. an infringement of the TIK Intellectual Property including in respect of the Nexus Suite Software;
7.2.3. any failure by You to pay the fees for the Licence under the Customer Agreement; and
7.2.4. any claim that Customer Data, information or other content provided to TIK or uploaded to the Nexus Suite Software infringes the Intellectual Property rights of a third party or is against the law.
8. Termination
Where the Licence expires or otherwise terminates, the following applies:
8.1. You must immediately stop all use of the Nexus Suite Software and TIK Intellectual Property;
8.2. within 30 days of the date of termination or expiry, You must delete every copy of the Nexus Suite Software You have in your possession and control and deliver up to the Licensor or TIK all documents, materials and all copies (whatever their form) in your possession which relate to or refer to the Nexus Suite Software or TIK Intellectual Property or at the discretion of the Licensor delete or destroy the same;
8.3. You must comply with any instructions provided by the Licensor or TIK in relation to the end of the Licence;
8.4. within 30 days of the date of termination, You must provide confirmation to the Licensor or TIK that this clause 8 has been complied with;
8.5. You are immediately released from your obligations under these Terms except those obligations in clauses 5 – 7 and any other obligations that, by their nature, survive termination.
9. Definitions
The following definitions apply to this document unless the context requires otherwise:
9.1. Commencement Date means the date You are granted access to the Nexus Suite Software by the Licensor;
9.2. Customer Agreement means the written agreement You have entered into with the Licensor for the Licensor Services;
9.3. Customer Data means any information, material or data whether personal, sensitive or otherwise that is inputted or uploaded by You into the Nexus Suite Software;
9.4. Defect means an error in the coding of the Nexus Suite Software or part thereof that affects the inherent operation or functionality of the Nexus Suite Software so that the Nexus Suite Software does not comply with the Documentation;
9.5. Documentation means materials in any form or medium including users’ manuals, programming manuals, modification manuals, flow charts, drawings, data models, functional specifications, configuration guides and software listings, which are designed to assist or supplement the understanding or application of the Nexus Suite Software and is provided to You by the Licensor;
9.6. Improvements mean any development, enhancement or modification of the Nexus Suite Software and any part thereof, its design or functionality that may make the Nexus Suite Software more effective, useful or suitable or would in any other way render the Nexus Suite Software more preferable in commerce including new or customised report templates, new releases, upgrades and updates to the Nexus Suite Software;
9.7. Intellectual Property Rights means all rights resulting from intellectual activity whether capable of protection by statute, common law or in equity and including copyright, discoveries, inventions, patent rights, registered and unregistered trade marks, design rights, circuit laYouts, plant varieties and all rights and interests of a like nature including but not limited to methods and techniques, together with any documentation relating to such rights and interests;
9.8. Licence means the licence to the Nexus Suite Software in accordance with these Terms and the Customer Agreement;
9.9. Licensor means the entity that has licensed the Nexus Suite Software to You and with whom You have entered into a Customer Agreement for the provision of external payroll and human resources support services including technical support and training;
9.10. Nexus Suite Software means the applications and modules of TIK Software licensed to Launch! and sub-licenced to You, all Intellectual Property Rights subsisting in the Nexus Suite Software and Documentation, any Improvements to the Nexus Suite Software and the Documentation;
9.11. Notifiable Data Breach means a data breach that is likely to result in serious harm to any of the individuals to whom the information relates;
9.12. TIK means TIK Consulting Pty Ltd of ACN 114 464 274 of Suite 8, 799 Springvale Road Mulgrave, Victoria, Australia 3170;
9.13. TIK Intellectual Property means Intellectual Property Rights owned by or licensed to TIK including the Nexus Suite Software;
9.14. You means the sub-licensee of the Nexus Suite Software and all its employees and authorised personnel.
10. Interpretation
In these Terms except to the extent that the context otherwise requires:
10.1. words denoting the singular include the plural and vice versa;
10.2. words denoting individuals or persons include bodies corporate and trusts and vice versa;
10.3. reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of these Terms;
10.4. reference to a document or agreement includes reference to that document or agreement as changed, novated or replaced from time to time;
10.5. headings are included for convenience only and will not affect the interpretation of these Terms or any schedule;
10.6. words denoting any gender includes all genders; and
10.7. where a word or phrase is given a definite meaning in these Terms a part of speech or other grammatical form for that word or phrase has a corresponding meaning.
11. Miscellaneous
11.1. Commencement
This document commences on the Commencement Date.
11.2. Force Majeure
Failure or delay in the performance of any obligation hereunder by either Party shall be deemed not to be a breach of these Terms if that failure or delay is due to any cause beyond the reasonable control and without the fault or negligence of that Party provided that in order to exercise its default hereunder, a Party shall notify the other of the occurrence or the cause specifying the nature and particulars thereof and the expected duration thereof.
11.3. Waiver
No waiver by any Party of any default in the strict and literal performance of or compliance with any provision condition or requirement in these Terms will be deemed to be a waiver of strict and literal performance of and compliance with any other provision, condition or requirement of these Terms nor to be a waiver of or in any way release any Party from compliance with any provision condition or requirement in the future nor will any delay or omission of any Party to exercise any right under these Terms in any manner impair the exercise of such right accruing to it thereafter.
11.4. Jurisdiction
These Terms will be governed by and construed in accordance with the law of the State of Victoria, Australia and each of the Parties hereby submits to the jurisdiction of the Courts of the State of Victoria, Australia.
11.5. Entire Agreement
These Terms constitutes the sole and entire agreement between the Parties and no warranties, representations, guarantees or other terms or conditions of any nature not contained and recorded therein will be of any force or effect.
11.6. Severance
Part or all of any clause of these Terms that is unenforceable or illegal will be severed from these Terms and will not affect the enforceability of the remaining provisions of these Terms.
11.7. Assignment
TIK may assign or permit a third party to obtain the benefit of its rights and interest under these Terms without the prior written consent of You. You must not assign or permit a third party to obtain the benefit of its rights and interest under these Terms except with the prior written consent of TIK.
11.8. Agreement Binding on Successors
These Terms will extend to bind the Parties and their respective heirs, executors, successors, assigns, administrators and legal personal representatives and any reference to any Party will where the context so admit include their respective heirs, executors, successors, assigns, administrators and legal personal representatives.
11.9. Execution of Further Documents
Each party to these Terms agrees to at any time execute all documents and do all things that are reasonably necessary to carry out and give effect to the terms and conditions of these Terms.