DOSSIERE TERMS OF USE
Version 5.2, Last updated 12 May 2023
Between
Dossiere Pty Ltd ACN 155 914 766 of Level 4, 260 Queen Street Brisbane QLD 4000 (Dossiere)
and
The party whose details are specified in the Company Name field during the registration process for the Application or which appear on the Dashboard page of the Subscription Management Portal (the Customer).
BACKGROUND
(a) Dossiere is the developer and owner of the Intellectual Property Rights subsisting in a secure document mobility software application known as Dossiere (the Application).
(b) The Application includes the following components, which connect to cloud-based Dossiere software:.
- the downloadable Dossiere app, which runs on mobile devices; and
- the website known as “Concierge for Dossiere” (Concierge), which provides browser-based functionality and integration with the Dossiere product; and
- the publicly available marketing website hosted at http://dossiere.com (Dossiere Website); and
- the Subscription Management Portal which is accessed through the Dossiere Website which allows the Customer to manage their subscription, billing methods and usage information
(c) Dossiere has established a software cloud service (the Service) which enables clients of Dossiere to use the Application for their respective business operations. The Service is accessible by the Customer following registration at https://dossiere.com/registration.
(d) Dossiere has the authority to enter into this Agreement and has the right to fulfil the obligations under this Agreement in relation to the Application and the Service.
(e) The Customer desires to use the Service, and Dossiere agrees to provide the Service to the Customer on the terms and conditions detailed in this Agreement.
OPERATIVE PARTS
In consideration of the mutual promise given and taken by each party, the parties agree as follows:
1 General Terms
1.1 The Customer’s use of the Service is subject to the conditions, detailed in this Agreement. The Customer acknowledges that by using the Services they have read, understood, and agree to be bound by this Agreement.
1.2 The Customer acknowledges that it understands and agrees that:
(a) the Service may include communications such as service announcements and administrative messages from Dossiere, which will form part of this Agreement as and when they become effective; and
(b) The Customer will not be able to opt out of receiving these service announcements and administrative messages while using the Service until the Customer sends to Dossiere a specific written notice pursuant to Clause 8.1 requesting the termination of the subscription to the Service.
1.3 Supplemental and/or revised terms and conditions may be posted on the Terms of Use page from time to time and are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use at any time and for any reason. We will alert you about any changes by updating the “Last updated” date at the top of this Agreement, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms of Use to stay informed of updates. You will be subject to and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Services on or after the date such revised Terms of Use are posted.
2 Licence Grant
2.1 Dossiere hereby grants the Customer a non-exclusive, non-transferable right to use the Service solely for the Customer’s own internal business purposes.
2.2 The initial term of this agreement is 45 days (Initial Term).
2.3 The Customer may at its discretion extend this agreement on the same terms and conditions as set out in this agreement except for clause 2.2 (License Term). Any extension will be on a month-to-month basis, and the Customer may terminate this agreement upon giving to Dossiere written notice pursuant to Clause 8.1, in which case this agreement will automatically terminate on the next due date for payment.
2.4 The Customer acknowledges that:
(a) the Service is licensed on a "named user" (User) basis only and cannot be shared or used by any third party;
(b) the Service is charged based on the recorded number of users who accessed the Service during each monthly billing period (Active Users);
(c) the Customer may not transfer the right to use the Service to any third party or permit any third party to have access to the Service;
(d) each Active User is entitled to use the Application on up to three devices (for example one computer, one phone and one tablet OR two computers and one phone).
2.5 The Customer may nominate one or more Users to be client administrators or library administrators (Concierge Administrators) within the system. Concierge Administrators have the ability to add, enable and disable users. While the adding of Users does not incur direct cost, once these Users access the Service, they are considered Active Users under clause 2.4(b).
3 Customer Content
3.1 As part of the Service, the Customer is permitted to upload to the Application:
(a) information concerning the Customer’s Users (typically employees and authorised contractors) into the Customer SQL Database (Users); and
(b) any legitimate business content (Customer Content) that the Service handles and may include textual content as well as various document upload formats as may be notified to the Customer by Dossiere from time to time.
3.2 The Customer may use the content within the Application only for its internal business purposes in connection with the Services.
3.3 The Customer will be solely responsible for all Customer Content, whether publicly posted or privately transmitted, that the Customer or any of its employees or contractors uploads, downloads, posts, emails, transmits or otherwise makes available through the Service.
3.4 The Customer has the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Customer Content.
3.5 The Customer Content whilst being held by Dossiere will be protected by Dossiere with at least the same protective precautions that Dossiere takes to protect its similar proprietary information from unauthorized disclosure to any persons whom the Customer has granted authority to access.
3.6 Dossiere will use all reasonable efforts to ensure that the Customer’s Content will not be disclosed to any unauthorised third parties without the Customer’s prior written consent, except to those bona fide individuals whose access is necessary to enable Dossiere to perform its obligations under this Agreement.
3.7 The Customer warrants that the Customer owns or has sufficient legal rights to the Intellectual Property Rights in the Customer Content and that the Customer Content, including any use of such content by Dossiere in providing the Service, does not violate any applicable law or the rights vested in any third party.
3.8 The Customer hereby grants Dossiere a worldwide, limited, irrevocable, royalty-free, nonexclusive, licensable right during the License Term to reproduce, distribute, publish, publicly perform, publicly display, and transmit by a diffusion service the Customer Content and subsequent versions of the Customer Content for the purposes of:
(a) displaying the Customer Content on the Application for the Customer’s Active Users,
(b) processing the Customer Content in connection with providing the Service,
(c) distributing the Customer Content, either electronically or via other media, to the Customer’s Active Users seeking to download or otherwise acquire the Customer Content; and/or
(d) storing or hosting the Customer Content in a remote database or on the Content Server for access by the Customer’s users.
3.9 The license referred to in Clause 3.8 will apply to the distribution and the storage of the Customer Content in any form, medium, or technology now known or later developed.
3.10 The Customer acknowledges that:
(a) Dossiere is not a publisher and does not hold itself out as a publisher of the Customer Content; and
(b) Dossiere will not vet or review any of the Customer Content prior to it being uploaded onto the Content Server; and
(c) Dossiere will not act as a moderator of any emails, messages or communication that the Customer or any of its employees or contractors may be exposed to in using the Service; where that content may be offensive, indecent, or objectionable or that is inaccurate;
(d) Dossiere will not act as a moderator of any information uploaded onto the Customer’s mobile devices, computers or other storage facility that form part of the Service; and
(e) the Customer will bear all risks associated with using and publishing the Customer Content.
3.11 Dossiere has the right, but not the obligation, to remove any content or information that comes to its attention and which may, in Dossiere' sole discretion, violate this Agreement or is objectionable.
3.12 The Customer acknowledges that since the Service is provided via an internet connection, the format and size of the Customer Content may adversely impact upon the performance of the Service from an end users perspective and that Dossiere will not be held liable for poor performance if due to the Customer Content.
4 Provision of the Services
4.1 Dossiere agrees that it will use its best endeavours to ensure that apart from scheduled downtime for maintenance purposes, the Service will be available for 99.9% of the time.
4.2 Despite Clause 4.1, Dossiere is not responsible if the Service is not available for the uptime specified in Clause 4.1 if the failure is due any failure:
(a) of any equipment or device that is within the power, possession or control of the Customer; or
(b) in any telecommunications facility used by the Customer or any person authorised by the Customer to gain access to the Service.
4.3 Dossiere will be entitled to adjust the scope of the Service and the underlying technical infrastructure to reflect the continuing development of the Service and technical advances.
4.4 Dossiere will provide the Customer with technical support for the Service in pursuant to the Service Level Agreement set out in the Schedule to this Agreement below.
5 Intellectual Property Rights
5.1 Dossiere owns all rights, title and interests, including all Intellectual Property Rights, in and to the Application and the Service, the software, materials and other related content and any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Customer or any other party relating to the Service but excluding the Customer Content.
6 Third-Party Sites, Products, and Services
6.1 The Customer acknowledges that use of the Service may involve accessing links to other Internet sites owned by third parties. The Customer’s use of each of those other Internet sites is subject to the conditions, if any, that each of those Internet sites have posted.
6.2 Dossiere has no control over those other Internet sites and Dossiere will not be held responsible or accountable for any use of such Internet sites or content on them.
6.3 The inclusion of any third-party content or a link to a third-party Internet site is not an endorsement of that content or third-party site by Dossiere.
6.4 Some content may come from government sources which may be designated as being in the public domain or is not copyrightable.
7 Fees
7.1 Unless otherwise agreed in writing between the parties:
(a) The Licence Fee shall be calculated using current pricing as published on https://dossiere.com/pricing;
(b) Where a current written volume licencing agreement exists between the parties, those rates will be used to calculate the Licence Fee in replacement of the rates described in clause 7.1(a);
(c) the Licence Fee shall be payable monthly (Billing Period) on or about the same day of the month (e.g. 14th) that the Customer commenced the Licence Term (the Payment Day);
(d) Dossiere runs a script each Payment Day (the Script) to identify how many Active Users of the Customer have logged into the Application during the Billing Period;
(e) Upon renewal of the Licence term each month, the Customer will be charged the Fee plus any applicable sales tax, with payment being processed according to the payment method selected in the Subscription Management Portal for the Service.
(f) Dossiere will generate an invoice for the Fee available each month through the Application and send it by email to the User or Users identified in the Subscription Management Portal as the Subscription Manager(s).
(g) The Customer acknowledges that Dossiere may increase the Fee after giving the Customer 90 days’ notice in writing.
7.2 The maximum disk storage space provided to the Customer at no additional charge is 1 Gb per active user. If the amount of disk storage required exceeds this limit, the Customer will be charged Dossiere’s then-current storage fees. Dossiere will use reasonable efforts to notify the Customer when the storage for the Customer reaches approximately 90% of the maximum; however, any failure by Dossiere to so notify the Customer will not affect the Customer’s responsibility for such additional storage charges. Dossiere reserves the right to establish or modify its general practices and limits relating to storage of data and other content.
8 Term and Termination and Service Cancellation
8.1 The Service will be automatically renewed on the Payment Day each month upon payment of the Charge and upon the expiration of the then current License Term, unless the Customer has since the last Payment Day given Dossiere written notice of the Customer’s intention to terminate the Service.
8.2 Notwithstanding any other provision in this Agreement, Dossiere may immediately terminate or suspend the Customer’s use of the Services, or terminate the Customer’s account and this Agreement if the Customer or any person acting through the Customer including any employee or contractors of the Customer
(a) fails to pay the Charge by the time it is due, or
(b) breaches or otherwise fails to comply with this Agreement and fails to remedy the breach within thirty (30) days of being so notified.
8.3 Dossiere may terminate any free or complimentary account or Service at any time in its sole and absolute discretion without liability to the Customer.
8.4 The Customer will continue to be charged for the fee-based Service during any period of suspension. Termination will not relieve the Customer from the obligation to pay the Fee that remains unpaid and will not limit either party from pursuing other available remedies.
8.5 The Customer may at any time terminate all or part of the Service or reduce the number of Active Users effective only upon the expiration of the then current License Term by
(a) Limiting the number of users or service facilities through the Subscription Management Portal or the Concierge administration screens; or
(b) notifying Dossiere in accordance with this Agreement.
8.6 Upon termination by Dossiere of this Agreement or any part thereof in accordance with this Agreement as a result of the Customer’s breach, negligence or default, Dossiere will have no obligation to refund to the Customer any fees pre-paid by the Customer.
8.7 Notwithstanding Clause 8.6, if the Customer’s use of the Services is terminated, Dossiere will make available to the Customer a file of all data concerning the Customer including the Customer Content within 30 days of termination or such later period as may be requested in writing by the Customer. Dossiere will attempt to comply with such later request by the Customer for a fee of $AUD2200.
8.8 If Dossiere (or its successor in interest) permanently ceases to operate the Service, Dossiere will refund to the Customer any pre-paid amount of the Fee for which the Customer no longer has access to the Service.
9 Privacy & Security Policy
9.1 Dossiere will comply with the Information Privacy Principles or the Australian Privacy Principals (as the case may be) set out in the Privacy Act 1988 (Cth) and other provisions of that Act to the extent relevant to this Agreement. Dossiere will also comply with:
(a) such other Commonwealth, State or Territory legislation related to privacy, which is relevant to this Agreement;
(b) any directions made by a Privacy Commissioner relevant to this Agreement;
(c) any reasonable privacy procedures developed by the Customer covering its compliance with the Privacy Act 1988 (Cth); and
(d) any other reasonable direction relating to privacy which is given by the Customer.
9.2 Dossiere will maintain its systems to the level of protected classification documents as described from time to time by the Australian Cyber Security Centre (ASCS). The systems used to store client data for Australian government sites will be regularly audited by an external IRAP assessor in line with ASCS’s recommendations.
9.3 The Customer acknowledges that the Service is operated by Dossiere from an Internet site located in the region chosen by the Customer during the subscription registration process. All data collected via the Service and the Customer’s Content will be located on computer servers located in that region.
9.4 If the Customer is located in a jurisdiction other than Australia and that other jurisdiction has laws governing data collection and use that may differ from Australian law, then the Customer represents, warrants, and covenants for the benefit of Dossiere that:
(a) The Customer has the authority and right to enter into this Agreement,
(b) any consents or approvals required from any third party or governmental authority with respect to the entering into or the performance of this Agreement by such party, are in place, or will be obtained by the Customer as may be necessary for either party to perform its obligations,
(c) the Customer is authorized to distribute the Customer Content to Dossiere; and
(d) the Customer is not breaching any applicable data privacy rule or regulations, any of the Customer’s contractual obligations, or any of the Customer’s internal privacy policies.
10 Customer Conduct and other Restrictions
10.1 The Customer agrees, represents and warrants that any information provided by the Customer to Dossiere will at the time it is provided to Dossiere be true, accurate, current, and complete information.
10.2 The Customer further agrees that it will promptly update such information to keep it true, accurate, current, and complete at all times during the License Term.
10.3 If Dossiere issues to an authorised representative of the Customer a password, then the Customer warrants that that authorised representative will not reveal it to anyone else.
10.4 The Customer will ensure that it has in place appropriate security policies dealing with passwords and will use all reasonable endeavours to monitor its authorised representatives to ensure that they will not disclose the issued password to anyone else and will not use anyone else's password.
10.5 The Customer is responsible for maintaining the confidentiality of all accounts and passwords issued to the Customer.
10.6 The Customer agrees to immediately notify Dossiere of any unauthorized use of its passwords or accounts or any other breach of security.
10.7 The Customer is responsible for maintaining their own networks and gateways which are used by their end-users to access the Dossiere platform.
10.8 The Customer will train each and every one of its employees and contractors that they must promptly exit from accounts at the end of each session.
10.9 Dossiere will not be responsible for any loss or damage that may result if the Customer or any employees or contractor of the Customer fails to comply with this Clause 10.
10.10 If Dossiere provides the Customer with an administrator user ID and password for accessing the Service, the Customer will assign them to the Customer administrator.
10.11 The Customer will be responsible, through the Customer administrator, for setting and modifying the Active User profiles and preferences for the Service, authorizing and terminating individual Active User ID's and passwords and specifying the access rights of those individuals to the Services. The Customer authorises the Customer administrator to notify Dossiere if the Customer administrator needs to change the administrator's or any Active User's ID, and Dossiere may upon receipt of such request act accordingly.
10.12 The Customer will be responsible for all activity occurring under Customer’s accounts and will comply with all applicable local, state, and foreign laws, treaties and regulations in connection with the Customer’s use of the Service, including without limitation, laws and regulations governing data privacy, international communications and transmission of technical or personal data.
10.13 The technology and the Application underlying the Services are the property of Dossiere. The Customer agrees not to copy, modify, rent, lease, loan, sell, assign, distribute, reverse engineer, grant a security interest in, or otherwise transfer any right to the technology or The Application underlying the Service.
10.14 The Customer agrees not to modify the Application underlying the Service in any manner or form or to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Service.
10.15 Without limiting any other provision of this Agreement, the Customer agrees that it will not nor will it permit any employee or contractor of the Customer take any of the following actions:
(a) Defame, abuse, harass, stalk, threaten, or otherwise violate the legal right of others;
(b) Publish, post, upload, e-mail, distribute, or disseminate (collectively, "Transmit") any inappropriate, profane, defamatory, misleading, infringing, obscene, indecent, or unlawful content;
(c) Transmit files that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person's computer, Dossiere’ sites, any software or hardware, or telecommunications equipment;
(d) Advertise or offer to sell any goods or services for any commercial purpose unless the Customer has prior written consent to do so of Dossiere;
(e) Transmit contests, pyramid schemes, spam, unsolicited advertising or promotional materials, chain letters or other unsolicited messages;
(f) Download any file that you know or reasonably should know cannot be legally obtained in such manner;
(g) Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of software or other material;
(h) Restrict or inhibit any other user from using and enjoying any area within the Site;
(i) Interfere with or disrupt Dossiere’ sites, servers, or networks;
(j) Probe, scan or test the vulnerability of the Site or circumvent any security mechanism used by the Site;
(k) Impersonate any person or entity, including, but not limited to, any Dossiere representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(l) Forge headers or manipulate identifiers or other data in order to disguise the origin of any content transmitted through the Site or to manipulate your presence on the Site;
(m) Take any action that imposes an unreasonably or disproportionately large load on Dossiere' infrastructure;
(n) Engage in any illegal activities; or
(o) Collect, store or transmit without authority or outside of the confines of the law any personal information about individuals or any information that is subject to applicable privacy laws or regulations.
10.16 If the Customer chooses a username that, in the sole and absolute discretion of Dossiere, is obscene, indecent, abusive or that might otherwise subject Dossiere to public disparagement or scorn, Dossiere reserves the right, without prior notice to the Customer to automatically change the Customer’s user name, delete all posts associated to that user name, deny the Customer access to the Service, or any combination of these options.
10.17 The Customer acknowledges that any unauthorized access to the Service is a breach of this Agreement and a violation of the law. The Customer agrees not to access the Service by any means other than through the interface that is provided by Dossiere for use in accessing the Service. The Customer further agrees not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Service, except those automated means that Dossiere has approved in advance in writing.
10.18 The Customer agrees that the use of the Service is subject to existing laws and legal process. Nothing contained in this Agreement will limit Dossiere’ right to comply with governmental, court, and law-enforcement requests or requirements relating to the Customer’s use of the Service, which may include disclosing the Customer Content to the applicable authorities.
11 Indemnification
11.1 The Customer will defend Dossiere from any third party claim, and will pay all damages finally awarded against Dossiere in such claim or amounts agreed to in settlement, arising out of:
(a) The Customer’s use of the Service;
(b) Any use or alleged use of the Customer’s accounts or the Customer’s passwords by any person, whether or not authorized by the Customer;
(c) The Customer Content, the quality, or the performance of the Customer Content that the Customer submits as part of the Service; or
(d) Any violation of this Agreement by the Customer or its employees or contractors.
11.2 Dossiere will defend the Customer from any third party claim that the Customer’s use of the Application hosted by Dossiere infringes that third party’s copyright, patent or trademark, and will pay all damages finally awarded against the Customer in such claim.
11.3 If Dossiere settles the claim, Dossiere will pay all settlement amounts collected on the Customer’s behalf. In order to take advantage of the indemnity referred to in Clause 11.2, the Customer must:
(a) promptly notify Dossiere if such a claim is asserted against the Customer,
(b) permit Dossiere to solely defend the claim, and
(c) cooperate with Dossiere’ requests for reasonable assistance, at Dossiere’ expense.
11.4 Dossiere will not be obligated to indemnify the Customer if the Customer is in violation of this Agreement. If as a result of the infringement the Customer is prevented through an injunction to use the Service by a court of law, then Dossiere will either
(a) modify the Application that is used to provide the Service to make it non-infringing; or
(b) acquire a license for Customer to continue using the Service; or
(c) if neither of these options is possible, refund to the Customer the applicable subscription fees paid by Customer during the 12 month period preceding the injunction.
11.5 This is the Customer’s sole and exclusive remedy for a third party's infringement or misappropriation claim against the Customer’s use of the Service.
12 Warranty and Disclaimers
12.1 Dossiere warrants that during the License Term, the Service will conform to the documentation provided by Dossiere. In the event the Service does not conform to the documentation and if the Customer promptly notifies Dossiere, Dossiere will modify the Service and/or the documentation so that it conforms. This is the Customer’s exclusive remedy.
12.2 EXCEPT FOR THE WARRANTY PROVIDED IN CLAUSE 12.1, THE SERVICES, THE APPLICATION, ALL CONTENT AND OTHER MATERIALS (EXCEPT FOR THE CUSTOMER”S CONTENT), ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. DOSSIERE AND ITS EMPLOYEES AND DIRECTORS MAKE NO WARRANTY, REPRESENTATION, GUARANTEE OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NONINFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE.
13 Limitation of Liability
13.1 The liability of either party for breach of this Agreement or for any other common law or statutory cause of action arising out of the operation of this Agreement will be determined under the relevant law in Australia that is recognised, and would be applied, by the High Court of Australia. The Parties specifically agree that the only remedies for a breach of this Agreement will be those covered expressly by this agreement.
13.2 The liability arising under this Agreement will be limited. The limit on liability will apply for the benefit of both parties in respect of each single occurrence or a series of related occurrences arising from a single cause. The parties agree and acknowledge that any liability that one party has to the other party will be capped to the value of the Services payable for the immediate 12 month period.
13.3 The limitation referred to in Clause 13.2 does not apply to liability for:
(a) personal injury, including sickness and death; or
(b) loss of, or damage to tangible property.
13.4 The liability of a party (‘the party at fault’) for loss or damage sustained by the other party will be reduced proportionately to the extent that such loss or damage has been caused by the other party's failure to comply with its obligations and responsibilities under this Agreement and/or to the extent that the negligence of the other party has contributed to such loss or damage, regardless of whether a claim is made by the other party for breach of contract or for negligence.
13.5 Notwithstanding any provision to the contrary in the Agreement, Dossiere will not be liable to any Indirect or Consequential Loss. For the purposes of this Agreement, the term “Indirect and Consequential Loss” means any damage that is either indirect, consequential, incidental, punitive or exemplary or the value thereof howsoever arising including any loss of profit, any economic loss, any loss of data, any loss of any service being provided by or used by the Service, or any expenditure on the part of the Customer to rectify or mitigate any such loss that arises out of a breach of this Agreement.
13.6 Dossiere will not be held accountable for a failure to meet its contractual obligations to the extent that the failure is attributable to the provision by the Customer of inaccurate or incomplete information or the failure of the Customer to comply with its obligations under this Agreement, which is required by Dossiere for the purposes of this Agreement.
13.7 This Clause 14 will survive the termination or expiry of this Agreement.
14 Problem Resolution
14.1 The parties agree to use reasonable commercial efforts to resolve by negotiation any problem that arises between them under this Agreement. Neither party will resort to legal proceedings, or terminate this Agreement, until the following process has been exhausted, except if it is necessary to seek an urgent interim determination.
14.2 If a problem arises (including a breach or an alleged breach) under this Agreement which is not resolved at an operational level or which is sufficiently serious that it cannot be resolved at the operational level, a party concerned about the problem may notify the other. Management representatives of each of the parties will then endeavour in good faith to agree upon a resolution.
14.3 If the management representatives fail to reach a solution in accordance with Clause 14.2 within 5 (five) working days (or such other time frame agreed between the parties), the parties may agree to mediation. The mediator will be selected by the President for the time being of the Queensland Law Society or by his/her delegate.
14.4 If mediation pursuant to Clause 14.3 fails, or either party states it does not wish to attempt settlement through a mediator within 10 (ten) working days (or such other time frame agreed between the parties), the parties may agree to expert determination. The expert will be selected by the President for the time being of the Queensland Law Society or by his/her delegate. Where the parties agree to proceed by expert determination, the determination will be conducted pursuant to any relevant legislation
14.5 If mediation and/or expert determination fails, or if either party states that it does not wish to proceed with either mediation or expert determination, then either party may commence legal proceedings against the other.
14.6 Unless prevented by the nature of the dispute, the parties will continue to perform this Agreement while attempts are made to resolve the dispute. In circumstances where the dispute relates to payment and Dossiere is required to continue to perform its obligations under this Agreement pursuant to this clause, the Customer will continue to pay Dossiere any undisputed amounts.
15 General
15.1 Entire Agreement
This Agreement constitutes the entire agreement of the parties about its subject matter, and no written or oral agreement, arrangement or understanding made or entered into prior to the execution of this Agreement may in any way be read or incorporated into the Contract, except as expressly stated to the contrary.
15.2 No Assignment
The Customer will not assign the whole or part of this Agreement without the prior written consent of Dossiere.
15.3 Force Majeure Events
(a) A party (the ‘affected party’) is excused from performing its obligations to the extent it is prevented by circumstances beyond its reasonable control (other than lack of funds for any reason), including but not limited to acts of God, natural disasters, acts of war, riots and strikes outside that party’s organisation.
(b) If circumstances described in Clause 15.3(a) arise or are reasonably perceived by the affected party as an imminent possibility, the affected party will give notice of those circumstances to the other as soon as possible, identifying the effect they will have on its performance. An affected party must make all reasonable efforts to minimise the effects of such circumstances on the performance of this Agreement.
(c) If non-performance or diminished performance by the affected party due to the circumstances described in Clause 15.3(a) continues for a period of 30 (thirty) consecutive days, the other party may terminate the Contract. If this Agreement is terminated in these circumstances, each party will bear its own costs and neither party will incur further liability to the other. If Dossiere is the affected party, it will be entitled to payment for work performed prior to the date of intervention of the circumstances described in Clause 15.3(a).
15.4 Waiver
A waiver by a party of a breach will not be regarded as a waiver of any other breach. A failure by a party to enforce a provision will not be interpreted as a waiver (unless the waiving party confirms in writing that a waiver was intended).
15.5 Applicable Law
(a) This Agreement will be governed by, and construed in accordance with, the laws of the State of Queensland Australia.
(b) The parties also agree that any proceedings brought in relation to the Agreement or the subject matter of this Agreement will be heard by the courts located in Queensland and all courts of appeal therefrom.
15.6 Variation
The parties agree that this Agreement may only be varied in writing and with the agreement of both parties.
15.7 Parties' Responsibilities
Neither party will be liable to the other for failing to comply with any obligations under this Agreement to the extent that such failure results from the other party not performing its obligations as stated in the Contract.
15.8 Severability
Each provision of this Agreement shall be read as separate and severable so that if any provision is void or unenforceable for any reason, that provision will be severed and the remainder will be construed as if the severed provision had never existed.
15.9 Agreement to terms
These Terms of Use constitute a legally binding agreement made between the Customer and Dossiere concerning your access to and use of the Services and Application.
(a) The Customer agrees that by using the Services and Application, they have read, understood, and agree to be bound by all of these Terms of Use.
(b) If the Customer does not agree with all of these terms of use, they are expressly prohibited from using the Service and must discontinue use immediately.
15.10 Supplemental terms
We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms of Use to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Site after the date such revised Terms of Use are posted.
15.11 Communications
Dossiere may be required by state or federal law to notify the Customer of certain events. Both parties hereby acknowledge and consent that all notices including those required by any State or Federal law can be respectively sent by them posting them via the Service or delivered them to the other party via e-mail. If the Customer changes its email address from that which it has previously notified Dossiere then the Customer must promptly update the relevant e-mail address via the Service. Any notification sent through the last registered email address will be deemed by the parties to be valid notification for purposes of this Agreement.
15.12 Dispute between Clients using the Service
If the Customer has a dispute with one or more users of the Service, the Customer releases Dossiere (and any officers, directors, agents, affiliates and employees of Dossiere) from any and all claims, demands, and damages (direct and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
16 Interpretations
16.1 In this Agreement, unless the contrary intention appears:
(a) references to ‘person’ include individuals, firms, bodies corporate, associations, governments and governmental, semi-governmental and local authorities and agencies;
(b) headings are for ease of reference only and do not affect the meaning of this agreement;
(c) the singular includes the plural and vice versa and words importing a gender includes other genders;
(d) other grammatical forms of defined words or expressions have corresponding meanings;
(e) a reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of or schedule or annexure to this agreement as amended from time to time and a reference to this agreement includes any schedules and attachments as so amended;
(f) a reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
(g) a reference to a party includes its executors, administrators, successors and permitted assigns;
(h) a reference to a Statute, ordinance or by-law includes regulations and other instructions under it and consolidations, amendments, re-enactments or replacements of any of them; and
(i) monetary references are references to Australian currency.
SCHEDULE: SERVICE LEVEL AGREEMENT
Dossiere will provide the Customer with technical support for the Service in accordance with the following terms.
1 System Availability
1.1 The Concierge system targets up-time availability of 99.9%. During any outage periods, users will still be able to use the Dossiere app with only limited degradation (unable to download new documents from the server, and unable to message other users).
1.2 Planned outage periods for maintenance and upgrades are performed, where-ever possible outside the working hours of 8.00am to 5.00pm Australian Eastern Standard Times.
2 Access to Support
2.1 A web based log system allows support calls to be logged via the web. Normal business operation for Dossiere telephone support personnel in Brisbane are 8.00am to 5.00pm, Queensland time, Monday to Friday, excluding Queensland public holidays (Standard Hours).
2.2 Dossiere will use its best endeavours to respond to end user service requests and ensure they are handled as quickly as practicable. All clients deal directly with Dossiere’s help desk and development staff or their appointed representative.
3 Support Provided
3.1 The Customer will comply with the following internal support services before it will contact Dossiere for the Support Services detailed in this SLA:
(a) The end user must first try to use any available online Help facility to better understand the function that the end user is trying to use;
(b) If the end user is unable to understand the material in the help facility or the solution is not in the help facility then the end user will contact the end user’s supervisor who will also try to locate the solution in the help facility;
(c) If the supervisor is also unable to identify the solution in the Help facility, the Customer’s technical administrator will log the issue with the support services facility as provided under this SLA.
3.2 Dossiere Support Service will include:
(a) Using reasonable efforts to explain functions and features of the Service;
(b) Clarifying any documentation relating to the Application;
(c) Guiding the customer in the operation of the Application.
3.3 Dossiere Support Services for the term of this Agreement and any extension that may be negotiated between the Customer and Dossiere will include:
(a) Resolving problems with the Application experienced by the end user; and
(b) Implementation and installation assistance.
3.4 Dossiere Support Services do not include any of the following, which may be charged for at the then consultancy rates that Dossiere charges other customers of the Application:
(a) Modifications or enhancements to the Service other than those created by Dossiere;
(b) End user education and training relating to the Service;
(c) Correction of problems, and assistance regarding problems caused by end user error (such as entering of incorrect data, not following recommended procedures and keeping inadequate backup copies);
(d) Resolution of hardware, operating systems, database or network problems;
(e) Correction of errors attributable to Service other than the Application;
(f) Resolution of any telecommunications or Customer network issues;
(g) Management, administration, operation or configuration of any Customer hardware or database servers.
3.5 Dossiere Support Services offer the following service level targets during Standard Hours:
(a) Acknowledge and log calls within 10 minutes;
(b) Respond to all calls within 20 minutes;
(c) Respond to all voice mail messages to the Support line within 20 minutes;
(d) Respond to e-mail support requests within 20 minutes.
4 Priority Scale
(a) Resolution action steps will be initiated by Dossiere as follows after Dossiere is aware of the failure or issue concerning the Service.
| Severity and target response time | Definition |
|---|---|
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SEVERITY 1: CRITICAL
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A CRITICAL ISSUE IS DEFINED AS HAVING THE FOLLOWING CHARACTERISTICS:
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SEVERITY 2: URGENT
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AN URGENT PRIORITY ISSUE IS DEFINED AS HAVING THE FOLLOWING CHARACTERISTICS:
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SEVERITY 3: HIGH
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A HIGH PRIORITY ISSUE IS DEFINED AS HAVING THE FOLLOWING CHARACTERISTICS:
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SEVERITY 4: MEDIUM
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A MEDIUM PRIORITY ISSUE IS DEFINED AS HAVING THE FOLLOWING CHARACTERISTICS:
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SEVERITY 5: LOW
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A LOW PRIORITY ISSUE IS DEFINED AS HAVING THE FOLLOWING CHARACTERISTICS
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(b) The events that cause the above issues must relate to the Application and not to any telecommunications, hardware, operating system, or customer equipment (including mobile device and related accounts).
(c) All of the above resolution periods are dependent upon Dossiere being sufficient information about problem and access to relevant equipment on which the Application operates, if applicable. If there is any delay on the part of the Customer in providing information or granting access, then the time for resolution will commence when such access is available to Dossiere.
(d) Responsibilities of the Customer are as follows:
(i) Designate resources, either internally or externally who will provide support on the Dossiere product to the end users.
(ii) If requested by Dossiere, provide Dossiere with a list of named contacts from the Customer who will receive support from Dossiere Support Services.
(iii) Ensure that all their support staff – internal or external are trained to support the Dossiere product.
(iv) Allow Dossiere access to all information reasonably required to resolve the problem.
(v) Provide a designation as to the severity level of the issue at time of the report. If this severity changes, this will be communicated immediately to Dossiere in writing.
(vi) Be up to date in payment of Licence Fees for the use of the Dossiere product.
(vii) Respond to any request for information (details) concerning any issue regarding the Service in a timely manner.
(viii) Promptly advise Dossiere in a timely manner when an issue occurs with the Service.
(e) Responsibilities of Dossiere Support Services are to undertake the following promptly after Dossiere is aware of the issue:
(i) Obtain all information relevant to the issue and its solution from the end user.
(ii) Keep the end user informed as to progress in the resolution of the issue.
(iii) Keep the support management and account management informed.
(iv) Document the service request properly and in full.
(v) Determine the proper priority for the service request, set according to the Priority Scale.
(vi) Meet time limits as set in the Priority Scale for responding to service requests.
(vii) User best efforts to meet time limits for resolving service requests as set in the Priority Scale.
(viii) Be proactive in monitoring assigned service requests.
(ix) Ensure the problem and its resolution are logged.