Chii Systems Pty Limited ABN 46 156 194 777
BEFORE CLICKING ON THE “ACCEPT” BUTTON, PLEASE CAREFULLY READ ALL OF THESE TERMS AND CONDITIONS. THIS IS THE BASIS UPON WHICH CHII SYSTEMS AGREES TO PROVIDE THE QUEZONE SERVICE AND PERMITS THE QUEZONE SERVICE TO BE USED BY YOU AND IT INCLUDES RESTRICTIONS ON CHII SYSTEMS’ LIABILITY.
PLEASE NOTE: THIS AGREEMENT CREATES A RELATIONSHIP OF INDEPENDENT PARTIES. NEITHER OF US MAY MAKE ANY COMMITMENT ON BEHALF OF THE OTHER NOR MAKE ANY REPRESENTATION REGARDING THE BUSINESS, PRODUCTS OR SERVICES OF THE OTHER. CHII SYSTEMS IS ALSO NOT RESPONSIBLE FOR THE WORKING OR FAILURE OF EQUIPMENT AND COMMUNICATIONS NETWORKS THAT YOU OR YOUR CUSTOMERS MAY USE IN CONJUNCTION WITH THE QUEZONE SERVICE. ALSO, THE EFFECTIVENESS OF THE QUEZONE SERVICE AS IT IS USED BY YOU DEPENDS UPON ITS CORRECT USE AND THE CORRECT ENTRY AND UPDATING OF INFORMATION. AS A RESULT, CHII SYSTEMS DOES NOT HAVE ANY RESPONSIBILITY OR LIABILITY TO YOU IF QUEZONE MESSAGES FAIL TO REACH YOUR CUSTOMERS CORRECTLY, ON TIME OR AT ALL.
1. Definitions and interpretation
“Applicable Functionality” means the application functionality to which you have subscribed under this Agreement from time to time as it is generally available and provided by Chii Systems as part of the Quezone System and as described in the applicable User Guide.
“Confidential Information” of a party means any information, maintained in confidence by such party and communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and any information that by its form, nature, content or mode of transmission would to a reasonable recipient would understand to be confidential or proprietary and, in your case, includes your Data and, in the case of Chii Systems, includes the Applicable Functionality, the User Guide and the Quezone System.
â€œCustomer Accountâ€ means your Account information entered into the Quezone System by you, including the Quezone Service subscribed to and the Fees applicable to such subscription from time to time under this Agreement.
â€œDataâ€ means all electronic data or information provided by you to the Quezone System or subsequently retrieved by you from the Quezone System.
â€œFeesâ€ means the fees payable by you to use the Quezone Service as specified in your Account from time to time.
â€œPrivacy Lawsâ€ means the Privacy Act 1988 (Cth) and all rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued thereunder, and â€œPersonal Informationâ€ has the same meaning as defined therein.
â€œQuezone Serviceâ€ means the provision by Chii Systems of an online, web-based version of the Quezone System with the Applicable Functionality, as well as any utility or other files offered by Quezone for download and installation by you for the purpose of providing you with enhanced or additional features or functionality in the use of the Quezone Service, for access to and use by you as described in the User Guide.
â€œQuezone Systemâ€ means Chii Systems’ web-based queue management application known as Quezone described in the User Guide and any utility or other files offered by Quezone for download and installation by you, as made available by Chii Systems from time to time for access remotely by you.
â€œSupportâ€ means the online information accessible via the Chii Systems Support website and help-desk assistance provided as part of the Quezone Service.
â€œTechnical Contactâ€ means a single person designated by you for the purpose of making technical information or support requests to Chii Systems who will be a person familiar with the requirements for use of the Quezone System. â€œUserâ€ means an individual who is authorized by you to access and use the Quezone Service. Users may be your employees, your third party consultants, contractors or agents, which third parties may access and use the System solely for the benefit of your internal business purposes in accordance with the provisions of this Agreement.
â€œUser Guideâ€ means the online user manuals for the Quezone System and the Applicable Functionality accessible via the Support website.
2. Provision of Quezone Service, additional Users and different levels of subscription
2.1 In consideration of the timely payment of the Fees by you, Chii Systems will make the Quezone System available for access and use by you and provide the Quezone Service in accordance with the terms herein. You acknowledge and agree that your subscription to the Quezone Service is not conditional upon the delivery of any future functionality or features.
2.2 Chii Systems hereby provides you a non-transferable, nonexclusive right to access and use the Quezone System for the sole purpose of supporting the internal operations of your business and to process your own data. The Quezone System may be accessed and used solely by a User whose identification and password may not be shared, accessed or used by any other person, company or entity. A new User may replace a former User who no longer requires access to or use of the Quezone System. The number of Users of the Quezone Service and Fees due are specified in your Account. Any addition to the number of permitted Users, or an upgraded subscription to the Quezone Service, requires a change to your Account by you together with payment of the applicable additional Fees.
2.3 Chii Systems may offer from time to time utility or other files for download and installation by you for the purpose of providing you with enhanced or additional features or functionality in the use of the Quezone Service. In order to use such files, it will be your responsibility to install them properly in accordance with any installation information provided for such purpose by Chii Systems and use them in accordance with the User Guide.
2.4 Any failure of the Quezone Service to operate in accordance the User Guide or with any information provided on the Support website shall be excused if it occurs as a result of your (i) failure to comply with any of its obligations under this Agreement; (ii) failure to provide Chii Systems with information reasonably deemed by Chii Systems to be necessary to assist Chii Systems in its performance under this Agreement; or (iii) any external delay, prevention or interference with Chii Systemsâ€™ performance under this Agreement.
3. Fees and Payment
3.1 The Fees will be invoiced in accordance with the level of the Quezone Service to which you are currently subscribed under your Account from time to time and not actual usage. However, at any time you may suspend your usage of the Quezone Service through the Customer Account and re-activate your subscription also. During any period of suspension you will not be obliged to pay any Fees but you will not be entitled to any refund of Fees already paid. Payment obligations are non-cancellable, fees paid are non-refundable.
3.2 The Fees are payable monthly in advance. You will pay GST in addition to the fees as shown on Chii Systemsâ€™ tax invoice. You acknowledge and agree that the Quezone Service may be suspended or terminated at Chii Systemsâ€™ sole option and discretion if the Fees are not paid on time and, in addition, Chii Systems may charge interest of one per cent (1%) per month compounded for the entire overdue period or the maximum amount allowed by law if undisputed fees are not paid by the due date.
4. Conditions and limitations on the use of the Quezone Service
The Quezone Service may only be used upon the terms set out in this Agreement. Use of the Quezone Service is subject to the following conditions:
(a) Chii Systemsâ€™ grant to you of the right to use the Quezone Service is personal. You may not give access to the Quezone System or transfer any rights under this Agreement to any other person, other than a User as permitted under this Agreement.
(b) YOU MAY NOT MAKE ANY COMMERCIAL USE OF THE QUEZONE SERVICE OTHER THAN USE OF THE QUEZONE SERVICE TO MANAGE YOUR OWN CUSTOMER QUEUES â€“ THAT IS, YOU MAY NOT OFFER ACCESS TO THE QUEZONE SYSTEM TO ANY OTHER PERSONâ€™S CUSTOMERS FOR THE PURPOSE OF PROVIDING A SERVICE TO THAT PERSON.
(c) You must provide all equipment, software communications necessary to use the Quezone Service, as specified by Chii Systems from time to time at https://www.info.quezone.com.au and suitable internet and/or messaging services with a telecommunications provider. You will comply with any technical guidelines given by Chii Systems in this regard to enable the proper operation and use of the Quezone Service and will promptly implement any updates provided by Quezone at no charge for this purpose.
(d) You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Quezone Service.
(f) During the set up and use of the Quezone Service for your use, you may be required to select one or more usernames and passwords (“Login Information”). The following rules govern the security of your Login Information:
(i) You must not share your Login Information, let anyone else access your account, or do anything else that might jeopardize the security of your use of the Quezone Service;
(ii) If you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify Chii Systems and modify your Login Information;
(iii) You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, whether or not authorized by you; and
(iv) You are responsible for anything that happens through your account with the Quezone Service.
(g) Chii Systems reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third partyâ€™s rights.
(h) You will not:
(i) Interfere or attempt to interfere with the proper functioning of the Quezone Service or connect to or use the Quezone System in any way not expressly permitted by these terms;
(ii) Use any unauthorized third party software that accesses, intercepts, “mines”, or otherwise collects information from or through the Quezone System or that is in transit from or to the Quezone System, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Quezone System to store information about Chii Systems or its licensees;
(iii) Intercept, examine or otherwise observe any proprietary communications protocol used by the Quezone System, whether through the use of a network analyzer, packet sniffer or other device;
(iv) Use, facilitate, create, or maintain any unauthorized connection to the Quezone System, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Quezone System; or (2) any connection using programs, tools, or software not expressly approved by Chii Systems;
(v) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for the app or any software underlying the Quezone System or website or other intellectual property used to provide the Quezone Service, or to obtain any information from the Quezone Service using any method not expressly permitted by Chii Systems; or
(vi) upload or transmit or attempt to upload or transmit, without Chii Systemsâ€™ express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
(i) The Quezone System includes information confidential to Chii Systems. You may not modify, alter, translate, dump, decompile, extract from, reverse engineer, disassemble, or otherwise reduce the Quezone System to a human perceivable form. This restriction is to protect that confidential information.
(j) All rights in the copyright in the Quezone System any trade marks used in association with the Quezone Service are retained by Chii Systems or its licensors (as appropriate). You may not reproduce any part of the Quezone System or website and will not use any trade marks or service marks of Chii Systems or any of its licensors without the express permission of such trade mark or service mark owner.
(k) You must:
(i) comply with any requests for information, recommendations and guidelines with respect to access to and use of the Quezone Service, including any adjustments or replacements required in respect of its equipment and software used by you from time to time;
(ii) ensure that its operators are adequately trained and informed so as to use the Quezone Service effectively and in accordance with guidelines and user procedures supplied by Chi Systems;
(iii) promptly report errors in the operation of any aspect of the Quezone Service, in accordance with Chi Systemsâ€™ fault reporting procedures from time to time;
(iv) utilize the Chii Systems Support website, or other site or notification mechanism as Chii Systems may designate from time to time, to notify Chii Systems of Service availability issues, request other in-scope technical support assistance, or for your designated Technical Contact to provide approvals or other responses.
(l) You will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all your Data and accept sole responsibility for errors in the operation of the Quezone Service arising from failure to maintain the accuracy of your Data; (ii) prevent unauthorized access to, or use of, the Quezone Service, and shall notify Chii Systems promptly of any unauthorized access or use; and (iii) comply with all applicable local, state, federal and territorial laws in accessing and using the Quezone Service.
5. Technical Support
5.1 Technical support consists of operational assistance and support as described in Chii Systems Support website at https://www.info.quezone.com.au. Chii Systems provides technical support as long as you are current in payment of applicable Fees under your Account from time to time and are otherwise materially compliant with the terms and conditions of this Agreement.
5.2 You may be required to upgrade to third-party-supported applications, and operating systems as specified by Chii Systems from time to time in order to continue receiving technical support services from Chii Systems.
5.3 In order to receive technical support, your technical support requests must be made by your Technical Contact and contain all available information including, but not limited to, your Technical Contact details or site identification, problem severity, service/software name, operating system/release, platform, area of the Quezone Service at issue and problem description.
5.4 Your Technical Contact provided from time to time shall be available to provide Chii Systems with relevant and requested information, data gathering and testing necessary to assist with the resolution of any issue. You shall use your best efforts to execute diagnostic routines, if provided by Chii Systems, and to inform Chii Systems promptly of the results. You shall use all reasonable efforts to communicate with Chii Systems to verify the existence of the problem and to provide information about the conditions under which the problem could be duplicated.
6. Out of Scope
Professional services are out of scope, including the following, which are available at Chii Systemsâ€™ then current rates at the time the services are requested, pursuant to a separate services agreement: recovery or restoration of data deleted by you; assistance with configuration or other implementation of the Applicable Functionality; Applicable Functionality instruction or other education or training; termination and migration assistance.
7. Chii Systems warranties and exclusions
7.1 Chii Systems represents and warrants that (a) it owns or otherwise has sufficient rights in the Quezone System to grant to you the rights to access it and use the Quezone Service as provided herein; (b) it will provide the Quezone Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (c) the Quezone System shall perform materially in accordance with the User Guide.
7.2 The Service Levels to be provided by Chii Systems as described on the Quezone Support website from time to time shall be your sole and exclusive remedy for any failure or lack of performance of the Quezone Service, including damages for breach of contract.
7.3 CHII SYSTEMS DOES NOT REPRESENT OR WARRANT THAT THAT THE QUEZONE SYSTEM WILL RUN ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. EXCEPT AS EXPRESSLY SET OUT ABOVE AND ON THE QUEZONE SUPPORT WEBSITE, TO THE EXTENT PERMITTED BY LAW, NO OTHER WARRANTIES OR GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION MERCHANTABILITY, SUITABILITY OR ACCEPTABLE QUALITY, OR AS TO FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY CHII SYSTEMS AND CHII SYSTEMS MAKES NO WARRANTIES HEREUNDER WITH RESPECT TO ANY HARDWARE EQUIPMENT OR THIRD PARTY SOFTWARE WHICH CHII SYSTEMS MAY USE TO PROVIDE THE SERVICE.
7.4 Important note: In the event that performance by either party of any obligation under this Agreement constitutes a supply of goods or services to a consumer as defined in the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended) or relevant State or Territory legislation (â€œthe Actsâ€) nothing contained in this Agreement excludes restricts or modifies any condition, warranty or other obligation in relation to this Agreement and any goods and services to be supplied hereunder which pursuant to the Acts or any of them is applicable or is conferred on you where to do so is unlawful, in which event Chii Systemsâ€™ sole liability for breach of any such condition, warranty or other obligation shall be limited (except to the extent specifically set forth herein) to:
(i) in relation to goods: (A) the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or (B) the repair of the goods or payment of the cost of having the goods repaired;
(ii) in relation to services: (A) the supplying of the services again; or (B) the payment of the cost of having the services supplied again
as in each case Chii Systems may select.
Mandatory statement under Regulation 90 of the Competition and Consumer Regulations: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. These rights may be lawfully limited in respect of goods or services not ordinarily acquired for personal, domestic or household use or consumption. To request a replacement or a refund, please send your written request to Chii Systems by letter or email to [Chii Systems to insert support email].
8. Limitation of Liability
8.1 Other than in respect of personal injury or damage to tangible property, Chii Systems’ liability to you for direct damages, loss or liability for any cause whatsoever, and regardless of the form of action, will be limited to the total amount of Fees paid by you over a period of 12 months prior to the date that the damage, loss or liability occurred for the Quezone Service that caused the damage or gave rise to the cause of action.
8.2 THE REMEDIES PROVIDED IN THIS AGREEMENT ARE THE EXCLUSIVE REMEDIES OF THE PARTIES. IN NO EVENT SHALL CHII SYSTEMS BE LIABLE TO YOU, TO ANY USER OR TO ANYONE ELSE, WHETHER IN CONTRACT OR TORT, OR OTHERWISE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR UNFORESEEABLE LOSS, DAMAGE OR EXPENSE, INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY,OR ANY OTHER FORM OF EXPECTED BENEFIT, OR FOR LOSS OR CORRUPTION OF DATA, HOWEVER ARISING, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED. You acknowledge that you must maintain backups of all data entered into or generated by the Quezone Service that it may require to restore for its business.
9. Customer Data
9.1 You represent and warrant that you and those providing data and information to you have the right to transmit to Chii Systems, and receive from Chii Systems, any data, material or records that are required to enable Chii Systems to perform the Quezone Service and any other of Chii Systemsâ€™ obligations under this Agreement.
9.2 Your Data is deemed your Confidential Information under this Agreement. Chii Systems shall not access your User accounts, or your Data, except (i) in the course of data center business operations, (ii) response to service or technical issues; or (iii) at your request. Recovery of any of your Data deleted by you shall be your responsibility and not the responsibility of Chii Systems. Your Service, including your Data, shall be segregated from other services which Chii Systems may provide to other Chii Systems customers.
9.3 Subject to Chii Systemsâ€™ responsibilities as set forth in clause 11 hereof, entitled â€œConfidentialityâ€, Chii Systems will not be responsible for any unauthorized access to or alteration, theft or destruction of your Data through accident, fraudulent means or devices, or any other method, unless such access, alteration, theft or destruction is caused as a direct result of Chii Systemsâ€™ gross negligence or intentional misconduct, in which case Chii Systemsâ€™ commercially reasonable efforts to restore or recover your Data shall be limited to the most recent back-up of your Data.
9.4 Chii Systems will undertake prudent measures to duplicate and back up your Data. Chii Systems is not responsible for loss of your Data arising from: (i) a transmission from you not in accordance with the User Guide; or, (ii) your failure to act on any Chii Systems provided communication. In such cases, Chii Systems will use commercially reasonable efforts to recreate such your Data at Chii Systemsâ€™ then current rates.
10. Third Party Software, Hardware, Interfaces
Links to any third party provided software, hardware or other services which are associated with, or otherwise available through the Quezone Service shall be accessed and used by you and Users in their sole discretion. Chii Systems shall have no responsibility or liability with respect to your or Users’ access to or use of such items or any such services or for any act or omission of any such third party provider.
11.1 For purposes of this Agreement, the â€œDisclosing Partyâ€ means the party that transmits or otherwise communicates Confidential Information to the other party (the â€œReceiving Partyâ€).
11.2 The following is not considered to be Confidential Information: (i) information which the Receiving Party has been authorized in writing by the Disclosing Party to use without restriction; (ii) information which was rightfully in the Receiving Partyâ€™s possession or rightfully known to it prior to receipt of such information from the Disclosing Party; (iii) information which was rightfully disclosed to the Receiving Party by a third party having proper possession of such information, without restriction; (iv) information which is part of or enters the public domain without any improper action or inaction by the Receiving Party; (v) information which is independently developed by the Receiving Party without use or reference to the Disclosing Partyâ€™s Confidential Information; and (vi) any suggestions, enhancement requests, recommendations or other feedback provided by you or your Users relating to the operation or use of the Quezone Service.
11.3 The Receiving Party shall use the Disclosing Partyâ€™s Confidential Information only for the purposes set forth in this Agreement, and shall cause its employees, agents, financial advisors and attorneys and Users, if any, to maintain such Confidential Information in complete confidence, and shall disseminate such Confidential Information only on a need-to-know basis. The Receiving Party shall be permitted to disclose Confidential Information in connection with a judicial or administrative proceeding to the extent that such disclosure is required under applicable law or court order, provided that the Disclosing Party shall be given prompt and timely written notice of any such proceeding and shall offer reasonable cooperation in any effort of the other party to obtain a protective order.
11.4 The Receiving Party agrees, at any time upon request of the Disclosing Party (being a request that does not prevent the proper use of the Quezone Service as permitted by this Agreement) or upon any termination of this Agreement, to return to the Disclosing Party all Confidential Information in its possession or confirm the destruction thereof.
11.5 You shall not (i) modify, copy or create derivative works based on the Applicable Functionality or the Quezone Service; (ii) frame or mirror any content forming part of the Applicable Functionality or the Quezone Service, other than on your own intranets or otherwise for your own internal business purposes in accordance with the provisions of this Agreement; (iii) reverse engineer the Applicable Functionality or the Quezone Service; or (iv) access or use the Applicable Functionality or the Quezone Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Applicable Functionality or the Quezone Service.
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a breach of this Agreement if such breach remains uncured at the expiration of such period (or if such cure is not reasonable within the 30 days, and commercially reasonable steps have not been taken to cure the situation) after which time period written notice of termination is given to the breaching party; or, (ii) if a party becomes insolvent or if bankruptcy or receivership proceedings are initiated by or against a party other than for the purposes of solvent reconstruction. You are under no obligation to use the Quezone Service and may cease doing so at any time but you may be charged for the Quezone Service being made available to you unless you cancel your subscription through your Customer Account. Under no circumstances will you be entitled to any refund of any part of the Fees paid hereunder.
Chii Systems, or a Chii Systems designated third party may, during normal business hours, on reasonable advance notice describing the purpose and scope of the request, in a manner that does not unreasonably interfere with your business operations, may audit your use of and access to the Quezone Service to verify your compliance with the provisions of this Agreement.
14. Applicable Law
The Agreement shall be construed and governed in accordance with the laws of the State of New South Wales.
15.1 This Agreement constitutes the entire terms and conditions between you and Chii Systems with respect to this Quezone Service and supersedes any other agreement, written or oral. If any provision of this Agreement is held to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to give effect to the intent of this Agreement, and the remainder of this Licence shall continue in full force and effect.
15.2 Chii Systems shall be excused from performance of its obligations pursuant to this Agreement for any period and to the extent that it is prevented from performing such obligations, in whole or in part, as a result of delays caused by you or a third party, or an act of God, severe weather, hurricanes, earthquakes, flood, war, civil disturbance or civil commotion, court order or any other cause over which Chii Systems does not have direct control, including internet or communication problems (including internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Chii Systems’ possession or reasonable control), third party hardware or software errors, computer viruses or similar harmful programs or data, or unauthorized access or theft.
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