Effective: 14 August 2018
These Terms are binding on any use of the Service and apply to You from the time that Icosian provides You with access to the Service.
By registering to use the Service you acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service.
This Agreement (“Agreement”) governs your acquisition and use of the Icosian Service.
If you register for a free trial for the Service, this Agreement will also govern that free trial.
By accepting this Agreement, either by clicking a box indicating your acceptance or by signing and executing an Order Form that references this Agreement, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company, individual or other legal entity, you represent that you have the authority to bind such entity or individual and its affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity, individual and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Service.
means the monthly fee (excluding any taxes and duties) payable by You in accordance with the Fee Schedule.
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
means any data inputted by You or with Your authority into the Platform.
means the information relating to subscription fees and billing set out on the Order Form.
means Scooter Ventures Pty Ltd trading as Icosian.
“Intellectual Property Right”
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
means the form setting out the agreed terms relating to subscriptions and billing, including but not limited to, the Fee Schedule, Term of Agreement, Billing Frequency, Credit Card Details and Service Level Agreement.
means the internet site at the domain icosian.io or any other subdomain or site operated by Icosian.
means the online workforce management and scheduling services made available (as may be changed or updated from time to time by Icosian) via the Platform.
means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
means the term specified in the relevant Order Form or otherwise agreed between Icosian and the Subscriber.
means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
means the Subscriber, and where the context permits, a User. “Your” has a corresponding meaning.
- Use of Software
Icosian grants You the right to access and use the Service via the Platform with the particular user roles available to You according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Icosian regarding future functionality or features.
- Unless otherwise specified:
- the Service is purchased as User subscriptions and may be accessed by no more than the specified number of Users
- additional User subscriptions may be added during the applicable Subscription Term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the Subscription Term in effect at the time the additional User subscriptions are added, and
- the added User subscriptions shall terminate on the same date as the pre-existing subscriptions.
- User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
- The Subscriber is responsible for all Users’ use of the Service.
- The Subscriber determines who is a User and controls each User’s level of access to the relevant organization and Service at all times and can revoke or change a User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be a User or shall have that different level of access, as the case may be.
- If there is any dispute between a Subscriber and a User regarding access to any organization or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that User shall have, if any.
- Third-party API and Functionality Licensing
By entering into this Agreement You are acknowledging that the Service can leverage API services from third-parties to enable facilities like payment processing, mapping/routing, email and SMS services.
The Service includes for free, and by default, integration and connectivity to Google Maps and MailChimp (transactional emails) included in Your Access Fee.
Payment processing and SMS transaction fees are also billed by usage on top of Your Access Fee. Any such fees will be advised.
To the maximum extent permitted by law, Icosian will not be liable for the integrity, accuracy, timeliness and security of any of the services provided by third-party API and functionality vendors including but not limited to Google, Braintree, Stripe, MailChimp or Twilio and expressly disclaims such liability.
- Your Obligations
An invoice for the Access Fee will be issued each month in accordance with the details set out in the Fee Schedule. Icosian will continue invoicing You in accordance with the Fee Schedule until this Agreement is terminated in accordance with clause 8.
All Icosian invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. Payment of all amounts specified in an invoice must be paid in accordance with the Fee Schedule. You are responsible for payment of all taxes and duties in addition to the Access Fee.
If You provide credit card information, You authorize Icosian to charge such credit card for the Access Fee outlined in the Fee Schedule. Such charges shall be made in accordance with the billing frequency stated in the Fee Schedule. If the Fee Schedule specifies that payment will be by a method other than a credit card, Icosian will invoice You in advance and otherwise in accordance with the relevant Fee Schedule. Unless otherwise stated in the Fee Schedule, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information and immediate notification of any changes to such information.
- Preferential Pricing or Discounts
You may from time to time be offered preferential pricing or discounts to the Access Fees as a result of the number of organizations that You have added to the Service or that have been added with Your authority or as a result of Your use of the Service (‘Organizations’). Eligibility for such preferential pricing or discounts is conditional upon Your acceptance of responsibility for payment of any Access Fees in relation to all of Your Organizations. Without prejudice to any other rights that Icosian may have under these Terms or at law, Icosian reserves the right to render invoices for the full (non-discounted) Access Fees due or to suspend or terminate Your use of the Service in respect of any or all of Your Organizations in the event that any invoices for those Access Fees are not paid in full in accordance with the requirements set out in the Fee Schedule.
You must only use the Service and Platform for Your own lawful internal business purposes, in accordance with this Agreement (as amended from time to time) and any notice sent by Icosian or condition posted on the Platform. You may use the Service and Platform on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorized to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.
- You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Icosian of any unauthorized use of Your passwords or any other breach of security and Icosian will reset Your password and You must take all other actions that Icosian reasonably deems necessary to maintain or enhance the security of Icosian’s computing systems and networks and Your access to the Services.
- As a condition of these Terms, when accessing and using the Services, You must:
- not attempt to undermine the security or integrity of Icosian’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
- not use, or misuse, the Services in any way which may impair the functionality of the Services or Platform, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Platform;
- not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
- not transmit, or input into the Platform, any (i) files that may damage any other person’s computing devices or software, (ii) content that may be offensive, or (iii) material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
- not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Platform except as is strictly necessary to use either of them for normal operation.
Use of the Service may be subject to limitations, including but not limited to monthly transaction volumes, data storage space and the number of calls You are permitted to make against Icosian’s application programming interface. Any such limitations will be advised.
As a condition of these Terms, if You use any communication tools available through the Platform (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes in connection with the Services. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to) (i) offers of goods or services for sale, (ii) unsolicited commercial e-mail, (iii) files that may damage any other person’s computing devices or software, (iv) content that may be offensive to any other users of the Services or the Platform, or (v) material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
When You make any communication on the Platform, You represent that You are permitted to make such communication. Icosian is under no obligation to ensure that the communications on the Platform are legitimate or that they are related only to the use of the Services. As with any other web-based forum, You must exercise caution when using the communication tools available on the Platform. However, Icosian does reserve the right to remove any communication at any time in its sole discretion.
You indemnify Icosian against all claims, costs, damage and loss suffered or incurred by Icosian arising directly or indirectly from Your use of the Services including any breach of any of these Terms or any obligation You may have to Icosian, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
- Confidentiality and Privacy
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
- Each party’s obligations under this clause will survive termination of these Terms.
- The provisions of clauses 4.1.1 and 4.1.2 shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
Icosian agrees that it will advise you at the first reasonable opportunity upon becoming aware of a security breach relating to your Data where that Data is lost, stolen, accessed, used, disclosed, copied, modified or disposed of other than in accordance with these Terms.
- Intellectual Property
Title to, and all Intellectual Property Rights in the Services, the Platform and any documentation relating to the Services remain the property of Icosian (or its licensors).
Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Icosian Access Fee when due. You grant Icosian a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
Icosian shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Platform and/or Services.
You must maintain copies of all Data inputted into the Service. Icosian adheres to best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. To the maximum extent permitted by law, Icosian expressly excludes liability for any loss of Data no matter how caused.
Unfortunately, no data transmission over the Internet can be guaranteed as totally secure. Whilst Icosian strives to protect such information, Icosian does not warrant and cannot ensure the security of any information which You transmit via the Platform or Service. Accordingly, any information which You transmit via the Platform or Service is transmitted at Your own risk.
- Third-party Applications and Your Data
If You enable third-party applications for use in conjunction with the Services, You acknowledge that Icosian may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. Icosian shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
- Warranties and acknowledgements
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You acknowledge that:
- You are authorized to use the Services and the Platform and to access the information and Data that You input into the Platform, including any information or Data input into the Platform by any person you have authorized to use the Service. You are also authorized to access the processed information and Data that is made available to You through Your use of the Platform and the Services (whether that information and Data is Your own or that of anyone else).
- Icosian has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Platform on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
- You are responsible for ensuring that You have the right to do so;
- You are responsible for authorizing any person who is given access to information or Data, and you agree that Icosian has no obligation to provide any person access to such information or Data without Your authorization and may refer any requests for information to You to address; and
- You will indemnify Icosian against any claims or loss relating to:
- Icosian’s refusal to provide any person access to Your information or Data in accordance with these Terms, or
- Icosian’s making available information or Data to any person with Your authorization.
- The provision of, access to, and use of, the Services is on an “as is ” basis and at Your own risk.
- Icosian does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Icosian is not in any way responsible for any such interference or prevention of Your access or use of the Services.
- It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
- You remain solely responsible for complying with all applicable accounting, tax and other laws. It is Your responsibility to check that storage of and access to your Data via the Software and the Platform will comply with laws applicable to you (including any laws requiring you to retain records).
Icosian gives no warranty about the Services. Without limiting the foregoing, Icosian does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Platform or these Terms.
- Limitation of Liability
- To the maximum extent permitted by law, Icosian excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Platform.
- If You suffer loss or damage as a result of Icosian’s negligence or failure to comply with these Terms, any claim by You against Icosian arising from Icosian’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.
- If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
- Term and Termination
This Agreement commences on the date You first accept it and continues until all subscription hereunder have expired or have been terminated.
- Term of Purchased Subscriptions
The term of each subscription shall be the Subscription Term specified in the applicable Order Form and is subject to any specified special terms and conditions. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless written notice of a pricing increase has been given at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. If a corresponding Order Form specifies the duration of the period over which Your price point remains active, Icosian will not increase your per-user license fees for the duration of your license contract.
Icosian will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.
- breach any of these Terms (including, without limitation, by non-payment of license fees according to section 3) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
- breach any of these Terms and the breach is not capable of being remedied; or
- You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed to any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
Icosian may take any or all of the following actions, at its sole discretion:
- Terminate this Agreement and Your use of the Services and the Platform;
- Suspend for any definite or indefinite period of time, Your use of the Services and the Platform;
- Suspend or terminate access to all or any Data; or
- Take any of the actions in sub-clauses (4), (5) and (6) of this clause 8.4 in respect of any or all other persons whom You have authorized to have access to Your information or Data.
For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to any of Your Billing Contacts, Billing Plans or any of Your Organizations (as defined at clause 3) is not made in accordance with the requirements set out in the Fee Schedule, Icosian may: suspend or terminate Your use of the Service, the authority for all or any of Your Organizations to use the Service, or Your rights of access to all or any Data.
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- immediately cease to use the Services and the Platform.
Clauses 3.1, 3.7, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms.
- Help Desk
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Icosian. If You still need technical help, please check the support provided online by Icosian on the Platform or failing that email us at firstname.lastname@example.org.
- Hours of Support Services
Icosian customer support team members operate between standard business hours:
Australian Eastern Standard Time: 8:00am – 6:00pm Monday to Friday.
Whilst Icosian intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Platform may be unavailable to permit maintenance or other development activity to take place.
If for any reason Icosian has to interrupt the Services for longer periods than Icosian would normally expect, Icosian will use reasonable endeavours to publish in advance details of such activity on the Platform.
- Training and User Development Programs
Icosian offers training programs for Icosian customers. These are a valuable opportunity to ensure that users are at their maximum capability to find solutions to issues themselves as well as completely familiarize themselves with the application. If training packages or train the trainer sessions have not been specified in an accompanying license Order Form or Services Agreement – please contact us for pricing of Icosian training programs.
To find out more information and pricing of such programs please email: email@example.com.
Any terms capitalised in this clause 10 and not already defined elsewhere in this agreement have the same meaning given to those terms in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST Act”) and:
- Progressive or Periodic Supply means a Taxable Supply that satisfies the requirements of section 156-5 GST Act; and
- Supplier means the entity making the Supply.
Except under this clause 10, the consideration for a Supply made under or in connection with this document does not include GST.
If a Supply made under or in connection with this document is a Taxable Supply, then at or before the time any part of the consideration for the Supply is payable:
- the Recipient must pay the Supplier an amount equal to the total GST for the Supply, in addition to and in the same manner as the consideration otherwise payable under this document for that Supply; and
- the Supplier must give the Recipient a Tax Invoice for the Supply.
For the avoidance of doubt, the GST payable under clause 10.3 is correspondingly increased or decreased by any subsequent adjustment to the amount of GST for the Supply for which the Supplier is liable, however caused.
- Reimbursement or indemnity
If either party has the right under this document to be reimbursed or indemnified by another party for a cost incurred in connection with this document, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).
- Warranty that Tax Invoice is issued regarding a Taxable Supply
Where a Tax Invoice is given by the Supplier, the Supplier warrants that the Supply to which the Tax Invoice relates is a Taxable Supply and that it will remit the GST (as stated on the Tax Invoice) to the Australian Taxation Office.
- Progressive or Periodic Supplies
Where a Supply made under or in connection with this document is a Progressive or Periodic Supply, clause 10.3 applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
You may not assign or transfer any rights to any other person without Icosian’s prior written consent.
- Governing Law and Jurisdiction
This Agreement is governed by the laws in force in Queensland, Australia. You agree to submit to the exclusive jurisdiction of the courts of that jurisdiction for all disputes arising out of or in connection with this Agreement.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on the first business day after transmission. Notices to Icosian must be sent to firstname.lastname@example.org or to any other email address notified by email to You by Icosian. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
When You become a customer, You agree to allow Icosian to reference You as a customer using the Service on any Icosian website, print copy or marketing collateral. You will provide Icosian with an approved company logo that may be published online and/or on marketing collateral to communicate such relationship.