Terms of Trade

JWGecko Innovation Pty Ltd Terms of Trade

ABSTRACT

BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS END- USER LICENSE AGREEMENT ("Agreement"). YOU WILL BE ASKED TO REVIEW AND EITHER ACCEPT OR NOT ACCEPT THE TERMS OF THE Agreement. YOU ARE NOT AUTHORISED TO USE THIS SOFTWARE APPLICATION OR ANY RELATED SERVICES UNLESS AND UNTIL YOU ACCEPT THE TERMS OF THIS AGREEMENT.

This Agreement is a binding legal agreement between you (hereinafter “Customer”) and JWGecko Innovation Pty Ltd (hereinafter "JWG") for the materials accompanying or associated with this Agreement, including the Internet application, associated media, printed materials and any "online" or electronic documentation (hereinafter the "Software"). By accessing the Software, you agree to be bound by the terms of this Agreement. Any use of the software, payment of our invoices, acceptance of our proposals or quotations are deemed as acceptance of these Terms of Trade. If you do not agree to the terms of this Agreement, do not access or attempt to use the Software.

RECITALS

WHEREAS, JWG is engaged in the business of providing software products as a service web site hosting and related services;

WHEREAS, Customer desires to retain JWG to perform the Services provided for in this Agreement. NOW, THEREFORE, JWG and Customer agree as follows:

  1. Scope of Services JWG will use reasonable endeavours to provide the following:

    1. Hosting Services as detailed in Appendix D;

    2. Access and use of the Software;

    3. Custom development services;

    4. Training services;

    5. Maintenance Services in accordance with Appendix A in accordance with the Service Levels as detailed in Appendix B; and

    6. The Premium Services, Appendix E, (if ordered).

  2. Price and Payment

    1. Customer will pay JWG for the Services according to the terms set forth in our proposal to you and as may be otherwise advised. Customer will pay:

      1. Hosting fees, Maintenance fees, Training fees and Premium Services fees and Expenses, in advance or as otherwise set out in this Agreement.

      2. Current JWG Services rates are here - http://jwgecko.com/software-as-a-service-provisions.cfm

    2. Unless otherwise stipulated on the invoice all invoices are due for payment 14 days after issue.

    3. The Customer shall not be entitled to withhold payment or to make any deductions or set-off from payments due without the prior written agreement of JWG.

    4. All deposits are non-refundable.

    5. Payment of the Deposit is required before work will be commenced.

    6. All development fees are payable prior to the site being made live on the designated domain name.

    7. JWG may change the prices charged for the Services upon forty five (45) days written notice to Customer, but such increases shall not exceed ten percent (10%) of the rate currently being charged at that time.  JWG is also entitled to increase prices where its costs are increased due to exchange rate fluctuations with the US dollar.

    8. If Customer ceases to pay their debts in the ordinary course of business or proves unable to pay their debts as they become due or, being, a company, is deemed to be unable to pay its debts, or has a winding-up petition issued against it or, being a person, commits an act of bankruptcy or has a bankruptcy petition issued against it, JWG, without prejudice to other remedies, shall:

      1. have the right not to proceed further with the contract or any other work for the Customer and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the Customer, such charge to be an immediate debt due to it, and

      2. in respect of all unpaid debts due from the Customer, have a general lien on all goods and property in its possession (whether worked on or not) and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property in such manner and at such price as we think fit and to apply the proceeds toward such debts.

      3. Restrict access to services

        1. Internet based applications

          1. revoke access to administration areas (generally after 7 days);

          2. revoke access to website update service (generally after 7 days);

          3. revoke client access for Students, Staff and Employers  (generally after 14 days)

        2. Non-internet based applications

          1. switch software to read only on expiry of ASM

          2. revoke access to software 14 days after expiry of ASM

        3. Remote Access applications

          1. switch software to read only (generally after 7 days);

          2. revoke access to software (generally after 14 days);

        4. Charges apply for changing access settings due to accounts issues.

      4. Where an agreement is in place and payment terms are not adhered to JWG may, at its sole discretion, invoice the balance of the agreement for immediate payment.

  3. Term and Termination

    1. The Services will commence on the Effective Date of this Agreement and be for a period of 24 months and will automatically renew from year to year thereafter, unless earlier terminated as provided herein. JWG may terminate this Agreement without cause upon at least sixty (60) days written notice to Customer. Customer may terminate this Agreement without cause upon at least sixty (60) days written notice to JWG, provided that such notice expires on or after that date which is 24 months after the Effective Date. Either party may terminate this Agreement upon written notice for material breach, provided, however, that the terminating party has given the other party at least fourteen (14) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party's right to exercise any other remedies for breach.

    2. Additional Services, and changes to Services updates the Effective Date and restarts the 24 month period.

    3. On termination of this Agreement for any reason:

      1. JWG may cease to provide the Services with immediate effect;

      2. any licence granted to the Customer terminates with immediate effect;

      3. JWG is discharged from any further obligations under this Agreement;

      4. JWG may retain any money paid; (e) all fees and other amounts owing by the Customer for the Services become immediately due and payable; and

      5. JWG may pursue any additional or alternative remedies provided by law.

    4. If Customer's licence terminates or is suspended due to lack of payment, Customer will pay the then current reinstatement fee, in addition to all other charges then due and payable, prior to restoration of the Services.

  4. Customer Service

    1. JWG will provide to Customer reasonable amounts of consultation via telephone and/or electronic mail in the use of the system, but is not obliged to assist with any Services that are not maintained or controlled by JWG.

    2. JWG will provide up to one hour of customer service to trainer users per month.

    3. JWG will collect data pertaining to product usage and store this to assist in support and development.

  5. Customer's Warranties and Obligations

    1. Customer is responsible for providing all equipment and/or software necessary to access the hardware and systems provided by JWG. Customer agrees to adhere to JWG's Acceptable Use Policy, a copy of which is attached hereto and marked as "Appendix C". The Acceptable Use Policy may be modified from time to time in JWG's sole discretion. Customer's continued use of the Services after the effective date of such modified Acceptable Use Policy will constitute Customer's acceptance of the modified terms. Failure by Customer to adhere to the Acceptable Use Policy, or any modifications thereto will constitute a material breach of this agreement.

    2. Customer hereby warrants to JWG, and agrees that during the term of this Agreement it will ensure that:

      1. Customer is the owner or valid licensee of all data and/or content it will upload in conjunction with the Services (the "Content"), and that Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by JWG to pay any fees, residuals, guild payments or other compensation of any kind to any person;

      2. Customer's use, publication and display of the Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated;

      3. Customer will comply with all applicable laws, rules and regulations regarding the Content and will use the services only for lawful purposes;

      4. Customer has used its best efforts to ensure that the Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code.  

    3. Customer will cooperate fully with JWG in connection with JWG's performance of the Services. Customer will immediately notify JWG of any change in Customer's mailing address, telephone, e- mail or other contact information.

  6. Ownership of Intellectual Property

    1. Customer hereby grants to JWG a non- exclusive, royalty- free, worldwide right and license during the term of this Agreement to do the following to the extent necessary in the performance of Services: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Content; and (b) make archival or backup copies of the Content. Except for the rights expressly granted herein, JWG does not acquire any right, title or interest in or to the Content, all of which will remain solely with Customer.

    2. Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Customer sends to JWG relating to the Services will be treated as being non- confidential and nonproprietary. JWG may use, disclose or publish any ideas, concepts, know- how or techniques contained in such information for any lawful purpose.

    3. JWG's trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of JWG. Customer will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of JWG. JWG will maintain and control ownership of internet protocol numbers and addresses that may be assigned by JWG to Customer. JWG may, in its sole discretion, change or remove any and all such internet protocol numbers and addresses.

    4. JWG hereby grants to Customer a non- exclusive, non- transferable, royalty- free license, for the term of this Agreement, to use the provided technology (including the products) solely for the purpose of accessing and using the Services. Customer may not use the provided technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from JWG to Customer any right, title or interest in and to the provided technology, and all right, title and interest thereto will remain solely with JWG. Customer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology. Customer may not embed the Services in any services or websites offered by the Customer, or offer any bureau service using the Services without the prior written consent of JWG.

    5. JWG retains exclusive ownership of all computer code it writes or causes to be created.

    6. A JWG attribution, in a form determined by JWG will be inserted on all web pages where JWG products are used. This attribution may not be removed.

    7. JWG may promote the customer website and web pages or training dates, on it or its partner websites, to assist in marketing that customer's training courses and JWG's search engine ranking.

  7. Warranty and Disclaimer

    1. JWG warrants the Services will be performed in a workmanlike manner, and in conformity with generally prevailing industry standards. Customer must report any material deficiencies in the Services to JWG in writing within sixty (60) days of Customer's discovery of the deficiency. Except for certain consumer protection guarantees that cannot be excluded, JWG do not make any other warranties or guarantees with respect to the Customer’s use of the Services.

    2. To the extent JWG can under consumer protection laws and other laws, JWG’s liability to Customer is limited to the resupplying of the Services or the cost of resupply of the Services.

  8. Limitation of Liability

    1. Except for claims available to you under consumer protection laws and to the extent JWG are able to under law, JWG excludes all liability to the Customer in relation to this Agreement with them, for any loss or damage including, but not limited to loss of profits, loss or corruption of data, loss of reputation, business or opportunity or for any type of special, direct, indirect, incidental or consequential loss or damage which the Customer may incur.

    2. JWG's total liability under this Agreement with respect to the Services, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by Customer to JWG during the six (6) month period prior to the date the claim arises.

  9. Indemnification of JWG

    1. Customer will indemnify and hold JWG harmless against any claims incurred by JWG arising out of or in conjunction with Customer's breach of this Agreement or Customer’s use of the Software or the Services, as well as all reasonable costs, expenses and attorneys' fees incurred therein.

  10. Confidential Information

    1. All information relating to Customer that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by JWG and will not be disclosed or used by JWG except to the extent that such disclosure or use is reasonably necessary to the performance of the Services.

    2. All information relating to JWG that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Customer and will not be disclosed or used by Customer except to the extent that such disclosure or use is reasonably necessary to the performance of Customer's duties and obligations under this Agreement.

    3. These obligations of confidentiality will extend for a period of 12 months after the termination of this Agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.

  11. Relation of Parties

    1. The performance by JWG of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between JWG and Customer, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.

  12. Employee Solicitation/Hiring

    1. During the period of this Agreement and for twelve (12) months thereafter, neither party will directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor or former subcontractor of the other. The terms "former employee" and "former subcontractor" will include only those employees or subcontractors of either party who were employed or utilized by that party within six (6) months immediately prior to the alleged violation.

  13. Assignment

    1. Customer may not assign this Agreement, in whole or in part, without the prior written consent of JWG. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.

      1. Where a transfer of ownership is agreed by JWG a licence fee of 50% of the original value will be charged and a new two year agreement will be entered into with the new entity.

    2. JWG may assign this Agreement, in whole or in part.

  14. Mediation - Arbitration

    1. Any dispute or difference whatsoever arising out of or in connection with this Agreement shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.

    2. If the dispute or difference is not settled within 30 days of the submission to mediation (unless such period is extended by agreement of the parties), either party may pursue its rights in the courts of New South Wales.Notwithstanding the existence of a dispute or difference each party shall continue to perform this Agreement.

  15. Attorneys' Fees If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees and costs.

  16. Severability If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.

  17. Force Majeure Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control.

  18. No Waiver No waiver of any right under this Agreement will be deemed effective unless contained in writing signed by a duly authorized representative of the party against whom the waiver is to be asserted, and no waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future rights arising out of this Agreement.

  19. Governing law and jurisdiction The law of New South Wales governs this Agreement. The parties submit to the exclusive jurisdiction of the courts of New South Wales or any competent Federal court exercising jurisdiction in New South Wales. The dispute must be determined in accordance with the law and practice applicable in the court.

  20. Entire Agreement This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.

  21. Definitions

    1. Effective Date means the date that is set out in our proposal, or the date we first supply the Services to you.

    2. Premium Services means the premium services set out in Appendix E.

    3. Software Maintenance means the software maintenance services set out in Appendix A.

Appendix A: Software Maintenance Agreement

  1. JWG licenses it products in two ways;

    1. Gecko Classic refers to the Cherry, Gecko and Enquiry Mate licensing mechanisms in use prior to June 2016

    2. Software as a Service (SaaS)

  2. Appendix A applies to “Gecko Classic” account holders only.

  3. This Software Maintenance Agreement describes how JWG maintains the software it delivers in its hosted environments.

  4. Software Maintenance is mandatory.

  5. The Software Maintenance in the first year of licensing is included in the cost of the licence.

  6. Payment for Software Maintenance is paid a year in advance and is due on the anniversary of the initial agreement.

  7. Software Maintenance will automatically renew from year to year on the anniversary of the commencement date unless either party provides the other at least 60 days notice that it does not wish to renew. For the avoidance of doubt, Software Maintenance may not be terminated during its term for convenience in accordance with clause 3A of the head agreement.

  8. The cost of Software Maintenance

    1. Standard product: The cost is fixed at 25% of the purchase price of the standard product for the first two years. This represents one payments i.e. one at the beginning of year two. In subsequent years the cost will be 25% of the current product purchase price at that time.

    2. Customised product: The cost is fixed at 25% of the cost of the customisation for the first two years. This represents one payments i.e. one at the beginning of year two. In subsequent years the cost will be 25% of the current product purchase price at that time.

  9. From time to time modifications and updates to the standard features of the JWG products Customer has licensed may change; these changes are incorporated into a product release (hereinafter ‘Product Update’).

  10. Product Updates are released as JWG sees fit.

  11. A valid Software Maintenance Agreement provides the Customer with access to these updates.

  12. Associated program: Sometimes JWG products rely on or interface with associated programs. Minor changes to these programs often require changes to the JWG product in order that they work in the way they were originally intended to.

    1. Point releases: Most changes to associated programmes fall under the category of a point release. A point release is a release including changes and enhancements to the existing application framework.

      1. Adaptation to a point release of an associated product will be made within 20 business days of the receipt of the final version of the update being made available with documentation to JWG.

      2. Adaptation of the JWG Product to suit the point release of the associated product is included in the Software Maintenance Agreement.

    2. Version Releases: A version release of an associated product in one where there is a major change to the application framework that requires significant changes to the JWG product.

      1. JWG will determine whether a change to the associated software is a point or version release.

      2. Adaptation of the JWG product to suit a version release of the associated product may be excluded from the Software Maintenance Agreement.

      3. In the event of a version release JWG may offer an upgrade adaptation as an add-on to the existing Software Maintenance Agreement.

  13. Student Management Software (SMS) pricing

    1. Prices change without notice, the current pricing is available on our website - http://jwgecko.com/enquiry-mate.cfm

    2. Annual Software Maintenance for SMS products is available here: http://jwgecko.com/enquiry-mate.cfm

Appendix B: Service Level Agreement

This Service Level Agreement sets forth the details regarding the level of service and technical support that apply when your account is in good financial standing.

  1. Hosting Downtime (where applicable)

    1. For purposes of this Service Level Agreement, a Unit of Downtime is one period of at least one hour during which access to your website is unavailable because of problems with hardware or system software. Downtime does not include

      1. problems caused by factors outside of our reasonable control,

      2. problems resulting from any actions or inactions by you or any third party,

      3. problems resulting from your equipment and/or third party equipment not within our sole control, or

      4. network unavailability during scheduled maintenance of our network and/or web servers.

    2. In any calendar month, we guarantee that Downtime will not exceed ten Units of Downtime excluding regularly scheduled maintenance. Any regularly scheduled maintenance will be performed during the hours of 7am and 7pm Sydney Time. We work to ensure the functioning of all web servers through continuous monitoring by our staff.

    3. If Downtime exceeds 10 Units of Downtime in any calendar month, we will, upon your written request, credit your account (a "Downtime Credit") in an amount equal to the pro- rata price for one (1) day of service, for each instance of Downtime as that term is defined herein.

    4. To receive Downtime Credit, you must request such credit by sending an email to customerservice@jwgecko.com within seven (7) days after the occurrence of Downtime. The aggregate maximum number of Downtime Credits to be issued for any and all instances of Downtime occurring in a single calendar month will not exceed seven (7). Downtime Credits will be applied upon issue of the first invoice following the request for Downtime Credit, unless the Downtime occurs in your final month of service. In such case, a refund for the dollar value of the Downtime Credit will be mailed to you within thirty (30) days of the expiration of this Agreement.

    5. To the extent permitted by law, any Downtime Credit paid to you will be your sole and exclusive remedy for our failure to ensure the Downtime does not exceed ten Units of Downtime in any calendar month.

  2. General Technical Support

    1. A member of our customer support desk staff will be available to assist you with problems and questions regarding JWG services. We will supply telephone and/or email support to you regarding the hosting services during office hours on +61 ?2 9146 6280 or via email on gecko@jwgecko.com.

    2. Urgent Status and Service Updates will be available on http://www.twitter.com/jwgecko

  3. Provision of Ad Hoc Services

    1. Customer may utilise JWG services on an ad hoc basis. These service requests should be made via the gecko@jwgecko.com email address.

    2. The minimum charge for a single service item is two hours at the prevailing rate. Additional charges are accrued in 30 minute increments.

    3. Estimates will be provided for tasks over 2 hours if requested.

    4. The minimum charge for a quotation is 4 hours.

    5. Ad hoc Service requests will be scheduled as resources become available. Requests are actioned based on a first come first served basis.

    6. Urgent service requests may be scheduled on the same business day where resources are available. The cost for this service will be double the normal hourly rate.

    7. Ad hoc and urgent service charges will be added to the monthly invoice and will due for payment in the normal course of business.

Appendix C: Web Hosting Acceptable Use Policy

This Acceptable Use Policy sets forth guidelines relating to the types of content that you may upload to the web servers under your agreement with JWGecko Pty Ltd for web hosting services. JWG may remove any materials that, in its sole discretion, may be illegal, may subject it to liability, or which may violate this Acceptable Use Policy. JWG will cooperate with legal authorities in the investigation of any suspected or alleged crime or civil wrong arising from any use of the Services. Your violation of this Acceptable Use Policy may result in the suspension or termination of either your access to the Services and/or your account or other actions as detailed in this Agreement.

  1. Acceptable Use Without limiting the preceding paragraph, the following constitute violations of this Acceptable Use Policy:

    1. Using the Services to transmit or post any material that contains or contains links to nudity, pornography, adult content, sex, or extreme violence.

    2. Using the Services to transmit or post any material that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations promulgated thereunder.

    3. Using the Services to harm, or attempt to harm, minors in any way.

    4. Using the Services to transmit or post any material that harasses, threatens or encourages bodily harm or destruction of property.

    5. Using the Services to make fraudulent misrepresentations or offers including but not limited to offers relating to "pyramid schemes" and "Ponzi schemes."

    6. Using the Services to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of JWG or another entity's computer software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data.

    7. Using the Services to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorized copying and/or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software.

    8. Using the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent.

    9. Reselling the Services without the prior written authorisation of JWG.

    10. Using the Services for any activity that adversely affects the ability of other people or systems to use the Services or the Internet. This includes but is not limited to "denial of service" (DoS) attacks against another network JWG or individual Customer. Interference with or disruption of other network users, network services or network equipment is prohibited.

  2. Fair Use Policy

    1. The fair use policy applies to the use of JWG servers and infrastructure.

    2. You acknowledge that the web servers being used are being shared with other users and to maintain a high level of service resources usage guidelines are set for the type of service provided.

      1. Gecko Classic client guidelines: http://jwgecko.com/hosting-packages.cfm

      2. Software as a Service (SaaS) guidelines: http://jwgecko.com/software-as-a-service-provisions.cfm

    3. JWG may restrict access to the Services. JWG may withdraw access to the Services if these conditions are not met.

    4. Where the Services include document management, the Services are limited to 100,000 aggregate PUT, POST and GET calls to the document management system per month.

    5. The maximum continuous connection times for any API updates by you are 10 minutes for the “Enrolment API” and 15 minutes for the “Portal/VET Campus API”.

  3. Reporting of Violations of This Acceptable Use Policy JWG requests that anyone who believes that there has been a violation of this Acceptable Use Policy to immediately send an email detailing such violation to customerservice@jwgecko.com.

  4. Revisions to This Acceptable Use Policy JWGecko Pty Ltd may revise, amend or modify this Acceptable Use Policy at any time and in any manner.

Appendix D: Hosting Services

We will use reasonable endeavours to provide the hosting services which may include the following:

  • Server description

  • Operating system

  • Disk space

  • Monthly traffic allowance

  • Additional features (eg. support for SQL, ASP, PHP, etc).

  • Domain name hosting and management

  • Domain name purchasing

  • as set out in our proposal to you.

Appendix E: Premium Services Agreement (Optional)

  1. This Premium Services Agreement provides Customer with priority support for urgent maintenance and support requests when your account is in good standing.

  2. Premium Services are provided in office hours.

  3. In return for a minimum monthly commitment of three hours to services expenditure JWG provide clients with preferential billing and service options for ad hoc service requests.

    1. Customer will have access to the JWG support portal to enter new service tasks.

      1. Customer may telephone or email service tasks however the time to enter the tasks into the Support Portal will be allocated to the task.

    2. Customer will have a minimum charge of 30 minutes per task with additional activity charged in 15 minute increments.

    3. Estimates will be provided for tasks over two hours if requested.

    4. The minimum charge for a quotation is four hours.

    5. Ad hoc service requests will be scheduled as resources become available. Requests are actioned based on a first come first served basis.

  4. Urgent Support Requests

    1. Urgent support requests will be responded to within eight business hours of receipt.

    2. Customer is allowed a maximum of one urgent support request per month without additional charge.

    3. Additional urgent service requests may be scheduled on the same business day where resources are available. The cost for this service will be double the normal hourly rate.

    4. Each urgent request will be allocated a maximum of two hours.

Appendix F: Training Services

  1. JWG includes a training allowance for all new product implementation project (see details below) and provides free support to Trained Users for most products. Support for LMS products requires a support agreement.

  2. The current training policies may be found on this web page: http://jwgecko.com/training-and-support.cfm

JWGecko Pty Ltd Terms of Trade

ABSTRACT

BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS END- USER LICENSE AGREEMENT ("Agreement"). YOU WILL BE ASKED TO REVIEW AND EITHER ACCEPT OR NOT ACCEPT THE TERMS OF THE Agreement. YOU ARE NOT AUTHORIZED TO USE THIS SOFTWARE APPLICATION OR ANY RELATED SERVICES UNLESS AND UNTIL YOU ACCEPT THE TERMS OF THIS Agreement.

This Agreement is a binding legal agreement between you (hereinafter �Customer�) and JWGecko Pty Ltd (hereinafter "JWG") for the materials accompanying or associated with this Agreement, including the internet application, associated media, printed materials and any "online" or electronic documentation (hereinafter the "Software"). By accessing the Software, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not access or attempt to use the Software.

RECITALS

WHEREAS, JWG is engaged in the business of providing software products as a service web site hosting and related services;
WHEREAS, Customer desires to retain JWG to perform the Services provided for in this Agreement. NOW, THEREFORE, JWG and Customer agree as follows:�

JWG will use reasonable endeavours to provide the following:
1. Hosting Services as detailed in Appendix D;
2. access and use of the Software;
3. Maintenance Services in accordance with Appendix A in accordance with the Service Levels as detailed in Appendix B; and
4. the Premium Services (if ordered),
(collectively, the Services).
2. Price and Payment
Customer will pay JWG for the Services according to the terms set forth in our proposal to you and as may be otherwise advised. Customer will pay (a) hosting fees, maintenance fees and Premium Services fees in advance, (b) fees for other goods or services as invoiced, and (c) any security deposit as set forth in any attachment to this Agreement. JWG may change the prices charged for the Services upon forty- five (45) days written notice to Customer, but such increases shall not exceed ten percent (10%) of the rate currently being charged at that time. JWG is also entitled to increase prices where its costs are increased due to exchange rate fluctuations with the US dollar. The current JWG pricing information is here - http://jwgecko.com/services-work-rates.cfm

3. Term and Termination

A. The Services will commence on the Effective Date of this Agreement and be for a period of 24 months and will automatically renew from year to year thereafter, unless earlier terminated as provided herein. JWG may terminate this Agreement without cause upon at least sixty (60) days written notice to Customer. Customer may terminate this Agreement without cause upon at least sixty (60) days written notice to JWG, provided that such notice expires on or after that date which is 24 months after the Effective Date. Either party may terminate this Agreement upon written notice for material breach, provided, however, that the terminating party has given the other party at least fourteen (14) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party's right to exercise any other remedies for breach.

B. On termination of this Agreement for any reason: (a) JWG may cease to provide the Services with immediate effect; (b) any licence granted to the Customer terminates with immediate effect; (c) JWG is discharged from any further obligations under this Agreement; (d) JWG may retain any money paid; (e) all fees and other amounts owing by the Customer for the Services become immediately due and payable; and (f) JWG may pursue any additional or alternative remedies provided by law.

C. If Customer's licence terminates or is suspended due to lack of payment, Customer will pay the then current reinstatement fee, in addition to all other charges then due and payable, prior to restoration of the Services.

4. Customer Service
JWG will provide to Customer reasonable amounts of consultation via telephone and/or electronic mail in the use of the system, but will not assist with any Services that are not maintained or controlled by JWG.

5. Customer's Warranties and Obligations

A. Customer is responsible for providing all equipment and/or software necessary to access the hardware and systems provided by JWG. Customer agrees to adhere to JWG's Acceptable Use Policy, a copy of which is attached hereto and marked as "Appendix C". The Acceptable Use Policy may be modified from time to time in JWG's sole discretion. Customer's continued use of the Services after the effective date of such modified Acceptable Use Policy will constitute Customer's acceptance of the modified terms. Failure by Customer to adhere to the Acceptable Use Policy, or any modifications thereto will constitute a material breach of this agreement.

B. Customer hereby warrants to JWG, and agrees that during the term of this Agreement it will ensure that (a) Customer is the owner or valid licensee of all data and/or content it will upload in conjunction with the Services (the "Content"), and that Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by JWG to pay any fees, residuals, guild payments or other compensation of any kind to any person; (b) Customer's use, publication and display of the Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated; (c) Customer will comply with all applicable laws, rules and regulations regarding the Content and will use the services only for lawful purposes; (d) Customer has used its best efforts to ensure that the Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code.

C. Customer will cooperate fully with JWG in connection with JWG's performance of the Services. Customer will immediately notify JWG of any change in Customer's mailing address, telephone, e- mail or other contact information.

6. Ownership of Intellectual Property

A. Customer hereby grants to JWG a non- exclusive, royalty- free, worldwide right and license during the term of this Agreement to do the following to the extent necessary in the performance of Services: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Content; and (b) make archival or back- up copies of the Content. Except for the rights expressly granted herein, JWG does not acquire any right, title or interest in or to the Content, all of which will remain solely with Customer.

B. Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Customer sends to JWG relating to the Services will be treated as being non- confidential and non- proprietary. JWG may use, disclose or publish any ideas, concepts, know- how or techniques contained in such information for any lawful purpose.

C. JWG's trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of JWG. Customer will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of JWG. JWG will maintain and control ownership of internet protocol numbers and addresses that may be assigned by JWG to Customer. JWG may, in its sole discretion, change or remove any and all such internet protocol numbers and addresses.

D. JWG hereby grants to Customer a non- exclusive, non- transferable, royalty- free license, for the term of this Agreement, to use the provided technology (including the products) solely for the purpose of accessing and using the Services. Customer may not use the provided technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from JWG to Customer any right, title or interest in and to the provided technology, and all right, title and interest thereto will remain solely with JWG. Customer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology. Customer may not embed the Services in any services or websites offered by the Customer, or offer any bureau service using the Services without the prior written consent of JWG.

7. Warranty and Disclaimer
JWG warrants the Services will be performed in a workmanlike manner, and in conformity with generally prevailing industry standards. Customer must report any material deficiencies in the Services to JWG in writing within sixty (60) days of Customer's discovery of the deficiency. Except for certain consumer protection guarantees that cannot be excluded, JWG do not make any other warranties or guarantees with respect to the Customer�s use of the Services.
To the extent JWG can under consumer protection laws and other laws, JWG�s liability to Customer is limited to the resupplying of the Services or the cost of resupply of the Services.

8. Limitation of Liability
Except for claims available to you under consumer protection laws and to the extent JWG are able to under law, JWG excludes all liability to the Customer in relation to this Agreement with them, for any loss or damage including, but not limited to loss of profits, loss or corruption of data, loss of reputation, business or opportunity or for any type of special, direct, indirect, incidental or consequential loss or damage which the Customer may incur.
JWG's total liability under this Agreement with respect to the Services, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by Customer to JWG during the six (6) month period prior to the date the claim arises.

9. Indemnification of JWG
Customer will indemnify and hold JWG harmless against any claims incurred by JWG arising out of or in conjunction with Customer's breach of this Agreement or Customer�s use of the Software or the Services, as well as all reasonable costs, expenses and attorneys' fees incurred therein.

10. Confidential Information

A. All information relating to Customer that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by JWG and will not be disclosed or used by JWG except to the extent that such disclosure or use is reasonably necessary to the performance of the Services.

B. All information relating to JWG that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Customer and will not be disclosed or used by Customer except to the extent that such disclosure or use is reasonably necessary to the performance of Customer's duties and obligations under this Agreement.

C. These obligations of confidentiality will extend for a period of 12 months after the termination of this Agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.

11. Relation of Parties
The performance by JWG of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between JWG and Customer, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.

12. Employee Solicitation/Hiring
During the period of this Agreement and for twelve (12) months thereafter, neither party will directly or indirectly solicit or offer employment to or hire any employee, former employee, sub contractor or former subcontractor of the other. The terms "former employee" and "former subcontractor" will include only those employees or subcontractors of either party who were employed or utilized by that party within six (6) months immediately prior to the alleged violation.

13. Non- assignment
Customer may not assign this Agreement, in whole or in part, without the prior written consent of JWG. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.

14. Mediation - Arbitration
Any dispute or difference whatsoever arising out of or in connection with this Agreement shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.
If the dispute or difference is not settled within 30 days of the submission to mediation (unless such period is extended by agreement of the parties), either party may pursue its rights in the courts of New South Wales.Notwithstanding the existence of a dispute or difference each party shall continue to perform this Agreement.

15. Attorneys' Fees
If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees and costs.

16. Severability
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.

17. Force Majeure
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control.

18. No Waiver
No waiver of any right under this Agreement will be deemed effective unless contained in writing signed by a duly authorized representative of the party against whom the waiver is to be asserted, and no waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future rights arising out of this Agreement.

19. Governing law and jurisdiction
The law of New South Wales governs this Agreement. The parties submit to the exclusive jurisdiction of the courts of New South Wales or any competent Federal court exercising jurisdiction in New South Wales. The dispute must be determined in accordance with the law and practice applicable in the court.

20. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.

21. Definitions
Effective Date means the date that is set out in our proposal, or the date we first supply the Services to you.
Premium Services means the premium services set out in Appendix E.
Software Maintenance means the software maintenance services set out in Appendix A.

Appendix A: Software Maintenance Agreement


1.0 This Software Maintenance Agreement describes how JWG maintains the software it delivers in its hosted environments.
Software Maintenance for standard JWG products is mandatory.

2.0 Software Maintenance for customised JWG products is optional.

�2.1 When the Customer does not exercise the option for Software Maintenance on the customised aspects of the licensed product then the Customer is responsible for maintenance costs of the product.

3.0 The Software Maintenance in the first year of licensing is included in the cost of the licence.

4.0 Payment for Software Maintenance is paid a year in advance and is due on the anniversary of the initial agreement.

�4.1 Software Maintenance will automatically renew from year to year on the anniversary of the commencement date unless either party provides the other at least 90 days notice that it does not wish to renew. For the avoidance of doubt, Software Maintenance may not be terminated during its term for convenience in accordance with clause 3A of the head agreement.

5.0 The cost of Software Maintenance

�5.1 Standard product: The cost is fixed at 20% of the purchase price of the standard product for the first three years. This represents two payments, one at the beginning of year two and the second at the beginning of year three.

� 5.1.1 In subsequent years the cost will be 20% of the current product purchase price at that time.

�5.2 Customised product: When the Customer exercises the option for Software Maintenance the cost is fixed at 20% of the cost of the customisation for the first three years. This represents two payments, one at the beginning of year two and the second at the beginning of year three.

� 5.2.1 In subsequent years the cost will be 20% of the customisation value at that time set by JWG.

6.0 From time to time modifications and updates to the standard features of the JWG products Customer has licensed may change; these changes are incorporated into a product release (hereinafter �Product Update�).

7.0 Product Updates are released as JWG sees fit.

8.0 A valid Software Maintenance Agreement provides the Customer with access to these updates.

9.0 There are two categories of Product Updates, Mandatory and Optional.

�9.1 A Mandatory Product Update is where the Customer has no option but to accept. These are generally changes required to stay in synch with either the JWG product development or the associated product�s development.

� 9.1.1 Where the Customer has a standard version of the JWG product and a standard version of the associated product, mandatory updates are at no cost to the Customer.

�9.2 An Optional Product Update is one that the Customer has a choice whether to accept of not.


� 9.2.1 While the provision of an Optional Product Update is included in the Software Maintenance, the implementation of it may be at an additional charge.

10.0 Associated program: Sometimes JWG products rely on or interface with associated programs. Minor changes to these programs often require changes to the JWG product in order that they work in the way they were originally intended to.

�10.1 Point releases: Most changes to associated programmes fall under the category of a point release. A point release is a release including changes and enhancements to the existing application framework.

� 10.1.1 Adaptation to a point release of an associated product will be made within 20 business days of the receipt of the final version of the update being made available with documentation to JWG.

� 10.1.2 Adaptation of the JWG Product to suit the point release of the associated product is included in the Software Maintenance Agreement.

�10.2 Version Releases: A version release of an associated product in one where there is a major change to the application framework that requires significant changes to the JWG product.

� 10.2.1 JWG will determine whether a change to the associated software is a point or version release.

� 10.2.2 Adaptation of the JWG product to suit a version release of the associated product may be excluded from the Software Maintenance Agreement.

� 10.2.3 In the event of a version release JWG may offer an upgrade adaptation as an add- on to the existing Software Maintenance Agreement.

Appendix B: Service Level Agreement

This Service Level Agreement sets forth the details regarding the level of service and technical support that apply when your account is in good financial standing.

1. Hosting Downtime

A. For purposes of this Service Level Agreement, a Unit of Downtime is one period of at least one hour during which access to your website is unavailable because of problems with hardware or system software. Downtime does not include (i) problems caused by factors outside of our reasonable control, (ii) problems resulting from any actions or inactions by you or any third party, (iii) problems resulting from your equipment and/or third party equipment not within our sole control, or (iv) network unavailability during scheduled maintenance of our network and/or web servers.

B. In any calendar month, we guarantee that Downtime will not exceed ten Units of Downtime excluding regularly scheduled maintenance. Any regularly scheduled maintenance will be performed during the hours of 7am and 7pm Sydney Time. We work to ensure the functioning of all web servers through continuous monitoring by our staff.

C. If Downtime exceeds 10 Units of Downtime in any calendar month, we will, upon your written request, credit your account (a "Downtime Credit") in an amount equal to the pro- rata price for one (1) day of service, for each instance of Downtime as that term is defined herein.

D. To receive Downtime Credit, you must request such credit by sending an email to customerservice@jwgecko.com within seven (7) days after the occurrence of Downtime. The aggregate maximum number of Downtime Credits to be issued for any and all instances of Downtime occurring in a single calendar month will not exceed seven (7). Downtime Credits will be applied upon issue of the first invoice following the request for Downtime Credit, unless the Downtime occurs in your final month of service. In such case, a refund for the dollar value of the Downtime Credit will be mailed to you within thirty (30) days of the expiration of this Agreement.

E. To the extent permitted by law, any Downtime Credit paid to you will be your sole and exclusive remedy for our failure to ensure the Downtime does not exceed ten Units of Downtime in any calendar month.

2. General Technical Support

A. A member of our customer support desk staff will be available to assist you with problems and questions regarding JWG services. We will supply telephone and/or email support to you regarding the hosting services during office hours on +61 2 8596 7600 or via email on customersupport@jwgecko.com.

B. Urgent Status and Service Updates will be available on http://www.twitter.com/jwgecko

3. Provision of Ad Hoc Services

A. Customer may utilise JGW services on an ad hoc basis. These service requests should be made via the customersupport@jwgecko.com email address.

B. The minimum charge for a single service item is two hours at the prevailing rate. Additional charges are accrued in 30 minute increments.

C. Estimates will be provided for tasks over 4 hours if requested.

D. The minimum charge for a quotation is 8 hours.

E. Ad hoc Service requests will be scheduled as resources become available. Requests are actioned based on a first come first served basis.

F. Urgent service requests may be scheduled on the same business day where resources are available. The cost for this service will be double the normal hourly rate.

G. Ad hoc and urgent service charges will be added to the monthly invoice and will due for payment in the normal course of business.

Appendix C: Web Hosting Acceptable Use Policy

This Acceptable Use Policy sets forth guidelines relating to the types of content that you may upload to the web servers under your agreement with JWGecko Pty Ltd for web hosting services. JWG may remove any materials that, in its sole discretion, may be illegal, may subject it to liability, or which may violate this Acceptable Use Policy. JWG will cooperate with legal authorities in the investigation of any suspected or alleged crime or civil wrong arising from any use of the Services. Your violation of this Acceptable Use Policy may result in the suspension or termination of either your access to the Services and/or your account or other actions as detailed in this Agreement.

1. Acceptable Use
Without limiting the preceding paragraph, the following constitute violations of this Acceptable Use Policy:

A. Using the Services to transmit or post any material that contains or contains links to nudity, pornography, adult content, sex, or extreme violence.

B. Using the Services to transmit or post any material that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations promulgated thereunder.

C. Using the Services to harm, or attempt to harm, minors in any way.

D. Using the Services to transmit or post any material that harasses, threatens or encourages bodily harm or destruction of property.

E. Using the Services to make fraudulent misrepresentations or offers including but not limited to offers relating to "pyramid schemes" and "Ponzi schemes."

F. Using the Services to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of JWG or another entity's computer software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data.

G. Using the Services to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorized copying and/or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software.

H. Using the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent.

I. Reselling the Services without the prior written authorisation of JWG.

J. Using the Services for any activity that adversely affects the ability of other people or systems to use the Services or the Internet. This includes but is not limited to "denial of service" (DoS) attacks against another network JWG or individual Customer. Interference with or disruption of other network users, network services or network equipment is prohibited.


2. Use of Shared Environment

A. You acknowledge that the web servers being used are being shared with other users. The maximum number of concurrent users of the Services is fifteen. If the number of concurrent users of the Services is thirty or more, JWG may restrict access to the Services. JWG may withdraw access to the Services if these conditions are not met.

B. Where the Services include document management, the Services are limited to 100,000 aggregate PUT, POST and GET calls to the document management system per month.

C. The maximum continuous connection times for any API updates by you are 6 minutes for the �Enrolment API� and 12 minutes for the �Portal/VET Campus API�.


3. Reporting of Violations of This Acceptable Use Policy
JWG requests that anyone who believes that there has been a violation of this Acceptable Use Policy to immediately send an email detailing such violation to customerservice@jwgecko.com.


4. Revisions to This Acceptable Use Policy
JWGecko Pty Ltd may revise, amend or modify this Acceptable Use Policy at any time and in any manner.

Appendix D: Hosting Services

1. Hosting Services

We will use reasonable endeavours to provide the hosting services which may include the following:

  • Server description
  • Operating system
  • Disk space
  • Monthly traffic allowance
  • Number of POP email accounts
  • Additional features (eg. support for SQL, ASP, PHP, etc).
  • Domain name hosting and management
  • Domain name purchasing

as set out in our proposal to you.

Appendix E: Optional Premium Services Agreement

1. This Premium Services Agreement provides Customer with priority support for urgent maintenance and support requests when your account is in good standing.

2. Premium Services are provided in office hours.

3. In return for a minimum monthly commitment of three hours to services expenditure JWG provide clients with preferential billing and service options for ad hoc service requests.

�3.1 Customer will have access to the JWG support portal to enter new service tasks.

� 3.1.1 Customer may telephone or email service tasks however the time to enter the tasks into the Support Portal will be allocated to the task.

�3.2 Customer will have a minimum charge of 30 minutes per task with additional activity charged in 15 minute increments.

�3.3 Estimates will be provided for tasks over four hours if requested.

�3.4 The minimum charge for a quotation is eight hours.

�3.5 Ad hoc service requests will be scheduled as resources become available. Requests are actioned based on a first come first served basis.

4. Urgent Support Requests

�4.1 Urgent support requests will be responded to within a business day.

4.2 Customer is allowed a maximum of one urgent support request per week with a maximum of three per calendar month.

4.3 Additional urgent service requests may be scheduled on the same business day where resources are available. The cost for this service will be double the normal hourly rate.

4.4 Each urgent request will be allocated a maximum of two hours.

Appendix F: Training Services

1. JWG includes a training allowance for all new product implementation project (see details below) and provides free support to Trained Users for most products. Support for LMS products requires a support agreement.

2. The current training policies may be found on this web page: http://jwgecko.com/product-training-and-support.cfm