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Service Agreement / Terms and Conditions - FocusIMS

Service Agreement / Terms and Conditions

These terms (“Terms”) cover the use of products, and services offered by FocusBis of PO Box 4423, North Rocks, NSW 2151, Australia (“Company”). Company offers an integrated management system, namely, “FocusIMS” (“Software”) which is a subscription-based ISO certification[1] software covering a range of business processes including (but not limited to) project management, asset management, personnel management, supplier management, risk management and document management. You (hereinafter sometimes may be referred to as “Client” or “the Client”) accept these Terms by creating an account with FocusIMS/FocusBIS, through your use of the Software, or by continuing to use the Software after being notified of a change to these Terms

1. SERVICES AND SCOPE

Subscription Software: the Company shall provide you with access to and use of the Company’s cloud-based subscription software platform, FocusIMS, including ongoing maintenance and updates, based on the number of  active employees.

Consulting Services: Upon mutually agreed terms, Company may provide additional consulting services, including internal audits, legal and compliance review, business planning, and management review (i.e.: “Services”).

The specific features and functionalities of the Software, the scope of the Services will vary depending on your subscription.

If you desire to access or use additional services, features and/or increase any limitation on the number of named users, concurrent users, devices, location, transactions, or other elements (as applicable) you may opt to make such changes to your subscription using the relevant option provided within the Software application.

Subject to the provisions of these Terms, Company will make available to you and your designated affiliates and your end users on a non-exclusive and non-transferable basis the Software and Services in accordance with the applicable subscription tier and these Terms. Unless expressly provided otherwise, Company will be responsible for: (i) hosting, operating, maintaining, and supporting the Software; (ii) providing standard support at no additional charge; (iii) making available and implementing upgrades, enhancements, and error corrections when such upgrades, enhancements and error corrections are generally made available. The Software and your data shall only be hosted at the data centre(s) within the territorial limits of Australia. Company will furnish all equipment, computer programs, resources and services necessary for furnishing the Services hereunder and Software to you and your end users, except as expressly provided otherwise in these Terms.

You will be responsible for providing your own internet access to the Software. Company may specify reasonable procedures according to which you and end users may establish and obtain such access to and use of the features and functions of the Software platform through the internet, including, without limitation, provision of any access codes, passwords, web-sites, connectivity standards or protocols, or any other relevant procedures.

Except as otherwise provided in these Terms, you will not: (i) sell, rent, lease, sublicense or otherwise transfer or distribute the Software or connected documentation or any copies of the Software or such documentation; (ii) modify, translate, reverse engineer, decompile or disassemble the Software; (iii) create or prepare derivative works based upon the Software; (iv) create any copy of or “mirror” the Software; or (v) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Software or connected documentation.

You may elect from time-to-time to obtain from Company professional services relating to the Software that are in addition to the software-based services including, customized user training, specialized support, integration, enhancements, and development by subscribing to such additional services or subscription tiers. Each additional service or subscription tier will describe the fees, costs and expenses payable by you to Company and any assumptions or dependencies relating to such additional services or subscription tiers.

You may request a modification to the Software, services, or subscription tier by written request to the Company and the Company may effect such changes insofar as they are reasonable and feasible.

Such changes, if effected shall be subject to these Terms.

Company will use commercially reasonable efforts to cause the Software to continuously improve and evolve with changes in the industry as reasonably determined by Company, including with respect to accepted industry practices and processes and compliance requirements, at no additional fee or expense to you; provided, however, additional modules or services that Company charges customers generally for and which you order will be reasonably priced and chargeable.

2. PAYMENT

You will pay to Company the charges applicable to the relevant Services or subscription tiers of the Software.

All fees are payable in advance in Australian Dollars (AUD).

You may pay the Company directly via bank transfer or credit/debit card

If you opt to pay via credit or debit card, your payment shall be processed through Company’s chosen payment provider, Pay Advantage® (“Payment Provider”).

Client acknowledges and agrees to the Pay Advantage® terms and conditions for direct debit and credit card payments, as outlined in Appendix A of these Terms.

All fees for subscriptions and consulting services are due in advance according to the chosen billing period (monthly, quarterly, or annually as applicable) i.e.: to be paid upfront for the relevant subscription period before access is granted.

Company reserves the right to suspend or terminate your access to the Software and/or Services if any payment is overdue. You remain liable for all outstanding fees and will be subject to a late payment fee of 5% per month in addition to any debit failure/dishonour fee that may be levied by the Payment Provider.

You may request a subscription hold by notifying the Company in writing at least seven (7) days prior to the renewal date.

You may place your account on hold for a maximum of 3 months per calendar year. During the hold period, a hold fee of 50% of the regular subscription fee will be charged in order to cover data maintenance and reminder emails.

You acknowledge that in the event chargebacks may occur, you may remain liable for disputed fees even if the chargeback is successful. You acknowledge that Company may incur additional costs associated with fraudulent chargebacks. In the event of a chargeback, you affirm continued liability for the disputed amount and recognize the potential initiation of collection proceedings. The Company commits to presenting verifiable evidence of service delivery to the payment provider and shall exhaust all legally available avenues to reclaim the contested amount. Any attempt at fraudulent chargebacks may result in legal consequences an shall be vehemently contested in order to safeguard the Company’s interests.

In the event your account payments remain outstanding for 30 days, Company will initiate an escalation process, including: written reminder notices, telephone calls to you, and legal action.

All fees specified in these Terms are exclusive of GST (Goods and Services Tax), which will be added at the prevailing rate unless you provide a valid GST exemption certificate.

3.TERM, TERMINATION AND CANCELLATION OF SERVICES

These terms shall take effect by creating an account, through your use of the Software and/or Services, and/or by continuing to use the Software after being notified of a change to these Terms. These Terms shall continue to be in force until terminated by you in writing.

In the event you fail to pay any charges by the specified due date, and fail to cure such failure within thirty (30) days of receipt of written notice from Company of its intention to terminate, then Company may, by written notice to you, terminate these Terms in its entirety. In addition, Company may, by written notice to you, terminate these Terms in its entirety if you (a) materially breach (i) a provision of these Terms relating to Company’s Confidential Information or Intellectual Property in connection with these Terms, or (ii) a provision of these Terms relating to restrictions on the use of the Software by third parties, and (b) fail to cure, to the extent reasonably practical, or mitigate such breach and implement safeguards to prevent similar future breaches in all other cases, within thirty (30) days of receipt of written notice from Company of its intention to terminate. Company acknowledges and agrees that this section sets forth Company’ sole and exclusive right to terminate.

You may cancel any services or terminate these Terms at any time by providing Company with written notice at least seven (7) days prior to the next renewal date, failing which you shall be charged 50% of the fee for the following subscription period.

Upon cancellation, your access to the Software and Consulting Services will be terminated.

4. INTELLECTUAL PROPERTY

Company retains all ownership rights, title, and interest in the Software and any related intellectual property, including its underlying code, documentation, and design. You are granted a limited, non-exclusive, non-transferable license to use the Software for its internal business purposes only in accordance with these Terms. Such rights and license include the right for you, your affiliates, and all of your authorised employees, representatives, contractors, customers, and members, as applicable, to use and access the Software in connection with their relationship to you.

You shall not reverse engineer, decompile, or disassemble the Software. Any modifications or improvements made by you to the Software will be the sole property of the Company.

5. CONFIDENTIALITY AND DATA PRIVACY

General: During the continuity of these Terms and thereafter, each Party will treat as confidential all Confidential Information of the other Party, will not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, will implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of the other Party’s Confidential Information and will not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such Party under these Terms, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each of the Parties will use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under these Terms, but in no event less than reasonable care. Except as expressly authorized in these Terms, neither Party will copy Confidential Information of the other Party without the Disclosing Party’s prior written consent. “Confidential Information” means any and all technical, business, client or proprietary information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), directly or indirectly, including, but not limited to, information regarding the Disclosing Party’s business strategies and practices, methodologies, trade secrets, know-how, pricing, technology, software, product plans, services, relationships with any third party, client lists and information regarding the Disclosing Party’s employees, clients, vendors, consultants and affiliates regardless of whether such information is marked “confidential” or some other proprietary designation, but which by its nature is information that would reasonably be considered to be confidential information of the Disclosing Party. In the case of Company, Confidential Information includes the Software source code. In the case of you, Confidential Information includes all Client Data. “Client Data” means any proprietary or confidential content, information, data and materials of any kind, including end user data and cardholder data, belonging to you and which may be provided to or processed by Company in connection with its provision of the services hereunder.

Exclusions: Except as otherwise provided below, Confidential Information will not include, or will cease to include, as applicable, Confidential Information that the Receiving Party can document and prove: (a) is or becomes generally available to the public through no improper action or inaction by the Receiving Party; (b) was known by the Receiving Party or in the Receiving Party’s possession prior to receipt of the Disclosing Party’s Confidential Information as shown by the Receiving Party’s business records kept in the ordinary course; (c) is disclosed with the prior written approval of the Disclosing Party; (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information and provided that the Receiving Party can demonstrate such independent development by documented evidence prepared contemporaneously with such independent development; or (e) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of these Terms by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights. The exclusions in this section will not apply with respect to End User Data, Cardholder Data, or any other personal or private data that requires protection under applicable laws or regulations.

Court Order: The Receiving Party may disclose Confidential Information of the other Party only pursuant to the order or requirement of a court, administrative agency, or other governmental body and only provided that the Receiving Party provides prompt, advance written notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. In the event such a protective order is not obtained by the Disclosing Party, the Receiving Party will disclose only that portion of the Confidential Information which its legal counsel advises that it is legally required to disclose. Confidential Information so disclosed will continue to be deemed Confidential Information as between the Parties hereto.

Remedies: If either Party breaches any of its obligations with respect to confidentiality or unauthorized use or disclosure of Confidential Information hereunder, the other Party is entitled to seek equitable and injunctive relief in addition to all other remedies that may be available to protect its interest.

Return: Upon the Disclosing Party’s written request, the Receiving Party will promptly return or destroy, at the Disclosing Party’s option, all tangible copies of the Disclosing Party’s Confidential Information.

Data Security: The Company will store and process Client Data within the territorial limits of Australia, unless otherwise agreed upon in writing in compliance with applicable Australian privacy laws and regulations. Company will comply with all applicable Australian privacy laws and regulations in its handling of Client data. Company will protect the security and integrity of the all Client Data that is collected, accessed, stored or received by Company in connection with the Software or the performance of the services, including, without limitation all end user data and cardholder data.

6. OWNERSHIP

Ownership Rights: Except for the license and other rights granted to you under these Terms, Company retains all right, title and interest in and to the Software, connected documentation and Company’s Confidential Information, including all Intellectual Property Rights therein. Further, you acknowledge and agree that the Software, derivatives thereof, ideas, methods of operation, modifications, changes, enhancements, conversions, upgrades, additions, sub-systems and modules included in the Software are proprietary material which contain valuable trade secrets of Company.

Ownership of Client Data: Company acknowledges and agrees that you exclusively own all right, title, and interest in and to your Confidential Information and your data, including all Intellectual Property Rights therein, irrespective of whether such Client Data is stored or processed through or in the Software. If Company is deemed to have any ownership interest in your Confidential Information or your data, including any and all derivative works, enhancements, or other modifications thereto, then Company will assign, and hereby does assign, irrevocably and royalty-free, all of such ownership interest or other rights exclusively to you and Company will, at your reasonable request and expense, complete, execute, and deliver any and all documents necessary to effect or perfect such assignments.

Return of Client Data: Upon termination of these Terms or during the active subscription period, Company will at your request return your Confidential Information and your data to you. Additional charges may apply for data retrieval after cancellation, based on data volume and complexity (quoted upon request). After the Termination hereof Company may delete all Client Data from Company servers primarily dedicated to you and verify such deletion in writing to you.

7. CODE OF CONDUCT

You are accountable for your conduct and content when using the Software or Services stipulated hereunder, or services that are ancillary or incidental thereto.

By agreeing to these Terms, you’re agreeing that, when using the Services, you will follow these rules:

Don’t do anything illegal, or try to generate or share content that is illegal.

Don’t engage in any activity that exploits, harms, or threatens to harm children.

Don’t engage in activity that is fraudulent, false or misleading.

Don’t circumvent any restrictions on access to, usage, or availability of the Software or services (e.g., attempting to “jailbreak” an AI system or impermissible scraping).

Don’t violate or infringe upon the rights of others

Don’t engage in activity that violates the privacy of others.

Don’t help others break these rules.

8. INDEMNIFICATION AND LIMITATION OF LIABILITY

Indemnity: You agree to indemnify, defend, and hold harmless Company, its officers, directors, employees, agents, and contractors from and against any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with:

Your breach of these Terms.

Your use of the Software or Consulting Services in a manner not authorized by these Terms.

Your violation of any applicable laws or regulations.

Any claim from a third party alleging infringement of intellectual property rights due to Your use of the Software or Services.

Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL DAMAGE, OR LOSS OF DATA, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY, EVEN IF FOCUSIMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY UNDER THESE TERMS EXCEED THE AMOUNT OF FEES PAID BY CLIENT FOR THE SOFTWARE AND CONSULTING SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Disclaimer of Warranties: THE SOFTWARE AND CONSULTING SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

EXCUSABLE DELAY.

Neither Party will be liable to the other for any loss, damage, delay or breach in performing any obligations hereunder to the extent resulting from any cause or event beyond the control of the Party being released hereby, including acts of God, telecommunication or power suppliers, and acts or omissions of civil or military authorities, but only to the extent such Party being released did not contribute to and could not have reasonably prevented or mitigated the impact thereof. The Party seeking to be released under this Section will as soon as practicable notify the other Party of the force majeure event.

We strive to keep the Software and Services up and running; however, all online services suffer occasional disruptions and outages, and FocusBIS is not liable for any disruption or loss you may suffer as a result. In the event of an outage, you may not be able to retrieve your data that you’ve stored.

GOVERNING LAW & DISPUTE RESOLUTION

These Terms shall be governed by and construed in accordance with the applicable laws of Australia.

Any dispute resolution out of or in connection with these Terms shall be referred to and finally determined by binding arbitration in accordance with the Australian Commercial Arbitration Rules.

The arbitration shall be conducted in Sydney, New South Wales, Australia.

The arbitral award shall be final and binding on the parties and may be enforced in any court of competent jurisdiction.

GENERAL PROVISIONS

Company does not offer specific uptime guarantees for the Software. However, Company utilizes a reliable server provider and will make commercially reasonable efforts to maintain high uptime.

You shall opt-in to use any third-party integrations offered by the Company/Software. Company shall be responsible for ensuring such integrations comply with relevant laws and regulations.

These Terms constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations or agreements, whether oral or written.

The waiver or failure of either Party to exercise in any respect any right or remedy provided herein will not be deemed a waiver of any further right or remedy hereunder.

If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in full force and effect.

These Terms will be binding on the Parties hereto and their respective successors and assigns. Neither Party may, or will have the power to, assign these Terms without the prior written consent of the other Party. Any assignment by operation of law, by order of any court, or pursuant to any plan of merger, consolidation or liquidation, and any change of control of a Party will be deemed an assignment for which prior consent is required, and any assignment made without any such consent will be void and of no effect.

Company will not subcontract any of its obligations under these Terms without the prior written consent of Client, which consent you may grant or withhold in your sole discretion. Company will be fully responsible for the performance, acts, and omissions of any permitted subcontractor. Company must include in its subcontracts flow-down provisions as necessary to fulfil its obligations under these Terms, including those pertaining to confidentiality, security and intellectual property.

Company’s personnel, whether employees, independent contractors or subcontractors, performing Services will at all times be under Company’s exclusive direction and control and will not be deemed employees of Client. Company will be responsible for payment of its independent contractors, subcontractors and its employees’ entire compensation and benefits, as applicable, including employment taxes, worker’s compensation, unemployment compensation and any similar taxes associated with employment or their relationship. Client and Company agree that neither Party will be an employee, agent, partner or joint venturer of or with the other. Company, in furnishing the Software and services, is acting as Client’s independent contractor. Company will be fully responsible for the acts and omissions of its employees, contractors, subcontractors, and other delegates as if they were performed by Company. Neither Party has any authority to represent, contract, or commit the other in any matters, except as expressly authorized in these Terms.

Method of Notice: All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered or tendered via email.

In the event of delivery by email, notice shall be deemed to have been given on the date the email is sent, provided such email is sent before 5:00 p.m. AEDT. If an email is sent after 5:00 p.m AEDT, notice shall be deemed to have been given on the next business day.

APPENDIX A

Pay Advantage – Terms and Conditions for Direct Debit and Credit Card Payments

You understand and acknowledge that the following binding stipulations generally reflect the current payment Terms and Conditions for Direct Debit and Credit Card Payments of the Payment Provider aforementioned, and are intended to complement the said Terms and Conditions. The Payment Provider may update its Terms and Conditions periodically, in which case you shall be provided reasonable notice by the Company and/or the Payment Provider. In the event of any discrepancy between the Payment Provider’s current Terms and Conditions at any given time, and the Terms and Conditions stipulated under this Appendix A, the Payment Provider’s current Terms and Conditions at such time shall be read in conjunction herewith and applied in a manner that safeguards the interest of the parties to these Terms.

In terms of the Direct Debit Request made between the Payment Provider and signed by you, you acknowledge that the Payment Provider undertakes to periodically debit your nominated account for any amount deemed payable.

Any drawing due on a non-business day will be debited to your account on the next business day following the scheduled drawing date.

In the event you wish to make changes to the drawing arrangements, such changes shall be clearly outlined in writing and sent promptly to the Company, subject to the applicable clauses contained in these Terms. Changes may include deferring a drawing, altering the schedule, stopping an individual debit, suspending the Direct Debit Request or cancelling the Direct Debit Request completely. 

You shall direct all inquiries regarding payment to the Company in the first instance, and subsequently to the Payment Provider, rather than to your financial institution. You shall make such inquiry at least seven (7) working days prior to the next scheduled drawing date.

In the event you reasonably and legitimately believe that a drawing has been initiated incorrectly, you shall address the matter in writing directly to the Company in the first instance and subsequently to the Payment Provider. You shall be refunded the due amount in the event the reason for the drawing cannot be substantiated by the Company and the Payment Provider.

You shall ensure that the nominated account can accept direct debits and that on the drawing date there is sufficient cleared funds in the said nominated account.

You shall advise the Company and Payment Provider in the event the nominated account is transferred or closed.

You acknowledge and understand that in the event the drawing is returned or dishonoured, your account will be scheduled to be re-drawn with the dishonoured amount on your next scheduled payment in addition to a dishonour fee of AUD 3.30 which will be drawn together with any other due payments. You further acknowledge and understand that any transaction fees payable by the Payment Provider in respect of the above will be added to this debit.

In the event more than two (2) consecutive payments are dishonoured, these Terms may be cancelled at the discretion of the Company and the remaining scheduled amount along with all penalty charges shall be due and payable by you.


[1] ISO9001 Quality Management System, ISO45001 Safety Management Systems, ISO14001 Environmental Management Systems