"Confidential Information" - includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Product but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
"Data" - means any data inputted by you or with your authority into the Product.
"Intellectual Property Right" - means any patent, trade mark, Product 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.
“Module” - means a part of the Product that performs a distinct function.
"Product" - means the ZingHR Product which is a fully Integrated Cloud based HR-Payroll Solution made available (as may be changed or updated from time to time by ZingHR) via the Website.
“Parties” - means ZingHR, Subscribers and users. "Subscriber" - means the person who registers to use the Product, and, where the context permits, includes any entity on whose behalf that person registers to use the Product.
"Subscription Fee" - means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee structure set out on the Website (which ZingHR may change from time to time on notice to You).
"User" - means any person or entity, other than the Subscriber, that uses the Product with the authorization of the Subscriber from time to time.
"Website" - means the Internet site at the domain www.zinghr.com.au or any other site operated by ZingHR.
"You" - means the Subscriber, and where the context permits, a User. "Your" has a corresponding meaning.
"ZingHR" - means Cnergyis Australia Pty Ltd trading as ZingHR and all current and future global subsidiaries of ZingHR including, without limitation, Cnergyis Infotech India Pvt Ltd.
2. USE OF SOFTWAREZingHR grants You the right to access and use the Product via the Website 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 acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Users, or any other applicable laws:
- The Subscriber determines who is a User and what level of user role access to the relevant organization and Modules that User has;
- The Subscriber is responsible for all Users’ use of the Product;
- The Subscriber controls each User’s level of access to the relevant organization and Modules 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 Module, the Subscriber shall decide what access or level of access to the relevant Data or Module that User shall have, if any.
1. Payment obligations:Your Subscription fee (plus GST) will be paid via a direct debit system on the 1st of each month and will commence from the date You add Your first organization to Your ZingHR account. All Subscription Fees are for the preceding period for one month of use and will be calculated on how many Users are on the Product as at the 1st of each Month. ZingHR will continue Debiting the Subscription fee until this Agreement is terminated in accordance with clause 8. All ZingHR Tax Receipts will be sent to You, or to a Billing Contact whose details are provided by You, by email detailing the number of Users charged. You are responsible for payment of all taxes and duties in addition to the Subscription fee.
2. Preferential pricing or discounts:You may from time to time be offered preferential pricing or discounts for the Subscriptions as a result of the number of organizations or Users that You have added to the Product or that have been added with Your authority. Eligibility for such preferential pricing or discounts is conditional upon Your acceptance of responsibility for payment of any Subscriptions in relation to all of Your Organizations. Without prejudice to any other rights that ZingHR may have under these Terms or at law, ZingHR reserves the right to Debit the full (non-discounted) Subscriptions due or suspend or terminate Your use of the Product in respect of any or all of Your Organizations in the event that the Subscription Fee defaults via the direct debit system and You are unable to make payment via other means.
3. General obligations:You must only use the Product and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by ZingHR or condition posted on the Website. You may use the Product and Website on behalf of others or in order to provide Modules 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 Modules are provided comply with and accept all terms of this Agreement that apply to you.
4. Access conditions:You must ensure that all usernames and passwords required to access the Product are kept secure and confidential. You must immediately notify ZingHR of any unauthorized use of your passwords or any other breach of security and ZingHR will reset your password and You must take all other actions that ZingHR reasonably deems necessary to maintain or enhance the security of ZingHR's computing systems and networks and Your access to the Products. As a condition of these Terms, when accessing and using the Products, You must:
- Not attempt to undermine the security or integrity of ZingHR's computing systems or networks.
- Not use, or misuse, the Product in any way which may impair the functionality of the Product or Website, or other systems used to deliver the Product or impair the ability of any other user to use the Product or Website;
- 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 Product are hosted;
- Not transmit, or input into the Product or Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or 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 Product or to operate the Website except as is strictly necessary to use either of them for normal operation.
5. Communication Conditions:As a condition of these Terms, if You use any communication tools available through the Website (such as HelpDesk), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Product, including (but not limited to): offers of goods or Products for sale, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Product or the Website, or 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).
You indemnify ZingHR against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to ZingHR, including (but not limited to) any costs relating to the recovery of any Subscriptions that are due but have not been paid by You.
4.CONFIDENTIALITY AND PRIVACY
Confidentiality: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
1. General:Title to, and all Intellectual Property Rights in the Product, the Website and any documentation relating to the Product remain the property of ZingHR.
2. Ownership of Data: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 ZingHR Subscription Fees when due. You grant ZingHR 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 Product and for any other purpose related to provision of Product to You.
3. Backup of Data:You must maintain copies of all Data inputted into the Product. ZingHR adheres to its 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. ZingHR expressly excludes liability for any loss of Data no matter how caused.
4. Third-party applications and your Data.
If You enable third-party applications for use in conjunction with the Product, You acknowledge that ZingHR 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 Products. ZingHR shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
6. WARRANTIES AND ACKNOWLEDGEMENTS
1. Authority:You warrant that where You have registered to use the Product 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 Product 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.
2. Acknowledgement:You acknowledge that:
- You are authorized to use the Product and the Website and to access the information and Data that You input into the Product, including any information or Data input into the Product by any person you have authorized to use the Product. You are also authorized to access the processed information and Data that is made available to You through Your use of the Website and the Products (whether that information and Data is Your own or that of anyone else).
- ZingHR 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 Product or access the Website 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 ZingHR 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 ZingHR against any claims or loss relating to:
- ZingHR's refusal to provide any person access to Your information or Data in accordance with these Terms,
- ZingHR’s making available information or Data to any person with Your authorisation.
- The provision of, access to, and use of, the Product is on an "as is” basis and at Your own risk.
- ZingHR does not warrant that the use of the Product will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Product, including, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Product. ZingHR is not in any way responsible for any such interference or prevention of Your access or use of the Products.
- ZingHR is not Your HR or Payroll Advisor and use of the Product does not constitute the receipt of HR and Payroll advice. If You have any HR or Payroll questions, please contact a HR or Payroll Specialist.
- It is Your sole responsibility to determine that the Product 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 Industrial Relation and Payroll laws and legislation. It is Your responsibility to check that storage of and access to your Data via the Software and the Website will comply with laws applicable to you (including any laws requiring you to retain records).
3. No warranties:
ZingHR gives no warranty about the Product. Without limiting the foregoing, ZingHR does not warrant that the Product 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.
4. Consumer guarantees:
You warrant and represent that You are acquiring the right to access and use the Product 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 Product, the Website or these Terms.
7. LIMITATION OF LIABILITY
To the maximum extent permitted by law, ZingHR 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 Product or Website. If You suffer loss or damage as a result of ZingHR's negligence or failure to comply with these Terms, any claim by You against ZingHR arising from ZingHR's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Subscriptions paid by You in the previous 12 months. If You are not satisfied with the Product, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
1. Trial policyWhen You first sign up for access to the Product You can evaluate the Product under the defined trial usage conditions, with no obligation to continue to use the Products. If You choose to continue using the Product thereafter, You will be billed from the day You first added Your billing details into the Product. If You choose not to continue using the Product, You may request to delete Your organization subscription by sending an email to firstname.lastname@example.org . All organization subscriptions that have not been upgraded to paid versions within 30 days will be automatically deleted from the server.
2. Prepaid SubscriptionsZingHR will not provide any refund for any remaining prepaid period for a prepaid Subscription.
3. No-fault termination:These Terms will continue for the period covered by the Subscription paid or payable under clause 3.1. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Subscription Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Subscription Fees up the end of the month in which You Terminated.
4. Breach:If You:
- breach any of these Terms (including, without limitation, by non-payment of any Subscription Fees) 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 (which includes (without limitation) any breach of clause 3.4 or any payment of Subscription Fees that are more than 30 days overdue); or
- You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of 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,
- Terminate this Agreement and Your use of the Product and the Website;
- Suspend for any definite or indefinite period of time, Your use of the Product and the Website;
- Suspend or terminate access to all or any Data.
- Take either of the actions in sub-clauses (d), (e) and (f) 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 Subscription 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 full by the relevant due date, ZingHR may: suspend or terminate Your use of the Product, the authority for all or any of Your Organizations to use the Product, or Your rights of access to all or any Data.
5. Accrued Rights: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 Products and the Website.
- Expiry or termination:
Clauses 3.1, 3.7, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms.
9. HELP DESK
1. Technical Problems:In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting ZingHR. If You still need technical help, please check the support provided online by ZingHR on the Website or failing that email us at email@example.com
2. Product availability:
Whilst ZingHR intends that the Product should be available 24 hours a day, seven days a week, it is possible that on occasions the Product or Website may be unavailable to permit maintenance or other development activity to take place. If for any reason ZingHR has to interrupt the Product for longer periods than ZingHR would normally expect, ZingHR will use reasonable endeavours to publish in advance details of such activity on the Website.