Welcome to TopWise.com.au, an online field service management designed for air conditioning and refrigeration industries. The following are the terms of service are for use of the TopWise.com.au software described herein (the "Software") between TopWise.com.au and you (either an individual or a legal entity that you represent as an authorized employee or agent) ("You").
These Terms are binding on any use of the Software and apply to You from the time that TopWise.com.au provides You with access to the Software.
By registering to use the Software you acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Software. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Software.
"Agreement" means these Terms of Service.
“Add on” means an additional, activated, service that enhances TopWise.com.au.
"Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Software but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
"Data" refers to written and graphical content provided by or through the Software, including, without limitation, text, photographs, illustrations, and designs, whether provided by You, another customer of the Software, or any other third party.
“Free Threshold” is any account that is active over the free period.
"Intellectual Property Right" means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Invited User" means any person or entity, other than You, that uses the Software with Your authorisation from time to time.
"Software" means the online job management, bottles, tools and asset management (as may be changed or updated from time to time by TopWise.com.au) via TopWise.com.au.
"Subscriber" means the person who registers to use the Software, and, where the context permits, includes any entity on whose behalf that person registers to use the Software.
"Usage Fee" means a fee (calculated monthly) based on number of users
the “Free Month Threshold”, payable by You, in accordance with the fee schedule set out on the Website.
"You" means the Subscriber, and where the context permits, an Invited User. "Your" has a corresponding meaning.
"Website" means the Internet site at the domain www.TopWise.com.au or any other site operated by TopWise.com.au.
USE OF SOFTWARE
TopWise.com.au grants You the right to access and use the Software via the Website and the Mobile App or any other mobile device with the particular user roles available to You. 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 Invited Users, or any other applicable laws:
• the Subscriber has to hold be a legitimate company intending to use this software for its designed intention.
• the Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;
• the Subscriber is responsible for all Invited Users’ use of the Software;
• the Subscriber controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited 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 an Invited User or shall have that different level of access, as the case may be;
if there is any dispute between a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any.
Once Your use exceed the Free Month Threshold, a charge will be levied and an invoice will be issued. All invoices will include the Usage Fee for the preceding period (Month) of use. TopWise.com.au will continue invoicing You monthly until this Agreement is terminated in accordance with clause 8. All TopWise.com.au invoices will be sent to You, or to the contact provided in your Company Profile, by email. You must pay all amounts specified in any invoice by the due date.
Without prejudice to any other rights that TopWise.com.au may have under these Terms or at law, TopWise.com.au reserves the right to render invoices for the full Access Fees due or suspend or terminate Your use of the Service in respect of any or all of Your Organisations in the event that any invoices for those Access Fees are not paid in full by the due date for payment.
General obligations: You must only use the Software for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by TopWise.com.au or condition posted on the Website. You may use the Software on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.
You must ensure that all usernames and passwords required to access the Software are kept secure and confidential. You must immediately notify TopWise.com.au of any unauthorised use of Your passwords or any other breach of security and TopWise.com.au will reset Your password and You must take all other actions that TopWise.com.au reasonably deems necessary to maintain or enhance the security of TopWise.com.au computing systems and networks and Your access to the Software.
As a condition of these Terms, when accessing and using the Software, You must:
• the Subscriber has to use the Software for it's intended purpose. If a Subscriber found to be using the Software illegally we will suspend the account and you will be reported to the authorities.
• not attempt to undermine the security or integrity of TopWise.com.au computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
• not use, or misuse, the Software in any way which may impair the functionality of the Software or Website, or other systems used to deliver the Software or impair the ability of any other user to use the Software or Website;
• not attempt to gain unauthorised 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 Software is hosted;
• not transmit, or input into the 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 Software or to operate the Website.
Communication Conditions: As a condition of these Terms, if You use any communication tools available through the Website (such as any forum, chat room or message centre), 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 Software, including (but not limited to): offers of goods or services 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 Software 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).
When You make any communication on the Website, You represent that You are permitted to make such communication. TopWise.com.au is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Software. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website.
You indemnify TopWise.com.au against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to TopWise.com.au, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
TopWise.com.au has a strict anti-spam policy. Our SMS messaging services and email services must only be used in accordance with the SPAM Act of 2003. We do not allow sending unsolicited SMS or email messages. You must have consent to send SMS messages to each recipient before sending an SMS messages to them, in accordance with the SPAM Act. Any marketing messages must give the recipient the option to opt-out of further marketing messages.
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.
General: Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of TopWise.com.au (or its licensors).
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 TopWise.com.au Access Fee when due. You grant TopWise.com.au a license to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Software and for any other purpose related to provision of services to You.
Backup of Data: TopWise.com.au 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. TopWise.com.au expressly excludes liability for any loss of Data no matter how caused.
Third-party applications and your Data. If You enable third-party applications for use in conjunction with the Software, You acknowledge that TopWise.com.au 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 Software. TopWise.com.au shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
WARRANTIES AND ACKNOWLEDGEMENTS
Authority: You warrant that where You have registered to use the Software 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 Software You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You acknowledge that:
You are authorised to use the Software and to access the information and Data that You input into the Software, including any information or Data input into the Software by any person you have authorised to use the Software. You are also authorised to access the processed information and Data that is made available to You through Your use of the Software (whether that information and Data is Your own or that of anyone else).
TopWise.com.au 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 Software or access the Software 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 authorising any person who is given access to information or Data, and you agree that TopWise.com.au has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
You will indemnify TopWise.com.au against any claims or loss relating to:
TopWise.com.au refusal to provide any person access to Your information or Data in accordance with these Terms,
TopWise.com.au making available information or Data to any person with Your authorisation.
The provision of, access to, and use of, the Software is on an "as is " basis and at Your own risk.
TopWise.com.au does not warrant that the use of the Software will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Software. TopWise.com.au is not in any way responsible for any such interference or prevention of Your access or use of the Software.
It is Your sole responsibility to determine that the Software meet the needs of Your business and are suitable for the purposes for which they are used.
No warranties: TopWise.com.au gives no warranty about the Software. Without limiting the foregoing, TopWise.com.au does not warrant that the Software 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.
Consumer guarantees: You warrant and represent that You are acquiring the right to access and use the Software 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 Software, the Website or these Terms.
VIEW OF LIABILITY
To the maximum extent permitted by law, TopWise.com.au 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 Software.
If You suffer loss or damage as a result of TopWise.com.au negligence or failure to comply with these Terms, any claim by You against TopWise.com.au arising from TopWise.com.au negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.
If You are not satisfied with the Software, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
Trial policy When You first sign up for access to the Software You can evaluate the Services under the free job threshold, with no obligation to continue to use the Software. If You choose to continue using the Software thereafter, and you exceed the threshold, You will be billed for the jobs and any additional services that are in excess of the threshold.
No-fault termination: These Terms will continue while You continue to use the Software, provided You continue to pay the prescribed Access 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 Access Fees on a pro-rata basis for the then current period up to and including the month of termination of these Terms.
• breach any of these Terms (including, without limitation, by non-payment of any Access 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 Access 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,
TopWise.com.au may take any or all of the following actions, at its sole discretion:
• Terminate this Agreement and Your use of the Software and the Website;
• Suspend for any definite or indefinite period of time, Your use of the Software and the Website;
• Suspend or terminate access to all or any Data.
• For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to the Software is not made in full by the relevant due date, TopWise.com.au may: suspend or terminate Your use of the Software, the authority for all or any of Your Organisations to use the Software, or Your rights of access to all or any Data.
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
• remain liable for any accrued charges and amounts which become due for payment before or after termination; and
• immediately cease to use the Software.
THIRD PARTY PRODUCTS AND SERVICES
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting TopWise.com.au. If You still need technical help, please check the support provided online by TopWise.com.au on the Website or failing that contact us via topwise.freshdesk.com.
Whilst TopWise.com.au intends that the Software should be available 24 hours a day, seven days a week, it is possible that on occasions the Software or Website may be unavailable to permit maintenance or other development activity to take place.
If for any reason SreamWorx.cohas to interrupt the Software for longer periods than TopWise.com.au would normally expect, TopWise.com.au will use reasonable endeavors to publish in advance details of such activity on the Website.
Waiver: If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
No Assignment: You may not assign or transfer any rights to any other person without TopWise.com.au prior written consent.
Governing law and jurisdiction: Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement.
Severability: If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Notices: Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to TopWise.com.au must be sent to Topwise.freshdesk.com or to any other email address notified by email to You by TopWise.com.au. Notices to You will be sent to the email address which You provided when setting up Your access to the Software.
Rights of Third Parties: A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.