Master Service Agreement
HOWTOMARK Pty Ltd. (software)
Terms and Conditions
Thank you for choosing to use Howtomark Pty. Ltd.’s Service, which includes the Tiikr native Mobile Applications.
Tiikr will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Tiikr.com website incorporated by reference herein, including but not limited to Tiikr Privacy and Security policies
- Definitions and Interpretation
The following are the standard terms and conditions under which HOWTOMARK Pty Ltd (“Tiikr”) supplies Services. These Terms and Conditions shall, unless otherwise expressly stated in writing, apply to the subject matter of any agreement in respect thereof.
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Agent” – refers to an any user with an account in Tiikr, has an expired Trial Account, and has not upgraded to a paid account of their own.
“Account Owner” – refers to an End User maintaining a paid account.
“Agreement” – means any agreements entered into between the Supplier and a Customer to which these standard Terms and Conditions apply;
“Content” – refers to any data, structured, unstructured or code based that is created and made available through the Service. Content excludes data created and entered by the Customer using the Service which is referred to as Customer Data.
“Customer” – means the individual, business, or other organisation with whom the Supplier contracts;
“Customer Data” – refers to any data entered by the Customer or their End Users through the Tiikr Aps in Forms and Workflows, including unstructured data such as images, documents, video, or audio files.
“Device” – refers to compatible computer, iOS (Apple) iPhones, and iPads, Android smartphones and tablets, among other devices as may become available.
“End User” – refers to any user with an account in Tiikr, whether they are an Account Owner or an Agent.
“Member” – refers to any End User who has been added through an Account Owner’s Management Panel.
“Supplier” – means any supplier of Products or Services to the Customer;
“Service” – Tiikr – Mobile Form and Workflow Platform provides a software-based online platform which assists in the creation, deployment, and use of digital forms and workflows on, but not limited to, the web, iOS (Apple) and Android smartphones and tablets, among other devices.
“Integrated Technologies” – Tiikr may from time to time, utilise third-party software and hardware technologies to extend the extended features and capabilities of Tiikr. Those third-party technologies are not covered by Tiikr’s terms and conditions, and the Customer will need to refer directly to those individual technology suppliers for any warranties or protections they may confer.
“Professional Services” – means any professional software development services supplied by the Supplier and may include additional terms and conditions in addition to those held within this SaaS Agreement.
1.2 Any reference to a day or days refers to business days, determined by the Queensland State Government, Australia.
1.3 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation
- Privacy & Security
Disclosure Tiikr’s Privacy and Security policies may be viewed at https://www.tiikr.com/privacy-policy. Tiikr reserves the right to modify its privacy and security policies in its reasonable discretion from time to time.
- License Grant & Restrictions
Tiikr hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own personal or internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Tiikr and its licensors
You may not access the Service if you are a direct competitor of Tiikr, except with Tiikr prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third-party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Account ownership cannot be shared or used transferred to external individuals or entities
You may use the Service only for your personal or internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful material, including material harmful to children or violative of third-party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorised access to the Service or its related systems or networks
- Your Responsibilities
You are responsible for all activity occurring under your End User accounts and shall abide by all applicable local, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Tiikr immediately of any unauthorised use of any password or account or any other known or suspected breach of security; (ii) report to Tiikr immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Tiikr user or provide false identity information to gain access to or use the Service
- Account Information and Data
Tiikr does not own any data, information or material that you submit to the Service in the course of using the Service (”Customer Data”). You, not Tiikr, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Tiikr shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Tiikr reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Tiikr shall have no obligation to maintain or forward any Customer Data
- Intellectual Property Ownership
Tiikr alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Tiikr Technology, the Content and the Service, Customer funded implementations and enhancements, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Tiikr Technology or the Intellectual Property Rights owned by Tiikr. The Tiikr name, the Tiikr logo, and the product names associated with the Service are trademarks of Tiikr or third-parties, and no right or license is granted to use them
- Charges and Payment of Fees
Charges are periodic. You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments for the service must be made electronically in advance of service via the online merchant facility. Payments are arranged through (eWay) payment system. All payment obligations are non-cancellable, and all amounts paid are non-refundable. You are responsible for paying for all End User accounts you have agreed to sponsor by adding as Members of your account. Tiikr reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third-party.
Implementation advisory, support, custom services and training fees are subject to separate negotiation and are paid upon agreed terms with Tiikr
- Billing and Renewal
Tiikr charges and collects at least monthly in advance for use of the Service. At its discretion Tiikr may by negotiation, separately issue an invoice for an extended period of service to select enterprise level customers. Fees for other services will be charged on an as-quoted basis. Tiikr fees are inclusive of all taxes, levies, or duties imposed by taxing authorities, and shall be responsible for payment of all such taxes, levies, or duties.
You agree to provide Tiikr with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address
- Non-Payment and Suspension
In addition to any other rights granted to Tiikr herein, Tiikr reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 3.0% above the Reserve Bank of Australia (RBA) base rate per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. If you or Tiikr initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the fees, charges and billing terms
Tiikr reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Tiikr has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent
- Termination upon Expiration
This Agreement commences on the Effective Date. The Initial Term shall be determined by you (“the customer”) at the point of registration or as otherwise mutually agreed upon between both parties (enterprise level customers only). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms based on the previous subscription period, at Tiikr then current fees. Either party may terminate this Agreement, by notifying the other party in writing at least 1 day prior to the date of the requested termination
- Termination for Cause
Any breach of your payment obligations or unauthorised use of the Tiikr Technology or Service will be deemed a material breach of this Agreement. Tiikr, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that Tiikr has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach. You will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
- Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Tiikr represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Tiikr help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct
- Mutual Indemnification
You shall indemnify and hold Tiikr, its licensors and each such party’s parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third-party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Tiikr (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defence and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Tiikr of all liability and such settlement does not affect TIIKR business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim
Tiikr shall indemnify and hold you and your parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, or a trademark of a third-party; (ii) a claim, which if true, would constitute a violation by Tiikr of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Tiikr; provided that you (a) promptly give written notice of the claim to Tiikr; (b) give Tiikr sole control of the defence and settlement of the claim (provided that Tiikr may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Tiikr all available information and assistance; and (d) have not compromised or settled such claim. Tiikr shall have no indemnification obligation, and you shall indemnify Tiikr pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s)
- Disclaimer of Warranties
HOWTOMARK PTY LTD (Tiikr) AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. HOWTOMARK PTY LTD (Tiikr) AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY HOWTOMARK PTY LTD (Tiikr) AND ITS LICENSORS.
- Internet Delays
HOWTOMARK PTY LTD (Tiikr) SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. HOWTOMARK PTY LTD (Tiikr) IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS
- Limitation of Liability
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
Subject to the agreement of the parties, if any dispute or difference shall arise between the Supplier and the Customer on any matter relating to or arising out of the Agreement, such a dispute shall be referred to the Institute of Arbitrators & Mediators Australia or, in the event that The Institute of Arbitrators & Mediators Australia ceases to exist or to provide mediation services, a professional dispute resolution organisation of equivalent standing.
- Proper Law and Jurisdiction
The Agreement shall be governed by and construed in accordance with the laws of Queensland, Australia. Any dispute concerning it, or its interpretation shall be adjudicated in that Jurisdiction.
If any provision of these Terms and Conditions is held to be invalid, illegal, or unenforceable, that provision shall be deemed omitted to the extent that it is invalid, illegal, or unenforceable and the remainder of the Terms and Conditions shall be interpreted in a manner as to accurately reflect the original intention of these Terms and Conditions.
The waiver of any right or failure of either of Tiikr or the Customer to exercise in any respect any right provided in these Terms and Conditions in any instance shall not be deemed to be a waiver of such right in the future or a waiver of any right under these Terms and Conditions.
The Customer’s use of any website or software that is not provided by Tiikr to access or download the Service shall be governed by the terms and conditions applicable to that website or software. Tiikr is not responsible for any consequences resulting from the use of such website or software, including but not limited to any damage to your property, including your Device, or the transfer of any computer virus or similar malicious code, except to the extent such consequences are caused by the Service.
Tiikr may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in TIIKR account information, or by written communication sent by Australia Post registered mail or courier to your address on record in TIIKR account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by registered mail or courier) or 12 hours after sending (if sent by email). You may give notice to Tiikr (such notice shall be deemed given when received by Tiikr) at any time by any of the following: Tiikr.com certified email message from your user account to [email protected] or a letter delivered by nationally recognized overnight delivery service or registered mail to TIIKR at: PO Box 2013, Kelvin Grove, Queensland, Australia 4059.
- Modification to Terms
HOWTOMARK Pty Ltd (Tiikr) reserves the right to modify the Terms and Conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service on the Tiikr website at https://www.tiikr.com/terms-and-conditions. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the account holder, posting on our Site, through your account notifications, or in the Service itself). If we modify these Terms during the Term, the modified version will be effective upon your next renewal of the Term, as applicable. In this case, if you object to the updated Terms, as your exclusive remedy, you may choose not to renew, including cancelling any Terms set to auto-renew.
We may change the terms from time to time. If the change is important, we will let you know. The changes will become effective upon your next renewal of the term.
- Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Tiikr but may be assigned without your consent by Tiikr to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Tiikr directly or indirectly owning or controlling 50% or more of you shall entitle Tiikr to terminate this Agreement for cause immediately upon written notice.
- Service Level Agreement (SLA)
If you hold a current paid Account Owner subscription on a monthly or an annual pay per user billing cycle or are paying Fees for the Service under other Enterprise Arrangements, the Service will be operational and available (Up Time) to you at least 99.9% of the time in any calendar month. If we do not meet the Up-Time availability, and if you meet your obligations under this Tiikr SLA, you will be eligible to receive the service credits detailed below. This Tiikr SLA states your sole and exclusive remedy for any failure by us to meet the Tiikr SLA.
Up-Time Service Credits
|Monthly Up-Time ||Days of Service (Service Credits) added to the Customers end of Service Term |
|Less than 99% but greater than or equal to 98% ||5 |
|Less than 98% but greater than or equal to 95% ||15 |
|Less than 95% ||Days equivalent to the month when the Service became unavailable. |
In order to receive any of the Service Credits described above, you must notify us within thirty days from the time you become eligible to receive a Service Credit. Failure to comply with this requirement will forfeit your right to receive a Service Credit.
Tiikr will not be liable, and terms of this SLA shall not apply where inadequate performance, or accessibility to the Service is caused by a condition (for example, natural disaster, act of war or terrorism, riot, labour condition, governmental action, and internet disturbance) that was beyond either party’s reasonable control (Force Majeure).
This SLA is for the provision and availability of the Service and is not covered by terms outlined in Sections above; 14. Disclaimer of Warranties, 15. Internet Delays, or 16. Limitation of Liability.