Terms and Conditions
These terms and conditions ("Terms") shall apply to all agreements and legal relationships between Tamigo Australia, Suite1401, Level 14 “The Rocket”, 203 Robina Town Centre Drive, Robina, QLD 4226, ACN 165 201 954 ("Tamigo") and the customer, including the customer’s access to and use of the online, web-based software as a service application named “Tamigo” ("Application") made available to the customer by Tamigo and all related services.
In case of discrepancy between the Terms and individually agreed terms and conditions between Tamigo and the customer, the individually agreed terms and conditions shall prevail, provided that these are agreed in writing.
On payment of a monthly fee (“Subscription fee”), Tamigo grants the customer a limited, non-sublicensable, non-exclusive, non-transferable license to access and use the Application via the Internet ("Subscription"). The Subscription may only be used in relation to the customer's employees, and only in those of the customer’s departments, for which the monthly fee has been paid.
3. TERM AND TERMINATION
A Subscription is concluded and valid for 12 months ("Subscription Period"). The customer may terminate the Subscription with one month's notice to the expiry of a Subscription Period. If the Subscription is not terminated, a new Subscription Period begins automatically. Tamigo may terminate the subscription with six months' notice to the end of a Subscription Period.
4. TERMINATION OF THE SUBSCRIPTION
Upon termination of the Subscription, all customer data will be deleted 3 months after Subscription termination. During this period, the customer may pay Tamigo for data extraction at an hourly rate. The customer can choose to have Tamigo store data beyond the 3 months after Subscription termination for a monthly fee of 10 percent of the monthly Subscription fee. A written request for continued storage must be received by Tamigo within 2 months after Subscription termination. Tamigo reserves the right to discontinue aforesaid storage service by giving 2 months’ notice to the customer.
The customer shall pay the Subscription fee 3 months in advance (“Payment Period”) throughout the Subscription Period. Payments must be made no later than the 5th in the first month of the payment Period. Invoices are sent to the customer via e–mail.
At the beginning of a new Subscription Period, the monthly Subscription fee is adjusted in accordance with the Consumer price index (CPI) rates published by the Australian Bureau of Statistics (ABS) for the quarter preceding the commencement of the new Subscription Period. Any other regulation of the Subscription fee must be notified by Tamigo with 3 months’ notice to the end of the Subscription Period.
For subscriptions of the types “Starter”, “Regular” or “Professional” the Subscription includes either the number of SMS text messages agreed in the order confirmation or the equivalent of 5 text messages per employee per month to mobile numbers in Australia. Text messages beyond this number will be made available to the customer upon Tamigo’s acceptance at the general rate per text message available to Tamigo. Tamigo may at any time regulate text message prices with one month's notice.
6. RIGHT OF CANCELLATION
The customer may cancel the Subscription agreement within three months of the customer's first Subscription Period. The payment for the first three months of the Subscription will not be refunded upon exercise of the right of cancellation.
Tamigo provides support to the customer’s super users via telephone or e–mail in English. Telephone support is available between 9 am and 5 pm (Eastern Standard Time - AEST) on weekdays. Tamigo strives to reply to e–mails within 24 hours on working days. The customer appoints super users, who will be responsible for supporting the customers’ other users. Support regarding wage simulation, wage costs and productivity requires that the customer's user requesting such support has completed a Tamigo workshop or has participated in Tamigo’s training concerning the financials section of the Application.
8. COURSES, WORKSHOPS AND DEVELOPMENT
Courses, workshops, development, consultancy or similar are not included in the Subscription. The customer may buy courses, workshops, development and consulting services to prices applicable.
Tamigo reserves the right, without notice, to limit or restrict access to the Application or the scope of the services included in the Subscription to the extent, Tamigo considers such a limitation necessary for the operation and/or safety issues. In case of such a restriction or limitation, Tamigo will strive to give a reasonable notice.
10. DATA PROCESSING
In relation to Customer Data, Tamigo is the data processor and the customer is the data responsible. Tamigo acts solely on the instructions of the customer. “Customer Data” means all data or information submitted by the customer to the Application. Tamigo will take appropriate technical and organizational security measures to protect data against accidental or unlawful destruction, loss or alteration and against the unauthorized disclosure, misuse or any other breach of the Privacy Act including the Privacy Principles. Tamigo may use "cloud computing" third party service providers, and those providers may be either in or outside Australia, and the data housed, hosted and processed by such providers may reside in or outside of Australia. Unless explicitly otherwise informed by Tamigo the hosting environments used outside Australia are located in the EU. Tamigo will, at the customer's request, provide the customer with sufficient information to enable the customer to ensure that sufficient technical and organizational security measures are taken.
11. CUSTOMER INFORMATION
At the customer's signature of a Subscription, Tamigo will record relevant customer information, including name, business number, address, contact telephone number and email in the Tamigo customer database. Tamigo’s processing of such data will be in accordance with applicable rules. The customer is obligated to notify Tamigo of changes to the above mentioned information.
The customer shall keep the information on individually agreed terms and prices confidential.
Tamigo shall keep customer data and information confidential with the exceptions set out in the Terms. Tamigo shall also keep all not generally known information about the client confidential. This obligation applies to Tamigo employees, subcontractors and external consultants who assist Tamigo in delivering the Subscription services.
The confidentiality obligation for both the customer and Tamigo also applies after termination of the Subscription. Regardless of Tamigo’s obligation to keep the customer’s information confidential, Tamigo has the right to use the customer as a reference, to use the customer's logo on the Tamigo website and in marketing materials, and to issue press release on the customer's purchase of the Subscription.
Tamigo does not transfer any intellectual property rights to the customer in connection with the Subscription. The customer does not acquire, wholly or partly, any ownership or other irrevocable rights to the Application or to other services rendered by Tamigo in connection with the Subscription.
14. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
The customer shall extract the data which the customer will preserve after termination of the Subscription. The customer's use of the Application and Tamigo's services is entirely at the customer's own risk. Tamigo shall assume no liability for unauthorized surveillance or capture of or access to the customer's traffic or data. Tamigo waives any and all liability for any damage and loss, which the customer may suffer in connection with the customer's use of the Application and Tamigo’s services in general, including the use of or inability to use the Application or Tamigo’s other services, regardless of the reason, unless Tamigo has acted intentionally or gross negligently.
Notwithstanding the foregoing Tamigo waives responsibility of losses, consequential damages, loss of data, data recovery and other indirect losses. Should Tamigo be held liable for damages, the liability may not exceed a total amount (no matter if the liability and/or damages relate to one or several events) equal to the fee paid by the customer related to the Subscription Period at the time of the liability event(s).
15. CUSTOMER’S BREACH
If the customer fails to pay the Subscription fee in due time, Tamigo has the right to close the customer's access to the Application and any other services until payment is received. This amount will be added an interest rate of 1.5% per started month effective and payable from the due date. In other cases of breach (including non-compliance with applicable legislation in connection with the use of the Application) Tamigo has the right to close the customer access to the Application.
16. DISPUTES AND APPLICABLE LAW
These Terms are governed by the federal and state laws in force in Queensland from time to time. Tamigo and the customer are obligated to seek any disputes resolved through negotiation, and any dispute that Tamigo and the customer cannot resolve amicably shall be exclusively brought before the Queensland Courts with Southport District Court or Southport Magistrates Court as the court of first instance.
17. TERMINATION IN CASE OF BREACH
Tamigo is entitled to immediately terminate the customer’s Subscription in the event of the customer's material breach, including material breach of the Terms.
Tamigo is entitled to freely transfer the agreement with the customer, Subscription, Application, operation of the Application and/or any associated additional services to an affiliate or a third party, without notice, if the transfer does not change the terms and conditions of the customer. The customer may not transfer the Subscription or other rights and obligations without Tamigo’s written approval.