Your use of the Gem Software Solutions Pty Ltd (‘Gem Accounts’) software is governed by these Terms of Service and the terms of your Order. When we use the term "Agreement" in any of the Terms of Service or Order we are referring collectively to all of them. These Terms of Service state the general terms applicable to the user of all Gem Accounts software and services.
Any individual initiating a subscription service on behalf of a company or other legal entity, the individual represents that he or she has authority to bind that entity to the Agreement. This Agreement is the complete and exclusive agreement between you and Gem Software Solutions Pty Ltd (‘Gem Accounts’) regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
1. DEFINED TERMS
Some words used in the Agreement have particular meanings:
"Agreement" means this Terms of Service.
"Confidential Information" means all information that you transmit to or from, or store on, the Gem Accounts software.
"Order" means the online order that you submit to Gem Accounts via the http://www.gemccounts.com web site.
"Services" means the hosted cloud accounting service provided to you through the Gem Accounts software.
2. GEM ACCOUNTS OBLIGATIONS
Subject to these Terms of Service, Gem Accounts agrees to provide the Services and to follow reasonable security procedures.
You may request support by submitting a request at the http://help.gemaccounts.com web site. Gem Accounts will provide a reasonable response time for report requests submitted with a target response time of 24 hours on any day of the year.
3. YOUR OBLIGATIONS
You agree to do each of the following:
(i) comply with applicable law;
(ii) pay when due the fees for the Services;
(iii) use reasonable security precautions in light of your use of the Services;
(iv) cooperate with Gem Accounts's reasonable investigation of outages, bugs, security problems, and any suspected breach of the Agreement;
(v) keep your billing contact and other account information up to date;
(vi) immediately notify Gem Accounts of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the Terms of Service, Gem Accounts's reasonable determination shall control.
4. ACCESS TO SERVICES
You may access the Gem Accounts software services, providing that your account is current, by using http://www.gemaccounts.com web site which Gem Accounts may modify at any time. Your use of http://www.gemaccounts.com web site and any Gem Accounts native App is governed by the license agreement included with it.
5. SERVICE LEVEL AGREEMENT
Gem Accounts believes that your company data should always be protected against unscheduled outages. Our commitment to you is that every effort will be made to keep the Gem Accounts software online. We make comercially reasonable efforts to ensure that your data is secure and available.
6. TERM AND TERMINATION
The initial term for each Order begins on the date we make the Services available for your use and continues for one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You must provide notice of non-renewal by submitting complete account details and effective date of cancellation at http://help.gemaccounts.com.
Gem Accounts will charge you the fees stated in your Order for company services or additional user services. Gem Accounts will charge your credit card without invoice on or about the first day of each billing cycle as follows:
(i) for recurring monthly fees in advance;
(ii) Your billing cycle will be monthly, beginning on the date that Gem Accounts first makes the Services available to you. Gem Accounts may suspend all services if our charges to your credit card are rejected for any reason. Gem Accounts may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and Gem Accounts brings a legal action to collect, or engages a collection agency, you must also pay Gem Accounts's reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in the currency of your Order. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Gem Accounts with accurate factual information to help Gem Accounts determine if any tax is due with respect to the provision of the Services, and if Gem Accounts is required by law to collect taxes on the provision of the Services, you must pay Gem Accounts the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax.
8. FEE INCREASES OR DECREASES
We may increase or decrease fees at any time with sixty (60) days advance written notice, which will be effective at the second monthly renewal after notice is given.
We may suspend your Services without liability if:
(i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement;
(ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past;
(iii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement;
(iv) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent;
(v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers;
(vi) a payment for the Services is overdue, or
(vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Gem Accounts or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $100) upon reinstatement of the Services.
10. TERMINATION FOR BREACH
We may terminate the Agreement for breach on written notice if:
(i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete;
(ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer;
(iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice;
(iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of Gem Accounts in an orderly fashion;
(v) you use your Service in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice;
(vi) you violate the Terms of Service more than once, even if you cure each violation, or
(vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if:
(i) we materially fail to provide the Services as agreed and do not remedy that failure within thirty (30) days of your written notice describing the failure, or
(ii) we materially fail to meet any other obligation stated in the Terms of Service and do not remedy that failure within thirty (30) days of your written notice describing the failure.
11. ACCESS TO AND MANAGEMENT OF DATA
(i) Gem Accounts will provision your initial business environment, but you are otherwise responsible for managing your company data, managing authorized users and managing settings.
(ii) You will not have access to your data stored on the Gem Accounts software during a suspension or following termination.
(iii) We backup the Gem Accounts software on a periodic basis so that we are able to more quickly restore the systems in the event of a failure. These backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup. In addition, we may destroy all but the most recent backup. These backups may not be available to you or, if available, may not be useful to you outside of the Gem Accounts software.
(iv) If you are using the Trial Edition, which is free, and do not access your account for 1 month we both acknowledge that your account is inactive and may be permanently deleted by us with no ability to recover it.
(v) If you are using a Paid Edition and your account is suspended for non-payment for a period of 3 months we both agree that your account is inactive may be permanently deleted by us with no ability to recover it.
12. UNAUTHORIZED ACCESS TO YOUR DATA OR USE OF THE SERVICES
Gem Accounts is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Gem Accounts's failure to meet its security obligations stated in this Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. Gem Accounts has no obligation to provide security other than as stated in this Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen. The Services are provided AS IS. Any services we may perform for you at your request and without any additional charge are provided AS IS.
You represent and warrant that you are not a person to whom Gem Accounts is legally prohibited to provide the Services. You also represent and warrant that you will not provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in any country that is embargoed or highly restricted under your domiciled countries export regulations.
15. CONFIDENTIAL INFORMATION
Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
- to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these General Terms and Conditions.
- to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other's conduct may violate applicable criminal law as required by law; or
- in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
16. LIMITATION ON DAMAGES
Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of this Agreement, or results from our gross negligence or willful misconduct.
Gem Accounts (including our directors, employees, agents, subcontractors and affiliates) will not be liable to you for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by use of reasonable diligence, even if you have been advised or should be aware of the possibility of such damages. In no event shall Gem Accounts be liable to you for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, the maximum aggregate monetary liability of Gem Accounts and any of its directors, employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim.
If we, our affiliates, or any of our or their respective directors, employees, agents, or suppliers (the "Gem Accounts Indemnitees") are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, or violation of Section 15 (Export) of these Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the Gem Accounts Indemnitees as a result of the claim.
Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
18. WHO MAY USE THE SERVICE
You may resell the Services, but you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. Gem Accounts will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
19. CHANGES TO THE TERMS OF SERVICE
We may change our Terms of Service, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective when they are posted at http://www.gemaccounts.com/tos.
Your routine communications regarding the Services should be sent to the Gem Accounts software sales team using the communication form at http://gemaccounts.com/contact/ or the Customer Support team at http://help.gemaccounts.com/. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by first-class/registered post to:
Gem Software Solutions Pty Ltd
Attn: General Counsel
120 Collins St
Gem Accounts's routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, postal mail, or overnight courier, except that Gem Accounts may give notice of an amendment to the Agreement by posting the notice on the Gem Accounts web site. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day following the time delivered, except that notices of Agreement amendments are deemed delivered as of the first time that you log on to your Gem Accounts Service after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
21. NO HIGH RISK USE
You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or physical or environmental damage.
22. OWNERSHIP OF INTELLECTUAL PROPERTY
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. All intellectual property developed by Gem Accounts during the performance of the Services shall belong to Gem Accounts. This includes development of any features that are suggested by you and adopted by Gem Accounts.
You may not assign the Agreement without Gem Accounts's prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. Gem Accounts may use third party service providers to perform all or any part of the Services, but Gem Accounts remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Gem Accounts performed the Services itself.
24. FORCE MAJEURE
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
25. GOVERNING LAW, LAWSUITS
The Agreement is governed by the laws of the State of Victoria and the laws of Australia, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Melbourne Victoria and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Gem Accounts or any of its directors, employees, agents, subcontractors and affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
26. LEGAL DETAILS
These Terms of Service have been incorporated in your Order by reference from the http://www.gemaccounts.com web site. Any amended Terms of Service will become effective when it is posted here. Gem Accounts may accept or reject any Order you submit in its sole discretion. Gem Accounts's provisioning of the Services described in an Order shall be Gem Accounts's acceptance of the Order.
An Order may be amended by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Terms of Service. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word "including" in the Agreement shall be read to mean "including without limitation." All provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
Your use of the Services bind you to the terms of this Agreement and all updates posted here.
27. CONTENT PRIVACY
Your accounting data and other information sent to or received from the Gem Accounts software will include:
(i) the content of the communication ("content"), and
(ii) certain information that is created by the systems and networks that are used to create and transmit the content (the "content routing data"). The content includes things like customer and vendor data, transaction data and uploaded content including photos or images. The content routing data includes information such as server hostnames, IP addresses, timestamps, device identifiers, and device software versions, and is generally information that would not exist but for the fact that the communication was made via http://www.gemaccounts.com. The content is your Confidential Information and is subject to the restrictions on use and disclosure described in these Terms of Service. However, you agree that we may view and use the content and content routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products.
28. USAGE DATA AND FINANCIAL DATA
We collect and store information related to your use of the Services, such as device type and software version of the device, and information you store on the Service, such as transactional accounting data. You agree that we may use this information for our general business purposes and may disclose the information to third parties in aggregate summary and statistical form, provided that we do not include any information that could be used to identify you or your company's specific financial information.
As long as you have an active Gem Accounts software account you agree to accept service related emails from Gem Accounts, for example announcing service updates, scheduled maintenance or service outages. If you do not wish to receive these emails you can instruct us to terminate your Gem Accounts account by submitting a request at http://help.gemaccounts.com.
If you have the Free Edition you also agree to accept periodic emails that contain advertising or promotional information and materials. If you do not wish to receive these emails you can upgrade to a paid account or instruct us to terminate your Gem Accounts account by submitting a request at http://help.gemaccounts.com.
Published and Effective as of June 2, 2013 - TOS Version 1.04