Terms & Conditions
Terms & Conditions of Sale
In accepting this Contract by electronically indicating acceptance, manual execution or otherwise, or by using or accessing the Services through any means, Customer acknowledges and agrees that:
(i) it has reviewed and understands this Contract;
(ii) it agrees to be legally bound by the terms and conditions of this Contract; and
(iii) its use of the Services and any related products or services will be governed by this Contract.
If you do not have the authority to agree on behalf of Customer, or if Customer does not agree, or is not willing to be bound by, the terms and conditions of this Contract, you must not indicate agreement to these terms and conditions and you may not access or use the Services. The effective date for this Contract is the date Customer formally accepts the Contract.
1. Definitions and Interpretation
In these Terms and Conditions of Sale the following terms have the following meanings unless the context requires otherwise:
- Customer means a person or entity from whom Jonas Leisure accepts an order for Licenses, Services or Hardware Equipment
- Jonas Leisure means any of the related legal entities controlled under the Jonas Leisure trading name.
- Contract means the agreement constituted by Jonas Leisure acceptance of the Customer order and includes these Conditions of Sale
- Software Licensing Agreement means the separate terms and conditions supplied by Jonas Leisure in sales involving enterprise software licensing arrangements.
- Services means all goods of any kind supplied by Jonas Leisure at the Customers request
- Installation means installation of any Services for, or at the request of the Customer.
- Customer Portal means the online ordering system Jonas Leisure operates
- Purchase Order Number means the unique Customer generated and supplied reference that represents a commitment to purchase and pay for the Services.
- Documentation means the manuals, user guides or instruction provided by Jonas Leisure with respect to the use and maintenance of the provided Services.
- Software encompasses Software Products and shall include any part thereof the Software or extract therefrom.
- Software License means a non-exclusive and non-transferable licence to use the Software Products
- Go Live means the date the Customer begins to utilise the Services in their business.
- Data means any information stored within the products supplied by Jonas Leisure.
- Hosted Services means any electronic or computer environment that Jonas Leisure maintains on behalf of the Customer.
- Scope of Works are the agreed and definitive specifications and configuration that will govern what Services are delivered and supplied to the Customer
These terms and conditions of sale come into effect when a quotation issued by Jonas Leisure is accepted and shall apply to all contracts for the sale, installation, commissioning, delivery, maintenance or repair of the Services by Jonas Leisure unless expressly approved in writing by Jonas Leisure. The Contract will remain in place for the period that the Customer utilises the Services, clauses 8 and 9 will survive this Contract in perpetuity.
It is expressly acknowledged and agreed that any term or condition, whether contained in Purchase Orders or otherwise issued by the Customer, which:
(i) conflicts with or purports to vary or modify these terms and conditions, or
(ii) are issued before or after the date of these terms and conditions of sale, shall have no effect whatsoever and will not be binding on Jonas Leisure.
The only document that has precedence over these terms and conditions is a signed Jonas Leisure Software Licensing Agreement (Terms & Conditions of Supply).
3. Orders and Performance
(a) Jonas Leisure may accept or refuse any order for Service at its absolute discretion and may make its acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer.
(b) Orders must be in writing and accompanied by a valid Purchase Order Number and either signed electronically via Jonas Leisure’s Customer Portal, email, mailed, couriered or faxed to the Company prior to commencement of any works.
(c) The contracted term or any special conditions on an order are detailed on the accepted quote. Acceptance of the quote is acceptance of these special conditions.
(d) Jonas Leisure will use its best efforts to fill all accepted orders in accordance with requested or estimated dates specified by the Customer.
(e) If Jonas Leisure’s ability to fulfil an accepted order is affected by circumstances beyond its control, Jonas Leisure may:
(i) extend the date for installation
(ii) with the Customer’s approval, alter the specification for the Services to allow the substitution of equivalent Services, or cancel the order without any liability for breach
(f) In no event will Jonas Leisure be liable for any claim for loss, expense, cost or damage resulting from any failure to deliver beyond its control.
(g) Services ordered on a supply only basis by the Customer will be consigned by Jonas Leisure to the Customer’s premises or any other premises as directed.
(h) Customer shall reimburse Supplier for all other travel expenses reasonably incurred to these terms and conditions.
(a) Unless otherwise agreed in writing by Jonas Leisure, all prices charged for Services will be according to a current quotation remaining in effect for the period specified on the quotation.
(a) They will otherwise be determined by Jonas Leisure by reference to its standard prices in effect at the date of Services being rendered. The Company will endeavour to the best of its ability to notify the Customer of price changes but bears no liability in this regard.
(b) Unless expressly stated, all prices are exclusive of GST. The Customer will be liable for all applicable taxes to the extent that they are not already included in the price.
(b) The prices contained in quotations are based on labour, materials and services being provided during regular working hours on regular working days. The Customer will bear the additional cost incurred by the Company carrying out the installation or servicing outside the regular working hours or regular working days at the Customers request.
(c) No cash retentions are allowable.
(d) Invoices will be generated on a regular basis as the supply of Services progresses.
(a) Unless otherwise agreed in writing, terms of payment by the Customer will be net cash in exchange for the Services; for companies fulfilling Jonas Leisure’s credit requirements, the following terms apply:
i. For Software Licenses payment is due when the order is placed
ii. Annual Maintenance fees are due either on Go Live or 60days after installation whichever occurs first and then annually from that point forward.
iii. Hardware 100% of fees are due on order for orders from new customers or orders under $10,000. For existing customers orders over $10,000, 50% of the order value is payable on order and balance invoiced on arrival to the country.
iv. For all other Services payment is due prior to the 20th of the month following the invoice date.
(b) Orders given with variations to terms of payment will not be considered.
(c) Upon placing an order these terms, as set out here will prevail.
(a) Services will be invoiced on the frequency as stated in the relevant quotation.
(d) Jonas Leisure will provide an invoice to the Customer who will pay the invoice in full to Jonas Leisure within the payment terms set out in 5a
(e) If the Customer fails to pay the invoice in full to Jonas Leisure when due, Jonas Leisure will be entitled (without prejudice to any other right or remedy it may have) to:
i. cancel or suspend any further installation for the Customer under any order; and
ii. charge the Customer interest on the overdue amount at the rate of the ANZ Business Mortgage Index rate current as at the time the payment was originally due, plus two per cent (2%) per annum
(f) All prepaid amounts are non-refundable in the event an order is cancelled by the customer.
6. Order Cancellation Charges
Accepted orders can only be cancelled by mutual agreement. Upon receiving notice of cancellation Jonas leisure will cease all work on the Order and assess all outstanding fees due for Services delivered and not invoiced to the date notice is provided, upon payment by the Customer of this amount, together with an amount sufficient to indemnify Jonas Leisure for its actual and prospective loss, damage and expense consequent upon the cancellation, Jonas Leisure will accept the cancellation. Any prepaid amounts are non-refundable upon cancellation of an order by the Customer.
7. Passing of Title
Property in the Services will remain with Jonas Leisure and will not pass to the Customer unless and until payment in full is made and cleared by the Company’s bankers to Jonas Leisure. The Customer will grant full permission and access to all Services owned by Jonas Leisure and permits removal. It
also acknowledges the additional cost that will be imposed on the Customer for doing so. In the event of the Customer falling under administration or similar circumstance the administrators will acknowledge Jonas Leisure’s legal entitlement as stated above.
(a) Jonas Leisure makes no implied or express warranties about the Services (except as otherwise provided herein). All implied warranties shall be excluded. Jonas Leisure warrants that the Services will comply with the specifications outlined in the relevant Services documentation. As Customer’s sole remedy for any breach of this warranty, if Customer brings to Jonas Leisure’s notice any incidence of non-conformance, Jonas Leisure will use all reasonable efforts to correct the error. EXCEPT FOR THESE WARRANTIES, CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED “AS IS”, AND JONAS LEISURE DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, SUPPLIER DOES NOT WARRANT THAT THE SERVICES OR TRAINING WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. SUPPLIER ALSO MAKES NO WARRANTIES REGARDING THE THIRD PARTY COMPONENTS. THE PARTIES AGREE THAT IT IS CUSTOMER’S RESPONSIBILITY TO DETERMINE IF THE SERVICES ARE SUITABLE FOR CUSTOMER’S REQUIREMENTS.
(b) Jonas Leisure will defend Customer in respect of any claims brought against Customer by a third party based on the claim that the Service infringes the intellectual property rights of that third party. Jonas Leisure will pay any award rendered against Customer by a court of competent jurisdiction in such action, provided that Customer gives Jonas Leisure prompt notice of the claim and Jonas Leisure is permitted to have full control of any defence.
(c) If all or any part of the Service becomes, or in Jonas Leisure’s opinion is likely to become, the subject of such a claim, or if, pursuant to any suit Jonas Leisure defends under paragraph 8(b), Customer is enjoined by final, unappealable court order or by settlement approved by Jonas Leisure from using the Services, Jonas Leisure may, at its option, either (a) procure for the Customer the right to continue using the Services; (b) modify the Services to make it non-infringing; or (c) terminate this Contract as it relates to the infringing portion of the Services and repossess such portion of the Services in exchange for a refund of the Fees paid for such portion of the Services. Subject to paragraph 8(b), this is Jonas Leisure’s entire liability concerning intellectual property infringement.
(d) Jonas Leisure will not be liable for any infringement or claim based upon (a) any modification of the Services developed by Customer; (b) use of the Services in combination with software or other technology not supplied or approved in advance by Jonas Leisure; or (c) use of the Services contrary to this Contract or the Documentation.
(e) Where a Service is supported by a manufacturers warranties these will apply. Services will be returned to Jonas Leisure’s premises for warranty assessment prior to a warranty repair or replacement being provided to the Customer.
(a) To the extent permitted by law, Jonas Leisure shall under no circumstances be liable for any form of loss, damages, costs, injury or harm (including Consequential Loss) sustained or incurred by Customer arising directly or indirectly out of the supply, performance or use of any Services supplied hereunder or pursuant to this Contract.
(b) Jonas Leisure’s entire liability and responsibility to Customer for any claims, damages, costs or losses whatsoever arising either jointly or solely from or in connection with this Contract including in contract, tort or otherwise for loss or damage suffered by Customer in relation to the Services supplied under this Contract, shall be equal to the amount paid by Customer to Jonas Leisure for the Software in the twelve (12) month period preceding the event giving rise to such claim.
(c) Jonas Leisure shall not be liable for any delay in, or failure of performance of, any of the provisions of this Contract due to any cause or condition beyond Jonas Leisure’s reasonable control and including, without limiting the generality of the foregoing, any such delay or failure due to any act of God, storms, industrial disturbance, failure of electrical supply, acts of vandalism, sabotage, civil disturbances, changes in legislation or regulations of Local, State, or Federal Governments.
(d) Customer indemnifies Jonas Leisure against any liability of Jonas Leisure to any third party pursuant to or arising out of Customer’s use of the Services or otherwise arising out of this Contract except where such liability arises from any wilfully negligent act or omission by Jonas Leisure.
10. Installation, Commissioning and Servicing
(a) Jonas Leisure will provide the Customer with details of environmental requirements and any other special requirements considered necessary for the proper functioning and delivery of the Services and it will be the Customer’s responsibility (and at the Customer’s expense) to prepare for delivery of the Services in accordance with those requirements.
(b) Jonas Leisure’s Scope of Works for the delivery of Services will provide the final and definitive list of deliverable items as interpreted by Jonas Leisure.
(c) If the Customer requires additional items delivered or variation to the agreed Scope of Works, these items will be quoted as additional items to this contract.
(d) Unless otherwise agreed, responsibility for delivery will be governed by the Scope of Works, any item not explicitly provided for in the scope of works will be the Customer’s responsibility
(e) It is the Customer’s responsibility to obtain all necessary authorisations or approvals from any government body or statutory authority. Jonas Leisure will not be obliged to undertake any Services until all necessary authorisations or approvals have been given.
11. Hosted Services
(a) If the Services involve remote hosting Software or Data Jonas Leisure will make available to Customer the Hosted Services on a non-exclusive, non-assignable, worldwide limited basis.
(b) Customer will use the Hosted Services only for its own, internal business purposes, and will not resell them or otherwise make them available to any third party.
(c) The rights of each authorized instance of use of Hosted Services cannot be shared or used by more than one club/ location (unless such authorization is reassigned in its entirety with the written consent of Jonas Leisure to another authorized club/location, in which case the prior authorised user shall no longer have any right to access or use the Hosted Services).
(d) Customer will not copy, frame or mirror, adapt, translate or attempt to modify any part or content of the Hosted Services.
(e) Customer is responsible for its users’ compliance with this Contract.
(f) Customer acknowledges that Jonas Leisure has no delivery obligation and will not ship copies of Jonas Leisure’s programs to Customer as part of the Hosted Services.
(g) Customer agrees that it does not acquire under the Contract any license to use the Hosted Services in excess of the scope and/or duration of the Hosted Services.
(h) Upon the end of this Contract or the Hosted Services, Customer’s right to access or use the Hosted Services shall terminate.
12. Support – Hosted Services
During the term of this Contract, Jonas Leisure agrees to provide the following maintenance and support services during the term of this Contract:
(a) maintain the Hosted Services so that it operates in conformity, in all material respects, with the descriptions and specifications for the Hosted Services set out in the applicable training and operating manual;
(b) if Customer detects any errors or defects in the Hosted Services, Jonas Leisure will provide reasonable support services through a customer portal, email or telephone during Business Hours
(c) While Jonas Leisure will use its reasonable endeavours to correct errors in the functioning of the Hosted Services documented by Customer, the foregoing error correction service and general support and maintenance services shall not include service in respect of:
a. defects or errors resulting from any modifications of the Hosted Services made by any person other than Jonas Leisure or its agents;
b. any version of the Hosted Services other than the current version;
c. incorrect or unauthorized use of the Hosted Services, use of the Hosted Services not in accordance with the related manuals and documentation or operator error;
d. any fault in the hardware or in any third party programs used in conjunction with the Hosted Services (unless Customer has specifically contracted with Jonas Leisure for such level of support);
e. failure of the Internet;
f. failure of Customer to install any updates within 7 days of receiving instructions from Jonas Leisure;
g. defects or errors caused by the use of the Hosted Services on or with a system or programs not supplied by or approved in writing by Jonas Leisure, provided that for this purpose any programs designated for use with the current release in the written specifications shall be deemed to have the written approval of Jonas Leisure.
Jonas Leisure does not warrant that all errors can and will be corrected. Jonas Leisure will use its reasonable endeavours to correct errors reported by Customer or to provide a patch or bypass to such errors so long as the errors are replicable by Jonas Leisure. For clarity, Jonas Leisure does not support any hardware, unless hardware support service is purchased and detailed in the Contract.
13. Electronic Communication Services
Where the Service offers the Customer the ability to electronically communicate with their client base the following conditions apply:
(a) Customer will only import lists of contacts for which all listed parties have consented to receive correspondence from Customer in connection with the use of the Services.
(b) Customer will not utilise the Services to send any commercial electronic mail message to any person who has opted out or otherwise objected to receiving such messages from Customer or another sender on whose behalf Customer may be acting or otherwise not in accordance with applicable law.
(c) Jonas Leisure may, at its discretion, terminate Customer’s use of its Services if Jonas Leisure determines that Customer’s level of spam complaints is higher than industry norms (as determined by Jonas Leisure, acting in its sole discretion).
(e) Customer acknowledges and agrees that they will not remove, disable or attempt to remove or disable either link referred to above.
(f) Customer shall monitor and process unsubscribe requests received to them directly within ten (10) days of submission, and update the email addresses to which messages are sent through the Services.
(g) Customer acknowledges that it is responsible for maintaining and honouring the list of unsubscribe requests following termination this Agreement.
(h) Customer acknowledges that Jonas Leisure prohibits the use of the Services or website by any person or entity that:
i. provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; dating services; adult “swinger” promotions; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons;
ii. displays or markets material that exploits children under 18 years of age;
iii. provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events;
iv. provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, violent, harassing or otherwise objectionable content;
v. posts or discloses any personally identifying information or private information about anyone without their consent (or their parents’ consent in the case of a minor);
vi. sells or promotes any products or services that are unlawful in the location at which the content is posted or received;
vii. introduces viruses, worms, harmful code and/or Trojan horses on the Internet;
viii. promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting “get rich quick”, “build your wealth” and “financial independence” offerings;
ix. engages in any libellous, defamatory, scandalous, threatening, or harassing activity;
x. posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence;
xi. markets to third party voter registration lists;
xii. provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
Customer shall remain responsible for ensuring that it and all of its agents, employees and subcontractors remain in compliance with all of the foregoing restrictions and, to the extent that any claim arises as a result of or in connection with any violation, Customer shall indemnify Jonas Leisure in full. Jonas Leisure, at its discretion, may immediately disable Customer’s access to the Services or remove all or a portion of Customer’s content, without refund, if Jonas Leisure believes that the Customer has violated any of the policies listed above or this Contract.
These terms and conditions of sale will prevail notwithstanding any other terms and conditions on any order submitted by the Customer. Any failure by Jonas Leisure to enforce any term or condition hereof will not be deemed to be a waiver of future enforcement of that or any other term or condition of sale.