gellibn Terms of Service
The Fronis Investment Trust TA gellibn (" gellibn", "us", "our", or "we") provides a platform that allows participating businesses (each, a "Customer") to create dedicated communication, operations, and training applications (any such application, an "App") to track compliance and performance of employees, service providers, or independent contractors ("Personnel" and "Platform", respectively). The services available through the Platform and App shall collectively be referred to as "Services". "You" means any adult user of the Services, whether on behalf of a customer or as Personnel of a Customer.
These Terms of Service ("Terms") govern your access to and use of the Platform and any App. Our Privacy Notice, available at www. gellibn.com ("Privacy Policy") and the DPA (defined below) govern our collection, processing and transfer of any Personal Data (as such term is defined in the Privacy Notice).
Please read these Terms carefully. By signing up you signify your assent to these Terms. Changes may be made to these Terms from time to time. If you do not agree to any of these Terms, please do not click the sign-up button and do not use the Platform and Services.
We may modify the Terms at any time. If we make a material change to these Terms, we may provide you with reasonable notice prior to the change taking effect, by either notifying You in accordance with section 14, by messaging You through the Services, or simultaneously with the publication of these updated Terms on our website, as applicable. You can review the current version of the Terms at any time on our website. The revised Terms will become effective upon the earlier of the date set forth in our notice, and the posting date of the modified Terms on our website.
If you are registering a "Customer Account" on behalf of a Customer (as an "Account Owner"), you further represent that you are authorized to enter into and bind the Customer to these Terms and register the Customer for the Platform and Services. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules, and regulations applicable to you and such Customer and the right to access the Platform and Services is revoked where these Terms or use of the Platform, Apps, or Services is prohibited.
1. Use of the Services
1.1. gellibn allows you to access and use the Platform, Apps, and Services on a non-exclusive basis subject to these Terms. gellibn may, at its sole discretion and at any time, modify or discontinue providing the Platform, Services, any App, or any part thereof without notice and shall not be liable to you or any third party for any such modification or discontinuance.
1.2. Use of the Services and access to the Platform or Apps is void where prohibited. You represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older and have the ability to form a binding contract; (d) your use of the Platform, Apps, or Services does not violate any applicable law, regulation, or any obligation you may have to a third party; and (e) you shall comply with applicable laws, regulations, guidelines, and these Terms throughout your use of the Platform, Apps and/or Services.
1.3. If you are registering to use the Platform, Apps, or Services as an Account Owner on behalf of a Customer, you further represent and warrant that:
(a) when we process Personal Data of the Customer's Personnel on its behalf for the purpose of provision of the Services, the Customer will at all times be considered the data Controller (as also defined in the GDPR) and shall be responsible for compliance with its obligations as data Controller under applicable law including the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 ("GDPR") and we shall act solely as a data Processor (as defined in the GDPR) on its behalf, all in accordance with the Data Processing Agreement ("DPA"), attached to these terms and conditions (Schedule 1)
(b) the Customer has and shall maintain throughout the term of these Terms and the DPA all necessary rights and consents required under applicable law in order to provide Personal Data to gellibn and allow it to provide its Services as a Processor;
(c) the Customer shall ensure that a record of such consents is maintained, as required under applicable law; and
(d) the Customer shall not provide gellibn with any Special Categories of Data (as defined in the GDPR) and/or any data or information subject to special regulatory or statutory protection regimes (including but not limited to data regarding children, financial and health data).
2. Australian Privacy Law- Each party agrees to comply with all Privacy Laws in relation to any and all Personal Information having an Australian Link that it collects from the other party in connection with the Agreement.
2.2 The Client warrants that it has sought the necessary consent required by Privacy Laws, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth) from all individuals whose Personal Information it causes to be disclosed to gellibn or otherwise held in connection with the Software and app, to enable gellibn (or its Personnel and its related parties):
to collect such Personal Information via the Software and the app;
to hold and use that Personal Information for the purposes of gellibn performing its obligations under this Agreement; and
to directly contact individuals (including by email and phone) using the Personal Information held by gellibn.
The parties agree that, if the Client is established in the European Union, the provisions in Schedule 4 (Data Security and Privacy Provisions) are incorporated into and form part of this Agreement, and will apply to the handling of “Personal Data” of “Data Subjects” (having the same meanings as in the GDPR) that may be transferred or processed under or in connection with this agreement.
3. Customer Account and Staff Profile Registration
3.1. Customer Account.- In order for any Personnel to access the Platform, a Customer Account must be created by an Account Owner. An Account Owner may create profiles for other Customer Personnel within the Customer Account ("Staff Profiles"). Staff Profiles may be designated either as an additional Account Owner, as an "Administrator" or as an "Employee". Account Owners, Administrators, and Employees are granted different permissions within the Company Account.
3.2. General. - When opening a Company Account or when creating a Staff Profile, certain registration information must be provided, such as the names and email addresses of the applicable staff member. Staff Members may choose to add additional optional information to their Profile, which may assist us in providing improved Services. Staff Profiles may be created manually, by entering the information in to the required fields, or by connecting to the Customer's systems through an API or SFTP. gellibn reserves the right to refuse to open a Staff Profile for any reason, all at its sole discretion.
3.3. Administrator. Account Owners may open Administrator Personnel Profiles. Administrators serve as authorized representatives of the Customer and will have certain permissions that allow them to set-up and manage the Customer's dedicated App on the Customer's behalf. Administrators shall be authorized to grant access to the App to Employees and to block Employees from using the App, and to set up Employee permissions within the App. Administrators may view all of the Employees' information and may access all data uploaded by an Employee to the App. The Administrator may also receive reports based on Employees' use of the App.
3.4. Employees. - Administrators may open Employee Staff Profiles. Following creation of a Staff Profile for an Employee, the Employee will receive a link via email allowing them to confirm the Staff Profile and access the Company's dedicated App and set up their credentials. Alternatively, Employees may be sent a link to allow them to request to join the App. After filling out a request form, the Administrator may approve the request and open a Staff Profile for the applicable Employee.
3.5. Unauthorized Access. You agree to notify us immediately of any unauthorized use of your Customer Account or Personnel Profile or password. You are fully and solely responsible for the security of your computer system and/or mobile device and all activity on the Customer Account or your Staff profile, as applicable, even if such activities were not committed by you. To the fullest extent permitted by law, gellibn will not be liable for any losses or damage arising from unauthorized use of your Customer Account or Staff Profile or password and you agree to indemnify and hold gellibn harmless for any unauthorized, improper or illegal use thereof, including any charges and/or taxes incurred, unless you have notified us via e-mail to support@ gellibn.com that your Customer Account or Personnel Profile has been compromised and have requested that we block access to it, which we will do as soon as reasonably practicable.
We do not police for and cannot guarantee that we will learn of or prevent any inappropriate use of the Platform, Apps, or Services.
4. Termination of Personnel Profile
4.1. You agree that gellibn may, for any reason, at its sole discretion and without notice, suspend or terminate your Customer Account or Personnel Profile and may remove any Content (as defined below) associated therewith and take any other corrective action it deems appropriate. Grounds for such termination or suspension may include but are not limited to
termination, suspension or expiration of the agreement between us and the Customer for any reason;
gellibn is required by Law to do so;
an event of Exceptional Circumstance occurs, which affects or may affect gellibn’s ability to provide the app;
violation of the letter or spirit of these Terms;
Overdue or non payment for the subscription by the user/customer
fraudulent, harassing or abusive behaviour; or
behavior that is illegal or harmful to other users, third parties, or the business interests of gellibn. If your Customer Account or Staff Profile is terminated, you may not rejoin gellibn again without our express permission. Upon termination, you shall not have any further access to any Content that may be available through the Platform.
4.2. If your engagement with the Customer is terminated, an Account Owner or an Administrator may either deactivate or archive your Staff Profile. If your Staff Profile is deactivated, any data or Content associated with it will be archived. If your Staff Profile is archived, records may be retained at the Administrator's discretion.
4.3. We reserve the right to investigate suspected violations of these Terms or illegal and inappropriate behaviour through the Services. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity, behaviour or Content of anyone believed to have violated these Terms or to have engaged in illegal behaviour in connection with the Platform, Apps, or Services.
4.4. You may request termination/cancellation of your Customer Account at any time through your admin portal. For any assistance you require regarding this you may email support@ gellibn.com . Any suspension or termination of your Customer Account or these Terms shall not affect your obligations to gellibn under these Terms (including but not limited to ownership, indemnification, representations and warranties made by you, limitation of liability and payment obligations), nor will it affect any other terms herein, which by their sense and context are intended to survive such suspension or termination.
5. Fees and Payment
5.1. If you subscribed to one of our plans, as an Account Owner on behalf of a Customer, you agree on behalf of the Customer that the Customer will pay gellibn the fees as specified on the website in accordance with the plan for which you have registered. Payments are to be made on a monthly or yearly basis, in accordance with the applicable plan, in advance of the applicable month or year, respectively. You will be asked to provide customary billing information such as name, billing address and credit card information either to gellibn or its third-party payment processor(s). You hereby authorize the collection of such amounts by charging the credit card provided, either directly by gellibn or indirectly, via a third-party online payment processor or by one of the payment methods described in the Services and in accordance with the payment schedule of the applicable plan. If you are directed to a third-party payment processor, you may be subject to terms and conditions governing use of that third party's service and that third party's Personal Data collection practices. Please review such terms and conditions and privacy policy before using such services.
5.2. Where applicable, taxes may also be charged. It is the Customer's responsibility to determine whether it is required to pay any applicable taxes, and to clarify such information when making a payment. gellibn does not accept any responsibility for the calculation or collection of any applicable taxes. Except as expressly provided in these Terms, fees are non-refundable.
5.3. All payments should be made in AU dollars. Please note that gellibn may impose or deduct foreign currency processing costs on or from any payments or gellibn by Customer in currencies other than AU dollars. When converting currency, prices may be rounded up to the nearest whole number.
5.4. Subscriptions can be cancelled at any time. No refunds will be granted for any pre-paid amounts, whether a monthly or yearly subscription. Notwithstanding the above, cancellation of a yearly subscription within the first 30 days of the subscription will entitle the Customer to a full refund of prepaid amounts.
5.5 GST - Unless expressly stated to the contrary all amounts expressed in the Agreement are exclusive of GST.
5.6. You acknowledge and agree that:
Which ever method you have elected to pay the subscription Fees to gellibn, gellibn will automatically charge the subscription Fees to the payment platform account provided by you on the First Payment Date and every Payment Date thereafter and the customer gives gellibn the autorisation to do so..
Should you dispute the amount of subscription Fees charged, you must provide notice in writing within seven (7) days of such Fees being charged to the client.
If you have opted to subscribe on an annual plan, you acknowledge that no refund will be payable to you during the 12 months from the date of payment of the Advance Payment if:
You cancel your subscription after 30 days of use
the number of active Employees listed in gellibn app drops below the level used to calculate the annual Payment fee.
5.7 Late or Non Payment - If you fail to pay the subscription Fee within 14 days of the due date of the subscription payment, gellibn may restrict or suspend the Services of the gellibn app
6. Content
6.1. Certain types of content may be made available through the Platform, Apps, and/or Services. "Content" as used in these Terms means, collectively, all content on or made available on or through the Platform, Apps, and/or Services, including any images, photos, pictures, videos, reports or recommendations and any modifications or derivatives of the foregoing. gellibn allows you and other users, whether Employees and Administrators, to upload certain content including but not limited to logos, images, photos, and additional textual materials. All content uploaded by users is referred to as "User Content".
6.2. GELLIBN DOES NOT ENDORSE ANY CONTENT (INCLUDING BUT NOT LIMITED TO ANY USER CONTENT) OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED IN ANY CONTENT AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH CONTENT AND/OR USER CONTENT.
7. User Content Restrictions
7.1. gellibn has no obligation to accept, display, review, maintain or approve any request to publish or maintain any User Content. Moreover, gellibn reserves the right to refuse to publicize, remove and/or permanently delete any User Content uploaded by you, without notice and for any reason and at any time. Any User Content that is posted or submitted shall not be considered confidential (unless expressly set forth otherwise herein) and may be disseminated by gellibn without any compensation to you.
7.2. You are and shall at all times remain fully and solely responsible for any User Content you upload to the Services. You represent and warrant that any User Content you upload
complies with applicable law;
does not infringe or violate any third-party intellectual property rights, privacy or publicity rights, or moral rights; and
that you have all necessary rights and authorities to submit such User Content. Any User Content you post or submit shall not be considered confidential and may be disseminated by gellibn without compensation to you.
7.3. Without limiting the foregoing, you agree that you will not transmit, submit or upload any User Content or act in any way that:
(a) restricts or inhibits use of the Platform, Apps, and/or Services;
(b) violates the legal rights of others, including defaming, abuse, stalking or threatening users;
(c) infringes (or results in the infringement of) the intellectual property, moral, publicity, privacy, or other rights of any third party;
(d) is (or you reasonably believe or should reasonably believe to be) stolen, illegal, counterfeit, fraudulent, pirated, unauthorized, or violent, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or you reasonably believe or should reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material;
(e) does not comply with all applicable laws, rules and regulations;
(f) publishes falsehoods or misrepresentations that may damage us or any third party;
(g) imposes an unreasonably or disproportionately large load on our infrastructure; or
(h) posts, stores, transmits, offers, or solicits anything that contains the following, or that you know contains links to the following or to locations that in turn contain links to the following:
(1) material that we determine to be offensive (including material promoting or glorifying hate, violence, bigotry, or any entity (past or present) principally dedicated to such causes or items associated with such an entity,
(2) material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening,
(3) pornography or obscene material,
(4) any virus, worm, trojan horse, or other harmful or disruptive component, or
(5) anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate or offensive.
7.4. gellibn may, in its sole discretion, choose to monitor User Content for inappropriate or illegal behaviour, including through automatic means, provided however, that gellibn reserves the right to treat User Content as content stored at the direction of users for which gellibn will not exercise editorial control except when violations are directly brought to gellibn’s attention.
7.5. Content on the Platform and Apps comes from a variety of sources. You understand that gellibn is not responsible for the accuracy, usefulness, safety, appropriateness of, or infringement of any intellectual property rights of or relating to this Content (including but not limited to the User Content). Although users, including the Customer, Administrators, and Employees, must agree to these Terms, it is possible that other users (including unauthorized users) may post or transmit offensive or obscene materials and that you may be involuntarily exposed to such offensive or obscene materials. You hereby waive any legal or equitable rights or remedies you have or may have against us with respect thereto. It is also possible for others to obtain Personal Data about you due to your use of the Platform, including through any User Content that you make available through your Staff Profile. Anyone receiving or viewing User Content may use information you provided through such User Content (such as your contact details, location or description of a Customer you represent) for purposes other than those you intended. We are not responsible for the use of any Personal Data that you disclose on the Platform or through any User Content by any third party. By making any information available through the Platform or an App you acknowledge that you understand and have agreed to such risks.
8. Use Restrictions
8.1. You may not do or attempt to do or facilitate a third party in doing any of the following:
(1) decipher, decompile, disassemble, or reverse-engineer any of the software and/or code, if and as applicable, used to provide the Platform, Apps, or Services without our prior written authorization, including framing or mirroring any part of the Platform, Apps, or Services;
(2) circumvent, disable, or otherwise interfere with security-related features or features that prevent or restrict use or copying of any Content;
(3) use the Platform, Apps, or Services or content thereon in connection with any commercial endeavours in any manner, except for the purposes specifically set forth in these Terms;
(4) use any robot, spider, site search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Platform, Apps, or Services;
(5) use or access another user’s Personnel Profile or password without permission;
(6) use Platform, Apps, or Services or content thereon in any manner not permitted by these Terms.
8.2. GELLIBN DISCLAIMS ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF ANY AND ALL USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF THE PLATFORM, APPS, OR SERVICES OR OTHERWISE.
9. Intellectual Property
9.1 Ownership of gellibn technology
Ownership of the gellibn Technology is not modified by this Agreement.
The Intellectual Property Rights in the gellibn Technology remain vested in gellibn
9.2. gellibn, its affiliates or its licensors, as the case may be, have all right, title, and interest in the Platform, Apps, Services and all Content thereon, including its overall appearance, text, graphics, graphics design, videos, demos, interfaces, and underlying source files, and all worldwide intellectual property rights, the trademarks, service marks, and logos contained therein registered and unregistered. Except as expressly permitted herein, you may not copy, further develop, reproduce, republish, modify, alter download, post, broadcast, transmit or otherwise use the Platform, Apps, Content or the Services. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Platform, Apps, Content or Services, if any. All trademarks are trademarks or registered trademarks of their respective owners. Nothing in these Terms shall be construed as granting you any right to use any trademark, service mark, logo, or trade name of gellibn or any third party. If you provide gellibn with any feedback regarding the Platform Apps, Content, and/or Services gellibn may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
9.3. By submitting or posting any User Content, you grant gellibn and its successors and assignees a worldwide, non-exclusive, royalty-free, perpetual, sub-licensable and transferable license under any of your intellectual property, moral or privacy rights to use, copy, distribute, transmit, modify, prepare derivative works of, alter, decompile or publicly perform such User Content on, through or in connection with the Platform and Apps in any media format and through any media channels for the purposes of provision of Services or as otherwise permitted under these Terms.
9.4 Upon its creation, all New IP will be owned by, and assigned to, gellibn.
10. Copyright
10.1. The policy of gellibn is not to infringe upon or violate the intellectual property rights or other rights of any third party, and gellibn will refuse to use and remove any User Content in connection with the Platform, Apps, or Services that infringes the rights of any third party. Under the Digital Millennium Copyright Act of 1998 (the "DMCA"), gellibn will remove any Content (including without limitation any User Content) if properly notified of that such material infringes third party rights, and may do so at its sole discretion, without prior notice to users at any time. The policy of gellibn is to terminate the Customer Accounts or Staff Profiles of repeat infringers in appropriate circumstances.
10.2. You are in the best position to judge whether User Content is in violation of intellectual property or personal rights of any third-party. You accept full responsibility for avoiding infringement of the intellectual property or personal rights of others in connection with User Content.
10.3. If you believe that something appearing on the Platform or Apps infringes your copyright, you may send us a notice requesting that it be removed, or access to it blocked. If you believe that such a notice has been wrongly filed against you, the DMCA lets you send us a counter-notice. Notices and counter-notices must meet the DMCA’s requirements. We suggest that you consult your legal advisor before filing a notice or counter-notice. Be aware that there can be substantial penalties for false claims. Send notices and counter-notices to us by contacting us at support@ gellibn.com
11. Disclaimer of Warranty
11.1. Your use of the Platform, Apps, and Services is at your sole discretion and risk. The Platform, Apps, and Services are provided on an "AS IS" and "AS AVAILABLE" basis without warranties of any kind. We do not represent or warrant that the Services will be of good quality or useful for your needs.
11.2. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE PLATFORM, APPS, AND/OR SERVICES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. WE DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE PLATFORM, APPS, AND SERVICES; OR (II) THAT THE PLATFORM, APPS, AND SERVICES WILL BE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (III) REGARDING THE PERFORMANCE OF OR ACCURACY, QUALITY, CURRENCY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED BY THE PLATFORM, APPS, AND/OR SERVICES.
11.3. No advice or information, whether oral or written, obtained by you from us, shall create any warranty not expressly stated in these Terms. If you choose to rely on such information, you do so solely at your own risk. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
11.4. You acknowledge and agree that gellibn is not a data retention service. You therefore must create backups of your data, and gellibn shall have no responsibility or liability in respect of any loss of, damage to, or corruption of any such data.
12. Limitation of Liability
12.1. In addition to the foregoing, we assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Platform, Apps, or Services. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email due to technical problems or traffic congestion on the Internet or on any of the Platform, Apps, or Services or combination thereof, including any injury or damage to you or to any person's mobile device or computer related to or resulting from the Platform, Apps, or Services or the use thereof. Under no circumstances shall we be responsible for any loss or damage, including personal injury or death, resulting from use of the Platform, Apps, or Services, from any content posted on or through the Services, or from the conduct of any users of the Services, whether online or offline. In addition, we assume no responsibility for any incorrect data, including Personal Data provided by you or on your behalf and you hereby represent and warrant that you are solely responsible for any and all data provided to gellibn, including any incorrect data and you shall assume any and all liability for any consequences of provision of such incorrect data to us.
12.2. IN NO EVENT SHALL gellibn, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ASSIGNEES OR AGENTS BE LIABLE TO YOU, THE CUSTOMER, OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE PLATFORM AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO THE QUALITY, ACCURACY, OR UTILITY OF THE CONTENT PROVIDED AS PART OF OR THROUGH THE PLATFORM, APPS, AND/OR THE SERVICES, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT gellibn HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT SHALL gellibn’S MAXIMUM CUMULATIVE LIABILITY TO YOU AND/OR THE CUSTOMER UNDER ANY CAUSE(S) OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED, IN THE AGGREGATE, THE AMOUNT YOU OR THE CUSTOMER (AS APPLICABLE) HAVE PAID US IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM OR SERIES OF CLAIMS. IF YOU HAVE NOT MADE ANY PAYMENTS TO gellibn FOR THE USE OF THE SERVICES, gellibn SHALL NOT HAVE ANY LIABILITY TOWARD YOU.
13. Important acknowledgements
As a fundamental condition of the Agreement, the Client acknowledges and agrees that:
Any statement, information or advice provided by gellibn prior to, during the Term of this Agreement or after its expiration is general in nature and should not be relied upon by any person as legal advice or otherwise.
gellibn is not responsible or Liable for the application, interpretation, usage or calculation of Employee entitlements in connection with any Software related to gellibn or the gellibn app or otherwise; and
gellibn will not be liable in any way for (and is released from) any Loss (including any Loss incurred by an End User or Personnel of the Client) arising from any error, inaccuracy, incompleteness or other similar defect:
in the Software, or
in any application, interpretation, usage or communication to employees or users
14. Indemnification. You agree, on your own behalf or on behalf of the Customer, as applicable, to indemnify, defend, and hold harmless gellibn, its affiliates and their respective employees, directors, officers, subcontractors and agents, against any and all claims, damages, or costs, losses, liabilities, or expenses (including court costs and attorneys’ fees) that arise directly or indirectly from: (a) breach of these Terms by you or anyone using your computer, mobile device, and/or password (whether authorized or unauthorized); (b) any claim, loss or damage experienced from your use, attempted use or misuse of the Platform or the Services; (c) your violation of any law, regulation, or any of your obligations, representations or warranties hereunder including but not limited to breach of any privacy and/or data protection laws and regulations to which you are subject; (d) your infringement of any right of any third party; and (e) any other matter for which you are responsible hereunder or under applicable law.
15. Third-Party Content. The Platform or Apps may provide you with third-party links (including, without limitation, advertisements) to websites, applications, and services. We make no promises regarding any content, goods or services provided by such third parties and all use of third-party websites and applications is at your own risk. Additionally, we do not accept responsibility for any payments processed or submitted through third-party websites and applications or for the privacy policies of such third parties. We do not endorse any products offered by third parties and we urge our users to exercise caution in using third-party websites or applications.
16. Miscellaneous. These Terms shall be governed by the laws of the State of Queensland Australia of its choice of law rules and without regard to the United Nations Convention on the International Sales of Goods and the competent courts in Queensland shall have exclusive jurisdiction to hear any disputes arising hereunder. In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys’ fees. Any cause of action against gellibn must be brought within one (1) year of the date such cause of action arose. In the event that any provision of these Terms is held to be unenforceable, such provision shall be replaced with an enforceable provision which most closely achieves the effect of the original provision, and the remaining terms of these Terms shall remain in full force and effect. Nothing in these Terms creates any agency, employment, joint venture, or partnership relationship between you and gellibn or enables you to act on behalf of gellibn Except as may be expressly stated in these Terms, these Terms constitute the entire agreement between us and you pertaining to the subject matter hereof, and any and all other agreements existing between us relating thereto are hereby cancelled. We may assign and/or transfer our rights and obligations hereunder to any third party without prior notice. You shall not assign and/or transfer any of your rights or obligations hereunder, and any assignment in violation of the foregoing shall be void. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If we are required to provide notice to you hereunder, we may provide such notice to the contact details that you provided upon registration.
Schedule 1
This Data Processing Agreement ("DPA") forms an integral part of, and is subject to the
gellibn Terms of Service ("Terms"), entered into by and between you, the customer
("Customer" or "Controller"), and Fronis Investment trust TA gellibn (" gellibn " or
"Processor"). Capitalized terms not otherwise defined herein shall have the meanings given to
them in the Terms.
Background
In order to provide Customer with the Platform, App, and Services, gellibn is required to
Process certain Personal Data of Customer's Employees on behalf of Customer. The parties
therefore wish to set out the mutual agreements with respect to gellibn’s Processing of such
Personal Data and agree as follows:
1. Definitions. The following terms shall have the meanings set forth below:
1.1. "Applicable Law" means Regulation 2016/679 of the European Parliament and of
the Council of 27 April 2016 on the protection of natural persons with regard to the
processing of personal data and on the free movement of such data and repealing
Directive 95/46/EC (General Data Protection Regulation) ("GDPR") and laws
implementing or supplementing the GDPR.
1.2. "Customer Personal Data" means any Personal Data Processed by gellibn on
behalf of Customer pursuant to or in connection with the Terms;
1.3. "Data Protection Laws" means Applicable Law and, as applicable, data protection
or privacy laws of any other applicable country where the Services are provided;
1.4. "Sub Processor" means any person (excluding an employee of gellibn)
appointed by or on behalf of gellibn to Process Customer Personal Data on
behalf of gellibn in connection with the Terms; and
1.5. The terms "Controller", "Data Subject", "Personal Data", "Personal Data Breach",
"Processor", "Processing" and "Supervisory Authority" shall have the meanings
ascribed to them in the GDPR.
2. Processing of Customer Personal Data.
2.1. gellibn shall Process Customer Personal Data on Customer's behalf and at
Customer's instructions as specified in the Terms and in this DPA, including without
limitation with regard to transfers of Customer Personal Data to a third country or
international organization. Any other Processing shall be permitted only in the
event that such Processing is required by any Data Protection Laws to which
gellibn is subject. In such event, gellibn shall, unless prohibited by such
Data Protection Laws on important grounds of public interest, inform Customer of
that requirement before engaging in such Processing.
2.2. Customer instructs gellibn (and authorizes gellibn to instruct each Sub
Processor) (i) to Process Customer Personal Data for the provision of the Platform,
Apps, and Services, as detailed in the Terms and as otherwise set forth in the Terms
and in this DPA, and/or as otherwise directed by Customer; and (ii) to transfer
Customer Personal Data to any country or territory as reasonably necessary for the
provision of the Services and in accordance with Applicable Law.
2.3. The details of the Processing of Customer Personal Data, as required by Article
28(3) of the GDPR are set forth in Schedule 1 attached hereto.
3. Controller. Customer represents and warrants that it has and shall maintain throughout
the term of the Terms and this DPA, all necessary rights to provide the Customer Personal
Data to gellibn for the Processing to be performed in relation to the Services and in
accordance with the Terms and this DPA. To the extent required by Data Protection Laws,
Customer is responsible for obtaining any necessary Data Subject consents to the
Processing, and for ensuring that a record of such consents is maintained throughout the
term of the Terms and this DPA and/or as otherwise required under Data Protection Laws.
4. gellibn Employees. gellibn shall take reasonable steps to ensure that access to
Customer Personal Data is limited on a need to know and/or access basis and that all
gellibn employees receiving such access are subject to undertakings or professional
or statutory obligations of confidentiality in connection with the Customer Personal Data.
5. Security. gellibn shall implement appropriate technical and organizational measures
to ensure an appropriate level of security of the Customer Personal Data, including, as
appropriate and applicable, the measures referred to in Article 32(1) of the GDPR. In
assessing the appropriate level of security, gellibn shall take into account the risks
presented by the nature of the Processing and the information available to gellibn.
6. Personal Data Breach. gellibn shall notify Customer without undue delay and, where
feasible, not later than within 72 hours upon becoming aware of a Personal Data Breach
affecting Customer Personal Data. In such event, gellibn shall provide Customer with
reasonable and available information to assist Customer in meeting any obligations to
inform Data Subjects or Supervisory Authorities of the Personal Data Breach. gellibn
shall reasonably cooperate with Customer and take such commercially reasonable steps as
are agreed by the parties or required under Applicable Law to assist in the investigation,
mitigation, and remediation of a Personal Data Breach.
7. Sub Processing.
7.1. Customer authorizes gellibn to appoint (and permits each Sub Processor
appointed in accordance with this Section 7 to appoint) Sub Processors in
accordance with this Section 7
7.2. gellibn may continue to use those Sub Processors already engaged by
gellibn and listed at https:// gellibn.com/subprocessors.
7.3. gellibn may appoint new Sub Processors and shall give notice of any such
appointment to Customer by updating the list available at
https:// gellibn.com/subprocessors. Customer may reasonably object to a
proposed appointment of a Sub Processor by providing a written objection to
dpo@ gellibn.com within seven (7) days of such notice (the “Objection
Period”). In the event Customer reasonably objects to such appointment of a Sub-
processor, as set forth above, Customer may, as a sole remedy, terminate the
applicable Terms and this DPA (and stop using the Services/Platform/App) by
providing written notice to Processor within the Objection Period; It being clarified
that (i) all amounts outstanding under the applicable Terms prior to the applicable
termination shall be duly paid, and (ii) Customer will have no further claims against
Processor due to (a) past use of approved Sub-processors prior to the date of
objection or (b) the termination of the Terms (including, inter alia, any refunds) and
the DPA in the situation described in this section.
7.4. gellibn shall ensure that the arrangement between gellibn and each
Sub Processor is governed by a written contract, including terms that offer a
materially similar level of protection for Customer Personal Data as those set out
in this DPA and meet the requirements of Applicable Law. gellibn shall remain
fully liable to the Customer for the performance of any Sub Processor's obligations.
8. Data Subject Rights. Customershall be solely responsible for compliance with any statutory
obligations concerning requests to exercise Data Subject rights under Data Protection Laws
(e.g., for access, rectification, deletion of Customer Personal Data, etc.). gellibn shall,
at Customer's sole expense, use commercially reasonable efforts to assist Customer in
fulfilling Customer's obligations with respect to such Data Subject requests, as required
under Data Protection Laws. If gellibn receives a Data Subject in respect of Customer
Personal Data, gellibn shall promptly notify Customer of such request and shall not
respond to such request except on the written instructions of Customer or as required by
Data Protection Laws, in which case gellibn shall, to the extent permitted, inform
Customer of such legal requirement prior to responding to the request.
9. Data Protection Impact Assessment and Prior Consultation. At Customer’s request and
expense, gellibn shall provide reasonable assistance to Customer with any data
protection impact assessments or prior consultations with Supervisory Authorities or other
data privacy authorities in connection with Customer Personal Data.
10. Deletion or Return of Customer Personal Data. gellibn shall, within 60 days of the
date of cessation of provision of the Services to Customer, delete, return, or anonymize all
copies of such Customer Personal Data, provided however that gellibn may retain
Customer Personal Data, as permitted by applicable law.
11. Audit Rights.
11.1. Subject to this Section 11, gellibn shall make available to an auditor
mandated by Customer such information reasonably necessary to demonstrate
compliance with this DPA and shall allow for audits, including inspections, by such
reputable auditor mandated by the Customer in relation to the Processing of the
Customer Personal Data by gellibn, provided that such third-party auditor
shall be subject to confidentiality obligations.
11.2. Any audit or inspection shall be at Customer's sole expense, and subject to
gellibn's reasonable security policies and obligations to third parties, and
shall be conducted following prior coordination with gellibn. The results of
any audit or inspection shall be considered the confidential information of
gellibn and shall be treated with the same degree of care as Customer affords
its own confidential information.
11.3. Customer and any auditor on its behalf shall use best efforts to minimize or avoid
causing any damage, injury or disruption to gellibn's premises, equipment,
employees, and business and shall not interfere with the gellibn's day-to-day
operations. The parties shall agree upon the scope, timing and duration of the audit
or inspection and the reimbursement rate, for which Customer shall be responsible.
11.4. gellibn is not required to give access to its premises for the purposes of such
an audit or inspection (i) to any individual, unless he or she produces reasonable
evidence of identity and authority; (ii) if gellibn was not given a prior written
notice of such audit or inspection; (iii) outside of normal business hours at those
premises, unless the audit or inspection needs to be conducted on an emergency
basis; or (iii) for the purposes of more than one audit or inspection in any calendar
year, except where Customer reasonably considers it necessary because of genuine
concern as to gellibn's compliance with this DPA or where Customer is
required to do so under Applicable Law.
12. Indemnity. Customer shall indemnify and hold gellibn harmless against all claims,
actions, third party claims, losses, damages and expenses incurred by gellibn and
arising directly or indirectly out of or in connection with a breach of this DPA and/or the
Data Protection Laws by Customer. Each party's liability toward the other party shall be
subject to the limitations on liability under the Terms.
13. General Terms.
13.1. Governing Law and Jurisdiction. The parties hereby submit to the choice of
jurisdiction stipulated in the Terms with respect to any disputes or claims under
this DPA. This DPA is governed by the laws of the country or territory stipulated for
this purpose in the Terms.
13.2. Order of Precedence. This DPA does not in any way limit or derogate from
Customer's obligations and liabilities towards gellibn under the Terms and/or
pursuant to Data Protection Laws or any law applicable to Customer. In the event
of inconsistencies between the provisions of this DPA and any other agreements
between the parties, including the Terms, the provisions of this DPA shall prevail.
13.3. Severance. Should any provision of this DPA be held invalid or unenforceable, the
remainder of this DPA shall remain valid and in force. The invalid or unenforceable
provision shall be amended as needed to ensure its validity and enforceability,
while preserving the parties' intentions as closely as possible. If this is not possible,
it shall be construed as if the invalid or unenforceable part had never been included.
Schedule 1: Details of Processing of Customer Personal Data
This Schedule 1 includes certain details of the Processing of Customer Personal Data as required
by Article 28(3) GDPR.
Subject matter and duration of the Processing of Customer Personal Data.
gellibn shall process the Customer Personal Data for the purpose of provision of Services to
the Customer as described in the Terms, in gellibn's Privacy Policy, available at
https:// gellibn.com/privacy/ ("Privacy Policy"), and this DPA.
The nature and purpose of the Processing of Customer Personal Data:
Providing the Platform, and App and rendering Services to the Customer, as detailed in the Terms
and the Privacy Polcy.
The types of Customer Personal Data to be Processed are as follows:
As detailed in the Section 1.3 of the Privacy Notice entitled "Employees", namely registration data,
data collected automatically, materials uploaded by Employees, and geo-location.
The categories of Data Subject to whom the Customer Personal Data relates to are as follows:
Data Subjects who are Customer's Employees who use Customer's dedicated App on
gellibn's Platform.
The obligations and rights of Controller.
The obligations and rights of Customer are set out in the Terms and this DPA.