THIS SOFTWARE AS A SERVICE TERMS AND CONDITIONS (the “Agreement”) commences at the exact time and date when the Client accepts the Terms & Conditions for either a trial or package.
- The Client is of the opinion that the Contractor has the necessary qualifications, experience and abilities to provide computer services to the Client.
- The Contractor is agreeable to providing such computer services to the Client on the terms and conditions set out in this Agreement.
In consideration of the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Contractor (individually the “Party” and collectively the “Parties” to this Agreement) agree as follows:
- SERVICES PROVIDED
1.1 The Client hereby agrees to engage the Contractor to provide the Client with the following services (the “Services”):
- Provision of software as a service; and
- Provision of support for software as a service. Service as per the agreed level provided in the purchased package.
1.2 The Contractor will provide Technical Support to the Client via both telephone/online and email on weekdays during the hours 8:30 am through to 5:00 pm Australian Eastern Standard Time, with the exclusion of Public Holidays (“Support Hours”). The Client may initiate a helpdesk ticket during Support Hours through the agreed platforms. The Contractor will use commercially reasonable efforts to respond to all Helpdesk tickets within one to three business days.
1.3 The Services will also include any other services which the Parties may agree on. The Contractor hereby agrees to provide such Services to the Client, as defined in Appendix 1.
2.1 During the trial period of fourteen (14) days:
- no fees will apply
- the Services are provided as is and no warranty obligations of the Contractor will apply
- the Client may terminate this Agreement and all of its rights hereunder at the end of
- the trial period and will be subject to earlier termination as provided in this agreement.
- RESTRICTIONS AND RESPONSIBILITIES
3.1 Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by EV20 Consulting Group, the Client must not reverse compile, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of the Service or any software, documentation or data related to the Services
3.2 With respect to any Services that is distributed or provided to the Client for us on the Client’s premises or devices, the Contractor hereby grants the Client a non-exclusive, non-transferable, non-sub licensable license to use such Services during the Term only in connection with the Services.
3.3 The Client represents, covenants, and warrants that the Client will use the Services only in compliance with the Contractor’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.
3.4 The Client hereby agrees to indemnify and hold harmless the Contractor against any damages, liabilities, settlements and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Client’s use of Services. Although the Contractor has no obligation to monitor the Client’s use of the Services, the Contractor may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation or the foregoing.
3.5 The Services are provided to the Client licenses and the Client licenses only. Access to the Services is outline by User license in Appendix 2.
3.6 For security, Clients are obligated to update passwords every two months and take every measure possible to keep personal information secure. Clients are obliged to contact the Contractor should a security breach occur.
- TERM OF AGREEMENT AND TERMINATION
4.1 The term of this Agreement (the “Term”) will begin on the date of this Agreement and will remain in full force and effect indefinitely until terminated as provided in this Agreement.
4.2 In the event that either Party wishes to terminate this Agreement, that Party will be required to provide 30 days’ written notice to the other Party.
4.3 In the event that either Party breaches a material provision under this Agreement, the non-defaulting Party may terminate this Agreement immediately and require the defaulting Party to indemnify the non-defaulting Party against all reasonable damages.
4.4 This Agreement may be terminated at any time by mutual agreement of the Parties. Except as otherwise provided in this Agreement, the obligations of the Contractor will end upon the termination of this Agreement. The Contractor will make Client Data available to the Client in a form the Company deems appropriate for a period of thirty (30) days, but thereafter the Company may, but is not obligated to, delete stored Client data. This includes trial periods.
4.5 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidential obligations, warranty disclaimers, and limitations of liability.
5.1 Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement.
5.2 The Client will at all times indemnify and hold harmless the Contractor and its officers, employees and agents in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or arising directly or indirectly from:
- a breach by the Client of its obligations under this Agreement;
- any wilful, unlawful or negligent act or omission of the Client.
- WARRANTY AND DISCLAIMER
6.1 The Contractor shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform the Implementation Services in a professional and proper manner. Services might be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Contractor or by third party providers or because of other causes beyond the Contractor’s reasonable control, but the Contractor shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. However, the Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
6.2 While all due care has been taken, the Contractor does not warrant that the operation of the Services will be uninterrupted or error free or that any third party components of the Services will be accurate or error free of that the Services will be compatible with any application, program or software not specifically identified as compatible by the Contractor.
6.3 The Contractor’s obligation and the Client’s exclusive remedy during the Licence Period and any Renewal Period are limited, in the Contractor’s absolute discretion, to:
- The Contractor, at its own expense, using all reasonable endeavours to rectify any nonconformance of the Services by repair (by way of a patch, workaround, correction or otherwise) within a reasonable period of time; or
- a refund of the Fees paid if, in the Contractor’s reasonable opinion, it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost, whereupon this Agreement will terminate.
6.4 The Client acknowledges and accepts that it is the Client’s sole responsibility to ensure that:
- the facilities and functions of the Services meet the Client’s requirements;
- the Services are appropriate for the specific circumstance of the Client and are within the laws and regulations of the Client’s jurisdiction.
- the Contractor does not purport to provide any legal, taxation or accountancy advice by providing the Service under this Agreement.
6.5 The Contractor will not be liable for any failure of the Services to provide any function not described in the documentation (provided online as part of the Services) or any failure attributable to:
- any modification to the Services other than by the Contractor;
- accident, abuse or misapplication of Services by the Client;
- use of the Services with other software or equipment without the Contractor’s written consent;
- use of other than the latest, unaltered current release of the Services;
- or use other than in accordance with this Agreement. If, upon investigation, a problem with the Services is determined not to be the Contractor’s responsibility, the Contractor may invoice the Client immediately for all reasonable costs and expenses incurred by the
- Contractor in the course of or in consequence of such investigation.
- LIMITATIONS ON LIABILITY
7.1 Except in the case of death or personal injury caused by the Contractor’s negligence, the liability of the Company under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the fees paid by the Client to the Contractor for the Services under this Agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not the Contractor has been advised of the possibility of such damages.
7.2 Neither party is liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.
The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect.
Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement is in AUD (Australian Dollars). Prices exclude tax exemptions.
10.1 The Contractor will charge the Client for the Services as follows (the “Payment”): The Client will pay the Contractor a monthly or annual rate within a Base, Plus, Pro or Custom Package.
10.2 Invoices submitted by the Contractor to the Client are due within 30 days of receipt.
10.3 In the event that this Agreement is terminated by the Client prior to completion of the Services but where the Services have been partially performed, the Contractor will be entitled to pro rata payment of the Payment to the date of termination provided that there has been no breach of contract on the part of the Contractor.
10.4 The Contractor will not be reimbursed for any expenses incurred in connection with providing the Services of this Agreement.
- INTEREST ON LATE PAYMENTS
Interest payable on any overdue amounts under this Agreement is charged at a rate of 1.50% monthly or at the maximum rate enforceable under applicable legislation, whichever is lower, according to the Penalty Interest Rates Act 1983 (VIC).
12.1 Confidential information (the “Confidential Information”) refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client.
12.2 The Contractor agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Contractor has obtained, except as authorised by the Client or as required by law. The obligations of confidentiality will apply during the Term and will survive indefinitely upon termination of this Agreement.
12.3 All written and oral information and material disclosed or provided by the Client to the Contractor under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Contractor.
12.4 An exception is to disclose confidential information for such reasons as disclosing relevant confidential information to related bodies corporate, and legal and financial advisors. This will ensure that neither party falls foul of the confidential information provisions for trivial reasons, not generally contemplated by the Agreement.
- OWNERSHIP OF INTELLECTUAL PROPERTY
13.1 All intellectual property populated within the product as data (the “Intellectual Property”) that is developed or produced under this Agreement, will be the sole property of the Client. The use of the Intellectual Property by the Client will not be restricted in any manner. However, the “Intellectual Property” relating to the design and development of the product belongs to the Contractor. The use of the product design and development will not be restricted or
exclusive in any manner.
13.2 The Client may not use the Intellectual Property for any purpose other than that contracted for in this Agreement except with the written consent of the Contractor. The Client will be responsible for any and all damages resulting from the unauthorised use of the Intellectual Property.
- RETURN OF PROPERTY
Upon the expiry or termination of this Agreement, the Contractor will return to the Client any property, documentation, records, or Confidential Information which is the property of the Client.
- CAPACITY/INDEPENDENT CONTRACTOR
In providing the Services under this Agreement it is expressly agreed that the Contractor is acting as an independent contractor and not as an employee. The Contractor and the Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service.
- RIGHT OF SUBSTITUTION
16.1 Except as otherwise provided in this Agreement, the Contractor may, at the Contractor’s absolute discretion, engage a third party sub-contractor to perform some or all of the obligations of the Contractor under this Agreement and the Client will not hire or engage any third parties to assist with the provision of the Services.
16.2 In the event that the Contractor hires a sub-contractor:
- the Contractor will pay the sub-contractor for its services and the Compensation will remain payable by the Client to the Contractor.
- for the purposes of the indemnification clause of this Agreement, the sub-contractor is an agent of the Contractor.
Except as otherwise provided in this Agreement, the Contractor will have full control over working time, methods, and decision making in relation to provision of the Services in accordance with the Agreement. The Contractor will work autonomously and not at the direction of the Client. However, the Contractor will be responsive to the reasonable needs and concerns of the Client.
Except as otherwise provided in this Agreement, the Contractor will provide at the Contractor’s own expense, any and all tools, equipment, cabling, software, replacement parts, supplies and any other items or parts necessary to deliver the Services in accordance with the Agreement.
- NO EXCLUSIVITY
The Parties acknowledge that this Agreement is non-exclusive and that either Party will be free, during and after the Term, to engage or contract with third parties for the provision of services similar to the Services.
All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties’ email addresses.
- MODIFICATION OF AGREEMENT
Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced via a compulsory opt in action by each Party or an authorised representative of each Party.
- TIME OF THE ESSENCE
Time is of the essence in this Agreement. No extension or variation of this Agreement will operate as a waiver of this provision.
The Contractor will not voluntarily, or by operation of law, assign or otherwise transfer its obligations under this Agreement without the prior written consent of the Client.
- ENTIRE AGREEMENT
It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement.
This Agreement will enure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns.
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
- GOVERNING LAW
This Agreement will be governed by and construed in accordance with the laws of the State of New South Wales.
In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
THIS TERMS AND CONDITIONS AGREEMENT HAS BEEN ACCEPTED BY BOTH PARTIES
WHEN THE CLIENT AND ITS USERS TICKS THE COMPULSORY OPT-IN T&CS BOX UPON TRIAL OR PURCHASE.