TERMS AND CONDITIONS OF ACCESS AND SERVICE
BY ACCEPTING THE ACCOMPANYING PROPOSAL, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS & CONDITIONS. FURTHER, YOU AGREE THAT THE INFORMATION YOU HAVE PROVIDED TO US IS TRUE AND ACCURATE AND ACKOWLEDGE YOUR AUTHORITY TO DO SO ON BEHALF OF YOUR COMPANY (IF APPLICABLE).
In this Agreement:
1.1 Access means the Customer and User obtaining access to the Software via the Website upon payment of the Fees.
1.2 Additional Contract Service means ad hoc services, being services outside those provided in the Proposal for the Services.
1.3 Availability means the percentage of time the Software is available to Customer calculated in accordance with the Microsoft Online Services Service Level Agreement – https://azure.microsoft.com/en-us/support/legal/sla/app-service/v1_0/.
1.4 Availability Service Level means at least 99.95% availability for each Service.
1.5 Commencement Date means the date that you have agreed to accept the Proposal.
1.6 Confidential Information means any and all information concerning the other party’s business, including information marked as confidential or which the discloser treats as confidential or which the recipient knows or ought to know is confidential, but does not include information which:
(a) is in the public domain (other than as a result of unauthorised disclosure);
(b) is trivial;
(c) the recipient already possesses at the time of disclosure (unless the information was received through unauthorised disclosure or is subject to prior confidentiality obligations); or
(d) is independently developed or acquired by the recipient (except through unauthorised disclosure).
1.7 Customer Supplied Items means those items 4 which Customer is obliged to supply Attekus in respect of the provision of the Services.
1.8 Data means the data entered by the Customer or User accessing the Software.
1.9 Fees means the fees, expenses and charges payable by the Customer to Attekus in respect of Accessing the Software and Attekus providing the Services that are set out in the Proposal or in addition to the Proposal as required.
1.10 Intellectual Property Rights includes copyright, patent, design and all other proprietary rights, or any rights to registration of such rights, whether created before or after the date of this Agreement.
1.11 Yearly Subscription Fee means the charge payable by the Customer on a yearly basis for the Services set out in the Proposal and as may be varied from time to time in accordance with this Agreement.
1.12 Personal Information has the same meaning given to it in the Privacy Act 1998 (Cth).
1.13 Proposal refers to the document outlining the items being provided to the Customer by Attekus as part of the purchase of Software and Services.
1.14 Related Bodies Corporate has the meaning given to that term in section 9 of the Corporations Act 2001 (Cth).
1.15 Services means the services referred to in the Proposal.
1.16 Service Levels means the services levels provided to you by Attekus as set out in the Proposal.
1.17 Software means the Bookable software provided as a supported and hosted service by Attekus.
1.18 Statement of Work means a document setting out the operational requirements for certain Services that is agreed by the parties and is subject to the provisions of this Agreement.
1.19 Taxes includes any taxes, (including GST), duties or government charges arising out of or in connection with the Services or this Agreement.
1.20 Tax Invoice means an invoice that is in a form that complies with A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.21 Technical Specifications means the specifications relating to the performance and availability of the Software, the technical requirements of any device that Accesses the Software and any other technical issues that relate to the Software or the Agreement that may be posted by Attekus.
1.22 Third Party Provider means any third-party IT service provider supplying IT services to Attekus upon whom Attekus’ achievement of the Service Levels may be dependent.
1.23 Term means a 365 day period within which Customer can Access the Software starting on the Commencement Date.
1.24 User means a person who has been authorized by the Customer to Access the Software pursuant to the Agreement.
1.25 Website means Attekus’s website from time to time, currently at www.attekus.com.au.
2. COMPANY OBLIGATIONS
2.1 During the Term, Attekus will provide the Customer and the Users Access to the Software in accordance with the Service Levels and this Agreement.
(a) only use the Software in accordance with this Agreement and any applicable laws and regulations;
(b) ensure that Users agree to and comply with the User terms and conditions;
(c) only permit Users access to the Software and not resell, lease, reproduce, distribute, disclose or allow use of the Software in any format, through any timesharing service, network or by other means, to any third party who is not an authorised User;
(d) use reasonable efforts to ensure that no unauthorized use or Access to the Software occurs and reasonably cooperate with and assist Attekus in preventing and identifying any unauthorised use of, or access to, the Software by your personnel or otherwise; and
(e) not interfere with or disrupt use of the Software or attempt to gain unauthorised access to the Software or any related systems and/or data.
2.2 The Customer is liable for all activities which occur in the course of its use of the Software, regardless of whether the activities are undertaken by the Customer, the Users, the Customer’s personnel or a third party (including the Customer’s contractors or agents).
3. SCOPE OF SERVICES
3.1 Subject to clause 3.4, Attekus will provide the Services to the Customer in accordance and where relevant, with the agreed Service Levels.
3.2 In the provision of the Services, Attekus warrants that it will provide the Services with reasonable skill and care to be expected of a company engaged in the provision of computer facilities management services of the size, type, scope and complexity contemplated by this Agreement.
3.3 Further to clause 3.2, Attekus will at all times during the continuance of this Agreement provide an adequate number of suitably qualified and experienced personnel to provide the Services and comply with its obligations under this Agreement.
3.4 Customer will ensure that it provides any Customer Supplied Items as reasonably required by Attekus. Customer acknowledges that Attekus will not be responsible for any non-achievement of the Service Levels if such non-achievement is due, in whole or in part, to Customer not providing the agreed Customer Supplied Items.
4. LICENCE TERMS
4.1 Attekus grants to Customer a limited, non-exclusive, non-transferable, revocable licence to:
(a) Access the Software solely for the purpose of the Customer’s business operations and in accordance with this Agreement; and
(b) allow Users’ Access to the Software.
4.2 Customer must not:
(a) allow Access to the Software by any person other than the Users;
(b) modify, pledge, sub-license, lease, rent, loan, assign or create derivative works based on the Software including its user interfaces; or
(c) copy, adapt, translate, distribute, publish, communicate to the public, or create any adaptation, translation or derivative based on the Software unless expressly permitted by this Agreement or the law;
(d) reverse engineer, de-compile, disassemble or extract any element of and/or otherwise access, examine, share or discover any source code, object code, algorithms, methods or techniques embodied in the Software;
(e) remove, alter or obscure, any disclaimer or notice, or any restricted right legend, trademark, copyright or other ownership right legend appearing in the Software, on a screen or any print out from the Software.
4.3 The Customer grants Attekus a non-exclusive, royalty free, worldwide, licence to use, modify, disclose and access Customer and User’s Data:
(a) for the purpose of providing Access to the Software under this Agreement in order to enhance or repair the Software or any of its components;
(b) for the purpose of complying with Attekus’s obligations at law.
4.4 Customer acknowledges and agrees that:
(a) the Software is provided on a shared service basis to the Customer and other customers from a common code base and Attekus may from time to time, without the prior consent of Customer:
(i) change, add or delete the functions, features, performance or other characteristics of the Software to enhance its features and functionality, and if such change, addition or deletion is made, the specifications of the Software shall be amended accordingly;
(ii) correct errors and/or patch the Software; and
(iii) amend the Technical Specifications.
(b) Attekus will provide prior notice (including via email) of major changes or new versions of the Software by posting the information on the Website. Attekus does not guarantee that any change, addition, deletion, error correction or patch will be compatible with any application, other software or interface that connects to or interfaces with the Software that has been made by or on behalf of Customer. Attekus will not be liable for any loss, damage or expense which Customer may incur as the result of any change, addition, deletion, error correction or patch, in any circumstances.
(c) Customer and its Users are solely responsible for entering Data into the Software, maintaining that Data and ensuring that it is accurate and not false, misleading or deceptive nor is it likely to mislead or deceive.
(d) it will comply with all applicable laws in connection with Access to the Software and this Agreement.
5. SERVICE LEVELS
5.1 Subject to clause 3.4, Attekus will provide the Customer the Software and Services in accordance with the Services Levels.
5.2 Guaranteed ‘Uptime’ Service Levels of 99.95% are provided to all customer as part of Attekus’ Cloud hosting agreement with Microsoft Online Services: https://azure.microsoft.com/en-us/support/legal/sla/app-service/v1_0/.
6. AVAILABILITY LEVELS
6.1 Attekus will supply the Services to achieve the Availability Service Level.
6.2 Attekus will promptly notify Customer of any outages or any other fault which may cause an interruption to the availability of the Customer’s operations.
6.3 Where an interruption to Availability is experienced by reason of a fault occurring in Customer’s communications network, or other causes beyond the reasonable control of Attekus such as the act or omission of a Third Party Provider, Attekus will not be deemed responsible for such downtime unless the fault results from a failure by Attekus to perform or properly carry out the Services.
7. FEES & PAYMENT
7.1 Customer agrees to pay to Attekus the applicable Fees for Accessing the Software and for the provision of the Services in accordance with this Agreement.
7.2 The Yearly Subscription Fee is for the Services and does not include the Additional Contract Services Costs. In respect of such items outside the Services, such costs are to be paid by the Customer if and when they arise provided always that where the cost is negotiated by Attekus. Attekus agrees to attempt to minimise the cost to the Customer and to seek Customer’s approval prior to incurring the cost.
7.3 Customer will pay all Fees within fourteen (14) days of the receipt of Attekus’s correctly rendered invoice.
7.4 The Yearly Subscription Fee(s) set out in this Agreement will be invoiced yearly in advance and will be subject to CPI increases annually based on the current rate at the time of renewal of the Agreement. Any hourly or daily rates or other charges for Additional Contract Services set out in this Agreement will be invoiced fortnightly in arrears. If Attekus does not receive the Fees and expenses by the due date then the Customer must also pay Attekus a late payment charge that is calculated daily using an annual rate of interest that is 4% over the Reserve Bank of Australia’s Cash Rate (average 11 am rate), on the amount that is overdue from the date that payment should have been made until the date that payment is receive, both dates inclusive.
7.5 The Fees specified in the Proposal are valid for 6 months after the date the Customer has accepted the Proposal. These Fees will apply to all Services that are performed during that 6 month period, unless the parties agree different Fees. Attekus may increase the Fees at the end of the 6 month period.
8. CUSTOMER’S OBLIGATION TO ASSIST ATTEKUS
8.1 If requested by Attekus, the Customer agrees to:
(a) provide Attekus with the necessary facilities, equipment and resources to enable Attekus to perform the Services;
(b) provide Attekus with complete and accurate information in a timely manner as may be needed to facilitate Attekus performing the Services;
(c) make available appropriately trained personnel in a timely manner who are capable of answering Attekus’s questions;
(d) make available at least one suitably qualified, full-time resource to maintain and administer the Software throughout the duration of its Term; and
(e) promptly make any decisions needed by Attekus to perform the Services.
8.2 The Customer acknowledges that a failure to meet the obligations in clause 8.1 may result in delays in the provision of the Services. Attekus shall not be responsible for any such delays.
8.3 Attekus agrees to provide the Customer with a help desk for remote support between the hours of 8.30a.m. and 6.00p.m. Monday to Friday. Details of the helpdesk services are described in the Proposal.
8.4 If the Services are performed at the Customer’s offices, the Customer shall provide office space and facilities to Attekus’s personnel commensurate with those provided to the Customer’s own employees of similar standing. Any costs incurred in travel to the Customer’s offices may be recoverable.
8.5 The Customer warrants that it has the authority to allow Attekus or its subcontractors to use any facilities, equipment, resources and/or Intellectual Property Rights which the Customer provides to Attekus or its subcontractors for use in connection with performing the Services.
9. INTELLECTUAL PROPERTY
9.1 Attekus does not grant, nor does the Customer obtain, any right in the Software, programs, methodologies, systems or materials utilised by Attekus in providing the Services.
9.2 The Customer is not granted any right of ownership in any deliverable, nor is it granted any right to transfer, sublicense or provide access to any third party, copy, adapt, translate, commercialise, communicate to the public or otherwise deal with that deliverable.
10. OWNERSHIP OF DATA
10.1 Data files created by the processing of the Customer’s Data are agreed to be the sole and exclusive property of the Customer. Attekus will use all reasonable endeavours to arrange for the security and integrity of Customer’s Data when data files are transferred over the internet.
11. CONFIDENTIALITY AND PRIVACY
11.1 Each party agrees that, (in addition to any prior confidentiality agreement signed between the parties), it will not permit the use or disclosure of the other party’s Confidential Information to any third party, other than:
(a) Attekus may disclose it to its subcontractors and employees; and
(b) either party may disclose it to their professional advisers,
unless such use or disclosure is specifically authorised in writing by the other party or by law. Confidential Information must only be used for the purpose of performing the obligations under this Agreement, or if the recipient is a professional adviser, the professional adviser may use the Confidential Information for purposes connected with advising on or reporting on this Agreement.
11.2 Each party must use any Personal Information of which it becomes aware through the performance of the Services or in connection with this Agreement in accordance with the law. The Customer warrants that it has obtained each individual’s consent for Attekus and its subcontractors or their respective Related Bodies Corporate, to use, store, manipulate or otherwise deal with the Personal Information for any purpose connected with this Agreement or the provision of the Services to the Customer, and that such usage may include transferring the data overseas to any of Attekus’s Related Bodies Corporate for that entity’s use, storage, manipulation or dealing for any purpose connected with this Agreement or the provision of the Services.
12. LIMITATION OF LIABILITY
12.1 Conditions, warranties or other rights for the benefit of the Customer may be implied or given in respect of this Agreement by the Competition and Consumer Act 2010 (Cth) or other laws. Where it is not lawful or possible to exclude them, then those conditions, warranties or other rights apply to this Agreement, but only to the extent required by law. All other implied conditions, warranties and rights, together with any implied by custom or other circumstances, are excluded.
12.2 Subject to the provisions of clauses 12.1, 12.3 and 12.4 and despite any implication arising from any other clauses in this Agreement, Attekus is not liable to the Customer in contract (including under an indemnity), in tort, breach of statutory duty or otherwise, in respect of any loss, damage or expenses arising out of or in connection with the Software, any Services or this Agreement (including indirect, consequential or economic loss or loss of profits, loss of revenue, income or anticipated savings however arising, loss of data, loss of goodwill or reputation) whether or not that loss was in the reasonable contemplation of the parties when entering into this Agreement.
12.3 Attekus is not liable to the Customer for any loss suffered by the Customer due to Attekus’s inability to comply with its obligations under this Agreement as a result of accident, scarcity or materials, strikes, war, terrorist attack, acts of God, government interference or any cause beyond its control.
12.4 Each party shall make every effort to mitigate any loss, damage or expense that it may suffer arising out of or in connection with the Software, any Services or this Agreement.
13.1 The Customer may terminate this Agreement for convenience by providing Attekus 90 days notice in writing.
13.2 Attekus may terminate this Agreement for convenience by providing the Customer 90 days notice in writing.
13.3 Without in any way limiting any other remedies that a party may have, where either party is in breach of a material condition of this Agreement and does not remedy that breach within 14 days after receiving notice in writing to do so from the other party, the party not in breach may elect to terminate this Agreement for cause with the provision of ninety (90) days’ notice to the other party of its intention to terminate.
13.4 In addition to the right of termination under clause 13.3 Attekus is entitled:
(a) to suspend Access to the Software or the provision of Services whilst any Fees which has fallen due for payment by Customer remains overdue for payment; and
(b) to terminate this Agreement immediately by written notice, if the Customer:
(i) sells or otherwise disposes of substantially all of its business or assets to a third party or control of the Customer is in any manner transferred;
(ii) breaches the provisions of clauses 8.1, 9, 9. or 11 ;or
(iii) becomes subject to external administration within the meaning of chapter 5 of the Corporations Act 2001 (Cth).
13.5 If Attekus terminates any Service under clauses 13.3 or 13.4, then the Customer must immediately pay all the Fees.
13.6 .Upon termination the parties shall promptly return to the other:
(a) all Confidential Information belonging to the other;
(b) all Personal Information (as defined in the Privacy Act 1988 (Cth)) obtained from the other; and
(c) all software media, hardware, materials, books, drawings, records or other items that belong to the other party.
14.1 Any notice or communication given under this Agreement must be in writing and signed by the person giving the notice or sending the communication.
14.2 Any such notice or communication is to be delivered to the address, or sent by prepaid security post to the address, or email address of the recipient as set out in this Agreement. Each party must promptly notify the other of any change of address or contact details, and such details shall be incorporated into this Agreement from the date following the date of receipt.
14.3 Any notice or communication sent in accordance with clause 14.2 is deemed to have been received:
(a) if delivered or posted, on the date of delivery or posting;
(b) if sent by email, upon production of a read receipt of the communication returned by the recipient.
14.4 The parties are entitled to rely on any notice or communication in electronic format, including any facsimile or email, which on its face appears authentic, and which has the purported author’s name on it to the same extent as if it were a written notice signed by the author. The parties consent to this Agreement being signed or varied through electronic communication using electronic signatures.
14.5 Both the Customer and Attekus are entitled to assign the benefit of or novate this Agreement provided it has first obtained the written consent of the other.
14.6 Attekus may subcontract the performance of the Services to any of its Related Bodies Corporate without the consent of the Customer. Attekus may subcontract the performance of the Services to a third party (other than a Related Body Corporate) provided it has first notified the Customer.
14.7 If any part of this Agreement is for any reason declared invalid or unenforceable the validity of the remaining portion of this Agreement or any Statement of Work will not be affected and the remaining portion will remain in force.
14.8 Nothing in this Agreement is to constitute or be deemed to constitute a partnership among the parties, joint venture, fiduciary relationship or any party as agent for another for any purpose. Neither party shall have authority to bind another or contract in the name of the other in any way or for any purpose.
14.9 The terms and conditions of this Agreement, including the Schedules, can only be varied by written document signed by both parties including an email, which has been signed by or otherwise agreed by both parties. A waiver of any of the rights of a party is not effective unless the extent of the waiver is expressly set out in a written document that is signed by that party.
14.10 This Agreement and the Schedules records the entire agreement between the parties in relation to its subject matter. The Agreement and the relevant Schedules supersede all previous negotiations, understandings or agreements in relation to the subject matter and expressly excludes the pre-printed terms and conditions of the Customer’s purchase order (if any).
14.11 This Agreement is governed by the laws of the State of New South Wales, Australia. Attekus and the Customer submit to the jurisdiction of the courts of that State and of all courts competent to hear appeals from those courts.