End User Licence Agreement (EULA)

Between The Decisive Group Pty Ltd and the user for the SafeBUDDY Suite of products.
Please read this EULA carefully, as it sets out the basis upon which we  licence the Software for use.

By clicking “accept agreement” when you first install the Software, you agree to be bound by the provisions of this EULA. If you do not agree to be bound by the provisions of this EULA, you must click “reject agreement” during the installation process and promptly return the Software (on the media upon which the Software was provided) to your supplier or delete from the computer or media storage device it was downloaded to. Upon returning the Software and providing proof of purchase, you will be entitled to a refund.

By agreeing to be bound by this EULA, you further agree that your employees OR any person you authorise to use the Software will comply with the provision of this EULA.

AGREEMENT

  1. Definitions

1.1    Except to the extent expressly provided otherwise, in this EULA:

Activation” means the software product keys are required to be activated in order to be useable.

Charges or Fees” means those amounts that the parties have agreed in writing shall be payable by the User to the Licensor in respect of this EULA;

Demonstration Use” means the use of limited or restricted Software produced by the Licensor for the purpose of a trial or education. This software cannot be used for live data.

Documentation” means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the User;

EULA” means this end user  licence agreement, including any amendments to this end user  licence agreement from time to time;

Effective Date” means the date upon which the User gives the User’s express consent to this EULA, following the issue of this EULA by the Licensor;

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registerable or un-registerable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Licensor” means The Decisive Group Pty Ltd incorporated in Australia having its registered office at Suite 1A Level 2, 802 Pacific Highway, Gordon, and NSW 2072.

Licensor Indemnity Event” has the meaning given to it in Clause 13.1;

Maintenance Services” means the supply to the User of Updates and Upgrades;

Minimum Term” means, in respect of this EULA, the period of 12 months beginning on the Effective Date;

Product Keys” means, that the software requires valid serial to be validated in order to operate.

SafeBUDDY SUITE” encompasses the following files, SafeBUDDY, SafeBUDDY Graphs, SafeBUDDY Analysis, SafeBUDDY Upgrade, and SafeBUDDY Demonstration.

Services” means any services that the Licensor provides to the User, or has an obligation to provide to the User, under this EULA;

Software” means SafeBUDDY Suite;

Software Defect” means a defect, error or bug in the Software having a material adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:

(a)    any act or omission of the User or any person authorised by the User to use the Software;

(b)    any use of the Software contrary to the Documentation by the User or any person authorised by the User to use the Software;

(c)    a failure of the User to perform or observe any of its obligations in this EULA; and/or

(d)    an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;

Software Specification” means the specification for the Software set out in the Documentation;

Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;

“Subscription” means the period for which this EULA is valid. All subscriptions are auto-renewing but may be cancelled in accordance with Clause 3.

Support Services” means support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise;

Term” means the term of this EULA, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;

Third Party Components” means the software may require third party components with separate legal notices or governed by other agreements. These third party components may require separate charges or fees to be paid before the software covered under this EULA is valid.

Update” means a patch or minor version update to the Software;

Upgrade” means a major version upgrade of the Software;

User” means the person to whom the Licensor grants a right to use the Software under this EULA.

Validation” means the process to verify that the software has been activated and is  licenced for use by the User in accordance with the terms of this EULA.

 

  1. Credit

2.1    This document was created using a template from SEQ Legal (http://www.seqlegal.com).

  1. Term

3.1    This EULA shall come into force upon the Effective Date.

3.2    This EULA shall continue in force indefinitely while the agreed subscription fees are maintained and the  licencee is not in default, subject to termination in accordance with Clause 15.

3.3    The End User understands that failure to maintain the subscriptions fees may make the Software unusable.

  1. Licence

4.1    The  licence is granted subject to the End User’s obligation to pay and continue paying the Subscription Fees and the End User’s compliance with this Agreement.

4.2    The Licensor hereby grants to the User from the date of supply of the Software to the User until the end of the Term a non-exclusive  licence to:

(a)    install a single instance of the Software;

(b)    use a single instance of the Software in accordance with the Documentation; and

(c)    create, store and maintain up back-up copies of the Software,

subject to the limitations and prohibitions set out and referred to in this Clause 4.

4.2    The User may not sub- licence and must not purport to sub- licence any rights granted under Clause 4.1.

4.3    Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 4 shall be subject to the following prohibitions:

(a)    the User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;

(b)    the User must not alter, edit or adapt the Software; and

(c)    the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software.

4.4    The User shall be responsible for the security of copies of the Software supplied to the User under this EULA (or created from such copies) and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this EULA.

  1. Source Code

5.1    Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code.

  1. Maintenance Services

6.1    The Licensor shall provide the Maintenance Services to the User during the Term.

6.2    The Licensor shall provide the Maintenance Services with reasonable skill and care.

6.3    Not used

6.4    Not Used

6.5    The Licensor may suspend the provision of the Maintenance Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

6.6    Either party may terminate the Maintenance Services by giving to the other party at least 30 days’ written notice.

6.7    If the Licensor stops or makes a good faith decision to stop providing maintenance services in relation to the Software to its customers generally, then the Licensor may terminate the Maintenance Services by giving at least 90 days’ written notice of termination to the User.

6.8    The Licensor shall provide limited Maintenance Services for Demonstration Files.

6.8    Not used

  1. Support Services

7.1    The Licensor shall provide the Support Services to the User during the Term.

7.2    The Licensor shall provide the Support Services with reasonable skill and care.

7.3    The Licensor may suspend the provision of the Support Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

  1. No assignment of Intellectual Property Rights

8.1    Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.

  1. Charges

9.1    The User shall pay the Charges to the Licensor in accordance with this EULA.

9.2    All amounts stated in or in relation to this EULA are, unless the context requires otherwise, exclusive of any applicable value added taxes, which will be added to those amounts and payable by the User to the Licensor.

  1. Payments

10.1  The Licensor shall issue receipts for the Charges to the User upon purchase online.

10.2  The User must pay the Charges to the Licensor in advance.

10.3  The User must pay the Charges by debit card, credit card, direct debit, bank transfer (using such payment details as are notified by the Licensor to the User from time to time).

10.4  If the User does not pay any amount properly due to the Licensor under this EULA, the Licensor may:

(a)    charge the User interest on the overdue amount at the rate of 5% per annum above the Reserve Bank base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

  1. Acknowledgements and warranty limitations

12.1  The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.

12.2  The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.

12.3  The User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.

12.4  The User acknowledges that the Licensor will not provide under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, the Licensor does not warrant or represent that the Software or the use of the Software by the User will not give rise to any legal liability on the part of the User or any other person.

12.5  The Licensor shall provide limited support for Demonstration Files.

  1. Product Keys, Activation and Validation

13.1  The User is responsible for the use of product keys assigned to each individual software  licence. A Product key as provided by the licensor are issued for an individual computers and cannot be shared between other computers.

13.2  The licence can be relocated to another computer only by revoking the product key and obtaining a replacement product key or not withstanding this obtaining a new licence.

13.3  In order for the software to be useable the software must be activated and validated .The user acknowledges that the software will not function without successful activation and ongoing validation.

13.4  Activation and Validation associates the use of the software with a specific device. During Activation and Validation, the software will send information about the software and the device to a licensing server. This information includes the version, language and product key of the software, the Internet protocol address of the device, and information derived from the hardware configuration of the device. By using the software the user consents to this information being sent to the secure  licence server.

13.5  Activation will occur on the first instance of installation and may require input of the Product Key. Validation occurs on a regular basis from time to time and ensures that the version being used is a genuinely  licenced and issued product key.

13.6  If the  licence or product key fails validation then the software will fail to work and a new product key will need to be sourced not withstanding 13.2

13.7 Activation and validation requires an internet connection and the licensor has no responsibility should the internet be unusable.

  1. Microsoft Products

15.1  Microsoft, Microsoft Excel are trademarks of the Microsoft Corporation.

15.2  The User acknowledges that access to a current  licenced version of Excel 2013, Excel 2016 or Excel 365 is required for the SafeBUDDY files to work.

  1. Termination

15.1  The Licensor may terminate this EULA by giving to the User not less than 30 days’ written notice of termination

15.2  The User may terminate this EULA by giving to the Licensor not less than 30 days’ written notice of termination.

15.3  Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a)    the other party commits any material breach of this EULA, and the breach is not remediable;

(b)    the other party commits a material breach of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of following the giving of a written notice to the other party requiring the breach to be remedied; or

(c)    the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach).

15.4  Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)     is dissolved;

(ii)    ceases to conduct all (or substantially all) of its business;

(iii)    is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this EULA); or

(d)    if that other party is an individual:

(i)     that other party dies;

(ii)    as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)    that other party is the subject of a bankruptcy petition or order.

 

15.5  The Licensor may terminate this EULA immediately by giving written notice to the User if:

(a)    any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b)    the Licensor has given to the User at least 30 days’ written notice, following the failure to pay, of its intention to terminate this EULA in accordance with this Clause 15.5.

  1. Effects of termination

16.1  Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.1, 10.2, 10.4, 13, 14, 16, 17 and 18.

16.2  The termination of this EULA shall not affect the accrued rights of either party.

16.3  Within 30 days following the termination of this EULA for any reason:

the User must pay to the Licensor any Charges in respect of Services provided to the User before the termination of this EULA and in respect of licences in effect before the termination of this EULA; and

without prejudice to the parties’ other legal rights.

16.4  For the avoidance of doubt, the licences of the Software in this EULA shall terminate upon the termination of this EULA; and, accordingly, the User must immediately cease to use

following the termination of this EULA, the User must:

(a)    return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software; and

(b)    irrevocably delete from all computer systems in its possession or control all copies of the Software.

  1. General

17.1  No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.

17.2  If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

17.3  This EULA may not be varied except by a written document signed by or on behalf of each of the parties.

17.4  Neither party may without the prior written consent of the other party assign, transfer, charge,  licence or otherwise deal in or dispose of any contractual rights or obligations under this EULA.

17.5  This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.

17.6  Nothing in this EULA shall exclude or limit any liability of a party for fraud or fraudulent misrepresentation, or any other liability of a party that may not be excluded or limited under applicable law.

17.7  Subject to and 17.6, this EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

17.8  This EULA shall be governed by and construed in accordance with Australian law.

17.9  The courts of Australia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.

  1. Interpretation

18.1  In this EULA, a reference to a statute or statutory provision includes a reference to:

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

18.2  The Clause headings do not affect the interpretation of this EULA.

18.3  In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

 

Consumer Guarantees, Warranties and Refunds.

Purpose
The Decisive Group is committed to ensuring that our clients are are not disadvantaged with any down time due to software or hardware issues. If after following our trouble shooting guide including technical support please consult this document this Policy covering our warranty procedures.

Consumer Guarantees
The Australian Consumer Law protects consumers by giving them certain guaranteed rights when they buy goods and services. For example, the Law requires that goods must be free of defects, and do what they are meant to do. Services must be carried out with care and skill. These rights, which the Law says automatically apply whenever goods or services are supplied to a consumer, are called ‘Consumer Guarantees’.

Under the Law, these Consumer Guarantees cannot be excluded. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of “acceptable quality” and the failure does not amount to a major failure.

If you believe that a product that you have purchased from The Decisive Group Pty Ltd website is faulty please email support@thedecisivegroup.com.au for assistance and remedy. Should an item be required to be returned for repair you will be asked to pay the postage to send the item to the Support Centre. The Manufacturer or The Decisive Group Pty Ltd will bear the return cost of the refurbished item.

Warranty
Generally the manufacturers of goods sold by The Decisive Group are warranted for a minimum period of 12 months but may be longer. The warranty will include all defects of design, components and manufacturing. Excluded from warranty are damages due to Transport damage, insufficient ventilation of the device, Over-clocking of computer components, Operating outside of the manufacturers stated operating environment  conditions, Unauthorized Modifications, changes, or attempted repairs,  Incorrect use or inappropriate operation, exposure to liquids  and Force majeure (e.g., lightning, over voltage, storm, fire)

The Warranty extends to the hardware only and excludes software whether licenced or not.

 

The Decisive Group Pty Ltd Privacy Policy.

Purpose
The purpose of this policy is to safeguard the privacy and security of your personal information while using our service through our website and including electronic communication.

The Australian Privacy Principles are contained in the Privacy Act 1988. This Privacy Policy outlines how the Decisive Group manages your personal information. It also describes the sorts of personal information held and for what purposes, and how that information is collected, stored, used and disclosed as a result of your use of our websites.

In order to maintain and provide a high quality standard of service it necessary to maintain information on our clients. This information will never be disclosed to another party unless required to provide the service expected of us.

We use a range of security processes to protect the confidentiality and security of personal information that we hold.

Information collection –web signup
When a person signs up in a web form The Decisive Group collects personal information which may include name, address details, telephone and mobile phone numbers, and e-mail addresses.

The website domain, https://TheDecisiveGroup.com.au has been certified with a SSL certificate, making it safe for visitors to share confidential information with us.

Storage and security of personal information
The Decisive Group relies on a third party organisation to maintain these database. Some of these parties are located in the United States of America. Your personal information is kept secure and comply with the U.S/E.U. Safe Harbor framework and the U.S. Swiss Safe Harbor framework as set forth by the U.S. Department of Commerce standards. They are also bound by their own privacy policy which is in line and complementary to our own policy. See http://www.aweber.com/privacy.htm for further details. No other party has or will have access to this information. This information will never be sold or passed on.

Storage Of Credit Card Details

All payments by credit card are hosted by a third party payment provider, Stripe. Any credit card data entered into our payment form is never sent to our server but instead, the data is sent directly to Stripe. No Card Details are stored on our website. Stripe complies with Payment Card Industry Data Security Standard, PCI. Stripe have their own Privacy Policy available from the web.

Why is this so important?

  • Automatically PCI compliant because you don’t handle any sensitive credit card data on your servers.

 

Purpose of information
Information is required to ensure we can provide a quality service to our clients. Information is also maintained in order to advise our clients or potential clients, who have expressed interest by signing up for our email service, news and upcoming developments in our products or services. Persons may elect to remove themselves from this list by following the unsubscribe instructions. This marketing material is generally in email format but may also include SMS and mail.

Other information from use of our web pages.
Browsing websites will also generate information collection. Information collected is time and date of visit, actions and pages visited and IP address. This information is collected in order to improve our service to you as a website visitor. This information may be used, with your permission from time at sign up, to issue, through email, further instructions.

Google analytics may used to track movements. Information on there is available from here.Google Analytics Terms of Use and the Google Privacy Policy).You can opt out of Google Analytics if you disable or refuse the cookie, disable JavaScript, or use the opt-out service provided by Google. To opt out of being tracked by other tracking software that we may use, you will need to manage and delete the cookies using your browser settings.

Links to other sites
Our webpages may contain links to third party websites for informational or other purposes. These websites are not covered by this Privacy Policy. While care with these links is taken The Decisive Group has no control  and cannot be held responsible for the operations of these websites including their privacy practices.

Contact Us
You may contact us for complaints or for further information by email admin@thedecisivegroup.com.au

Direct Debit Request Service Agreement, DDRSA

This is Your Direct Debit Service Agreement with The Decisive group Pty Ltd, ABN 26 166 064 464. It explains what Your obligations are when undertaking a Direct Debit arrangement with us. It also details what our obligations are to You as Your Direct Debit provider. Please keep this agreement for future reference. It forms part of the terms and conditions of Your Direct Debit Request (DDR) and should be read in conjunction with Your DDR authorisation.

Definitions

account means the account held at Your financial institution from which we are authorised to arrange for funds to be debited.

agreement means this Direct Debit Request Service Agreement between You and us.

banking day means a day other than a Saturday or a Sunday or a public holiday listed throughout Australia.

debit day means the day that payment by You to us is due.

debit payment means a particular transaction where a debit is made.

direct debit request means the Direct Debit Request between us and You.

us or we means The Decisive Group Pty Ltd, (the Debit User) You have authorised by requesting a Direct Debit Request.

You means the customer who has signed or authorised by other means the Direct Debit Request.

Your financial institution means the financial institution nominated by You on the DDR at which the account is maintained.

 

1. Debiting Your account

1.1 By signing a Direct Debit Request or by providing us with a valid instruction, You have authorised us to arrange for funds to be debited from Your account. You should refer to the Direct Debit Request and this agreement for the terms of the arrangement between us and You.

1.2 We will only arrange for funds to be debited from Your account as authorised in the Direct Debit Request. Or We will only arrange for funds to be debited from Your account if we have sent to the address nominated by You in the Direct Debit Request, a billing advice which specifies the amount payable by You to us and when it is due.

1.3 If the debit day falls on a day that is not a banking day, we may direct Your financial institution to debit Your account on the following banking day. If You are unsure about which day Your account has or will be debited You should ask Your financial institution.

 

2. Amendments by Us

2.1 We may vary any details of this agreement or a Direct Debit Request at any time by giving You at least fourteen (14) days written notice.

3. Amendments by You

You may change , stop or defer a debit payment, or terminate this agreement by providing us with at least Fourteen (14) days notification by writing to: admin@thedecisivegroup.com.au

4. Your obligations

4.1 It is Your responsibility to ensure that there are sufficient clear funds available in Your account to allow a debit payment to be made in accordance with the Direct Debit Request.

4.2 If there are insufficient clear funds in Your account to meet a debit payment:

(a) You may be charged a fee and/or interest by Your financial institution;

(b) You may also incur fees or charges imposed or incurred by us; and

(c) You must arrange for the debit payment to be made by another method or arrange for sufficient clear funds to be in Your account by an agreed time so that we can process the debit payment.

4.3 You should check Your account statement to verify that the amounts debited from Your account are correct

5. Dispute

5.1 If You believe that there has been an error in debiting Your account, You should notify us directly on admin@thedecisivegroup.com.au and confirm that notice in writing with us as soon as possible so that we can resolve Your query more quickly. Alternatively You can take it up directly with Your financial institution.

5.2 If we conclude as a result of our investigations that Your account has been incorrectly debited we will respond to Your query by arranging for Your financial institution to adjust Your account (including interest and charges) accordingly. We will also notify You in writing of the amount by which Your account has been adjusted.

5.3 If we conclude as a result of our investigations that Your account has not been incorrectly debited we will respond to Your query by providing You with reasons and any evidence for this finding in writing.

5.4 Any queries you may have about an error made in debiting your account should be directed to us in the first instance so that we can attempt to resolve the matter between us and you. If we cannot resolve the matter you can still refer it to your financial institution which will obtain details from you of the disputed transaction and may lodge a claim on your behalf.

6. Accounts

You should check:

(a) with Your financial institution whether direct debiting is available from Your account as direct debiting is not available on all accounts offered by financial institutions.

(b) Your account details which You have provided to us are correct by checking them against a recent account statement; and

(c) with Your financial institution before completing the Direct Debit Request if You have any queries about how to complete the Direct Debit Request.

7. Confidentiality

7.1 We will keep any information (including Your account details) in Your Direct Debit Request confidential. We will make reasonable efforts to keep any such information that we have about You secure and to ensure that any of our employees or agents who have access to information about You do not make any unauthorised use, modification, reproduction or disclosure of that information.

7.2 We will only disclose information that we have about You:

(a) to the extent specifically required by law; or

(b) for the purposes of this agreement (including disclosing information in connection with any query or claim).

8. Notice

8.1 If You wish to notify us in writing about anything relating to this agreement, You should write to The Decisive Group Pty Ltd, Suite 1A Level 2, 802 Pacific Highway, GORDON NSW 2072

8.2 We will notify You by sending a notice in the ordinary post to the address You have given us in the Direct Debit Request.

8.3 Any notice will be deemed to have been received two (2) business days after posting.

TERMS AND CONDITIONS OF SALE

1. Governing Law
These Terms and Conditions of Sale and associated Contract shall be governed by the law of New South Wales and the parties submit to the courts of New South Wales in respect of any dispute arising.

These Terms And Conditions, (The Terms), apply to a sale and supply of goods and/or services, between The Decisive Group Pty Ltd, (The Company), as the supplier to the purchaser of the goods/services, (The Customer)

The goods and/or services, may include tangible and intangible products such as Computer Hardware or other physical goods, labour for work performed whether performed at the Customers premises or off site at unrelated premises, or for provision of software as a service through a subscription module. The provision of the software is also covered under a separate End User Licence Agreement, (EULA) available from https://thedecisivegroup.com.au/legal/#EULA It is important to note that provision of software does not transfer ownership to the customer, but provides a licence to use the software according to the provision contained in the EULA.

2.      Interpretation

For the purpose of these terms contained in this document:

Company means the Decisive Group Pty Ltd, ABN 26 166 064 464

Customer means the purchaser of the Goods and Services from the Company

Goods and services means but not limited to Computer Hardware, Consumables, Online or Onsite Software Maintenance Agreements (whether used or not), licence to use software, software installation and/or software maintenance services

3.      Application

These Terms apply to all contracts for the sale of Goods and Services by the Company.

No amendment, alteration, waiver or cancellation of any of these Terms is binding on the Company unless confirmed by the Company in writing.

The Customer acknowledges that no employee or agent of the Company has any right to make any representation, warranty or promise in relation to the Goods or the sale of the Goods other than as contained in these Terms.

4.      Payment

Any prices quoted at time of order may be subject to change prior to payment of deposit.

Payments are to be paid in full in accordance with Terms of invoice or order form without any deduction.

For the purpose of these terms and conditions and for clarity, any contract for provision of goods and services, by a subscription amount, does not extinguish until the final payment in accordance with the contract.

5.      Subscription Services, Renewal and Cancellation

Auto Renewal Terms of Subscription services. Subscription Services will not automatically renew without the permission of the Customer. However to ensure continuity of Service the Company will provide you with a renewal reminder notice/s prior to the expiry date of your membership. Should no response be heard from the Customer, subject to successful payment of subscription, service will be maintained under the terms of the initial contract which may include a new annual renewal date. Non payment of subscription fees does not constitute notification of cancellation of service and monies in arrears must still be paid in full.

Should the customer at any stage after the renewal wish to cancel they may pay the casual subscription rate from the date of the annual renewal date up to the date of cancellation as received by the company either electronically or by mail and no further obligation placed on the Customer. This does not include any subscription relating to repayment of hardware and all hardware must be repaid in full.

Prices for subscription services, including software are subject to change at any time after the initial subscription period as agreed to by both parties. We will provide you 30 days advance notice of any pricing changes and your recurring payment will be adjusted to reflect any change in pricing from the date specified in the notice.

In the event that there is a default with any of your recurring payments your access to subscription services may be restricted until payment is made. For defaults longer than 60 days then access to subscription services will be suspended. This means that you will no longer be able to access the software services covered by a licence. Access to data previously entered may be limited.

6.      Payments

Subscription services are be subject to the Direct Debit Request Service Agreement (DDRSA) terms if recurring payments are being debited from a Bank Account or the Credit Card Direct Debit Terms if recurring payments are being debited from a Credit Card, or Paypal Subscription and recurring payments terms.

Payments are to be made to the Company without any deduction or discount other than as stated in these Terms or in the relevant invoice or statement.

Interest is payable on all overdue accounts calculated on a daily basis at the rate of 1.5% per month as from the date due for payment until payment is received by the Company.

Delivery of goods may be done in whole or in parts. Any failure on the part of the Company to deliver instalments within any specified time does not entitle the Customer to repudiate the contract with regard to the balance remaining undelivered.

7.      Title

Legal ownership of the Goods will not pass to the Customer until such time as the Goods have been paid in full.

Once delivered to the Customers nominated address, the responsibility for the security of the goods passes to the customer, even if title has not yet passed to the Customer.

8.      Inspection

The Customer has seven days from the date of the delivery to make a claim in writing to the Company against the goods that the goods are not as specified.

A dead on Arrival claim must be made upon opening and inspection and no later than 7 days after delivery in accordance with warranty provisions.

9.      Installation Services

Should the goods being purchased are part of an associated installation services then the goods are not to be opened but secured in an location accessible to the installer from the Company. Should the goods be misplaced and not be located at the scheduled installation time the Customer shall pay the waiting time at the current hourly service rate. Should the goods not be available and the installation time rescheduled then the amount will also include travelling time to and from the Company’s registered business address.

10. Installation of Hardware

The location chosen by the Customer for the installation of Hardware goods must be in a safe location and free from hazards as what a lay person would consider hazardous for electrical goods.

The Location of the Hardware must meet the environment conditions for the Hardware as contained in their specification but generally would include an air-conditioned office with ventilation to enable cooling. Failure to maintain these conditions will negate the warranty provisions.

As the equipment is new no Test and Tag for Australian Electrical Standards shall occur and the Customer is responsible for any subsequent tests. The equipment will be provided with a New to Service Tag. The customer is responsible for the provision of a suitable power outlet within 1.5 metres of the location of hardware services

11. Software and Technical Support

Depending on your relevant Software Support Agreement, support for your product can be accessed from either email, Training Videos on our Training Channel or from Community Support Forum available from our website. This entitlement will be available as long as you have an active financial subscription for your specific product. In the case of a personal response to your query you may receive a phone call back or email.

Prior to posting a question of the Community Support Forum you are to search for the topic by using keywords or a combination of keywords in the search bar of the forum.

Subscribers to the Community Support forum are encouraged to answer any queries posted by other customers. All subscribers are to adhere to the rules of the forum as posted on the forum which may change from time to time. Subscribers may be barred from access to the site for reason including but not limited to the use of profanity, language deemed to be demeaning or discriminatory against sex, religion or ethnicity. Subscriber’s posts may also be edited or deleted. The decision are at the Forum Moderator’s Discretion. Any posts that appear on the forum do not necessarily constitute the view of the Company.

Availability of Technical Support services may deviate from published support hours due to downtime for systems and server maintenance and observed Australian public holidays. Technical Support enquiries are limited to the following areas: installation, upgrade assistance, basic usability and functionality, as described in the relevant product user guides and related documentation.

For Training on how to use our product you are referred to the Training Videos on our channel and also the relevant sections in the Community Support Forum.

Any advice on how to apply accounting standards are general, in nature and you are advised to consult with your accountant.

Due to the variation in BYO computer hardware we are not able to resolve technical issues that are specific to your local hardware or operating environment that is not provided by The Company, including networking or connectivity problems, integration with third–party products or service providers. General Assistance will be provided mainly through the relevant section in the community Support Forum

Active Subscription includes an entitlement to free software upgrades for the product subscribed to. Software upgrades, when released, will be available as a download from the Company’s web site. The Customer will be notified of available upgrades by maintaining a current email address or failing this by checking the website.

12. Cancellation of order

No order for Hardware may be cancelled, modified or deferred without the prior written consent of the Company (which is at the Company’s sole discretion). If such consent is given it is, at the Company’s election, subject to the Company being reimbursed all losses, including loss of profits, and paid a cancellation fee (being not less than 20% of the invoice price of the Goods).

13. Cancellation of software services

The Customer will pay the difference in what would have been charged between a casual Subscription and what was the agreed subscription from the time of commencement of contract terms to the date of cancelation.

14. Copyright

All Training material including Training Videos whether or not made available from a third party hosting service are protected by copyright and cannot be used without express permission from the Company.

15. Online Direct Debit Request Service Agreement (DDRSA)

The terms and conditions relating to your online Bank Account direct debit authority are available in a separate agreement available from our website at https://thedecisivegroup.com.au/wp-admin/legal/#DDRSA.

These terms and conditions are in addition to the terms and conditions of any existing contract/s with The Decisive Group Pty Ltd or the terms and conditions associated with the products and services that relate to your direct debit authority.

By selecting the Direct Debit from bank account payment method and clicking Finish and Pay you: Acknowledge that you are an authorised signatory of the nominated Bank Account or if debiting a company account, you confirm all the authorised signatories have authorised the establishment of this direct debit request.

16. Limited Liability

These Terms do not affect the rights, entitlements and remedies conferred by the Australian Consumer Law

The Company is not subject to, and the Customer releases the Company from, any liability (including but not limited to consequential loss or damage) because of any delay in delivery or fault or defect in the Goods. The Customer acknowledges that the Company is not:

(a)  Responsible if the Goods do not comply with any applicable safety standard or similar regulation; and

(b)  Liable for any claim, damage or demand resulting from such non-compliance.

If any statutory provisions under the Australian Consumer Law or any other statute apply to the contract between the Company and the Customer then, to the extent to which the Company is entitled to do so, the Company’s liability under the statutory provisions is limited, at the Company’s option, to:

(a)  repair, replacement or refund of the Goods or the supply of equivalent Goods; or

(b)  payment of the cost of replacing or repairing the Goods or of acquiring equivalent goods;

And in either case, the Company will not be liability for any consequential loss or damage or other direct or indirect loss or damage.

17. Warranty

All Goods supplied are covered by such warranties as are specified by the manufacturer and supplied subject to the product standards detailed by the manufacturer.

On discovery of any defect in the Goods, the Customer must immediately notify the Company in writing of such defect. The Customer must not carry out any remedial work to alleged defective Goods without first obtaining the written consent of the Company to do so.

To make a warranty claim the Customer must follow the instructions for warranty claim as published on the website of The Decisive Group Pty Ltd.

The provisions of any act or law (including but not limited to the Australian Consumer Law) implying terms, conditions and warranties, or any other terms, conditions and warranties which might otherwise apply to or arise out of the Contract are hereby expressly negatived and excluded to the full extent permitted by law.

The Customer expressly acknowledges and agrees that it has not relied upon, and the Company is not liable for any advice given by the Company, its employees, agents or representatives in relation to the suitability for any purpose of the Goods.

18. Display and Sample

Any display product or sample inspected by the Customer is solely for the Customer’s convenience and does not constitute a sale by sample.

19.  Contract

The terms of the Contract are wholly contained in these Terms and any other writing signed by both parties. The Contract is deemed to have been made at the Company’s place of business where an order was placed and any cause of action is deemed to have arisen there.

20. Force Majeure

The Company will not be liable for any breach of contract due to any matter or thing beyond the Company’s control (including but not limited to Internet outage, Denial of Service Attacks, Computer Virus or Ransom-ware or Malware, transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident.

21. Waiver of Breach

No failure by the Company to insist on strict performance of any of these Terms is a waiver of any right or remedy which the Company may have, and is not a waiver of any subsequent breach or default by the Customer.

22. No Assignment

Neither the Contract, nor any rights under the Contract may be assigned by the Customer without the prior written consent of the Company, which is at the Company’s absolute discretion.

23. Severability

If any provision contained in these Terms is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions are not affected.

SafeBUDDY Premium Software support agreement

DATE

12t01/2016

PARTIES

  1. The Decisive Group Pty Ltd, CAN 166 064 464 incorporated in Australia having its registered office at Suite 1A Level 2, 802 Pacific Highway, Gordon, and NSW 2072. (the “Provider“); and
  2. (the “Customer“).

AGREEMENT

  1. Definitions

1.1    Except to the extent expressly provided otherwise, in this Agreement:

Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;

Business Day” means any weekday other than a bank or public holiday

Business Hours” means the hours of [09am to 5pm] on a Business Day in the State of NSW;

Charges” means the following amounts:

(a)    [the amounts specified in Part 2 of Schedule 1 (Software Particulars)];

(b)    [such amounts as may be agreed in writing by the parties from time to time]; and

(c)    [amounts calculated by multiplying the Provider’s [standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement)] by the time spent by the Provider’s personnel performing [the Services] (rounded [down by the Provider to the nearest quarter hour])];

Effective Date” means [the date of execution of this Agreement];

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including [failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars]);

Schedule” means any schedule attached to main body of this Agreement;

Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;

Software” means the software identified in Part 1 of Schedule 1 (Software Particulars);

Support Services” means support in relation to [the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise]; and

Term” means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2.

  1. Credit

2.1    This document was created using a template from SEQ Legal (http://www.seqlegal.com).

  1. Term

3.1    This Agreement shall come into force upon the Effective Date.

3.2    This Agreement shall continue in force subject to termination in accordance with Clause 11.

  1. Support Services

4.1    The Provider shall provide the Support Services to the Customer [during the Term].

4.2    The Provider shall provide the Support Services with reasonable skill and care

4.3    The Provider shall provide the Support Services in accordance with Schedule 2 (Support SLA).

4.4    The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least [30 days’] written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

  1. Customer obligations

5.1    Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:

(a)    [co-operation, support and advice];

(b)    [information and documentation]; and

(c)    [governmental, legal and regulatory licences, consents and permits],

as are reasonably necessary to enable the Provider to perform its obligations under this Agreement.

5.2    The Customer must provide to the Provider, or procure for the Provider, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement.

  1. Charges

6.1    The Customer shall pay the Charges to the Provider in accordance with this Agreement.

6.2    If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 6.2.

6.3    All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated [inclusive of any applicable value added taxes] OR [exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider].

6.4    The Provider may elect to vary [any element of the Charges] by giving to the Customer not less than [30 days’] written notice of the variation[ expiring [on any anniversary of the date of execution of this Agreement]][, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds[[ 2]% over] the percentage increase, during the same period, in [the Retail Prices Index (all items) published by the UK Office for National Statistics]].

  1. Payments

7.1    The Provider shall issue invoices for the Charges to the Customer from time to time during the Term

7.2    The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 7

7.3    The Customer must pay the Charges by debit card, credit card, direct debit, bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).

7.4    If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:

(a)    charge the Customer interest on the overdue amount at the rate of 8% per annum (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b)    claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

OR

  1. Warranties

8.1    The Provider warrants to the Customer that:

(a)    the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

(b)    the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under this Agreement; and

(c)    the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

8.2    The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

8.3    All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

  1. Limitations and exclusions of liability

9.1    Nothing in this Agreement will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law.

9.2    The limitations and exclusions of liability set out in this Clause 9 and elsewhere in this Agreement:

(a)    are subject to Clause 9.1; and

(b)    govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

9.3    The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.

9.4    The Provider shall not be liable to the Customer in respect of any loss of revenue or income.

9.5    The Provider shall not be liable to the Customer in respect of any loss of use or production.

9.6    The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.

9.7    The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software.

9.8    The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.

  1. Force Majeure Event

10.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

10.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

(a)    promptly notify the other; and

(b)    inform the other of the period for which it is estimated that such failure or delay will continue.

10.3  A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

  1. Termination

11.1  Either party may terminate this Agreement by giving to the other party at least 30 days’ written notice of termination.

11.2  Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.

11.3  Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)     is dissolved;

(ii)    ceases to conduct all (or substantially all) of its business;

(iii)    is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement)

  1. Effects of termination

12.1  Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 7.2, 7.4, 9, 12, 15 and 16.

12.2  The termination of this Agreement shall not affect the accrued rights of either party.

12.3  Within [30 days] following the termination of this Agreement for any reason:

(a)    the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and

(b)    the Provider must refund to the Customer any Charges less any applied discounts paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,

without prejudice to the parties’ other legal rights.

  1. Notices

13.1  Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 13.2):

(a)    sent by courier, in which case the notice shall be deemed to be received upon delivery; or

(b)    sent by mail in which case the notice shall be deemed to be received 2 Business Days following posting ,

(c)    sent electronically by email in which case the notice shall be deemed to be received the next business day after transmission ,

providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

13.2  The parties’ contact details for notices under this Clause 13 are as follows:

(a)    in the case of notices sent by the Customer to the Provider, admin@thedecisivegroup.com.au or The Decisive group Pty Ltd, Suite 1A Level 2, 802 pacific Highway, GORDON NSW and

(b)    in the case of notices sent by the Provider to the Customer, the address provided by and registered on the Companys database.

13.3  The addressee and contact details set out in Clause 13.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 13.

  1. Subcontracting

14.1  The Provider must not subcontract any of its obligations under this Agreement without the prior written consent of the Customer, providing that the Customer must not unreasonably withhold or delay the giving of such consent.

14.2  The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

  1. General

15.1  No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.

15.2  If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

15.3  This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

15.4  Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.

15.5  This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

15.6  Subject to Clause 9.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

15.7  This Agreement shall be governed by and construed in accordance with the Laws of NSW

15.8  NSW Fair Trading or their appointed or recommended adjudicator shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

  1. Interpretation

16.1  In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

16.2  The Clause headings do not affect the interpretation of this Agreement.

16.3  In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

 

SCHEDULE 1 (SOFTWARE PARTICULARS)

  1. Identification of Software

SafeBUDDY Software Suite and excludes other third party software or network connectivity. It is conditional on recommended settings be applied.

  1. Financial provisions

The financial Provisions are from what is agreed to at time of sign up for Premium Support Services.

 

 

SCHEDULE 2 (SUPPORT SLA)

  1. Introduction

1.1    This Schedule 2 (Support SLA) sets out the service levels applicable to the Support Services.

  1. Helpdesk

2.1    The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 2 (Support SLA).

2.2    The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

2.3    The Provider shall ensure that the helpdesk is accessible using the Provider’s web-based ticketing system.

2.4    The Provider shall ensure that the helpdesk is operational and monitored during Business Hours during the Term. In addition, the Provider shall provide a special telephone number for the Customer to report critical issues outside of Business Hours.

2.5    The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.

2.6    The Customer in the first instance must endeavor to search for possible solutions on the Community Forum page by a key word search of at least two combinations.

2.7    Failing to Solve the issue in a reasonable time from clause 2.6 the customer may then escalate the problem to the Helpdesk.

  1. Response and resolution

3.1    Issues raised through the Support Services shall be categorised as follows:

(a)    critical: the Software is inoperable or a core function of the Software is unavailable;

(b)    serious: a core function of the Software is significantly impaired;

(c)    moderate: a core function of the Software is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Software is significantly impaired; and

(d)    minor: any impairment of the Software not falling into the above categories; and any cosmetic issue affecting the Software.

3.2    The Provider OR Customer shall determine, acting reasonably, into which severity category an issue falls.

3.3    The Provider shall[ use all reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the following time periods:

(a)    critical: [2 Business Hour];

(b)    serious: [5 Business Hours];

(c)    moderate: [1 Business Day]; and

(d)    minor: [3 Business Days].

3.4    The Provider shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.

3.5    The Provider shall use all reasonable endeavours to resolve issues raised through the Support Services promptly, and in any case in accordance with the following time periods:

(a)    critical: [2 Business Hours];

(b)    serious: [8 Business Hours];

(c)    moderate: [4 Business Days]; and

(d)    minor: [10 Business Days].

  1. Provision of Support Services

4.1    The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.

  1. Limitations on Support Services

5.1    If the total hours spent by the personnel of the Provider performing the Support Services during any calendar month exceed the agreed amount then:

(a)    the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and

(b)    the Provider may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges.

5.2    The Provider shall have no obligation to provide Support Services in respect of any issue caused by:

(a)    the improper use of the Software by the Customer; or

(b)    any alteration to the Software made without the prior consent of the Provider

 

 

Free software support agreement: drafting notes

A free, short-form software support services agreement. The document may be used in relation to the provision of helpdesk-based support services for software. It is not intended to cover software maintenance services, or indeed any other software-related services.  This document is substantially identical to our basic software support agreement, but with the edition of an SEQ legal credit, which under our licensing terms you must retain in the document during use.

DATE

Section: Date of execution

  • Insert the date of execution of the document.

PARTIES

Section: Two parties: companies, individuals or partnerships

Section 1

  • Is the first party an individual, a company or a partnership?
  • What is the full name of the individual (including middle names)?
  • What is the postal address of the first party?
  • What is the full company name of the first party?
  • In which jurisdiction is the first party incorporated?
  • What is the registration number of the first party?
  • What is the registered office address of the first party?
  • What is the name of the first party partnership?
  • In which jurisdiction is the first party partnership established?
  • Where is the principal place of business of the first party?

Section 2

  • Is the second party an individual, a company or a partnership?
  • What is the full name of the individual (including middle names)?
  • What is the postal address of the second party?
  • What is the full company name of the second party?
  • In which jurisdiction is the second party incorporated?
  • What is the registration number of the second party?
  • What is the registered office address of the second party?
  • What is the name of the second party partnership?
  • In which jurisdiction is the second party partnership established?
  • Where is the principal place of business of the second party?

AGREEMENT

Clause 1: Definitions

Clause 1.1

Definition of Business Day

  • The bank and public holidays of which jurisdiction should be excluded from the definition of “Business Day”?

Definition of Business Hours

  • What are business hours for the purposes of this document?

Definition of Charges

  • What charges are payable under this document?
  • How should the time-based charging rates be described or specified?
  • Will all the services be subject to time-based charging, or only some of the services?
  • How are time-based charging units to be rounded?

Definition of Effective Date

  • When will the contract come into force?

Definition of Force Majeure Event

  • Specify particular examples of force majeure events.

Definition of Support Services

  • In relation to what exactly will support be provided?

Clause 2: Credit

Optional element. Although you need to retain the SEQ Legal credit, you should remove the inline copyright warning from this document before use.

Clause 3: Term

Clause 3.2

  • Is the term of the document indefinite, or will it come to an end upon some agreed date, or upon the occurrence of a defined event?
  • Upon what date will the document terminate?
  • Upon the occurrence of what event will the document terminate?

Clause 4: Support Services

Clause 4.1

  • During what period will the support services be provided?

Clause 4.2

  • What standard(s) must the support services meet?
  • Specify the standard or standards the services must meet.

Clause 4.3

Optional element.

Clause 4.4

Optional element.

  • How much notice must the Provider give to the Customer of a suspension of services following non-payment?

Clause 5: Customer obligations

Optional element.

Clause 5.1

  • What must the Customer provide to the Provider?

Clause 5.2

Optional element.

Clause 6: Charges

Clause 6.2

Optional element.

Clause 6.3

  • Are payment amounts stated inclusive or exclusive of VAT?

Clause 6.4

Optional element. Will the Provider be permitted to vary the charges, or any element of the charges, in any circumstances?

  • Which elements of the charges may be varied?
  • What notice period should apply to the variation of charges?
  • Must notice of the variation expire upon some specific date?
  • Should variations of charges be limited by reference to an index?
  • Specify the relevant date.
  • Will the charges variation cap exceed RPI by a defined percentage?
  • Identify the index in question.
  • Specify the relevant percentage.

Clause 7: Payments

Clause 7.1

  • When should invoices be issued?
  • Specify invoicing dates.

Clause 7.2

  • What is the period for payment of invoices?
  • When does the period for payment of an invoice begin to run?

Clause 7.3

Optional element.

  • Using what methods should payments be made?

Clause 7.4

  • What contractual interest rate should apply to late payments?

Clause 7.4

  • What interest rate will apply here?
  • Consider whether to include this acknowledgement.

Clause 8: Warranties

Optional element.

Clause 8.1

Optional element.

  • What general warranties will the Provider give to the Customer?

Clause 8.2

Optional element.

Clause 9: Limitations and exclusions of liability

Contractual limitations and exclusions of liability are regulated and controlled by law, and the courts may rule that particular limitations and exclusions of liability in contracts are unenforceable. The courts are particularly likely to intervene where a party is seeking to rely on a limitation or exclusion of liability in its standard terms and conditions, but will also sometimes intervene where a term has been individually negotiated.  The courts may be more likely to rule that provisions excluding liability, as opposed to those merely limiting liability, are unenforceable. If there is a risk that any particular limitation or exclusion of liability will be found to be unenforceable by the courts, that provision should be drafted as an independent term, and be numbered separately from the other provisions.  It may improve the chances of a limitation or exclusion of liability being found to be enforceable if the party seeking to rely upon it specifically drew it to the attention of the other party before the contract was entered into. Exclusions and limitations of liability in UK contracts are primarily regulated by the Unfair Contract Terms Act 1977 (“UCTA”).  Contracts regulated by UCTA cannot exclude or restrict a party’s liability for death or personal injury resulting from negligence (Section 2(1), UCTA). Except insofar as the relevant term satisfies the requirements of reasonableness, such contracts cannot exclude or restrict liability: (i) for negligence (which includes a breach of an express or implied contractual obligation to take reasonable care or exercise reasonable skill) (Section 2(2), UCTA); or (ii) for misrepresentation (Section 3, Misrepresentation Act 1967). In addition, if a contract is regulated by UCTA, and one of the parties is dealing on the other’s written standard terms of business, then except insofar as the relevant contractual term satisfies the requirements of reasonableness the other party cannot: (i) exclude or restrict his liability in respect of a breach of contract; or (ii) claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of him; or (iii) claim to be entitled, in respect of the whole or any part of his contractual obligation, to render no contractual performance at all (see Section 3, UCTA).  UCTA includes various other restrictions, particularly in the case of contracts for the sale of goods and contracts under which possession or ownership of goods passes. If you wish to try to limit/exclude for liability in respect of reckless, deliberate, personal and/or repudiatory breaches of contract, you should specify this in relation to the relevant provision (for example, using the following wording: “The limitations and exclusions of liability in this Clause [number] will apply whether or not the liability in question arises out of any reckless, deliberate, personal and/or repudiatory conduct or breach of contract”). In many circumstances, however, the courts will find these types of limitations and exclusions to be unenforceable. Somewhat different rules apply to limitations of liability in contracts with consumers, and these provisions should not be used in relation to such contracts.  These guidance notes provide a very incomplete and basic overview of a complex subject. Accordingly, you should take legal advice if you may wish to rely upon a limitation or exclusion of liability.

Clause 9.1

Do not delete this provision (except upon legal advice). Without this provision, the specific limitations and exclusions of liability in the document are more likely to be unenforceable.

Clause 9.3

Optional element.

  • Which of the parties will be the beneficiary of this limitation of liability?

Clause 9.4

Optional element.

  • Which of the parties will be the beneficiary of this limitation of liability?

Clause 9.5

Optional element.

  • Which of the parties will be the beneficiary of this limitation of liability?

Clause 9.6

Optional element.

  • Which of the parties will be the beneficiary of this limitation of liability?

Clause 9.7

Optional element.

  • Which of the parties will be the beneficiary of this limitation of liability?

Clause 9.8

Optional element.

“Consequential loss” has a special meaning in English law: it means any loss that, whilst not arising naturally from the breach, was specifically in the contemplation of the parties when the contract was made.

  • Which of the parties will be the beneficiary of this limitation of liability?

Clause 10: Force Majeure Event

Optional element.

Clause 10.1

  • Will obligations to make payments be excluded from the scope of the force majeure exception?

Clause 10.2

Optional element.

Clause 10.3

Optional element.

Clause 11: Termination

Clause 11.1

  • What notice period will apply to termination without cause by either party?

Clause 11.3

  • Will the winding up of a party as part of a solvent company reorganisation give rise to a right of termination for the other party?
  • Will or might a party to the document be an individual, rather than a corporate entity?

Clause 12: Effects of termination

Clause 12.3

Optional element.

This provision will not be suitable in all circumstances. The appropriate treatment of charges upon termination will vary from contract to contract. Note, also, that this provision only deals with charges in respect of “Services”.

  • Within what period following termination must charges in respect of services be settled?

Clause 13: Notices

Optional element.

Clause 13.2

  • Insert all required addressee, address and contact details for contractual notices sent to the Provider.
  • Insert all required addressee, address and contact details for contractual notices sent to the Customer.

Clause 14: Subcontracting

Optional element.

Clause 14.1

  • Will the Customer only be permitted to withhold consent to subcontracting where it is reasonable to do so?

Clause 14.1

  • Will the Provider be obliged to notify the Customer of any subcontracting arrangements?

Clause 15: General

Clause 15.1

Optional element.

Clause 15.2

Optional element.

Clause 15.3

Optional element.

This is intended to prevent, for example, one party wrongfully claiming that a term of the contract was changed in a telephone call.

Clause 15.4

Optional element.

Clause 15.5

Optional element.

This provision is designed to exclude any rights a third party may have under the Contracts (Rights of Third Parties) Act 1999.

Clause 15.6

Optional element.

Clause 15.7

This template has been drafted to work in the English law context. If you plan to change the governing law, you should have the document reviewed by someone with expertise in the law of the relevant jurisdiction.

  • Which law will govern the document?

Clause 15.8

Optional element.

As a practical matter, it makes sense for the courts with expertise in the relevant law to have the right to adjudicate disputes. Where one of the parties is outside England (or at least the UK), you may want to grant the courts of their home jurisdiction the right to adjudicate disputes, as this could ease enforcement in some circumstances.

  • The courts of which jurisdiction will have the exclusive right to adjudicate disputes relating to the document (subject to applicable law)?

Clause 16: Interpretation

Should provisions concerning the interpretation of the document be included?

Clause 16.1

Optional element.

Clause 16.2

Optional element.

Clause 16.3

Optional element.

This provision is designed to exclude the application of a rule of interpretation known as the ejusdem generis rule. That rule may affect the interpretation of contractual clauses that list particular examples or instances of some more general idea, by limiting the scope of the general idea by reference to those particular examples or instances.

EXECUTION

Section: Execution as a contract (individuals, companies or partnerships)

  • Will the contract be signed by the (first party) contracting individual, or a person on behalf of the (first party) contracting entity?
  • What is the full name of the first party signatory?
  • On what date is the first party signing the contract?
  • Add the full name of the person who will sign the document on behalf of the first party.
  • Add the date of signature of the document on behalf of the first party.
  • Will the contract be signed by the (second party) contracting individual, or by a person on behalf of the (second party) contracting entity?
  • What is the full name of the second party signatory?
  • On what date is the second party signing the contract?
  • Add the full name of the person who will sign the document on behalf of the second party.
  • Add the date of signature of the document on behalf of the second party.

SCHEDULE 1 (SOFTWARE PARTICULARS)

Part 1: Identification of Software

  • Identify the relevant software.

Part 2: Financial provisions

  • Insert financial provisions.

SCHEDULE 2 (SUPPORT SLA)

Optional element.

Part 2: Helpdesk

Section 2.2

  • For what purposes may the helpdesk be used?

Section 2.3

  • How can the helpdesk be accessed?

Section 2.4

  • What must the Provider do to ensure the helpdesk is “available”?
  • During which hours will the helpdesk be “available”?
  • Will there be emergency out-of-hours cover?
  • What form will the emergency cover take?

Part 3: Response and resolution

Section 3.1

  • Define a “critical” issue.
  • Define a “serious” issue.
  • Define a “moderate” issue.
  • Define a “minor” issue.

Section 3.2

  • Which party will be responsible for categorising issues?

Section 3.3

  • Will the response time obligations be absolute or not?
  • Should the obligation be to use “reasonable endeavours” or “all reasonable endeavours”?
  • Insert relevant response times.

Section 3.4

Optional element.

  • What information should be included in the initial response to a support services request?

Section 3.5

Optional element.

  • Will the response time obligations be absolute or not?
  • Should the obligation be to use “reasonable endeavours” or “all reasonable endeavours”?
  • Insert relevant resolution times.

Part 4: Provision of Support Services

Optional element.

Part 5: Limitations on Support Services

Optional element.

Section 5.1

Optional element.

  • Against what periods will excess support services usage be assessed?
  • Specify the relevant limitation on support services (in hours).

Section 5.2

  • In relation to issues caused by what exactly may the support services be withheld?

The Decisive Group Pty Ltd

The Decisive Group was created in 2013 to launch and market products and services to the Club and hospitality Industry. We are innovative, yet flexible. We are like minded individuals focused on getting the job done. We look for opportunity from problems. We are Managers, Programmers and Marketers. We have worked in customer service orientated organisations and we recognise that we are only as good as our last interaction with you, our client. Our clients are our partners in our journey.

Our flagship product is SafeBUDDY.

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ABN 24 166 064 464

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802 Pacific Highway
GORDON NSW 2072

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