AGREEMENT
1. Definitions
In this Agreement, except to the extent expressly provided otherwise:
"Additional Works" means the remote works requested as modifications, new functionality or further development.
"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 in Queensland;
"Business Hours" means the hours of 09:00 to 17:00 AEST on a Business Day;
"Charges" means the following amounts:
1) the amounts specified in Schedule 1;
2) such amounts as may be agreed in writing by the parties from time to time; and
3) amounts calculated by multiplying the Provider's Schedule of Rates as specified in Schedule 3, by the time spent by the Provider's personnel performing the Services;
"Core Function" means the major functionality, original purpose, action of the Software.
"Customer" means the company or person that has agreed and signed the provided quote.
"Effective Date" means the date of signing the quote acceptance or Agreement or a date mutually agreed in writing.
"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, epidemics, explosions, fires, floods, riots, sabotage, strikes, terrorist attacks and wars);
"Intellectual property" means all business names, domain names, trademarks, website, inventions, ideas, techniques, improvements, discoveries and novel designs including computer software conceived or developed, whether or not registrable as designs or patents, including any invention of or developments or improvements to equipment, technology methods or techniques made by the Provider and the entire copyright throughout the world in all literary works, art works and other copyright works, at any time used in connection with the business.
"Provider" means SOS Consulting Group Pty Limited (ACN 160 434 337)
"Schedule" means any schedule attached to the 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 software provided to the Customer as agreed in writing with the Provider;
"Support Services" means remote support in relation to the use of the Software and the identification and resolution of errors in the Software. This does not include Additional Services; and
"Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2.
2. Credit
2.1. This document was created using a template from SEQ Legal (https://seqlegal.com).
3. Term
3.1. This Agreement shall come into force upon the Effective Date.
3.2. The initial Term is 1 month from the Effective Date.
3.3. At the end of each billing period, these terms automatically continue for a further period of the same duration as the previous one, provided you continue to pay the subscription fee in accordance with the pricing plan.
3.4. You may choose to terminate your subscription at any time by providing one month’s written notice in advance. You’ll still need to pay all relevant subscription fees up to and including the day of termination.
4. 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 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 written notice, following the amount becoming overdue, of its intention to suspend the Services on this basis.
5. 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:
5.1.1. co-operation, support and advice;
5.1.2. information and documentation; and
5.1.3. 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.
6. Charges
6.1. The Customer shall pay the Charges to the Provider in accordance with this Agreement.
6.2. All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of GST, which will be added to those amounts and payable by the Customer to the Provider.
7. 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 by the due date as detailed on an invoice in accordance with this Clause 7.
7.3. Subscription Fees are to be fully paid by the first day of the subscription period.
7.4. Additional works will be quoted and at the Providers discretion, either:
7.4.1. 50% due on acceptance of the quote, 25% on entry into UAT and 25% on completion of UAT or
7.4.2. 100% on acceptance or
7.4.3. 100% on completion.
7.5. The Customer must pay the subscription by auto debit of their debit card, credit card or bank account
7.6. If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may charge the Customer interest on the overdue amount at the rate of 10% per annum plus GST (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
7.7. The Provider reserves the right to report a Customer’s delinquent account to a credit reporting agency should payment remain outstanding for more than 30 days. In addition, the Provider may refer the outstanding account for debt collection or issue legal proceedings to recover any outstanding invoices. Should an account be referred for debt collection the Customer acknowledges and agrees to pay debt collection charges to be calculated at not less than 20% plus GST and will be incurred on the day the Provider refers the matter to their nominated debt collection agency. The Customer shall also be liable for interest and all legal recovery costs associated with such action on a solicitor and own Customer or indemnity cost basis.
8. Warranties
8.1. The Provider warrants to the Customer that:
8.1.1. the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
8.1.2. 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
8.1.3. 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.
9. Limitations and Exclusions of Liability
9.1. Nothing in this Agreement will:
9.1.1. limit or exclude any liability for death or personal injury resulting from negligence;
9.1.2. limit or exclude any liability for fraud or fraudulent misrepresentation;
9.1.3. limit any liabilities in any way that is not permitted under applicable law; or
9.1.4. 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:
9.2.1. are subject to Clause 9.1; and
9.2.2. 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. Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
9.4. Neither party shall be liable to the other party in respect of any loss of revenue or income.
9.5. Neither party shall be liable to the other party in respect of any loss of use or production.
9.6. Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
9.7. Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.
9.8. Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
10. 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:
10.2.1. promptly notify the other; and
10.2.2. 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.
11. Termination
11.1. Termination for Cause. Either party may terminate this Agreement (including all related Orders) if the other party:
11.1.1. fails to cure any material breach of this Agreement within thirty (30) days after notice;
11.1.2. ceases operation without a successor; or
11.1.3. seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding,
or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
11.2. Termination for Convenience. You may choose to stop using the services and terminate this Agreement (including all Orders) at any time for any reason upon written notice to us. Upon any such termination;
11.2.1. you will not be entitled to a refund of any pre-paid fees and
11.2.2. if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable),
any such fees that are outstanding will become immediately due and payable.
11.2.3. It will take effect with the expiry of the then current billing cycle.
12. Effects of Termination
12.1. Upon termination, the Provider will cease providing the services and the Customer will cease using the services.
12.2. The Provider will remove from the Zoho One subscription, all relevant upgrades provided as part of the Builders Excellence version.
This includes, but is not limited to Widgets, Custom Functions, Automations.
12.3. The Customer will have the option of taking on the Zoho One subscription directly.
12.4. 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.
12.5. Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
12.6. Within 7 days following the termination of this Agreement for any reason the Customer must pay to the Provider any Charges deemed due and payable in respect of
Services provided to the Customer before the termination of this Agreement,
12.7. without prejudice to the parties’ other legal rights.
13. 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):
13.1.1. delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
13.1.2. sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,
13.1.3. sent by email, in which case the notice shall be deemed to be received at 9.00 am the next Business Day after transmission
13.1.4. 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:
13.2.1. in the case of notices sent by the Customer to the Provider,
Address: PO Box 3083, Burleigh Town QLD 4220
Email: support@builders-excellence.com
13.2.2. in the case of notices sent by the Provider to the Customer,
Address: As per the customer file
Email: As per the customer file
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.
14. Subcontracting
14.1. Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under this Agreement.
14.2. The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
15. Restrictive Covenants
15.1. Confidentiality Agreements. Each Party must use reasonable efforts to ensure that all of its owners, officers, directors, partners, members, employees, independent contractors and other persons associated with that Party or its business operations who may have access to the other Party’s Confidential Information, comply with the terms of the Confidentiality Agreements and must immediately notify the other Party of any breach that comes to a Party’s attention. Each Party agrees to reimburse each Party for all reasonable expenses that the other Party incurs in enforcing a Confidentiality Agreement, including reasonable legal fees and court costs.
15.2. No Reverse Engineering. Customer may not at any time modify, translate, disassemble, reverse compile or otherwise reverse engineer the Software without the express written consent of Provider, which consent may be withheld in Provider’s sole discretion.
16. General
16.1. No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
16.2. 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).
16.3. This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
16.4. 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.
16.5. 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.
16.6. 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.
16.7. This Agreement shall be governed by and construed in accordance with Australian Law.
16.8. The courts of Australia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
17. Interpretation
17.1. In this Agreement, a reference to a statute or statutory provision includes a reference to:
17.1.1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
17.1.2. any subordinate legislation made under that statute or statutory provision.
17.2. The Clause headings do not affect the interpretation of this Agreement.
17.3. References in this Agreement to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
17.4. 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
1. Subscription Options:
1.1. Monthly Subscription Packages:
1.1.1. Platinum Package @ $795 ex GST per month
1.1.2. Gold Package @ $595 ex GST per month
1.1.3. Silver Package @ $395 ex GST per month
1.2. Monthly Support Package can be upgraded during the term of the Agreement but cannot be reduced until the end of the Agreement.
1.3. Zoho One User Subscription @ $79.50 ex GST per user
2. Service Details:
2.1. Access to the Builders Excellence version of ZOHO One.
2.2. Super Admin User is included and controlled by Builders Excellence
2.3. Widget Maintenance and upgrades
2.4. API Hosting, Maintenance and upgrades
2.5. Additional Works - Requests for further software enhancements or process design are available and are quoted based on the Schedule of Rates
SCHEDULE 2 (SUPPORT SLA)
1. Introduction
1.1. This Schedule 2 sets out the service levels applicable to the Support Services.
2. Helpdesk
2.1. The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 2.
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 by email and using the Provider's web-based ticketing system.
2.4. The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.
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.
3. Response and resolution
3.1. Issues raised through the Support Services shall be categorised as follows:
3.1.1. Critical: the Software is inoperable or a core function of the Software is unavailable;
3.1.2. High: a core function of the Software is significantly impaired;
3.1.3. 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
3.1.4. Low: any impairment of the Software not falling into the above categories; and any cosmetic issue affecting the Software.
3.2. The Provider shall determine, acting reasonably, into which category an issue falls.
3.3. The Provider shall use reasonable endeavours to respond to requests for Support Services promptly, and in any case within 2 Business Hours;
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 anticipated timetable for action in relation to the request.
3.5. The Provider shall use reasonable endeavours to resolve issues raised through the Support Services promptly, and in any case in accordance with the following time periods:
3.5.1. Critical: 2 Business Hours;
3.5.2. High: 8 Business Hours;
3.5.3. Moderate: 5 Business Days; and
3.5.4. Low: 10 Business Days;
4. Provision of Support Services
4.1. The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.
5. Conditions on Support Services
5.1. If all the monthly support credit is used prior to the end of the month, the Provider will require the Customer, to approve in writing the use of additional hours at the relevant rate as per the Schedule of Rates.
5.2. The Provider shall have no obligation to provide Support Services in respect of any issue caused by any issue relating to the Software Vendor.
6. Maintenance of Widgets and API’s
6.1. The Provider will maintain the Widgets and API’s used by the Customer during the Term of the Agreement.
6.2. The Provider will provide any released enhancements to the Widgets and API’s used by the Customer at no additional cost to the customer.
6.3. Training is not included under the Subscription Fee.
SCHEDULE 3
All rates are per hour and exclusive of GST.