- 1.1 These are the standard terms and conditions under which Soft Tech Australia Pty Ltd ABN 91 050 496 805 (Soft Tech) offers to supply Licences and/or Services from time to time.
- 1.2 Please read these terms and conditions carefully before requesting any Licences or Services from Soft Tech. It is a condition of a Customer being supplied with Licences and Services that the Customer agree to and comply with these terms and conditions.
- 1.3 The Agreement between Soft Tech and the Customer comprises:
- 1.3.1 the Standard Terms and Conditions; and
- 1.3.2 a Statement of Work.
- 1.4 In the event of any inconsistency between the documents comprising this Agreement, the documents will be interpreted in the order of priority listed in clause 1.3.
- 1.5 Subject to clause 1.6, Soft Tech may vary the Standard Terms and Conditions at any time by obtaining the Customer’s consent or by placing a general notice on its website. If Soft Tech varies these Standard Terms and Conditions under this clause 1.5, it will endeavour to provide email notification to the Customer. If the Customer does not accept the varied Standard Terms and Conditions, it may terminate this Agreement by giving notice to Soft Tech within 20 Business Days of the general notice being published on Soft Tech’s website.
- 1.6 Clause 1.5 does not apply to variations to the Fees, which may only be made by Soft Tech in accordance with clause 7.6.
- 2.1 This Agreement starts on the Effective Date and, unless terminated earlier in accordance with its terms, continues for the Initial Term.
- 2.2 Subject to the termination rights set out in this Agreement, this Agreement will automatically renew, without further notice, for a Renewal Term on expiry of the Initial Term and on expiry of each subsequent Renewal Term.
- 3.1 Subject to the Customer’s compliance with this Agreement, any conditions specified in the Statement of Work, payment of all applicable Fees and strictly within the Scope, Soft Tech grants to the Customer a non-transferable, non-exclusive licence to use, in object code form only, the Software and Documentation for the Term.
- 3.2 The Licence only permits the Customer to install the Software on a single computer system within the Customer’s facilities unless otherwise specified in the Statement of Work.
- 3.3 The Software is licensed ‘as is’ and with all faults and defects.
- 3.4 The Customer must not:
- 3.4.1 modify, translate, reverse-assemble, disassemble or decompile the Software or any copy of it without Soft Tech’s written consent;
- 3.4.2 remove any copyright or proprietary notice from the Software; or
- 3.4.3 allow any person other than its employees to use the Software.
- 3.5 Except for those rights expressly granted to the Customer under this Agreement, all rights, title and interest (including all intellectual property rights) in the Software and Documentation (including any enhancements to the Software or Documentation) are owned and retained by Soft Tech, its related entities or its licensors.
- 3.6 The Customer must use its best endeavours to prevent the unauthorised use, copying, publication nor dissemination of the Software.
- 3.7 On Soft Tech providing at least 5 Business Days notice, the Customer must provide Soft Tech with access to its premises, facilities and systems for the purpose of auditing the Customer’s compliance with this clause 3.
- 4.1 Soft Tech will supply Services to the Customer as specified in a Statement of Work.
- 4.2 Any timelines, resources or costs specified for a Service or otherwise concerning a Service are Soft Tech’s good faith estimates and do not constitute a warranty of price or completion of Services within a specified time.
- 4.3 All Services are subject to such limitations and conditions as are notified by Soft Tech from time to time.
- 4.4 Soft Tech is not liable to the Customer for any delay or failure to perform its obligations under this Agreement if the delay or failure is caused or contributed to by an event that is beyond Soft Tech’s reasonable control (including events caused or contributed to by third parties, software malfunction or the Customer’s failure to comply with this Agreement).
- 4.5 All Services are deemed to be completed on Soft Tech providing a notice of completion to the Customer.
5. Customer’s obligations
- 5.1 The Customer must:
- 5.1.1 perform the responsibilities allocated to it in this Agreement;
- 5.1.2 comply with all laws, regulations, standards and codes applying to its use of the Licences or Services;
- 5.1.3 provide Soft Tech with all consents, information, approvals, advice, materials, resources and instructions requested by Soft Tech in a timely manner; and
- 5.1.4 promptly comply with any directions given by Soft Tech in connection with this Agreement.
- 5.2 The Customer acknowledges and agrees that:
- 5.2.1 the Customer’s timely provision of assistance, cooperation, information and access to facilities and systems are essential to Soft Tech’s supply of Services;
- 5.2.2 Soft Tech will rely on information given by or on behalf of the Customer and is entitled to assume that such information is complete, true and correct; and
- 5.2.3 the Customer’s failure to comply with this clause 5 may result in additional Fees being payable.
- 5.3 The Customer is fully responsible for any acts or omissions made by it in connection with any advice or information supplied by Soft Tech (including the consequences of implementation or reliance on such advice or information).
- 5.4 The Customer’s receipt of Services from Soft Tech does not grant it any rights to the Materials used by Soft Tech to supply the Services except as expressly provided under this Agreement.
- 5.5 The Customer grants to Soft Tech a non-exclusive, royalty-free licence for the term of this Agreement to use, modify, distribute and reproduce Customer Material for the purposes of this Agreement.
- 5.6 The Customer warrants to Soft Tech that it holds (and will continue to hold) the rights to use and license the Customer Material as contemplated under this Agreement and that Soft Tech’s use of Customer Material for the purposes of this Agreement will not infringe the intellectual property rights of any third person.
- 6.1 The Fees payable for Licences and Services are as specified in a Statement of Work.
- 6.2 Unless otherwise specified in a Statement of Work, all Professional Services are provided on a Time and Materials Basis.
- 6.3 Soft Tech will invoice the Customer for the amounts payable by the Customer under this Agreement at the times specified in a Statement of Work. Invoices will be sent to the Customer contact specified in a Statement of Work (or other contact as notified by the Customer in writing).
- 6.4 The Customer must pay to Soft Tech within 30 days of the date of the applicable invoice:
- 6.4.1 the Fees and any applicable taxes; and
- 6.4.2 a reimbursement of any third party expenses incurred by Soft Tech with the approval of the Customer or as specified in a Statement of Work (on a pass through basis).
- 6.5 If the Customer fails to pay an invoice as required under this clause 6, Soft Tech may suspend performance of its obligations under this Agreement until the invoice is paid in full. Soft Tech will not be liable to the Customer for any Services that are not supplied during a suspension under this clause.
- 6.6 Soft Tech may increase the Fees and Hourly Rates at any time by giving not less than 30 days notice to the Customer.
- 7.1 In this clause, words that are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as in that Act.
- 7.2 Unless expressly stated otherwise, all consideration payable under this Agreement in relation to any supply is exclusive of GST.
- 7.3 If GST is payable in respect of any supply made by a supplier under this Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply at the same time and in the same manner as the consideration for the supply is to be provided under this Agreement, subject to the recipient receiving a tax invoice in respect of the supply.
- 8.1 The Customer must only use the Confidential Information for the purpose of performing its obligations under this Agreement.
- 8.2 The Customer must not disclose the Confidential Information except:
- 8.2.1 with the consent of Soft Tech;
- 8.2.2 to its employees, agents or contractors on a ‘needs to know’ basis for the purpose of performing obligations under this Agreement;
- 8.2.3 if required to do so by law or a court or tribunal;
- 8.2.4 as required in connection with any legal proceedings relating to this Agreement; or
- 8.2.5 to its professional advisors on a confidential basis.
- 8.3 Soft Tech may require the return of its Confidential Information at any time by giving notice to the Customer.
9. Warranties and liability
- 9.1 Soft Tech warrants to the Customer that:
- 9.1.1 Soft Tech owns the Software or otherwise has the right to grant a Licence; and
- 9.1.2 the Services supplied under this Agreement will be performed in a professional manner.
- 9.2 Soft Tech does not warrant:
- 9.2.1 that the Software or Services will be uninterrupted or error free or meet the Customer’s requirements or otherwise be fit for any particular purpose;
- 9.2.2 the performance or results that the Customer may obtain by using the Software; or
- 9.2.3 that all errors will be corrected.
- 9.3 Except as set out in this Agreement, the Customer assumes the entire risk as to the results and performance of the Software and the Services.
- 9.4 The warranties and conditions expressly stated in this Agreement are given in place of all other warranties, conditions and other terms, express or implied, all of which are excluded to the maximum extent permitted by law.
- 9.5 Where any Act of Parliament (Act) implies any term, condition or warranty (implied term) into this Agreement, and that Act avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under the implied term, that implied term is deemed to be included in this Agreement. Soft Tech’s liability for any breach of the implied term (or any other warranty or condition given by Soft Tech under this Agreement or breach of this Agreement) is limited, at Soft Tech’s option, to resupply of the Services or refund of the Fees paid for the relevant Services.
- 9.6 The Customer indemnifies Soft Tech from and against any damages, loss or expenses suffered or incurred by Soft Tech as a result of a third party claim against Soft Tech caused or contributed to by an act or omission of the Customer or its employees, agents or contractors.
- 9.7 Soft Tech’s aggregate and total liability for any and all claims arising under or out of this Agreement (including for negligence) or otherwise howsoever arising that is not already limited under this clause 10 is limited to direct damages and will not exceed the amount of Fees paid or payable by the Customer for Licences during the Initial Term.
- 9.8 To the maximum extent permitted by law, Soft Tech is not liable to the Customer for any incidental, special, indirect, consequential, or punitive losses of any character, including damages for loss of business or goodwill, loss of opportunity, work stoppage, system or website disruption, loss of information or data, loss of revenue, profit or anticipated savings, any other commercial or economic loss of any kind, whether arising in contract, breach of warranty, tort (including negligence), product liability, or otherwise.
10. Infringement claims
- 10.1 Subject to clause 10.2, if a third party claims that the Software infringes its intellectual property rights, Soft Tech will defend the Customer against that claim, at the expense of Soft Tech and pay all damages that a court finally awards, provided that the Customer promptly notifies Soft Tech in writing of the claim, and allows Soft Tech to control the claim, and the Customer cooperates with Soft Tech in the defence or any related settlement negotiations. If such a claim is made or appears possible, the Customer must permit Soft Tech to modify or replace the Software. If Soft Tech determines that none of these alternatives is reasonably available, the Customer must return the Software on Soft Tech’s written request and, on return, Soft Tech will refund the Customer any Fee paid for the Licence in the six month period preceding Soft Tech’s written request. This clause states the Customer’s entire obligation to the Customer with respect to any third party infringement claim.
- 10.2 Soft Tech has no obligation for any claim based on the Customer’s modification of the Software or its combination, operation, or use with any product, data or apparatus not specified in the Documentation or provided by Soft Tech.
11. Dispute resolution
- 11.1 The parties will use reasonable endeavours to resolve any disputes that arise between them in relation to this Agreement.
- 11.2 If required by Soft Tech, a dispute may be referred to a mediation administered by the Australian Disputes Centre according to its mediation guidelines. Each party will bear its own costs of the mediation (with the mediator’s costs to be shared equally between the parties).
- 12.1 Either party may terminate this Agreement with immediate effect by notice to the other party if:
- 12.1.1 any insolvency event occurs in relation to the other party, if the other party is wound up, dissolved, becomes insolvent or has a liquidator, provisional liquidator, administrator, receiver, manager or receiver and manager appointed; or
- 12.1.2 if the other party commits a breach of this Agreement but does not remedy the breach within 30 days of receiving notice of the breach from the first party.
- 12.2 Soft Tech may terminate this Agreement without cause by giving the Customer 30 days notice.
- 12.3 On termination of this Agreement:
- 12.3.1 the Customer must pay all Fees owing as at the effective date to Soft Tech as a debt due and immediately payable;
- 12.3.2 the Customer must reimburse Soft Tech for all third party expenses incurred by Soft Tech with the Customer’s approval before the effective date of termination;
- 12.3.3 all Licences granted to the Customer by Soft Tech under this Agreement are revoked with immediate effect and the Customer must cease using the Software and remove all copies of the Software from all computer storage devices and destroy the Software and Documentation; and
- 12.3.4 if requested by Soft Tech, the Customer must certify that it has complied with clause 11.3.3.
- 12.4 Termination or expiry of this Agreement will not affect:
- 12.4.1 the operation of clauses 7, 8 and 9, any unfulfilled payment obligations and any other provisions which, by their terms or nature, survive termination or expiry; or
- 12.4.2 any rights and remedies already accrued by either party under, or in respect of any breach of, this Agreement.
- 13.1 Except as set out in clauses 1.5 and 7.6, this Agreement may only be varied or replaced by a document duly executed by the parties.
- 13.2 This Agreement contains the entire understanding between the parties as to the subject matter contained in it. All previous agreements, representations, warranties, explanations and commitments, expressed or implied, affecting this subject matter are superseded by this Agreement and have no effect.
- 13.3 A single or partial exercise or waiver of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.13.4 Soft Tech may subcontract the performance of any of its obligations under this Agreement without notifying the Customer.
- 13.5 Soft Tech may assign, novate or transfer its rights or obligations under this Agreement by giving the Customer 10 Business Days notice. The Customer must execute such documents and do such things as the Customer reasonably requires to give effect to such assignment, novation or transfer. The Customer must not assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of Soft Tech.
- 13.6 No party to this Agreement has the power to obligate or bind any other party and nothing in this Agreement is to be construed or deemed to constitute a partnership, joint venture or employee, employer or representative relationship between Soft Tech and the Customer.
- 13.7 All notices and communications given under this Agreement must be given in writing and directed to the recipient’s contact at the address specified in a Statement of Work (or varied by any notice).
- 13.8 The parties agree that they may communicate with each other electronically. The Customer acknowledges that electronic transmissions are inherently insecure, can be corrupted or intercepted, may not be delivered and may contain viruses. Neither party is responsible to the other for any loss suffered in connection with the use of email for the purposes of this Agreement.
- 13.9 Each party must promptly execute and deliver all documents and take all other action necessary or desirable to effect, perfect or complete the transactions contemplated by this Agreement.
- Agreement means the agreement between Soft Tech and the Customer for the supply of Licences and/or Services, comprising the documents specified in clause 1.3.
- Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Victoria.
- Confidential Information means all confidential or commercially sensitive information of Soft Tech, but does not include information that is already in the public domain (other than due to a breach of this Agreement) including the terms of this Agreement (including the Fees), the Software and the Documentation.
- Customer means the person described as such in a Statement of Work.
- Customer Material means any Material provided to Soft Tech by or on behalf of the Customer under this Agreement.
- Developed Material means any Material developed or created by Soft Tech under or in connection with this Agreement.
- Documentation means the documentation describing the use and operation of the Software issued by Soft Tech from time to time.
- Effective Date means the date described as such in a Statement of Work.
- Fees means the amounts payable by the Customer, as described in clause 7.
- Hourly Rates means the hourly or daily rates specified in a Statement of Work or, if no such rates are specified in a Statement of Work, Soft Tech’s standard hourly rates as determined by Soft Tech from time to time.
- Initial Term means the period described as such in a Statement of Work.
- Licence means the licence granted under clause 3.
- Maintenance Services means the support and services described as such in a Statement of Work.
- Materials means anything in a material form including equipment, hardware, computer software, data, documentation, designs, drawings, reports, notes, calculations, specifications, photographs, audio-visual materials, recordings, manuals and tools (and includes information stored in an electronic form).
- Professional Services means those services described in a Statement of Work.
- Renewal Term means the period described as such in a Statement of Work.
- Scope means the normal internal business activities of the Customer unless otherwise specified in a Statement of Work.
- Services means Maintenance and Support Services and Professional Services.
- Software means the software modules described in a Statement of Work (and all updates, new releases, modifications or enhancements of those software modules) and the Developed Material.
- Standard Terms and Conditions means these Soft Tech Australia Standard Terms and Conditions published from time to time at https://softtech.com/terms-and-conditions/.
- Statement of Work means a statement of work signed by Soft Tech and the Customer and forming part of this Agreement in accordance with clause 1.3.
- Term means the term of this Agreement as determined under clause 2.
- Time and Materials Basis means the Customer will pay for the actual hours and expenses incurred by Soft Tech to supply a Service, calculated in accordance with the Hourly Rates plus expenses.
- 15.1 This Agreement is governed by and is to be construed under the laws of the State of Victoria, Australia.
- 15.2 In this Agreement (unless a contrary intention appears):
- 15.2.1 a person includes the legal personal representatives, successors and permitted assigns of that person;
- 15.2.2 a reference to this or other document includes the document as varied or replaced;
- 15.2.3 a reference to ‘$’ is a reference to Australian dollars;
- 15.2.4 a reference to an Act includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- 15.2.5 a reference to a clause or party is a reference to a clause or party to this Agreement;
- 15.2.6 headings are for convenience only and do not affect the interpretation;
- 15.2.7 where a word is defined, its other grammatical forms have a corresponding meaning; and
- 15.2.8 where the expression including or includes is used it means ‘including but not limited to’ or ‘including without limitation’.
- 15.3 If a provision in this Agreement is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down a provision as required in this clause, that provision is severable without affecting the validity or enforceability of the remaining part of that provision or the other provisions in this Agreement.
- 15.4 This Agreement may be executed in a number of counterparts all of which taken together constitute one instrument.
If there are any questions regarding this Terms and Conditions, you may contact us using the information below.
PO Box 611
Campelltown NSW 2560
Phone: +61 2 4628 5955
Last Edited on 10 July 2017