1. Agreement

1.1 These are the standard terms and conditions under which Soft Tech Australia PTY Ltd ABN 91 050 496 805, Soft Tech America Inc, Soft Tech England Ltd, Soft Tech (NZ) Limited or Soft Tech India Private Limited (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 Services or Licences 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 30 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 6.7.

2. Term

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. Licence

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 7 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. Services

Professional Services
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.

4.6 Non-Recruitment Clause – Customer, their contractor and their employees are not permitted, during the Professional Services period or 1 year thereafter, directly or indirectly, to approach Soft Tech employees to entice them to terminate their employment with Soft Tech.

Maintenance Services
4.7 Accessing support

4.7.1 Soft Tech will provide the Customer with technical support services in relation to the Software (Maintenance Services) during the Term of the Agreement.
4.7.2 Maintenance Services will be provided during the Support Hours only, being 8 AM-5 PM EST or AEST relative to your location on Business Days.
4.7.3 Maintenance Services are available to the Customer in relation to the latest two releases of the Software only. If the Customer requires any support in relation to earlier versions of the Software, Soft Tech may provide support at its discretion and on a Time and Materials Basis,

4.8 Software upgrades and updates

4.8.1 Soft Tech will provide new releases or updates of the Software from time to time at its discretion. These may include error corrections, enhancements and new features.

4.9 Software Installations

4.9.1 When a new release or update to the Software is released, Soft Tech will make the files available to the Customer and it is the responsibility of the Customer to install the Software.
4.9.2 Installation, testing and any data migration is the sole responsibility of the Customer.

4.10 Software bugs

4.10.1 The Customer is encouraged to submit identified bugs to Soft Tech via an email support ticket with as much information as possible. Once received by Soft Tech, the bug will be evaluated and prioritised and the Customer will be contacted by a Soft Tech representative with further information.
4.10.2 Bug fixes and updated releases will be made at Soft Tech’s discretion.
4.10.3 Bug fixes are only available for the current release of the Software. The Customer must ensure it obtains and substitutes or incorporates all new releases or fixes released by Soft Tech. Soft Tech may provide bug fixes in relation to prior versions of the Software at its discretion and on a Time and Materials Basis.

4.11 Hardware and external software compatibility

4.11.1 Soft Tech can advise the Customer upon request of hardware minimum requirements required to run the Software. The purchasing, set-up, support and maintenance of any hardware is the sole responsibility of the Customer.
4.11.2 Due to the vast number of external software applications available, Soft Tech cannot guarantee compatibility will other external software applications and systems. The Customer is responsible for testing and ensuring the Software’s compatibility with its hardware and other external software applications and systems.
4.11.3 Soft Tech will periodically provide certifications of its Software with operating systems and database platforms, in particular Windows; Oracle Client; SQL Server Database and Oracle Database. Software Maintenance and Support is only available for certified operating systems and database platforms. Support for non-certified systems and database platforms will be provided at Soft Tech’s discretion on a Time and Materials Basis upon prior Customer consent.
4.11.4 In order to maintain the integrity and currency of its support and to keep pace with new releases of the Software Soft Tech may require the Customer to upgrade to MS SQL Server Database (or alternative approved database platforms) from time to time.

4.12 Macros and custom development

4.12.1 All custom development (including software applications, customer database development, macros, reports and other material) which has been developed for the Customer by Soft Tech, will be warranted for 30 days from the date that the work is delivered to the Customer (Warranty Period).
4.12.2 Custom development produced by the Customer and modifications made by the Customer to Soft Tech Custom Development cannot be guaranteed to be compatible with Software updates or upgrades. It is the sole responsibility of the Customer to ensure adequate testing and compatibility of custom development undertaken by the Customer.
4.12.3 If prior custom development produced by Soft Tech on a time and materials basis is found to be incompatible with a Software update or upgrade, the Customer can submit a support ticket and best efforts will be made by Soft Tech to ensure compatibility with current Software updates and upgrades.

4.13 Exclusions

4.13.1 Any user training required by the Customer may be provided in Soft Tech’s discretion on a Time and Materials Basis.
4.13.2 The Maintenance Services do not include:

(a) User training
(b) implementing new releases of the Software;
(c) the cost of media, courier and insurance incurred by Soft Tech to send items to the Customer;
(d) the cost of setting up, repairing or maintaining the Customer’s own database, user reports, macros or similar;
(e) any cost incurred in repairing or rebuilding the Customer’s own database;
(f) providing any support with respect to:

o Software which has been modified by the Customer or on behalf of the Customer;
o user error;
o malfunctions caused using the Software that is not in accordance with the Documentation or instructions given by Soft Tech;
o malfunctions caused by equipment or programs used in conjunction with the Software or any other reason external to the Software; and
o malfunctions arising from a failure by the Customer to install patches or error corrections of the Software provided by Soft Tech.
o malfunctions arising from the use of non-certified systems and database platforms by the Customer as per clause 4.10.3.
o  onsite and out of hours support.

4.13.3 If required by the Customer, the above may be provided at Soft Tech’s discretion on a Time and Materials Basis.

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. Fees

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 The Fees are exclusive of all taxes (including sales or use taxes) levied in any jurisdiction resulting from the Services provided, or licences granted, under this or in connection with this Agreement and the Customer is responsible for payment (or reimbursement to Soft Tech) of all such taxes in addition to the Fees.

6.4 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).

6.5 The Customer must pay to Soft Tech within 30 days of the date of the applicable invoice:

6.5.1 the Fees and any applicable taxes in accordance with clause 6.3; and
6.5.2 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).

6.6 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.

6.7 Soft Tech may increase the Fees and Hourly Rates at any time by giving not less than 30 days notice to the Customer.

7. GST

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 This clause only applies where a supply is made or received in Australia.

7.3 Unless expressly stated otherwise, all consideration payable under this Agreement in relation to any supply is exclusive of GST.

7.4 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. Confidentiality

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 9 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 Any dispute between the parties which arises out of or in connection with this Agreement (Dispute) must be resolved under this clause 11.

11.2 If a party wishes to have a Dispute resolved, it must give written notice to the other party (Dispute Notice). A Dispute Notice must state that it is a notice under clause 8.1 and specify in reasonable detail:

11.2.1 the legal basis for and detailed particulars of the Dispute;
11.2.2 the facts relied on; and
11.2.3 the relief or outcome sought.

11.3 Within 30 days of the date a Dispute Notice is given (or longer period determined by Soft Tech), the parties must ensure that their authorised representatives meet, undertake good faith negotiations and use their reasonable endeavours to resolve the Dispute.

11.4 If a Dispute is not resolved within 60 days of the date a Dispute Notice is given, Soft Tech may refer the Dispute to a mediation administered in the State of Victoria, Australia 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).

11.5 Subject to clause 11.6, the parties must attempt to resolve all Disputes under this clause 11 before starting any court proceedings, other than court proceedings for interlocutory relief.

11.6 Subject to clause 11.7, if a Dispute is not resolved 120 days after the date a Dispute Notice is given, a party may commence court proceedings in relation to the Dispute.

11.7 Clause 11.6 does not apply if Soft Tech has given notice under clause 11.4 unless and until the mediation has concluded or Soft Tech gives notice terminating the mediation.

12. Termination

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 amounts owing to Soft Tech as at the effective date of termination 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 12.3.3.

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. General

13.1 Except as set out in clauses 1.5 and 6.76.6, 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 14 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.

13.10 If a party consists of 2 or more people or entities, an obligation of that party binds each of them jointly and severally.

14. Definitions

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.

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.

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.

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.

means the amounts payable by the Customer, as described in clause 6.

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.

means the licence granted under clause 3.

Maintenance Services
means the support and services described as such in a Statement of Work.

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.

means the normal internal business activities of the Customer unless otherwise specified in a Statement of Work.

means Maintenance and Support Services and Professional Services.

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 Standard Terms and Conditions published from time to time at www.softtech.com.

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.

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. Interpretation
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.

Soft Tech
PO Box 611
Campelltown NSW 2560

Phone: +61 2 4628 5955

Last Edited on 22 August 2018