1.1 esuite trading pty ltd (ACN 655 728 279) trading as [e]suite ([e]suite) provides fully customisable software integrating point of sale, CRM, email marketing, warehousing, manufacturing and accounting functions (Software). In consideration for [e]suite agreeing to provide the Services to you, you agree to be bound by these Terms and Conditions.
1.2 You agree that by proceeding with installation of the Services, you represent that you have carefully read these Terms and Conditions and have the capacity and proper authorisation to agree to be bound by these Terms and Conditions and that [e]suite is entitled to rely upon that representation for the purposes of providing you with the Services and obtaining payment.
(a) The Software is provided on an ‘as is’ basis.
(b) If you identify functionality that is not provided by the Software that you require, [e]suite may, at their discretion, develop additional modules or add-ons to the Software (Customisation) at your cost in accordance with clause 2.4.
(c) User licence counts are based on maximum number of possible concurrent users minus one user count for a registered tax accountant.
2.2 Technical Support
(a) [e]suite will provide prompt Technical Support to you via telephone and email. At its discretion [e]suite may also provide remote desktop support.
(b) Technical Support will be provided based on three types of incidences:
(i) Level 1 = System crash / not working / Immediate resolution required;
(ii) Level 2 = Program error but not critical; and
(iii) Level 3 = Training and education / functionality enquiries.
[e]suite will respond to all Level 1 support issues as soon as reasonably possible and Level 2 and 3 support issues within a reasonable time frame.
(c) Technical Support issues are charged as follows per incidence:
Other users must initially attempt to contact the Nominated Users for Level 2 and Level 3 issues. If a Level 1 issue occurs they may contact [e]suite directly.
(d) Technical Support is the resolution of system crashes, program errors or the provision of phone or email help with the use of [e]suite.
(e) Technical Support does not include Scoping of New Functionality, Customisations, Programming of Functional Enhancements, resolving non [e]suite issues, importing or manipulating data, work or training previously scoped in a proposal.
(a) Provided that you comply with these Terms and Conditions, Upgrades will be included at no extra charge to you.
(b) Upgrades will be automatically broadcast by [e]suite.
(c) To receive an Upgrade, all servers must be turned on and have access to the internet with the appropriate ports open to the [e]suite upgrade server. [e]suite will provide training at no cost to set this up.(a) Provided that you comply with these Terms and Conditions, Upgrades will be included at no extra charge to you.
(d) Notwithstanding clause 2.3(a) above, [e]suite reserves the right to add new modules to the Software which you may purchase or rent separately
2.4 Customisations and Programming
(a) To request any Customisation, you must provide written documentation of your requirements setting out as specifically as possible what additional functionality you require. Such documentation may include (but is not limited to):
(i) screenshots and reports from current systems;
(iii) bullet points;
(iv) Excel spread sheets;
(v) Word documents.
(b) [e]suite will, as soon as is practicable, provide you with a proposal setting out the scope of the work to be undertaken (Scope) and written estimate of the projected costs (Costs Estimate) (collectively, the Proposal).
(c) Any further Customisations requested by you after you have agreed to the Proposal should be notified in writing to [e]suite as soon as practicable. Any such Customisations may incur additional fees and accordingly [e]suite will provide you with a new Proposal setting out the new Scope and Costs Estimate.
(d) If you instruct [e]suite to proceed (verbally or in writing) with urgent customisations, programming work, data manipulation or importing of data, where [e]suite has not provided a proposal, then you may incur additional fees on a time and materials basis for the services provided.
(e) In preparing the Costs Estimate, [e]suite may, at its sole discretion, subsidise any or all Customisations based on the following:
(i) Feature versus Bug
If the Software is not functioning optimally, it is [e]suite’s responsibility to fix any such bug without any cost to you. If the Software is functioning normally but you want it to work a different way, then this will be deemed to be a Customisation by [e]suite and may incur additional fees.
(ii) Short Time Frame versus Wish List
If you need something “urgently” and [e]suite has to “stop other work” to provide it, then [e]suite has the discretion whether to subsidise the work. If you don’t need a feature in a fixed timeframe and [e]suite can develop it in their own time then [e]suite may, in its discretion, offer the Customisation to you free of charge.
(iii) “Our Old System Had It” versus “Every Other System Has It”
Neither of these arguments constitutes a guarantee that [e]suite will provide a particular feature. However, if most of [e]suite’s competitors have a particular feature and you can provide documentation of this, [e]suite may subsidise the cost of developing the Customisation.
3. Payment Terms
3.1 The Software may be purchased or “half purchased” or rented.
(a) Under a purchase license option.
(i) A deposit of 50% of the Licence Fee must be paid to [e]suite within fourteen (14) days upon accepting the Proposal.
(ii) The balance of the License Fee and Implementation Fee plus the Maintenance Fee for the first three (3) months must be paid within 14 days of the Services being delivered to you enabling the first commercial use of the software.
(b) Under a “half-purchase” license option.
(i) Half Purchase means that the purchase price is half the price under the purchase license option and the on-going maintenance fee is double the maintenance fee of the purchase license option.
(ii) The “Half-Purchase” Licence Fee must be paid in full to [e]suite within fourteen (14) days upon accepting the Proposal.
(iii) All implementation fees plus the maintenance fee for the first three (3) months must be paid within fourteen (14) days of the Services being delivered to you enabling the first commercial use of the software.
(c) Under a rental licence option.
(i) You must pre-pay the Implementation Fee in units of 20 hours or as otherwise agreed in writing between you and [e]suite.
(ii) Commencing on the day of the first commercial use of the software, the Rental Fee will be invoiced quarterly in in advance and must be paid within fourteen (14) days of the date of the invoice.
3.2 You must pay for any additional expenses incurred by [e]suite including but not limited to reasonable travel time and expenses, accommodation and any other out of pocket expenses.
3.3 [e]suite may request up-front payment for any Implementation Fee.
3.4 You must pay for all invoices (including additional customisations subject to a further Proposal and Costs Estimate) within fourteen (14) days of the date on the invoice.
3.5 Invoices for deposits or service work are non-refundable.
3.6 In the event that you fail to pay for any [e]suite invoice by the due date, in addition to any other rights and remedies [e]suite has, [e]suite may immediately cease any work as well as suspend the Services by means including but not limited to denying you access to the software until such time as you pay all outstanding invoices.
4.1 To the extent that any supply to be made by either party (Supplying Party) to the other party (Recipient Party) under these Terms and Conditions are a taxable supply, the parties acknowledge and agree that, unless otherwise specified by the Supplying Party any amount expressed as payable and anything else to be provided, by the Recipient Party for that taxable supply has been determined and agreed on the basis that it is the value of the taxable supply (GST Exclusive Amount) and not the price for that supply.
4.2 The consideration for each taxable supply made under these Terms and Conditions must be the GST Inclusive Amount. The GST Inclusive Amount for a taxable supply will in each case be the amount determined by multiplying the GST Exclusive Amount by the GST rate current at the date of making the taxable supply (GST Factor) and adding the GST Factor to the GST Exclusive Amount. The recovery of consideration for any taxable supply made under these Terms and Conditions are subject to the Supplying Party issuing to the Recipient Party a tax invoice in respect of the supply.
4.3 The expressions “consideration”, “GST”, “input tax credit”, “price”, “supply”, “taxable supply”, “tax invoice” and “value” have the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
5. Intellectual Property Rights
5.1 You acknowledge and agree that [e]suite owns all intellectual property rights in the Services and Software, including but not limited to any registered and unregistered trademarks, trade names, trade secrets, copyright, patents, data bases, licenses.
5.2 You acknowledge that [e]suite owns all intellectual property arising from the development of any Customisations requested by you.
5.3 These Terms and Conditions do not have the effect of granting you any intellectual property rights in, or in connection with, the Services whether existing now or at any time in the future.
5.4 You agree that you will not transmit, copy, publish, distribute, modify, improve or otherwise alter the Services, or any material related to the Services or [e]suite, including but not limited to:
(a) create derivate works based on the Services or [e]suite;
(b) copy any features, functions or graphics of [e]suite or the Services;
(c) copy, frame or mirror any part or content of the Services or [e]suite;
(d) reverse engineer the Services or [e]suite; and
(e) access the Services or [e]suite in order to build a competitive product or service, or copy any features, functions or graphics of the Services or [e]suite.
5.5 This clause 5 survives termination of these Terms and Conditions for any reason whatsoever.
6.1 A party (Receiving Party) must:
(a) keep confidential all information disclosed (whether orally or in writing or in any other form) by the other party (Disclosing Party) which is identified as being confidential or which such party knows or ought to know is confidential, or any other information of a confidential nature brought to the attention of a party (Confidential Information);
(b) take all reasonable steps to secure and keep secure all Confidential Information coming into its possession or control and only use the Confidential Information for the purposes of performing, and to the extent necessary to perform, its obligations under these Terms and Conditions.
6.2 The restrictions in clause 6.1 do not apply to the extent that the Confidential Information:
(a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
(b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party.
(c) is received from a third party without breach of any obligation owed to the Disclosing Party.
(d) was independently developed by the Receiving Party.
6.3 Except as otherwise permitted in writing by the Disclosing Party:
(a) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and Conditions; and
(b) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with these Terms and Conditions.
6.4 You must comply with the Privacy Act 1988 (Cth), all other applicable privacy and spam legislation, all guidelines issued by the Office of the Federal Privacy Commissioner and similar regulatory bodies, and all of our reasonable directions relating to personal information.
6.5 You must not, directly or indirectly use personal information collected in connection with the Services except to the extent and for the purposes for which the personal information was collected in connection with these Terms and Conditions.
7.1 Data entered using the Software is stored in Microsoft SQL Server database files. The access and use of this data is subject to the Microsoft License Agreement.
7.2 It is your responsibility to validate the accuracy of any information contained and reported within the Software on a regular basis. It is your obligation to inform [e]suite of any inaccuracies as soon as you become aware of them.
7.3 [e]suite will take all reasonable steps to safeguard data and its accuracy contained within the Software. However, [e]suite will not be responsible for any loss or inaccuracies of client data and you will not be entitled to any form of compensation from [e]suite in the event of loss or inaccuracies of data.
8.1 [e]suite does not warrant or guarantee the delivery or availability or continuity of the supply of the Services or of any future functionality of the Services.
8.2 [e]suite does not warrant or guarantee the functionality of the Services or that your use of the Services will be uninterrupted or error free.
8.3 Except as expressly and specifically provided in these Terms and Conditions (and subject to any requirements at law):
(a) you assume sole responsibility for results obtained from, or in reliance on, the use of, or access to, the Services by you or anyone else, and for conclusions drawn from such use or access. [e]suite assumes no liability for any damage caused by errors or omissions in any information or instructions arising as a result of supplying the Services;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms and Conditions;
(c) the Services are provided to you on an “as is” basis.
9.1 [e]suite is not liable to you for any loss caused by any failure to observe the Terms and Conditions, where such failure is occasioned by causes beyond its reasonable control including Force Majeure Events.
9.2 You acknowledge that [e]suite’s ability to provide the Services is dependent upon your full and timely co-operation (which you agree to provide), and any other information and data provided by you or on your behalf. [e]suite will not be liable for any delays resulting from your failure to fulfil any of your obligations.
9.3 The provisions of the Competition and Consumer Act 2010 (Cth) (CCA) and all other relevant legislation which have the effect of implying conditions, terms and/or warranties are excluded to the extent permitted by law.
9.4 Subject to clause 9.3, your exclusive remedy against [e]suite for any claim relating to or concerning the Services, is limited to:
(a) [e]suite re-supplying the Services; or
(b) refunding the [e]suite Fees paid by you for the relevant Services.
9.5 You agree you are not entitled to any incidental, consequential or other damages, including but not limited to, damages for loss of profits, loss or corruption of data or information, loss of goodwill or reputation, for business interruption, loss or diminishing of traffic or search engine ranking, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence or negligent misrepresentation, and for any other pecuniary or other loss whatsoever, notwithstanding [e]suite’s fault, of tort (including negligence), strict or product liability, breach of contract or breach of warranty.
10.1 You agree to indemnify and keep indemnified [e]suite against any third party claim against [e]suite for any loss, damage or liability that arises in connection with providing you the Services in accordance with these Terms and Conditions.
11.1 These Terms and Conditions commence on the date you pay the [e]suite Fees specified in clause 3 (Commencement Date) and continues for the term for which you have pre-paid the Services in advance, notwithstanding you may terminate prior to end of that pre-paid term (Term).
11.2 These Terms and Conditions automatically renew for each successive Term for which you pre-pay in advance, unless otherwise terminated as provided in this clause 11, as follows:
(a) either party notifies the other party of termination, in writing, at least 1 day before the end of the Term, in which case These Terms and Conditions shall terminate upon the expiry of the Term; or
(b) otherwise terminated in accordance with the provisions of these Terms and Conditions.
11.3 You will not be entitled to a refund, in part or full, of any pre-paid [e]suite Fees that you have paid in advance for the Services, notwithstanding your termination of your use of the Services prior to the end of the Term.
11.4 [e]suite may terminate these Terms and Conditions:
(a) at any time at its sole discretion upon 1 business day notice; or
(b) with immediate effect where you have breached an essential term of these Terms and Conditions and have failed to rectify the breach within fourteen (14) business days of the date of [e]suite providing you with written notice of the breach; or
(c) with immediate effect for any breach that [e]suite considers, in their discretion, to be serious or persistent;
(d) in accordance with clause 3, where the outstanding invoices remain unpaid.
(e) with immediate effect if you are placed into receivership, official management, liquidation, you enter into any arrangement with your creditors, you claim to be or likely to become insolvent or you cease or threaten to cease to trade.
11.5 Upon termination of these Terms and Conditions for any reason all licenses and rights of access granted under these Terms and Conditions shall immediately terminate and you agree that [e]suite will not be liable to pay you any refund, in part or whole, of the [e]suite Fees.
12.2 Any waiver by any party to a breach of these Terms and Conditions shall not be deemed to be a waiver of a subsequent breach of the same or a different kind.
11.7 Without limiting the other provisions in this clause 3, [e]suite reserves the right to suspend the Services for a breach of these Terms and Conditions until such time as you rectify the breach.
12.1 Any waiver of these Terms and Conditions must be in writing and signed by all the parties.
12.2 Any waiver by any party to a breach of these Terms and Conditions shall not be deemed to be a waiver of a subsequent breach of the same or a different kind.
12.3 [e]suite may vary these Terms and Conditions from time to time without further notice to you.
13.1 You must not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions, without obtaining [e]suite’s prior written consent.
13.2 [e]suite reserves the right to assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions at any time without notice to you.
14.1 Nothing in these Terms and Conditions are intended to or shall operate to create a relationship or partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise bind the other in any way.
15.1 These Terms and Conditions, and any documents referred herein, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them.
15.2 If any provision (or part of a provision) of these Terms and Conditions are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, it shall be severed from these Terms and Conditions and the other provisions shall remain in force to the extend they are workable in the absence of the severed provision.
15.3 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
These Terms and Conditions are governed by the laws of the State of New South Wales, Australia and you submit to the exclusive jurisdiction of the Courts of the State of New South Wales.
[e]suite Fees means any or all of the Licence Fee, Maintenance Fee, Implementation Fee or any other fee payable by you to [e]suite;
Force MajeureEvent means acts, events, omissions or accidents beyond the reasonable control of a party, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, internet service provider failures or delays, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, typhoon, tsunami, earthquakes or default of suppliers or sub-contractors;
Implementation Fee means the fee payable to [e]suite for implementing the Services. An estimate of the Implementation Fee will be provided to you in the Proposal;
Licence Fee means the total of the Site Licence Fee, User Licence Fee and PDA Licence Fee;
Maintenance Fee means the annual fee payable by you quarterly to [e]suite for the maintenance of the Services and is a requirement for the licensed use of the Software;
Microsoft License Agreement means the Microsoft® SQL Server® 2014 License Terms and Information;
Nominated Users means any head office or other administrative staff nominated by you to communicate with [e]suite;
Other Users means any employees based in retail shops or warehouses;
Rental Fee means the monthly fee payable to [e]suite for the Services;
Services means the Software and any Customisations as well as Technical Support and Upgrades;
Site Licence Fee means the fee payable to [e]suite for each stock location with users of the Software;
Technical Support means the support services for the Software and/or Customisation purchased by you from [e]suite;
Term means the term described in clause 11;
Upgrade means any new version of or addition or major upgrade to the Software; and
User Licence Fee means the fee payable to [e]suite for each user licence of the Software. A minimum of three (3) user licences applies.