TERMS AND CONDITIONS
1. ACCEPTANCE OF TERMS
1.1. This Agreement is between uniVocity Software Pty Ltd trading as Univocity (ABN 37 165 465 501) (referred to as "uniVocity", "we" or "us"), and the Client described in the Proposal referred to as "Client" or "you"), and collectively the Parties.
1.2. You have requested the services set out in the attached Proposal (Services). You agree and accept that our Services are provided to you on these Terms and Conditions (Terms).
1.3. You accept our Proposal, Estimate and Terms by:
(a) signing and returning the Proposal and Estimate; or
(b) confirming by email that you accept the Proposal and Estimate; or
(c) instructing us to proceed with the Services.
1.4. We will not commence performing our Services until you have purchased the Required Hours as set out in the Estimate.
2.1. We will analyze your Service Request and ask for more information if necessary.
2.2. If we accept your Service Request, we will provide you with an estimate of the expected hours (Estimate) required to complete perform the Services.
2.3. We will not commence on your Service Request or provide you with any Services until you have made payment in accordance with the Estimate.
2.4. We agree to perform the Services set out in the Proposal, with due care and skill.
2.5. Your Service Request is deemed successful when we can demonstrate that the introduced modifications can be successfully executed in the test cases. You agree that the success of the test cases demonstrates that the Services, as outlined in the Proposal, have been correctly implemented.
2.6. If uniVocity is unable to deliver the Services as set out in the Proposal and the Estimate, within 2 months after the End Date, uniVocity may, at its sole discretion, make a refund of all fees paid by you, for the relevant Services.
2.7. For Service Requests which involve Development of a Data Integration Solution, work that is either in progress or completed, performed by us, will be committed to a private repository hosted by BitBucket at www.bitbucket.org which will be shared with you. If you do not agree to have information hosted by BitBucket, you must provide us with access to a repository of your own.
2.8. For Service Requests which involve Development of a Data Integration Solution, you acknowledge and agree that it is your responsibility to oversee the progress of your Service Request. We are not able to access your systems and you will be required to provide us with data samples which can be tested independently by us.
2.9. We may provide the Services to you using our employees, contractors and third party providers and they are included in these Terms.
2.10. Suppliers of third party services who are not an employee or our direct contractor (Third Party Services) will be the responsibility of the Client. We are not responsible for the quality of service provided by suppliers of Third Party Services. The Client must make direct arrangements with them.
2.11. uniVocity works with JAVA and Java-based technologies.
3. PRICE, INVOICING AND PAYMENT
3.1. You agree to purchase the Required Hours as set out in the Estimate. All amounts are stated in Australian dollars.
3.2. Once we have provided you with the Estimate setting out the Required Hours, you must purchase the Required Hours from our website at www.univocity.com (Site). We will not provide you with any Services until payment has been confirmed.
3.3. If you have previously purchased support hours from our Site (Prepaid Hours), the Prepaid Hours may be applied to your Required Hours.
3.4. You acknowledge and agree that Prepaid Hours are not valid for use until one (1) month after purchase and are non-refundable.
3.5. Our pricing structure or payment methods may be amended from time to time in our discretion.
4. CLIENT OBLIGATIONS
4.1. You acknowledge and agree that throughout the terms of engagement that:
(a) there are no legal restrictions preventing you from agreeing the Terms;
(b) you will cooperate with us and provide us with information and comply with requirements in a timely manner, as requested by us from time to time, that are reasonably necessary to enable us to perform the Services;
(c) the information you provide to us is true, correct and complete;
(d) you will not infringe any third party rights in working with us and receiving the Services;
(e) you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
(f) you will inform us if you have reasonable concerns relating to our provision of Services under the Terms, with the aim that we and you will use all reasonable efforts to resolve the concerns; (g) you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior twelve months period;
(h) you consent to the use of your name and Intellectual Property in a way which may identify you;
(i) if applicable, you have a valid ABN which has been advised to us; and
(j) if applicable, you are registered for GST purposes.
4.2. Our Services are set out in the Proposal. If you request additional services we have discretion whether or not to perform this work.
4.3. If we agree to perform the additional services, then we will inform you of the additional costing. You need to sign off on the variation and costing before we commence work.
5. INTELLECTUAL PROPERTY AND MORAL RIGHTS
5.1. All work which is created by uniVocity for you, and which is presented to you but does not proceed, is the Intellectual Property of uniVocity. uniVocity does not assign or license rights to you.
5.2. For Service Requests that are Feature Requests or Customisations, all items which are produced via such customisation, modification and/or enhancement services on our Software are software products owned by uniVocity and all Intellectual Property rights remains with uniVocity.
5.3. For Service Requests which require Development of a Data Integration Solution, upon successful implementation using the test cases, the ownership of the approved final Data Integration Solution only will be assigned to you. Any customisations, modifications and/or enhancements to our Software which we make in the process of creating your Data Integration Solution, are software products owned by uniVocity and all Intellectual Property rights remain with us.
5.4. Once the Services we have provided are shown to be successfully implemented using the test cases, any subsequent errors with the final product are not the responsibility of uniVocity.
5.5. You grant us the right to introduce code in our internal code base. All test cases provided by you may be used by use to ensure that future modifications on our Software will not affect the customized implementations. You do not have intellectual property rights and you cannot claim copyright or intellectual property rights over the test cases.
5.6. You agree to provide information including Intellectual Property to us to enable us to provide the Services. You:
(a) warrant that you have all necessary rights to provide the Intellectual Property to us;
(b) grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use the Intellectual Property in any way we require to provide the Services to you; and
(c) consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.
5.7. If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:
(a) irrevocably consent to any amendment of the Intellectual Property in any manner by us for the purposes of providing Services to you;
(b) irrevocably consent to us using or applying the Intellectual Property for the purposes of providing Services to you without any attribution of authorship;
(c) agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
(d) agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statement.
6. CONFIDENTIAL INFORMATION
6.1. We and you, including employees and contractors, agree not to disclose Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use your Confidential Information for the purpose for which it was disclosed by you and not for any other purpose.
6.2. These obligations do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
6.3. The obligations under this clause will survive termination of these Terms.
7. FEEDBACK AND DISPUTE RESOLUTION
7.1. Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact uniVocity at firstname.lastname@example.org.
7.2. If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of South Australia to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
7.3. Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
8. LIMITATION OF LIABILITY AND DISCLAIMERS
8.1. ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
8.2. Our liability is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
8.3. Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied; and we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
8.4. Services: If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.
8.5. Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services in this estimated period, which is affected by your delay in response, incomplete or incorrect information.
8.6. Referral: On request by you, we may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
8.7. Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees, warranties and terms relating to the Services and this agreement, except those set out in this agreement.
8.8. This clause will survive termination of these Terms.
9.1. You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from: (i) any information that is not accurate, up to date or complete or is misleading or a misrepresentation; (ii) any breach of these Terms; (iii) and any misuse of the Services; from or by you, your employees, contractors or agents. 9.2. You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us. 9.3. The obligations under this clause will survive termination of these Terms.
10.1. The parties may terminate the Terms by mutual agreement, by notice per the Notice Period in writing including by email.
10.2. Either party may terminate the Terms, if there has been a material breach of these Terms, subject to following the dispute resolution procedure.
10.3. We may terminate the Terms immediately, in our sole discretion, if:
(a) we consider that a request for a Service is inappropriate, improper or unlawful;
(b) if you fail to provide us with clear or timely instructions to enable us to provide the Services;
(c) we consider that our working relationship has broken down including a loss of confidence and trust; or
(d) for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe.
10.4. If you terminate this agreement early, we may, at our sole discretion, provide you with a refund of the unused Required Hours as set out in the Estimate. There will be no refund for any Prepaid Hours.
10.5. On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
10.6. On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.
10.7. On completion of the Services, we will retain your documents (including copies) as required by law or regularity requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
11.1. Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
11.2. Publicity: You consent to us using advertising or publically announcing that we have undertaken work for you.
11.3. Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
11.4. GST: If and when applicable, GST payable on our Services will be set out on our Site. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
11.5. Relationship of parties: The Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
11.6. Assignment: The Terms is personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
11.7. Severance: If any provision (or part of it) of the Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of the Terms are valid and enforceable.
11.8. Notices: Any notice required or permitted to be given by either party to the other under these conditions will be in writing addressed to you at the email address in the Proposal. Our contact email address is email@example.com. Any notice may be sent by email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
11.9. Jurisdiction & Governing Law: The Terms are governed and construed in accordance with the laws of South Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of South Australia.
12.1. Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential".
12.2. Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
12.3. Software refers to the data integration software package that is available for download on the Site.
If you have any questions or notices in relation to these Terms, please contact us at: uniVocity Software Pty Ltd trading as Univocity ABN 37 165 465 501 29 Campbell Drive, Reynella East SA 5161 Australia firstname.lastname@example.org
Last update: 05 April 2017