Smartsoft Pty Ltd ACN 008 110 558
("we", "us" or "our")
Standard Terms
Front Desk Extended Care Plan and
Casual Support
Representations, warranties and acknowledgements
Termination and other general terms and conditions
1.1 In these Standard Terms:
1.1.1 "Casual Support" means help desk and technical support provided to you in 15 minute direct billed increments of time pursuant to a Casual Support Order;
1.1.2 "Casual Support Order" means an Order setting out the details of Casual Support to be provided;
1.1.3 "Confidential Information" includes all information of a confidential nature pertaining to the Software, the Support Services and information relating to any product, invention, development or document in any way related to the Software or to the Support Services. Information in the public domain does not form part of the Confidential Information provided such information has not been disclosed in breach of any duty of confidentiality;
1.1.4 "Installation Agreement" means an agreement in respect of the installation and use of the Software;
1.1.5 "Licence" means a licence granted by us to you pursuant to an Installation Agreement;
1.1.6 "Order" means a request submitted by you to us identifying the services you wish to obtain from us on these Standard Terms which order we have agreed to accept at our discretion by any one of:
1.1.6.1 our acknowledgement of receipt of your Order;
1.1.6.2 our notice to you accepting your Order;
1.1.6.3 supply of the Support Services; or
1.1.6.4 processing of your payment of the Licence Fee;
1.1.7 "Others" means any person other than us (including our officers, employees, agents and contractors) and you;
1.1.8 "Payment Schedule" means such payment terms and timing as is set out in the accepted Order;
1.1.9 "Service Fee" means the Service fee as described and set out in the accepted Order;
1.1.10 "Software" means the Front Desk Practice Management System software (including any Software Revision) and bundled utilities installed pursuant to an Installation Agreement;
1.1.11 "Software Revision" means any modification, update, upgrade or other revision to the Software which in our sole discretion we may make from time to time;
1.1.12 "Support Services" may comprise any one or more of:
1.1.12.1 technical support in relation to basic use and functionality of the Software;
1.1.12.2 provision of Software Revisions; and
1.1.12.3 other such assistance as we in our sole discretion may agree to provide to you from time to time (including but not limited to Casual Support);
1.1.13 "Term" means the period of operation of the Support Services Agreement as set out in the accepted Order (which will be the period of service paid for in the case of Casual Support); and
1.1.14 "you" or "your" refers to the licensed user of the Software being:
1.1.14.1 the person (if an individual); or
1.1.14.2 the entity, and the officers and employees of that entity, if you are a company or a partnership,
who submits the Order.
1.2 Your access to, and our provision of, the Support Services and the Confidential Information is governed by these Standard Terms.
1.3 Headings in these Standard Terms are for reference only and do not affect the interpretation.
1.4 These Standard Terms are written in plain English as far as possible. The terms are to be interpreted so as to give effect to the parties' agreement. No rule will apply to resolve a doubt as to interpretation of a provision in these Standard Terms against the party that prepared that provision. The specific provisions will not limit the interpretation of general provisions.
1.5 In these Standard Terms where a word or phrase is given a particular meaning other parts of speech or grammatical forms of that word or phrase have corresponding meanings.
2. Agreement
2.1 In consideration of your payment to us of the Service Fee in accordance with the Payment Schedule and subject to clause 2.2, we agree to provide to you during the Term:
2.1.1 the Support Services; and
2.1.2 Software Revisions (except in the case of Casual Support),
on the terms of an agreement comprising your Order and these Standard Terms ("Support Services Agreement").
2.2 The Support Services Agreement is conditional upon you holding and maintaining a valid License.
3. Support Services
3.1 The Support Services will only be provided in association with a valid Licence. If at any time your Licence is revoked or terminated for any reason, the Support Services Agreement may also be terminated in accordance with clause 10.1.
3.2 You acknowledge and agree that each Software Revision made available to you under the Support Services Agreement will require you (or the person for you or on your behalf undertaking the installation of the Software Revision which may include us if you have so authorised), to enter into an Installation Agreement which will be displayed during the installation process. Failure to accept any such Installation Agreement will result in the Software Revision not being installed. In such event, in our sole discretion we may terminate the Support Services Agreement in accordance with clause 10.1.
3.3 The Support Services not include the provision of general computing, hardware, software, internet, tax, accounting or legal advice.
3.4 We may in our sole discretion limit the time we spend responding to queries from you whether those queries are conducted by email or telephone or any other means. In particular, we may limit and/or or terminate Support Service provision in the event that you, or Others, use or attempt to use the Support Services in a manner that we consider in our sole discretion is inappropriate, abusive, excessive or which we suspect may be fraudulent, misleading or in breach of the law or this Support Services Agreement.
You agree that you:
4.1 will not, and you will not permit Others to act in any manner whatsoever in relation to the Confidential Information that may infringe our copyright or proprietary interest or the copyright or proprietary interest of any other person;
4.2 will at all times comply with the terms of all relevant Installations Agreements; and
4.3 are solely responsible for all data and data integrity and you will take such measures as are appropriate to protect your data including without limitation backup, anti-virus, data loss and data corruption protection measures.
Representations, warranties and acknowledgements
6. Your representations and warranties
You represent and warrant that:
6.1 you possess the legal right to enter into the Support Services Agreement; and
6.2 you will not and will not permit any Others to use the Support Services or the Confidential Information in breach of the terms of the Support Services Agreement.
7. Our warranty
7.1 All warranties in respect of the Software and Software Revisions are provided pursuant to an Installation Agreement and are explicitly excluded from the Support Services Agreement. We will use our reasonable best endeavours in providing the Support Services however all warranties in respect of the Support Services are expressly excluded to the extent permitted by law.
7.2 Without limiting the generality of clause 7.1, we do not make any warranty in respect of:
7.2.1 functionality or the suitability of any Software Revision for your requirements even if you have identified those requirements to us prior to entering into the Agreement;
7.2.3 the absence of viruses, errors or other harmful elements or functions;
7.2.3 compliance with any laws, whether Australian, international or any foreign jurisdiction;
7.2.4 availability, performance or quality of the Support Services at any particular time;
7.2.5 retention of data; or
7.2.6 data integrity.
7.3 In respect of any defect arising in relation to the provision of the Support Services (excluding any defect in the Software or in any Software Revision) identified to us within 7 days of service provision, we will endeavour to correct such defect as soon as practicable provided that such defect is not a defect caused directly or indirectly by any other software or by any hardware and further provided that we will not be liable for any claim relating to any inability to correct or delay in correcting any defect.
7.4 Other than as explicitly provided in the Support Services Agreement, all matters pertaining to the Software and Software Revisions are subject to the terms of the relevant Installation Agreement.
8.1 You agree that we will not be liable to you for any damages of any kind, including but not limited to indirect, consequential, exemplary, incidental, special of punitive damages or for lost profits, revenue or business opportunities, whether arising directly or indirectly from your use of the Support Services even if we have been advised of the possibility of any such damages.
8.2 Your sole remedy against us in respect of any breach by us of the terms of the Support Services Agreement will be the re-supply of the Support Services provided that you will not be entitled to take any action or seek any remedy against us if at the time of our breach you had already breached the terms of the Support Services Agreement.
8.3 In no event will we be liable to you for any amount in excess of such amount of the Service Fee as had been (at the time of such liability arising) most recently invoiced to and paid by you.
You agree to indemnify and to hold us and each of our officers, agents, employees and contractors:
9.1 harmless from any loss, liability, claim or demand, including but not limited to legal practitioners' fees and costs, suffered, incurred or made by you or any third party due to, arising out of or related to your use of the Support Services or due to, arising out of or related to any activities undertaken for you or on your behalf by us, our officers, agents, employees or contractors; and
9.2 harmless from, and pay our legal practitioners' fees and costs if we become liable for or incur, any damages in connection with a breach by you of the Support Services Agreement. You may not settle any dispute without our prior consent, which may only be given in writing signed by our duly authorised representative.
Termination and other general terms and conditions
10.1.1 pursuant to the terms of an Installation Agreement, we revoke your Licence and terminate such Installation Agreement;
10.1.2 you decline to enter into an Installation Agreement; or
10.1.3 in our sole discretion, we reasonably believe you to be in breach of the Support Services Agreement,
we may in our sole discretion terminate the Support Services Agreement.
10.2 In the event that we terminate the Support Services Agreement pursuant to clause 10.1, you acknowledge and agree that you will remain liable for and will pay us on demand without set off any outstanding amount of the Service Fee or other monies owed to us and that we will not be required to refund to you any Service Fee or other monies paid to us.
10.3 The provisions of clauses 5, 8, 9, and 13 of these Standard Terms will survive any termination or expiration of the Support Services Agreement.
10.4 Upon the termination of the Support Services and unless otherwise explicitly authorised by us, you agree to immediately cease to use and will destroy, or at our option return to us, all copies of the Confidential Information.
10.5 You agree that monetary damages might not provide sufficient remedy to us if you breach the Support Services Agreement and you consent to the grant of injunctive or other equitable relief in the event of such breach.
11. Notices
You agree that all transactions relating to the Support Services may, at our option, be conducted electronically, including any that we are otherwise required to provide in "writing". For example, we may send you notices by way of email to any email address that you provide to us during the Term. If you do not wish to deal with us electronically, you must not enter into the Support Services Agreement. If applicable law now or later requires us to communicate with you non-electronically, we reserve the right to charge a fee for doing so. Notice will be deemed given 24 hours after the email is sent, unless (for email) we are notified that the email address is invalid. Alternatively, we may give you notice by mail to the address provided on the Order.
12. Assignment
You may not assign your rights under the Support Services Agreement without our consent. We may, in our sole discretion, elect to terminate the Support Services Agreement if you attempt to assign your rights without our consent. We may assign our rights under the Support Services Agreement at our discretion.
13. Governing law and disputes
14. Entire agreement
The Support Services Agreement (including all documents incorporated by reference) comprises the entire agreement between you and us in respect of its subject matter and supersedes all prior and contemporaneous communications between you and us. No term of the Support Services Agreement may be waived by us except in written document signed by our authorised representative.
15. Severability
Every provision of the Support Services Agreement will be deemed severable as far as possible from the other provisions of the Support Services Agreement. If any provision is found to be void, illegal or unenforceable for any reason, it will be deemed to be severed and omitted from the Support Services Agreement. The Support Services Agreement with the offending provision severed and omitted and with any consequential amendment if necessary, will otherwise remain in full force, provided that the allocation of risks described in the Support Services Agreement is given effect to the fullest extent possible.
16. No waiver
Any failure by us to act with respect to a breach of the Support Services Agreement by you or by others does not waive our right to act with respect to such breach or subsequent or similar breaches.
17. Relationship
You agree that no joint venture, partnership, employment or agency relationship exists between you and us as a result of the Support Services Agreement or your use of the Intellectual Property or the Confidential Information.
18. Copy of Support Services Agreement
You agree to print or make an electronic copy of the Support Services Agreement (and any amendment from time to time) and retain it in your records. You also agree to make a copy of any other information that we deliver to you.