This is an agreement between Fusion Software Development Pty Ltd and a Customer subscribed to our services. It describes the services we provide to our customers, and other aspects of our business relationship. By using the subscription service, customer is agreeing to these general terms and conditions.
1. Definitions and interpretation
- The Order including any annexures and attachments thereto;
- These General Terms and Conditions including any Schedule;
- Any End User Agreement;
- Any other policy relevant to the use of the Software by the Customer;
Auto Renew Licences means a Licence which the Customer has requested, in the Order, to be automatically renewed on completion of the Initial Term;
Commencement Date means the date specified in Item 1 of the Order;
Confidential Information means information that is by its nature confidential but does not include:
- Information already known to the receiving party at the time of disclosure by the other party; or
- Information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement;
Configuration Services means the configuration of the Software to meet the Customer Specifications;
Customer Specifications means the Customer’s specifications for the configuration of the Software, if any, identified in the Order;
Designated Site means the location identified in the Order as being the location of the dealer showroom and Equipment on which the Software is to be installed;
End User Agreement means the end user agreement applicable as at the time of initial and any subsequent installation of the Software and includes, for the avoidance of doubt, any end user agreement applicable at the time of updating the software and/or at the time of installation of any new release of the Software;
Equipment means computer equipment supplied by the Customer comprising components which meet the Minimum System Requirements;
Guarantee means the guarantee and indemnity in this Agreement.
- The same as in the GST Law;
- Any other goods and services tax, or any tax applying to this Agreement in a similar way and includes, without limiting the generality of the forgoing, value-added tax; and
- Any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
GST Law means the same as "GST law" in A New Tax System (Goods and Services Tax) Act 1999 (Cth) or any other law outside of Australia applicable to the GST;
Initial Term means the period commencing on the earlier of:
- Expiry of the Trial Licence Period; and
- Date of this Agreement,
and continuing for the Initial Term specified in the Order;
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
Licence means the licence of Software granted pursuant to this Agreement;
Subscription Fee means the amount specified in the Order;
Media means the media on which the Software is recorded or printed;
Minimum System Requirements means minimum hardware and software specifications identified in the Order or by Fusion from time to time;
Moral Right means:
- A right of attribution of authorship;
- A right not to have authorship falsely attributed;
- A right of integrity of authorship; or
- A right of a similar nature;
Which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this Agreement;
New Release means software which has been provided primarily to implement an extension, alteration, improvement or additional functionality to the Software;
Order means the order form, whether or not in the form supplied by Fusion, containing the Customer’s request for the supply of a Licence in respect of the Software in accordance with this Agreement;
Renewal Period means:
- The period equal to the Initial Term; and/or
- Any renewal period agreed by the parties in writing;
Schedule means the schedule to this Agreement;
Security Interest means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of any obligation, or that gives a creditor priority over unsecured creditors;
Self-Host Customer means a customer who has or proposes to host the Software at the Designated Site;
Service Level Requirements means a policy maintained by Fusion specifying service levels in the Schedule to this Agreement, which the Customer acknowledges may be amended or updated from time to time at Fusion’s sole and absolute discretion
Software means the computer program specified in the Order including any Updates and New Releases;
Subscription Fee means the subscription fee identified in the Order;
Support Fees and Charges means the applicable fees and charges published by Fusion for the then current financial year;
Training Services means the training services, if any, specified in the Order;
Trial Licence means a temporary Licence requested by, and granted by Fusion to, the Customer to evaluate the Software, for the Trial Licence Period and specified in the Order;
Trial Licence Period means the period commencing on the date of this Agreement and continuing for the Trial Licence Period specified in the Order;
Update means software which has been produced primarily to update the functionality of the Software and overcome defects in the Software.
Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders. Headings are for ease of reference only and shall not affect the interpretation of this Agreement.
2. Licence, duration and renewal
- In consideration of the Subscription Fee, and commencing on the Commencement Date, Fusion grants a non-transferrable, non-exclusive licence to the Customer to use the Software under this Agreement.
- Subject to the terms of this Agreement, the Licence will continue from the Commencement Date for the Trial Licence Period, then the Initial Term and then any Renewal Period.
2.3 Auto Renew Licence
If the Customer punctually and properly performs its obligations under this Agreement, Fusion will renew the Licence at the expiration of the Trial Licence Period for the Initial Term or at the expiration of the Initial Term for the Renewal Period, without further notice to or from the Customer, and continuing on the same terms as this Agreement, except that:
- The Subscription Fee will be reviewed in accordance with the method in Item 7; and
- This clause 2.3(a) has no further effect unless:
(a) Item 3 refers to more than one Renewal Period, in which case this Agreement is modified so that the number of Renewal Periods remaining is one fewer than specified in Item 3; or
(b) The parties otherwise agree to extend the Renewal Period in writing.
The Customer may, by written notice served on Fusion:
- Within 7 days after expiry of the Trial Licence Period, terminate this Agreement and the Licence will be terminated with immediate effect; or
- Between 3 and 6 months prior to the expiry of the Initial Term or any Renewal Period, terminate this Agreement at the expiry of the Initial Term or the Renewal Period and the Licence will be terminated on the day after the expiry of the Initial Term or the Renewal Period.
- The parties need not execute a fresh Agreement in order to give effect to clause (a).
- Notwithstanding that Fusion may accept payment of the Subscription Fee by way of monthly, quarterly or bi-annual instalments, the Customer acknowledges and agrees that the Customer will be liable for the Subscription Fee payable in respect of:
- The Initial Term; and
- Unless terminated in accordance with clause 2.3(b), any Renewal Period and each subsequent Renewal Period where more than one is specified in the Order or agreed under clause 2.3(a)(ii)(B).
3. Conditions of Licence
- Fusion warrants that it has the authority to grant the Licence.
- The Licence shall be non-transferable and non-exclusive to the Customer.
- The Software must only be used at the Designated Site, unless the consent of Fusion is obtained to use the Software on alternative equipment or at an alternative location. Such consent will not be unreasonably withheld.
- Fusion may, at its sole and absolute discretion, distribute and make the Software available for use on alternative devices including mobile telephones, tablet personal computers and other portable devices through device application stores. The terms of any licence or agreement issued by a device application store do not in any way affect the rights and obligations of the parties under this Agreement.
- The Customer must not create or permit to exist a Security Interest over the Software.
4. Delivery of Software
- Subject to subclause (b), Fusion must deliver the Software to the Designated Site on or before the Delivery Date or on such other date as is mutually agreed between the parties.
- If the Customer is a Self-Host Customer, Fusion will provide the Customer with such access as is necessary to download the Software.
- Unless otherwise agreed by Fusion, Fusion is not liable to install the Software or to provide any services or support in respect of installation of the Software under this Agreement.
- In consideration of the Configuration Fee and subject to subclause (c), Fusion may at the Customer’s request, provide Configuration Services to the Customer.
- The Customer must, at the Customer’s cost:
- Provide Fusion with:
(a) Equipment on which the Software has been installed;
(b) Access to the Designated Site at times and on days required by Fusion;
(c) Any induction and training required for Fusion to access the Designated Site;
(d) Such assistance, including personnel and facilities, as may be required by Fusion;
- Ensure that the Designated Site is safe and otherwise complies with any workplace health and safety laws.
6. Training Services
- In consideration of the Training Fee and subject to subclause (b), Fusion may at the Customer’s request provide the Training Services to the Customer.
- The Customer must, at the Customer’s cost, provide Fusion with:
- Equipment on which the Software has been installed;
- Access to the Designated Site at times and on days required by Fusion;
- Such of the Customer’s personnel as is specified in the Order;
- Any induction and training required for Fusion to access the Designated Site;
- Such assistance, including personnel and facilities, as may be required by Fusion.
7. Software Support
- Subject to subclauses (b) and (c), Fusion will provide the Customer with software and technical support in accordance with the Service Level Requirements. The software and technical support which Fusion may provide includes:
- Rectification of defects in the Software;
- Access to Updates; and
- Access to New Releases.
- The Customer must, if requested by Fusion, promptly provide Fusion with:
- A documented example of the Defect;
- A listing of output; and
- Any other data required to reproduce operating conditions similar to those present when any defect is observed; and
- Unrestricted, remote access to the Software and the Equipment.
- Notwithstanding any other provision of this Agreement, software and technical support does not include, and the Customer must not require the rectification of Defects caused by:
- The Customer’s use of the Software other than in accordance with the Fusion’s directions and recommendations;
- Any configuration, modification, revision, variation, translation or alteration of the Software not approved by Fusion;
- The failure and/or refusal of the Customer to install Updates;
- The failure and/or refusal of the Customer to install New Release;
- Failure of or fault in the Equipment;
- Telecommunications links provided by third parties;
- Use of the Software by a person not authorised by Fusion;
- The use of computer programs other than the Software;
- The failure of the Customer to provide suitably qualified and adequately trained operating and programming staff for the operation of the Software;
- The provision of updates and new releases for components of the Software identified as third-party components;
- Any other faults not associated with the Software.
- If a Defect is identified by Fusion as being the result of, or if the Customer requests software support as a result of, a matter identified in subclause (c), Fusion will charge the Customer the Support Fees and Charges.
8. Payments, other charges and Subscription Fee reviews
8.1 Payment of Subscription Fee
- Unless otherwise agreed by Fusion in writing, the Subscription Fee is payable by the Customer to Fusion monthly in advance on the first day of each month by instalments each being one-twelfth (to the next whole cent) of the Subscription Fee for that year.
- If the Initial Term commences on a day other than the first day of a month or expires on a day other than the last day of a month, the Customer must pay to Fusion the Subscription Fee for the broken period calculated at a daily rate proportionate to the Subscription Fee, and payable on the first day of the broken period.
- If this Agreement ends at a time other than at the end of an Initial Term or the end of the Renewal Period, the Customer must pay to Fusion prior to the end of this Agreement the balance of the Subscription Fee.
8.2 Subscription Fee reviews
- Subscription Fee reviews occur on the date and in the manner set out in Item 7.
- Pending determination of the Subscription Fee for any year, the Subscription Fee is to be paid at the rate payable at the end of the previous year and an adjustment (if necessary) is to be made within 1 month of the Subscription Fee for that year being determined.
8.3 Tax Invoices, GST and interest
- Fusion may issue to the Customer a tax invoice in respect of the:
- Subscription Fees on the Commencement Date and monthly, quarterly, bi-annually (as the case may be) thereafter;
- Configuration Fees after completion of the Configuration Services;
- Training Fees after completion of the Training Services; and
- Support Fees and Charges on the last day of the month in which the Software Support is provided.
- If Fusion does not issue a tax invoice to the Customer in accordance with clause (a), the Customer must accept the Order and this Agreement as a tax invoice and must not otherwise withhold payment pending issue of any tax invoice.
- All fees are exclusive of all taxes, duties and surcharges payable in respect of the Software and in respect of this Agreement.
- Subject to clause (e), any payment required to be made under this Agreement will be increased by any GST payable by the payee for that supply. Fusion will deliver a tax invoice for the payment to the Customer in accordance with the GST Law.
- Where a payment is a repayment of, or contribution to, a creditable acquisition made by the Customer, the payment will (prior to the increase provided for under clause (d)) be discounted by the amount of the input tax credit to which the Customer is entitled for that creditable acquisition under the GST Law.
- If payment is not made within 15 days of the due date, interest will be payable by the Customer at the rate of 18 per cent per annum on the overdue amount and, if any payment is owing after 60 days from the due date, Fusion will be entitled to suspend its remaining obligations under this Agreement and to re-possess the Software.
9. Ownership and Intellectual Property Rights
- Fusion retains ownership of the Software whether in its original form or as modified by the Customer during the term of the Licence.
- All Intellectual Property Rights in the Software are retained by Fusion.
- Nothing in this Agreement affects the ownership of Moral Rights in the Software.
- The Customer must immediately inform Fusion of any potential or actual breach of Fusion’s Intellectual Property Rights.
- Any discovery, design, invention, idea, concept, technique, secret process or improvement in procedure conceived, made, developed or discovered by the Customer in the course of using the Software (whether alone or with any other person) which is capable of being used or adapted for use in connection with the activities of Fusion (“Inventions”) must immediately be disclosed to Fusion, whether or not the Inventions are capable of being protected by copyright, letters patent, registered design or other protection.
- The Customer assigns or, to the extent necessary, will assign its entire right, title and interest in and to the Inventions (and any intellectual property protection obtained in respect of the Inventions) to Fusion or as Fusion may nominate for the purpose.
- The Customer will at the expense of Fusion do all such things and execute all documents necessary to:
- Register or otherwise protect the Inventions; and
- Perfect the assignment required by this clause.
- Whenever required to do so, and at the expense of Fusion, the Customer will apply or join in applying for letters patent or any other intellectual property protection reasonably determined by Fusion in Australia or in any other part of the world for any Invention conceived, made, developed or discovered by the Customer in the course of Fusion providing it the Products and services under this Agreement. The Customer will do all such things and execute all documents necessary to apply for such protection and to assign the benefit of that protection to Fusion or its nominee.
- The Customer must ensure that its employees, contractors and assigns observe and agree to a clause on similar terms in respect of any discovery, design, invention, idea, concept, technique, secret process or improvement in procedure conceived, made, developed or discovered by them in the course of their use of the Software.
- The Customer must, within seven (7) days of receiving notice of an infringement of a third party’s intellectual property rights arising out of the Customer’s use of the Software, notify Fusion and provide copies of any notice, demand or written correspondence containing particulars of the alleged infringement (“Infringement Notice”);
- The Customer must comply with Fusion's reasonable directions in relation to the Infringement Notice. The Customer must not make any admissions or concessions, settle a claim in connection with an Infringement Notice, or consent to any judgment being entered without Fusion's prior written consent.
- Subject to the Customer’s compliance with its obligations under this clause 10, Fusion will pay any judgment finally awarded against the Customer in respect of a claim in connection with an Infringement Notice or amount which is payable by the Customer to settle a claim.
- Fusion's liability under clause (l) will be reduced to the extent the claim is based on:
- Use of a superseded or modified release of the Software, if the claim would have been avoided by using a later or unmodified release of the Software;
- The combination, operation or use of the Software with programs or data models not provided by Fusion;
- Any use of other software not made or provided by Fusion either in conjunction with or separately to the Software.
- Subject to the following subclauses of this clause, and without seeking to exclude or limit the application of sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth) the Customer must not copy the Software, in whole or in part.
- If the Customer is a Self-Host Customer, the Customer:
- May make such number of copies of the Software as is necessary to serve its internal needs for system's backup and security. All copies of the Software and the Media in which the copies are contained will be and remain the property of Fusion.
- Must mark all copies of the Software and the Media in which the copies are contained with a notice of:
(a) Fusion's ownership of the Software and the Media;
(b) The confidentiality of the Software; and
(c) Such other information as Fusion requires.
- Must maintain records of all copies of the Software made by it and the place at which those copies are situated. Such records must be furnished to Fusion upon reasonable notice.
- Must notify Fusion immediately on becoming aware of any unauthorised use or copying of the whole or any part of the Software.
- Immediately upon termination of this Agreement, must deliver up to Fusion the Software (including all copies, authorised or otherwise) and the Media, whether in their original form or as modified by the Customer.
- The Customer must not modify the whole or any part of the Software or combine or incorporate the whole or any part of the Software in any other program or system without the prior consent in writing of Fusion.
- If the Software is modified in accordance with subclause (a), the modifications must, unless Fusion directs otherwise, be made in accordance with a written proposal submitted by the Customer to Fusion.
- The Customer shall fully indemnify and hold harmless Fusion against any liability incurred if the modifications infringe the Intellectual Property Rights of a third person.
- The Software as modified remains the property of Fusion.
- This Agreement shall continue to apply to the Software as modified.
- This clause is subject to any right of modification arising pursuant to sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth).
12. Reverse engineering
Except as expressly permitted by sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), the Customer must not reverse assemble or reverse compile the Software or any part of the Software.
- Acknowledges that Fusion may collect, use, store and disclose personal and other information provided by the Customer as a consequence of its use of the Software; and
- Consents to the collection, use, storage and disclosure of personal and other information provided by the Customer as a consequence of its use of the Software.
- The Customer will be responsible for protecting the Software at all times from unauthorised access, use, damage or penetration.
- To the full extent permitted by law, Fusion excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
Risk of loss or damage to the Customer’s data, the Software and the Media will pass to the Customer upon delivery of the Software to the Designated Site.
- Fusion warrants that the Software will perform substantially in accordance with the Specifications.
- If, within 14 days after the Commencement Date, the Customer notifies Fusion in writing of:
- The fact that the Software is not performing substantially in accordance with the Specifications; and
- The alleged defects or errors, with sufficient particularity to enable Fusion to remedy the defects or errors,
Fusion must at its own expense, commence to examine the Software within three working days and, as soon as practicable thereafter, rectify the defect or replace the Software.
- The warranty contained in subclause (b):
- Is subject to the Customer having fully complied with its obligations under this Agreement;
- Is not a warranty that the results obtained from the Software will be in accordance with the Customer's expectations; and
- Does not operate where the substantial non-performance arises in any respect from the installation of the Software, the nature or operation of the equipment on which the Software is used or the use of any materials or software not provided by Fusion.
- The Customer warrants that the Customer will only use the Software for the Customer’s own business being operated from the Designated Site.
17. Indemnity and Liability
- Fusion warrants that it has the right to grant the Licence to the Customer.
- Subject to subclause (c), Fusion shall indemnify and hold harmless the Customer against any claim made against the Customer by a third party alleging that the Software infringes the copyright of that third party.
- Fusion shall not be liable to the Customer under subclause (a) or (b) if:
- The Customer does not notify Fusion of the other person's claim or of infringement of copyright within seven days after becoming aware of the claim;
- Fusion's ability to defend the claim has been prejudiced by the Customer's non-compliance with any of its obligations under this Agreement;
- The Customer does not give Fusion reasonable assistance in defending the claim;
- The claim has arisen because of the use of the Software in combination with equipment, materials or computer programs not supplied or approved by Fusion; or
- The Customer does not permit Fusion to have control of the defence of the claim and all related settlement negotiations.
- Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, the liability of Fusion in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) in respect of any act or omission of Fusion in connection with its obligations under this Agreement will not exceed the sum of $10,000.00, even if Fusion has been advised by the Customer as to the possibility of such losses being incurred.
In respect of any claim between the parties under or in connection with this Agreement, the parties agree that to the maximum extent permitted by law, the operation of Part 4 of the Civil Liabilities Act 2002 (NSW) or of any laws having a similar effect in the Commonwealth and other states and territories of Australia with respect to proportionate liability, are excluded and have no application or effect.
- For the purpose of this Agreement, each of the following is a Terminating Event:
- The breach or threatened breach by the Customer of any of its material obligations under this Agreement;
- The appointment of any type of insolvency administrator in respect of the property or affairs of the Customer;
- The entry or proposed entry by the Customer into any scheme, composition or arrangement with any of its creditors;
- The permanent discontinuance of use of the Software or any part of the Software by the Customer;
- Any event described in this Agreement as a Terminating Event; and
- The purchase of the Software by the Customer pursuant to an agreement between the parties.
- This Agreement may be terminated immediately on the happening of a Terminating Event at the option of Fusion.
- If the Terminating Event is one specified in subclause (a)(i)-(v), Fusion must give to the Customer notice of the happening of that event and require the breach to be remedied or a written undertaking to be given that the breach will not occur, as the case may be. If the breach is not remedied or the undertaking not given (as the case may be) within 14 days, Fusion may either:
- Agree to waive its rights under this clause if satisfied that the happening of the Terminating Event has not in any way prejudiced its position under this Agreement; or
- Terminate this Agreement and clause 8.1(c) will apply.
- Fusion will not be liable for the consequences of an occurrence of any event beyond its reasonable control.
- Immediately upon a Terminating Event specified in subclause (a)(i)-(v) occurs, the Customer shall immediately on termination return to Fusion the Software and all copies of the Software, all revisions, enhancements and upgrades of the Software, the Media and the Manual of Specifications. Alternatively, if Fusion requests, the Customer must destroy such Software, copies, revisions, enhancements and up-grades by erasing them from the Media and must certify in writing to Fusion that they have been destroyed.
- Any termination of the Licence shall not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.
- Subject to clause 8.1(c), the Customer may terminate this Agreement at any time by providing no less than 30 days' written notice. Any notice given by the Customer under this Clause must not purport to or have the effect of terminating this Agreement prior to the expiration of the Initial Term or any Renewal Period.
19. Implied terms and consumer guarantees
- Subject to subclause (b), any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
- Pursuant to ss 64A of the Australian Consumer Law, this subclause applies in respect of any goods or services supplied under this Agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this subclause will not apply if the Customer establishes that reliance on it would not be fair and reasonable. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited:
- In the case of goods, to any one of the following as determined by Fusion:
(a) The replacement of the goods or the supply of equivalent goods;
(b) The repair of the goods;
(c) The payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) The payment of the cost of having the goods repaired; and
- In the case of services, to any one of the following as determined by Fusion:
(a) The supplying of the services again; or
(b) The payment of the cost of having the services supplied again.
- The Customer must not, other than in accordance with this Agreement or without the prior written approval of Fusion, disclose Fusion's Confidential Information.
- The Customer will not be in breach of subclause (a) in circumstances where it is legally compelled to disclose Fusion’s Confidential Information.
- Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information other than in accordance with this Agreement.
- Notwithstanding any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
- This clause will survive the termination of this Agreement.
- Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
- In addition to paying the Subscription Fee, Configuration Fees, Training Fees, Support Fees and Charges and any other amount payable or in connection with this Agreement (which is exclusive of GST), the Customer will:
- Pay to Fusion an amount equal to any GST payable from any supply by Fusion in respect of which the Subscription Fee or any other amount is payable under this Agreement; and
- Make such payment either on the date when the Subscription Fee is due or within 7 days after the Customer is issued with a tax invoice, whichever is the later.
- Fusion must, within 28 days of request from the Customer, issue a tax invoice (or an adjustment note) to the Customer for any supply under or in connection with this Agreement.
- Fusion will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to the Customer, any overpayment by the Customer for GST but Fusion need not refund to the Customer any amount for GST paid to the Commissioner of Taxation unless Fusion has received a refund or credit for that amount.
(a) Entire agreement
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Software. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.
All notices which are required to be given under this Agreement must be in writing and must be sent to the address of the recipient set out in the Schedule or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or when on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient's mail server.
The Customer must not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of Fusion.
(d) Governing law
This Agreement shall be governed by and construed in accordance with the laws for the time being in force in New South Wales and the parties agree to submit to the jurisdiction of the courts and tribunals of that state.
No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
- No variation of an essential term of this Agreement will be effective unless in writing and signed by both parties.
- Fusion may, without the prior consent of the Customer, vary a non-essential term of this Agreement.
Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of the Agreement.
23. Guarantee and indemnity
In consideration of Fusion, at the request of the Guarantor, entering into this Agreement with the Customer, the Guarantor covenants with Fusion that:
- The Guarantor is jointly and severally liable with the Customer for the punctual payment of the Subscription Fee and other money payable by the Customer, and the performance of each of the Customer's obligations under this Agreement;
- The Guarantor indemnifies Fusion against all losses and expenses that Fusion may incur due to the non-observance by the Customer of a term of this Agreement including, without limitation, during or in respect of the Initial Term and any Renewal Period. The Guarantor remains liable despite Fusion having exercised any of its rights, or that the Customer has or is in the process of becoming insolvent, or that all or part of this Agreement or guarantee may be unenforceable;
- The Guarantor:
- Charges all of its legal and beneficial interest in all of its property, including but not limited to its real property and personal property (as that term is defined in the PPSA), including property acquired after the date of this Agreement, in favour of Fusion, whether or not demand has been made on the Customer by Fusion;
- Agrees to execute all documents and do all things necessary, upon request by Fusion, to register Fusion’s interest in the Guarantor’s property as granted by this guarantee, whether by a mortgage over the Guarantor’s real property or by registration of a security interest on the register or otherwise; and
- Irrevocably appoints Fusion, its officers or its nominees severally to be the true and lawful attorneys of the Guarantor on behalf of and in the name of the Guarantor to do all things necessary to register Fusion’s security over the Guarantor’s property granted by this guarantee;
- If the charges created by clause (c) are or become void or unenforceable, clause (c) may be severed from this guarantee and the guarantee must continue in full force and effect and the severance must not affect its validity and the Guarantor will not be released from its obligations in whole or in part and Fusion’s rights and remedies against the Guarantor must not be affected by such severance;
- The liability of the Guarantor under this guarantee is not be affected by the waiver or variation to this Agreement or the Customer's rights under it, an assignment of this Agreement or any failure by Fusion to enforce its rights under this Agreement. The Guarantor's liability is also not affected by anything which, under the law relating to sureties, would release the Guarantor from its obligations under this guarantee, and to the extent permitted by law, the Guarantor waives its rights as surety as may be inconsistent with the provisions of this guarantee;
- Upon default by the Customer under this Agreement, the Guarantor must immediately pay any money (including interest on that money) or do any acts to remedy the Customer's default, without the need for Fusion to first make demand on the Customer to remedy any breaches of the Agreement;
- The Guarantor's obligations under this guarantee continue until all money payable under this Agreement is paid and all of the obligations have been performed. The Guarantor's obligations are not affected by any notice to quit given by either party or the death, insolvency or dissolution of the Customer or Guarantor;
- Between the Guarantor and the Customer, the Guarantor may be a surety only, but between the Guarantor and Fusion, the Guarantor is deemed to be a primary debtor jointly and severally with the Customer;
- If the Customer (being a company) is dissolved, or the Customer enters into liquidation or bankruptcy and the liquidator or trustee in bankruptcy disclaims this Agreement, the Guarantor will accept a Licence of the Software from Fusion for a term equal to the unexpired residue of this Agreement. The new Agreement will generally be on the same terms as this Agreement but may contain additional provisions required by Fusion. The Guarantor must pay Fusion's costs of, and incidental to, the preparation, execution and registration of the new agreement;
- The Guarantor acknowledges that the Customer is not under any duty to disclose anything regarding the Customer or its affairs to the Guarantor;
- This guarantee takes effect immediately upon its execution by the Guarantor and continues to be in effect during:
- The Initial Term;
- The Renewal Period; and
- Any extension of these terms;
- Any period of holding over;
- A period that an assignee is entitled to use the Software; and
- The holding of an equitable interest by the Customer or assignee in the Software; and
- If Fusion transfers its interest in the Software during any term, Fusion's rights under this guarantee are deemed as assigned to the new owner of the Software.
Service Level Requirements
||Target response time
||Target resolution time
||All Business Days (9am - 5pm)
||All Business Days (9am - 5pm)
||All Business Days (9am - 5pm)
Note: Defect Priority will be determined by Fusion based on the impact of the Defect on the Customer's use of the Software, with:
- Priority 1 being severe impact (such as the software not starting or crashing);
- Priority 2 being moderate impact (such as severe degradations in performance or errors which have a material impact on the Customer's business); and
- Priority 3 being other Defects.
Services will only be provided during the Service Availability times above. Services not completed during a Service Availability period will resume at the start of the next Service Availability period.
Note: [Where Defect Resolution requires on Site attendance, Fusion will provide a field support technician at the Site within 3 Business Days after the Customer reports the Defect, unless otherwise agreed with the Customer, and the target Resolution time will be 7 days.]
Fusion Hosting Services
|All Business Days (9am - 5pm)
Note:For these purposes "Availability" during a Measurement Period is calculated as:
- MPM is the aggregate duration (in minutes) of all Availability Periods during the relevant Measurement Period;
- O is the aggregate duration (in minutes) of all Outages occurring during the Measurement Period, excluding Scheduled Outages;
- Outage means a time for which there is a Priority 1 Defect or the Fusion server is not accessible by a computer system complying with the Minimum System Requirements; and
- Scheduled Outage is an Outage which is scheduled in advance by Fusion for maintenance purposes. Fusion may schedule Outages by no less than 3 Business Days' written notice to the Customer, for periods of no longer than [4 hours], unless otherwise agreed by the Customer (acting reasonably). Fusion will endeavour to schedule Outages outside of the Availability Periods.
Note: A failure of a computer system to gain access to the Fusion server due to a fault with a third party telecommunications network, or any cause beyond the reasonable control of Fusion, will not be taken to be an Outage for these purposes.