Agileware Services Agreement

Purchasing and use of Agileware services and provision of software is conditional upon you ("the Customer") agreeing to the terms of this Agreement. Click the I Accept button below to indicate your acceptance of the terms of this Agreement. If you do not agree, do not click this button and you will not be able to proceed to purchase or use Agileware services or software.

Recitals

Customer engages Agileware Pty Ltd (ABN 46 100 906 947) of Unit 4A, 39 Grimwade Street, Mitchell ACT Australia to provide Software and Services as follows.

Operative Part

1. Definitions

1.1 In this Agreement, unless inconsistent with the context:

(a) Agreement means this agreement, its recitals, provisions and any schedule of this agreement.

(b) Clause means a clause of this Agreement.

(c) Confidential Client Data Information means information which relates solely to Customer's business and does not include any underlying data structures or concepts.

(d) Confidential Information includes information which relates to Agileware, Services and Software. Including account details, passwords and activation codes development concepts, source code, object code, specifications, data models and schema, protocols, algorithms, manuals, drawings and data created or used by Agileware.

(e) Fees means the total cost as set out in the Work Order including costs for any options selected.

(f) Force Majeure means an act, omission or circumstance over which Agileware could not have reasonably exercised control including telecommunication failures.

(g) Intellectual Property Right includes any right arising from or capable of arising from the: Circuits Layout Act 1989 (Cth); Copyright Act 1968 (Cth); Designs Act 2003 (Cth); Patents Act 1990 (Cth); Trade Marks Act 1995 (Cth); any similar legislation outside the Commonwealth of Australia; any similar unregistered right and confidential information.

(h) Moral Rights has the same meaning as "moral rights" under Section 189 of the Copyright Act 1968 (Cth).

(i) Party and Parties means a party to this Agreement and their respective successors, trustees and permitted assigns.

(j) Penalty Interest Rate means the rate of 10% per annum calculated monthly in arrears and added to the outstanding sum.

(k) Sub-clause means a sub-clause of this Agreement.

(l) Taxes includes taxes, duties and government charges, fees, levies and any penalty for not paying same.

(m) Related Entity has the same meaning as "related entity" under Section 9 of the Corporations Act 2001 (Cth).

(n) Restraint Period means the period commencing on the execution of this Agreement and expiring the later of (after applying the interpretation provisions of this Agreement) 1,2, 3, 4, 5, 6, 7, 8, 9, 10, 11 or 12 months after the termination of this Agreement.

(o) Library Code includes any software, code, object, module, tool, schema, protocol or document or part thereof, which in the opinion of Agileware, is discrete and forms part of Agileware's development tool kit for future software development. If the software or document is not marked customer code or similar when delivered to Customer then same shall be deemed to be Library Code.

(p) Services means services supplied by Agileware to Customer.

(q) Software means the software developed for Customer by Agileware including any Library Code.

(r) Work Order means the web page or document describing the Services, Software and Fees including any options which Customer has selected. This can be a product web page on the Agileware Website which the Customer has purchased; or as a document provided to the Customer titled "Work Order" or "Quote".

(s) Agileware Website means any one of the websites owned and operated by Agileware having the agileware.net or agileware.com.au in the domain name.

(t) GNU General Public License means the license available at http://www.gnu.org/copyleft/gpl.html as published by the Free Software Foundation; either version 2 of the License, or any later version.

(u) Delivery Date means the date Agileware notify Customer that the Work Order has been delivered.

(v) Warranty Period means 30 calendar days from the Delivery Date unless the warranty period is specified otherwise in the Work Order.

2. Interpretation

2.1 In this Agreement, unless inconsistent with the context:

(a) Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.

(b) Words denoting the singular number shall include the plural number and vice versa.

(d) A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.

(e) Money references are references to Australian currency.

(f) Services are to be performed between 9am and 5pm Australian Eastern Standard Time, GMT+10:00. Unless explicitly stated otherwise in writing by Agileware.

(g) A reference to "includes", "including" or "inclusive" is to be construed as being a reference to "includes, without limitation", "including, without limitation", and "inclusive, without limitation" respectively.

(h) Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.

(i) Every obligation, covenant, agreement, condition express or implied in this Agreement and entered into by more than one party shall bind them jointly and each of them severally.

(j) A provision of this Agreement shall not be construed adversely to the Party that drafted it.

(k) If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.

(l) The recitals, provisions and any schedule to this Agreement form part of this Agreement and shall be read in the following order of precedence: the recitals and clauses of this Agreement; and thereafter in the order specified (if any) in Schedule 1.

(m) No remedy, expressly granted to Agileware excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to Agileware.

3. Work Order

3.1 Agileware shall provide Software and Services as described in a Work Order.

3.2 Further, Customer warrants that:

(a) the Work Order is a complete and accurate statement of Customer's entire requirements for the Services and Software; and

(b) that Customer has undertaken its own independent assessment to confirm same.

4. Software License

4.1 Subject to the terms of this Agreement, Agileware grants Customer a right to use Software under the terms of the GNU General Public License.

5. Customer's Responsibilities

5.1 Customer shall:

(a) pay the Fees as specified in an Agileware invoice;

(b) comply with the GNU General Public License;

(d) backup its data stored on Agileware's equipment or any data transmitted or caused to be transmitted over the Internet;

(e) at its expense, supply Agileware with access (including remote access) and to any hardware; access to all Customer's staff, equipment and telecommunication services as and when required; and all the information, facilities, assistance and accessories as reasonably requested by Agileware; and

(f) respond to reasonable requests and directions from Agileware in a timely manner, not exceeding 5 calendar days.

5.2 Customer shall not:

(a) use Services and Software for any illegal, unauthorised or dangerous purpose including unsolicited commercial e-mail;

(b) permit any act which infringes the Intellectual Property Rights which subsist in Services and Software and which belong to Agileware.

6. Disclaimer & Acknowledgements

6.1 Customer acknowledges that:

(a) supplied with Services and Software are certain notes and instructions and a failure to follow those instructions or notes carefully could result in erroneous data being produced or actions taken or not taken by Services and Software;

(b) Services and Software do not necessarily comply with any standard or legislation;

(c) Software is licensed on the strict understanding that, subject to the warranties below, Agileware is not responsible for the results of any actions taken, either by Customer or a third party relying on data supplied or not supplied by Agileware.

(d) Agileware cannot and does not warrant that Services and Software shall be available 24 hours a day or that any defect shall be corrected within a specific time frame.

(e) Software is not necessarily secure or without defect; and

(f) Agileware is not responsible for:

(i) ensuring that Services and Software are suitable for Customer's requirements or fit for any purpose;

(ii) any interruption to Services and Software due to equipment failure, the need for routine maintenance, peak demand etc; and

(iii) any software available on the Internet, third party software or supplied by third parties.

7. Support

7.1 Agileware may from time to time make available various support services and other assistance in relation to Services and Software.

7.2 Should Customer wish to use such services then Customer shall pay Agileware the then published rate in relation to such services. Rates for support are provided on this page, http://agileware.net/content/support-services. Such services are supplied pursuant to the terms and conditions set out in this Agreement.

8. Intellectual Property Rights

8.1 Customer acknowledges that Agileware remains the sole owner of the Intellectual Property Rights in Software and Services.

8.2 The ownership in Sub-clause 8.1 is absolute, worldwide and includes all Intellectual Property Rights.

9. Confidential Information

9.1 To the extent that Confidential Information is not in the public domain (other than by way of breach of this Agreement) and is not known by Customer at the time of disclosure, Customer shall:

(a) keep such information confidential;

(b) not directly or indirectly divulge or communicate or otherwise disclose any Confidential Information, in whole or part to any third party;

(c) not use any Confidential Information, other than for the express purpose set out in this Agreement, without the express written consent of Agileware; and

(d) take all necessary precautions to prevent any disclosure of Confidential Information to unauthorised third parties and inform Agileware of any suspected or actual disclosure of Confidential Information.

9.2 This Clause shall survive the termination of this Agreement.

10. Confidential Client Data Information

10.1 To the extent that Confidential Client Data Information is not in the public domain (other than by way of breach of this Agreement and is not known by Agileware at the time of disclosure, Agileware:

(a) shall keep such information confidential;

(b) shall not directly or indirectly divulge or communicate or otherwise disclose Confidential Client Data Information, in whole or part to any third party;

10.2 Agileware shall comply with the Privacy Act 1988 (Cth) to the extent that it is obliged to do so;

10.3 This Clause shall survive the termination of this Agreement.

11. Fees

11.1 Customer shall pay Agileware the Fees without withholding, deduction or offset of any amounts for any purpose.

11.2 Agileware may increase the Fees at any time upon 30 days notice.

11.3 If Customer requests that Agileware travel outside the Australian Capital Territory then all accommodation and expenses associated are to be either:

(a) paid for by Customer; or

(b) paid for by Agileware and invoiced to Customer at cost plus 20%.

11.4 An account rendered by e-mail by Agileware shall be sufficient evidence for a Court of the provision of the items referred to in same to Customer by Agileware.

12.Taxes

12.1 Unless expressly stated to the contrary and to the extent permitted by law:

(a) the Fees are exclusive of all Taxes which may arise in relation to the subject matter of this Agreement;

(b) Customer shall immediately pay any applicable Taxes to Agileware; and

(c) Customer shall indemnify and keep indemnified Agileware from payment of the Taxes and any penalties arising from non-payment of same.

13. Interest

13.1 Customer shall pay Agileware interest at the Penalty Interest Rate on all overdue amounts from the due date until payment is made.

14. Suspension of Services

14.1 If Customer breaches any provision of this Agreement Agileware may, without further notice to Customer, suspend further services or its remaining obligations to Customer under this Agreement.

15. Restraint Period

15.1 During the Restraint Period, Customer shall:

(a) not solicit for employment, whether directly or indirectly through a Related Entity, any person who is or was an officer, employee or contractor of Agileware during the term of this Agreement;

(b) promptly advise Agileware if a person who is or was employed or contracted by Agileware seeks to be employed or contracted by Customer or a Related Entity of Customer; and

15.2 ensure that no Related Entity of Customer engages in the conduct referred to in this Clause.

16. Limited Warranty

16.1 Agileware warrants that:

(a) it shall supply Services and Software with all due care and skill, and

(b) it shall correct any defect in Services and Software, which is notified to it within the Warranty Period.

16.2 Agileware shall not be liable to correct any defect in Software if:

(a) the defect does not result in a material failure of Software such that Software ceases to comply with Work Order;

(b) the defect is the result of alterations or modifications to Software not authorised in writing by Agileware;

(c) the defect is the result of use of Software other than in the operating environment recommended by Agileware or other than in accordance with Agileware's directions; or

(d) the defect is the result of the failure of Customer to meet its obligations under this Agreement or any other agreement relating to Software.

16.3 Agileware does not warrant that:

(a) the use of Software shall be uninterrupted;

(b) Software shall meet Customer's requirements apart from those listed in Work Order;

(d) Software shall provide any function not specified in Work Order; or

(e) Software is error free.

16.4 If Agileware investigates a defect notified to it by Customer and Agileware is of the opinion that it is not obliged to correct the defect or that no such defect existed then additional fees are payable by Customer for any such investigation.

16.4 Customer warrants that it shall within 10 calendar days of the Delivery Date conduct such tests as may be necessary, prior to the use of Software, to ensure that the Software complies with the Work Order.

16.5 Agileware cannot state and does not state whether or not Software shall work in the environment or at the times other than for which Software was expressly designed and tested.

16.6 Agileware shall re-supply any Services and Software which are not supplied in accordance with Sub-clause 16.1 provided that Customer notifies Agileware in writing of same within the Warranty Period. This remedy shall be Customer's sole and exclusive remedy for breach of this Agreement or any other cause of action against Agileware.

17. Limitation of Liability

17.1 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded. Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement. However, the liability of Agileware for any breach of such term shall be limited, at the option of Agileware, to any one or more of the following: if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and if the breach relates to services the supplying of the services again; or the payment of the cost of having the services supplied again.

17.2 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, Agileware shall not be under any liability (contractual, tortious or otherwise) to Customer in respect of any loss or damage (including consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or an act, failure or omission of Agileware.

17.3 Customer warrants that it has not relied on any representation made by Agileware or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by Agileware.

18. Indemnity

18.1 To the extent permitted by law, Customer shall release, indemnify and keep indemnified Agileware, its officers, employees and agents, against any injury, death, damage, loss, costs (including legal costs on an indemnity basis), expenses, interest, taxes or liability whether direct or indirect and whether sustained by Agileware, Agileware's officers, employees and agents, Customer, Customer's officers, employees and agents or a third party arising out of:

(a) a breach of this agreement by Customer;

(b) any wilful, unlawful or negligent act or omission of Customer, Customer's officers, employees and agents;

(d) the discharge of Customer's obligations pursuant to this Agreement.

18.2 This indemnity applies regardless of whether or not legal proceedings are instituted.

18.3 This indemnity applies to any payment, settlement, compromise or determination regardless of whether same is authorised or not by Customer.

19. Waiver

19.1 No right of Agileware under this Agreement shall be deemed to be waived except by notice in writing signed by Agileware. Such a waiver by Agileware shall not prejudice its rights in respect of any subsequent breach of this Agreement by Customer.

19.2 Any failure by Agileware to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by Agileware shall not be construed as a waiver of Agileware's rights.

20. Assignment, Novation and Sub-Contracts

20.1 Customer shall not assign or novate, in whole or part, any obligation under this Agreement without the prior written consent of Agileware.

20.2 Agileware may sub-contract for the performance or part performance of this Agreement.

21. Notices

21.1 Notices under this Agreement may be delivered by hand, by mail or by facsimile to the last notified address of the Parties.

21.2 Notices shall be deemed given in the case of:

(a) hand delivery, upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;

(b) email, immediately upon acceptance of same from a machine outside the control of the sender;

(d) facsimile, upon completion of transmission.

22. Early Termination

22.1 If Customer accepts an offer from Agileware which is for a certain period and before that period has expired terminates this Agreement then Customer shall pay Agileware by way of liquidated damages the full amount remaining to be payable for that certain period.

22.2 The Parties agree that amount is a genuine pre-estimate of the loss or damage which Agileware would suffer in such circumstances.

23. Termination

23.1 Agileware may terminate this Agreement immediately by notice if:

(a) any payment due from Customer to Agileware remains unpaid for a period of 14 days;

(b) Customer breaches any Clause and such breach is not remedied within 14 days of notice by Agileware; or

(c) Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

(d) Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

(e) Customer being a natural person, dies; or

(f) Customer ceases or threatens to cease conducting its business in the normal manner.

23.2 If notice is given to Customer pursuant to Sub-clause 23.1 then, in addition to terminating this Agreement, Agileware:

(a) may retain any moneys paid;

(b) may charge a reasonable sum for items which have not been invoiced;

(d) may pursue any additional or alternative remedies provided by law.

24. Survival

24.1 The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.

25. Force Majeure

25.1 Agileware shall not be liable for any delay or failure to perform its obligations if such a failure or delay is due to Force Majeure.

26. Entire Agreement

26.1 Unless stated expressly to the contrary in this Agreement:

(a) this Agreement constitutes the entire agreement between the Parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded;

(b) this Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties. No Party may represent that there exists such a relationship between the Parties;

(c) no Party may bind the other Party to any agreements, arrangements, contracts or understanding or represent that they have such authority; and

(d) no modification or alteration of any provision of this Agreement shall be valid except in writing signed by each Party.

27. Governing Law

27.1 This Agreement shall be governed by and construed according to the law of the Australian Capital Territory.

27.2 The Parties irrevocably submit to the exclusive jurisdiction of the courts of Australian Capital Territory and the Commonwealth of Australia and any courts hearing appeals from such courts. Any proceedings in a Commonwealth court shall be commenced in Australian Capital Territory.

Schedule 1

As specified in the Work Order.

END OF LEGAL AGREEMENT