TERMS AND CONDITIONS OF AGREEMENT
The terms and conditions in this agreement bind the legal entity referenced in the accompanying formal quote document (“the Client”) and Prescience Technology Pty Ltd ABN 62 112 422 788 (“Prescience”) from the time the Client submits a signed copy of the quote to Prescience Technology, or formally accepts it via email. These terms and conditions apply to all services defined in this document that Prescience will perform (“Services”) and are the terms and conditions on which Prescience Technology will provide the Services to the Client and comprise the entire agreement between the Parties (“Agreement”).
PRESCIENCE TECHNOLOGY’S RESPONSIBILITIES
- use all reasonable commercial efforts to provide the Services for the Term;
- perform the Services with due care, competence and diligence consistent with the Service Levels; and
- provide the necessary personnel required to fulfil the Services and comply with the Client’s reasonable security requirements, corporate policies and procedures.
- commences on the Commencement Date and continues for one (1) calendar year.
- will, on the Initial Term Expiration Date, renew for a further Term(s) of one year in duration, unless written notice is given by the Client to Prescience during the Term not earlier than that date that is three (3) months prior to the end of the Term and not later than the date that is one (1) month prior to the end of the Term.
The Client understands and acknowledges that by completing payment against the attached quote document for the Services, they accept these Terms and Conditions. The Client will ensure that Prescience Technology is provided with, and in a timely manner all information necessary for the provision of the Services, of which Prescience Technology is entitled to rely on the accuracy of that information without independently verifying it, and provide access to information technology systems and to people and other necessary resources.
SUPPORT SERVICE LIMITATION
The scope of the Services is set out below and consists of (a) telephone support and (b) online support. Prescience Technology is not liable for or obligated to provide services other than as set out below or where Incidents arise from unauthorised use of software or the Client fails to implement in a timely manner any fixes or upgrades as provided or recommended by Prescience Technology or Oracle Corporation (or any other certified third party software provider). Prescience Technology is not liable for any delays, failures, omissions, faults and the programming of fixes, upgrades or related software provided by any third party including Oracle Corporation.
Scope of Services
Upon receipt of the Subscription Fee, Prescience Technology will deliver the Services to the Client’s Subscribed User/s, during the Core Support Hours, for the Agreed Environments. Each Incident logged under this Agreement will be allocated an Incident Priority and all Incidents will be addressed in order of priority and severity. The default Incident Priority is Low and any change to this must be specifically requested by the Client and agreed with Prescience Technology. Incidents are escalated through the Support Levels by Prescience Technology to ensure they are being resolved by the most appropriate team member and organisation and the Service Level will be measured from the time the Incident is accepted in Prescience’s help desk system.
FEES AND EXPENSES
- Prescience Technology will invoice the Client for the Services annually and the Client agrees to pay Prescience Technology (without deduction or set-off) for the provision of Services (“Subscription Fee”) immediately upon receipt of each rendered invoice (“Due Date”).
- Payment by Visa, MasterCard, Diners Club or American Express is available, of which Diner’s Club and American Express attract a 3% surcharge which will be added to the invoice total at the time of payment.
- In addition to paying the Fees by the Due Date, the client also agrees to pay by the Due Date any tax, duty or charge including without limitation any sales, use, excise, goods or services tax (“GST”), consumption based or value added tax, stamp duty, withholding tax and other taxes, duties or charges of whatever kind (including any fine or penalty) that may be levied, assessed, charged, payable or collected in connection with this Agreement and any increase in such taxes, GST, duties or charges.
- The Client acknowledges that the fees and prices payable for the Services are subject to reasonable adjustments by Prescience Technology from time to time. For the purposes of this clause 6.4, “adjustments” include cost increases outside the control of Prescience Technology including:
- new or more burdensome taxes, costs or imposts arising under legislation or regulations including any carbon pricing mechanism, any increase in GST, or any increase any statutory levies; and
- increases in the Consumer Price Index, interest rates, GST, energy costs, rates of exchange and manufacturer’s prices of equipment;
- any increase imposed Oracle Corporation, whether in relation to Oracle Primavera licensing (or sub-licensing) or provision of support services or by any other software licence or service providers; and
- any cost increases resulting indirectly or directly from (a), (b) or (c).
- The Client acknowledges that the Subscription Fee will not be refunded under any circumstances.
- Both Parties will:
- treat as confidential all information of the other Party which comes into its possession, pursuant to or as a result of or in the performance of this Agreement and will not, without the other Party’s prior written consent, disclose any confidential or sensitive information to a third party; and
- comply with all legislative requirements when dealing with confidential and sensitive information provided by the other Party under this Agreement.
- The Client acknowledges and agrees that Prescience Technology may:
- cite this Agreement in its marketing information; and
- make public reference to the Client’s selection of the Prescience Technology and the nature of the services provided (including use of its logo).
INTELLECTUAL PROPERTY RIGHTS
- Nothing in this Agreement affects the Intellectual Property Rights of either Party that existed prior to the commencement of this Agreement.
- All rights or title to or interest in any Intellectual Property Rights created by Prescience Technology, its employees, agents or sub-contractors in connection with this Agreement will vest immediately on their creation in Prescience Technology.
- The Client acknowledges that Prescience Technology owns its knowledge, experience and know-how developed in the course of performing the Services. Nothing in this Agreement will restrict Prescience Technology from:
- the use of any ideas, concepts, know-how or techniques which either party, individually or jointly, develops or discloses under this Agreement; or
- developing materials for itself or for others or providing services that are competitive with any Intellectual Property Rights created as a result of the Services, irrespective of their similarity to the Intellectual Property Rights created by Prescience Technology under this Agreement.
INDEMNITY FOR LIABILITY TO THIRD PARTIES
- The Client agrees to indemnify Prescience Technology against all Loss (including any GST payable by Prescience Technology on amounts paid by the Client under this indemnity) incurred by Prescience Technology in respect of any claim by a third party which is related to, arises out of, or is in any way associated with this Agreement.
LIMITATION OF LIABILITY
- This clause 11 prevails over all other clauses in this Agreement.
- Neither Party excludes or limits its liability to the other for death or personal injury caused by its negligence.
- Prescience Technology will not be liable to the Client in respect of any loss or damage (including but not limited to direct and indirect consequential loss or damage), however caused, which may be suffered or incurred, or which may arise directly or indirectly in respect of the supply of the Services pursuant to this Agreement, or the failure or omission on the part of Prescience Technology to comply with its obligations under this Agreement, except where notice is given by the Client to rectify an error or omission, and that error or omission can be rectified, and Prescience Technology negligently or wilfully does not rectify within ten (10) business days of notice having been given.
- In the event of Prescience Technology becoming liable under this clause the extent of its liability will be limited to Prescience Technology carrying out the necessary rectification work required to provide those specific Services in full again and at the cost of Prescience Technology.
- The Client may terminate this Agreement or the provision of Services (or any part of the Services) by Prescience Technology under this Agreement immediately by providing 90 days written notice to Prescience Technology.
- Without prejudicing any rights hereunder either party shall be entitled to terminate this Agreement immediately by notice in writing:
- if the other Party has committed a material breach of this Agreement which is not capable of being remedied; or
- if a Party becomes Insolvent.
- Without prejudicing any rights hereunder, Prescience Technology may, at any time, by notice to the Client, terminate this Agreement.
GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of Queensland. The Parties irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland.
SEVERANCE & SURVIVAL
- If any provision of this Agreement is found to be illegal, unenforceable or otherwise invalid then, despite that invalidity:
- this Agreement will remain in full force and effect;
- that provision will be deemed to be deleted; and
- that provision will be substituted by a valid one which in its economic effect comes so close to the invalid provision that it can be reasonably assumed that the Parties would have contracted also with the substituted provision.
- Provisions of this Agreement that are capable of having effect will survive its termination.
Prescience Technology will provide the Services as an independent contractor to the Client. Other than as provided in this Agreement, no Party has the right, power or authority to oblige or bind the other in any manner.
- Prescience Technology may perform the Services with its own personnel or any of its affiliates or with sub-contractors and may in its absolute discretion and from time to time substitute such personnel, affiliates or contractors. Prescience Technology shall be solely responsible for the performance of the Services and all other responsibilities under this Agreement.
- The Parties agree that no clause in this Agreement is intended expressly or by implication or other inference to purport to confer a benefit or right of action upon any third party.
- No variation, modification or waiver of any provision of the Agreement nor consent to any departure by any Party therefrom, will in any event be of any force or effect unless the same is confirmed in writing, signed by the Parties, and then such variation, modification, waiver or consent will be effective only to the extent for which it may be made or given.
- No failure, delay, relaxation or indulgence on the part of either Party in exercising any power or right conferred upon such Party in terms of this Agreement will operate as a waiver of such power or right, nor will any single or partial exercise of any such power or right preclude any other or future exercise thereof, or the exercise of any other power or right under this Agreement.
- This Agreement comprises the entire agreement between the Parties and supersedes any prior understandings, representations or agreements.
INTERPRETATION AND DEFINITIONS
- In this Agreement, the following rules apply, unless the document otherwise requires:
- a word suggesting the singular includes the plural and vice versa;
- a word suggesting a gender includes all genders;
- a reference to “includes” or “including” means without limitation unless the contrary intention appears;
- a reference to monetary units is to units of Australian currency;
- headings are for ease of reference only and do not affect the interpretation of the Agreement;
- where a term is defined in the Agreement, another part of speech or grammatical form of that term has a corresponding meaning; and
- no rule of construction will apply in the interpretation of the Agreement to the disadvantage of one Party on the basis that that Party put forward or drafted the Agreement or any part of it.
- In this Agreement:
Agreed Environments means the Client’s Production environment only.
Core Support Hours are from 8am to 5pm AEST, on standard business days only. Weekends and Public Holidays are excluded from Core Support Hours.
Force Majeure means any act, omission or circumstance over which the affected Party could not reasonably have exercised control and including any act, omission or circumstance within the control of Oracle Corporation, any third party supplier of Oracle software and support service and any other software supplier.
Incident Priority means the priority of an Incident, determined as a result of the assessment of both impact and urgency:
Based on the combined assessment of impact and urgency the priority of an Incident is set in accordance with the matrix defined in the table below:
Insolvent in relation to a Party means:
- the passing by that Party of a resolution for winding up or a winding-up order being made against it or going into administration; or
- a receiver, receiver and manager, or administrator is appointed or an encumbrancer takes possession of any or all of its assets; or
- the Party is unable to pay its debts or is insolvent within the meaning of section 95A of the Corporations Act or it ceases or threatens to cease to carry on its business or enters into a composition with its creditors.
Intellectual Property Rights means all intellectual property rights in Australia and throughout the world, including without limitation patents, copyright, rights in circuit layouts, registered designs, trade or service marks, trade, business or company names and any right to have confidential information kept confidential, trade secrets, ideas, concepts, materials, know-how and techniques.
Loss means liabilities, claims, costs and expenses.
Party means each of Prescience Technology and the Client and Parties means both of them.
Related Body Corporate has the same meaning as related body corporate under the Corporations Act 2001 (Cth).
Response Time to an Incident is measured from the time the Incident is advised to Prescience Technology by the Subscribed User to the time when Prescience Technology first responds to the Incident. Where an Incident requires action from a 3rd party that is not Prescience Technology, including without limitation a Software Vendor or representative of the Client (i.e. business user), the measurement clock will stop on the assignment of the ticket to the 3rd party.
Service Level means the performance service levels for a particular Service as set out below:
Subscribed User means the named user who has applied for and been approved as an individual EVERYDAY Support user. Each Subscribed User may log calls on their own behalf only and may not be used as a single paid channel through which multiple users channel their support requests.
Subscription Fee means the annual fee which is due and payable in advance, for each Subscribed User to the EVERYDAY Support service.
Support Levels are defined in the following table:
|Level 1||Support is provided by Prescience Technology, through telephone, email and on-line request. Level 1 will perform initial triage and troubleshooting, and only if unable to resolve will assign the Incident to Level 2.|
|Level 2||Support is provided by Prescience Technology either by telephone or by remotely accessing the Client system to diagnose and resolve the Incident. If unable to resolve, the Incident will be escalated to Level 3.|
|Level 3||Support is provided by the Software Vendor when engaged by The Client, under the pre-existing software maintenance agreement between The Client and the Software Vendor. In the event that an Incident is escalated to Level 3, (i.e. has been diagnosed by as a product issue needing to be referred to Oracle Corporation for resolution), Prescience Technology will assist in the facilitation of the resolution but not be responsible for the resolution or time taken to resolve such problem.|
Supported Applications means the Primavera P6 EPPM applications.
Supported Geographies means Australia, New Zealand, Papua New Guinea, Fiji and the Pacific Islands (excluding USA).
Software Vendor means a third party provider of software or hardware to The Client for the supported Applications i.e. Oracle Corporation.