Oscillosoft Terms and Conditions
1. ACCEPTANCE
| 1.1 | This Agreement is between Oscillosoft Pty Ltd ABN 67 123 884 328, its successors and assignees, (referred to as “the Supplier”, “we”, “us” or “our”), and the Customer described in the Order Form (referred to as “Customer”, “you” or “your”), and collectively the Parties. |
| 1.2 | You have requested the Services. You agree and accept that these Terms and Conditions, including the Schedule (Terms), the Proposal and the Order Form, form the Agreement under which we will supply Services to you. Please read the Terms carefully. Please contact us if you have any questions. |
| 1.3 | In the event of any inconsistency between: (a) an Order Form; (b) these Terms, excluding the Schedule; (c) a Proposal; and (d) the Schedule, the document listed higher in the above list will take precedence to the extent of the inconsistency. |
| 1.4 | You accept this Agreement by signing and returning the Order Form. |
2. TERM
| 2.1 | This Agreement commences on the Commencement Date and continues until terminated under clause 2.3 or clause 15 (Term). |
| 2.2 | Each Order Form commences on the Order Commencement Date specified in the Order Form and each Service continues for the period specified in the Order Form. |
| 2.3 | If there are no Order Forms in effect, either party may terminate this Agreement by giving the other party 30 days written notice. |
3. SERVICES
| 3.1 | We agree to perform the Services set out in the Order Form with due care and skill. |
| 3.2 | Third parties who are not our employee or our direct contractor (Third Parties) (Third Parties) will be your responsibility. We are not responsible for the services provided by Third Parties. |
| 3.3 | Our Services cover the scope in the Order Form or Proposal. If you request additional services, including but not limited to changes in scope or variations (Variation), we have discretion as to whether we perform this work and whether an adjustment to the Fee may be required in respect of the same. |
| 3.4 | If we agree to perform any Variation, then we will inform you and agree with you if any additional costing applies (Variation Fee). We will invoice you accordingly for the Variation upon receipt of your approval, which may be via a Proposal signed by the parties. |
4. DATA
| 4.1 | The Customer must provide the Data requested by the Supplier in order for the Supplier to provide the Services. |
| 4.2 | The Customer grants to the Supplier a limited licence to copy, transmit, store and back-up or otherwise access during the relevant Services Term solely: (a) to supply the Services including to enable the Customer, its Personnel and any Authorised Users to access and use the Services; (b) for diagnostic purposes; (c) to test, enhance and otherwise modify the Services; (d) to develop other Services provided we de-identify the Data; and (e) as reasonably required for the performance of the Supplier’s obligations under this Agreement. (f) for the storage of customer transactional data for a period of 30 days |
| 4.3 | The Customer represents and warrants that any and all Data supplied by the Customer or otherwise accessed by the Supplier through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the Data as applicable. |
| 4.4 | The Customer acknowledges and agrees that: (a) the Supplier may relocate the Data to another jurisdiction. In each case, the Supplier will give the Customer notice and use all reasonable endeavours to minimise the effect of such Change on the Customer’s access and use of the Services; (b) the Supplier is not responsible for the integrity or existence of any Data on the Customer’s System, network or any device controlled by the Customer or its Personnel. (c) any Data that is shared with Supplier via an “extension” is stored and held on Supplier’s server for 30 days. The Supplier’s server holds the Data and acts as a bridge between Zoho and third partythird-party software. Supplier servers are leveraging off third party data servers/centres which have top grade security measures installed e.g. Amazon Web Services (AWS). Supplier has no control over Force Majeure Events that may affect the storage of the Data, but will take most care in protecting Customer’s Data for the minimal time it is within Supplier’s possession on Supplier’s servers. |
5. SUPPORT SERVICES
| 5.1 | During the Term, the Supplier will provide the Support Services for your chosen support plan stated in the Order Form the during the Support Hours provided that: (a) the Customer provides the Supplier with notice for applicable Services in accordance with any applicable system and processes notified to you from time to time, as applicable; and (b) where required, the Customer assists with investigating and ascertaining the cause of the fault and provides to the Supplier all necessary information relevant to the fault (including but not limited to what the Customer or their Personnel has done in relation to the fault). |
6. ACCEPTANCE TESTING
| 6.1 | The Services provided will be accepted by you on the basis of any Acceptance Tests set out in the Order Form or Proposal. |
| 6.2 | Within 5 business days of receiving the Services to which the Acceptance Tests apply you agree to: (a) notify us of your acceptance; or (b) notify us of your rejection, which cannot be unreasonably given, and provide us with the reasons for your rejection. |
| 6.3 | If the Services fail to meet the Acceptance Tests you can: (a) waive the need for further Acceptance Tests; (b) request that the Services be amended to satisfy the Acceptance Tests; or (c) accept the Services on the basis that you will allow us to set a timeframe to amend the error or non-compliance. |
| 6.4 | If you request (within reason) that we amend the Services in accordance with clause 6.3, we will do so at no additional charge, for any other amendments you will be charged a Variation Fee. |
| 6.5 | If you use the Services in a non-test, live or production environment prior to acceptance, such Services will be deemed to be accepted upon such use. On Hand-Over to you the Services will be deemed to have passed all Acceptance Tests. |
7. PRICE, INVOICING and PAYMENT
| 7.1 | You agree to pay us the Fees, for the Services that you have requested, as set out in the Order Form. All amounts are stated in Australian dollars. All purchase prices do not include Australian GST where indicated (where applicable). |
| 7.2 | If you dispute an invoiced amount: (a) provide us with written notice within 5 Business Days of the date of the invoice stating the amount you believe is due for payment and setting out the reasons for not paying the balance. You cannot dispute invoices once 5 Business Days from the date of the invoice have elapsed; and (b) pay the amount you believe is due for payment by the date that payment must be made under the Order Form. |
| 7.3 | If any payment has not been made in accordance with the Invoice Terms, Supplier may (at its absolute discretion): (a) immediately cease to provide Services to you or suspend the provision of the Services or disable access to the Software, and recover as a debt due and immediately payable from you its Additional Costs of doing so; (b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 2% per month, calculated daily and compounding monthly, on any such amounts unpaid after the due date; (c) engage debt collection services and/or commence legal proceedings in relation to any such amounts; and/or (d) report Customer to any independent credit data agencies. |
| 7.4 | If you rectify such non-payment after the Services have been suspended, then the Supplier will recommence the provision of the Services as soon as reasonably practicable. |
8. WARRANTIES
| 8.1 | We warrant that throughout the Term that: (a) we are properly constituted and have the right and authority to enter into this Agreement; (b) we have, and will at all times have, use and apply the skills, qualifications, expertise, capacity, resources and experience necessary to carry out our obligations under this Agreement; (c) we will not infringe any Third-Party rights in working with you and providing the Services; (d) we will provide the Services in accordance with all applicable Laws; (e) all of our obligations under this Agreement will be carried out:
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| 8.2 | For the Warranty Period, we will fix or correct any errors or bugs in the Custom Built Software which causes the Custom Built Software to not materially function in accordance with the functional requirements set out in a Proposal, provided the Client promptly notifies us as soon as they become aware, or ought to have reasonably become aware, of any such errors or bugs. |
| 8.3 | You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior 12 month period. |
| 8.4 | You warrant that throughout the term of this Agreement that: (a) there are no legal restrictions preventing you from agreeing to the Terms; (b) you will cooperate with us and provide us with information and comply with requirements in a timely manner, as requested by us from time to time, that are reasonably necessary to enable us to perform the Services; (c) the information you provide to us is true, correct and complete; (d) you will not infringe any Third-Party rights in working with us and receiving the Services; (e) you must grant us reasonable access to the Data, source code, websites and/or Systems identified in the Order Form or Proposal to ensure that we can perform our Services; (f) you will inform us if you have reasonable concerns relating to our provision of Services under the Terms, with the aim that we and you will use all reasonable efforts to resolve the concerns; (g) you are responsible for obtaining any consents, licences and permissions from other parties necessary to receive the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions; (h) you consent to the use of your name in relation to the Services in a way which may identify you, including in website testimonials, blogs, social media posts, videos, reviews, and case studies; (i) if applicable, you have a valid ABN which has been advised to us; and (j) if applicable, you are registered for GST purposes. |
9. YOUR OBLICATIONS
| 9.1 | The Customer will provide all required materials, including the Data specified in clause 4, as required by the Supplier from time to time for the Supplier to perform the Services in the form set out in the applicable Proposal. |
| 9.2 | The Customer must, at the Customer’s own expense: (a) provide all reasonable assistance and cooperation to the Supplier in order to enable the Supplier to supply the Services in an efficient and timely manner including but not limited to obtaining from Personnel any consents necessary to allow the Customer and its Personnel to engage in the activities described in this Agreement and to allow the Supplier to provide the Services; (b) use reasonable endeavours to ensure the Data is virus-free, accessible and usable in order for us to provide the Services; (c) permit the Supplier and its Personnel to have reasonable access to the Customer Systems, where necessary, for the purposes of supplying the Services; and (d) ensure that only Customer Personnel will access and use the Services. |
| 9.3 | The Customer is responsible for its use of the Services and must ensure that no person uses the Services: (a) to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights; (b) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or (c) in any way that damages, interferes with or interrupts the supply of the Services. |
| 9.4 | The Customer acknowledges and agrees that: (a) it is responsible for all users using the Services including its Personnel; and (b) If the Supplier wishes to alter the delivery of any Software hosting Services which requires a change to the Customer Systems (including reconfigurations or interface customisations to the extent necessary to access or use the Software hosting Services) the Parties must agree such changes in writing. |
10. ACCESS TO PREMISES
| 10.1 | You must give the Supplier and its Personnel reasonable access to your Systems, premises and facilities as may be required to enable the Supplier to perform the Services. In doing so, you must: (a) provide and maintain a safe working environment for the Supplier’s Personnel while accessing your premises and facilities; and (b) ensure that you discharge all health and safety duties imposed on you, including in respect of the Supplier’s Personnel, as a person conducting a business or undertaking as required by applicable legislation regarding workplace health and safety. |
11. OUR INTELLECTUAL PROPERTY
| 11.1 | The work and materials that we provide to you in carrying out the Services contains material which is owned by or licensed to us and is protected by Australian and international laws (Materials). We own the Intellectual Property incorporated into our Materials. |
| 11.2 | You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property ownership rights in our Materials, except as stated in these Terms or with our written permission. |
| 11.3 | Your use of our Materials does not grant you a licence, or act as a right of use, any of the Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission. |
| 11.4 | You must not breach our Intellectual Property rights by, including but not limited to: (a) altering or modifying any of the Materials; (b) creating derivative works from the Materials; or (c) using our Materials for commercial purposes such as on-sale to third parties. |
| 11.5 | You are responsible for proofing and approving all specifications drafted by us for your business. Upon approval from you, any subsequent errors in publishing are not our responsibility. |
| 11.6 | Subject to your written request, we will assign ownership of the Intellectual Property rights in any Custom Built Software we build for you under a Proposal to you, upon full payment of our invoices. |
| 11.7 | Subject to clause 11.6, if we create any new Material in the course of providing the Services including Customised Software, we will own the Intellectual Property rights subsisting in such new Material on creation (New Material) and we grant you a non-exclusive, non-transferrable and non-sub-licensable licence to use New Material during the Term for the sole purpose of using the Services. |
12. YOUR INTELLECTUAL PROPERTY and MORAL RIGHTS
| 12.1 | You agree to provide information including Intellectual Property to us to enable us to provide the Services. You: (a) warrant that you have all necessary rights to provide the Intellectual Property to us; (b) grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use the Intellectual Property in any way we require to provide the Services to you; and (c) consent to any act or omission which would otherwise constitute an infringement of your Moral Rights. |
| 12.2 | If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you: (a) irrevocably consent to any amendment of the Intellectual Property in any manner by us for the purposes of providing Services to you; (b) irrevocably consent to us using or applying the Intellectual Property for the purposes of providing Services to you without any attribution of authorship; (c) agree that your consent extends to acts and omissions of any of our licensees and successors in title; and (d) agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statement. |
| 12.3 | You grant us a royalty-free, perpetual, worldwide, non-transferrable, non—sub licensable, irrevocable licence to use and display your trademarks, logos, business names and website links for testimonial or case study purposes. |
13. CONFIDENTIAL INFORMATION
| 13.1 | We, including our employees and contractors, agree not to disclose your Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed by you, and not for any other purpose. |
| 13.2 | You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose. |
| 13.3 | These obligations do not apply to Confidential Information that: (a) is authorised to be disclosed; (b) is in the public domain and/or is no longer confidential, except as a result of breach of these Terms; (c) is received from a third party, except where there has been a breach of confidence; or (d) must be disclosed by law or by a regulatory authority including under subpoena. |
| 13.4 | The obligations under this clause will survive termination of these Terms. |
14. FEEDBACK and DISPUTE RESOLUTION
| 14.1 | Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact us. |
| 14.2 | If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure: (a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith within 10 Business Days of the respondent’s receipt of the notice to seek to resolve the dispute by agreement between them (Initial Meeting). (b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales, Australia, to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute. |
| 14.3 | Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity. |
15. TERMINATION
| 15.1 | The Parties may terminate this Agreement by signed agreement. All Order Forms in existence at the time of termination shall survive termination of this Agreement, unless a Party has terminated this Agreement in accordance with clause 15.2, in which event any Order Forms will terminate simultaneously. |
| 15.2 | Either party may terminate this Agreement and any affected Order Form, if the other Party: (a) has breached a material term of these Terms and has failed to remedy such breach within 10 Business Days of receiving notice to do so, subject to any other express right of termination; (b) ceases operation without a successor; or (c) seeks protection under any insolvency, bankruptcy, receivership, trust deed, creditors arrangement, administration, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days). |
| 15.3 | We may terminate an Order Form, or suspend the affected Services (including withdrawing access to Software), by providing you with five business days’ notice, in our sole discretion, if you fail to pay an Invoice within 10 business days of the payment date or have continually failed to co-operate with us or provide necessary information which has prevented or delayed us from providing the Services. |
| 15.4 | Subject to clauses 15.1 to 15.3, on early termination of this Agreement or an Order Form prior to the end of the Term or Services Term, as applicable, in which event you must pay the Fees for the period from the date of termination to when the Services Term would have expired had you not terminated prior to the end of the Services Term in full without any discount. |
| 15.5 | On termination of these Terms: (a) you must cease to use the Services; (b) you agree that any payments made are not refundable to you, and you are to pay
(c) you must pay the Supplier for those Third- Party Services specifically ordered by the Supplier for you in anticipation of this Agreement continuing, where those orders cannot be cancelled without losses or expenses incurred by the Supplier; |
| 15.6 | On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information, Data and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property. (a) On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms. |
| 15.7 | On termination of these Terms, we may offer to provide you with dis-engagement support services at our then current rates, such dis-engagement support services to be agreed in writing by the Parties |
| 15.8 | The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms. |
| 15.9 | This clause will survive termination of these Terms. |
16. CONSUMER LAW, LIMITATION OF LIABILITY and DISCLAIMERS
| 16.1 | ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights). Our liability is governed solely by the ACL and these Terms. Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights. |
| 16.2 | Our Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled: (a) to cancel this Agreement with us; and (b) to a refund for the unused portion, or to compensation for its reduced value. |
| 16.3 | You are also entitled to choose a refund or replacement for major failures with Goods or Services. If a failure with the Goods or Services do not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the Goods and to cancel the contract for the Services and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Goods or Services. |
| 16.4 | Delay: If the provision of the services depends upon or includes the provision of information, materials, consents or approvals by the Customer of your Personnel or requires the cooperation, act or response of the Customer of your Personnel, the Customer will provide that information, cooperation and those materials, consents or approvals in a timely manner. If the Customer breaches this obligation, Supplier will be entitled to an extension of time in respect to any deadline or milestone to the extent of the delay caused by the Customer and Supplier will have no liability for a failure to perform the Services caused by the Customer. |
| 16.5 | Referral: On request by you, we may provide you with contact details of third- party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third- party advice or provision of services, and we disclaim all responsibility and liability for the third- party advice or provision of services, or failure to advise or provide services. |
| 16.6 | Insurance: We will aeffect and maintain business insurance regarding the Services. Please contact us if you would like information about our insurance policies and limits. |
| 16.7 | Each party will provide to the other party a certificate of currency for each insurance policy referred to in clause 16.6 on request. |
| 16.8 | Warranties: The Supplier does not warrant that the Services will be error-free or will operate without interruption. To the extent permitted by law, we exclude all express and implied warranties not set out in this Agreement. We expressly disclaim all warranties not set out in this Agreement including but not limited to implied warranties of merchantability and fitness for a particular purpose and that the Services will achieve any particular outcome or result. |
| 16.9 | Liability: To the extent permitted by law, in any Contract Year, the Supplier’s liability in the aggregate for all Liabilities or Claims in relation to any Services, Order Form, these Terms or this Agreement (whether under statute, contract, negligence or other tort, indemnity, or otherwise) will be limited to the amount of the Fee paid by you to the Supplier in that Contract Year in respect of the relevant Services giving rise to Liability. |
| 16.10 | The Supplier will not be liable to you for any Liability or Claim arising (whether under statute, contract, negligence or other tort, indemnity, or otherwise) in relation to any Consequential Loss, nor for any loss of profits, revenue, goodwill, data or reputation. |
| 16.11 | To the extent permitted by law, either Party’s liability under or in connection with this Agreement will be reduced to the extent, if any, to which the other Party’s acts or omissions cause or contribute to its own loss or damage. |
| 16.12 | To the extent permitted by law, the Supplier will not be liable to you for any Liability or Claim caused or contributed by: (a) implied or express guarantees, representations or conditions of any kind, which are not stated in the Terms which cannot be excluded by law; (b) the loss, corruption, deletion or changes in part or whole of the Data; (c) errors in producing, altering, erasing or using Data; (d) difficulties in receiving, sending, accessing or utilising Data at any time; and (e) any virus, fault or defect in any item in your System. |
| 16.13 | Notwithstanding anything to the contrary in this Agreement, the Supplier will not be liable for any interruption to the Services, unavailability or outage, or any interruption, unavailability or outage of your Systems, caused by any third party, whether they are Third Parties or providers of Third Party Services. Where we use the Third Party Services of software vendors, or their affiliates (Software Vendors) to provide Software, the following applies: (a) You indemnify us, and hold us harmless, against any Claims made by Software Vendors against us arising from your breach of this Agreement, including Claims in respect to your acts or omissions constituting misuse or infringement of Software Vendors’ Software; and (b) the Supplier will not be liable for any loss or damage to you caused by Software Vendors’ Software. |
| 16.14 | The Supplier will have no Liability for any Claims arising in relation to Third Party Services. |
| 16.15 | This clause will survive termination of these Terms. |
17. INDEMNITY
| 17.1 | You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from: (a) our receipt and use of the Data; and (b) any personal injury suffered by us or our Personnel when at the Site. |
| 17.2 | You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us. |
| 17.3 | This clause will survive termination of these Terms. |
18. GENERAL
| 18.1 | Privacy: We agree to comply with any legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) that are applicable to us and any other applicable legislation or privacy guidelines and our privacy policy available on our website at bit.ly/oscpp Where we must comply with the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth), the Notifiable Data Breach process in Schedule 4 applies to both parties. |
| 18.2 | Any Data provided to us may be disclosed, if appropriate, to other entities in order to facilitate the purpose for which the information was collected. Such entities generally include: (a) third party service providers for the purpose of enabling them to provide a service such as (but not limited to) payroll, superannuation administration, IT service providers, data storage, web-hosting and server providers, debt collectors, maintenance or problem-solving providers, marketing or advertising providers; (b) any applicable or relevant regulator or third party for the purpose of legislative or contractual compliance and/or reporting; (c) any related entities of the Supplier; or (d) other entities if you have given express consent. |
| 18.3 | From time to time, these parties may reside outside Australia. The Supplier’s contracts with these parties generally include an obligation for them to comply with Australian privacy law. However, you acknowledge that, by agreeing to the disclosure of Personal Information to these entities outside of Australia, the Supplier will no longer be required to take reasonable steps to ensure the overseas recipient’s compliance with the Australian privacy law in relation to Personal Information and we will not be liable to you for any breach of the Australian privacy law by these overseas recipients. On this basis, you consent to such disclosure. |
| 18.4 | Publicity: You consent to us using advertising or publicly announcing that we have undertaken work for you, subject to any contrary confidentiality obligation agreed in writing by the Parties, including by way of a Non-Disclosure Agreement. |
| 18.5 | Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer. |
| 18.6 | GST: If and when applicable, GST payable on our Services will be set out on our Invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges. |
| 18.7 | Relationship of parties: The Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee. |
| 18.8 | Assignment: The Terms are personal to the Parties. Customer must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the Supplier (such consent not to be unreasonably withheld). Supplier may sub-contract or assign, sub-contract or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the Customer. |
| 18.9 | Severance: If any provision (or part of it) of the Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of the Terms are valid and enforceable. |
| 18.10 | Force Majeure: We will not be liable for any delay or failure to perform our obligations under the Terms if such delay is due to any Force Majeure Event. We will provide you with prompt notice of the occurrence of any Force Majeure Event. If we are delayed from performing our obligations due to such a circumstance for a period of at least two months, we may terminate our agreement with you by giving you notice in writing. |
| 18.11 | Notice: Any notice required or permitted to be given by either party to the other under these conditions will be in writing addressed to you at the address in the Order Form. Our address is set out in the Order Form. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission. |
| 18.12 | Jurisdiction & Applicable Law: These terms are governed by the laws of New South Wales, Australia, and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales, Australia. |
| 18.13 | Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing. |
| 18.14 | This clause 18 will survive termination of these Terms. |
19. DEFINITIONS
| Unless defined in an Order Form, Proposal or a Schedule, the following words will mean: | |
| 19.1 | Agreement means these Terms, the Schedules, any Special Conditions and any Proposal or Order Form; |
| 19.2 | Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales, Australia; |
| 19.3 | Business Hours means 9am to 5pm on a Business Day; |
| 19.4 | Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise; |
| 19.5 | Commencement Date means agreed project schedule. |
| 19.6 | Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”; |
| 19.7 | Consequential Loss means any indirect, special, consequential or exemplary loss or damage; |
| 19.8 | Contract Year means each 12 month period ending on an anniversary of the Commencement Date during the Term; |
| 19.9 | Custom Built Software means the Software output of the Custom Build Services; |
| 19.10 | Customised Software means the Software output of the customisation of the Off the Shelf third party software Services; |
| 19.11 | Data means all of the information, documents and other data, including any Personal Information, provided or uploaded by you or your Personnel to the Supplier or its Systems or otherwise accessed by the Supplier in providing the Services; |
| 19.12 | Electronic Data means ideas, notes and information used for communications, displays, distribution, interpretation or processing by electronic and electromechanical data processing systems or electronic equipment and includes programmes, software and other coded instructions for such equipment; |
| 19.13 | Force Majeure Event means an event which is beyond a Party’s reasonable control including a fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, and strike by employees of a third person other than a subcontractor of a party, but in each case, only if and to the extent that the non-performing party is without fault in causing the event, and the event, or its effect could not have been prevented by reasonable precautions; |
| 19.14 | GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations; |
| 19.15 | Hand-Over means once system training has been provided, final workshop has been conducted, and final payment installation has been paid. |
| 19.16 | Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, Customer names or internet domain names; |
| 19.17 | Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory; |
| 19.18 | Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees); |
| 19.19 | Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth). |
| 19.20 | Order Commencement Date means the date Supplier will commence providing the Services as specified in the relevant Order Form; |
| 19.21 | Personal Information has the meaning given in the Privacy Act 1988 (Cth); |
| 19.22 | Personnel means, in relation to a party, the officers, employees, contractors (including subcontractors) and agents of that party; |
| 19.23 | Proposal means any proposal provided to you which sets out the scope of Services; |
| 19.24 | Related Body Corporate has the meaning given to that term in section 50 of the Corporations Act 2001 (Cth); |
| 19.25 | Services means the services, functions and responsibilities provided by the Supplier to you as specified in the Proposal and Order Form; |
| 19.26 | Services Term has the meaning given in the Order Form; |
| 19.27 | Site means the premises of the Customer; |
| 19.28 | Software means the software as a service of Software Vendors, or software as a service we develop for, and or licence to, you specified in the Proposal (including Custom Built Software as a service and Customised Software as a service), and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software as a service after this Agreement is entered into by the Parties; |
| 19.29 | Support Hours means Business Hours; |
| 19.30 | Support Services is set out in the Proposal; |
| 19.31 | System means all hardware, software, networks and other IT systems used by a Party or its Related Body Corporate from time to time, including a network; |
| 19.32 | Term has the meaning given in clause 2.1. |
| 19.33 | Third Party Services means any hardware, software, services, systems, applications or infrastructure provided by a third party that the Supplier uses to provide the Services (or part thereof); and |
| 19.34 | UAT means the final User Acceptance Test undertaken by the Customer to test that the Software is functioning in accordance with the Proposal, including, where applicable, that the API plug in specified in the Proposal developed by us is functioning. |
Oscillosoft Privacy Policy
This privacy policy covers information about the Oscillosoft website and related applications that link directly to this privacy policy including: https://www.oscillosoft.com.au, https://rto.oscillosoft.com.au or third parties that may post applications on https://www.oscillosoft.com.au. When applications are posted on https://www.oscillosoft.com.au it links to this privacy policy and this privacy policy applies. When applications are posted by third parties, the privacy policies of the third parties apply and this privacy policy is not applicable. All policies are directed to customers, partners and the company that they represent as a whole. When a customer signs off on any of these terms and conditions or policies, they would represent themselves as an individual as well as the company that they are part of.
1. INFORMATION COLLECTED
We take the obligation to protect your personal information very seriously and always take reasonable measures to keep personal information secure from any kind of inappropriate disclosure or modifications. Oscillosoft does not share, rent or sell any personally identifying information that is provided by our customers and partners (for example: name, email address, contact details, etc.) to any outside organisations for use in its marketing or solicitations.
2. DATA and INFORMATION TREATMENT
Occasionally, Oscillosoft may request contractors and agents who will have access to your personal information to perform services for Oscillosoft and are always required to keep the information confidential and may not use it for any purpose other than the services that need to be carried out for Oscillosoft. We use a variety of technologies and procedures that help secure your personal information. The information is secure with only authorised access, use and disclosure. The personal information that you provide to Oscillosoft (with the exception of data provided to Zoho) is safe and secure on servers that are located in Australia that are controlled in a secure environment and protected by biometrics from unauthorised access, use or disclosure. All customer information such as account credentials are stored via Zoho Vault and secured by AES-256 encryption. All physical, technical and organisational measures are taken to protect your personal information within reason and capacity.
3. PARTNER AND THIRD PARTY PRIVACY POLICIES
In addition to this, Oscillosoft may share information about customers and its website visitors to business partners such as Zoho, Xero, etc. (list of partners: https://www.oscillosoft.com.au/about-us/our-partners/) and other third parties. We may also provide links to other third party websites. Other websites and services have separate privacy and data collection practices. When a customer leaves Oscillosoft’s company website(s), Oscillosoft is not responsible or in control of the privacy policies or data collection activities on other websites. It is the customer’s responsibility to be aware of the privacy policies on websites and companies that are not affiliated with Oscillosoft.
4. COMPLIANCE WITH OUR PRIVACY POLICIES
The personal information collected by Oscillosoft is used only in compliance with this privacy policy. The customers who subscribe to our subscription or sign up for our services are obliged through our agreements to agree to this privacy policy.
5. SUBSCRIPTIONS
Customers have the option to unsubscribe from our marketing communications by clicking on the “unsubscribe” link located at the bottom of our emails or send us an email to support@oscillosoft.com.au. A customer cannot opt out of receiving transactional emails related to their account that is associated to Oscillosoft. Customers are responsible for their subscription options on other third party websites.
6. SOCIAL MEDIA AND OTHER EXTERNAL WEBSITES
Oscillosoft’s websites include the platforms Facebook, LinkedIn, Twitter, Instagram, Youtube, Pinterest, and other external social media platforms. The like and share buttons, widgets and other similar interactive options are included as part of the Oscillosoft network. These social media interactions may capture your IP address, information on the pages that you visit on the Oscillosoft website(s), and this may set a cookie to enable the feature to function. All social media platforms may host features and interactions on other third party or respective websites and this privacy policy does not cover those features. Your interactions with such features are controlled by the policy agreements of the companies that provide them.
7. CUSTOMER TESTIMONIALS
Oscillosoft may publish sensitive information about customers such as name, company, designation, testimonials and more on the company website(s). This information is obtained and published with the prior consent of each customer.
8. COOKIES
Oscillosoft and its partners use cookies and similar technologies to analyse trends, administer the website and track the movements of users’ across the website. We also intend to gather demographic information about the user base as a whole. Customers provide consent to access said information by accepting the use of cookies on the Oscillosoft website.
9. GDPR
Oscillosoft complies with the same GDPR Regulations as Zoho Corp. To know more, read about how Zoho adheres to GDPR – https://www.zoho.com/gdpr.html.
10. GOVERNING LAW
All the terms mentioned in this privacy statement shall be governed and construed in accordance with the laws of Australia without regard to its conflict of law provisions. The failure of Oscillosoft to enforce any right or provision of these terms will not be considered as a waiver of those rights. If any provision of these terms are held to be invalid or unenforceable by a court, the remaining provisions of these terms will still be in affect. All terms in this Privacy Policy constitute the entire agreement between Oscillosoft and its customers regarding our service and supersede and replace any prior engagements that we might have regarding the service.
11. CHANGES TO THE PRIVACY POLICY
In case of any changes to this policy, we will post the decided changes to this privacy statement in every location that this policy is accessible, and other places that we deem appropriate. Our intent is to keep you aware of what information we collect, how we use it and under what circumstances we disclose it. We reserve the right to modify this Privacy Policy at any time without notice and request you to review it frequently or as needed.
12. CONTACT US
If you have any questions about our terms and policies, please contact us at support@oscillosoft.com.au.