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(A)
Phoenix Business Systems Pty Ltd (PBS) will invoice
the Client on a fortnightly basis unless otherwise agreed
by the parties and the Client must pay within 14 days
of receipt of invoice. Interest will be charged on overdue
amounts at the rate of 11 percent per annum. Invoices
will reference job sheets that are to be signed by the
client on-site. These signed job sheets will indicate
that services have been completed satisfactorily and
will be paid for in accordance with an issued invoice.
If invoices are not paid in a timely manner the Client
may be placed on credit hold and helpdesk services refused.
Any unused component of the SLA will not be refunded.
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(B)
The Client acknowledges that the period of time specified
in Section 4 and the estimate of fees in Section 5 are
only estimates. In the event the estimates given in
section 3 and 5 are exceeded, PBS will provide a further
written estimate to the Client.
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(C)
The rates of fees detailed in Section 5 will be reviewed
on a six monthly basis and the Client will be given
one month's advance notification of any increase in
fees. The increased fees will be deemed to be accepted
by the Client unless the Client provides written notification
to PBS of its objection to the increase prior to expiry
of the one-month advance notice period.
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(D)
The PBS hotline support service is charged to clients
who do not take up annual support on a time basis and
normal support calls are charged in units of 15 minutes
at $50.00 per unit, Support on weekends, public holidays
or between the hours of 7.00 pm to 6.00 am require prior
arrangement and will be charged at $75.00 per 15 minute
unit. PBS's remote access support will be charged at
the normal consulting rate less 20 minutes. Any call
lasting longer than 20 minutes may be charged for time
in excess of the first 20 minutes.
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(F)
Phoenix Business Systems Pty Ltd Personnel
(i) The Client will give PBS such access to the Client's
premises as required to enable PBS to carry out services
and the Client's personnel will provide all assistance
reasonably requested by PBS.
(ii) The Client will not, from the date of this Agreement
to twelve months after completion of the provision of
services by PBS, solicit or employ or contract any employee
or contractor of PBS who provides services to the Client.
(iii) The Client agrees that if it employs or engages
any person directly, contrary to sub-clause F1 above
it shall be liable to pay to PBS liquidated damages
in a once off amount equal to 20% of such person's salary
or contracted amount (if a contractor) per annum at
the time of being engaged or employed by the client.
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(G)
Confidentiality
(i) Each party shall treat as confidential information
which comes into its possession, pursuant to or as a
result of or in the performance of this Agreement, whether
such information relates to the business, sales, marketing
or technical operations of the other party or the clientele
of the other party or otherwise.
(ii) Neither party shall, without the written permission
of the other, disclose such confidential information
to a third party.
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(H)
Warranties and Liability
(i) Where the Trade Practices Act 1974 or other laws
imply conditions or warranties or give other rights
in respect of this Agreement, PBS's liability for any
breach of such a condition, warranty or right will (but
only to the extent permitted by law) be limited;
(a) in the case of goods supplied, to the replacement
or repair of the goods or the supply of equivalent goods,
the payment of the cost of repairing or replacing the
goods or of acquiring equivalent goods;
(b) in the case of services supplied, to the supplying
of the services again or, the payment of the reasonable
cost of having the services supplied again. Except as
set out above all implied conditions, warranties and
rights are excluded from this Agreement.
(ii) PBS will not be liable to the Client or any persons
claiming under it in contract, in tort other-wise for
or in respect of any direct, indirect, or consequential
loss, damage, expense or injury suffered by the Client
or any other person arising out of or relating to this
Agreement or any delay, non-performance or error in
information supplied to the Client by PBS in connection
with this Agreement or any services provided.
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(I)
Intellectual Property Rights
(i) The Client acknowledges and agrees that PBS, its
licensors or its contractors own all intellectual property
and other proprietary rights in the services and the
results thereof and the materials and information provided
to the Client (collectively called the "Materials").
Materials include, but are not limited to, software
programs, program listings, procedures, programming
tools, documentation, reports and drawings.
Subject to any limitations imposed by PBS's licensors
and contractors, PBS hereby grants to Client a personal,
nonexclusive licence
(a) to use such Materials as are provided by PBS for
the Client's ongoing use,
(b) to modify and prepare derivative works of the Materials
for use in Client's business and
(c) to reproduce, copy and display the Materials as
appropriate in the conduct of its own business.
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(J)
Termination Services
(i) Either party may terminate this agreement by giving
the other party thirty days written notice, or the parties
may mutually agree in writing to a shorter notice period.
(ii) PBS may also terminate the agreement if the Client
enters into an arrangement or composition with creditors,
an application is made for the appointment of a liquidator,
controller, administrator, official manager, receiver
and manager or similar officer, an event happens which
would allow a court to wind the Client up, the Client
ceases to carry on business or is unable to pay its
debts or the Client, or any of them is appointed, materially
breaches this agreement and does not remedy the breach
with fourteen (14) days of receiving notice from PBS
to rectify the breach or the breach is incapable of
being remedied.
(iii) In the event PBS is required to provide a further
estimate pursuant to paragraph 6(B) above then on receipt
of such further estimate the client may elect to immediately
terminate this Agreement and the Client will pay PBS
all fees up to the date of termination and the Client
acknowledges that PBS will not be liable for any costs,
expenses, liability or damages associated with PBS's
failure to complete the services.
If the Client objects to an increase in fees pursuant
to paragraph 6(C) then either party may terminate the
agreement within 14 days of the date of the notice of
objection.
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(K)
Partial Ineffectiveness
If any term/provision/part of this Agreement, not being
of a fundamental nature, will be held illegal or unenforceable,
it is to that extent deemed omitted; the validity &
enforceability of the remainder of this Agreement will
not be affected.
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