Contact us if you have questions not answered here and we will do our best to answer.
a. Subscribers will at times enter into separate Service Orders for
other services. Once executed by both parties, each Service Order will be a
unique agreement that incorporates the terms of this Agreement and stands alone
with respect to all other Service Orders. If there is a conflict between the
terms of this Agreement and the terms of a Service Order, the terms of this
Agreement will control unless the Service Order states that a specific
provision of this Agreement will be superseded by a specific provision of the
Service Order. ICSR will provide, and Subscriber will pay for, all ICSR
Services set out in each Service Order, subject to the terms of the Service
Order and this Agreement.
b.
Service Order Type. Service Orders will be one of the following
types:
i.
New:
A new Service Order sets forth the ICSR Services and applicable Scope
Limitations.
ii.
Amendment:
An amendment to a Service Order modifies an existing Service Order (e.g., to
change the scope, add Add-On Services, or add Professional Services). The amendment
will apply for the remainder of the term of the Service Order(s). For the
avoidance of doubt, Subscriber must pay all outstanding fees for usage prior to
the Service Order amendment date in accordance with the terms set forth in the
previous Service Order(s).
iii.
Renewal:
A renewal renews Subscriber’s existing ICSR Service subscription.
c. Service Orders must be executed by both parties
to be valid.
i. Provision of Purchased
Services. We will (a)
make the Services and Content available to You pursuant to this Agreement and
any applicable Order Forms, (b) provide applicable ICSR standard support for
the Purchased Services to You at no additional charge, and/or upgraded support
if purchased, (c) use commercially reasonable efforts to make the online
Purchased Services available 24 hours a day, 7 days a week, except for: (i)
planned downtime (of which We shall give advance electronic notice), and (ii)
any unavailability caused by circumstances beyond Our reasonable control,
including, for example, an act of God, act of government, flood, fire,
earthquake, civil unrest, act of terror, strike or other labour problem (other
than one involving Our employees), Internet service provider failure or delay,
Non-ICSR Application, or denial of service attack.
ii. Protection of Your Data. We will maintain
administrative, physical, and technical safeguards for protection of the
security, confidentiality and integrity of Your Data, as described in the
Documentation. Those safeguards will include, but will not be limited to,
measures for preventing access, use, modification or disclosure of Your Data by
Our personnel except (a) to provide the Purchased Services and prevent or
address service or technical problems, (b) as compelled by law in accordance
with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit
in writing. Except with respect to a Free Trial, to the extent that ICSR
processes any Personal Data (as defined in the DPA) contained in Customer Data,
on Customer’s behalf, in the provision of the Services, the terms of the data
processing addendum at http://ICSR.com.au/dataprocessingaddendum.pdf
("DPA"), which are hereby incorporated by reference, shall apply and
the parties agree to comply with such terms. For the purposes of the Standard
Contractual Clauses attached to the DPA, when and as applicable, Customer and
its applicable Affiliates are each the data exporter, and Customer's signing of
this Agreement, and an applicable Affiliate's signing of an Order Form, shall
be treated as signing of the Standard Contractual Clauses and their Appendices.
iii. Our Personnel. We will be responsible
for the performance of our personnel (including our employees and contractors)
and their compliance with our obligations under this Agreement, except as
otherwise specified herein.
d.
Beta Services. From time to time, we may make Beta Services available to you at no
charge. You may choose to try such Beta Services or not in your sole
discretion. Beta Services are intended for evaluation purposes and not for
production use, are not supported, and may be subject to additional terms. Beta
Services are not considered “Services” under this Agreement, however, all
restrictions, Our reservation of rights and Your obligations concerning the
Services, and use of any related Non-ICSR applications and content, shall apply
equally to your use of Beta Services. Unless otherwise stated, any Beta
Services trial period will expire upon the earlier of one year from the trial
start date or the date that a version of the Beta Services becomes generally
available without the applicable Beta Services designation. We may discontinue
Beta Services at any time in our sole discretion and may never make them generally available. We will have no liability for any harm or
damage arising out of or in connection with a Beta Service.
a. Defence
and Indemnification. ICSR will, at its expense, either defend Subscriber
from or settle any claim, proceeding, or suit (“Claim”) brought by a third
party against Subscriber alleging that Subscriber’s use of the ICSR Services infringe
or misappropriate any patent, copyright, trade secret, or trademark, right of
any third party, and indemnify Subscriber from all damages, costs, and
attorneys’ fees finally awarded in any such Claim or paid to any third party to
settle any such Claim. ICSR’s obligation under this section is contingent on
Subscriber giving ICSR prompt written notice of the Claim; Subscriber granting
ICSR full and complete control over the defence and settlement of the Claim;
and Subscriber providing assistance in connection with the defence and
settlement of the Claim as ICSR may reasonably request, at ICSR’s cost.
Subscriber will not defend or settle any Claim eligible for indemnification
under this section without ICSR’s prior written consent.
b.
Infringement Remedy. If Subscriber is enjoined or otherwise
prohibited from using the ICSR Services or a portion thereof based on an
allegation that the ICSR Services violate any third party intellectual property
right (including a Claim), or if ICSR reasonably determines that such
prohibition is likely, then ICSR will, at its sole expense and option: (a)
obtain for Subscriber the right to use the allegedly infringing portions of the
ICSR Services; (b) modify the allegedly infringing portions of the ICSR
Services so as to render them non-infringing without substantially diminishing
or impairing their functionality; or (c) replace the allegedly infringing
portions of the ICSR Services with non-infringing items of substantially
similar functionality. If ICSR determines that the foregoing remedies are
not commercially reasonable, then ICSR may terminate the impacted Service
Order, or portion thereof, and will promptly provide a prorated refund to
Subscriber for any prepaid fees received by ICSR for any ICSR Services that
have not yet been performed at the time of termination.
c.
Exclusions from Obligations. ICSR will
have no obligation under this Section 8 for any infringement or
misappropriation to the extent that it arises out of or is based upon use of
the ICSR Services in combination with other products or services if such
infringement or misappropriation would not have arisen but for such
combination; any aspects of the ICSR Services that are provided to comply
with designs, requirements, or specifications required by or provided by
Subscriber, if the alleged infringement or misappropriation would not have
arisen but for the compliance with such designs, requirements, or
specifications; use of the ICSR Services by Subscriber for purposes not
intended or outside the scope of the license granted to Subscriber;
Subscriber’s failure to use the ICSR Services in accordance with written
instructions provided by ICSR, if the infringement or misappropriation would
not have occurred but for such failure; or any modification of the ICSR Services
not made or authorized in writing by ICSR where such infringement or
misappropriation would not have occurred absent such modification.
1.
Limited Remedy. This Section 8
states ICSR’s sole and exclusive liability, and Subscriber’s sole and exclusive
remedy, for the actual or alleged infringement or misappropriation of any third
party intellectual property right by the ICSR Services.
2.
INTELLECTUAL
PROPERTY TERMS
a. The Licensor grants non-exclusive, transferable, non-revocable license
to the Subscriber to use the
Software on and from the date of this agreement for the permitted purpose.
b. The Subscriber may not
assign the License.
c. The Subscriber is
prohibited from making any copies, archival or otherwise, of the Software. Subscriber is further prohibited from using the Software in any manner other than
its permitted purpose.
d. The Subscriber may not
sublicense the license.
e. The Subscriber cannot in
list a third party to breech any of this contracts terms and conditions.
f. The Subscriber is not
permitted to reverse engineer, reverse assemble or reverse compile or otherwise
endeavour to obtain the source code from the object code.
g. The Subscriber
acknowledges and agrees the Licensor is the owner of all Intellectual Property
Rights in the Software.
h. The Subscriber must not
alter, remove or obscure any trade mark or copyright symbol or legend or other
proprietary mark on the Software.
i. Where the Subscriber request for
modification or adapt new code to be written, the parties agree that the
Licensor will own the Intellectual Property Rights in that modified and/or
adapted code.
j. The Subscriber is not
permitted to sell, charge, and mortgage or otherwise encumber the Software in
any way.
k. The Subscriber is solely
responsible for the use, supervision, management and control of the Software.
l. The Subscriber will ensure
that the Software is at all times protected from access, use or misuse and
damage and destruction by any person not authorized by either the Licensor or
the Subscriber, and the Subscriber will notify
the Licensor immediately if it becomes aware of any unauthorized use of the
Software
Subscriber will defend ICSR from any actual or
threatened third party Claim arising out of or based upon Subscriber’s breach of
Section 3, and indemnify ICSR from all damages, costs, and attorneys’ fees
finally awarded in any such Claim or all amounts that Subscriber agrees to pay
to any third party to settle any such Claim.
Subscriber’s obligation under this section is
contingent on:
(a) ICSR giving Subscriber prompt written
notice of the Claim;
(b) ICSR granting Subscriber full and
complete control over the defence and settlement of the Claim;
(c) ICSR providing assistance in connection
with the defence and settlement of the Claim as Subscriber may reasonably
request; and
(d)
ICSR’s compliance with any settlement or court order made in connection with
the Claim, provided that Subscriber may not agree to any settlement that
imposes any obligation on ICSR without ICSR’s consent.
ICSR will not defend or settle any Claim
eligible for indemnification under this section without Subscriber’s prior
written consent. .
a. Disclaimer
of Indirect Damages. Except for liability arising out of a breach of
section 6, violation of the other party’s intellectual property rights, or
either party’s gross negligence or wilful misconduct, neither party will, under
any circumstances, be liable to the other party for consequential, incidental,
special, or exemplary damages arising out of or related to this agreement,
including but not limited to lost profits or loss of business, even if a party
is apprised of the likelihood of such damages occurring.
b.
Cap on Liability. Except for liability arising out of a breach
of section 6, the parties’ indemnification obligations under sections 8 and 9,
violation of the other party’s intellectual property rights, or either party’s
gross negligence or wilful misconduct, under no circumstances will either
party’s total liability of all kinds arising out of or related to this
agreement (including but not limited to warranty claims), regardless of the
forum and regardless of whether any action or claim is based on contract, tort,
or otherwise, exceed the total amount paid by subscriber to ICSR under the
applicable service order during the twelve months preceding the claim
(determined as of the date of any final judgment in an action).
c.
Independent allocations of risk. Each provision of this agreement that
provides for a limitation of liability, disclaimer of warranties, or exclusion
of damages is to allocate the risks of this agreement between the parties. This
allocation is reflected in the pricing offered by ICSR to subscriber and is an
essential element of the basis of the bargain between the parties. Each of
these provisions is severable and independent of all other provisions of this
agreement. The limitations in this section 10 will apply notwithstanding the
failure of essential purpose of any limited remedy.
a. Relationship.
This Agreement will not be interpreted or construed as: (a) creating or
evidencing any association, joint venture, partnership, or franchise between
the parties; (b) imposing any partnership or franchise obligation or liability
on either party; or (c) prohibiting or restricting either party from
collecting, licensing, or otherwise dealing in data or information from any
third party.
b.
Export Compliance and Anti-Corruption.
The ICSR Services may be subject to export laws and regulations of Australian
and other jurisdictions. Each party represents that it is not named on any.
Government denied-party list. Subscriber shall not permit users to access or
use the ICSR Services in an embargoed country or in violation of any export law
or regulation. Subscriber further represents that it has not received or been
offered any illegal or improper bribe, kickback, payment, gift, or thing of
value in connection with this Agreement (excluding any reasonable gifts and
entertainment provided in the ordinary course of business).
c.
Assignability. Neither party may assign
its right, duties, and obligations under this Agreement without the other
party’s prior written consent, which consent will not be unreasonably withheld
or delayed, except that a party may assign this Agreement without the other
party’s consent to a successor (including a successor by way of merger,
acquisition, sale of assets, or operation of law) if the successor agrees to
assume and fulfil all of the assigning party’s obligations under this
Agreement.
d.
Subcontractors. ICSR may utilize a
subcontractor or other third party to perform its duties under this Agreement,
for example writing of new code, so long as ICSR remains responsible for all of
its obligations under this Agreement.
e.
Notices. Any notice required or permitted
to be given in accordance with this Agreement will be effective if it is in
writing and sent by fax, e-mail, mail, or insured courier, return receipt
requested, to the appropriate party at the address set forth on the signature
page of this Agreement (or the applicable Service Order). Either party may
change its address for receipt of notice by notice to the other party in
accordance with this Section. Notices are deemed given two business days
following the date of mailing or one business day following delivery to a
courier or sending an email or fax.
f.
Force Majeure. Neither party will be
liable for, or be considered to be in breach of or default under this Agreement
on account of, any delay or failure to perform as required by this Agreement as
a result of any cause or condition beyond its reasonable control, so long as
that party uses all commercially reasonable efforts to avoid or remove the
causes of non-performance.
g.
Governing Law. This Agreement will be
interpreted, construed, and enforced in all respects in accordance with the
local laws of the State of NSW, Australia. without reference to its choice of
law rules and not including the provisions of the 1980 U.N. Convention on
Contracts for the International Sale of Goods. Each party hereby irrevocably
consents to the exclusive jurisdiction and venue of the federal, state, and
local courts in Sydney, New South Wales in connection with any action arising
out of or in connection with this Agreement.
h.
Waiver. The waiver by either party of
any breach of any provision of this Agreement does not waive any other breach.
The failure of any party to insist on strict performance of any covenant or
obligation in accordance with this Agreement will not be a waiver of such
party’s right to demand strict compliance in the future, nor will the same be
construed as a novation of this Agreement.
i.
Severability. If any part of this
Agreement is found to be illegal, unenforceable, or invalid, the remaining
portions of this Agreement will remain in full force and effect. If any
material limitation or restriction on the use of the ICSR Services under this
Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right
to use the ICSR Services will immediately terminate.
j.
Entire Agreement. This Agreement,
including the applicable Service Orders, is the final and complete expression
of the agreement between these parties regarding Subscriber’s use of the ICSR
Services. This Agreement supersedes, and the terms of this Agreement govern,
all previous oral and written communications regarding these matters, all of
which are merged into this Agreement, except that this Agreement does not
supersede any prior nondisclosure or comparable agreement between the parties
executed prior to this Agreement being executed, nor does it affect the
validity of any agreements between the parties relating to professional
services relating to the ICSR Services that ICSR may provide. This Agreement
may be changed only by a written agreement signed by an authorized agent of the
party against whom enforcement is sought. ICSR will not be bound by, and
specifically objects to, any term, condition, or other provision that is
different from or in addition to this Agreement (whether or not it would
materially alter this Agreement) that is proffered by Subscriber in any
receipt, acceptance, confirmation, correspondence, or otherwise, unless ICSR
specifically agrees to such provision in writing and signed by an authorized
agent of ICSR. This Agreement may be executed in multiple counterparts, and may
be acknowledged or submitted online, signed electronically, returned via email
or via facsimile.
A. During the Term of this Agreement, the Subscriber will pay ICSR in advance for their use of the Software and any other
chargeable service set out in the schedule.
B.
Subscriber agrees to pay ICSR any Additional User Fees as set out in the schedule
or the ICSR website per user per Term of this Agreement.
C.
Subscriber agrees to pay ICSR a Fee as set out the schedule for data transferred
into the software.
D.
Subscriber agrees to pay ICSR a Fee as set out in the schedule for any additional
code required to be written at the request of the Subscriber that is not already included in the Subscribers nominated package.
E.
Subscriber agrees to pay ICSR the Fee as set out in D above plus all reasonable
travel and accommodation costs when required on site outside Sydney or
Melbourne metro.
F.
Subscriber agrees to pay ICSR a Fee as set out in the schedule for any additional
training required that is not already included in the Subscribers nominated package.
G.
Subscriber agrees to pay ICSR a Fee as set out in the schedule for SMS services.
H.
Subscriber agrees to pay ICSR a Fee as set out in the schedule for additional
storage.
I.
All fees set out in the schedule are in Australian dollars and include GST.
Please notes that, depending upon
which package you select, some of the below may be included, please ask for
specific help.
Service |
FEE |
PER |
HOW PAID |
|
Training On site (Metro) Training – Skype Design & Customisation Database Integration SMS Extra transactions Tracking App Extra GoogleAPI Calls Video Receipt App Fixed Number Unique Domain Name* Extra Emails Encryption (HTTPS) Extra Storage Space |
$190 $90 $170 $170 $0.05 $44 $12 $0.01 $170 $45 $182 $35 $30 $42 |
+ gst + gst + gst + gst + gst + gst + gst + gst + gst + gst + gst + gst + gst + gst |
Hour Hour Hour Hour sms 10,000 month download AS Per Google download month annum 10,000 month month 1gb per month |
invoice invoice invoice invoice auto-billed and receipt auto-billed and receipt auto-billed and receipt auto-billed from google auto-billed and receipt auto-billed and receipt auto-billed and receipt auto-billed and receipt auto-billed and receipt auto-billed and receipt |
* not ending in logon.net.au (prices and availability
will vary)
Extra Users (Users can be replaced,
therefore old staff can be replaced by new staff with no change to user list) |
As per website pricing |
a. The Subscriber wishes to ensure the system will suit their business
prior to committing to a full price annual subscription or sale.
b. The Licensee will offer the subscriber a Trial limited by time and users
on the proviso that the subscriber genuinely wishes and is ready to subscribe
fully to the service.
c. The Trial will be valid for one year from the commencement of contract.
d. Upon the conclusion of the Trial, should there be no genuine written
dispute or unresolved grievances, the Subscriber agrees to auto-renewal of the
services for the full annual advertised price as per the ICSR website https://icsr.com.au/pricing.html
Trial Limitations
a. The trial database and website will not be backed up and operating on
dual servers as is usual, unless a setup fee is paid.
b. The trial database will not be fully reflective of the subscriber’s
image or look and feel as is usual, unless a setup fee is paid.
c. The trial will not include the usual data integration period, unless a
setup fee is paid. The subscriber will be responsible for entering the Trial
data into tables provided by the licensee.
Trial Costs
The limited
trial will be made available for maximum of 1 year at the monthly sole contractor rate of
$2880 + GST paid upfront or $390 + GST paid monthly pro rata.
During this Trial term, once the subscriber signs up to a full service plan, the subscription amount paid pro-rata or upfront will be
deducted from the annual subscription for those services.
Trial Deposit
The subscriber will make available a further holding deposit of $500 +
GST to allow for some of the additional services required during set up, such
as sms, data integration and customisation.
Once the subscriber signs up to a full service plan, this deposit will be
refundable against the first month’s billing for those services.
If the licensee has failed to deliver expected services during the
trial, ie a genuine written dispute or grievance
remains unresolved, the unused portion of the deposit will be refunded.
Any items used against the deposit will be itemised on an invoice.
If the licensee fails to follow through with their order due primarily to a change of mind or circumstance, the deposit will be forfeited in compensation
and the full cost of any additional services will be immediately payable on
presentation of an invoice.