The terms and conditions contained in this Support & Professional Services Agreement (Agreement) apply when you (Client) ask us Oncord Pty Ltd ACN 116 347 909 (Provider) to perform Services outside of the scope of standard support of the Oncord Application which is licensed to you subject to the terms of the End User License and Hosting Agreement as notified on our website at https://www.oncord.com/legal/eula/.
The terms and conditions contained in this Agreement supersede any previous deeds or agreements on similar terms and conditions as notified on our website at https://www.oncord.com/legal/support-agreement/.
In this Agreement, unless the context or subject matter otherwise require:
AF Fee means the amount of money payable to the Provider by each Client in accordance with clause 3.1 calculated as the AF Turnover x
AF Percentage.
AF Turnover means the amount of total sales made by the Client during a calendar month, capped at a maximum of $A250,000.00.
Aggregated AF Turnover means the amount of total sales by the all Clients under this Agreement during any calendar month, multiplied
by twelve (12).
AF Percentage means the greater of:
(a) 1% of AF Turnover, where Aggregate AF Turnover is less than or equal to $A10,000,000.00; or
(b) 0.9% of AF Turnover, where Aggregate AF Turnover is less than or equal to $A13,000,000.00; or
(c) 0.8% of AF Turnover, where Aggregate AF Turnover is less than or equal to $A20,000,000.00; or
(d) 0.7% of AF Turnover, where Aggregate AF Turnover is less than or equal to $A25,000,000.00; or
(e) 0.6% of AF Turnover, where Aggregate AF Turnover is less than or equal to $A35,000,000.00.
Agreement means the terms and conditions contained in this document.
Business Day means:
(a) for receiving a notice under clause 8.8 , a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
(b) for all other purposes, a day that is not a Saturday, Sunday, or public holiday in Queensland, Australia.
Business Hours means from 8.30am to 5.00pm on a Business Day.
Confidential Information means:
(a) information that is by its nature confidential;
(b) all information, know-how and Intellectual Property in relation to the Services; and
(c) all other information treated by the Provider as confidential, regardless of its form and
whether the person receiving the information becomes aware of it before or after the date of this Agreement.
But does not include information which:
(a) is or becomes public knowledge other than by breach of this Agreement or by any unlawful means; or
(b) is in the possession of the Provider without restriction in relation to disclosure before the date of receipt from the Client; or
(c) is required by law to be disclosed; or
(d) has been independently developed or acquired by the Provider and the Provider provides written evidence to this effect within
seven (7) days of the date of this Agreement.
Commencement Date means the date that the Client accepted the terms and conditions contained in this Agreement by communicating
their acceptance to the Provider or the date that the Client continued to issue the Provider with instructions after having these terms and
conditions brought to their attention.
Course Management Software means the course and class management software developed exclusively Foundation de Alliance which the
Client is a Member.
Delivery Date means a date to be advised (If applicable).
Damages means liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis and consequential
and indirect losses and damages including those arising out of any third Party claim.
Excluded Services means development of modifications for a specific Client that are not for the benefit of all Members, such as custom website forms, web design alterations that relate to a specific Client’s instance of the Platform.
Force Majeure Event means, in relation to a Party, anything outside the reasonable control of the Party, including:
(a) any act or omission of a third person (except for an act or omission of the Party's Officers);
(b) fire, flood, earthquake, elements of nature or act of God; or
(c) riot, civil disorder, rebellion or revolution.
Included Services means:
(a) maintenance and updates to the Software to remain relevant to new technology standards as reasonably determined by the Provider (for example - support for new browsers, PHP versions, and integration with Oncord Application);
(b) testing and bug fixes of the Software;
(c) ongoing development of new features for the Software that benefit the majority of Members, determined by the Provider and the Client, acting reasonably:
provided that the amount of the AF Fee payable is more than the amount of time spent by officers of the Provider.
Intellectual Property Rights means all intellectual property rights, including:
(a) patents, copyright, database rights, registered designs, trademarks, logos, slogans (in each case, whether registrable or non-registrable); and
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a).
Materials means anything delivered to the Client by the Provider that is required as part of the provision of the Services that it
developed exclusively for the Client.
Member means an entity that is a member of Fondation de Alliance that the Provider also provides Services to and uses the Course
Management Software.
Officer in relation to a Party means any of its officers, employees, contractors and agents of the Party and any related body
corporate of it.
Party means each of the Provider and the Client and together means the Parties.
Services means the Included Services and the Excluded Services, and any additional or related services, performed by the Provider
under this Agreement.
Service Charge means the Providers charges for providing the Excluded Services as specified in the following table on the basis of time spent by each of its Officers:
|
Role |
Rate |
Code |
|
Project Management |
$250 per hour + GST |
PMNG |
|
Software Architecture |
$250 per hour + GST |
SWARCH |
|
Urgent Matters |
$250 per hour + GST |
URGENT |
|
Software Development |
$125 per hour + GST |
SWDEV |
|
Graphics Design |
$80 per hour + GST |
GFXDES |
|
Graphics to Web Cutup |
$80 per hour + GST |
CUTUP |
Software means the Course Management Software provided to the Client as part of the Included Services.
Oncord Application means the Oncord website management system which is licensed to the Client on the terms and conditions contained
in the End User Licence and Hosting Agreement.
Goods and Services Tax (GST) means any consumption tax imposed by government, whether at point of sale or at some other specified
occurrence, by whatever name, which operates during the term or any renewal and includes (without limitation) a goods and services tax, a
broad-based consumption or indirect tax and value-added tax. This Agreement is to be treated as taxable for the purpose of GST and each
amount payable to the Provider under this Agreement is expressed inclusive of GST.
Term means five (5) years from the date that this Support and Professional Services Agreement is agreed to by the Parties.
In the interpretation of this Agreement, unless the context or subject matter otherwise require:
(a) singular includes plural and vice versa;
(b) any gender includes every gender;
(c) a reference to a person includes corporations, trusts, associations, partnerships, a government authority, and other legal entities, and where necessary, include successor bodies;
(d) references to writing include printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English;
(e) references to signature and signing include due execution of a document by a corporation or other relevant entity;
(f) a reference to time is to Queensland, Australia time;
(g) references to months mean calendar months;
(h) references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
(i) references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;
(j) a reference to $A, dollar or $ is to the currency of the Australia;
(k) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;
(l) where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning;
(m) each paragraph or sub-paragraph in a list is to be read independently from the others in the list;
(n) a reference to an Agreement or document is to that Agreement or document as amended, novated, supplemented or replaced from time to time;
(o) a reference to a clause is a reference to a clause in this Agreement; and
(p) a reference to a Party includes that Party's executors, administrators, substitutes, successors and permitted assigns.
The Provider will provide to the Client:
(a) the Included Services in exchange for the payment of the AF Fee; and
(b) the Excluded Services in exchange for the payment of the Services Charge.
The Provider must provide the Services to the Client in accordance with the terms and conditions contained in this Agreement.
Any delay or failure by the Client in performing its obligations under this Agreement may result in delay or failure by the Provider to provide the Services.
If there is a delay or failure by the Client in performing its obligations under this Agreement:
(a) the Provider is not responsible for any delay or failure to provide the Services as a consequence; and
(b) the Client must pay any additional actual cost calculated on the hourly rates as defined in Service Charges, reasonably incurred by the Provider because of any delay or failure by the Client in performing those obligations provided that such additional cost shall not exceed the AF Fee.
If the Provider has agreed to a Delivery Date, and cannot meet the Delivery Date, directly or indirectly, because of a delay or failure by the Client in performing its obligations under this Agreement, any agreed relevant Delivery Date for providing the Services are put back by the number of Business Days caused by the Client's failure or delay.
(a) Excluded Services are deemed to have been accepted by the Client if:
To calculate the amount of the AF Fee the Provider will access invoices generated or shown in the Software such as MYOB to determine the amount of the AF Turnover.
The Client must contribute to the payment of the AF Fee each calendar month in proportion to the amount of sales made.
(a) If the Provider is not able to charge the Client’s nominated credit card for the Service Charges that are due payable under this Agreement more than seven (7) days after they become due and payable, the Provider may immediately stop providing Services until the Client pays all outstanding amounts.
(b) The Provider reserves its right to withhold access to the Software after thirty (30) days of non-payment.
(a) In the case of Excluded Services, the Provider must provide the Client with a quote prior to the commencement of work;
(b) The final cost may vary substantially from the quote due to any of the following variables:
(c) The Client acknowledges that:
The Client owns any Intellectual Property Rights in the Materials and the Services (other than the Software) developed for the Client under this Agreement. For the avoidance of doubt any Intellectual Property created by the Client and provided to the Provider that is necessary to provide the Services is owned by the Client (Background IP).
The Client grants the Provider a non-exclusive, non-transferable licence to use the Background IP necessary for provide the Services in accordance with clause.
This Agreement does not transfer any Intellectual Property Rights in the Materials, and the methodologies developed under it, to the Client and the Client must not represent that it owns those rights.
The Provider must:
(a) only use the Materials for its internal business purposes and in accordance with this Agreement;
(b) sign any form or document reasonably required by the Client
(c) comply with the Provider's reasonable directions regarding use of the Materials; and
(d) if using the Oncord application, then it must have a current license to do so.
The Provider:
(a) excludes any condition or warranty implied into this Agreement as far that it is allowed to do so at law; and
(b) limits its liability for breach of any implied condition or warranty that it cannot exclude to the greater of (at the Provider's option):
If the Client makes a claim against the Provider for any act or omission of the Provider relating to this Agreement (whether the claim is based in contract, tort (including negligence or statute) the Provider's liability in respect of that claim is:
(a) limited to $1000 for loss of, or damage to, tangible property; and
(b) for any other claim, limited in aggregate to:
(i) if the liability arises during
The Provider excludes liability to the Client for any special or consequential loss including loss of opportunity, lost revenue and lost profits and loss of data associated with the performance of services by the Client.
(a) The Provider, acting reasonably may terminate this Agreement as it relates to the Excluded Services:
The Client, acting reasonably may terminate this Agreement as it relates to the Excluded Services:
(a) by providing seven (7) days notice in writing to the Provider; and
(b) paying all outstanding amounts associated with this Excluded Services performed by the Provider up to and including the date of termination.
This Agreement may only be altered in writing signed by all the Parties.
The Provider agrees not to assign this Agreement or any of its rights and obligations without the prior written consent of the Client. The Client agrees not to assign this Agreement or any of its rights and obligations without the prior written consent of the Provider.
Except where this Agreement expressly states otherwise, a Party may, at its discretion, give conditionally or unconditionally or withhold any approval or consent under this Agreement.
This Agreement constitutes the entire Agreement between the Parties in connection with its subject matter and supersedes all previous Agreements or understandings between the parties in connection with its subject matter.
(a) The Provider is not liable for any delay or failure to perform its obligations if such failure or delay is due to Force Majeure.
(b) The Provider must notify the Client as soon as practical be of any anticipated delay due to Force Majeure. The performance of the Provider’s obligations under this Agreement will be suspended for the period of the delay due to Force Majeure.
(c) If a delay due to force majeure exceeds 30 days, the Client may terminate this Agreement immediately on providing notice to the Provider. If the Client gives such notice to the Provider:
(i) the Provider will refund moneys previously paid by the Client under this Agreement for which no services have been provided; and
(ii) the Client will pay the Provider a reasonable sum in relation to services rendered or costs and expenses incurred prior to termination for which no payment has been made by the Client.
Each Party must do, at its own expense, everything reasonably necessary (including executing further documents) to give full effect to this Agreement and transactions contemplated by it.
This Agreement is be governed by and interpreted in accordance with the laws of Queensland. The Parties submit to the non-exclusive jurisdiction of the Courts of Queensland.
All notices to be served must be served in writing and signed by a duly authorised person. Notices may be served by:
(a) prepaid post to the address last provided to the other Party. The notice is deemed to have been received when it would be received in the ordinary course of the post;
(b) personally serving the notice at the address last notified;
(c) transmitting the notice to the last notified facsimile number. The notice shall be deemed to have been received if the transmission slip records that it was transmitted to that number; or
(d) sending it by email to the email address last specified.
Any notice to be served on either Party can be served at the relevant address as stated in the details section of this Agreement.
Part or all of a provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining parts of the provision or provisions of this Agreement continue in force.
Any obligation of Confidentiality and indemnity created by this Agreement is independent and survives termination of this Agreement.
The non-exercise of, or delay in exercising a right of a Party shall not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by notice, signed by the Party (or its authorised representative) to be bound by the waiver.
(a) All Confidential Information obtained by the Provider from the Client in the course of performing the Services must be treated as confidential and must not be disclosed to any third party.
(b) The Provider must ensure that all the Confidential Information in the custody of the Provider
for purposes connected with this Agreement is protected at all times from unauthorised access or use by a third party or misuse, damage or
destruction by any person.
The Provider must effect and maintain professional indemnity insurance policy to a limit of at least $1,000,000.00 and adequate insurance to cover the Provider’s liabilities at law arising under this Agreement.
The Provider must comply with the Privacy Act 1988 (Cwth).