GENERAL TERMS AND CONDITIONS
This is a legally binding agreement between you and UNIFY Solutions Pty Limited ACN 109 584 947 (appearing as “we”, “our” or “us” in this Agreement) which sets out the terms and conditions upon which we will supply the Services to you.
1. Definitions
1.1. In this Agreement:
Associates mean officers, directors, employees, subcontractors, consultants, agents and any other entity specified in the Order;
Agreement is defined in clause 2.3;
Business Day means Monday to Friday between 8.30am and 5.30pm Local Support Region Time which is not a public or bank holiday;
Cancellation Fee means the 75% of the estimated cost of the Consulting Services to be provided;
Cloud Services – means the Managed Service and any other related services, provided by us, which are hosted by us and interact with you remotely. Internet access is required to be able to use the Cloud Services;
Consulting Services means the Consulting Services identified in the Offer and/or such other consulting services we agree to provide you from time to time pursuant to clause 17;
Consumer Laws mean schedule 2 of the Competition and Consumer Act 2010 (Cth) (including the “Australian Consumer Law”), or the Consumer Guarantees Act 1993 (NZ), as amended from time to time, or other similar legislation of a state or territory of Australia or NZ respectively;
Commencement Date means the date the Agreement is formed as defined in clause 2.3;
Confidential Information means (a) all information of, or used by a party relating to that party’s transactions, operations and affairs or that of their clients; (b) all other information treated by the party as confidential; (c) all information the receiving party knows, or reasonably ought to know is confidential; (d) all copies (whether or not in tangible form) of the information, notes, reports and other records based on, incorporating or derived from information referred to in paragraphs (a) to (d); and (e) including the terms of this Agreement as amended; that is not public knowledge, or required to be disclosed under law, including ASX Listing Rules or Government Agency or otherwise within the knowledge of the other party (otherwise than as a result of a breach of a confidentiality obligation of that party); Consumer Guarantees means the consumer guarantees regime as set out in the Consumer Laws;
Consumer Price Index means the consumer price index for Brisbane published by the Australian Bureau of Statistics. If that index no longer exists, Consumer Price Index means an index determined by Us as to be suitable, acting reasonably;
Documentation means manuals or other documentation in any media that we make available with the Services;
Expenses means any reasonable expenses and disbursements (including travel expenses and accommodation) incurred by us in supplying the Services, at the rate indicated in our Price List;
Fee means the fee(s) specified in the Order;
General Terms and Conditions means the terms and conditions set out in this document, together with the Schedule(s) (if any);
Government Authority means a Federal or State government department, regulatory authority or agency, e.g. ASIC, ATO, NZ Companies Office, NZ IRD, including ASX, NZX or any other Listing Authority;
GST means the goods and services tax pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or replaced from time to time;
Harmful Code means any worm, virus, Trojan horse, software switch disabling code, disabling routine or expiration dates as these words are generally understood within the technology industry, or any equivalent or similar corruptive mechanism or other hostile computer program;
Initial Term means the term specified in the Order, and the term for which fees are payable, regardless of when the Order is cancelled or the Agreement is terminated;
Licence is defined in clause 4.1;
Licensed Users mean the maximum number of end-users permitted to benefit from the Service, as specified in the Order, including all users that are managed by the Service, regardless if they access the Service directly;
Local Support Region Time means Brisbane time, where the Support Region is Australia and local New Zealand time when the region is New Zealand or such other time as indicated in the Order;
Managed Service means the service provided by us which enables you to utilise the Software and/or Hardware hosted by us remotely, i.e. in the private cloud. Internet access is required to be able to utilise the Managed Service;
Offer means the Offer for services provided to you;
Other Personal Information means Personal Information you may provide or disclose to us which relates to other people such as your clients, employees, agents or authorised users of the Software and Services, or other third parties, which you may be included in data created or collected by you when using the Services, including technical support relating to the Services;
Personal Information has the meaning given in the Privacy Act 1988 (Cth);
Price List means our prices for Services as amended from time to time by us, available upon request;
Privacy Laws means the applicable Privacy Act 1988 (Cth) and Australian Privacy Principles and Privacy Act 1993 (NZ) as amended from time to time;
Privacy Policy means our privacy policy located at www.unifysolutions.net as updated from time to time;
Purpose means use by you for your internal business purposes;
Services means the Services specified in the Offer in whole or in part. For clarity this includes the Cloud Services and Consulting Services;
Set-up Requirements means the supplied document that is part of this agreement that outlines the technical and/or process that you must prepare and adhere to for the Cloud Services to be supplied without interruption; Site means the site where the Services will be performed as specified in the Order, or as otherwise agreed in writing;
Support Region means the nominated region as indicated in the Order; and Us, we means Unify Solutions Pty Limited ACN 109 584 947;
You means the Company as specified in the signed acceptance form in the Offer

1.2. In this Agreement, unless the context otherwise requires:
a)	headings will be ignored in construing this Agreement;
b)	references to persons include references to corporations and other bodies and entities;
c)	the word “including” and “include” mean “including but not limited to”;
d)	references to statutes include all statutes amending, consolidating or replacing such statutes;
e)	reference to a schedule is a reference to a schedule in this Agreement; and
f)	a reference to this Agreement or schedule includes any variation or replacement of either of them.

2. Agreement
2.1. The Agreement between you and us is formed by:
a)	the Offer;
b)	the Set-up Requirements;
c)	Service Level Agreements; and
d)	these General Terms and Conditions.
2.2. The Offer is valid for 30 days from the date of the Offer.
2.3. An agreement is formed when we receive the signed Offer from you before the expiry date and we have countersigned the Offer to confirm our acceptance. However if you commence using the Services without the Offer being fully signed, those Services will be on the terms of this Agreement.
2.4. For the purpose of resolving any inconsistency between the various terms and conditions specified in clause 2.3, the order of precedence is (a) the Offer (b) the General Terms and Conditions;

3. Term and Termination
3.1. This Agreement commences on the Commencement Date and automatically renews for a further 12 months on each anniversary of the Initial Term, but can be terminated by you up to 60 days before the start of the next renewal.
3.2. We may terminate this Agreement by notice to you if:
a)	you breach any of your obligations, including payment of Fees within 14 days of receiving an invoice, under this Agreement and you do not remedy such breach within a reasonable time as requested by us in writing;
b)	you become insolvent, are wound up or a receiver or creditor is appointed over any part of your business;
or
c)	we are required by law or requested by any Government Agency.
3.3. Upon termination:
a)	except as required by the Consumer Laws, you agree to release us from all our obligations under this
Agreement;
b)	you have no rights to use the Services; and
c)	you must pay any outstanding Fee(s) and any reasonable costs incurred by us as a result of termination (Including third party cancellation fees, administrative costs and any other costs incurred by us in performing the Services) due and payable to us within 14 days of receiving an invoice from us.
 
4. Licence
4.1. We grant you a non-exclusive, non-transferable Licence to use the Services to be used by the Licensed Users for the Purpose in accordance with the terms of this Agreement.
4.2. You agree that you are responsible for obtaining independent professional advice relating to your use of the Services and all content, information, documents or output used, produced or requested using the Service:
a)	to determine the suitability of the Services for your purpose; and
b)	b) to ensure your use of the Services complies with relevant laws, regulations or regulatory authorities, e.g. corporations law, and taxation law.
4.3. You acknowledge that you are required to have internet access to be able to access and benefit from the Services.
4.4. Grant of the licence is conditional upon you complying with the following:
a)	at your cost, to provide appropriate access devices, software, operating conditions, cabling, telephone lines, modems, firewalls, security and business grade internet connections at appropriate and efficient speeds and any other relevant specifications of which you may be advised and relevant business processes relating to your use and access to the Services (“your Set-up”) required for you to access and otherwise receive the benefit of the Services;
b)	ensure that no unauthorised use is made of the Services;
c)	complying with all of our operating and security requirements and procedures relating to:
i.	access and use of the Services; and
ii.	in respect of passwords and other security information, as notified to you from time to time;
d)	other than as expressly permitted under this agreement, not obtain (nor attempt to obtain) any access to, or interfere with:
i.	any of our programs or data or of any other of our clients; or
ii.	any part of the our systems, hardware, software or networks;
e)	not introduce any Harmful Code into the our systems.
f)	not yourself, or allow others:
i.	to sell, market, network, transfer, lease, license, sub-license, rent, lend, share or otherwise dispose of or distribute the use the Services or Documentation and/or the relevant Login, password or other
ii.	access details; or
iii.	to use the Services or Documentation to provide bureau, hosting or other services by internet or by
iv.	any other means;
g)	you will not yourself, or allow others to use the Services:
i.	for unlawful purposes or any purpose prohibited by the terms of this Licence;
ii.	to gain unauthorised access to any Services or other accounts, computer systems or networks connected to the our server or any server used by us, or Services, through hacking, password mining or any other means;
iii.	to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services;
iv.	in a way that may expose us to the risk of any legal or administrative action or in any way have a detrimental effect on our goodwill or good standing or that of our related bodies corporate;
4.5. If you become aware of or suspect that a breach of any of the obligations set out in clause 4.4 has occurred, you must promptly notify us, in which case we may take such action as we consider appropriate (which may including changing  your passwords and other security information).
5. Service Continuity
 Except as required by the Consumer Laws:
5.1. We do not warrant that the Services will be uninterrupted, continuous or error free.
5.2. You agree that your use of the Services is dependent on, and affected by, a number of environmental and other factors outside of our reasonable control, including the infrastructure and services provided by third parties which we may use to provide the whole or part of the Services, or other connections which may be dependent upon third party networks and security measures over which we do not have any control, availability, speed and efficiency of your ISP services and the like (External Factors). Subject only to Clause 15, we will have no liability whatsoever relating to any failure of, or interruption in the performance of, the Services resulting from any External Factor. In the event of failure of the Services, we will use reasonable commercial endeavours to restore the Services to an operational state with the minimum practicable delay.
5.3. You agree that from time to time:
a)	We will conduct routine and other maintenance on the Cloud Services which will be scheduled outside of normal business hours to cause minimum interruption to you and you agree that, during the conduct of such maintenance, you may not be able to access or use the Services.
b)	In addition to clause 10, we may suspend the Services with written prior notice (in a time frame that is reasonably practical to do so) if:
i.	our access to any system, software, hardware, server, or network required to deliver the Services to you is suspended for any reason; or
ii.	we are required to do so by any governmental agency or authority, including the ASX, NZX, ASIC, NZ
iii.	Companies Office, the ATO or NZ IRD.
5.4. You agree that we may monitor the number of actual users of the Services.

6. Data Collection and Privacy
6.1. You agree that we may collect, use, disclose, store and transmit information from you which may include: 
a)	Technical and related information about your use of the Services, which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Software usage statistics (“Collected Data”) to facilitate the provisioning of updates, support, invoicing or online services to You. For clarity this will not include customer data.
b)	Information which may include Personal Information including Other Personal Information. Where Other Personal Information is disclosed to us in relation to this Agreement, you warrant that you have obtained all relevant consents in relation to the disclosure of the Other Personal Information to us and our use, handling, disclosure and storage of the Other Personal Information in accordance with this Agreement and our Privacy Policy. We handle all Collected Data and Personal Information, in accordance with the Privacy Act 1988 (Cth) and the applicable Privacy Principles as set out in our Privacy Policy.
c)	You acknowledge that we may be required to allow access to your data, Confidential Information and Personal Information, by law or government agency, for which we will not be liable in any way. We will give you as much notice as reasonably possible if we are required to allow such access and only give access to such information as is required.
d)	You agree that we may collect information from you which may include Personal Information or Other Personal Information which we may collate and de-identify and use by us, for purposes such as but not limited to benchmarking, as specified in the Offer.
e)	By using the Services:
i.	you agree that: you will comply with the Privacy Laws in relation to any disclosure to us and our use in accordance with this Agreement and its Privacy Policy of any Other Personal Information; and
ii.	you are responsible and liable for any such use of Other Personal Information by us and will indemnify us for any complaint, loss or damage suffered by Us relating to our use of Other Personal Information.

7. Cloud Services
7.1. Your access to the Services requires use of the Cloud Services. You are responsible for any fees which may apply for the use of Cloud Services (in addition to the cost of Internet access levied by your ISP). Except as required by the Consumer Guarantees, we will not be liable for the withdrawal of access to the internet which prevents access to the Services or any third party online services.
7.2. We do not have any control over the data submitted to or retrieved by the Cloud Service. You are responsible for the accuracy of all data; all output created by you relying on the data entered; and where relevant, that any data is accurate, timely and is compliant with all relevant laws and regulations, including keeping the required documentation and records needed to be kept to meet regulatory requirements in relation to the information or material lodged and any other data retention or compliance requirements.
7.3. Except as required by the Consumer Guarantees, our ability to provide access to the Cloud Services is subject to the terms and conditions of our agreements with other vendors and relies on their infrastructure and security systems and those of other third-party networks, over which we do not have any control.
7.4. You may also be able to access or interact with other services, service providers or features via the internet using third party software and/or third-party hardware or remote third party applications, such access is governed by the terms of the relevant third party’s licence.

8. Supply of Services
8.1. We will give you any codes, keys and controls to enable use of the Services.
8.2. You are solely responsible for ensuring all codes, keys and controls and any other information provided to you to access the Services are kept secure and are only used by authorised users in accordance with the terms of this Agreement;
8.3. You must provide us full and free access at all reasonable times to your Associates, Site, equipment and any other material necessary for us to perform our obligations under this Agreement.
8.4. Except for the obligation to pay, a party’s non-performance will be excused if performance is impossible or delayed due to strike, fire, flood, failure of suppliers, or any other reason where failure to perform is beyond the control and not due to the negligence of the non-performing party. If such events delay the Services, you agree to extend any time estimates in the Offer to accommodate the delay.
8.5. Any dates and times for delivery provided by us in the Offer are estimates only. Failure to meet any of these estimated dates and times will not constitute breach of this Agreement by us.
8.6. Support is available by email services at support@unifysolutions.net during standard Business Days raising a ticket in http://service.unifysolutions.net/, pursuant to the Service Level Agreement, to provide assistance and advice to you in response to request regarding the routine features, use and operation of the Solution to enable you to obtain the best possible use of the Service.

9. Payment
9.1. You must pay us the Fee and any Expenses within 14 days of us providing an invoice to you. We may charge you interest of 1.5% per month on any overdue amounts. If we use a collection agent or lawyers to assist recovering fees from you, you are liable to us for those costs and court costs on an indemnity basis.
9.2. The Fee is exclusive of GST. If GST is payable on any supply made by us under this Agreement, you must pay us an additional amount equivalent to the GST at the time that payment to us is due.
9.3. We reserve the right to increase our Fee:
a)	annually by no more than the Consumer Price Index (or equivalent) plus 5%; or
b)	by a reasonable amount necessary to cover any unforeseen significant increases in our cost of providing the Services to you or substantial changes to the Offer, by 30 days’ notice to you.
9.4. You irrevocably authorise us to set-off without notice any amount held by us against any amount owing by you to us.
9.5. If you request us to receive payment from a third-party financier, acceptance of such payment by us does not relieve you from your obligations under this Agreement. If we inform you of any third-party financiers, this does not constitute a recommendation. You must make your own arrangements to finance payment of the Fee.
9.6. You acknowledge and agree that you are liable to pay all Fees for the Initial Term, if applicable, and for any renewal terms. 
9.7. Fees are not refundable for early termination. If this Agreement or the Services are terminated prior to the completion of the Initial Term, for any reason other than our default, you remain liable for all Fees for the Initial Term.

10. Suspension of Services
10.1. In addition to clause 5.3, we may suspend the Services without prior notice if:
a)	you breach your obligations under this Agreement; or
b)	you fail to pay an invoice when it is due; or
c)	we are required by any law or Government Authority; and
d)	you acknowledge such suspension does not relieve you from performance of your obligations under this Agreement.
10.2. Except as required by the Consumer Guarantees, we are not liable for any damages, loss or liability arising directly or indirectly in connection with a suspension referred to in this clause 5.3 and this clause 10, including disruption to your business, loss of profits or loss of data. You indemnify and will keep us indemnified:
a)	from and against any claim, loss or liability (including third party claims) arising where suspension occurs;
and
b)	for all costs incurred (including administrative costs, debt recovery agency and/or solicitor fees, charges and disbursements) in recovering or attempting to recover any overdue moneys due to us from you.
 
11. Warranty
11.1. Our services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced, if the goods fail to be of acceptable quality and the failure does not amount to a major failure. In New Zealand, these guarantees cannot be modified nor excluded by any contract, except in those circumstances contemplated by section 43(2) of the New Zealand Consumer Guarantees Act.
11.2. Except as required by the Consumer Guarantees and the express warranties in this clause 11:
a)	we make no further warranties to the extent permitted by law.
b)	b) we do not warrant that the Services will meet all your requirements, or that your use will be uninterrupted or error free, or that the Services will always be available; and
c)	we do not warrant that the backup and security of the Services meets all business and professional.
d)	compliance requirements.

12. Confidentiality
12.1. The parties will:
a)	keep confidential the Confidential Information and not disclose it to any person other than their Associates on a need-to-know basis; and
b)	use the Confidential Information for the sole purpose of performing its obligations under this Agreement.
12.2. You acknowledge that we may be required to allow 3rd parties access to your data or Confidential Information, by law or Government Agency (which will be made available to them free of charge), for which we will not be liable in any way. We will give you as much notice as reasonably possible if we are required to allow such access and only give access to such information as is required.
12.3. As per the Privacy Amendment (Notifiable Data Breaches) Bill 2016, the parties agree to promptly notify the other if it appears that Confidential Information has been compromised. The parties acknowledge that breach of its obligations under this clause 12 is likely to cause damage to the other, and agree that the party not in breach will be entitled to equitable relief, including injunctive relief. An assessment into the breach must be undertaken within 30 days to ascertain what has or has not occurred, notifying the Office of the Australian Information Commissioner if there has been.

13. Intellectual Property
13.1. Ownership of all intellectual property rights in the Services and Documentation vest in us. You acknowledge that we retain all right, title and interest in the Cloud Services and Documentation.
13.2. You agree you will not:
a)	sublicense the Services, and/or sell copies of the Documentation;
b)	reverse assemble or reverse compile the Services; or
c)	do anything that would prejudice our right, title or interest in the Services and/or the Documentation.
13.3. You must not alter or remove a notice of ownership of intellectual property rights on the Documentation or Services.
13.4. You agree to assign all right, title and interest in any improvements, enhancements or modifications made by or for you to us.
13.5. You must ensure that anyone who has created any improvement, enhancement or modification to Services, irrevocably consents to us doing any act or omission that would otherwise infringe or may infringe the author’s moral rights.
13.6. We will indemnify you against a claim that the Services infringe the intellectual property rights of any third party.
13.7. Except as required by the Consumer Guarantees, we, including our Associates and related bodies corporate, have no liability for any claim of infringement referred to in clause 13.5 based on:
a)	your use of the Services in a manner inconsistent with or outside of the scope of the terms of the Licence including any unauthorised changes; or
b)	your use of the Services in combination with other software apart from the Third Party Software
13.8. If the Services is held or is believed by us to be infringing, we may, other than as required by the Consumer Guarantees: 
a)	modify the Services; or
b)	obtain for you a licence to continue using the Services.

14. Indemnity
14.1. You agree to indemnify us and our Associates against all loss, damage, claims, liabilities, costs, and expenses (Including legal fees on an indemnity basis) arising directly or indirectly from, or in respect of:
a)	any breach of this Agreement or negligence by us;
b)	any claim or demand brought by third parties;
c)	your use of the Services;
d)	remote third-party applications;
e)	any negligent, wrongful, or unlawful act or omission or breach of this Agreement by you or your Associates;
f)	any steps taken by us to exercise, enforce or preserve any of our rights under this Agreement;
g)	a new or amended legislation, a change in a ruling, guideline, directive or requirement issued by a government authority or body or any change in the interpretation of the same;
14.2. The indemnities and releases under this Agreement survive termination of this Agreement. A party may recover a payment under an indemnity under this Agreement before it makes the payment in respect of which the indemnity is given.

15. Liability
15.1. To the extent permitted by law, our aggregate liability to you or any person claiming through you, in connection with this Agreement or any service provided pursuant to it, in respect of:
a) any loss of profit or revenue, loss of business opportunities, loss of software or data, corruption of data, inability to access data, inability or delays in accessing the Services, inability to receive any electronic notifications, including access to calendars, diaries, planners or the like, or unavailability of the Services or downtime, and any indirect loss or consequential loss, including losses arising as a result of our negligence or breach of this Agreement;
is limited to:
i.	supplying the relevant services again; or
ii.	paying you the cost of supplying the relevant services again;
but in any event will not exceed the Fee paid by you under this Agreement for 1 month of Services covered by the agreement.
b)	You agree that this clause is fair and reasonable.

16. Access to premises
16.1. You warrant that your premises, and any other building we must access to provide the Services to you:
a)	is comprehensively insured including property and public liability insurance; and
b)	is safe and secure for our employees, agents and subcontractors to enter and work in.
16.2. You indemnify us and hold us harmless against any personal injury, death, loss or liability resulting from or in any way connected to a breach of your warranties under this clause 16.

17. Consulting Services
17.1. You may request the Consultancy Services at any time under this Agreement.
17.2. You agree to pay for:
a)	Consulting Services on the basis of our actual time incurred (minimum of 1 hour) based on our Price List;
and
b)	any Expenses. 
17.3. If you have requested Consulting Services and you subsequently request cancellation before those Consulting
Services are performed then:
a)	the Cancellation Fee will apply and is payable by you; and
b)	you will be liable for any non-refundable portion of Expenses suffered, sustained or incurred by us in connection with a booking which is cancelled.
17.4. You must notify us of any hardware upgrades and software platforms upon which your IT systems operate within a reasonable time of a consultant arriving to provide Consulting Services.
17.5. If you require the installation of Third Party Software and/or Hardware as part of the Consulting Services, you authorise the consultant to accept on your behalf the terms of any licence agreement with a Third Party Software and/or Hardware licensor which requires acceptance as part of the installation process. If you wish to see the terms of any Third Party Software and/or Hardware licence in advance you must notify us at least 3 business days prior to the scheduled date for installation of the applicable Third Party Software and/or Hardware.

18. Cancellation of Consulting Services
18.1. If you have requested Consulting Services and you subsequently request cancellation before those Consulting Services are performed then the Cancellation Fee is payable by you if a cancellation request is received within 3 Business Days of the scheduled date for performance of those Consulting Services unless we are able to re-deploy the consultant who has been booked to perform those Consulting Services. Further, you will be liable for any non-refundable portion (which may be a 100% in some instances) of any Expenses suffered, sustained or incurred by us in connection with a booking which is cancelled.

19. Termination of Consulting Services
19.1. If this Agreement is terminated by us in accordance with clause 3.2 of the General Terms and Conditions, and you have pre-paid any moneys for Consulting Services yet to be performed by us under this Agreement, then such moneys will be refunded to you, subject to our rights under this Agreement.

20. General
20.1. Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency or partnership.
20.2. You may not assign your rights, duties and obligations under this Agreement without our prior written consent.
20.3. We may sub-contract the performance of any part of the Services to any third party or assign this Agreement or any of our rights or obligations under this Agreement.
20.4. This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications.
20.5. The failure of either party to enforce any provisions under this Agreement will not waive the right of such party thereafter to enforce any such provisions.
20.6. All notices and consents relating to this Agreement must be in writing. Except as specified otherwise, this Agreement cannot be amended or varied except in writing and signed by the parties.
20.7. If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected.
20.8. This Agreement is governed by, and construed in accordance with the laws of Queensland, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of Queensland, Australia. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are expressly excluded from this Agreement.