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Terms & Conditions

Hosted Software Agreement

This Agreement is made between the parties listed below on the date of signing the Order Form.  

Note: Changes to this Agreement may be made from time to time as outlined in Clause 20.  Please review the recent changes at the bottom of this page.

BETWEEN:     ASPEDIA AUSTRALIA PTY LTD (ABN 98 107553 668) of Brisbane Technology Park, Suite 1, 1 Clunies Ross Court, Eight Mile Plains, Queensland.  "Äspedia"

AND:    The person so described in the Aspedia Australia or Member Evolution Order Form (Order Form).   "Customer"

collectively known as "the parties"

RECITALS:

A.    Aspedia Australia (Aspedia) has developed software known as:

  • AspediaCRM - Customer Relationship Management System (CRM)
  • AspediaWEB - Content Management System (CMS)
  • MailServant - Bulk Email Management System
  • Member Evolution - Membership Management System (MMS)

B.    Aspedia provides the software in a Hosted Software or Software as a Service (SaaS) model and provides Configuration Services and Custom Functionality Services to modify the configuration of the software, where agreed between the parties, to meet the Customer specific requirements.
C.    Customers wishing to access the hosted version of that software configured and modified in accordance with the Specifications (Hosted Software) selects appropriate Service Level Plans and engages Aspedia to provide the Configuration Services and Custom Functionality Services in accordance with the terms specified in this Agreement.
D.    Aspedia agrees to license the Customer to remotely access and use the Hosted Software, Configuration Services and Custom Functionality Services for that software in accordance with the terms specified in this Agreement.

AGREEMENT:

This Agreement sets out the contractual relationship between Aspedia and the Customer and takes precedent over all other correspondence including but not limited to the Sales Proposal, Email Correspondence and the Customer Charter.

By signing the Order Form you agree to be bound by this Agreement. If you do not agree to this Agreement, then do not use the Hosted Software.

1. DEFINITIONS AND INTERPRETATION

1.1. In this Agreement, unless the contrary intention appears:
 
"Access Keys" means any certificates, usernames, passwords or other security mechanisms used by the Customer, or staff, contractor or clients of the Customer, to access the Hosted Software;

Add-On Modules” means any software modules which are made available to the Customer for inclusion within the Base Application of the Hosted Software;

"Agreement" means these Aspedia Hosted Software Agreement Terms and Conditions, and the Order Form;

"Application Programming Interface" (API) is specification of remote calls exposed to the API consumers that facilitate integration of new features into existing applications and interconnecting to third party software services.

Authorised User” means any person including Customer staff, clients, members, volunteers; agents, and contractors provided with a user login account which enables access to secure content in the Hosted Software;

Base Application” means the Hosted Software made available by Aspedia prior to delivery of the Configuration Services;
 
"Confidential Information" means information that by its nature is confidential, includes personal information as defined in the Privacy Act 1988 (Cth), is designated by a party as confidential, or which the recipient knows or ought to know is confidential including, which in the case of Aspedia includes information about the Hosted Software that is not publicly available, and in the case of the Customer, the Customer Materials, and Customer Data;

Commencement Date” means the date of execution of the Order Form;
 
"Commencement of Service Level Plan Fees" means that recurring charges and excess usages charges are due from:

(a)    the date expressly specified on the Order Form; or
(b)    upon the issuing of a client user name and password to allow access to either a development version, or a complete version of the Hosted Software; or
(c)    the notification by Aspedia of project completion, which means that the Configuration Services have been completed, the project is hosted on an Aspedia development or preproduction server and awaiting go live signoff by the client.

Whichever comes first from (b) or (c) will apply. In (b) and (c) above, sites may not be live to the external general public using the customers domain name, but is available for access the Customer via the internet using a specific Aspedia URL, username and password to login.

Configuration Options” means the standard set of Customer selectable options which modify the behaviour of the Hosted Software;

Configuration Plan” means the document that specifies the Configuration Options selected by the Customer to be included in the Configuration Services;

"Configuration Service" means the services including consulting, user interface design, build and testing services required to configure the Hosted Software in accordance with the Order Form, and if required, the Configuration Plan, and Change Request Form documents;

"Configuration Service Fee" means the Fees stated on the Order Form to complete the Configuration Services;

Change Request Form” means the document which specifies any change requested by the Customer to the Hosted Software after the sign-off of the Configuration Plan or Custom Functionality Specification;

Custom Functionality Services” means the services required to configure the Hosted Software in accordance with the Custom Functionality Specification and Change Request Form documents;

Custom Functionality Specification” means the document that describes any additional requested behaviour of the Hosted Software, including API integrations, which is not available in the Base Application and its Configuration Options;

Custom Functionality Fee” means the Estimated Fees stated on the Order Form, or the Fees stated in the Change Request Form or Custom Functionality Specification documents to complete the Custom Functionality Services and agreed between the parties;

"Customer Charter" means the document provided by Aspedia that details the then current project management processes which are subject to change from time to time;

"Customer Data" means the business data including member lists provided by the Customer for import into the Hosted Software or created by the Customer whilst using the Hosted Software during the Term;

"Customer Materials" means all the artwork, graphics, logos, symbols, information, documents, audio, video, client list, marketing plans, drawings and any other materials including the Customer's Confidential Information; provided by the Customer, for use in connection with the Hosted Software, or otherwise used, or incorporated by Aspedia into anything produced by Aspedia, in providing the Configuration Services. Customer Materials does not include any information, designs, software, workflows, processes, documents or ideas introduced by Aspedia for use in a project as this Intellectual Property will remain the explicit property of Aspedia.

Estimated Fees” means any fees tendered prior to the completion of consulting services for Custom Functionality Services which are subject to change upon notice to the Customer;

"Fees" means the fees and charges required to be paid by the Customer in accordance with this Agreement;

Final Statement” means the financial statement delivered by Aspedia to the Customer on Early Termination of this Agreement. The Final Statement will include all Fees due:

(a) at that time of the early termination request;
(b) with respect to Clause 14.3 of this Agreement; and
(b) from the early termination request until the end of the full Term of this Agreement.

"Force Majeure" means a circumstance beyond the reasonable control of the Parties, which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, strikes, equipment or communication failures or delays or failures in the provision of goods or services by third parties.

"Functional Specification Stage" means the period of time between the Commencement Date and the completion of the Specification.
 
"Hosted Software" means the hosted object code version of the AspediaCRM, AspediaWEB, MailServant, and Member Evolution software provided by Aspedia and includes all modifications and additions made by the Configuration Services and Custom Functionality;
 
"Intellectual Property Rights" means copyright, trademark, design, and patents whether registered or not and including any rights to register such intellectual property;
 
"Order Form" means the document included in the Customer sales proposal which describes the description of Services to be provided and the fee summary for the Hosted Software, add-on modules, Configuration Services and Service Level Plans executed by the Customer which forms part of this Agreement;

“Project Queue” means the list of projects currently in progress by Aspedia and the planned order in which they will be completed.

"Services" means all services described under this Agreement including the Configuration Services, Custom Functionality and the Service Level Plans;
 
"Service Level Plan" means the features, services, user licenses, penalties as outlined in the Service Level Plans document and selected by the Customer in the Order Form or in the Service Level Plans document.

“Service Level Plan Fees" means the monthly fees, excess usage fees and ad hoc fees charged for each Service Level Plan selected by the Customer on the Order Form;
 
"Specification" means the specifications agreed between the parties for configuring the Hosted Software and included within the Configuration Plan and Custom Functional Specification documents;
 
"Term" means the term of the Agreement as specified in clause 2. 1.;

“Unsupported Browser Software” means any out of date and unsupported versions of browser software as determined solely by Aspedia;
 
1.2. In this Agreement, unless the contrary intention appears:

(a) the clause headings are for ease of reference only and shall not be relevant to interpretation;
(b) a reference to a clause number is a reference to all its subclauses;
(c) words in the singular number include the plural and vice versa;
(d) a reference to a person includes bodies corporate and unincorporated associations and partnerships;
(e) a reference to a clause is a reference to a clause of this Agreement;
(f) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(g) the recitals to this Agreement do not form part of the Agreement;
(h) monetary references are references to Australian currency.

2. TERM OF AGREEMENT

2.1. This Agreement commences upon the Commencement Date and will continue until the expiration of the Term expressly stated on the Order Form by the Customer unless otherwise terminated in accordance with Clause 14.2.

2.2. Customer selects its initial Term on the Order Form which may be between twelve (12) and sixty (60) months or other mutually agreed period as stated on the Order Form. Once that Term expires, it will automatically renew for successive Terms of the same period unless Aspedia and the Customer otherwise agree, or the Customer or Aspedia notifies the other of non-renewal at least thirty (30) business days prior to the upcoming expiration date.

3. RIGHTS OF USE AND ACCESS

3.1. Aspedia grants the Customer a non-transferable, non-exclusive license to use and access the Hosted Software during the Term.
 
3.2. The Customer must only access the Hosted Software through the login mechanism provided by the Hosted Software or using the Access Keys provided by Aspedia.
 
3.3. The Customer is responsible for obtaining and maintaining, at its own expense, all infrastructure required to access and use the Hosted Software, including but not limited to computers, internet browser software, communications routers, communication links, and network hardware. Aspedia may provide advice when requested in relation to the minimum required specification of such infrastructure to enable the reasonable performance of the Hosted Software by the Customer.

3.4 Aspedia will not be held accountable for any functionality or user interface issues where the Customer is using Unsupported Browser Software.

3.5. Should Aspedia be contacted by anyone other than the Customer directly, regarding modifications to the Hosted Software, the customer's delegated contact person, must confirm in writing that Aspedia has the authority to work with that person, and in what capacity prior to any Configuration Services being carried out.

3.6. The Customer must not use the Hosted Software in an unlawful manner; or use it to send or distribute any messages, materials or content that may be considered to be unlawful.

3.7. Aspedia takes a zero tolerance approach to the sending of unsolicited commercial email or unsolicited commercial SMS (known as UCE or UCS respectively or SPAM collectively) over our network. This means that customers may not use, or permit their staff, agents or contractors to use the Hosted Software to transact in SPAM. If a customer is found to be in violation of this policy, we may, at our sole discretion, restrict, suspend or terminate your account. Aspedia reserves the right to charge a fee for violation of this policy which is called a “SPAM Administrative Fee”. Should Aspedia determine, at our sole discretion, that you have failed to comply with this policy, we reserve the right to charge a $250 “SPAM Administrative Fee” on the first occasion and any further violation may result in an additional $500 fee per violation.

3.8. The Hosted Software may contain or be provided with components subject to the terms and conditions of "open source" software licenses ("Open Source Software"). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including any provisions governing access to source code, modification or reverse engineering.

3.9. The Hosted Software has license protection mechanisms designed to manage and protect the intellectual property rights of Aspedia and its suppliers' and licensors'.  A customer must not modify or alter these mechanisms or try to circumvent them or the usage rules they are designed to enforce.

3.10. Unless otherwise approved by Aspedia in writing with you, you must not, either directly or indirectly, automatically or manually, install and/or run, or authorise any third party to install and/or run, any monitoring or like service that may cause an adverse effect on the performance of any software hosted by Aspedia.  Due to the adverse impact such services can have on the hosting performance, Aspedia reserves the right to block, by any means necessary, any such service.  Aspedia will not be liable to you, in any respect, for the consequences of blocking such service including any restriction on the use of the hosted software.   As unapproved monitoring services may have an impact on all customers of Aspedia, a breach of this requirement is a breach of your terms and conditions with Aspedia. 

4. RISK

4.1. The Customer acknowledges that it is responsible for determining the suitability of Hosted Software for its purpose.

4.2. Aspedia does not make any representations or warrant that the Hosted Software will meet the particular needs of the Customer.

5. DATA STORAGE

Aspedia will use all commercially reasonable endeavors to ensure that the Customer Materials, and Customer Data as hosted by Aspedia, are protected from unauthorised access during the Term of this Agreement, the Customer acknowledges that:

(a)     Aspedia is not obliged to maintain backup copies of the Customer Materials and Customer Data other than for their explicit use during disaster recovery processes during the Term of this Agreement; and

(b)     Aspedia, to the extent permitted by law, will not be liable (whether in contract, tort including negligence, statute or otherwise) for any unauthorised access, misuse, corruption or loss of any of the Customer Materials or Customer Data.

6. CONFIGURATION SERVICES

6.1. Aspedia will carry out Configuration Services for the Fees stated in the Order Form as agreed between the parties.
 
6.2. Configuration Services will be carried out as described in the Customer Charter provided to the Customer with all due skill and care and in a professional and competent manner.

7. CUSTOMER MATERIALS

7.1. Where Aspedia is providing Configuration Services, the Customer will deliver, or make available to Aspedia, the Customer Materials required to for Aspedia to fulfill its obligations under this Agreement, in a timely manner and in any event, in a manner that ensures that Aspedia shall have the necessary time to meet any project or other time schedules agreed between the parties.
 
7.2. The Customer grants a revocable, non-transferable, personal, royalty free license to Aspedia to use and reproduce the Customer Materials for the sole purpose of providing the Hosted Software, Configuration Services and Custom Functionality contemplated by this Agreement.
 
7.3. The Customer warrants that the use and reproduction of the Customer Materials by the parties as contemplated by this Agreement will not infringe the intellectual property rights of any third party.

8. PROTECTION OF ACCESS KEYS

8.1. The Customer is responsible for maintaining the confidentiality of the Access Keys for all access and use of the Customer's account whether or not authorised by the Customer.
 
8.2. The Customer must take all reasonable security measures to ensure that the Access Keys are not disclosed to any person, other than to those Customer employees, agents or contractors designated by the Customer to use such Access Keys.

9. FEES and PAYMENT

9.1. Customer will pay the Fees to Aspedia as specified in the Order Form within 7 days of invoice (Payment Term) unless otherwise specified in the Order Form or on the invoice.

9.2. The Fees specified in the Order Form are exclusive of GST, unless it specifically states they are GST Inclusive.
 
9.3 Fees are payable directly to Aspedia as described in Clause 9 (Fees and Payment) unless the Customer ordered the Hosted Software from an Aspedia or Member Evolution authorised reseller (referred to as "Aspedia Expert” or “Member Evolution Expert” respectively" or “Reseller” collectively). If the Customer ordered from a Reseller, then the Clauses of this Agreement referring to orders with Aspedia or payments to Aspedia do not apply for those Hosted Services. Instead, the Customer agrees to pay the Reseller the fees separately agreed with the Reseller. No Reseller may change the terms of this Agreement but they may impose additional restrictions on the use of the Hosted Software. No promises, warranties or agreements by Resellers are binding on Aspedia.

9.4. Access to the Hosted Software will not be provided to the Customer unless any outstanding Fees have been paid in full and the Configuration Services are complete. Aspedia agrees not to withhold the Customer's Hosted Software access unreasonably.
 
9.5. The Customer will be liable for any GST payable on a taxable supply made by Aspedia (as that term is defined in A New Tax System (Goods and Services Tax) Act 1999). The Customer will pay such GST at the same time it pays the Fee for such taxable supply.
 
9.6. Payment Milestones for Configuration Services are detailed on the Order Form. If this is not included in your Order Form there are three (3) default Milestones that apply as follows:

(a) Order Form Execution - 40% of the Base Application Fee and any Configuration Service Fee;
(b) Design Completion - 30% of the Base Application Fee and any Configuration Service Fee; and
(c) Development Completion - 30% of the Base Application Fee and any Configuration Service Fee.

9.7. Customer must make payment for the Base Application and Configuration Services using one of the below methods. The related surcharge may be added at the sole discretion of Aspedia.

(a)     Visa and MasterCard credit cards with a surcharge of 1.75%;
(b)     American Express is no longer accepted;
(c)     Company Cheque made out to Aspedia Australia Pty Ltd with a surcharge of $25.00 or 2.5% whichever is the great amount; or
(d)     Direct Deposit to BSB: 014 240 and Account No: 498 960 892.

9.8. Customer must make payment for Service Level Plan Fees through either an automated Credit Card or Direct Debit process. Any other payment method must either be stated on the Order Form or agreed in writing between the parties. The related surcharge may be added at the sole discretion of Aspedia.

(a)     Visa and MasterCard credit cards using a prearranged automated transaction schedule and incur a surcharge of 1.75%;
(b)     American Express is no longer an accepted form of payment;
(c)     Direct Debit through a processing agent of Aspedia’s choice using a prearranged automated transaction schedule and no surcharges apply; or
(c)     Cheque payments are generally not accepted unless otherwise agreed, and if agreed, incur an additional processing fee up to $25 per transaction for administrative costs incurred in cheque processing and manual handling.

9.9. Should a payment be declined at the time of processing, further attempts to process the transaction will be made by Aspedia. Should your payment continue to be declined, Aspedia will contact you in relation to payment processing and a $30.00 ex GST administrative processing fee may be charged in addition to any default fees incurred by the third party payment provider.

9.10. Customer must ensure all Fees are paid in accordance with the Payment Term unless alternate payment arrangements have been previously agreed in writing between the parties.  Should the Customer not pay the Fees within the Payment Term Aspedia reserves the right to remove all access to the Hosted Software until the outstanding Fees have been receipted by Aspedia.

9.11. With recurring services that are invoiced on a usage basis e.g. email newsletters, these costs will be calculated in arrears at the commencement of the following month of usage and are subject to the usual 7 day payment terms.

9.12. Where a payment default occurs prior to completion of the Configuration Services, Aspedia reserves the right to place the project on hold removing it from the Project Queue. When full payment has been received by Aspedia, the project will re-enter the project queue behind any other projects which are currently in progress or have a project start date allocated.

9.13. Should the Customer require access to the Hosted Software be reinstated after a late payment has been made then a reconnection fee of up to $500.00 ex GST may be charged at the sole discretion of Aspedia.

9.14. Aspedia does not have a returns policy and all products are non-refundable as they are predominantly service related products, and not goods. Should there be a dispute in relation to delivery of services, Aspedia provides warranty on its products as stated in clause 29. Should any warranty issues be disputed refer to Clause 18.

9.15. Delivery of services are set at the commencement of a project between the customer and their project manager. Timely completion of projects largely depends on the customer providing prompt information and advice to allow completion of a project by the due date. Should the customer hold the project up by not delivering information in a timely manner, the project will be placed on hold and put back into the development queue upon receipt of the information. In this case, new timeframes will then be renegotiated with the client. Aspedia agrees to keep the Customer informed of deadlines.

9.16. Should a payment dispute arise, the customer should contact accounts@aspedia.net immediately and they will respond to the dispute within 3-5 working days.

9.17 Aspedia reserves the right to increase monthly SLA fees each year by the CPI or 5% whichever is the greater.

10. INTELLECTUAL PROPERTY

10.1. Subject to the rights of third parties, the Customer acknowledges that Aspedia owns all intellectual property rights in the Hosted Software, and that except as expressly specified in this Agreement, the Customer has no license or rights to access or use the Hosted Software.
 
10.2. Except to the extent permitted by an applicable law that cannot be excluded by Agreement, the Customer is not permitted to reproduce, distribute, sub-license, transmit, reverse engineer or decompile the Hosted Software.
 
10.3. Aspedia acknowledges that the Customer and its licensors own all intellectual property rights in the Customer Materials and Customer Data and except as expressly specified in this Agreement, Aspedia has no license or rights to the Customer Materials and Customer Data.
 
10.4. Subject to clause 10.3, all intellectual property rights in anything produced by Aspedia in carrying out the Configuration Services will remain the property of Aspedia in respect of those Configuration Services and the Hosted Software, including all work detailed by the Custom Functionality Specification.
 
10.5. The Customer grants Aspedia a revocable, royalty-free and non-exclusive license to reproduce the Customer's trademark, business name and other mark or logo which designates the Customer's business, for the purposes of indicating the Customer as a current or past client of Aspedia.

11. CONFIDENTIAL INFORMATION

11.1. Subject to clause 11.3, the parties:

(a)    will not disclose to a third party or use the other party's Confidential Information, without the prior written consent of the other party; and
(b)    will take all reasonable steps to ensure that their respective employees, agents and contractors do not use or disclose to a third party such information.

11.2. A party's obligations of confidence under clause 11.3 does not extend to information which:

(a)     becomes public knowledge through no fault of that party;
(b)     is already in that party's possession prior to disclosure by the other party of that information;
(c)     is independently developed by the party without the use of Confidential Information;
(d)     is received by that party from a third party who had a right to disclose such information; or
(e)     the party is legally compelled to disclose.

11.3. Aspedia may:

(a)     share Confidential Information on a confidential basis with IT, financial and legal service providers engaged by Aspedia on a need to know basis to the extent reasonably necessary in order for those services providers to provide services to Aspedia; and

(b)     disclose that you are a customer of Aspedia for marketing and advertising purposes subject to the licence right.

12. COOPERATION

12.1. The parties will promptly sign all documents and do all things necessary to give effect to the terms of this Agreement.
 
12.2. The Customer will provide all reasonable assistance and cooperation required by Aspedia in order for Aspedia to perform its obligations under this Agreement.

13. SUSPENSION AND TERMINATION

13.1. Aspedia may suspend access to the Hosted Software or terminate this Agreement and cease providing access to the Hosted Software to the Customer immediately:

(a)     Subject to clause 13.1(b) and clause 13.1(c), if the Customer breaches any term of this agreement and (if capable of remedy) fails to remedy that breach within seven (7) days of receipt of a notice from Aspedia requiring the Customer to remedy the breach;

(b)     Where there has been unauthorized or unlawful access or use by any party (including third parties), physical misuse, damage or destruction of the Hosted Software by any third party;

(c)     If the Customer breaches clause 3.7, clause 3.9, clause 8, clause 10.2 and/or clause 11.

13.2Should Aspedia terminate the Customer’s access to the Hosted Software for cause under the Agreement, the Customer shall not be entitled to any refund for any remaining period under the Customer’s account.

13.3Aspedia may, as an alternative to termination, suspend Customer access to the Hosted Software until the relevant breach has been rectified.

13.4Aspedia may in addition to its rights under this Agreement, terminate this Agreement if access to the Hosted Software has been suspended by Aspedia pursuant to the terms of this Agreement and remains suspended for a period in excess of sixty (60) days.

13.5 Aspedia will act reasonably in any suspension of the Hosted Services or termination of the Agreement under the provisions of this Clause 13. Aspedia will, subject to clause 13.4, reinstate access to the Hosted Software once the reason for suspension has been rectified or remedied.

14. CONSEQUENCES OF TERMINATION

14.1. Upon Termination Customer must immediately return to Aspedia, all Confidential Information and other materials owned by Aspedia (including any copies), or where such materials are stored electronically on the Customer’s equipment, erase such materials.

14.2 Early Termination of Contract

14.2.1. Customer may request the early termination of this Agreement by requesting in writing an early termination date which the Customer must provide a minimum of 90 day advanced notice to Aspedia.

14.2.2. On receiving an early termination notice from the Customer, Aspedia will schedule the automated removal of all access to the Hosted Software from the early termination date and provide the Final Statement.

14.2.3. Either Aspedia or the Customer may terminate this Agreement without any further cost or penalty, or incur any further liability under clause 14.2.3 prior to completion of the Functional Specification Stage of the project and the Customer signing the Configuration Plan and/or Custom Functionality Specification documents. For clarity, the Customer will not incur any costs or charges other than the Stage 1 payment milestone paid (or payable) to Aspedia on Order Form execution, and Aspedia will not be required to complete the Functional Specification Stage of the project and/or hand over either the Configuration Plan and/or Custom Functionality Specification documents.

14.2.4  After completion of the Functional Specification Stage of the project the Customer commits to pay in full the Fees included in the Final Statement within 7 days of its receipt.

14.3 Copy of Website Content

14.3.1. Customer may request at any time of issuing the early termination notice, that Aspedia makes available an unencrypted copy of the Customer website including Customer Materials, Customer Data, MySQL Database and the open source Drupal code base.

14.3.2. Aspedia reserves the right to remove all Aspedia intellectual property including but not limited to software source code from this copy.
 
14.3.3. Customer will be charged five (5) hours labour at the then standard Aspedia hourly rate for the provision of this website copy service.

14.3.4. Aspedia is not required to make this copy available to the client until payment has been received for the Final Statement.

14.3.5. On receipt of payment for the Final Statement, Aspedia will make available to the Customer a link to download the customer website.

14.3.6 Customer’s website copy is provided "AS IS", without any Aspedia intellectual property or warranty of any kind, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. The entire risk as to the quality and performance of the software is borne by the Customer, and should the software prove defective, the Customer, and not Aspedia assumes the entire cost of any service and repair. This disclaimer of warranty constitutes an essential part of the agreement.

15. IMPLIED TERMS

15.1. To the extent permitted by law, all conditions or warranties, which would otherwise be implied, are hereby excluded.
 
15.2. Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement.

16. LIMITATION OF LIABILITY

16.1. Aspedia's liability in respect of this Agreement, including any goods or services provided pursuant to this Agreement, to the extent it is not capable of being lawfully excluded as specified in this Agreement, is limited to:

(a)     where the liability arises from defective goods or services provided by Aspedia or its contractors, or a failure by Aspedia to provide goods or services in accordance with this Agreement, the re-supply or rectification of the defective or non-complying goods or services; or
(b)     in all other cases, the Fees paid by the Customer under this Agreement.

16.2. In no event will Aspedia be liable (whether in contract, tort including negligence, statute or otherwise) for any indirect, consequential, special or punitive damages, or for any third party claims, loss of data, loss of time, loss of profits, loss of savings, loss of contracts, loss of revenue, loss of interest or loss of goodwill, which may be suffered or incurred by the Customer arising in any way from the use of the Hosted Software or any associated good or services provided by Aspedia pursuant to this Agreement or otherwise resulting from any act or omission of Aspedia.

17. INDEMNIFICATION

17.1. You shall indemnify and hold Aspedia and our licensors and suppliers, and our and their subsidiaries, affiliates, related entities, officers, directors, shareholders, agents, co-branders or other partners, employees, successors and assignees harmless from any liability, cost, expense, loss, claim or demand, including reasonable lawyers' fees, made by any third party due to or arising from

17.1.1.      the Customer's use of the Hosted Software (unless the Damages have arisen as a result of a third person claiming that the Hosted Software infringes that person's intellectual property rights); a breach by you of this Agreement;
17.1.2.     the Customer Materials in any way whatsoever, including any costs of liability incurred as a result of any claims, proceedings or demands made or brought against Aspedia by any client of the Customer.

17.2. Aspedia indemnifies the Customer for any costs (including solicitor and own client costs), expenses and liability incurred under any final judgment in proceedings brought by a third party against the Customer which determine that the Customer's use of the Hosted Software in accordance with this Agreement constitutes an infringement of that third party's intellectual property rights.

18. DISPUTES

18.1. In the event of any dispute arising between the parties in relation to this Agreement ("Dispute"), no party may commence any proceedings relating to the Dispute (except where the party seeks urgent interlocutory relief) unless the parties have first made genuine efforts to resolve the Dispute in accordance with this clause.
 
18.2. A party will give the other a notice of Dispute in connection with this Agreement. A representative from each party, with unfettered authority to resolve the Dispute, must use all reasonable endeavors to resolve the Dispute within 10 days of a notice of Dispute being received.
 
18.3. If the representatives are unable to resolve the Dispute within 10 days, the Dispute will be referred for mediation in Brisbane, Queensland with a mediator approved by the Australian Commercial Disputes Centre, or its successor. The mediation will be governed by the rules and guidelines agreed by the parties or failing Agreement, the rules and guidelines set by the mediator (whether or not in conjunction with both parties).

18.4 Notwithstanding any other provision of this Agreement and for the avoidance of any doubt, both parties must continue to perform their respective obligations to the other party during the dispute resolution process as outlined in this Clause 18.

19. FORCE MAJEURE

19.1. Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement (other than payment obligations) if such delay is due to Force Majeure.
 
19.2. If a delay or failure of a party to perform its obligations is due to Force Majeure exceeds 14 days, either party may immediately terminate the Agreement on providing notice in writing to the other party.

20. VARIATION

From time to time, subject to Aspedia providing the Customer 28 days notice on the website, Aspedia may (acting reasonably) modify this Agreement, including any referenced policies, fees, and other documents. Any modified version will be effective at the time it is posted. To keep abreast of your license rights and relevant restrictions, please bookmark this Agreement and read it periodically.

By continuing to use the Hosted Software after any modification, you agree to all of the modifications.

21. ASSIGNMENT

This Agreement may not be assigned by the Customer without Aspedia's prior written consent. However, in the event of a sale or transfer of the Customer's business to a third party, Aspedia will not unreasonably withhold consent provided the Customer supplies Aspedia with any information about the proposed assignee reasonably requested by Aspedia.

22. WAIVER

22.1. No right under this Agreement shall be deemed to be waived except by notice in writing signed by the party waiving the right.
 
22.2. A waiver by Aspedia will not prejudice Aspedia's rights in respect of any subsequent breach of the Agreement by the Customer. Any failure by Aspedia to enforce its rights under this Agreement, or any delay or indulgence granted by Aspedia to the Customer, will not be construed as a waiver of Aspedia's rights.

23. CONTINUATION

Those terms of this Agreement which will survive termination, including without limitation clauses 10, 11, 16 and 17.

24. SEVERABILITY

If any term, or part of a term, of this Agreement, is determined by a court to be invalid, unlawful or unenforceable, the Agreement shall remain in full force apart from such term or part, which shall be deemed deleted.

25. NOTICES

25.1. Notices under this Agreement may be delivered by hand, by mail, by facsimile, or by email to:

25.1.1. Customer using the contact details provided in the Order Form or using such other contact details as notified to Aspedia in accordance with this clause from time to time.

25.1.2.  Aspedia at:

Office Address: 1/1 Clunies Ross Court, Eight Mile Plains, Qld Australia
Postal Address: P.O. Box 4826, Eight Mile Plains  Qld  4113 Australia
Fax number: +61 7 3243 0009
Email: notices@aspedia.net
or using such other contact details as notified to the other party in accordance with this clause from time to time.

25.2. Notices will be deemed to be given:

25.2.1.     in the case of hand delivery upon receipt by an officer or authorised representative of the receiving party;
25.2.2.     in the case of posting, 2 business days after dispatch;
25.2.3.     in the case of facsimile, upon successful completion of transmission received on a business day at the recipient during business hours, or otherwise at the commencement of the next business day; and
25.2.4.     in the case of email, upon successful receipt of the email of the recipient's mail server on the business day or the recipient during business hours, or otherwise at the commencement of the recipient's next business day.

26. ENTIRE AGREEMENT

This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, Agreements, statement, and understandings, either verbal or in writing.

27. COUNTERPARTS

This Agreement may be executed in counterparts by the respective parties, each of which when so executed shall be deemed to be an original and all which taken together with constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged (which may include a facsimile copy of the Agreement in counterparts).

28. JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of  Queensland and the parties agree, subject to this Agreement that the Courts of that State or Territory shall have jurisdiction to entertain any action in respect of, or arising out of, this Agreement.

29. WARRANTY

29.1 Aspedia warrants the Hosted Software for the Term of this Agreement will comply with the Specification except as detailed in Clause 30. If you identify a problem where the software is not functional as documented in your original Configuration Plan or Custom Functionality Specification we will resolve the issue absolutely free of charge regardless of the time it takes us to complete the repair.

29.2 The warranty excludes any custom development activities as documented in the Custom Functionality Specification or as advised by our Staff.

29.3 This warranty excludes errors related to external software products, and their API integrations, that impact the site and Unsupported Browser Software as they are outside the direct control of Aspedia.
 
29.4 This warranty also excludes errors that are user related. We ask that if you are unsure of how to make changes on the Hosted Software that you contact us for support so that we can assist you to undertake the changes correctly or alternatively undertake the changes on your behalf at the then standard hourly rates.

29.5 As at the date of the Agreement, the Hosted Software is controlled and operated by Aspedia from facilities in Australia. 
 
29.6 Aspedia makes no representations as to the suitability of the Hosted Software and its use by the Customer, no matter the jurisdiction.  It is the Customer’s responsibility to determine whether the Customer’s use of the Hosted Software complies with its local laws and regulations, the terms of this Agreement and any Australian law or regulation relevant to the Customer’s use of the Hosted Software.
 
29.7 Aspedia may during the Term of this Agreement, where it is commercial to do so, establish facilities in regions outside Australia in which to control and operate the Hosted Software.  Where Aspedia establishes such facilities in your jurisdiction, Aspedia will notify the Customer prior to such changes being implemented and use reasonable endeavors to control and operate the Hosted Software in your jurisdiction.

29.8 Aspedia warrants:

(a)     it will perform all Services described under this Agreement using appropriately qualified personnel;
(b)     it will perform its obligations under this Agreement in accordance with the Customer chosen Service Level Plans;
(c)     it has the necessary skills, experience, and expertise to perform the Services described in this Agreement;
(d)     that it has the right to grant the license to use the Hosted Software; and
(e)     no further authorisations or consents are necessary for Aspedia to enter into this Agreement and grant the licence set out in this Agreement.

Please review our Support Time frames here

29.8  Should upgrades to browsers or other external services such as Google Maps occur, we will notify you of any identified issues and our plan to resolve these, including any fees payable. We will then upgrade the core Member Evolution system and invoice each customer for the upgrade cost with their next Monthly Service Level Plan Fee. 
 
29.9  Should a fix be required for add on modules outside of the core Member Evolution Solution, then a fee of $199 may be charged.  If you have a SLP for the integrated product then the associated fix will be undertaken at no cost.

30. THIRD PARTY SITE UPDATES

30.1 Aspedia has agreed to license the Customer to remotely access and use the Hosted Software and provide associated services for that software under the terms of this Agreement.

30.2 If the Customer allows access to the Hosted Software by their staff, contractors, agents or any third party for the purpose to modify the configuration of the Hosted Software in any way or upload any software, subject to any applicable law which cannot be excluded, Aspedia makes no warranties or representations regarding the quality, accuracy, merchantability or fitness for purpose of the goods or services available from a third party. Your obtaining of goods or services from these persons is at your own risk. You indemnify Aspedia against all liability, loss, damage, cost and expense arising from or relating to your obtaining goods or services from a third party.

30.3 To the extent permitted by law, Aspedia accepts no liability in respect of such third party access described in Clause 30.2 to the Hosted Software and Aspedia provides no further warranty to the Hosted Software.
 
30.4 While we accept no liability, Aspedia will continue to provide support, at our discretion, and this work will be charged at the then standard hourly rate. Should Aspedia be required to undertake any corrections, fixes, updates to the Hosted Software after work has been performed by a third party, the then standard hourly fee will apply for all the time taken to review, plan and complete these corrections, fixes, updates.

Recent Updated to the Hosted Software Agreement

The below changes were made to the agreement on the 30/03/2017.  

  • Customer Materials Definition was amended to remove the word 'directly' from 'provided directly by the Customer'.
  • Clause 13.5 was modified and 'or termination of the Agreement under the provisions of this Clause 13' was inserted.
  • Clause 29.6 was modified and 'notify the Customer prior to such changes being implemented and' was inserted
  • Clause 18.4 was added.

The below changes were made to the agreement on the 14/09/2016.  

  • Clause 29.4 was replaced with new Clause 29.4, 29.5, and 29.6 to address client responsibilities across different global jurisdictions.  This is to address requirements of new clients outside of Australia.

The below changes were made to the agreement on the 02/08/2016.  

  • Functional Specification Stage reference has been added.
  • Clause 2.2 has been modified to allow a Customer and Aspedia to agree to a different renewal term to the original agreed Term.
  • Clause 9.4 changed so Aspedia can not withhold the Customer's Hosted Software unreasonably should a download be requested under Clause 9.
  • Clause 10.2 has been amended to remove the words  "give access to".
  • Clause 13 has been updated to provide better clarity between suspension and termination of services.  This now allows for Aspedia to suspend access to the Hosted Software for a Customer when required to protect the integrity of the system for all other clients but only for situations that are critical in nature.>