These Terms and Conditions are annexed to and form part of the Agreement and govern the provision of support and maintenance services by the Licensor for all software forming part of the Licensed Material provided under the Agreement.
Where the provisions of these Terms and Conditions contradict or are inconsistent with the provisions of the Agreement, the provisions of this document shall prevail. Where a term is defined in the Agreement, that Term shall have a corresponding meaning in these terms and conditions unless a contrary intention appears on the face of these Terms and Conditions.
Fees and charges in relation to these Terms and Conditions are calculated by reference to the Agreement.
(a) During the currency of these Terms and Conditions:
(i) the Licensor will perform such services as it considers reasonable to the Customer in order to ensure the Software remains in substantial conformity with its specifications (“Support Services”); and
(ii) the Licensor will provide New Releases from time to time.
(b) Where the Licensor is providing Support Services, such support shall, at the sole option of the Licensor, take the form of:
(i) telephone advice;
(ii) email transmission correspondence;
(iii) error correction by means of Updates or New Releases; and
(iv) such services as the Licensor considers are effectively provided off-site.
(a) The Licensor will deal only and exclusively with the Customer or any of its authorised, suitably qualified or informed representatives when performing the Support and Maintenance Services.
(b) The Customer must appoint a suitably qualified or informed representative to deal with and be the first point of contact in relation to the Support Services.
The Licensor shall provide the Support Services in response to a report or request by the Customer to the Licensor:
(a) of a suspected defect or error in the Software, which defect or error allegedly causes the Software to deviate from its specifications; or
(b) for assistance or guidance from the Licensor.
Immediately after making a request for Support Services, which may involve error correction or program modification, the Customer shall give the Licensor a documented example of the defect or error which it alleges prevents conformity of the Software with its specifications. The Customer shall, if so requested by the Licensor, give the Licensor a listing of output and any other data which the Licensor requires in order to reproduce operating conditions similar to those present when any alleged defect or error in the Software was discovered.
When providing the report contemplated by clause 1.3, the Customer must designate the Priority of the issue, in its reasonable opinion.
The Priority of an issue for which the Customer requests the Licensor to provide Support and Maintenance Services must be one of the following:
Critical, which means the Software is inoperable and fails catastrophically;
High, which means a part of the Software function is unavailable, the system crashes for some end users or there is material and adverse loss of function or degraded performance for important activities but work can continue;
Medium, which means a part of the Software is not operating efficiently, and causing inconvenience but workarounds are available; and
Low, which means a training or educational issue with users generally not related to a defect in the Software.
After the Licensor receives the report contemplated by clause 1.3, the Licensor will use its best endeavours to respond to the report by the Target Response Time listed in clause 2.5, but not to provide a resolution to the issue.
After the Licensor receives the report contemplated by clause 1.3, the Licensor will use its best endeavours to provide a resolution to the issue by the Target Resolution Time listed in clause 2.5.
|Priority||Target Response Time
|Target Resolution Time
|Critical||1 hour||4 Hours|
|High||3 hours||3 days|
|Medium||1 day||10 days|
|Low||3 days||15 days|
(a) The Licensor provides no warranty that it will meet either the Target Response Time or the Target Resolution Time.
(b) The Licensor may use any method, system, process, patch, Update or New Release to resolve any issue, in its sole discretion.
The Licensor shall provide the Support Services between 0900 hours and 1700 hours on every day except Saturday, Sunday or a public holiday in the State of Queensland. The Licensor does not warrant that it will be capable of promptly receiving, processing or otherwise acting upon a request for Support Services which is made outside these hours or that it can provide on-site Support Services outside these hours.
Services to be provided by the Licensor under this Agreement do not include:
(a) correction of errors or defects caused by operation of the Software in a manner other than that currently specified by the Licensor;
(b) correction of errors resulting from data migration or transformation, whether performed by the Licensor or third parties;
(c) correction of errors or defects caused by modification, revision, variation, translation or alteration of the Software not authorised by the Licensor;
(d) correction of errors caused in whole or in part by the use of computer programs other than the Software;
(e) correction of errors caused by the failure of the Customer to provide suitably qualified and adequately trained operating and programming staff for the operation of the Software;
(f) training of operating or programming staff;
(g) rectification of operator errors;
(h) rectification of errors caused by incorrect use of the Software;
(i) rectification of errors caused by the Customer or third party equipment fault;
(j) the Customer or third party equipment maintenance;
(k) diagnosis or rectification of faults not associated with the Software;
(l) installation of the Software;
(m) third party materials;
(n) rectification of errors in the Customer’s or third party’s data;
(o) furnishing or maintenance of accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by the Licensor;
(p) correction of errors arising directly or indirectly out of the Customer’s failure to comply with this Agreement or any other agreement with the Licensor;
(q) correction of errors arising directly or indirectly out of any third party’s failure to comply with any agreement between that third party and the Licensor;
(r) correction of errors or defects which are the subject of a warranty under another agreement ; or
(s) to provide Support and Maintenance Services:
(i) “on-site”; or
(ii) to any third party, at any location.
In these Terms and Conditions, unless the context requires otherwise:
Agreement means the Software Licence Agreement whereby the Customer has obtained from the Licensor the right to use the Licensed Material to which these Terms and Conditions are attached and form part of;
Excluded Services means those services set out in clause 5;
New Release means an update to the Software which provided primarily to implement an extension, alteration, improvement or additional functionality to the Software or otherwise improve functionality or correct an error in the Software;
Priority has the meaning given by clause 0;
Software means software forming part of the Licensed Material;
Support and Maintenance Charge means the charges set out in the Agreement;
Target Resolution Time has the meaning given by clause 3.5;
Target Response Time has the meaning given by clause 3.5; and
Terms and Conditions means the terms and conditions set out in this document;
Update means software which has been produced primarily to overcome defects in the Software.
The rules of interpretation applying to the Agreement apply to these Terms and Conditions.
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