This is an agreement between Fusion Software Development Pty Ltd and a Customer subscribed to our services. It describes the services we provide to our customers, and other aspects of our business relationship. By using the subscription service, customer is agreeing to these general terms and conditions.
1. Supply of Service
1.1 Delivery of Software and Documentation
- Subject to the Customer complying with the Customer’s obligations under this agreement, Fusion will:
- If the Order Form states that the Customer has selected the "the Customer Self Hosting" option, provide the Customer with an object code version of the Software suitable for installation on a Customer’s Computer Systems; or
- Provide the Customer with access to the Software on a Fusion server.
- Fusion will also provide the Customer with user documentation in relation to the Software, containing information relating to the features and functionality of the software and a guide to installing and operating it.
1.2 Configuration of Software
If the Order Form states that Fusion is providing "Configuration Services", then:
- The Customer will provide Fusion with such access to each Site and the computer systems located at each Site as reasonably required by Fusion to perform the Configuration Services under this Agreement;
- Fusion will ensure that its personnel attend reasonable site induction and training provided by The Customer, prior to performing work on the Site;
- The Customer will ensure the Site is safe and complies with applicable laws, including laws with respect to health, safety and the environment;
- The Customer must provide the CSI. The CSI must comply with any specifications specified in the Order Form and be provided at the times specified in the Order Form, or as otherwise reasonably required by Fusion. If Fusion supplies the CSI, the CSI shall remain the property of Fusion and the Customer may use the CSI for the purpose of any rights conferred on the Customer by this Agreement;
- Fusion will implement the Software at each Site in accordance with the Customer Specifications (including by configuring the Software and making any alterations to the Software needed to make it comply with the Customer’s Specifications). The Customer will give Fusion reasonable assistance, including providing personnel and facilities, as Fusion reasonably considers necessary to ensure satisfactory implementation of the Software; and
- Fusion will test and commission the Software and provide the Customer with test results and a commissioning report to confirm that the Software operates substantially in accordance with the Customer’s Specifications.
If the Order Form states that Fusion is providing "Training Services", Fusion will provide training to the Customer’s personnel on how to use the Software as specified in the Order Form. Fusion will provide additional training requested by the Customer for an Additional Charge. Unless otherwise agreed, the Customer will provide the training venue and facilities. Training will be provided at times determined by Fusion in consultation with the Customer.
2.1 Scope of Licence
Upon the execution of the Order Form, Fusion grants to the Customer a non-transferable, non exclusive, revocable licence during the Term to:
- Use the Software for the Customer’s own internal business operations;
- Use the Documentation solely for supporting the Customer's use and configuration of the Software; and
- If the Order Form states that the Customer has selected the "the Customer Self Hosting" option:
- Install the Software; and
- Make a reasonable number of copies of the Software for backup and disaster recovery purposes,
Consistently with any use limitations specified or referenced in this Agreement including without limitation, those referred to in clause 2.2.
2.2 Licence Restrictions
The Customer must not:
- Use, operate, copy, distribute, sell, sublicense, rent or modify the Products except as expressly permitted by this Agreement;
- Reverse engineer, decompile, disassemble or otherwise create or attempt to create the source code of the Software;
- Operate or sublicense the Software for the benefit of a third party, including as a service bureau, time share facility, outsourcing or otherwise;
- Remove, alter or add to any copyright notice or similar marking on the Products;
- Use the Software outside of the Territory;
- Allow more than the number of users designated in the Order Form (or such additional number as agreed with Fusion in writing from time to time) to use the Software at the applicable Site designated in the Order Form; or
- Use the Software at or in respect of any sites not designated in the Order Form (or otherwise agreed in writing with Fusion from time to time).
2.3 Device Licences
Fusion may from time to time make additional software available to the Customer to enable use of the Software from specific devices, such as tablets or mobile phones. The terms of such licences will be published separately through the online store or platform through which they are made available for download. Nothing in those licence terms expands in any way the rights of the Customer under this Agreement.
3. Software Support
3.1 Service Desk
Fusion will provide the Customer with Software Support in accordance with Fusion’s Services Policy which may be amended or updated from time to time at Fusion’s sole discretion.
- Fusion will endeavour to correct Defects in the Software which are reported by the Customer and which cause the Software to malfunction. Where the Order Form states that the Customer has selected the "the Customer Self Hosting" option, Defect correction may, at Fusion's option, be provided remotely or by on Site attendance.
- Immediately after reporting a Defect, the Customer will give Fusion a documented example of the Defect and, if requested by Fusion, give Fusion a listing of output and any other data which Fusion requires in order to reproduce operating conditions similar to those present when the Defect was discovered.
- Fusion will endeavour to respond to and resolve Software Defects in accordance with the service levels specified in Attachment 1 and the terms and conditions in Attachment 1 will apply.
- If the Customer reports a Defect and it is determined, after investigation, that there is no Defect, or the Defect is caused by a matter which is excluded under clause 3.2, then the Customer will pay an Additional Charge for time and expense incurred by Fusion investigating the Defect.
- Where the Order Form states that the Customer has selected the "the Customer Self Hosting" option, the Customer will ensure Fusion is provided unlimited remote access to any Software installed on the Customer’s Computer Systems for the provision of Software Support.
Software Support does not include any of the following:
- Correction of Defects caused by operation of the Software other than in accordance with the Specifications or otherwise than in accordance with the directions or recommendations of Fusion;
- Correction of Defects caused by any configuration, modification, revision, variation, translation or alteration of the Software not authorised by Fusion;
- Correction of Defects caused by telecommunications links provided by third parties;
- Correction of Defects caused by the use of the Software by a person not authorised by Fusion;
- Correction of Defects caused in whole or in part by the use of computer programs other than the Software;
- Correction of Defects caused by the failure of the Customer to provide suitably qualified and adequately trained operating and programming staff for the operation of the Software;
- Correction of Defects or the provision of updates and new releases for components of the Software identified as third party components;
- Training of operating or programming staff;
- Rectification of operator errors;
- software configuration changes (other than as required to remedy a Defect);
- rectification of Defects caused by an equipment fault; and
- Diagnosis or rectification of faults not associated with the Software.
If the Customer requests in writing, Fusion may provide, in its absolute sole discretion, any of the services described in this clause and the Customer will pay an Additional Charge for those services.
3.3 Updates and new releases
- If the Order Form states that the Customer has selected the "the Customer Self Hosting" option, then Fusion will provide Updates to the Customer in a form suitable for installation on the Customer’s Computer Systems. Otherwise, Fusion will apply Updates to the Software as installed on Fusion's server. The Customer warrants that the Customer will promptly and without delay install any and all updates on the Customer’s Computer Systems.
- If the Order Form states that the Customer has selected the "Customer Self Hosting" option and the Customer refuses to install an Update, Fusion will not be responsible for any Defect or failure of the Software to comply with any requirements of this Agreement (including Service Levels) to the extent it would have been rectified by the Customer installing or applying that Update.
- Where The Customer accepts an update or new release, this Agreement applies in all respects to that update or new release to the extent that it is incorporated into or replaces the Software.
Unless the Order Form states that the Customer has selected the " Customer Self Hosting" option, Fusion will provide the Customer with 24 hours/7 days per week access to the Software on a server hosted by Fusion, by making an instance of the Software hosted on that server accessible by the Customer through a web browser at an IP address notified by Fusion to the Customer.
If the Order Form states that Fusion is supplying Hardware, then:,
- Fusion may make partial deliveries of the Hardware;
- Fusion may substitute the Hardware or any component or part of the Hardware prior to delivery and may in any other respect modify the Hardware if, in the reasonable opinion of Fusion, the substitution or modification:
- Will not adversely affect the performance or capacity of the Hardware.
- Legal and equitable title in the Hardware will not pass to the Customer until the Customer has paid the purchase price for the Hardware in full. Until then, the Customer acknowledges and agrees that:
- The Hardware (once delivered) is held by the Customer as bailee for Fusion and will remain owned by Fusion until such time as Fusion is paid in full for the Hardware. Fusion may do anything reasonably necessary to register any interest in the Hardware which arises under any applicable laws by virtue of the bailment of the Hardware or which is necessary to perfect that interest under applicable laws, and the Customer agrees to do all things reasonably necessary to assist Fusion to take such steps and to pay all applicable registration fees;
- The Customer will, if reasonably directed by Fusion, store and mark the Hardware so that it is clear that the Hardware is the property of Fusion, but all costs of storage, whether or not storage is at the direction of Fusion, will be for the account of the Customer;
- The Customer will, if directed by Fusion, promptly deliver up the Hardware to Fusion and, if the Customer fails to do so, the Customer irrevocably gives Fusion and its agents and servants leave and licence without the necessity of giving any notice to enter at any time on and into any premises occupied by The Customer (including the Site), forcibly, if necessary, to inspect, search for or remove the Hardware; and
- If the Hardware has been sold by the Customer before payment in full of all outstanding indebtedness of the Customer, then the proceeds and debts of the Customer arising from the on-sales will be the property of Fusion and will be held on a fiduciary basis separately for its account, not mixed with the Customer's other money, debts or property and payable immediately without demand. Fusion has the right to trace the proceeds of any sales in accordance with equitable principles.
- The Customer must pay Fusion the Subscription Fees. Fusion may render invoices to the Customer for the Subscription Fees monthly in advance.
- If the Order Form states that Fusion is providing "Configuration Services", then the Customer must pay Fusion the Configuration Fees. Fusion may render invoices to the Customer for the Configuration Fees upon completion of the testing described in clause 1.2(f).
- If the Order Form states that Fusion is supplying Hardware, then the Customer must pay Fusion the Hardware Fee. Fusion may render invoices to the Customer for the Hardware Fees upon delivery of the Hardware to the Customer.
- Additional Charges (if any) will be invoiced after the relevant product or service has been provided.
- Fusion will increase the Subscription Fees with effect from each anniversary of the Commencement Date in accordance with the Order Form.
- The Customer will pay all amounts due to Fusion in Australian dollars (unless the invoice specifies a different currency) within 15 days of receiving an invoice. Any overdue amount will be subject to interest at the rate of 16% per annum calculated daily. The Fees are exclusive of any taxes and The Customer will pay any GST, excise, import, export, value added or similar tax, tariff or duty imposed on those fees.
During the Term and for 2 years after the Term, the Customer will provide Fusion with reasonable access to the Customer’s premises, records and systems during normal business hours to verify that the Products are and have been used in accordance with this Agreement and all Fees payable under this Agreement have been paid.
- Each party (a Recipient) must keep secret and confidential all Confidential Information of the other party (the Discloser). The Confidential Information of a party is information concerning the party, its business or affairs which is provided by that party in connection with this Agreement or otherwise comes to the knowledge of the other party in connection with this Agreement, which is marked as confidential or which a reasonable person would consider confidential, and includes the terms (and pricing) of this Agreement.
- A party must not disclose the other party's Confidential Information to any person except:
- To its employees, contractors, professional advisors and auditors on a 'need to know' basis provided those persons first agree to observe the confidentiality of the information;
- With the other party's prior written consent;
- If required by law or any stock exchange; or
- If it is in the public domain, other than as a result of a breach of this Agreement.
9. Warranty and Liability
- Fusion warrants to the Customer that the Software, when properly installed and operated in accordance with the Documentation, will perform substantially in accordance with the Specifications for 90 days from the Installation Date (or, if the Order Form states that Fusion is providing "Configuration Services", 30 days from the completion of testing under clause 1.2(f)) (Warranty Period).
- If during the Warranty Period the Software does not perform as warranted, Fusion will, at its sole discretion and as the Customer's sole and exclusive remedy, correct the Software, replace the Software or, if neither of the foregoing is commercially practicable, terminate this Agreement and refund any Subscription Fees paid by the Customer.
- Except for the warranty in clause 9(a), to the extent permitted by law, the Products are provided to the Customer "as is" and Fusion excludes and does not make or give any express or implied representations, conditions or warranties in relation to the Products. Without limitation, Fusion does not warrant that the Software will operate uninterrupted, be free from Defects or viruses or meet the Customer's requirements.
- Where legislation implies or applies to this Agreement any condition, warranty or guarantee, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under the condition, warranty or guarantee, the condition, warranty or guarantee will apply. However, to the extent permitted by law, the liability of Fusion for any breach of the condition, warranty or guarantee is limited at the option of Fusion to providing again or paying the cost of providing again the goods or services in respect of which the breach occurred.
- In no event will Fusion be liable to the Customer or any other person for any lost profits, lost revenue, lost savings, lost production, lost data, lost goodwill or reputation, loss of or damage to credit rating or special, direct, indirect, punitive, consequential or incidental damages, even if Fusion has been advised of the possibility of such loss or damage.
- Any liability of Fusion for breach of this Agreement, or in tort or for any other common law or statutory cause of action which is not excluded by the preceding clauses is limited in the aggregate to the lesser of (i) the amount paid by The Customer to Fusion under this Agreement; and (ii) $10,000.
- Where the Customer uses the Products to provide services to third parties, the Customer indemnifies Fusion against any and all liability to those third parties arising out of the use of the Products. Without limiting the generality of this and the preceding clauses, the Customer indemnifies Fusion against any liability of whatsoever nature arising out of integration of the Products with third parties or third party equipment and/or computer systems.
10. Intellectual Property
- The Customer must:
- Immediately inform Fusion of any matter which may come to its notice during the operation of this agreement which may be of interest or importance or use to Fusion; and
- Immediately communicate to Fusion any proposals or suggestions occurring to it during the operation of this agreement which may be of service for the business of Fusion.
- Any discovery, design, invention, idea, concept, technique, secret process or improvement in procedure conceived, made, developed or discovered by the Customer in the course of Fusion providing Products and services under this agreement (whether alone or with any other person) which is capable of being used or adapted for use in connection with the activities of Fusion (the Inventions) must immediately be disclosed to Fusion, whether or not the Inventions are capable of being protected by copyright, letters patent, registered design or other protection.
- The Customer assigns or, to the extent necessary, will assign its entire right, title and interest in and to the Inventions (and any intellectual property protection obtained in respect of the Inventions) to Fusion as Fusion may nominate for the purpose.
- The Customer will at the expense of Fusion execute all documents and do and execute all such further acts, matters and things as may be necessary or reasonable to:
- Register or otherwise protect the Inventions; and
- Perfect the assignment required by this clause.
- Whenever required to do so, and at the expense of Fusion, the Customer will apply or join in applying for letters patent or any other intellectual property protection reasonably determined by Fusion in Australia or in any other part of the world for any Invention conceived, made, developed or discovered by the Customer in the course of Fusion providing it the Products and services under this agreement. The Customer will execute all instruments and do all things necessary to apply for such protection and to assign the benefit of that protection to Fusion or its nominee.
- The Customer must ensure that its employees, contractors and assigns observe and agree to a clause on similar terms in respect of any discovery, design, invention, idea, concept, technique, secret process or improvement in procedure conceived, made, developed or discovered by them in the course of their use of the Products and services provided by Fusion.
- The Customer must, within seven (7) days of receiving notice of an infringement of a third party’s intellectual property rights arising out of the Customer’s use of the Products, notify Fusion and provide copies of any notice, demand or written correspondence containing particulars of the alleged infringement (Infringement Notice)
- The Customer must comply with Fusion's reasonable directions in relation to the Infringement Notice. The Customer must not make any admissions or concessions, settle a claim in connection with an Infringement Notice, or consent to any judgment being entered without Fusion's prior written consent.
- Subject to the Customer’s compliance with its obligations under this clause 10, Fusion will pay any judgment finally awarded against the Customer in respect of a claim in connection with an Infringement Notice or amount which is payable by the Customer to settle a claim.
- Fusion's liability under clause (i) will be reduced to the extent the claim is based on:
- Use of a superseded or modified release of the Products, if the Claim would have been avoided by using a later or unmodified release of the Products;
- The combination, operation or use of the Products with programs or data models not provided by Fusion;
- Any use of other software not made or provided by Fusion either in conjunction with the Products or otherwise; or
- Fusion complying with the the Customer Specifications or any instructions or requirements of the Customer.
11. Term and Termination
- The term of this Agreement commences on the Commencement Date and continues for:
Unless terminated earlier in accordance with this Agreement.
- The Initial Term; and
- Following the Initial Term, for successive periods of 6 months each (each a Renewal Period ),
- Either party may terminate this Agreement at any time by providing, no less than 30 days' written notice, which notice must not purport to or have the effect of terminating this Agreement prior to the expiration of the Initial Term or any Renewal Period.
- A party may terminate this Agreement immediately by notice to the other party if the other party breaches a material clause in this Agreement and, where the breach is capable of being remedied, fails to remedy that breach within 10 Business Days after receiving notice requiring it to do so.
- Upon termination of this Agreement, the Customer must:
- Stop using and uninstall and destroy all copies of the Products; and
- Certify in writing to Fusion that the Customer has complied with clause 11(d)(i).
- Termination or expiry of this Agreement will not affect the operation of clauses 7, 8, 9 and 11(d) of the Standard Terms and Conditions or any rights or remedies already accrued to either party under, or in respect of any breach of, this Agreement.
- If this Agreement is terminated by the customer before the Agreement renewal date, the customer must payout the outstanding Agreement subscription fees along with any associated fees set in this Agreement.
12. Force Majeure
If a party is prevented from or delayed in performing or complying with an obligation or requirement under this Agreement by Force Majeure, and takes reasonable steps to mitigate or remove the Force Majeure and its effect, then the obligation is suspended during, but for no longer than, the period the Force Majeure continues and any further period that is reasonable in the circumstances. Nothing in this clause relieves the Customer of its obligation to pay any fees or charges payable under this Agreement.
- Nothing in this Agreement is intended to exclude or limit the operation of subsection 47B(3), or sections 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth) which shall have full force and effect.
- This Agreement must not be assigned or novated by the Customer without prior written consent from Fusion.
- This Agreement constitutes the entire agreement between Fusion and the Customer in relation to its subject matter.
- This Agreement is governed by and construed in accordance with the law of NSW, Australia and the parties submit to the jurisdiction of the courts of NSW, Australia.
- If any provision of this Agreement is held unenforceable or illegal for any reason, the Agreement will remain otherwise in full force apart from the provision which will be deemed deleted.
- No right under this Agreement will be deemed to be waived except by notice in writing signed by the relevant party.
- Except as permitted by this Agreement, this Agreement may only be varied by a document signed by or on behalf of each party.
- Where the Order Form designates any terms and conditions as "Special Conditions", those Special Conditions will apply and will prevail over these General Terms and Conditions to the extent of any inconsistency.
In this Agreement the following terms have the following meanings.
Additional Charge means the fees and charges calculated by reference to Fusion’s Schedule of Rates available by request from Fusion which may be updated by Fusion from time to time at its sole discretion.
Agreement means the Order Form, these General Terms and Conditions and any other schedules or documents attached to the Order Form.
Business Day means a day of the week on which banks are open for general business in Sydney, other than a Saturday or a Sunday.
Claim means a claim that The Customer's use of the Products as permitted by this Agreement infringes any Australian patent, copyright or trade mark right of any third party.
Commencement Date means the date on which this Agreement commences as specified on the Order Form.
Configuration Fees means fees denoted as such in the Order Form.
CSI or Customer Supplied Items means the items designated as such in the Order Form.
Customer’s Computer Systems means the Customer’s computer system which must meet the Minimum System Requirements.
Customer Specifications means specifications for the configuration of the Software attached to the Order Form.
Defect means any material non-conformance of the Software with the Specifications such as to render the Software not fit for its intended purpose.
Documentation means the guides, manuals and other documentation relating to the Software which are provided or made available to The Customer by Fusion, and includes Updates to the Documentation.
Fees means the Subscription Fees, Configuration Fees (where applicable), Hardware Fees (where applicable) and any Additional Charges.
Force Majeure means an event beyond the reasonable control of the affected party, which occurs without the fault or negligence of the affected party.
Hardware means any Hardware, including any component or part of the Hardware supplied by Fusion.
Hardware Fees means fees denoted as such in the Order Form.
Installation Date means the date on which the Software is installed in accordance with clause 1.2.
Minimum System Requirements means any minimum system requirements set out or referred to in the Documentation or the Order Form.
Order Form means the order form signed by the parties and referencing these General Terms and Conditions.
Products means the Software and Documentation.
Respond, in relation to a Defect, means to commence diagnosis of the Defect.
Resolve, in relation to a Defect, means to either correct the Defect or provide a reasonable workaround solution.
Site means the location where The Customer is entitled to use and install the Software as specified in the Order Form.
Software means the object code version of the software specified in the Order Form, and includes Updates.
Software Support means the services provided under clauses 3.1 and 0.
- The Order Form; and
- The Customer Specifications (where applicable); and
- The Documentation,
and to the extent of any inconsistency between these specifications, the specifications listed earlier in this definition prevail over those listed later.
Subscription Fees means fees denoted as such in the Order Form.
Term means the duration of the Agreement as determined in accordance with clause 11.
Update means any alteration, upgrade, new version, new release, enhancement, development, customisation or modification to the Products which Fusion provides or makes available to the Customer from time to time.
14.2 Rules of Interpretation
In this Agreement, headings are for convenience only and do not affect interpretation and unless the context indicates a contrary intention:
- Person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
- The singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;
- If a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
- Includes in any form is not a word of limitation; and
- No provision will be construed adversely to a party because that party was responsible for the preparation of this Agreement or that provision.