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.
Auto Renew Licences means a Licence which the Customer has requested, in the Order, be automatically renewed annually on the anniversary of the Commencement Date;
Commencement Date means the date specified in the Order;
Confidential Information means information that is by its nature confidential but does not include:
Configuration Services means the configuration of the Software to meet the Customer Specifications;
Customer Specifications means the Customer’s specifications for the configuration of the Software, if any, identified in the Order;
Designated Site means the location identified in the Order as being the location of the dealer showroom and Equipment on which the Software is to be installed;
End User Agreement means the end user agreement applicable as at the time of initial and any subsequent installation of the Software and includes, for the avoidance of doubt, any end user agreement applicable at the time of updating the software and/or at the time of installation of any new release of the Software;
Equipment means computer equipment supplied by the Customer comprising components which meet the Minimum System Requirements;
GST Law means the same as "GST law" in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Initial Term means the Initial Term specified in the Order;
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
Licence means the licence of Software granted pursuant to this Agreement;
Subscription Fee means the amount specified in the Order;
Media means the media on which the Software is recorded or printed;
Minimum System Requirements means minimum hardware and software specifications identified in the Order or by Fusion from time to time;
Moral Right means:
which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this Agreement;
New Release means software which has been provided primarily to implement an extension, alteration, improvement or additional functionality to the Software;
Order means the order form, whether or not in the form supplied by Fusion, containing the Customer’s request for the supply of a Licence in respect of the Software in accordance with this Agreement;
Renewal Period means:
Schedule means the schedule to this Agreement;
Security Interest means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of any obligation, or that gives a creditor priority over unsecured creditors;
Self-Host Customer means a customer who has or proposes to host the Software at the Designated Site;
Service Level Requirements means a policy maintained by Fusion specifying service levels in the Schedule to this Agreement, which the Customer acknowledges may be amended or updated from time to time at Fusion’s sole and absolute discretion
Software means the computer program specified in the Order including any Updates and New Releases;
Subscription Fee means the monthly subscription fee identified in the Order;
Support Fees and Charges means the applicable fees and charges published by Fusion for the then current financial year;
Training Services means the training services, if any, specified in the Order;
Update means software which has been produced primarily to update the functionality of the Software and overcome defects in the Software.
Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders. Headings are for ease of reference only and shall not affect the interpretation of this Agreement.
(a) Equipment on which the Software has been installed;
(b) Access to the Designated Site at times and on days required by Fusion;
(c) Any induction and training required for Fusion to access the Designated Site;
(d) Such assistance, including personnel and facilities, as may be required by Fusion;
(a)Fusion's ownership of the Software and the Media;
(b) The confidentiality of the Software; and
(c) Such other information as Fusion requires.
Except as expressly permitted by sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), the Customer must not reverse assemble or reverse compile the Software or any part of the Software.
Risk of loss or damage to the Customer’s data, the Software and the Media will pass to the Customer upon delivery of the Software to the Designated Site.
Fusion must at its own expense, commence to examine the Software within three working days and, as soon as practicable thereafter, rectify the defect or replace the Software.
(a) The replacement of the goods or the supply of equivalent goods;
(b) The repair of the goods;
(c) The payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) The payment of the cost of having the goods repaired; and
(a) The supplying of the services again; or
(b) The payment of the cost of having the services supplied again.
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Software. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.
All notices which are required to be given under this Agreement must be in writing and must be sent to the address of the recipient set out in the Schedule or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or when on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient's mail server.
The Customer must not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of Fusion.
This Agreement shall be governed by and construed in accordance with the laws for the time being in force in New South Wales and the parties agree to submit to the jurisdiction of the courts and tribunals of that state.
No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of the Agreement.
|Defect Priority||Service Availability||Target response time||Target resolution time|
|1||All Business Days (9am - 5pm)||30 minutes||8 hours|
|2||All Business Days (9am - 5pm)||4 hours||3 days|
|3||All Business Days (9am - 5pm)||8 hours||Next Update|
Note: Defect Priority will be determined by Fusion based on the impact of the Defect on the Customer's use of the Software, with:
Services will only be provided during the Service Availability times above. Services not completed during a Service Availability period will resume at the start of the next Service Availability period.
Note: [Where Defect Resolution requires on Site attendance, Fusion will provide a field support technician at the Site within 3 Business Days after the Customer reports the Defect, unless otherwise agreed with the Customer, and the target Resolution time will be 7 days.]
|Availability Period||Availability||Measurement Period|
|All Business Days (9am - 5pm)||[99%]||Monthly|
Note: For these purposes "Availability" during a Measurement Period is calculated as:
Note: A failure of a computer system to gain access to the Fusion server due to a fault with a third party telecommunications network, or any cause beyond the reasonable control of Fusion, will not be taken to be an Outage for these purposes.