Amity Terms and Conditions
Company means Amity IT PTY LTD ABN 59 660 873 631 (Amity)
Account Manager means the authorised person who is appointed as the Amity main contact with The Customer.
Associated document means any purchase order, Agreement, Schedules, Services Agreement, Proposal, Quote, Heads of Agreement, Memorandum of Understanding or any other document that is received by Amity. as a request to Amity for the provision of Products and Services or confirmation of a project to be undertaken by Amity and includes any reply from Amity to the Customer for that document.
Authorities means an authority to proceed to provide Products and Services as specified on any written or electronic communication or Associated Document that is received by Amity from Authorised Staff at The Customer
Authorised staff means any person that the Customer has communicated in writing to Amity is entitled to authorise any works.
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Commencement Date means the date that both parties agree to provide the Products or commence the Services as set-out within any associated document.
Communication means either written or electronic.
Confidential Information means all information including but not limited to intellectual property, know how, suppliers, operations and dealings of a party, data, specifications, prototypes, processes, pricing, statements, writings, recordings, formulae, drawings, charts, forms, plans, graphic material and software, including copies, backups and extracts thereof, of a confidential nature or that a reasonable person would infer to be of a confidential nature, but excluding information that is public knowledge (other than as a result of a party to this agreement breaching a covenant and or obligation contained within this agreement);
Consequential Loss means loss of revenue, loss of profits, loss of goodwill, loss of anticipated savings, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair or replacement) loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Customer means the recipient of a Proposal/Quote and or heads of agreement and or Products and Services and or Associated Document provided by Amity.
Customer Data means data relating solely to The Customer provided by The Customer to Amity.
Derivative works means any software, programs, coding or script that is used in conjunction with any Amity database or any extracted data from an Amity database
DMS means Dealer Management System
Insolvency Event means:
- Any step is taken to enter into any scheme of arrangement with creditors;
- Any step is taken to appoint a receiver or manager, a liquidator, an administrator or other like person;
- the suspension of payment of debts generally; or
- Presumed insolvency for the purposes of any provision of the Corporations Act 2001 (Cth).
Intellectual Property Rights or IP means any intellectual or industrial property rights (including any registered or unregistered trademarks, patents, designs or copyright) inventive ideas, commercial secrets, business processes.
Purchase Order means any communication or Authorised Document received by Amity from any authorised staff of The Customer that requests Amity to proceed to develop, install, implement, supply and or start Products or Services as specified within the communication.
Price means the charge(s) for the Products and Services.
Products mean any Products or Services provided by Amity to The Customer under an Associated Document.
Proposal means a separate document that provides the definition and pricing for the Products or Services to be provided by Amity.
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).
Tax means any value-added or Goods and Services tax, withholding tax, charge (and associated penalty or interest), rate, duty or impost imposed by any authority at any time, current or future, but does not include any tax on income or capital gains.
Updates mean minor modifications and enhancements made from time to time to a computer software program by Amity.
Upgrades mean new versions of an earlier software program other than an update.
- 2.1 The expressions ‘Company’ and ‘Customer’ will include respective successors and permitted assigns and novatees.
- 2.2 A reference to a person includes a reference to a person, firm, corporation or other legal entity.
- 2.3 A term which is defined in any part of this document has the same meaning in every other part of this document.
- 2.4 The singular includes the plural and vice versa.
- 2.5 Different grammatical forms of the same word have the corresponding meaning.
- 2.6 A reference to a clause is to a clause in this document, unless otherwise stated.
- 2.7 Examples or words of inclusion are illustrative only and do not limit the generality of the relevant subject.
- 2.8 Headings do not affect the construct of this agreement.
- 3.1 Amity will provide and The Customer will acquire the Products and Services as defined within any associated document.
- 3.2 The Customer must provide Amity with all reasonable information, access, storage, facilities and assistance that Amity requires in order to provide the Products and Services specified within any associated document.
- 3.3 Amity may use any of its Related Bodies Corporate or sub contractors to assist it with the provision of the Products and Services under any associated document.
- 4.1 Amity will treat as an authority to proceed to provide Products and Services as specified on any request or Associated Document that is received in writing from any Authorised staff of The Customer by Amity
- 4.2 Any and all Authorities to Proceed, purchase orders and or Associated Documents processed by Amity on behalf of The Customer will be handled under the terms and conditions contained within this document.
Amity reserves the right in its reasonable discretion to:
- (i) Determine which personnel will perform the Services;
- (ii) Replace or reassign such personnel; and
- (iii) Sub-contract suitable third parties to perform the Services.
- 4.4 If Amity is utilising any 3rd party software as part of the Services, The Customer must install, at the Customer’s expense, the latest version of relevant software as advised or provided by Amity.
- 4.5 All requests for services will be scheduled by Amity and charged at current standard rates. Where unscheduled or urgent work is required to be carried out then premium rates will apply at Amitys discretion.
5. Main Contact Person
- 5.1 The Customer must appoint a member of their staff who is duly authorised to be the main contact person with Amity.
- 5.2 This person will be the recipient of all communications from Amity.
- 5.3 The Customer will provide to Amity, in writing, the following information regarding the Main Contact Person: Name, position, postal address, email address, direct land line business telephone number and mobile telephone number.
- 5.4 The customer must also provide the contact details of staff that are to be regularly contacted in regards to providing our services. This can include but is not limited to a designated person in any necessary departments. If the designated person is going to be absent or is replaced, it is the customers responsibility to notify Amity as soon as possible.
- 6.1 The Customer will maintain suitably trained staff to operate and support any Products and Services provided by Amity
- 6.2 Amity will provide training as required by the Customer to maintain and support the provided Products and Services. Training to be at the current Amity rates
7. Invoices and Payment
- 7.1 The customer acknowledges and agrees that they are in receipt of discounted fees from Amity and this discount is solely based upon the customer paying their invoices according to the agreed terms. The customer further acknowledges and agrees that where payments are not received within the agreed terms Amity may at its sole discretion progressively remove these discounts.
Amity will provide the Products and Services to The Customer and will invoice The Customer on the following basis
- (i) Ongoing contracted works – monthly.
- (ii) Specifically requested one off work as defined within an associated document
- 7.3 The Customer must pay each invoice by the due date shown on it and if there is no due date, within 14 days of the date of invoice. Failure to pay the invoices in accordance with the terms of any associated document is defined as a material breach under the “term and termination” clause of this document.
- 7.4 Payment shall be via a direct electronic deposit into bank account specified on the invoice as per the schedule herein, unless prior agreement has been made.
If The Customer disputes any invoice it must:
- (i) Raise in writing that dispute with Amity within 21 days of receipt of the invoice; and
- (ii) Pay any undisputed amount included in the invoice in accordance with clause 7.2 above.
- 7.6 If The Customer raises a dispute under clause 7.5 above, Amity will conduct prompt investigations and advise The Customer of its findings.
- 7.7 If The Customer raises a dispute after 21 days of the receipt of the invoice, then Amity will impose a $ 125.00/hour non-refundable Administration fee to perform any required investigation.
- 7.8 If following an investigation by Amity into a dispute under this clause and the parties are unable to resolve the dispute, then either party may seek resolution in accordance with the dispute resolution clause contained within this document.
- 7.9 Amity may charge The Customer for all reasonable expenses it incurs in connection with late payments by The Customer and may also charge The Customer interest at the prime lending rate of Amity's principle banker calculated daily on the total overdue amount.
- 7.10 The Customer agrees that where The Customer has failed to pay within the agreed terms, as defined above, and has consistently not paid within the agreed terms as defined in 7.2 above; being defined as 3 consecutive months or 3 months in the past 6 months, then Amity as a result of this material breach has the right to stop all Services without becoming liable for any direct, indirect, Consequential or circumstantial losses caused to The Customer as a consequence of this service stopping.
- 7.11 The Customer further agrees, after all outstanding funds have been paid, to pay the sum of $185.00 to have the Services restarted plus the standard hourly rate, as per our current schedule of fees, per hour for any recovery work required.
- 7.12 Unless stated otherwise, the Price and any other charges invoiced by Amity under any associated document are exclusive of all Taxes and The Customer must pay any additional amount equal to the Taxes as defined by the Australian Government.
- 7.13 Amity reserves the right to charge merchant and processing fees to recover the cost of paying by payment method other than direct deposit, eg- mastercard, visa
- 7.14 Amity reserves the right to change accepted payment methods at any time
8. Intellectual Property Rights
- 8.1 All Intellectual Property Rights ownership, copyright, secrets and other rights, title and interest therein are and will at all times remain the sole property of Amity.
- 8.2 The Customer acknowledges that they gain no right, title or interest in the Intellectual property by virtue of this agreement.
- 8.3 The customer will undertake all reasonable steps to protect the intellectual property rights of Amity.
- 8.4 The Customer agrees to advise Amity of any breach or potential breach of the Intellectual Property Rights associated with any solution provided by Amity at the earliest time after the Customer became aware of said breach.
- 8.5 All other materials, information, know-how, systems, data, processes and technology of any nature that is created or used in connection with any associated document (Material) that is not covered by clauses 8.1 above will, as agreed between the parties, be owned by Amity.
- 8.6 Any programming or derivate works, based on products and or Services provided, undertaken by Amity, the Customer or a 3rd party following a specific or non-specific request by The Customer will remain the property of Amity who in-turn will provide a non-exclusive license for The Customer to use in accordance with the conditions contained within section 9 below of this Terms and Conditions. Where the Customer engages a third party to undertake the creation of derivative works, of any kind, The Customer will ensure that the assignment of all derivative works is made to Amity.
- 8.7 The Customer acknowledges that Amity has the right to seek damages, recover costs and any actual and or potential lost revenues from the Customer for any breach of Amitys intellectual property rights.
9. Non Exclusive Licence of Use
- 9.1 Amity grants The Customer a non-exclusive, non-transferable licence to use the Intellectual Property contained within the Products and Services provided for within any associated document for the duration of this agreement. This license is limited to the customer and its related corporate entities or as defined with an associated document.
- 9.2 The term of the license shall be for as long as The Customer continues to pay the monthly license and Services fees which may be included as a package with other services
- 9.3 Any third party software provided by Amity to The Customer under any associated document will be licenced and charged to The Customer on the relevant Vendor’s terms and conditions.
- 9.4 The Customer acknowledges that Amity has the right to seek damages, recover costs and any actual and or potential lost revenues from the Customer for any breach of this non-exclusive license.
- 9.5 The customer fully indemnifies Amity against all costs that arise due to the use by the Customer of any Product or Service for illegal purposes.
- 10.1 Amity does not warrant that Amity’s own software or any third party’s software provided to The Customer by Amity is error free.
- 10.2 Amity warrants that the solution will function in line with the functional specifications provided to The Customer however, no such warranty is given where the software solution failure is a result of The Customer use of the software for an unintended purpose or utilising hardware, operating system or other such software that is not within the specifications recommended by Amity.
- 10.3 The Customer must maintain suitably trained staff to effectively operate the software. All warranties are specifically excluded where there are not sufficiently trained staff.
- 11.1 To the extent permitted by law, Amity excludes all implied conditions and warranties and limits its liability for non-excludable conditions and warranties to, at Amity's complete discretion, repairing or replacing the relevant Products, resupplying the relevant or equivalent Services.
- 11.2 It is further acknowledged that Amity’s liability is extinguished by correcting any defect in the software solution within 90 days of being notified in writing by The Customer of the existence of the defect and Amity agreeing that the identified defect requires rectification.
- 11.3 The Customer accepts liability for loss suffered by Amity arising from a breach of a confidentiality obligation owed to the extent that such loss is caused or contributed to by a negligent act or omission of the Customer.
- 11.4 Amity is specifically excluded from all liability for Consequential Loss suffered by the Customer that arises in connection with any Product or Service provided by Amity to The Customer whether through use or lack of use of any Product or Service.
- 11.5 The Customer indemnifies Amity against all losses that the Customer has contributed to including but not limited to acts of negligence or acts of omission
- 11.6 The Customer acknowledges that the software solution provided by Amity was not produced to meet exclusively The Customer’s specifications and it is The Customers responsibility to determine that the software solution fits their requirements
- 11.7 The Customer accepts that the software cannot be tested in every possible combination of operating environment, systems and hardware and therefore Amity cannot provide a guarantee that the software solution will work in all environments.
- 11.8 Amity will not be liable for any lapse in the continuity of the service if the condition in 7.10 above arises or any event occurs beyond the reasonable control of Amity that causes a lapse in any Service.
- 11.9 Amity shall be discharged from any potential liability in respect of any transaction subject to the use of the software solution, whether in contract or in tort, including negligence, unless such action is taken by The Customer within 3 months after The Customer becomes or should reasonably have become aware of the facts constituting the cause of action.
- 11.10 Both parties expressly agree that should any limitation or provision contained within this document be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if either party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out within this document.
Subject to clauses 11.1 to 11.5 above, Amitys liability for loss suffered or incurred by the other party in connection with any associated document whether based in contract, tort (including negligence), statute or otherwise, is limited in aggregate to the lesser of:
- (i) The aggregate of all invoices paid by The Customer in respect of Products and Services during the preceding 3 months prior to the occurrence of the event causing the loss; or
- (ii) AU $10,000 ; or
- (iii) The actual loss incurred
- 12.1 Each party agrees to keep the other party's Confidential Information confidential during the duration of the Contract and thereafter and to only disclose such Confidential Information to those of its employees, agents, contractors or advisers who have a specific need to know.
- 12.2 The obligations of confidentiality in clause 12.1 above do not apply to the extent that disclosure is required by law or the listing rules of a stock exchange or pursuant to a direction of a government body.
- 12.3 The Customer covenants not to alter or remove any proprietary rights or copy right notice or to attempt or allow any other parties to duplicate, reverse engineer or reproduce the Intellectual property or Confidential Information that is being utilised to provide the solution that Amity is providing to The Customer.
The Customer agrees to:
- (i) Undertake all necessary actions to provide continued confidentiality and protection of the intellectual property
- (ii) to prevent any unauthorised personnel to have access to the solution.
- (iii) Immediately notify Amity of any unauthorised knowledge, possession, or access to or of the software solution provided by Amity to The Customer.
13. Dealer Management System data
- 13.1 The Customer agrees that the quality and accuracy of information and services provided to the Customer is in large part subject to the quality of data or imported.
- 13.2 The Customer acknowledges that Amity is not responsible for the data received
- 13.3 The Customer will ensure that Amity has full authority to receive and process any data sent to Amity
- 13.4 Any corrective or rectification work on data provided that is required to be performed so that Amity can provide the Products and Services will be at the Customers expense.
- 13.5 The Customer will ensure that Amity receives data accurately and in a timely manner such that Amity is able to fulfil its obligations to provide all Products and Services.
14. Domains and hosting
All domains and hosting services are provided on the basis that Amity I.T have no responsibility or liability for damages relating to:
- any website loss or corruption.
- Incorrect information on any website
- the cancellation and non-availability of any websites due to invoices not being paid
- any content of an inappropriate, explicit or illegal nature on any website
- Any email sent on behalf of any domain name regardless if the email is sent by Amity, the company, or due to the website being corrupted.
15. Term and Termination
- 15.1 The Services and any associated document commence on the Commencement Date identified within the document and continue for as long as The Customer pays the scheduled monthly license and Services fee as defined in 7.2 above.
- 15.2 The Customer shall remain obligated for all fees through to the date of termination
- 15.3 Unless otherwise agreed in writing, the customer is required to give 60 days’ notice of any intent to cancel services.
Either party may terminate this agreement and or any associated document with immediate effect by giving written notice to the other party if the other party:
- (i) Breaches a material term contained within this document and said breach is not capable of remedy or if capable of remedy is not remedied within 20 Business Days after notice is given in writing to the other party; or
- (ii) Suffers an Insolvency Event.
- (iii) The Customer undergoes a material change of ownership
On termination of any service or Services and or these Terms and Conditions for any reason:
- (i) The Customer must pay all outstanding invoices within 14 days of the date of termination (including any relevant Cancellation Fee);
- (ii) Each party must, if requested by the other party, return all Confidential Information, data or IP of the other party or if not requested then destroy such Confidential Information;
- (iii) The Customer must grant Amity access to any relevant Customer premises to retrieve any Products in respect of which title has not passed to The Customer; and
- (iv) The accrued rights and obligations of each party are unaffected.
- 15.6 The ability to utilise the other parties confidential information, data, Intellectual Property and or Services will cease immediately upon the termination of the agreement
- 15.7 The obligations and responsibilities under the Confidentiality clauses contained within this document will endure in perpetuity
- 16.1 The Customer shall not be entitled to assign or transfer its rights, obligations or benefits under this agreement to any other person without the prior consent in writing of Amity which shall be given or refused at the sole discretion of Amity.
- 17.2 Amity shall provide support and maintenance at such frequency and duration as are reasonably required to ensure that the software remains free of errors and defects and remains in conformity with the requirements and specifications contained in any associated documentation.
Amity is not obliged to provide the support and or maintenance where:
- (i) The Customer is not operating the software in accordance with the operating procedures or utilising 3rd party software and or hardware not in accordance with the specification as outlined by Amity.
- (ii) The Customer does not have suitably trained staff
- (iii) The fault is a result of data
- (iv) The customer or their staff behave in an abusive or offensive manner
- (v) Customer accounts are not paid within the due date
- 17.4 Support Services will be available during normal working hours, 9 am to 5 pm (Eastern Australian Standard Time) Monday to Friday excluding public holidays
- 17.5 The support facility is not to be used as a training facility. Where Amity determines, on a reasonable use basis, that the Customer is using the support service as a training tool Amity may, at its absolute discretion, invoice the Customer for such training.
Incidences will be classified based on the following priority:>
- (i) Priority 1 Trading has ceased, unable to process a contract or to trade utilising the provided Amity solutions due to a system fault. Incidences that are preventing The Customer from processing a contract will take priority position and will be looked at as soon as is practicable.
- (ii) Priority 2 Trading can continue. Incidences that are reported that are not preventing The Customer from continuing to trade whilst utilising the provided software solution will be looked at within 24 business hours of being reported.
- 17.7 Amity reserves the right to charge for any work provided by Amity that is attributed to The Customers failure to observe any of the obligations listed within this and any associated documents or the Customer not having suitably trained staff.
- 17.8 The Customer shall provide assistance and co-operation in a timely manner as and where required to assist Amity in error diagnosis.
18. Dispute Resolution
- 18.1 Any dispute, controversy or claim arising out of, relating to or in connection with any Services provided by Amity on any associated document, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the rules as set out by the NSW Law Society. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.
- 19.1 Any notice given under this document or any associated document must be in writing delivered to the recipient's registered office or principal place of business.
- 19.2 A waiver of any right under this document and or any associated document must be in writing and any such waiver shall not apply to any subsequent breach or default. Failure of either party to enforce compliance with any term or condition of this agreement shall not constitute a waiver of such term or condition.
- 19.3 If a provision contained within this document is void, voidable or unenforceable, it will be severed and the remainder of this document will not be affected.
- 19.4 Nothing in the document constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between The Customer and Amity and neither party has any right to bind the other in contract or otherwise.
- 19.5 Each party will be relieved of its obligations to the extent that it is unable to fulfil them as a result of unusual or extreme circumstances beyond its reasonable control. If such an event occurs, the affected party must notify the other party in writing, as soon as reasonably possible.
- 19.6 The Agreement is governed by the laws applicable in the state of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts and arbitration of that state.
- 19.7 Any associated document may only be varied in writing signed by both parties
- 19.8 Both parties agree to provide their own insurance including but not limited to public liability and workers compensation for their staff and must, on a reasonable basis, provide proof that said insurances are current.
- 19.9 Both parties agree to ensure that any Contractors or Sub Contractors assigned by them to work on the projects listed within any associated document have provided proof and are satisfied that said documentation is current, for insurances including but not limited to public liability and workers compensation. Both parties also agree where requested by the other party, on a reasonable basis, provide proof that said insurances are current.
- 19.10 Both parties agree that the quality of the Services provided by Amity might be impacted by the reliability and accuracy of the data provided to Amity by The Customer.
- 19.11 Amity has the right, from time to time, to vary any of the above clauses contained within this document such changes at www.amityit.com.au
- 19.12 Software updates and upgrades are made available by Amity to The Customer free of any additional charge provided The Customer has paid all invoices that are due and payable under the terms as specified within the document
- 19.13 Amity shall for the term of this agreement be solely and exclusively entitled to develop and or enhance and or modify the software on behalf of the Customer to the exclusion of the customer and or any other person, firm or company and save as hereinafter provided the customer shall not develop enhance or modify the software and shall not contract with any other person firm or company so to develop enhance or modify the software.
- 19.14 Amity’s failure to exercise a right does not limit it’s ability to exercise their right in the future.
These Terms and Conditions replace all prior Terms and Conditions, offers or undertakings. Through utilising any Product or Service provided by Amity the Customer agrees to be bound by these Terms and Conditions. Please note that these Terms and Conditions define the terms and conditions where the Customer engages Amity for the supply of any Products or Services