Standard Terms of Business

1

“This Agreement”

1.1

Terms stated in This Agreement are general in nature and are intended to openly communicate SmarterSoft’s professional relationship with you and your business (“You,” “Your”) for the purposes of developing, maintaining or operating Your website, software, hardware or other associated services..

1.2

All terms stated in This Agreement are of course negotiable, based on Your individual needs and situation. However, unless otherwise indicated by You in writing, in accepting any written proposal, plan or quotation issued to You by an authorised SmarterSoft officer, You agree to be bound by the terms stipulated within This Agreement.

1.3

This Agreement has been adopted from and supersedes v2.0 of the SmarterSoft the Standard Terms of Business previously published at this website location.

2

“Solutions”

2.1

“Solutions” include any of the website, software, hardware or other associated services SmarterSoft agrees to develop, maintain, operate or change for You. Such Solutions shall be identified, documented and detailed in correspondence between SmarterSoft and You.

3

 Types of Work

3.1

The types of work SmarterSoft may perform for You shall generally fall under the following classifications:

a) “Project-Based Work”

Project-Based Work includes Solutions which involve new development, major enhancement, consulting or upgrade works to software or hardware. It also includes the procurement, installation, setup and configuration of new products and services. Project-Based Work shall generally be governed by a separate written proposal, plan or quotation. For more information refer to Section ‘Project-Based Work’.

b) “Auxiliary Work”

Auxiliary Work includes minor works which are in addition to what is required to directly support, maintain and ensure the correct day-to-day operations of the Solutions. This may include:

• Project management / Supplier management
• General consulting
• Business consulting
• Online marketing consulting
• Business analysis
• Software development & programming (minor works)
• Database design, performance tuning & migration  (minor works)

• Technical issue resolution outside of Warranty Periods (software bugs & errors)

• Graphic design
• Web design
• Website content updates & administration
• Application performance tuning
• User training & preparation of training material
• Documentation

• Planning & execution of the deployment or transition of the Solutions into their live production environment ("Production Deployment")

c) “Maintenance & Support”:

Maintenance & Support includes any work required to directly support, maintain and ensure the correct day-to-day operations of the Solutions. This may include:

• Website hosting
• Website performance monitoring
• Log file checking
• Database backups
• Performing hardware server upgrades (labour only)
• Proactive maintenance
• Technical issue resolution within Warranty Periods (software bugs & errors)
• Google Analytics setup
• Client login to SmarterSoft’s website to raise Requests To Work

4

“Requests To Work”

4.1

A Request To Work is a request made by You or an authorised member of Your staff to SmarterSoft relating to:

a) a change to be made to a Solution; or
b) an issue to be resolved relating to a Solution; or
c) Auxiliary Work; or
d) Project-Based Work.

4.2

Engagement Process

To issue SmarterSoft with a Request To Work, You shall either:

a) Email support@smartersoft.com.au or a designated SmarterSoft consultant; or
b) Request the work via phone or SMS (phone numbers supplied separately); or
c) Create a Request To Work via the SmarterSoft ‘Log Work Request’ website form (login supplied separately).

Please use the following table as a guide for judging the priority of a Request To Work:

Issue Priority Guidelines 

Once the request is received, SmarterSoft shall immediately classify the work and seek approvals from You if necessary. SmarterSoft shall respond to requests in order of their logged priority and may reclassify them as deemed appropriate.

4.3

Authorisation

a) Only people who are named and authorised to create Requests To Work with SmarterSoft shall be able to do so. These people shall be added to the ‘Work Request Authority’ list. This list shall be agreed between You and SmarterSoft and communicated to You in writing. People on the ‘Work Request Authority’ list shall be added to SmarterSoft’s list of accepted users on our website (www.smartersoft.com.au) and provided with logins to ‘Log Work Requests.’

b) SmarterSoft shall not commence any Request To Work issued by a person who is not listed on the ‘Work Request Authority’ list, unless approved by somebody who is listed.  If SmarterSoft receives a Request To Work from any person on the ‘Work Request Authority’ list, we shall assume that we may start working on the request immediately as per the terms in This Agreement. 

4.4

For Requests To Work outside of what is included within Maintenance & Support, SmarterSoft shall generally provide You with a written proposal, plan or quotation (detailing time & cost estimates, assumptions and risks as applicable).

5

What You Pay For 

5.1

Unless otherwise agreed on a case-by-case basis and in writing, all time SmarterSoft spends working for You is billable. This includes time spent analysing Your business problems and systems to help You gain a better understanding of Your specific needs and requirements.

5.2

All time-based billable work shall be charged as per Section ‘Schedule of Rates.’ All materials, tools or equipment acquired during the course of our work are additional extras as set out in Section ‘Procurement.’ Additionally, associated fees and charges may also be packaged up as per Section ‘Packaged Solutions and Additional Fees and Charges.’

5.3

All work we perform for You is billable at minimum in 30 minute increments.

6

Project-Based Work

6.1

Prior to commencing any Project-Based Work, SmarterSoft shall generally need to perform business analysis, requirements elicitation and solutions planning tasks. SmarterSoft shall always offer the first consultation free of charge in order to determine if we are a suitable supplier and to also provide a ballpark estimate for the work. After which, all subsequent work to prepare and deliver a written proposal, plan or quotation is billable. However, should SmarterSoft be awarded the project, at our discretion the cost of performing these tasks shall be credited to You for use toward the overall cost of that Project-Based Work.

6.2

Additionally, due to the great differences present within Project-Based Work, rates for systems engineering and development tasks shall be priced on an individual basis, dependent upon project size, duration, risk, technology platform or prior relationship. SmarterSoft’s rates shall always be based on current competitive market prices for qualified systems engineering or business professionals with 5+ years of relevant experience and working within the Sydney area. Our current rates are set out in Section ‘Schedule of Rates.’

7

Quotations 

7.1

All prices stated in any written proposal, plan or quotation issued to You by SmarterSoft are in $AUD and are valid for fourteen (14) calendar days from issue.  All are subject to the terms of This Agreement and are stated exclusive of GST unless otherwise indicated.

8

Payment Terms

8.1

For packaged software, software licenses or hardware SmarterSoft procures on Your behalf, full payment, or an irrevocable purchase order from You is required prior to SmarterSoft placing an order for the software, license or hardware.

8.2

For Project-Based Work under a total of $5,000AUD, unless otherwise agreed, SmarterSoft requires a 50% deposit prior to the commencement of work. For the balance of programming time and other services rendered, SmarterSoft shall bill on completion of works. For Project-Based Work totalling over $5,000AUD, payment terms are negotiable, but generally correspond to the agreed delivery of project milestones. As seen fit, a detailed written proposal, plan or quotation may be issued detailing the payment terms and conditions specific to each project.

8.3

Where Maintenance & Support fees are payable, SmarterSoft shall invoice for these services on the first business day of the month for the coming month.  All Auxiliary Work, including consulting and technical work shall be billed in arrears on (or after) the first business day of each month for billable hours incurred in the previous month.  All other work, excluding packaged software, software licenses or hardware, shall be billed monthly in arrears as they are incurred.    

8.4

You agree to pay all invoices within fourteen (14) calendar days from date specified on the invoice.

8.5

Failure to pay as detailed within these terms may result in the cancellation of Your services or a cessation of Project-Based Work until such a time as full payment has been received.

8.6

Where You are required to perform User Acceptance Testing (“UAT”) activities for a defined scope of work, unless otherwise agreed between You and SmarterSoft, SmarterSoft shall invoice for any or all outstanding moneys owed for that scope of work at 21 calendar days after UAT formally commences, or at Your completion of UAT activities, whichever occurs first.  

9

Intellectual Property and Copyright

9.1

SmarterSoft shall transfer all intellectual property rights, including copyright, to You on receiving full payment for any Solution undertaken by SmarterSoft except where the Solution contains SmarterSoft’s own intellectual property, for example Solutions built using our Integra™ system. In such cases SmarterSoft shall own all of the intellectual property, including copyright, in the Solution's programming code and databases and grant You a license to use the intellectual property.

9.2

Where SmarterSoft grants You a license to use its intellectual property, unless otherwise agreed in writing, the license shall be non-exclusive and governed by the following restrictions:

a) You agree to use the intellectual property solely for purposes internal to Your business and You shall not attempt to resell or redistribute the intellectual property or any derivative works for any reason; and

b) You agree not to attempt to decipher, decompile, disassemble or reverse engineer any of the intellectual property for any reason.

9.3

Intellectual property rights, including copyright, contained in any text, photos, graphics, illustrations, documents and other electronic computer files ("Content") entered into SmarterSoft products by You, shall always remain the sole property of You.

9.4

For the life of any web-based Solution containing SmarterSoft’s own intellectual property, You shall allow SmarterSoft to display up to two (2) HTML links on publicly visible areas of Your web-based Solution linking back to the SmarterSoft website.  

10

 “Confidential Information”

10.1

Confidential Information means information that:

a) is by its nature confidential; or
b) is designated by You or SmarterSoft as confidential; or
c) You or SmarterSoft know or ought to know is confidential;
and includes without limitation all correspondence between Your business and SmarterSoft including information about Solutions, projects, customers, employees, agents, research, property, policies and operations which is made available or which becomes known during Your engagement with SmarterSoft, but does not include information which:
a) was in the public domain at the time of its provision; or
b) became part of the public domain after its provision, otherwise than through a disclosure by a person to whom the Confidential Information has been duly disclosed.

10.2

SmarterSoft shall ensure its employees, agents and contractors keep confidential all information provided to SmarterSoft by You. SmarterSoft shall not disclose such information without Your prior written approval.

10.3

Conversely, Confidential Information shall not be disclosed by You to a third party without SmarterSoft’s prior written approval. This includes Confidential Information contained within proposals, plans, quotations, emails and other correspondence, written or otherwise, which SmarterSoft issues to You from time to time. In certain circumstances, a non-disclosure agreement may need to be signed.

10.4

SmarterSoft agrees to comply with the principles contained in the Privacy Act 1988 (Commonwealth) and with SmarterSoft’s privacy policy and guidelines as amended from time to time. SmarterSoft’s privacy policy is available on request.

11

Warranty, Indemnity and Limitation of Liability

11.1

All SmarterSoft software Solutions are supported with a warranty of 90 calendar days from the date of project acceptance (the “Warranty Period”). Software bugs or errors directly introduced by SmarterSoft as part of an upgrade or enhancement work to the Solutions operating within a production capacity are also covered by their own warranty of 90 calendar days from the date of production deployment, but are limited to the scope of the upgrade or enhancement work only.

11.2

During Warranty Periods, genuine software bugs and errors shall be fixed at SmarterSoft’s expense. The definition of what a genuine software bug or error is shall be at SmarterSoft’s discretion.

11.3

During Warranty Periods, SmarterSoft shall endeavour to tackle all production software bugs or errors directly related to the software Solution within 10 working days of You formally logging the issue with SmarterSoft. You shall be informed in advance of the expected time frame to rectify a software bug or error and the impact on the functioning of the software Solution (if any). Refer to Section ‘Requests To Work’ for information on how to engage SmarterSoft during Warranty Periods.

11.4

Where FTP, Telnet, SSH or any other privilege is granted to You enabling file based access to the Solutions, SmarterSoft accepts no responsibility or liability for any direct or indirect issues or losses which may arise. Indeed, the granting of such access shall void any warranty that would have otherwise been attributable to those areas where access was granted.

11.5

Other than Warranty Periods, SmarterSoft and its suppliers expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.

11.6

Under no circumstances (including but not limited to any act or omission on the part of SmarterSoft) will SmarterSoft or its affiliates be liable for any indirect, incidental, special or consequential damages or loss of profits whatsoever which result from any loss of data or use or access of, or any inability to use or access, or any operational error within goods or services we provide to You. Additionally, You agree to indemnify SmarterSoft and hold SmarterSoft indemnified from and against any and all actions, liabilities, claims, costs and expenses (including reasonable legal costs and expenses) arising out of any wilful, unlawful or negligent act, inaction, omission or breach of This Agreement by You.

11.7

Any indemnity given under This Agreement survives termination (including as a result of expiry of This Agreement) and applies to claims which may have occurred but are not notified during the term of any relationship You may have with SmarterSoft.

11.8

To the fullest extent permitted by law, SmarterSoft's liability for breach of any implied warranty or condition, which cannot be excluded, is limited at the discretion of SmarterSoft to the following:

In the case of services supplied or offered by SmarterSoft:

a) the supply of the services again; or

b) the payment of the cost of having services supplied again;

and In the case of goods supplied or offered by SmarterSoft:

a) the replacement of the goods or the supply of equivalent goods; or

b) the repair of such goods; or

c) the payment of the cost of replacing the goods or acquiring equivalent goods; or

d) the payment of the cost of having the goods repaired. 

12

 Your Usage Responsibilities

12.1

You agree to only use the Solutions for lawful purposes.

12.2

Unless otherwise explicitly stated by SmarterSoft in writing, You are the sole owner and are wholly responsible for all Content howsoever uploaded or input into any of the Solutions. 

12.3

It is Your responsibility to ensure that all Content entered into the Solutions is free from computer viruses, spyware, malware or other harmful electronic computer programs and complies with all applicable legislations, regulations, by-laws, ordinances or codes of conduct within the legal jurisdiction applicable to You.

12.4

You agree not to use the Solutions to upload or input Content which is illegal, false, misleading or deceptive, abusive, sexually explicit, defamatory, obscene or otherwise objectionable or invasive of another's right of privacy.

 12.5

You agree to be restricted to the usage, access and computing resource constraints applicable to the Solution or license You have purchased.

13

“Business Hours”

13.1

Normal Business Hours are from 8:30AM to 5:30PM Monday to Friday (excluding public holidays).

13.2

On Your specific request, SmarterSoft may perform work outside of Business Hours. All such requests are subject to SmarterSoft’s availability and shall attract a 25% surcharge on all base hourly rates.

14

What SmarterSoft Provides

14.1

As independent contractors, SmarterSoft shall generally supply all the tools and equipment required to perform work, including properly configured laptops and PCs, IDEs, Internet connections, software tools, utilities etc.

14.2

Where tools or equipment are required to perform work specific to Your business, the procurement of such are subject to the terms stated within Section ‘Procurement.’

15

Severance of Relationship

15.1

If, for any reason, You should decide to discontinue Your relationship with SmarterSoft, You may do so at any time. On receipt of 30 days written notice stating Your intent to terminate Your relationship with SmarterSoft, we shall cease any and all Project-Based Work, Auxiliary Work or Maintenance & Support . At this time, SmarterSoft shall issue a final invoice. You agree to pay for any and all work performed by SmarterSoft up until that point and all outstanding moneys shall become due as per Section ‘Payment Terms.’

15.2

Should SmarterSoft wish to discontinue the relationship, we shall provide no less than 90 days written notice to You.

16

Future Changes

16.1

SmarterSoft reserves the right to change these terms at any time by publishing an updated version of this statement at this website location (www.smartersoft.com.au/standard_business_terms).  The amended statement will apply whether or not SmarterSoft has given specific notice of any change.

16.2

The terms of any custom-made agreement that may exist between You and SmarterSoft supersedes This Agreement should it state that it does so.

17

Procurement

17.1

Packaged Software, Software Licenses, Hardware and External Suppliers

a) At Your request, we may research, evaluate or procure packaged software, software licenses, hardware or external services from our various suppliers, or any supplier You care to nominate, for a standard mark-up of 20% on our cost price. This mark-up covers the time, effort and intellectual property involved in procuring the product or service on Your behalf.

b) In the event that SmarterSoft are awarded the management, installation, setup or configuration of that packaged software, software license, hardware or external service, and subject to SmarterSoft performing further work, we reserve the right to reduce the standard mark-up to nil. Generally, any rebates received from our suppliers shall be passed on to You.

17.2

Tools, Equipment and Licenses

a) Should in the course of our work we require unique tools, equipment or software licenses to perform tasks for You, these shall be purchased by You. Where SmarterSoft sees fit, we may occasionally purchase such items ourselves. In either case, the purchaser shall retain full ownership of any tools, equipment or software license they purchase.

18

Onsite Visits and Travelling Costs

18.1

Requests for onsite visits, callouts or meetings ("Visits") during normal Business Hours may be organised if SmarterSoft staff are available. At least 48 hours notice is required.

18.2

Visits do not attract an additional fee, but all working time shall be billed at the General Consulting rate. Travel time to and from the Visit location shall be billed at half the General Consulting rate. Travel expenses, including, but not limited to toll fees, taxis, bus fares, ferry fares, parking fees and accommodation shall generally be billed and added to Your invoices at their cost to SmarterSoft.

18.3

A minimum of two (2) hours of work shall be billed per Visit, per person.

19

Packaged Solutions and Additional Fees and Charges

19.1

The following is a list of packaged Solutions and additional services which SmarterSoft may provide for You. Unless a variation to this section is issued to You by SmarterSoft in the form of a written proposal, plan or quotation outlining any agreed changes, additions or exclusions, the terms and conditions of this section shall apply:

a) Website Hosting and Management Fee

For the continuation of the Solutions listed under in Section ‘Maintenance & Support,’ a monthly fee is generally payable. This fee shall vary depending on the requirements placed on the Solutions by You.

b) Technical Support

Phone and email support are available during normal Business Hours and shall be billed at the General Consulting rate. A minimum of 30 minutes of work shall be billed per instance.

c) Backup and Restore Testing

At Your request, during normal Business Hours we may perform regular restore from backup testing to ensure the availability and continuity of a Solution. In such a case, any time spent planning backup and restore activities as well as any time spent actually restoring from backups shall be charged as per the ‘Schedule of Rates.’

d) Test or Train Environment Setup (Integra™ based Solutions)

You may wish to run a second instance of a Solution for the purposes of training and testing. Such instances may be used to safely test new features or train staff in environments separate from Your live production service. A standard one-fee of $900 applies to each installation of a new test, train or development instance of a Solution. Additional product license fees may apply, depending on the service being installed.

e) Service Upgrades (Integra™ based Solutions)

Where a Solution we provide You makes use of our Integra™ product, on purchasing a license to Integra™ You shall be granted free minor upgrades and software bug fixes up until the next major version release of the Integra™ product. After which, should You wish to continue to be kept on the latest version of the Integra™ product, we shall provide You with an upgrade option (at additional cost).    

f) Production Deployment

Due to differences in effort and complexity regarding Production Deployment, all work associated with Production Deployment is additional, with costs to be determined at that time.

20

Applicable Law

20.1

This agreement is governed by the laws of the state of New South Wales, Australia. You irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales, and waive any objection to legal action being brought in those courts on the grounds of venue or inconvenient forum.

21

 Schedule of Rates

21.1

 The following rates shall apply:

* All rates are quoted in $AUD and are exclusive of GST. Any materials procured or consumed during our course of work are subject to the terms stated in Section ‘Procurement’. Rates increased on the 1st January 2009. Rates last rose on 1st August 2007.

(n1) Including business and systems analysis, product evaluation, purchasing recommendations, installation, setup and configuration of COTS, OSS and 3rd party packaged software, data or legacy systems migration and product upgrades. Also includes finding suppliers, researching and evaluating Solutions from various options available, sourcing hardware and software prices, other hardware related activates, installing and reinstalling operating systems and software, trialling various hardware and software combinations to get them to work, downloading and installing software patches, security fixes and updates, liaising with suppliers on Your behalf and explaining technical terms and recommendations to You. It also includes all activities required to obtain specifications from You, documenting those specifications, researching and designing Solutions. Any work that SmarterSoft perform for You that doesn’t fall into any other category is General Consulting work.

(n2) Including applications and utilities programming, internet programming, customisation or enhancements to COTS, OSS and 3rd party packaged software etc. More specifically this includes developing software Solutions, testing those Solutions, creating installation packages, correcting any operating anomalies, errors or omissions and modifying or improving the software to Your requirements. For individual work requests less than $5,000AUD, the General Consulting rate shall apply instead. For individual work requests greater than $5,000AUD, the rate is negotiable.

(n3) Including the preparation of training materials and onsite training of Your business users in the software systems.

(n4) Including the mapping of real-world entities and relationships to database objects, and the ongoing refinement and optimisation of the database structures to ensure data integrity and application performance.

(n5) Including consultation to formulate marketing goals and objectives, the design of online marketing campaigns and the ongoing monitoring and measurement of campaigns to ensure ROI. Also, includes functional business analysis, business modelling, business process improvement, business strategy and business development activities.

22

Definitions

22.1

The following definitions shall apply:

"AUD" - Australian Dollars

"COTS" - Commercial Off The Shelf (product or system)

"FTP" – File Transfer Protocol

"GST" - Goods and Services Tax (10% in Australia)

"HTML" - HyperText Markup Language

"IDE" - Integrated Development Environment (software)

"OSS" - Open Source Software

"PC" - Personal Computer

"ROI" - Return on Investment

"SSH" - Secure Shell

"SMS" - Short Messaging Service

"T&M" - Time and Materials

"UAT" - User Acceptance Testing