GP TECHNOLOGY SOLUTIONS
Also trading as SENTRAL EDUCATION
TERMS AND CONDITIONS
1. Definitions and Interpretation
1.1 In this agreement the following words and expressions have the following meanings:
'acceptance date' means the date upon which the software is accepted as provided by clause 10;
'commencement date' means the date so specified in the schedule;
'customer' means the customer specified in the schedule;
'delivery date' means the date so specified in the schedule;
'designated computer equipment' means the equipment on which the software is to be installed as specified in the schedule;
'documentation' means the documents supplied by the supplier to the customer with the software and which contain technical information relating to the software;
'licence' means the licence of software granted pursuant to this agreement;
'licence fee' means the amount so specified in the annual invoice;
'location' means the place at which the designated computer equipmentis located as specified in the schedule and is defined as a single school or educational site
'owner' means the owner of the software specified in the schedule;
'schedule' means the Licence Fees outlined in all current order forms;
‘schedule of rates’ means the schedule of rates currently advertised by the company;
'software' means the computer program and related documentationas specified in the schedule;
'supplier' means GP Technology Solutions Pty Ltd.
‘ support fees’ means the amount so specified in the annual invoice;
‘ support services’ means the services set out in Attachment B to the extent specified as being provided in the schedule
‘term of the licence’ means the term of the licence specified in the schedule;
1.2 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.
2. Grant of Licence
2.1 The supplier hereby grants to the customera non-exclusive, non-transferable licence to use the software and the documentation on and subject to the terms and conditions of this agreement.
2.2 The licence is limited to the use of the software by the customer on any designated computer equipment at the location.
3.1 This agreement and the licence hereby granted commences on the commencement date.
3.2 Subject to the terms and conditions of this agreement, the licence shall continue for the term of the licence.
4.1 The supplier will on the commencement date or as otherwise agreed deliver a copy of the documentation to the customer. This documentation may also be in a digital online form.
4.2 The supplier will provide the customer from time to time with copies of any amendments to the documentation which may be issued by the supplier during the term of the licence.
4.3 The customer acknowledges the supplier's proprietary interest in the documentation. The customer will not copy the documentation except where necessary to enable proper use of the softwarein the manner reasonably contemplated by the parties
5.1 In consideration of the licence and support services, the customer shall pay the licence fee and the support fees to the supplier on the dates and/or at the intervals specified in the schedule of rates.
5.2 The licence fee and the support fees are exclusive of all taxes, duties and surcharges payable in respect of the software and the support services.
5.3 If any payment is not made within 14 days of any due date for payment the suppliershall be entitled, at its discretion, to:
5.3.1 suspend its remaining obligations under this agreement until the payment (and any interest due thereon) has been paid; and/or
5.3.2 terminate the licence; and/or
5.3.3 re-possess the software; and/or
5.3.4 cease to provide the support services.
6. Goods and Services Tax
6.1 Unless otherwise expressly stated, the licence fees set out in the schedule of rates do not include Goods and Services Tax (“GST”) and:
6.1.1 the customer shall, in addition to the licence fees, pay to the supplier an amount equal to the GST payable by the supplier for any taxable supply made by the supplier to the customer pursuant to this agreement;
6.1.2 the supplier will furnish the customer with a GST tax invoice complying with the regulations in force from time to time, in respect of each taxable supply upon which GST is charged pursuant to this agreement;
6.1.3 the customer shall pay the GST to the supplier on the same due dates as the dates for payment of any consideration payable pursuant to this agreement or if no such dates are specified, upon receipt of a GST tax invoice from the supplier.
7.1 The customer acknowledges that the supplier is the owner or the licensed distributor of the owner of the software who retains ownership of the software whether in its original form or as modified by the customer during the term of the licence.
8. Warranty as to title
8.1 The supplier warrants that it has the authority to grant the licence.
9.1 The software will be installed by the supplier or its designated and approved contractors
10.1 Upon initial installation of the software and/or delivery of a pre-imaged computer system by the supplier, the customer shall be deemed to have accepted the software.
11.1 The customer shall not modify the whole or any part of the software or combine or incorporate the whole or any part of the software in any other program or system without the prior consent in writing of the supplier.
11.2 The customer shall fully indemnify and hold harmless the supplier against any liability incurred if the said modifications infringe the intellectual property rights or a third person.
11.3 The software as modified remains the property of the owner.
11.4 This agreement shall continue to apply to the software as modified.
12. Reverse engineering
12.1 The customer shall not reverse assemble or reverse compile the software or any part of the software.
13.1 The customer shall be responsible for protecting the software and the documentation at all times from unauthorised access, use or damage.
14.1 Risk of loss or damage to the software, the media and the documentation shall pass to the customer upon delivery of the software to the location.
14.2 Backup and maitenance of all data stored, created and implemented in any way, is the responsibility of the customer.
15.1 Customer agrees to restrict access to and knowledge of any proprietary information with respect to the software to those employees of the customer who are directly concerned with the use of the software and the customer shall keep such information confidential.
15.2 Notwithstanding the foregoing, the customer's obligations with respect to the supplier's proprietary and confidential information do not extend to information which:
15.2.1 becomes publicly available without fault of the customer and any person, firm or corporation having apparent authority to act for the customer;
15.2.2 is rightfully obtained by the customer from a third party without restriction as to disclosure;
15.2.3 is shown by written record to be developed by the customer, independently of the supplier and/or the owner;
15.2.4 is shown by written record to have been known or available to the customer at the time of receipt from the supplier; or
15.2.5 is furnished to others by the supplier without restriction on disclosure.
15.3 The supplier shall treat as confidential, all information regarding the customer which comes into its possession pursuant to or as a result of or in the performance of this agreement. The supplier shall not, without the written permission of the customer, disclose such confidential information to a third party.
15.4 The operation of this clause shall survive the termination of this agreement.
16.1 The supplier warrants that it has the right to grant the licence to the customer.
16.2 Subject to clause 16.3, the supplier shall indemnify and hold harmless the customer against any claim made against the customer by a third party alleging that the software infringes the copyright of that third party.
16.3 The supplier shall not be liable to the customer under clause 16.1 or clause 16.2 if -
16.3.1 the customer does not notify the supplier of the other person's claim or of infringement of copyright within seven days after becoming aware of the claim;
16.3.2 the supplier's ability to defend the claim has been prejudiced by the customer's non-compliance with any of its obligations under this agreement;
16.3.3 the customer does not give the supplier reasonable assistance in defending the claim;
16.3.4 the claim has arisen because of the use of the software in combination with equipment, materials or computer programs not supplied or approved by the supplier; or
16.3.5 the customer does not permit the supplier to have control of the defence of the claim and all related settlement negotiations.
17. Exclusion of Liability
17.1 The supplier is not liable to the customer or any third party under this agreement or under general law to the extent that any loss or damage is caused or contributed to:
17.1.1 by the negligence of the customer or any third party;
17.1.2 by any breach by the customerof the terms and conditions of this agreement;
17.1.3 by the use of the software in conjunction with any other software not approved in writing by the supplier for use with the software;
17.1.4 by the use of the software in a manner or for a purpose not disclosed by the customer to the supplier prior to the commencement date;
17.2 The supplier shall in no circumstances be liable to the customer or any third party for any loss of profits or indirect economic loss caused by or arising from the supply of the software or the use of the software by the customer or any third party.
17.3 Except to the extent provided and as otherwise required by the Trade Practices Act, all statutory warranties and warranties implied by law on the part of the supplier are hereby excluded.
18. Force Majeure
18.1 Neither party shall be liable for the consequences of an occurrence of any event beyond its reasonable control.
19.1 For the purpose of this agreement, the following are terminating events -
19.1.1 the failure to remedy a breach by a party of any of its material obligations under this agreement, where the party in breach has been given at least 14 days notice requiring that breach to be remedied;
19.1.2 the appointment of any type of insolvency administrator in respect of the property or affairs of a party;
19.1.3 the entry or proposed entry by a party into any scheme, composition or arrangement with any of its creditors;
19.1.4 the permanent discontinuance of use of the software or any part of the software by the customer;
19.1.5 any event described in this agreement as a terminating event.
19.2 The licence may be terminated immediately on the happening of a terminating event at the option of the affected party.
19.3 If a terminating event occurs and the subject of that terminating event is the customer, and if the supplier requests, the customer shall destroy such software, copies, revisions, enhancements and up-grades by erasing them from the media and shall certify in writing to the supplier that they have been destroyed.
19.4 Any termination of the licence shall not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this agreement which is expressly or by implication intended to continue in force after such termination.
20. Entire Agreement
20.1 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.
21.1 Neither party shall assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of the other party.
22.1 This agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of New South Wales Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.
23.1 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.
24.1 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.
25. Dispute resolution
25.1 If a dispute arises between the parties, each party will nominate a representative with authority to negotiate and those representatives must meet promptly to discuss the dispute and to attempt to resolve the dispute. Both parties shall negotiate in good faith.
25.2 Unless the parties agree to a different form of dispute resolution, any dispute arising in connection with this agreement which is not resolved within 21 days of written notice of the dispute being given by one party to the other party shall be submitted to mediation by a mediator agreed by the parties or, failing agreement with in a further 7 days, a mediator nominated by the Australian Commercial Disputes Centre Sydney (ACDC). The mediation will be conducted in Sydney in accordance with the ACDC Mediation Guidelines and unless otherwise agreed, each party must pay half of the mediator’s and the ACDC’s fees. If the dispute is not resolved within 60 days after notice of the dispute, the mediation will terminate unless the parties otherwise agree. During such arbitration, both parties may be represented by a duly qualified legal practitioner.
25.3 Nothing in this clause prevents a party from seeking any urgent equitable relief from an appropriate court having jurisdiction over this agreement
GP TECHNOLOGY SOLUTIONS – SOFTWARE LICENCE
MAINTENANCE AND SUPPORT
This Agreement includes the annual licence/s and support nominated on the order form received by the supplier.
Support and maintenance terms are for bug fixes and issue resolution for existing functionality. Support and maintenance also includes any updates released by the supplier to its customers generally during the term of this agreement. All other requests for specific enhancements or new functionality will be considered on a case by case basis and may be subject to an additional charge.
Unless otherwise expressly stated, the support provided is telephone support and on-line support, including remote access to the customer’s file server.
On site support may be arranged by agreement and may be subject to an additional charge.
If any payment is not made within 14 days of any due date for payment of annual licence/s or support agreements the supplier shall be entitled, at its discretion, to suspend its remaining obligations under this agreement until the payment has been paid; and/or
- terminate the licence; and/or
- re-possess the software; and/or
- cease to provide the support services; and/or
- remotely deny access to the software; and/or
- remotely erase the software from the designated computer system
The Victorian Curriculum F-10 content elements are © VCAA, reproduced by permission. The VCAA does not endorse or make any warranties regarding this resource. The Victorian Curriculum F-10 and related content can be accessed directly at the VCAA website.