Purchase and Service Agreement

Version Date: 23 August 2018

 

1      DEFINITIONS AND INTERPRETATIONS

In this Agreement the following definitions shall apply unless the context otherwise requires:

 

“ACL” means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010.

Agreement” means the terms in this document and the relevant Proposal provided by OpusXenta to the Client subject to these terms (including any Schedules expressed to form part of this agreement);

Agreement Date” means the date of the last signature of the relevant Proposal provided by OpusXenta to the Client subject to these terms.

Client” means the person ordering Software or Services from OpusXenta as specified in the Proposal or otherwise.

Computer System” means the hardware, software, network, database, platform and/or infrastructure to be supplied by the Client on which the Software will reside or that is required to support the Software;

“Confidential Information” means any information of any type in any form or medium disclosed, provided or made available by a party to the other party in connection with this Agreement that is by its nature or regarded by the provider as confidential including without limitation the Proposal and any information relating to the Software or Services and this Agreement or a party’s business, clients, suppliers, employees or financial affairs, but excluding information which is or becomes generally available to the public other than as a result of a breach of this Agreement.

“Consultant” means anyone providing Services to the Client for or on behalf of OpusXenta.

“Disbursements” means all disbursements incurred by OpusXenta and/or its consultants related to the performance of the Services.  The Disbursements include but are not limited to parking costs, air fares, accommodation, meals, car hire and hire costs of venues for training

“EULA” means the end user license agreement as published (and revised from time to time) by the Software Vendor.

OpusXenta” means OpusXenta Pty Ltd (ABN 57 615 066 610 of L14, Tower 2, 101 Grafton Street, Bondi Junction, NSW

Fees” means collectively the Software Purchase Price, the Professional Services Fees and any other fees that the Client agrees to pay to OpusXenta under this Agreement;

Force Majeure Event means an event beyond the reasonable control of a party including without limitation an act of God or nature, fire, explosion, war, terrorist attack or action, an unlawful act against public order, an industrial strike, lockout or dispute, civil disturbance, governmental restrictions, prohibitions, controls or enactments of any kind, breakdown of machinery, refusal of any necessary Government consent or approval or similar events.

“Intellectual Property Rights” or IPR means all proprietary and intellectual property rights of any kind throughout the world, whether registered, patentable or not, including without limitation copyrights, patents, designs, circuit layouts rights, trade secrets, know-how, methods, techniques, strategies, plans, processes, procedures, trademarks, service marks, trade names, domain names and any right to apply for registration or renewal of any such rights.

 “Loss” means any loss, damage, cost, expense, liability, demand or claim (including third party claims) of any kind, however wherever and whenever arising on whatever legal grounds.

“Minimum Charge” means a charge equivalent to two hours of Services;

“Minimum System Requirements” means the recommended IT Infrastructure required for the optimal and successful operation of the software proposed by OpusXenta and / or the relevant Software Vendor;

“Overtime” means Services performed by OpusXenta for the Client before 09h00 and after 18h00 (AEST) on any weekday (excluding public holidays) and at any time on Saturdays, Sundays and public holidays;

“Overtime Rates” means the hourly rate (as specified in the Proposal) plus a surcharge payable by the Client for Overtime.  The surcharge is 33% of the hourly rate in respect of Overtime performed on any weekday.  The surcharge is 50% of the hourly rate in respect of Overtime performed on Saturdays, Sundays and public holidays;

Payment Schedule” means the payment schedule specified for the particular Software and / or Professional Services provided or to be provided to the Client under the terms of this Agreement, as specified in the Proposal;

Professional Services” means those services specified in the Proposal or as requested by the Client from time to time, either verbally or in writing by an authorised person, to be carried out by an OpusXenta in accordance with clause 4 of this Agreement;

Professional Services Fees” means the fees charged by OpusXenta for the provision of the Professional Services to the Client, as specified in the Proposal;

Order” means a Proposal that is accepted by the Client in accordance with clause 2.2.

Proposal” means any OpusXenta document provided to the Client which lists Software and / or Services and the related pricing. A proposal may also be called a job request or statement of works or may also be recorded in the minutes of a project meeting with the Client

Schedule” means a schedule of this Agreement;

“Services” means Professional Services and Support Services collectively;

Services Fees” means the fees charged by OpusXenta for the provision of the Services to the Client, as specified in the Proposal. Where Services are rendered Overtime, these fees will be charged at the Overtime rates;

Software” means the computer programs sold or subscribed to the Client by OpusXenta as listed in the Proposal;

Software Price” means the price that the Client must pay to OpusXenta for the use of the Software as specified in the Proposal and can include Software priced on a licensed and/or subscription basis;

“Software Assurance, Maintenance or Enhancement Plan” means the annual recurring fees by which the Software Vendor provides updates, fixes and new versions. It does not include the cost of installing and configuring the Software or help desk support, which comprise OpusXenta’s professional services and help desk contracts;

 “Support Services” means services which are provided in response to a request from the Client for assistance with resolving an issue or problem with the Software or the use of the Software and which are not part of the Professional Services contemplated in any Proposal;

“Subscription” means Software or Hosting Service which is provide on a subscription payment basis;

“Subscription Commencement Date” means the first of the month following the Agreement Date;

“Subscription Initial Term” means 12 months from the Subscription Commencement Date;

“Subscription Term” means the Initial Term and automatic annual renewal;

“Vendor” means any party that develops, manufactures, maintains, supplies and / or licenses the Software;

 

  • Interpretation
    • Words importing the singular number shall include the plural number and vice versa and words denoting any gender shall include all genders.
    • Headings are for convenience only and shall not affect interpretation.
    • All monetary amounts expressed in this Agreement are deemed to be in Australian currency unless otherwise stated.
    • A reference to a person includes any incorporated or unincorporated entity and conversely.
    • A reference to any party includes that party’s successors and permitted assigns.
    • A reference to any legislation in whole or in part includes any amendment, consolidation or replacement of it and all regulations, proclamations, by-laws and statutory instruments issues under it.
    • A reference to a conduct includes, without limitation, any omission, statement or undertaking.
    • An agreement, representation or warranty on the part of two or more persons binds them jointly and severally.
    • No provision will be construed adversely to a party on the grounds that the party is responsible for its preparation.

 

2      SUPPLY OF SOFTWARE

  • These terms apply to all Software and Services provided by OpusXenta to the Client under a Proposal or otherwise, to the exclusion of any other terms.
  • A Proposal is accepted by the Client if the Client signs it and returns a signed copy to OpusXenta, or if the Client proceeds to order any Software or Services offered in the Proposal, either verbally or in writing (including by email). An accepted Proposal as well as any other order of Software or Services by the Client (verbally or in writing) constitutes an Order.
  • Following an Order by the Client and subject to and conditional on the Client paying the Software Purchase Price, complying with the Payment Schedule and entering into the relevant license(s) or other agreements (if any) as required by OpusXenta or the Vendor, OpusXenta will process the order and provide the Software to the Client as specified in the Proposal.
  • The Client must satisfy itself and make all necessary inquiries to confirm that the Software ordered by it fits the intended use or purpose of the Client.
  • OpusXenta makes no warranty that the Software will satisfy the requirements of the Client or be fit for any purpose unless Professional Services have been provided to compile a detailed analysis of the requirements of the Client and a corresponding solution design has been produced in writing and fully adopted by the Client.
  • Ownership of the Software license(s) is as specified in the terms of the Software Vendor’s EULA terms. All responsibility with respect to the Software resides with the Client and Vendor. The role of OpusXenta and its consultants is limited to provide services for the implementation of the Software and the subsequent Support Services.
  • The use of any Software by the Client is governed by the relevant Vendor’s EULA. Should you require a copy of the current EULA, please email a request to [email protected].
  • If any Vendor license agreements, upgrade agreements or maintenance agreements are required to be executed by the Client before acquiring the Software from OpusXenta, it shall be a condition precedent to the provision of any Software or Services that the Client has executed such agreements.
  • OpusXenta shall not be liable to the Client for any rights or obligations that arise under the separate Vendor license, upgrade or maintenance agreements required to be executed by the Client. On termination of this Agreement, the Client shall continue to be bound by such other Vendor agreements.
  • After the Client places an Order, the Software may not be returned, and the Order may not be changed or cancelled, without the written approval of OpusXenta, which OpusXenta may give or refuse at its sole discretion.
  • The terms and conditions of this Agreement will apply to all Proposals issued by OpusXenta to the Client and all Software and Services ordered or supplied by OpusXenta to the Client after this Agreement Date, unless otherwise agreed in writing by the Client and OpusXenta.
  • For Software components which have not been developed by OpusXenta, OpusXenta is providing the Software as an Authorised Reseller and Independent Contractor only and accepts no responsibility whatsoever in relation to the Software or for any defects in the Software.
  • The Client understands and acknowledges that the Software may contain defects and OpusXenta agrees to notify the manufacturer of the Software of such defects if advised. OpusXenta cannot and does not provide any guarantees as to whether the manufacturer of the Software will fix such defects, nor provide any period for this to occur.
  • OpusXenta, or the Vendor, will deliver the Software to the Client in a timely manner. Delivery will occur irrespective of the delivery of Professional Services by OpusXenta to the Client under the terms and conditions of this contract.  Any quoted delivery dates are estimates only and OpusXenta will not be liable to Client for any delivery delays caused by any reason whatsoever or for any Loss resulting from such delays. The Client agrees to accept the Software on the date notified by OpusXenta and not to defer delivery of the Software in order to delay payment of the Software Purchase Price.
  • The Client must fully comply with the specifications of the Minimum System Requirements or Computer System as defined for the use of the Software, and acknowledges that failure to do so may limit, affect or prevent the proper function of the Software.

 

3      SUBSCRIPTIONS

 

  • For Software or Hosting Services provided under a subscription, Client may purchase extra Software or Hosting Services from time to time. Pricing for additional Software or Hosting Services purchased during the Subscription Term will be determined by the then current pricelist or as negotiated.
  • Additional Software will adopt the same Subscription Term end date as the then current Subscription Term.
  • On renewal of a Subscription Term, the price of the Software or Hosting Services may change. Client will be notified of any such price change as soon as is practicable.
  • For monthly based subscriptions, pricing is subject to the right of the Vendor to alter their pricing as they determine without notice.
  • In the event of non-payment of a scheduled payment, the balance of the total Fees for the Subscription Initial Term or renewals, as applicable, shall become immediately payable in full.
  • Client may terminate the subscription at the end of the Subscription Initial Term or subsequent renewal term by giving thirty days written. On termination, Client must pay all outstanding Fees due for the balance of the then current Subscription Term.

 

4      PROVISION OF SERVICES

  • OpusXenta will provide the Services to the Client either at the Client's premises or at OpusXenta offices, as deemed fit and practicable by OpusXenta.
  • The Client shall consult with OpusXenta to establish that its Computer System is suitable for the operation of the Software. The Client agrees that should its Computer System not be suitable, OpusXenta is not required to install the Software or to provide Services until such time as the Computer System is considered to be suitable by OpusXenta, in its absolute discretion and the Client will be solely liable for any Loss suffered by it due to any such delays.
  • Where Professional Services are to be provided at the Clients premises, OpusXenta shall schedule the provision of the Professional Services at a mutually convenient time.
  • Where the Professional Services are to be provided at the Client’s premises, the Client agrees to provide OpusXenta any facilities, information and assistance required by it including computer access and furniture appropriate to the nature of the Professional Services to be provided.
  • The Client acknowledges that OpusXenta may at its sole discretion engage any Consultants as it deems fit for the provision of Software or Service, in whole or in part (including third parties engaged by OpusXenta).
  • Consultants will record their time spent in rendering the Professional Services in a timesheet management system. The Client or its duly authorised representative/s will be provided with a detailed schedule of time spent on a regular basis.
  • When OpusXenta consultants are engaged in providing Professional Services for extended periods, the consultants are entitled to reasonable breaks as part of the provision of Professional Services.
  • Where the Client requests a cancellation or alteration to a designated appointment with an OpusXenta consultant to provide Professional Services, the Client must provide a minimum of 24 hours advance notice of such cancellation or alteration. OpusXenta will reserve the right to charge a cancellation fee equivalent to the Minimum Charge plus any travel change or cancellation fees if insufficient notification is given.
  • If the Client reasonably finds the performance of the OpusXenta Consultant assigned to carry out the Professional Services to be unsatisfactory, the Client may request a replacement Consultant from OpusXenta and OpusXenta will endeavour to assign a replacement Consultant.
  • When upgrades to the Software provided by the Vendor directly affect the functionality of the Software, the Client agrees to upgrade to the then current version of the Software at the Client’s cost at a mutually agreed reasonable time.
  • Where the time taken to render Services at the Client’s premises is less than two hours, then OpusXenta will charge the Minimum Charge.
  • For any visit to the Client’s premises by a Consultant, the time taken to travel between the Client’s premises and the OpusXenta premises, one way, will be billed as Professional Services.
  • Where Services are provided as Overtime, these Services will be billed at Overtime Rates.
  • OpusXenta makes no warranties with regard to response times and the effectiveness of Support Services. OpusXenta agrees to act in good faith and will make every effort to respond to all queries in a timely manner, depending upon the nature of the query and the availability of resources.
  • When support issues are not easily resolved and time needs to be spent in investigating alternative solutions, and providing OpusXenta has acted reasonably, then such time is chargeable by OpusXenta and payable by the Client.
  • Where specialist services are required to resolve an issue, OpusXenta reserves the right to engage the services of any third party it deems fit to assist in the resolution, at the cost of the Client, subject to the Client’s approval which will not be unreasonably withheld.
  • Where there are defects in the Software, OpusXenta will make all reasonable efforts to have such defects corrected by the Vendor of the Software. OpusXenta will assist the Client in finding alternatives in the use of the Software that compensate for the defects until they are fixed, as well as correcting any data issues resulting from such defects.  Except for where OpusXenta is the Vendor for Software, OpusXenta is not responsible for defects in the Software and the Professional Services provided by OpusXenta in respect to such defects are chargeable.
  • The Client is responsible for taking regular backups of the data that are consistent with industry best practices.
  • For as long as the Client uses the Software provided under this Agreement, the Client agrees that only Consultants designated and approved by OpusXenta will provide Professional Services for the Software.
  • OpusXenta accepts no responsibility for the non-performance of the Software as a result of any changes to the Computer System upon which it resides or the provision of any services relating to the Software by anyone other than OpusXenta or not approved by it or any failure to comply with the Vendor’s, Manufacturer’s or OpusXenta’s instructions or any wilful or negligent act or omission of the Client or its employees or contractors.

 

5      PAYMENT OF THE FEES

  • The fees for all Professional Services undertaken by a Consultant will be detailed and recorded on timesheets and invoices and will be submitted to the Client periodically.
  • OpusXenta will charge the Client for the Disbursements, which will also include a per diem of $100.00 per day (only where interstate or international travel is required).
  • The Client acknowledges that the Professional Services Fees specified in the Proposal are an estimate only and that the actual Fees are likely to vary from the estimate depending on the actual Services provided.
  • OpusXenta reserves the right to revise its Professional Service Fees periodically and to notify the Client in writing of such revisions and the effective date of those revisions.
  • Payment for Software is required to be made as specified in the Payment Schedule.
  • Services are billed progressively on a time and materials basis and due and payable as specified in the Payment Schedule.
  • For fixed cost or milestone based projects, the Client shall pay the Fees at the times for payment specified in the Payment Schedule.
  • All prices, fees and charges referred to in this Agreement or a Proposal are exclusive of GST and any other applicable duties, taxes or levies, The payment of any Government taxes, duty and/or excise applicable to this Agreement now or in the future shall be the sole responsibility of the Client.
  • The Client must pay OpusXenta the Fees in accordance with the Proposal and Payment Schedule, without any deduction or set off. If the Client fails to pay any amounts due to OpusXenta on their due date, the Client must:
    • pay OpusXenta an interest on any overdue amount at an annual rate of 5% (five per cent) above the prime overdraft rate charged from time to time by OpusXenta’s bank calculated and payable daily; and

 

  • indemnify OpusXenta for any Loss incurred by it in connection with the Client’s failure to pay including without limitation the costs of recovering the overdue amounts and legal costs and expenses.

 

  • if the Client fails to pay OpusXenta any amount due to it or fails to remedy a breach of the contract within 7 days of being requested in writing to do so, or becomes insolvent, all monies owed by the Client to OpusXenta on any account become immediately due and payable, and in addition OpusXenta may at its sole and absolute discretion, without derogating from any right or remedy available to OpusXenta under this Agreement or any law, take any one or more of the following actions:
    • suspend any Services provided by OpusXenta to the Client;
    • defer without penalty delivery and retain possession of any Software ordered by but not yet delivered to the Client (whether under the same Proposal or another) for so long as any amount remains overdue;
    • refuse to accept any order placed by the Client;
    • terminate this Agreement by a notice in writing to the Client, forfeit any moneys paid by the Client to OpusXenta and recover damages for breach of contract.

 

6      OWNERSHIP OF INTELLECTUAL PROPERTY

  • OpusXenta and the Client will be mutual owners of all IPR developed or created by OpusXenta in the course of or in connection with this Agreement or the provision of the Services, including without limitation all IPR in or relating to any modification, improvement, invention, discovery or work product (Contract IPR) and including any modifications to the Software or to the Client’s Computer System at the Client’s request (Client Modifications).
  • Client will have a perpetual, irrevocable, worldwide, royalty-free non-exclusive non-transferable licence to use and further customise the Client Modifications.
  • For the purpose of clarity, Client may not sell, rent or otherwise provide any of the IPR to any other person or entity for any reason.
  • The Client acknowledges that OpusXenta, as a mutual owner of the Client Modifications and Contract IPR referred to in clause 1 shall not be restricted in their use, sale or application and may deal with them as OpusXenta sees fit.
  • Nothing in this Agreement shall be construed as restraining OpusXenta, its employees, agents, or subcontractors in the use of the techniques and skills of computer programming and design which may be acquired in the course of performance of this Agreement or providing the Client with any rights in the proprietary programs in which the Client programs may be written.
  • All IPR in and relating to the Software remains exclusively with the relevant Vendor.

 

7      GENERAL TERMS AND CONDITIONS

  • We may amend the terms of this Agreement from time to time. We will give 30 days prior notice of any such change and will come into effect after the notice period.
  • The Client is solely responsible to back up, safeguard and protect all data, records and systems in the possession or control of the Client (Client Data). The Client acknowledges and agrees that OpusXenta is not responsible for any Loss or damage to the Client Data, whether caused as a result of the Services or otherwise. OpusXenta will assist with data transfers and conversions and similar activities where required by the Client at its cost, but the responsibility for the integrity and accuracy of the Client data remains solely with the Client.
  • OpusXenta or its Consultants are not responsible for any Computer System component, software, hardware, infrastructure or any associated items that have not been supplied by it to the Client, or any Loss or damage caused to them or by them. Where there is uncertainty as to the cause of a problem, a systematic approach designed to identify the source of the problem will be undertaken and the Client agrees to pay for any services provided by OpusXenta in carrying out these activities.
  • OpusXenta provides the Software and Professional Services specified in this Agreement or any Proposal subject to any applicable contract that OpusXenta has entered into with the Vendor of the Software (Vendor Contract). If the Vendor Contract or any action, omission or delay of the Vendor affects the ability of OpusXenta to meet its obligations under this Agreement, OpusXenta will not be held responsible by the Client for any non-performance of this Agreement.

 

8      HOSTING

  • Where the Client does not wish to maintain their own Computer System for the Software, OpusXenta will offer a service to host the Software for the Client (“Hosting Service”).
  • OpusXenta does not maintain it’s own hosting infrastructure for the Software. OpusXenta uses the infrastructure provided by Amazon Web Services (“AWS”) or Microsoft Azure (“Azure”).
  • The provision of the Hosting Service is provided under the service level agreement (“SLA”) offered by AWS and Azure. The SLA, as revised from time to time, may be viewed on the AWS website.
  • OpusXenta or its Consultants are not responsible for the AWS or Azure service. Where there is a problem, a systematic approach designed to identify the source of the problem will be undertaken by OpusXenta together with AWS or Azure to resolve any issue.
  • Client acknowledges that any claim for an interruption or fault in the Hosting Service must be made on AWS or Azure and any such claim would be subject to the AWS or Azure SLA.
  • While OpusXenta will make every effort to resolve a problem encountered with the Hosting Service and will not charge the Client for any Services relating to such a problem, OpusXenta does not warrant the AWS or Azure service and will not be liable for any Loss incurred by the Client in connection with the Hosting Service or its use or operation.

 

9      HELP DESK

  • OpusXenta offers a help desk service called OpusCARE. Where the Client does not subscribe to a OpusCARE plan or where it is not included with the Software, then all Support Services will be billed as Professional Services in fifteen minute increments.

 

10    ACCEPTANCE OF SOFTWARE AND PROFESSIONAL SERVICES

  • The Client shall be deemed to have accepted the Software on the anniversary of one month from its date of installation, unless there are unresolved issues that significantly impact the performance of the Software which the Client has raised with OpusXenta and were not resolved within that one month (or any longer period agreed by the parties).
  • The Client shall be deemed to have accepted the Professional Services and verified that the tasks itemised on timesheets and/or invoices for Professional Services have been completed if the Client does not dispute them within 14 days of the date of the relevant time sheet or invoice.
  • If the Client reasonably disputes a timesheet or invoice relating to Professional Services Fees, the Client must notify OpusXenta in writing within fourteen (14) days of the date of the timesheet and/or invoice of the reasons of the dispute and proposed way to reconcile it. If the Client submits a written dispute notice to OpusXenta within this timeframe:
    • the Client must still pay OpusXenta any undisputed part of the invoices; and
    • the parties will attempt in good faith to resolve the dispute, and if they are unable to do so within 30 days of OpusXenta receiving the dispute notice, any dispute, controversy or claim arising out of, relating to or in connection with this agreement, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. ANY CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, MUST BE BROUGHT NO MORE THAN ONE (3) MONTHS AFTER IT AROSE, OTHERWISE THE CLAIM OR CAUSE OF ACTION SHALL BE BARRED, EXCEPT THAT THE FOREGOING LIMITATION AND THE ARBITRATION PROVISION SHALL NOT APPLY TO THE ENFORCEMENT BY OPUSXENTA OF YOUR PAYMENT OBLIGATIONS. THIS PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. Costs will be equally borne by OpusXenta and the Client.

 

11    LIMITATION OF LIABILITY

  • The Client acknowledges that OpusXenta is selling the Software to the Client as the agent of the Vendor of the Software and that the Client’s remedy for any Loss or damage of or caused by the Software is to be sought from that Vendor. To the fullest extent permitted by law, OpusXenta will not be liable for any Loss incurred by the Client in connection with the Software or its use or operation. If the Client is a consumer as defined under the ACL, the consumer guarantees set out in Part 3-2 Division 1 of the ACL will apply, and to the extent permitted by the ACL, OpusXenta’s liability in connection with any failure to comply with a Consumer Guarantee will be limited, at its sole discretion,
    • if the liability relates to goods:
  • the replacement of goods or the supply of equivalent goods provided as part of the Professional Services;
  • the repair of goods;
  • the payment of the costs of replacing the goods or of acquiring equivalent goods; or
  • the payment of the cost of having the goods repaired; and
    • if the liability relates to Services:

(a)  the supplying of the services again; or

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

  • otherwise shall be limited to the maximum extent permitted by law and this Agreement.
  • To the fullest extent permitted by law, any liability of OpusXenta under or in connection with this Agreement will:
  • Be limited to and not exceed the amount of Fees actually paid to OpusXenta for the portion of the Software or Services giving rise to the liability; and
  • Be reduced by the amount of any contributory loss or damage to the extent caused by the Client’s act or omission.
  • To the fullest extent permitted by law, OpusXenta will not be liable (whether under statute, in contract, in torts (including negligence) or otherwise) for any:
  • Consequential, incidental, indirect or special Loss (including loss of profit, contract, opportunity, goodwill, production, savings or data) arising in connection with this Agreement, the Software or the Services;
  • Loss arising due to a Force Majeure Event.

 

12    INDEMNITIES

  • The Client indemnifies and holds OpusXenta harmless from and against any and all Losses, including reasonable legal expenses imposed upon, incurred by or asserted against OpusXenta on whatever legal grounds in connection with the use or application of the Software or the Services by the Client or any failure on the part of the Client to perform or comply with this Agreement.
  • OpusXenta agrees to indemnify and hold the Client harmless from and against any and all Losses including reasonable legal expenses imposed upon or incurred by the Client as a result of the infringement of third party intellectual property rights by the Professional Services provided by OpusXenta to the Client in accordance with this Agreement.

 

13    WARRANTY

  • OpusXenta warrants that the Professional Services provided in accordance with this Agreement will not violate any provision of any contract or agreement to which OpusXenta is a party, or in infringe upon any third party patent, copyright, trade mark or trade secret.
  • To the fullest extent permitted by law, all warranties, representations, terms and conditions that are not expressly included in this Agreement are excluded. Without limiting the above, OpusXenta makes no warranties in relation to the fitness of the Software for any specific purposes or needs of the Client.
  • The Client warrants that it has not relied on any representation or warranties made by OpusXenta which are not expressly stated in this Agreement or upon any descriptions or illustrations or specifications contained in any document including publicity material produced by OpusXenta or the Vendors or of the Software.

 

14    TERM AND TERMINATION

  • This Agreement commences on the Agreement Date and will continue until terminated in accordance with the terms of this Agreement.
  • If either party breaches any term or condition of this Agreement the party not in default may forward a written notice to the defaulting party specifying this clause, describing the breach and requiring the other party to remedy the breach. If the party in default does not remedy the breach to the reasonable satisfaction of the other party within fourteen (14) days of the defaulting party’s receipt of the notice, the party not in default may terminate this Agreement by giving a written notice to the other party specifying the termination date (which can be immediate).
  • Notwithstanding any expressed or implied terms of this Agreement, provided the Client is not in breach of this Agreement, the Client may terminate this Agreement at any time by giving OpusXenta thirty (30) days written notice of its intention to terminate.
  • OpusXenta may terminate this Agreement:
    • Immediately if the Client becomes insolvent or fails to pay OpusXenta any Fees or amounts due or owing to it;
    • At any time by giving the Client a thirty (30) days written notice;
    • if in the reasonable opinion of OpusXenta the Client consistently fails to:
      • implement suggestions; or
      • undertake recommendations provided by OpusXenta; or
      • provide OpusXenta with adequate or timely instructions.
    • On termination or expiry of this Agreement for any reason, the Client must pay OpusXenta all outstanding Fees due or owing to OpusXenta by the Client up to the time of termination, and OpusXenta will be entitled to retain in it’s possession, all documents, files and/or equipment or materials of the Client and shall be entitled to withhold the same until all such outstanding Fees and accounts are paid (without limiting any other right or remedy available to OpusXenta under this Agreement or otherwise in relation to the Client’s failure to pay).

 

15    EFFECT OF TERMINATION

 

15.1        If this Agreement is terminated for any reason:

  • all Fees that are due to be paid or owing by the Client to OpusXenta up to the date of termination must still be paid by the Client immediately;
  • the Client must immediately return to OpusXenta all copies of any material containing OpusXenta’s Confidential Information, or destroy, delete or otherwise deal with it as instructed by OpusXenta; and
  • the Client must immediately return to OpusXenta all other property of OpusXenta in the possession or control of the Client; and
  • Termination of this Agreement for any reason does not prejudice any rights a party may have accrued under the Agreement or at law up to the date of termination; and
  • Termination will not mean that any EULA or Subscription terminates. The terms of any applicable EULA or Subscription will remain in force.

 

16    CONFIDENTIALITY

 

  • The Confidential Information of each party will remain the sole and exclusive property of that party.
  • Each party must keep the Confidential Information of the other party confidential at all times, protect it from unauthorized use, disclosure or third party access, not copy or reproduce it in any way and not use it for any purpose other than as needed for the performance of this Agreement.
  • Without the prior written consent of the other party, a party must not disclose, communicate, make available or allow access to the Confidential Information, directly or indirectly, to any third party, or assist or permit any person to do so, except as required by law or to its own personnel on a need to know basis to the extent necessary for the performance of this Agreement.
  • Without limiting the above the Client acknowledges that OpusXenta invests substantial time and cost in the development of its methodology and documentation including the Proposal. The Client agrees to keep all such information strictly confidential and to use it only as it was intended and for internal purposes only. The Client agrees not to duplicate or distribute these documents or methodologies unless specifically agreed in writing by OpusXenta.

 

17    PERSONEL

 

  • Each party recognises that the completion of the Services within any agreed timetable requires the continuing co-operation and goodwill of both parties and the allocation to the Services of qualified and competent personnel from both parties.
  • The parties recognise that the successful provision of the Services will require supervision, and each party therefore agrees to appoint a ‘Project Manager’. Unless in case of emergency, no employee or professional agent of Client will give any instruction to any member of OpusXenta’s personnel except through Client’s and OpusXenta’s respective project managers.
  • The parties must ensure that while any of its personnel are at any of the other party's premises they will conform to the policies and procedures the other party has in place in relation to industrial relations, occupational health and safety and security, subject to being given a written copy of such policies.
  • OpusXenta reserves the right to suspend the Services where, in its reasonable opinion, conditions at the location where such Services are provided represent a hazard to the safety or health of any member of OpusXenta’s personnel.
  • OpusXenta shall maintain for the period during which the Professional Services are to be provided, public liability and professional indemnity insurance in an amount adequate to cover any claims that may arise from the provision of Professional Services under this Agreement.

 

18    GOVERNING LAW

 

  • This Agreement shall be governed by and construed according to the laws in force in New South Wales and the parties agree to submit non‑exclusively to the jurisdiction of the Courts of New South Wales.

 

19    FORCE MAJEURE

 

  • If a Force Majeure Event affecting a party prevents that party (the Affected Party) in whole or part from complying with its obligations under this Agreement then:

 

  • as soon as reasonably practicable after the Force Majeure Event occurs the Affected Party must notify the other party of the Force Majeure Event;
  • to the extent and for the period that the Affected Party is prevented by the Force Majeure Event from complying with its obligations under this Agreement, those obligations will be suspended; and
  • the Affected Party must immediately notify the other party when the Force Majeure Event ceases.
  • This Clause does not apply to an obligation to pay money under this Agreement.

 

20    COSTS AND TAXES

 

  • Each party will pay for its own legal and other costs of and incidental to this Agreement or other agreements required to be executed under it including their preparation, execution, registration, stamping and enforcement.
  • If there is any consumption tax or goods and services tax or any other tax, levy or duty applicable to the payment of any Fees payable under this Agreement, the Client will add such tax amount to the Fees payable by it to OpusXenta, subject to receiving from OpusXenta a tax invoice specifying the applicable amount.

 

21    ASSIGNMENT

 

  • This Agreement or any right or benefit under it may not be assigned, transferred or novated by either party to any third party without the prior written notice of the other party, except that OpusXenta may assign the Agreement to a related company.

22    WAIVER

 

  • Any waiver of any right, power or remedy granted to a party under this Agreement must be in writing signed by that party. No other conduct of a party (including without limitation a failure or delay in exercising the right, power or remedy) operates as a waiver of or otherwise prevents the future exercise of the right, power or remedy.
  • Any right, power or remedy granted to a party under this Agreement is in addition to and without derogating from any other right, power or remedy granted to that party in any applicable law, equity, agreement or otherwise.

 

23    AMENDMENT

 

  • Neither this Agreement or any of its terms may not be amended except by written instrument signed by both parties.

 

24    ENTIRE AGREEMENT

 

  • This Agreement constitutes the entire agreement between the parties in relation to its subject matter, and it supersedes and replaces any prior arrangements, agreements, communications or undertakings in respect of its subject matter.

 

25    SEVERABILITY AND SURVIVAL

 

  • If any of the provisions of this Agreement shall to any extent be held by any Court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected and shall remain in full force and effect.
  • The obligations contained in Clauses 6, 7, 11,12 and 16 shall survive the expiry or termination of this Agreement for any reason.

 

26    RELATIONSHIP BETWEEN THE PARTIES

 

  • The relationship between the parties is that of independent contractors. Nothing in this Agreement creates any other relationship between the parties including any relationship of partnership, agency, trust, joint venture or any other relationship where a party may be liable for the actions of another party.

27    NOTICES

 

  • A notice or other communication required or permitted, under this Agreement, to be served on a person must be in writing and may be served:
    • personally on the person;
    • by leaving it at the person’s current address for service;
    • by posting it by prepaid post addressed to that person at the person’s current address for service;
    • by facsimile to the person’s current number for service; or
    • by email to the person's current email address for service.
  • Particulars for Service
    • The particulars for service of each party are the particulars specified on the Proposal or otherwise provided in writing by each party to the other.
    • A party may change the address, facsimile number or email address for service by giving written notice to the other party.
    • If the person to be served is a company, the notice or other communication may be served on it at the company’s registered office.
  • Time of Service
    • A notice or other communication will be deemed to have been served:
      • if served personally or left at the person’s address, upon service;
      • if posted within Australia to an address in Australia, two Business Days after posting and in any other case, seven Business Days after posting;
      • if served by facsimile, at the time indicated on the transmission report produced by the sender’s facsimile machine indicating that the facsimile was sent in its entirety to the addressee’s facsimile;
      • if served by email, at the time the email containing the notice left the sender's email system, unless the sender receives notification that the email containing the notice was not received by the recipient;

but if the notice if received after 5.00pm in the place of receipt or on a day which is not a Business Day, it will be deemed to have been received at 9.00am on the next Business Day.

Contact Us

Australia: 1300 994 853
AU International : +61 2 8315-3239
United States: +1 (833) 236-2736

Email: [email protected]

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What We Do

OpusXenta are leaders in providing cemetery software solutions that are critical to the success of the cemetery's strategy while also assisting them in improving customers experience, reducing sales friction and driving revenue growth so that they can focus on their strategy and not the systems that underpin it.