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The DataLink Pacific Pty Ltd Standard Terms and Conditions comprise three parts, the “DataLink Software Purchase Agreement”, the “DataLink Software Licence Agreement”, which applies in all cases, and the “DataLink Software Support and Maintenance Agreement" which only applies where DataLink is in receipt of maintenance and support fees covering the period
1.0 DataLink Software Purchase Agreement:
1.1 You the customer and DataLink Pacific Pty Ltd (DataLink) agree that your order is an offer to purchase the product and services listed in your order ("Order") on the terms and conditions set forth below, and such Order constitutes your agreement to these terms and conditions, which become a contract ("Agreement") when accepted by DataLink. Such acceptance occurs when you (Purchaser) receive a confirmation notice referencing your Order or when DataLink ships you the Order, whichever occurs earlier, and any payment, banking or negotiation shall not constitute an acceptance by DataLink. You represent that you have the legal authority to enter into this Agreement on behalf of yourself or any party you represent.
1.2 This Agreement may not be altered, supplemented, or amended by the use of any other document(s). Any such attempt will be null and void unless otherwise agreed to in a written agreement signed by both you and DataLink
1.3 If any provision of this Agreement is held to be invalid by any law, rule, order or regulation of any government or by the final determination of any state or federal court, such invalidity shall not affect the enforceability of any other provision of this Agreement
2.0 Governing Law
2.1 The laws of the State of New South Wales and Australia govern this sale.
3.0 Payment Terms
3.1 DataLink accepts only those credit cards and payment options mentioned on the product ordering pages for payment of your purchase.
4.0 Goods and Service Tax
4.1 For Australian orders the 10 per cent Goods and Services Tax is payable. Prices shown on the DataLink website are shown exclusive and inclusive of the 10 per cent Goods and Services. You agree to pay these taxes. For International orders the Goods and Services Tax is not applicable and the purchase price will be that shown on the DataLink Pacific website as the tax excluded price.
5.0 Software License
5.1 Software purchased from DataLink under this Agreement is sold subject to the end user License Agreement. The Purchaser agrees that you will be bound by this license agreement once the software is provided to the end user by way of download or if provided as a package, when the package is opened or its seal is broken. At all times Title to all applicable software will remain with the licensor(s).
6.0 Submission and Acceptance of Application to Purchase
6.1 The Software Purchaser will submit an “Application to Purchase” form with the required information. Datalink will assess the Application to determine if the customer’s Online Store is a “standard” or “non standard” version of the Online Stores mentioned on DataLink’s website at www.datalinkpacific.com.au .
6.2 If the Online Store of the Purchaser is a “standard” version then DataLink will issue an invoice for the amount published on the DataLink website. When payment has been received DataLink will issue a “Letter of Acceptance” to the Purchaser.
6.3 If the Software Purchaser’s Online Store has been assessed as “non standard” and additional “customization” charges apply then DataLink will advise the Purchaser in writing of these additional charges. If the Purchaser accepts these charges, in writing, DataLink will issue an invoice for the standard purchase fee plus the additional customization charges. . After payment is received DataLink will issue a “Letter of Acceptance” to the Software Purchaser. In the event that the Purchaser does not accept the additional charges the customer will be notified in writing that the order has been cancelled.
6.4 The “Letter of Acceptance” issued by DataLink will in all cases be the only instrument or action that signifies that a contract exists between the customer and DataLink.
6.5 DataLink reserves the right to refuse an application to purchase the DataLink Software.
6.6 DataLink reserves the right to determine what is a “standard” or “non standard” version of the Online Stores as mentioned on DataLink Pacific’s website.
7.0 Purchase Conditions
7.1 The DataLink software has been designed to be used on UNIX and Windows hosting platforms and the Windows Operating Systems with the basic or standard versions of the following ecommerce systems , OsCommerce, Zen Cart, cube cart, XCART and Ezi Merchant. Basic or standard version means that the ecommerce system has not been modified in any way. The prices displayed on the DataLink website for the DataLink OASIS software products is for use with the above shopping carts that have not been modified. When the software Purchaser makes a purchase for the prices shown on the website the Purchaser warrants that modifications have not been made to the basic versions of the shopping cart systems mentioned above.
7.2 The Purchaser agrees that the DataLink OASIS software is purchased for one domain name and the domain name is that which is submitted in the purchase order... The Purchaser agrees that under this Agreement the software cannot be transferred to another domain name.
7.3 The Purchaser agrees that prior to the software purchase being confirmed by DataLink the Purchaser will provide all relevant information to DataLink so that DataLink can make an assessment whether the Purchaser’s shopping cart system has been modified and if additional charges will apply for the purchase of the DataLink OASIS software. In this regard where access is granted by the software Purchaser to the purchaser’s website the “limitation of liability” (clause 12.1 of this Agreement) will apply.
7.4 After the software purchase has been confirmed by DataLink with the issue of a “Letter of Acceptance” (as outlined in Clauses 6.2 and 6.3 above) the software Purchaser agrees to provide all relevant information and take other actions that may be necessary to successfully implement the DataLink OASIS software. Specifically the purchaser agrees to provide access to the target computer so that the software can be installed by remote access. Where the DataLink Software is implemented by remote access the “limitation of liability” (Clause 12.1 of this Agreement will apply.
7.5 The Purchaser accepts that after purchase and implementation of the DataLink OASIS product that if the Purchaser (or Agent) makes changes to the structure of the Purchaser’s website (including the Database) that this may affect the correct working of the DataLink OASIS product. In such cases any work that is required to be done by DataLink to rectify the problem will not fall within the Support and Maintenance Agreement offered by DataLink, Work undertaken by DataLink in these cases will be a chargeable item at the current hourly rates as published from time to time.
7.6 The Purchaser agrees that there will be no updates or changes made to the database or new features introduced to the website during the implementation period of the DataLink software. If changes of this nature are made DataLink, at its sole discretion, may cancel the software Purchase contact for the particular customer involved.
8.0 Order Cancellation and Refunds
8.1 After the “Letter of Acceptance” has been issued by DataLink and a contractual arrangement exists between DataLink and the Purchaser and prior to implementation of the DataLink Software the Purchaser may cancel the contract. In this instance the Purchaser will forfeit 50% of the purchase price
8.2 If the Purchaser cancels the contract after the implementation of the DataLink Software commences there will be no refund given.
8.3 If DataLink cancels the contract due to a breach of the terms of this Agreement by the Purchaser, no refund will be given.
9.0 Software Warranty
9.1 The prices include a twelve (12) months limited warranty. The product will be replaced once in the first 12 months for any reason if the set up is the same as when the original software product was purchased. If a second copy of the software is required in the first 12 months a set up fee of half the original purchase price will be required. If the software purchaser has changed hosting company and a new set up process has to be undertaken, a $350AUD fee will apply.
After 12 months the customer will need to pay $350AUD to replace the product.
10.0 Not for Resale
10.1 You agree and represent that you are buying the software product for your use only, or for the use of the company or organisation you represent. You agree that the product cannot be resold, assigned, leased or rented to another party.
11.0 Ownership of DataLink OASIS Software
11.1 Title, copyright and all other proprietary rights to the DataLink OASIS software and accompanying documentation remains the property of the software owner.
12.0 Limitation of Liability
12.1 DataLink’s total liability whether for breach of contract, warranty, late delivery or non-delivery, negligence strict liability in Tort or otherwise is limited to the price of the particular software product sold with respect to which losses or damages are claimed. DataLink will not be liable for any incidental, special, or consequential damages, to the full extent such may be disclaimed by Law.
13.0 Product Revision
13.1 DataLink’s policy is one of on-going product update and revision. DataLink may revise or discontinue at any time products that the purchaser has ordered. DataLink may distribute software products that have the same or similar functionality and performance of the products ordered
DataLink Oasis Software Licence Agreement
1.0 Definitions
1.1 'Licence Agreement' shall mean this document.
1.2 'Licensee' shall be the individual or company purchasing the Licence
1.3 'DataLink' shall be Datalink Pacific Pty Ltd and their successors or assigns.
1.4 'Software' shall mean licences of Datalink OASIS computer program/s purchased under this agreement and shall include any replacements, modifications or additions supplied under this Licence Agreement (but shall not include any upgrades unless agreed by DataLink.
1.5 'User' shall mean an employee of the Licensee who exercises a right of access to a copy of the Software.
1.6 'Owner' shall mean the supplier organisation that owns the rights to the software and/or software component, and shall include its suppliers
2.0 License Agreement
2.1 This Agreement shall commence on the date of receipt of payment by DataLink and continue unless and until terminated in accordance with the provisions of this Agreement.
3.0 Exclusions
3.1 In respect of loss or damage arising out of or in any way connected with this Agreement and howsoever caused (whether by negligence or otherwise)
i. DataLink shall not be liable for (a) special, indirect or consequential loss (b) loss arising out of any delay or loss of time, production, profit, revenue or use.
ii. The liability of DataLink shall not in any event exceed in aggregate the sum of the cost of the purchase price of the DataLink OASIS software.
3.2 This Licence Agreement only covers usage of the Software in the country stated at the time of purchase. The Software may not be used in any other country.
4.0 Acceptance
4.1 The Licensee is encouraged to test the Software's suitability prior to purchase of any Licences. Acceptance is deemed to take place on purchase of the Licence.
4.2 DataLink undertakes for software it develops itself, that provided it is operated in accordance with the instructions contained in the documentation supplied with the Software, the Software will perform as stated in the documentation supplied with the Software. DataLink does not guarantee that the Software is free of minor errors not materially affecting such performance. The undertaking given in this Sub-Clause is in lieu of any condition or warranty express or implied by law as to the quality or fitness for any purpose of the Software. DataLink does not warrant or represent nor is it a condition of this Agreement that the functions contained in the Software will meet the Licensee's requirements or will operate in the combinations including any other hardware or software which may be selected for use by the Licensee or its customers or that the operation of the constituent parts of the Software will be uninterrupted or free of errors or that all errors will be corrected. All other conditions, warranties and representations express or implied by statute, common law or otherwise in relation to the Software are excluded by DataLink, to the fullest extent permitted by law.
5.0 Licence
5.1 Subject to Licensee's payment of DataLink fees and compliance with this Agreement, Licensee is granted a non-exclusive and non-transferable licence to use the Software strictly in accordance with the terms of this Agreement. All intellectual property rights and title to the Software shall remain with the Owner and no interest or ownership therein is conveyed to Licensee under this Agreement. No right to modify, adapt, or translate the Software or create derivative works there from is granted to Licensee. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that Licensee has any right to obtain source code for the Software.
5.2 Licensee may not, without the prior written consent of DataLink:
(a) lease, loan, resell or otherwise distribute the Software
(b) except as permitted in this Agreement, permit access to or use of the Software by or on behalf of any third party.
(c) Licensee shall indemnify DataLink and keep DataLink fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with;
(i) any breach by Licensee of this Clause 5; or
(ii) a breach of copyright or other intellectual property or proprietary right, or a breach of confidence by the Licensee, his servants, agents, employees and contractors.
5.3 Third parties to the Licensee may make use of the Software so long as it is used solely whilst connected to the Licensee's computer network or if not connected to the network, whilst on the Licensee's premises. Licensee shall ensure that such third parties shall adhere to the terms of this licence
6.0 Modification of the DataLink OASIS Software
6.1 The Licensee may not, without the prior written consent of DataLink, modify, reverse engineer or decompile the Software or incorporate the Software in programs not provided by DataLink.
7.0 Termination of Licence Agreement
7.1 DataLink may terminate this Agreement (including for the avoidance of doubt the licence at clause 5) forthwith by notice in writing:
(a) if the Licensee shall have committed a breach of its obligations under the DataLink Software Purchase Agreement
(b) and as stated hereunder which is capable of remedy and which shall remain unremedied thirty days after notice of such breach has been served by DataLink on the Licensee.
(c) if the Licensee shall have committed any breach of its obligations hereunder which is not capable of remedy.
(d) if the Licensee being an individual shall be declared bankrupt or being a company shall be declared insolvent or a receiver be appointed or shall go into liquidation save for the purpose of amalgamation or reconstruction or a charging order shall be made over any of its assets.
8.0 Ownership
8.1 The Software and all intellectual and proprietary rights in the Software are owned by the Owners, and its structure, organisation and code are the valuable trade secrets of the Owners. The Licensee shall follow all reasonable instructions given by DataLink from time to time with regard to the use of trade marks owned by the Owners and rights of the Owners.
8.2 Title, copyright and all other proprietary rights in the Software and the accompanying documentation and all parts and copies thereof shall remain vested in the Owners, and the Licensee hereby covenants not to permit the removal or deletion of any copyright notice which may be endorsed on the Software or the accompanying documentation
8.3 DataLink has secured sufficient rights to grant the licences herein
9.0 Assignment
9.1 The Licensee shall not assign any of its rights or obligations under this Agreement without the prior written consent of DataLink.
10.0 Force Majeure
10.1 Neither party shall be liable for failure to perform its obligations under this Agreement if such failure results from circumstances beyond the party's reasonable control.
11.0 Waiver
11.1 No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of the party under this Agreement.
12.0 Enforcement
12.1 If any term or provision or any part thereof contained herein shall be held to be illegal or unenforceable under any enactment or rule of law, such term or provision or part thereof shall to that extent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected thereby.
13.0 Publicity
13.1 DataLink may, without the prior written consent of the Licensee, advertise or publicly announce that they are providing services to the Licensee.
14.0 Complete Agreement
14.1 This Agreement is the complete and exclusive statement of the agreement between the parties which supersedes all proposals or prior agreements oral or written and save as expressly set forth herein all representations conditions or warranties express or implied statutory or otherwise are excluded.
15.0 Notices
15.1 Any notice to be given hereunder shall be delivered or sent by recorded delivery first class mail to the registered office in the case of DataLink or the Licensee if a corporation or to his usual or last known place of residence if the Licensee is an individual or firm and any such notice shall be deemed to have been served when delivered at the time of delivery or when so mailed at the expiration of 24 hours after the envelope containing the same was put into the mail and in providing such service it shall be sufficient to prove that the envelope containing the same was properly addressed and mailed as a prepaid recorded delivery letter.
16.0 Law
16.1 This Agreement shall be governed by the laws of Australia and if applicable the laws of New South Wales. No term of this agreement confers on any third part any benefit or any right to enforce any term of this Agreement.
DataLink Software Support and Maintenance Agreement
1.0 Definitions
1.1 "Supported Software" shall mean licences of DataLink software products purchased under this agreement.
1.2 "Annual Support Fee" shall mean the then current annual fee payable by the Customer to DataLink for provision of the support services.
1.3 "Customer" shall mean the person or organisation that purchases the Support Services under this agreement.
1.4 "Effective Date" shall be the date of receipt of the Annual Support Fee.
1.5 "DataLink" shall be DataLink Pacific Pty Ltd Limited and their successors or assigns.
1.6 "Customer Contact" shall mean the person or persons nominated by the Customer, who are employed by the Customer and designated to be the contact for any Response. Up to two named contacts are permitted per agreement, a primary contact and a backup contact for situations, such as sickness where the primary contact is unavailable.
1.7 "Response" shall mean a reply from DataLink to the Customer Contact, including but not restricted to, response via a DataLink Internet forum, telephone, email or fax.
1.8 "Support Services" shall mean those services referred to in clause 4
2.0 Software Purchases Placed and Accepted by DataLink Prior to 1st January 2008
2.1 The following conditions apply to Software Orders Placed and Accepted by Datalink prior to 1st January 2008.
(a) The price paid represents a once only payment for the Software.
(b) Email and Telephone support for the Software will apply for 3 months after the installation commencement date.
(c) Support for the Software after the 3 month period from the installation commencement date will be either on
(i) an hourly rate charge by DataLink of $99 AUD per hour per incident (minimum 1 hour) OR
(ii) the customer may sign up with DataLink for a Support Plan at $ 39.95 AUD per month Payments are required for 3 months in advance paid by Direct Debit
3.0 Software Purchases Placed and Accepted by DataLink from 1st January 2008
3.1 The following Conditions apply to Software Orders Placed and Accepted by DataLink from the 1st January, 2008
(a) The initial payment made is a yearly fee that is payable if the customer wishes to continue to use the software after the initial first year period
(b) The anniversary date for payment of the yearly fee is the date that the customer signified in writing that the DataLink Software had been installed and is working satisfactorily OR in the absence of customer issuing such a determination the date as determined by DataLink.
4.0 Scope of the Contract
4.1 DataLink agrees to provide the following Support Services to the Customer under this contract
(a) Technical advice on the use of the Supported Software, delivered by such means as DataLink deem appropriate at the time. This may include but is not restricted to, telephone, email, fax and Internet based communication. In order to provide a flexible service, DataLink reserves the right to change its support delivery methods without notice.
(b) DataLink shall endeavour to respond and resolve a problem within 24 hours; however in giving response, a solution to the problem in question cannot be guaranteed.
(c) Under this Agreement the customer must provide the information requested by DataLink so that problems can be resolved. If the customer fails to provide this information a solution to the problem in question cannot be guaranteed.
(d) If an issue cannot be resolved by first line support it will be escalated to second line support. DataLink will use reasonable endeavours to keep the Customer Contact informed of progress throughout this process. If second line support cannot resolve the issue then it will be passed to DataLink development staff. When a problem is considered mission critical, DataLink will make best endeavours to issue an "Emergency Patch" to resolve the problem.
(e) DataLink will make reasonable efforts to ensure that the skill levels of the staff providing the support and escalations are commensurate with the competence needed to resolve the service request.
(f) Support Services will only be provided to the Customer Contact.
(g) The Customer must ensure that the Customer Contact is a competent and knowledgeable user of the Supported Software and MYOB or other Accounting Software.
(h) For the duration of this agreement, DataLink will provide the Customer with upgrades to the Supported Software free of charge.
5.0 Items Not Covered by this Agreement
5.1 The following items are not covered by this Agreement and Datalink is not obliged to offer Support for these occurrences. :
(a) Advice and instruction in the use and operation of MYOB or other Accounting Software
(b) Advice and instruction in the use of the customers Online Store
(c) Incidents where the customer makes changes to the Online Store where the DataLink software links to and this directly affects the successful operation of the DataLink Software. For such incidents, if it is necessary to make changes to the DataLink Software, these changes made by DataLink will be charged at the applicable hourly rate.
(d) Incidents where the customer makes changes or upgrades of the MYOB or other Accounting software. If it is necessary to make changes to the DataLink Software these changes will be charged at the applicable hourly rate.
(e) Malfunction of hardware or operating system software.
(f) Negligence by the Customer.
(g) The Customer changes to an un-supported operating system.
(h) A Customer Contact is deemed by Datalink to be insufficiently competent with the Supported Software for the issue to be tackled effectively.
(i) Where the problem is caused by third party applications that have not been developed by DataLink
(j) DataLink will not, under this agreement provide any consultancy advice including, but not limited to, best-practice technical advice, data conversion, engineering advice.
(k) This agreement does not cover on-site installation or on-site support.
6.0 Term and Agreement Termination
6..1 The initial term of this contract for purchase orders placed and accepted by DataLink prior to 1st January, 2008 is 3 months from the commencement of installation date, unless the customer signs up for a Support Plan and this contract will continue on a month by month basis, subject to DataLink receiving the monthly support fee. If an incident occurs and the Customer has not paid the monthly fee then the Customer will be charged at an hourly rate, OR if the Customer wishes, the arrears in the monthly fee may be paid. Where arrears exist DataLink will not offer Support until the arrears are paid by the Customer.
6.2 The initial term of this contract for orders placed and accepted by DataLink from 1st January, 2008 will be for 12 months and will begin on the date determined as per clause 3.1 (b) of this Agreement. Extension of the use of the DataLink Software beyond the initial 12 month period will depend on the payment of the annual fee by the date determined as per clause 3.1 (b). Non payment of the annual fee by the due date will result in the suspension of the right to us the DataLink Software. If payment of the annual fee is not paid within 1 month of the renewal date the licence to use the DataLink Software will be cancelled. If payment is made subsequent to 1 month after the renewal date the Customer will be charged a “recovery” fee (as determined from time to time) for the continued use of the Software.
6.3 Either party may terminate this contract if the other party commits a material breach of its terms, which is not cured within sixty (60) days after written notice of such breach. In the event of such a breach by DataLink and the breach is within the control of DataLink, and it is a valid termination by the Customer, the Customer shall be entitled to a pro-rated refund of any unexpired portion of the annual fee.
6.4 Notwithstanding clause 6.3, DataLink may terminate the contract if
(a) The customer makes changes to their Online Store that affects the successful working of the DataLink Software and the Customer refuses to pay the cost of making changes to the DataLink Software to correct the problem
(b) The customer changes the MYOB software or other Accounting Software and this affects the successful working of the DataLink Software and the Customer refuses to pay the cost of making changes to the DataLink Software to correct the problem
(c) The non payment of annual fees
(d) In the event that DataLink cancels the contract under this clause no refunds will be given.
7.0 Exclusions
7.1 In respect of loss or damage arising out of or in any way connected with this Agreement and howsoever caused (whether by negligence or otherwise)
(a) DataLink shall not be liable for special, indirect or consequential loss OR loss arising out of any delay or loss of time, production, profit, revenue or use.
(b) The liability of DataLink shall not in any event exceed in aggregate the sum of the cost of the DataLink Software This agreement only covers usage of the Supported Software in the country stated at the time of purchase.
8.0 Assignment
8.1 This agreement may not be assigned or otherwise transferred by the Customer without the prior written consent of DataLink
9.0 Support Fees, Invoices and Payment and Renewals
9.1 DataLink reserves the right to change the Annual Support Fee at any time. The changes will not take immediate effect with respect to the existing support agreements, but will be applied at the anniversary/annual renewal of this agreement. The Customer will be advised of any future price changes in a timely manner.
9.2 For Customers that applied to purchase the DataLink Software from 1 st January, 2008, a renewal notice will be sent prior to the anniversary date of the current agreement for an additional twelve-month period. The agreement will not continue unless payment is received by DataLink
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9.3 . The Customer shall be liable to pay any Goods and Services Tax (if applicable).
10.0 Other Proposed Terms
10.1 These DataLink standard terms shall exclusively govern the contract between DataLink and the Customer. No terms proposed by the Customer shall have any contractual effect.
11.0 Acceptance of Terms and Conditions
11.1 By lodging and Application to purchase DataLink Software the Customer shall be deemed to have read and accepted the DataLink standard terms conditions governing use of such software.
12.0 Law
12.1 This agreement shall be governed by the laws of Australia and if applicable the laws of New South Wales. No term of this agreement confers on any third party any benefit or any right to enforce any term of this agreement.
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