1. SOLUTIONS PLUS's OBLIGATIONS
Solutions Plus will provide services and products which to best industry practice meet the terms of reference, specifications and standards agreed to under the Software Supply and Support Agreement.
All programming work shall be carried out on the premises of Solutions Plus.
The latest and most recent versions of software are maintained and stored at Solutions Plus's premises using strict version control. Secure offsite backups are also kept protecting the Client from losing their copy of the licensed Solutions Plus software through corruption, virus attack, malicious damage or otherwise.
2. PROFESSIONAL RESPONSIBILITY
Solutions Plus accepts the professional responsibility to provide services and products, which to best industry practice meet the terms of reference, specifications and standards agreed between Solutions Plus and the Client. Solutions Plus does not warrant that the products or services supplied will be error or fault free.
Solutions Plus undertakes to remedy any faults or defects of the software, either under the terms of the Software Supply and Support Agreement or at our standard Consultancy Services rate; to comply to best industry practice with the terms of reference, specifications and or standards.
Solutions Plus is only obligated to develop or support software written by Solutions Plus using versions of Microsoft products, or any other supplier's products, which are currently being supported by Microsoft, or the preferred supplier.
3. TERMS OF AGREEMENT
This Agreement applies to all Solutions Plus standard software modules licensed for use by the Client, and other software subsequently developed by Solutions Plus to be used by the Client.
Solutions Plus agrees to provide the Client:
• The software (‘Software’), Licences and Support & Maintenance as per attached proposal;
• Agreed installation and setup services as per attached proposal;
• Reasonable telephone, email and remote access support for assistance with troubleshooting, feature explanations, and general guidance relating directly to the successful use of the Software;
• Support for the current and the previous two production versions of the Software;
• New releases of the Software on a mutually agreed media, at a frequency determined by Solutions Plus;
• Correction for any errors or faults in the Software that is a fault or defect of the Software on the terms and conditions so that the Software remains free from material defects and operates in accordance with the documentation.
• Maintenance of the Software to enhance the development toolset and the standard software modules in use on the terms and conditions set out below; incorporating agreed legislation changes and agreed modifications.
Solutions Plus agrees to provide a source management facility for the storage of the latest versions of the Software.
The Client agrees to:
• Pay the fees as per attached proposal and as per the Terms of Payment Schedule;
• Provide sufficient evidence to support any problems encountered including specific examples if the problem only happens occasionally; and
• Upgrade the Software, if it is installed on their hardware, to ensure their live system is one of the last 3 production versions.
4. HOSTED SERVICE
Scope of Service
Solutions Plus agrees to provide remote access to the hosted environment on which a fully operational version of the hosted Solutions Plus application is presented. A catalogue of the hosted server components provided to Solutions Plus by the current data warehouse provider will be made available to the Client, upon request.
Solutions Plus will provide the ability to remotely access and use the hosted application from the date that provisioning is completed. From the Completion Date, Solutions Plus will use its best endeavours to ensure that the hosted application will be available for 99.9% of all Scheduled Available Time as it relates solely to the hosted network and server infrastructure. Solutions Plus does not guarantee accessibility as it relates to hardware and connectivity located at the Client's site and in areas outside the hosted infrastructure. "Scheduled Available Time" shall be defined as 24 hours a day, 7 days a week, excluding;
Solutions Plus shall notify at least 24 hours in advance of the need for scheduled maintenance downtime. Solutions Plus will use its best endeavours to schedule a mutually agreeable time to perform scheduled maintenance.
The Client's data is available to the Client by logging on to the hosted service, or upon request to Solutions Plus at any time during the term of the service. Upon termination of the hosted service by either party, Solutions Plus will make the Client's data available or provide a data extract in the form of a Microsoft Excel file(s) or similar, providing all fees are paid in full up to the termination date.
Solutions Plus will take all reasonable measures to ensure that only authorised users and agents will have access to the Client's provisioned instance of the Solutions Plus application. Solutions Plus has no liability or responsibility for any security breach of or unauthorised access to, use or misuse of Client's data resulting from access by third parties as a result of the actions or inactions of the Client. The Client is responsible for the protection of their access credentials to the hosted service. Solutions Plus is not accountable for any intentional or unintentional distribution of these access credentials to 3rd parties by the Client.
Provisioning is the process of preparing and setting up the hosted server to allow it to provide services to Clients. The Client requires a standard, working internet connection that directly connects to the hosted server. Access via proxy servers or other indirect methods may work, but is not supported. Provisioning will ensure that the Client is able to connect to and load the software using certified web browsers such as Mozilla Firefox, Google Chrome, Apple Safari or Microsoft Internet Explorer. Provisioning does not include diagnostics or configuration of a Client's internet connection, or any third party service or entity that may interfere with connectivity such as firewalls or web security products.
The hosted services to be provided by Solutions Plus exclude the following:
In addition to any other exclusion or limitation of liability in these Terms of Business Solutions Plus shall not be liable for delays in performance of or access to the hosted service due to fire, acts of terrorism, acts of civil or military authority, or temporary unavailability of qualified personnel, network failure or other forces beyond its reasonable and immediate control.
Fees are payable in advance at the rate and frequency as defined in the Software Supply and Support Agreement.
Fees and frequency are reviewed on a regular basis to take account of inflation and significant changes in cost structure.
Additional consulting work is charged at our standard hourly rate. This includes business consultancy; project management; meetings; requirements gathering; analysis; design; development; testing; deployment; technical consultancy; and support.
Chargeable time is calculated using 15-minute units. Alternatively a full day of consulting work can be prearranged at a reduced rate.
All fees and services are invoiced at the end of each month. All work undertaken is itemised on the invoice.
All 3rd party products (hardware, system software etc) will be invoiced upon delivery and due for payment within seven days.
Package software will be invoiced on the basis of 50% of the purchase price on the earlier of the Software Supply and Support Agreement signed by both parties or receipt of order, the remaining 50% on the earlier of user acceptance sign-off or go-live date.
All invoices are, unless otherwise stated, due for payment by the 20th of the month following the invoice date. If fees are not paid by their due date, this may result in suspension of our services and/or support obligations until the fees are paid in full. Recurring non-payment of the fee will entitle Solutions Plus to terminate the Software Supply and Support Agreement immediately. Any part of an invoice disputed by the Client will not relieve the Client of its obligation to pay the balance of the invoice.
20% of the total invoice value may be withheld for payment for a further month to allow time for enhancements developed specifically for the Client to be fully tested by the Client.
The Client shall pay the cost of travel and accommodation expenses incurred by Solutions Plus while providing support.
7. SUPPORT AVAILABILITY
Support is available between the hours of 8.30am and 5.00pm (NZST) Monday to Friday, excluding NZ statutory holidays. If support is required outside these hours and the Client gives Solutions Plus reasonable notice then Solutions Plus will make every reasonable endeavour to provide such support, however such support may be chargeable in addition to the maintenance fee.
8. NOTIFICATION OF FAULTS
On discovery of an error or fault in the software, which requires the support of Solutions Plus, the Client will email or phone Solutions Plus at the email address or phone number supplied by Solutions Plus to advise details of the error or fault and request that it be rectified.
Solutions Plus shall work to best industry practice to meet any agreed timetable. However, meeting a timetable is not a condition of any agreement.
Solutions Plus shall work to best industry practice to deliver and install the software to the Client on the specified date(s), such date(s) to be agreed between Solutions Plus and the Client.
10. EXCESSIVE SUPPORT
If the amount of the support required is, in the opinion of Solutions Plus, excessive, Solutions Plus will inform the Client and both parties will discuss the reason for the excessive support, in order to reduce the amount of support required. The Client will provide all necessary assistance in this regard. Solutions Plus may impose a Time Allowance, fixing a maximum limit on the number of hours of support that Solutions Plus is required to provide per month. Any support incurred in excess of this Time Allowance shall be chargeable at an additional fee to the support fee at our current charge-out rates. The Time Allowance shall be cancelled when, in the opinion of Solutions Plus, the support required under the contract is no longer excessive.
11. REMOTE SUPPORT FACILITY
As efficient support can require remote access to a Client's database, the Client is responsible for ensuring suitable telecommunication hardware and software is properly installed on their premises and is liable for all costs incurred for this. Solutions Plus agrees to provide the Client with the information required to enable the installation of the remote support facility to be carried out.
12. PERFORMANCE REVIEWS
From the date that the software is installed, Solutions Plus and the Client shall regularly review the operation of the software, such review to be conducted at a frequency as agreed between the Client and Solutions Plus. There will no additional cost to the client for these performance reviews other than costs incurred as defined under the expenses clause of this Terms of Business.
13. MAINTENANCE SERVICES
Solutions Plus shall provide and perform maintenance to ensure the software will be free from material defects and will operate in accordance with the doci=umentation and the applicable warranties in this Agreement.
14. UPGRADES AND NEW VERSIONS
For so long as the Support and Maintenance Services are provided, Solutions Plus will ensure that the Software continues to comply with, and where applicable shall include features to adequately reflect, the legal and regulatory requirements that are applicable to the functions carried out by the Software but subject to the following provisions:
(a) Solutions Plus’s obligation shall only apply to those legal and regulatory requirements that are new or which the Client notifies Solutions Plus of in writing;
(b) Solutions Plus will be given a reasonable period of time from the date of the Client’s notification to implement any required changes to the software and to provide any upgrade to include those changes, with the aim that, to the extent that it is practical to do so, any required changes should be implemented before the legally or regulatory requirement in question takes effect; and
(c) If the Client gives a notification then the parties will consult to consider and agree the nature of the change required and who will bear the cost of implementing that required change, on the understanding that if the change is specific to the Client and is not of any use to Solutions Plus’s other clients nor otherwise of any value to Solutions Plus (i.e. Solutions Plus does not believe that it is a change that would be incorporated as part of its standard products) then the Client would bear the entire cost of implementing the change unless otherwise agreed.
New versions will be available for installation by the Client at the same time as the new version in its generally-released form is available for installation for any other of Solutions Plus’s other clients. New Versions will include data conversion routines if necessary. The Upgrade shall be supplied electronically and shall be subject to the user’s acceptance testing.
The installation shall be undertaken by the Client at the Client’s risk.
No additional licence fees or charges shall be payable for the Client’s licence to use the upgrade. If the Client requires Solutions Plus to provide installation services or any other services to install the upgrade, the Client will pay for these additional services.
Solutions Plus will ensure that any upgrades will not affect any existing data nor affect the Software or the ability to store, retrieve, transmit and process such data. Solutions Plus will give due and prompt consideration to implementing the Client’s enhancement requests into updates and new versions of the software.
The support services to be provided by Solutions Plus exclude the following:
- Support for unsupported versions of software. If requested, the support may be chargeable. Whether this support is charged is at the discretion of Solutions Plus;
- Any inoperable software that has been caused through the fault of the Client;
- Any changes not made by Solutions Plus to the software, where they are required to address program errors, or as enhancements to the software;
- The correction of data or defects in the software caused by any modification, revision, variation, for information or alteration of the software not authorised by Solutions Plus;
- The correction of data or defects in the software caused by the failure of the Client to provide suitably qualified and adequately trained staff for the operation of the software;
- The correction of data or defects in the software arising directly or indirectly out of the client's failure to comply with this Terms of Business or any other Agreement between Solutions Plus and the Client relating to the software;
- The correction of data that may have become corrupted as a result of software or any other cause;
- Support of the Client's own Access development(s);
- Support of hardware;
- Support of software products not defined under the Terms of Agreement clause of the Software Supply and Support Agreement;
- Training in the use of the licensed software modules or custom developed software;
- On-site support. This can be minimised/eliminated by the Client installing a remote support facility.
- Development of any enhancements to the software not provided for under the Terms of Agreement clause of the Software Supply and Support Agreement;
- Any new releases of the software other than releases scheduled by Solutions Plus, as defined in the Terms of Agreement clause of the Software Supply and Support Agreement;
- Installation of new releases of the software.
16. PROVISION OF SOURCE CODE
If Solutions Plus is incapable of providing ongoing support to the Client, Solutions Plus will provide the Client, upon request, a copy of the software, including the source code for the Client's own use and for the sole purpose of finding a replacement software provider.
Solutions Plus is only "incapable of providing ongoing support" if:
- Solutions Plus becomes insolvent; or
- A receiver or liquidator is appointed over any of the propery or assets of Solutions Plus.
"Incapable of providing ongoing support" excludes instances where:
- The Client is dissatisfied with the support;
- Any of the services are terminated due to a default of this Terms of Business or the terms of any other Agreement; or
- Solutions Plus sells or merges its business with another company.
The Client acknowledges where the software, including the source code has been provided to the Client for such a purpose, the Intellectual Property Rights (as defined in the End User Licence Agreement) continues to belong to Solutions Plus and the Client shall not do any act that might invalidate or be inconsistent with Solutions Plus's Intellectual Property Rights, including but not limited to selling or copying the software. The Client shall also do everything that is reasonably possible to ensure that the new software provider does not do any act that might invalidate or be inconsistent with Solutions Plus's Intellectual Property Rights.
17. DISPUTE RESOLUTION
Any party who claims that a dispute has arisen under or in relation to this Agreement or any other agreement between Solutions Plus and a client, must give written notice to the other party specifying the nature of the dispute.
Following the receipt of a written notice, the parties must use their best efforts to resolve the dispute through good faith negotiations.
If, after 15 working days from receiving a written notice:
– The party receiving the notice fails to respond; or
– The parties fail to resolve the dispute by good faith negotiations;
The parties shall agree upon a mediator.
The parties agree to submit to mediation until the dispute is resolved.
Nothing in this clause will prevent any party from taking immediate steps to seek urgent interlocutory relief before an appropriate court.
Either party at any time may terminate this Agreement with 3 months written notice.
If the client terminates the Agreement, the Client will be charged for any services provided up to the time of termination.
Solutions Plus may terminate this Agreement immediately if the Client defaults in the performance of any of its obligations under this Agreement, and the default, which is capable of being remedied, is not remedied within thirty days; or the default is not capable of being remedied.
19. CONSEQUENCES OF TERMINATION
On termination this Agreement by either party, the licence(s), services and support granted under this Agreement shall terminate immediately. The Client shall cease to use Solutions Plus’s software and any Intellectual Property in relation to the software, and shall deliver to Solutions Plus all copies of the software and any material containing the Intellectual Property.
20. Variations to the Terms
The provisions contained in this Agreement can only be varied in writing except where indicated otherwise.
21. CONFIDENTIAL INFORMATION
"Confidential Information" means any and all information in all forms of material, including by way of illustration but not limitation, computer programs, codes, print-outs, software, diagrams, specifications, designs, technical knowledge, know-how or experience, accounting or cost of data, and market and sales information, made known to the Client from Solutions Plus Ltd.
The Client shall at all times maintain confidentiality in respect of all Confidential Information and shall not at any time, directly or indirectly;
- Disclose or permit to be disclosed to any person; or
- Use for itself; or
- Use to the detriment of Solutions Plus,
any Confidential Information, except
- As required by law or the rules of relevant stock exchange; or
- As is already or becomes, public knowledge, otherwise then as a result of a breach by the Client of any provision of this Terms of Business.
22. LIMITATION OF LIABILITY
Solutions Plus does not accept any liability for loss of profits, loss of use, interruption of business or for indirect, special, incidental, or consequential costs or loses arising from any error, deficiency, misuse, delays in completion, delays in supply or other cause in relation to services or products supplied or offered for supply by Solutions Plus. In any event, total liability under any claim whatsoever in respect of any one project or product shall not exceed the amount paid to Solutions Plus by the Client for that project or product.
No action arising out of this of this Terms of Business or the terms of any other Agreement between Solutions Plus and the Client, regardless of what form, may be brought by either party more than 12 months after it becomes aware of the cause of action.
Where the Client is in breach of these Terms of Business or any other agreement between the Client and Solutions Plus, the Client must pay any expenses incurred by Solutions Plus in collecting any money owed to it or in exercising any of its other legal rights against the Client.
The Client will indemnify and hold Solutions Plus harmless in respect of all loss, damages, costs, expenses, claims, suits, actions, proceedings and demands suffered by Solutions Plus on account of any Third Party dealing with the Client.
24. LEGAL JURISDICTION
This Terms of Business shall be governed by and interpreted in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
25. FORM OF AGREEMENT
The acceptance of our services or products by the Client shall be deemed to be an acknowledgment and acceptance of this Terms of Business.
The Client accepts that the services or products provided by Solutions Plus will only be performed pursuant to this Terms of Business, and that such acceptance includes any future relationship or development with the Client or to the services or products.