Support Services Agreement
IMPORTANT – YOU SHOULD READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING ANY SOFTWARE OR SERVICES FROM CYTRACK. BY PROCEEDING WITH AN ORDER FOR SERVICES AFTER RECEIVING A COPY OF THIS DOCUMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND AND ABIDE BY ITS TERMS AND CONDITIONS.
Cytrack Intelligence Systems Pty Ltd (‘Cytrack’) agrees to provide, and you (as the customer) agree to accept, one or more of the following services as agreed between the parties, in accordance with the terms and conditions detailed in this Support Services Agreement (‘Agreement’), with regard to software provided by Cytrack (‘Software’).
- Software Care Services: Cytrack offers upgrades to the Software provided on a disc or other media for installation on your hardware (‘Installable Software’) on a subscription basis on payment by the Licensee of the relevant fee, and on the terms and conditions of this Agreement. This does not apply to ‘Subscription Service Software for which upgrades are provided as part of a subscription in accordance with Cytrack’s Subscription Service Software Agreement.
- Issue Resolution Services: This service consists of a remote help desk service provided by trained technicians via the telephone or remote diagnostics to the customer’s site.
- On-Site Services: This includes any services Cytrack agrees to provide to the customer on-site. On-site services are not covered by Software Care Services or Issue Resolution Services or Service Vouchers.
By agreeing to this Agreement, you also agree to be bound by Cytrack’s Terms and Conditions.
Hours of operation
- Cytrack will provide its services Monday to Friday, excluding public holidays. Normal working hours are 9.00 a.m. to 5.00 p.m. Working hours are based on the time zone and public holidays at the location of the applicable Cytrack office (listed on our web site).
- The services are as described in this Agreement and any formal project plan for services agreed by the parties in writing.
- Software Care Services: Software Care Services apply to a single site only. Customers running Software at more than one site must purchase Software Care Services for each site at which the Software is run.
- Issue Resolution Services: Remote diagnostics support is provided subject to the customer providing Cytrack with internet access to the Software). If the customer is unable to provide access or refuses access for any reason, services may not be possible to be delivered. If it is possible to deliver the services they will be chargeable at the Service Voucher rates as detailed on our price list.
- On-Site Services: Visits to your site will be charged at Cytrack’s’ current rate for travelling and technician time.
- Customers using an outdated versions of the Installable Software may not be eligible to obtain Issue Resolution Services or On-Site Services until the Software is upgraded to a current version. Details of supported versions are available by from the Cytrack web site under the Clients area.
- Customers are required to purchase vouchers for a designated number of service hours (‘Service Vouchers’) from Cytrack. Service Vouchers are available in various denominations for different numbers of service hours, with greater discounts for higher denominations.
- Service Vouchers are credited to the customer’s account and used in the order they were purchased when Software Care Services or Issue Resolution Services are provided to the customer.
- Service Vouchers cannot be used for On-Site Service Fees, which will be invoiced in accordance with clause 12.
- Service Vouchers are valid for up to 24 months or such longer period as required by law. Service Vouchers not used (in whole or in part) within this period expire and will not be refunded.
- A customer may request a refund for a Service Voucher that is within the validity period. Any utilised service hours will be deducted from the purchase price of the Service Voucher on a pro rata basis, then a 25% administration fee will be deducted from the balance and the final amount will be refunded to the customer within 30 days.
Fees and invoicing
- On-Site Service Fees: For On-Site Services, the customer agrees to pay additional charges to cover time and travel as applicable.
- Out of hours services: Cytrack provides a 24/7 out of hours service. The customer is required to purchase an annual fee to access the service and then service vouchers are utilised at double the rate for any services rendered.
- Additional charges: Additional charges will be incurred for other services provided in the course of delivering the services to the customer, including but not limited to:
- hardware warranty services;
- remedial work carried out by Cytrack such as recovery from malfunction or issues not caused by product fault; and
- restoring the customer’s system to an acceptable working state satisfactory to Cytrack for providing coverage of the Software Care Services and/or Issue Resolution Services (as applicable) following work or changes of the kind described in clause 23 of the Cytrack Terms and Conditions.
- Charges incurred under clauses 12–14 will be invoiced in accordance with, and subject to, the Cytrack Terms and Conditions.
- YOU AGREE TO REGULARLY BACKUP YOUR SYSTEM AND ALL FILES TO AN INDEPENDENT STORAGE FACILITY TO ELIMINATE CATASTROPHIC LOSS OF DATA. Cytrack does not warrant or guarantee that any backups maintained by the Software will be fail-safe or effective in any given situation. Cytrack shall not be responsible for any costs, loss or damage associated with loss of data, recreating data, substitute equipment or programs, claims by third parties or similar costs.
- To the fullest extent permitted by law, Cytrack excludes:
- any term, condition or warranty that may otherwise be implied by custom, law or statute;
- any liability for loss caused by the negligence of Cytrack; and
- any liability for any loss or damage suffered by a party or any other person that is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of use, loss of time, loss of interest, damage to credit rating or loss or denial of opportunity.
- Some countries and states do not allow the exclusion of implied warranties, terms or conditions, so the above exclusions may not apply to you. In that case the following statements apply to the fullest extent permitted by law: If Cytrack is liable for a breach of a term, condition or warranty described above, its liability is, to the fullest extent permitted by law, limited to any one or more of the following as Cytrack determines in its absolute discretion:
in relation to goods:
- replacing or repairing the goods;
- supplying an equivalent item of the goods;
- paying the cost of replacing or repairing the goods; or
- paying the cost of acquiring or hiring equivalent goods; and
in relation to services:
- the re-supply of the services; or
- the payment of the cost of having the services re-supplied.
- in relation to goods:
Term and termination
- This agreement shall remain in effect for 12 months (the “Term”). The agreement shall automatically renew upon the expiration of the Term for additional one (1) year periods (each a “Renewal Term”) at the Services fee list prices and terms in effect at the time of any such renewal, unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the applicable Program Schedule or any Renewal Term.
Cytrack may terminate this Agreement immediately on written notice on the happening of one of the following events:
- your irremediable breach or threatened irremediable breach of any of your obligations under this Agreement;
- your unremedied breach or threatened breach of any of your obligations under this Agreement after having been given 30 days written notice to remedy such breach;
- the occurrence of any of the following events with regard to your affairs:
- any step is taken to enter into any scheme of arrangement with creditors,
- any step is taken to appoint a receiver or manager, a liquidator, an administrator or other like person,
- the suspension of debts generally, or
- you are deemed insolvent for the purposes of any provision of the Corporations Act 2001 (Cth) or corresponding applicable laws;
- your merger or takeover by another party.
- You agree during the Term and Renewal Term, and for 12 months after the termination of the Agreement for any reason (including the expiration of the Term and Renewal Term), not to solicit, entice away, or employ or attempt to solicit, entice away, or employ, any employee or contractor of Cytrack save with the prior written consent of Cytrack.
- This Agreement is not transferable without the written consent of Cytrack.
- Except as expressly stated, this Agreement shall not be varied by the terms and conditions of any order submitted by the customer unless expressly agreed in writing by an authorised representative of Cytrack.
- Cytrack reserves the right to amend, revise or replace this Agreement from time to time by notifying the customer in writing. By:
- continuing to use the services after receiving such a notification; or
- expressly accepting the amended Agreement in writing or via the Software;
you acknowledge that you have read and understand the amended Agreement and agree to abide by its terms and conditions. Amendments, revisions and replacements will be effective sixty (60) days after posting the notification, or on a later effective date specified in the notification, unless this Agreement is terminated earlier.
- This Agreement shall be governed and construed in accordance with the laws of Australia and the State of Queensland. Furthermore it is understood that this Agreement shall be treated as though it were executed in Queensland and the parties agree that any action relating to this Agreement shall be instituted and prosecuted in the courts of the competent jurisdiction of the State of Queensland.
- If for any reason, a court of competent jurisdiction finds any provision or portion of this Agreement unlawful, void, or for any reason unenforceable, it shall be deleted and shall in no way affect the enforceability of any other provisions of this Agreement.
By authorising your order of our services you acknowledge that you have read and understand this Agreement and agree to abide by its terms and conditions. You also agree that except as expressly stated above this Agreement is the complete and exclusive agreement between us concerning the Software and supersedes all prior agreements, proposals or communications, verbal or written between us.