The extent of our services will be limited to the agreed scope in our proposal that accompanied these Terms and is exclusive to you.
The following terms and conditions (Terms) are the terms of engagement between Scope Operations Pty Ltd trading as Astrowave ABN 99 633 193 469 (we / us / our / Astrowave) and you as the user (Client / you / your). Except where varied and agreed in writing, these terms apply to all services undertaken by Astrowave and its agents.
PERIOD OF ENGAGEMENT
This engagement will start upon the start date specified in Item 4 of the Proposal, if there is no date specified, it will start upon the Date you accept these Terms as part of the Proposal (Start Date).
We will not assist you with Business & HR compliance pre-dating the Start Date unless you specifically ask us to do so (Request). Upon a Request we will either agree or refuse to assist, noting we reserve the right to quote an additional fee for any such Request.
Under these Terms, agree to:
(a) Provide all information and access to the information as we request or require, in a complete and timely manner. You indemnify us for your failure to do so and in particular against delays for failure to provide such information;
(b) Ensure any Business and/or HR records, particulars and information provided by you are reliable, accurate and complete and indemnify us against our use of any inaccurate or incomplete information provided by you, noting you are required to check the information we are provided is correct;
(c) Regularly maintain and reconcile employee portal access to ensure previous employees are removed as required;
(d) Advise us of any changes in your circumstances during the year;
(e) Use the portal and software in the manner in which it was intended;
(f) Discuss any issues with us as they arise to allow us to attempt to resolve them in a timely manner;
(g) Implement the portal and software for your own business in compliance with any instructions we provide;
(h) Comply with all applicable laws and regulations; and
(i) Obtain and maintain your own internet and network connections and associated connectivity problems;
You must not:
(j) Reverse engineer, derive the source code or use the portal or any Astrowave software to develop your own software, including copying the interface or database structure;
(k) Copy, modify or make derivative works of the portal and software;
(l) Use the portal or software for any illegal purposes;
(m) Disclose any confidential or sensitive information to third parties relating to the Services, portal and software;
(n) Make use of the portal in a way that damages or is likely to damage our business or reputation;
(o) Allow anyone else the right to use or benefit from the portal or software without our express consent;
(p) Transfer your rights under this Agreement to a third party;
(q) Try to affect the availability of the portal or any Astrowave software to any other registered users or our clients; and
(r) Introduce any viruses or harmful technology to the portal.
Provide the services in a competent, timely and professional manner;
Only commence work once we are satisfied that we are in receipt of all required information and documentation from you, including any further details we request from you; and
Carry out services in accordance with the relevant laws where applicable.
SCOPE OF THE ENGAGEMENT
You acknowledge and agree that:
Due to the limited scope set out in clause 4(a), no general audit or review of your HR or other business records will be performed and we make no comment or assurance as to the correctness or otherwise of your existing records or the items that do not come within scope; and
Our engagement under these Terms, cannot be relied upon to disclose irregularities including fraud, other illegal acts and errors that may exist. However, we will inform you if we become aware of any irregularities through the scope of work we do undertake.
TRAINING, SUPPORT & MAINTENANCE
At our discretion, we may provide you with training and support within a reasonable time after commencement of this Agreement. Training and support may include:
Initial training on commencement of your use of the portal and software;
Ongoing support and self-help tools to answer any questions which may arise;
Ongoing scheduled maintenance of the portal and software, noting we will provide you with 24 hours’ notice if any scheduled maintenance will interrupt the use of the portal; and
Rectifying any defects or issues which arise with regards to the use of the portal.
You acknowledge that:
Where we are required to assist or provide services with regards to resolving any issues for you which is not our responsibility (such as issues to do with hardware), we may charge you an additional cost for our time; and
We may change how we provide training, support and maintenance to you at any time with reasonable notice to you.
FEES & PAYMENT TERMS
In consideration of us providing the Services to you under this Agreement, you agree to pay us the Fee in accordance with the Payment Terms (Due Date). Any late, overdue or unpaid invoice amounts may incur interest at 10% per annum, calculated daily on any overdue fees.
You consent for us to automatically take payment from your credit card on the dates specified in the Payment Terms of the Proposal.
If your credit card is unable to be debited for any reason (including where the credit card details provided are incorrect) or you otherwise do not pay the Fee on time for any reason by the Due Date, or you do not otherwise comply with this Agreement, we may refuse to continue to provide the Services and may terminate this Agreement immediately without notice. We also reserve the right to commence proceedings to collect any outstanding debts owed.
All payment and personal information will be kept in a secure manner in accordance with Australian Privacy Principles and the Privacy Act 1988 (Cth).
Failure to make a required payment when due under this Agreement shall constitute a material default under this Agreement.
In addition to paying the Fee and any other amount payable or in connection with this Agreement, you will also be liable where stated on any applicable invoice for GST and must make the GST payment along with the payment for the invoice or within 3 days after you are issued with a tax invoice, whichever is the later. Note that we usually state our Fee as a GST inclusive amount and this will be noted on your tax invoice.
Credit card payments are not processed on a page controlled by us. Processing takes place on a third party payment processor such as Stripe (Third Party Payment Processor) and we are bound by their terms and conditions. By offering payment through that Third Party Payment Processor, you also agree to be bound by their terms and conditions. While we use our reasonable commercial endeavours to ensure the safety of any details we hold, we cannot directly control the details held by third party sites and will not be liable in this regard.
FIXED PRICE ARRANGEMENT
In a perfect world we would like to keep our fees fixed for the long term, however a number of variables outside of our control, impact our ability to deliver the services we provide you. Accordingly, our fixed price fees are reviewed in June of each year and may be amended taking into account, but not limited to, the following;
Any increases in software costs;
Any changes in your circumstances or services required;
A review of the work performed and a comparison to the initial budgets; and
A review of our labour and other costs in delivering these services to you.
You may request a change to the Services and/ or additional work, including to reduce or increase the scope, by providing a written request for a Contract Amendment. Any Contract Amendment will ultimately be at our sole discretion and we reserve the right to make any Contract Amendment subject to specific conditions, including a Fee Variation.
WARRANTIES & REFUND POLICY
The Australian Consumer Law (ACL) states that businesses must meet a set of basic rights when they sell products or services known as consumer guarantees. The warranties in this clause 9 and the refund policy set out at clause 10 are made alongside those consumer guarantees.
We represent and warrant to you that we will comply with the law in providing the Services to you and will provide Services within the scope set out in the Schedule unless in our opinion other Services or a Contract Amendment would serve you better.
You represent and warrant that:
You will provide all relevant information required for us to carry out the Services; and
You have relevant and required current insurances to protect us (where relevant and required) and your business including against any third party claims.
Subject to the Australian Consumer Law, we do not offer refunds for change of mind, so we ask that you think carefully about whether the services are right for you and your business before proceedings.
11. INTELLECTUAL PROPERTY
Under this Agreement, we grant you a limited, royalty-free, non-transferable, non-exclusive and worldwide licence to use and install the portal and software for the purposes of internal Business and HR management.
Subject to Clause 11(a) above and unless otherwise indicated, all Intellectual Property made, developed, conceived or created independently by Astrowave, including the portal, software and all versions or updates relating to it, is the sole and exclusive property of Astrowave.
You acknowledge you will be required to input business and employee information and data into the portal and software and while you are the owner of this intellectual property, you grant us a perpetual, royalty-free, non-transferable and worldwide licence to use and host such information.
All original documents obtained from you arising from the engagement shall remain your property. However, we reserve the right to make a reasonable number of copies of the original documents for our records.
Our engagement will result in the production of email support, Business & HR records and management reports, depending on the service plan selected by the Client. Ownership of these documents will vest in you. All other documents produced by us in respect of this engagement will remain the property of Astrowave, subject to any statutory obligations.
CONFIDENTIALITY & NON-DISCLOSURE
Both parties will keep confidential, and not use or permit any unauthorised use of, any Confidential Information of the other party without the other party’s prior written consent, except where the disclosure is required by law.
We may collect Personal Information about you, your representatives, your employees and others when we provide services to you. If we do, you agree to work with us to ensure that we both meet the obligations that we each may have under the Privacy Act 1988 (Cth) (as amended) (“Privacy Act”).
We are committed to ensuring all information you provide and/or upload onto the portal is kept secure at all times and we have put in place suitable physical, electronic and managerial procedures to safeguard and secure the personal information and protect it from misuse, interference, loss and unauthorised access, modification and disclosure.
You acknowledge and agree that we cannot guarantee the security of any information that is transmitted to or by us over the Internet. The transmission and exchange of information is ultimately carried out at your own risk and you indemnify us and release us of all liability with regards to any of you or your employees’ data that is lost or breached during your use of the portal and software.
Where you are provided with a password to access your account on the portal, including any individual password which is provided to your employees, you and each employee are solely responsible for the security and confidentiality of that password and take responsibility for any breach of security or where your password has been compromised. You must notify us promptly if you become aware, or reasonably suspect, your account’s security has been compromised.
STORAGE OF PERSONAL INFORMATION
Due to the nature and prevalence of cloud services, personal information is often stored outside Australia. The Privacy Act requires that data be stored in Australia or in a country where the laws are substantially similar to Australia’s privacy laws. By accepting our services, you acknowledge and agree that your personal information may be stored outside Australia.
INVOLVEMENT OF OTHERS AND OUTSOURCED SERVICES
We may utilise the services of employees, external contractors, or cloud services in order to provide a quality service to you at a fair price. These parties may be located outside of Australia.
Acceptance of our services in conjunction with this engagement document indicates your acceptance of the use of the above services. Where the service requires the disclosure of personal information to an overseas recipient, a consequence of your consent is that we will be required to take reasonable steps to ensure that the Australian Privacy Principles are complied with by the overseas recipients of the Personal Information.
Where we use the services of third party contractors, we are nevertheless responsible for the conduct and activities of those contractors and for the delivery of the services we are engaged to perform for you.
We may communicate with you electronically and agree to accept messages from you electronically. You acknowledge that electronic transmissions are inherently insecure, can be corrupted or intercepted, may not be delivered and may contain viruses. Neither party is responsible to the other for any loss suffered in connection with the use of e-mail as a form of communication between us.
RELATIONSHIP OF THE PARTIES
The Client acknowledges that Astrowave is an independent contractor, not an employee of the Client or any company affiliated with the Client. This agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party except as expressly stated in this agreement.
TERMINATION & MINIMUM TERM OF ENGAGEMENT
Either party may terminate this Agreement, for any reason, by giving the other party 30 days written notice, after the Minimum Term of Engagement period of 2 years. Astrowave reserves the right to recover any losses, damages or expenses incurred prior to termination or as a result of termination.
EVENTS OF DEFAULT
A party may immediately terminate this Agreement by written notice to the other party if any of the following events of default occurs:
Where either party breaches any provision of this Agreement that is capable of remedy and such breach is not remedied within thirty (30) days after receiving written notice from the other party specifying such breach in reasonable detail;
Where either party breaches a material term of this Agreement that is not capable of remedy; or
Where either party enters into liquidation or insolvency (being a company) or bankruptcy (being an individual).
CONSEQUENCES OF TERMINATION
On termination of this Agreement:
The licence granted to you under this Agreement will immediately terminate and you must immediately cease using and uninstall / remove the portal and software from all devices it has been installed on;
You must pay the full Fee as agreed between us under this Agreement for the services which have been provided;
If the Agreement is terminated due to your default, you must pay us any costs related to the termination of this Agreement;
Unless the Agreement is terminated due to our material breach, we will not be obligated to refund any prepared and unused fees; and
You must immediately delete or destroy any Confidential Information that we request for you to do so.
You acknowledge that Clauses 2(a), 2(b),11, 12, 14(b), 20, 21, 22 and 24 survive termination of this Agreement.
LIMITATION OF LIABILITY
Despite anything to the contrary, to the maximum extent permitted by law:
You warrant that you have not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of us, whether before or after the commencement of this Agreement;
You agree that this Agreement excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Agreement;
Our maximum aggregate liability arising from or in connection with this Agreement will be limited to, and will not exceed, the portion of the Fee paid by you to us for the services;
We will have no liability (including any expense, cost, liability, loss, damage, claim, demand or proceeding, whether under statute, contract, equity, tort, indemnity or otherwise, howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent), and you release and discharge us from all liability, arising from or in connection with any:
Event or circumstance beyond our reasonable control;
Acts or omissions of you or your employees;
Loss of use or damage or loss to data / information inputted into the portal and software;
Defect, error, omission or lack of suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the services provided; and/or
Loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data; and
You indemnify us for and against:
All liability and claims arising from or in connection with any wrongful act or omission by you or your employees; and
Any claim or liability to a third party arising from or in connection with the services provided.
You acknowledge and agree that you enter this Agreement based on the following:
Any advice given to you by us is only an opinion based on our knowledge of your particular circumstances only. We do not provide professional advice, including legal advice. Where such advice is required we recommend that you seek a qualified professional;
While we do our best to ensure our services, portal and software are suitable for use and adaptable to each business, we do not guarantee that our services or the portal will meet your needs;
The use of our portal and software are dependent on various external factors, including reliability of internet and security of your computer systems. We are not responsible for the failure of our software due to circumstances beyond our control, including hardware breakdown, loss of internet or disruption or loss of software due to hackers and security breaches;
We do not guarantee that our software:
Is free from viruses; or
Will be compatible with your browser, computer or other device; and
Our professional services will be conducted as agreed and we disclaim any assumption of responsibility for any reliance on our professional services to any party other than as specified or agreed, and for the purpose for which it was prepared.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited
A party may not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute (unless that party is seeking urgent interlocutory relief, or the Dispute relates to compliance with this clause).
The Client acknowledges that Astrowave shall not be in breach of any agreement if it is unable to complete the services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Astrowaves control (collectively, ‘Force Majeure Event’).
The formation, construction, performance and enforcement of these terms and conditions shall be in accordance with the laws of Queensland, Australia.
In this agreement, the following definitions apply:
Confidential Information means information which:
Is disclosed to you in connection with these Terms or our services at any time;
Is prepared or produced under or in connection with these Terms or our services at any time;
Relates to our business, assets or affairs; or
Relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and regardless of how you receive that information.
Contract Amendment means any change to the scope of the Services. A Contract Amendment will only be binding once we have confirmed in writing whether any request you have made to amend the contract (which must also be in writing) is suitable and this includes any variation to the Fee. Email is an accepted way of communicating these items and/or changes to the contract.
Fee Variation means a variation to the Fee as a result of a Contract Amendment.
Governing Law means the State or Territory set out in the Schedule.
The same as in GST Law;
Any other goods and services tax, or any tax applying to this Agreement in a similar way; and
Any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
GST Law means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Services means the Services described in the Proposal and excludes any of the exclusions also listed in the Schedule.
Start Date means the Date set out in the Proposal that the Services will start.