Effective as of Jan 01 2014. THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR USE OF OUR SOFTWARE AND ASSOCIATED SERVICES.
1. ACCEPTANCE OF TERMS
1.1 Kounta Pty Ltd (ABN: 38 160 947 384) TA Kounta (“Kounta,” “We”, ”Our” or “the Supplier”) provides various Hardware, Setup and Support services (“the Service”) for Kounta Pty Ltd (“the Software”) to You (“the Customer”), subject to these Terms.
1.2 By accepting these Terms, or by accessing or using the Service and Software, You represent and acknowledge that You have read, understood, and agree to be bound by these Terms, and that the information You provide in registering to the Service and Software is accurate, complete, and is Yours or within Your right to use. If You are entering into these Terms on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its affiliates to these Terms, in which case the terms “You,” “Your” or related capitalized terms herein shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
1.3 You acknowledge that these Terms constitute a contract between You and Kounta, even though it is electronic and is not physically signed by You and Kounta, and that these Terms govern Your use of the Service and Software and supersede any other agreements between You and Kounta.
1.4 The Service supplied remain owned by Kounta until paid for in full
2. SUPPORT OPTIONS
Email Support via [email protected]
Incorrect, improper use, and/or misuse of the Services or Software by employees or users.
Viruses, malicious software or other such programs being loaded onto Hardware, or the Services and Software being exposed to such.
The loading of any software or program onto Hardware without the express written agreement of Kounta.
Electrical surges, failures, acts of nature (including but not limited to floods, blackouts, lightning strikes, etc).
Failure of any supporting infrastructure including but not limited to networking, buildings, wireless interference etc.
Communication dropouts due to ISP related issues ie. Internet down time or non Kounta related networking issues.
Callouts for an additional amount of the Services
No third party software packages are installed without the express written agreement of Kounta.
No third party hardware installed prior, during or after implementation of the Services will be supported.
Kounta has to be notified when changes to licensing, infrastructure and/or hardware are made that can impact the correct operation, performance or reliability of the Services and Software.
Normal business hours are from 9.00 till 17.00 Monday to Friday,
After business hours are from 17.00 to 9.00 Monday to Friday, Weekend hours are from 17.00 on Friday to 9.00 on Monday (Times in EST)
4. SCOPE OF AGREEMENT
The Supplier grants to the Customer a non-transferable and non-exclusive right to use the Services at the Site(s).
5. DURATION OF AGREEMENT
This agreement commences by using the Services and will continue until terminated by either party pursuant to this agreement.
6. OPERATING SPECIFICATIONS
6.1 The Supplier may alter, substitute or modify such specifications from time to time.
6.2 The Services will continue to be subject to this agreement not withstanding any such alteration, substitution or modification.
7.1 The Supplier provides Associated Documentation through an Online Support Centre and Knowledge Base at support.kounta.com
7.2 The Customer acknowledges that it is satisfied that the Associated Documentation contains sufficient information for the proper use of the Service and Software.
7.3 The Associated Documentation is subject to the same restrictions on copying and modifications as are imposed in respect of the Software and shall not be used by the Customer except to assist in the normal use of the Software.
8. PRODUCT RETURNS & WARRANTIES
Returned goods must have a valid RA number provided on a removable label on the outside of the shipping carton(s). Writing/stickers on the external packaging will not be accepted. If the RA number cannot be identified, or if the Product does not match the RA details provided, we may reject the returned product and return it to the Customer.
All products must be returned with the original packaging - both internal and external packaging must be complete and in the original state.
The External package (box) should be in perfect condition - this means it must not be damaged, scratched, soiled or torn - for the purposes of resale. Please include all cables, manuals, disks etc. Please outer wrap the original carton to avoid further damage by couriers.
All returned products must be received to our Offices within 14 days of purchase date. We will not accept the responsibility for any damage or loss incurred on the freight of returned products. Any damage incurred is the risk of the customer. Freight charges for returns of the product are at the Customer's’ expense.
For all returned products, the Customer must maintain a copy of the proof of delivery or consignment information to confirm delivery in the case of future queries and also must send a soft copy to [email protected] for notification.
Under the Supplier’s instructions, they will repair or replace the return of faulty products, however, replacement or repair (handled by Supplier) may result in the delays due to Supplier lead time, also depending on Supplier policy and stock availability.
Any physical damage incurred on the faulty product due to misuse of the product will void the warranty and is the Customer's responsibility.
If the faulty product is returned, but no fault is found after testing by the Supplier, then the Customer is responsible to bear any or all charges raised from Supplier.
We accept returns of unopened goods if they are shipped to us within 14 days of purchase date. A 20% restocking fee is applicable per item and the shipping charge will be deducted from the refundable amount.
In the case of goods returned in damaged/used condition, a higher deduction may apply or a refund may not be provided for the product. Assessment of the condition of goods is done at our Office or the Supplier warehouse. We do not take responsibility for any damage to the goods during transit to our Offices or the Suppliers Warehouse.
Any product delivered to the Customer that is wrong, faulty or is in a damaged condition, may be returned for repair or replacement. The Customer must notify us through our designated “contact us” webpage or email [email protected] within 14 business days. Once notification is received, we will send the Customer an RA number and return instructions.
9. LIMITATIONS OF LICENSE
9.1 The Customer may only use the Hardware in accordance with the normal operating procedures notified to it by Kounta.
9.2 Any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Software will entitle the Supplier to equitable relief against the Customer including injunctive relief.
9.3 Nothing in this agreement shall oblige the Supplier to maintain the Hardware whether by providing updates or services or otherwise. If required by the Customer, such maintenance shall be the subject of a separate agreement between the parties.
The Kounta Pty Ltd shall use its reasonable endeavours to Deliver the Service and Hardware to the Customer on the Delivery Date at the Site during the Customer's normal business hours.
11.1 The Customer shall implement the installation of the Hardware
11.2 If required and, in the opinion of the Supplier, additional costs are incurred to provide assistance with the installation of the Services and Hardware, the Supplier may make an addition charge.
12. ACCEPTANCE TESTS
12.1 The Customer shall within 7 days after delivery test that the Hardware has satisfied the various test specifications referred to in this clause and reject or accept the Services and Hardware.
12.2 Should the Customer not test and reject or accept the Hardware within 7 days after delivery the Customer, by default, acknowledges acceptance of the Service and Hardware.
13.1 Subject to clause 12.2, the Customer shall not copy or reproduce the Software or Associated Documentation by any means or in any form without the Supplier’s prior written consent.
14. REVERSE ENGINEERING
The Customer shall not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Software.
15.1 The Customer will be solely responsible for the use, supervision, management and control of the Services and Software and Associated Documentation.
15.2 The Customer will ensure that the Services and Hardware is protected at all times from access, use or misuse, damage or destruction by any person not authorised by the Supplier for that purpose.
Risk of loss or damage to the Services and Software passes to the Customer upon use of the Service and Software.
17.1 The Customer shall treat as confidential information relating in any way to the Services and Software, the Supplier or its customers.
17.2 The Customer shall not, without the Supplier’s prior consent in writing, copy or cause to be copied or disclose any details of such information to a third party.
17.3 The Customer may only make use of such details to the extent necessary to enable the Services andSoftware to be used in a manner reasonably contemplated by the Supplier.
17.4 The Customer may only disclose such details to those of its employees by whom it is required to enable the Services and to be used in a manner reasonably contemplated by the Supplier.
17.5 The Customer acknowledges that any discoveries, inventions, patents, designs or other rights arising directly or indirectly out of or in performance of this agreement, are the property of the Supplier.
17.6 The Customer’s obligations under this clause 16 shall survive the termination of this agreement.
18.1 The Supplier warrants that it has the full right to provide the Software to the Customer in accordance with this agreement.
18.2 The Supplier warrants that the Services and Software will be properly installed and will substantially satisfy the specifications referred to in clause 4.
18.3 The Supplier does not warrant that:
(a) the Software is error free;
(b) the use of the Software shall be uninterrupted;
(c) the Software shall meet the Customer’s requirements other than as set out in the specifications;
(d) the Software shall operate in combinations which may be scheduled for use by the Customer; or
(e) the Software shall provide any function not designated in the specifications.
18.4 The Supplier shall use its best endeavours to rectify or replace the Software, at its own option and at its own expense, which it finds to be defective and which defect has been notified in writing by the Customer within a period of one month from the Acceptance Date.
18.5 The Supplier will not be liable to remedy any defect in the Software if:
(a) the defect does not result in the performance of the Software significantly deviating from the Customer’s specifications;
(b) the defect is the result of alterations or modifications to the Software not authorised in writing by the Supplier;
(c) the defect is the result of the use of the Software in combination with equipment, programs or services not authorised in writing by the Supplier;
(d) the defect is the result of use of the Software other than in the operating environment recommended by the Supplier or other than in accordance with the Supplier’s directions; or
(e) the default is the result of failure of the Customer to meet its obligations under this agreement or any other agreement relating to the Software.
18.6 Subject to clause 18.2, the Supplier makes no warranty of fitness for a particular purpose, apart from purposes listed in Schedule H.
19. LIABILITY OF SUPPLIER
19.1 Except as expressly provided to the contrary in this agreement, all terms conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Software or to this agreement, are excluded. Without limiting the generality of the preceding sentence, the Supplier shall not be under any liability to the Customer in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the Software or the failure or omission on the part of the Supplier to comply with its obligations under this agreement.
19.2 Where any Act of Parliament implies in this agreement any term, condition or warranty, and that Act avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under such term, condition or warranty, such term, condition or warranty shall be deemed to be included in this agreement. However, the liability of the Supplier for any breach of such term, condition or warranty shall be limited, at the option of the Supplier, to any one or more of the following:
(a) the value of the Licence Fee(s);
(b) the replacement of the Software with a program which substantially complies with the specifications of the Software.
19.3 The Customer warrants that it has not relied on any representation made by the Supplier which has not been stated expressly in this agreement or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by the Supplier.
20.1 Without limiting the generality of any other clause in this agreement, the Supplier may terminate this agreement immediately by notice in writing if:
(a) any payment due from the Customer to the Supplier pursuant to this agreement remains unpaid for a period of 30 days;
(b) the Customer breaches any clause of this agreement and such breach is not remedied within 28 days of written notice by the Supplier; or
(c) the Customer disposes of the Software.
20.2 Notwithstanding clause 20.1 the Supplier may terminate this agreement immediately on notice in writing to the Customer if:
(a) the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
(b) the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(c) the Customer, being a natural person, dies; or
(d) the Customer ceases or threatens to cease conducting its business in the normal manner.
20.3 If notice is given to the Customer pursuant to clause 20.1 or 20.2, the Supplier may, in addition to terminating the agreement:
(a) repossess any copies of the Software in the possession, custody or control of the Customer;
(b) retain any moneys paid;
(c) charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
(d) be regarded as discharged from any further obligations under this agreement; and
(e) pursue any additional or alternative remedies provided by law.
20.4 Upon termination of this agreement, the Customer shall immediately on request furnish the Supplier with written certification that the Software, the Associated Documentation, and all copies of the Software and the documentation have been returned to the Supplier.
The benefit of this agreement shall not be dealt with in any way by the Customer (whether by assignment, sub-licensing or otherwise) without the Supplier’s written consent.
The Supplier may sub-contract for the performance of this agreement or any part of this agreement.
23.1 No right under this agreement shall be deemed to be waived except by notice in writing signed by each party.
23.2 A waiver by the Supplier pursuant to sub-clause 24.1 will not prejudice its rights in respect of any subsequent breach of this agreement by the Customer.
23.3 Any failure by the Supplier to enforce any clause of this agreement, or any forbearance, delay or indulgence granted by the Supplier to the Customer, will not be construed as a waiver of the Supplier’s rights under this agreement.
24. ENTIRE AGREEMENT
This agreement constitutes the entire agreement between the parties for the subject matter referred to in the Recitals. Any prior arrangements, agreements, representations or undertakings are superseded. No modification or alteration or any clause of this agreement will be valid except in writing agreed to by each party.
Headings used in this agreement are for convenience and ease of reference only, are not part of this agreement and shall not be relevant to or affect the meaning or interpretation of this agreement.
If any provision of this agreement is held invalid, unenforceable or illegal for any reason, this agreement shall remain otherwise in full force part from the such provision which shall be deemed deleted.
27. GOVERNING LAW
This agreement will be governed by and construed according to the law of New South Wales.
Notices under this agreement may be delivered by Email ONLY
Any dispute arising in connection with this agreement which cannot be settled by negotiation between the parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators, Australia. During such arbitration, both parties may be represented by a duly qualified legal practitioner.
30. SUPPLIERS RIGHTS
Any express statement of a right of the Supplier under this agreement is without prejudice to any other right of the Supplier expressly stated in this agreement or arising at law.
Acceptance Date means the date upon which the Customer accepts or is deemed to accept the Services and Software under this agreement;
Additional charge means a charge in accordance with the Supplier’s standard rates in effect from time to time payable by the Customer;
Associated Documentation means operating manuals and other materials including users’ manuals, programming manuals, modification manuals, flow charts, drawings and software listings which are designed to assist or supplement the understanding or application of the Services and Software;
Commencement Date means the date of installation
Delivery means the deposit by the Supplier or its employees or agents of the Services and Software specified at the site;
Delivery Date means the date or period specified for the delivery of the Services or Software specified;
Designated Equipment means the computer equipment designated upon which the Services and Software will be used;
Due Date means the 7th day following the receipt by the Customer of a tax invoice for the Goods.
Force Majeure means an act, omission or circumstance over which the Supplier could not reasonably have exercised control;
Installation Date means the date or period specified for installation of the Services and Software;
Licence means the licence granted by the Supplier to the Customer under this agreement;
Licence Fee(s) means the fee payable by the Customer to the Supplier for use of the Services and Software;
Licensed Program means the computer program consisting of a set of instructions or statements in machine readable medium only together with any associated materials and documentation and any enhancement, modification or new release of the program;
Site means the location for delivery and installation of the Software.
Unless the context otherwise requires, words importing the singular include the plural and vice versa and words of one gender include all other genders.