Section 1 – OfficeTorque Standard Terms & Conditions
Last Updated 1 March 2020.
These Terms apply to the entire content of the web site at the URL https://www.officetorque.com or any other site operated by the Company including any customised URL (usually for a customised version of the Solution), (the Websites), the use by You of the Company services provided through the Websites (the Solution) including “production”, “development” and “test” instances of the Solution.
In the event of variance between the Standard Terms and any Special Terms you have in Your Agreement, then the conflicting elements of the Special Terms will prevail, but all other elements of the Standard Terms will still apply.
Administrator means the person within the Client that is responsible for the running of the Client’s, OfficeTorque Solution.
Agreement, Agreement to Proceed, Supply Agreement, Contract, Terms Sheet means the document or on-line form defining the scope of delivery, pricing, implementation plan and any Special Terms and Conditions as agreed by both parties.
Client, You, Your, and Organisation means the purchaser of the Software and Services and includes its employees, consultants, representatives and agents.
Company, We, Us, OT, and Our means OfficeTorque Limited, a private limited liability company registered in New Zealand, its authorised agents and resellers.
Connector software, middleware means the software used to synchronise data from the Source database. This is typically supplied as part of the Solution, but might, in some cases, be existing software already in operation by the Client.
Contract Commencement Date, Commencement Date means the date from which the Solution is fully operational, signed off, and operating in ‘Full Go-Live’. If ‘Full Go-Live’ is not achieved, then the Commencement date will be from the date of formal notice of termination of the contract by the Client.
Data means any data and information entered by You or any of Your Invited Users, or transferred to the Solution via the synchronising software.
Hosting Site means the place where the OfficeTorque Solution servers are located.
Intellectual Property means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Initial Setup Costs, Implementation Fees means the initial costs for the solution (excluding any taxes and duties) payable by You in accordance with the pricing schedule as agreed in the Agreement.
Invited Users means users of the Solution that You authorise to have access to the Solution.
Monthly Fees / Usage Fees / Ongoing Operating Costs means the monthly fees (excluding any taxes and duties) payable by You in accordance with the pricing as agreed in schedules to the Agreement.
Normal Business Hours means for Australian clients the hours of 8.00 am to 4.00 pm AEST time on any day other than a Saturday, Sunday or public holiday in New South Wales or Victoria, Australia. For New Zealand Clients the hours of 9.00 am to 5.00 pm NZST time on any day other than Saturday, Sunday or public holiday in Auckland, New Zealand. For all other regions, New Zealand client hours apply.
Notice of Termination of Contract / Notice of Termination of Service means the period of prior written notice the Client is required to provide the Company advising termination of the contract or provision of services, which is 3 calendar months.
Party means either the Company or the Client as the context dictates.
Service Level Agreement / SLA means the different levels of response to service issues, provided by the Company as defined in the Service Level Agreement policies.
Services means any services provided by the Company under the Agreement in connection with the Software.
Software means the software that is provided to You by the Company via the Websites and software licenses.
Solution means provision by the Company of the Software and the Services. The OfficeTorque FRM Solution typically comprises several elements including iBill, Client Portal and AR Management and in some cases connector software. In all cases, You do not purchase the Software, but are licensed to use the Software, and can use the Services, in accordance with these terms and conditions for the duration of the Agreement.
Source Database, Core database means Your existing ERP, accounting software, practice management system, or other agreed database. In some cases, a Staging database may be established for the purposes of data synchronisation.
Special Terms & Conditions means any terms and conditions specified in the Agreement that may vary from those outlined in the Standard Terms. In the case of variance from the Standard Terms, the Special Terms and Conditions will prevail for the period of the Agreement, after which the Standard Terms and Conditions will apply.
Warranty Period means the period during which the warranty provisions of the Agreement shall apply.
Websites means the Internet website at the URL https://www.officetorque.com or any other site operated by the Company associated with delivery of the Solution to the Client.
1.1 In consideration of the payment by the Client of the fees specified in the Agreement and You and Our agreeing to abide by the Terms and Conditions, We grant You access to use the Websites and the Solution on the terms set out in this document.
1.2 Any amendments, modifications, enhancements or changes to the Solution made available by the Company from time to time shall be subject to these Terms.
2. USE OF THE SOLUTION
2.1 You are licensed to use the Solution on the following basis:
(a) if You are authorised to act for the Client, and have obtained the required approval to do so;
(b) if You provide or otherwise make available the Solution in whole or in part in any form to any person including Your employees or end customers, (Invited Users) You undertake to ensure that all Invited Users comply with these Terms and acknowledge that You shall remain responsible and liable for the acts or omissions of all Invited Users to the same extent as if You had carried out such acts or omissions Yourself.
2.2 All copyright and other intellectual property rights in the Solution and material on the Web sites are owned by the Company or its licensors except for the Data, trademarks, name, logos and Intellectual Property owned or licensed by the Client. The Company warrants that Your use of the Solution and the Company’s Web sites will not infringe the intellectual property rights of any third party.
2.3 The Software is provided to you as a software license for Your use. The Software will be hosted by the Company and accessed by You via the internet. In all cases, You do not purchase the Software, but are licensed to use the Software in accordance with these Terms and Conditions for the duration of the Contract. If the Solution is synchronised with Your Source database system(s) it will be the responsibility of the Client to ensure all the Data required by the Solution will be made available to the Any middleware or Staging database. Any additional licensing requirements for Source database connectivity are the responsibility of the Client.
2.4 Any customisation or additional functionality developed for the Client is supplied to You as part of the Solution and the conditions specified above in section 2.3 still apply.
2.5 Any third party services are provided under the terms and conditions of the supplier and are subject to approval by that provider. These services will be delivered and billed separately by the third party provider.
2.6 Any rights not expressly granted in these Terms are reserved.
3. SERVICE ACCESS & TECHNICAL SUPPORT
3.1 Whilst the Company endeavours to ensure that the Websites and Solution are normally available 24 hours a day, the Company shall not be liable if for any reason, other than the negligence of the Company, or the failure of the Company to meet its duties and obligations under the Section 2 Service Level Agreement, the Websites or Solution is unavailable at any time or for any period.
3.2 Access to the Websites and the Solution may be suspended temporarily and with reasonable notice for maintenance or repair outside Normal Business Hours, or without notice in the case of system failure or for reasons beyond the Company’s control.
3.3 Technical support will be provided for bugs or errors in the Web Site that are reproducible by the Company. You agree to provide the Company with full and accurate details of all bugs and errors in the Solution requested by the Company. You acknowledge that the solution is provided with a limited warranty as outlined in clause 9.
3.4 The Company will provide technical support by e-mail or phone or remote access software, and on-site as required on the terms agreed in the Service Level Agreement (Refer: Section 2).
3.5 The Client must contact Us by phone or mobile in the event of a critical error or for any emergency support required.
4. WEBSITE & SOLUTION ACCESS CONDITIONS
4.1 You are prohibited from posting or transmitting to or from the Websites and/or the Solution any material:
(a) that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy; or
(b) for which You have not obtained all necessary licences, consents and/or approvals; or
(c) which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in any country in the world; or
(d) which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).
4.2 You may not use the Websites or the Solution:
(a) in any way that breaches any applicable local, national or international law or regulation;
(b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
(c) for the purpose of harming or attempting to harm minors in any way; or
(d) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam) or be in breach of any local or applicable international anti-spam laws.
4.3 The Company shall fully co-operate with any law enforcement authorities or court order requesting or directing the Company to disclose the identity or locate anyone posting any material in breach of clause 4.1 or 4.2.
4.4 When accessing the Websites and using the Solution You must:
(a) not attempt to undermine the security or integrity of the Company’s computing systems or networks or, where the Solution is hosted by a third party, that third party’s computing systems and networks;
(b) not use, or misuse, the Solution in any way which may impair the functionality of the Solution or Websites, or impair the ability of any other user to use the Solution or Websites;
(c) not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Solution is hosted;
(d) not transmit, or input into the Solution, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
(e) not modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Solution, the Software or the Websites.
4.5 Responsibility for the security of any usernames and passwords issued (including those of any Invited Users) rests with You. The Company does not recommend that You share Your user name and password with any other person nor with multiple users on a network.
4.6 No part of the Websites, Solution may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service without The Company’s prior written permission.
4.8 You agree to allow the words “Powered by OfficeTorque” to be displayed on the bottom of any OfficeTorque delivered web sites or portals. You agree to allow the words “Powered by OfficeTorque” to be displayed in a small font at the bottom of all OfficeTorque generated communications except in cases when the Client, acting reasonably, believes that it would not be appropriate to include the words on a particular document or communication. For custom configurations, the final positioning will be carried out in consultation with Your design team.
4.9 You are responsible for ensuring that You have obtained all necessary licenses and are and remain fully compliant with any obligations You have with existing and future software and service providers that connect to or are involved in the delivery of the OfficeTorque solution.
4.10 As part of Our standard operating procedures, the Company takes backups of all databases and copies of customised Solutions. In an emergency they are a core part of the Company’s Disaster Recovery Plan with a planned recovery window of less than 48 hours.
4.11 You are responsible for ensuring you have appropriate user access to the Services, which requires suitable computer infrastructure, up to date Internet browsers, and adequate Internet services.
4.12 Subject to Clauses 4.5 and 4.6 above, the Company acknowledges that all Client and Client customer data that the Company gets access to in providing the Services belongs to Client, and must be kept securely by the Company against unauthorised copying, access, loss, use or disclosure. Subject to clause 18.7, the Company must not use that data other than in providing the Services under this Agreement. The Company must not disclose such data without the permission of Client, and must advise the Client immediately on becoming aware of any actual, suspected or threatened unauthorised copying, access, loss, use or disclosure of such data. Within 7 days of termination of this Agreement, Company must return all copies of such data to Client, and Company must not retain any copies of such data. Client may conduct an audit of Company’s systems and records at any time to assess compliance with this clause. (Refer Data Security and Privacy Policies for further details)
5. PAYMENT & CONTRACT TERMS
5.1 The Solution is for use by the Client. You may provide Invited Users with access to Your account by registering them as a user of Your account.
5.2 These terms will come into effect on the date that the Agreement is signed by the parties and will continue until the end of the Initial Contract Term unless terminated in accordance with its terms.
5.3 The Initial Contract Term will be for period from the initial “Go-Live” date as defined in the Agreement.
5.4 On expiry of the Initial Contract Term, (and any Additional Term if this Agreement is renewed), this Agreement will continue to renew every 24 months unless either party gives notice of termination to the other not less than 60 days before such expiry.
5.5 Any deposit required for the Initial Setup costs, options, or additional consulting fees is due on signing of the Agreement to Proceed; the balance will be invoiced following acceptance by the Client against agreed milestones as defined in the Agreement, to be paid according to the terms in the Agreement. Any subsequent invoices for additional customisation, training, modifications or support beyond the initial scope of deliverables, as agreed by the Client, will be paid by the Client based on the agreed terms.
5.6 The Usage Fees for the Solution will be billed and sent by email to the Client at the end of the month prior to the month to which the fee period applies, and is payable according to the terms of the Agreement.
5.7 All pricing charges and fees are exclusive of all taxes and duties.
5.8 New Zealand GST will be added to Our fees at the current rate for all New Zealand registered Clients. The Company will provide a tax invoice as required by the Goods and Services Tax Act 1985.
5.9 New Zealand GST will not apply for Clients outside New Zealand. In such cases the invoice will be zero rated for GST/VAT purposes.
5.10 Accounts that remain unpaid for 60 business days after the due date will be suspended until payment is made in full.
5.11 The Company reserves the right to terminate Your account and the Solution to You when payment is 90 days overdue.
6. REFUND POLICY
Since the Solution is a consumable service, We do not provide any refunds for services already delivered.
All deposits and implementation fees are non-refundable.
If You have any problems with Your billing or payments, please email: firstname.lastname@example.org or call Us on +64 (09) 280 3260.
7.1 While the Company endeavours to ensure that the information provided on the Websites and the information provided in connection with the Solution is correct, the Company does not warrant the accuracy and completeness of such material.
7.2 You acknowledge that:
(a) it is not possible to test the Solution in advance for every possible operating combination and environment; and
(b) it is not possible to produce Software known to be error free in all circumstances.
7.3 We disclaim any liability in relation to: (a) the content of any third party website which may be linked to Our website at any time. The links to such sites which We include in Our website are merely for convenience for You and We do not necessarily endorse the content of those third party sites; and (b) information which is obtained from third parties and which We may post on Our website at any time. We provide such information to You merely for convenience, and We do not necessarily endorse the products or services referred to in the information.
8.1 Except where clause 4.10 applies, the Company is not responsible for making on-going regular backups of any of Your local data files or information that is uploaded or will be uploaded to the Solution and that the Company is not liable for any loss or corruption of any source data, files, or records as a result of connecting to and using the Solution.
8.2 The Company is not in any way responsible or liable for the services, products, actions, deliverables, performance and warranties provided by 3rd party suppliers including any Company agents, resellers, distributors, and partners where You directly engage with that 3rd party. Any engagement between You and any 3rd party will be based on agreed terms and conditions between You and that party.
8.3 The Company takes no responsibility for gaining any permissions that may be required by Your suppliers, clients or recipients of communications made via the Solution to receive communications and have summary data regarding their account activity with You made available via email and web based delivery systems.
8.4 The Company does not warrant that the use of the Solution will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the web site, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Solution. The Company is not in any way responsible for any such interference or prevention of Your access or use of the Solution except where the interference or prevention of access or use of Solution is caused by the Company’s negligence.
8.5 Subject to clause 4.12, the Company is not liable for any loss or corruption of any data, files, or records as a result of connecting to and using the Solution.
8.6 The Company is not in any way liable for any loss in business incurred by You as a result of using the Solution.
8.7 The Company takes no responsibility for gaining any permissions or costs associated with any licenses, changes in licenses, or changes to warranty or support agreements that may be required by any of Your existing or future software suppliers or service providers as a result of using the Solution.
8.8 The Company takes no responsibility for meeting any Client, end-customer, government or other regulatory requirements associated with the collection, on-going security and storage of invoices, statements or other documents delivered over the OfficeTorque Solution.
8.9 You warrant and represent that You are acquiring the right to access and use the Solution by way of a software license and are agreeing to these Terms for the purposes of carrying on a business.
8.10 Subject to clauses 8.1 and 8.2, the Company’s maximum aggregate liability under or in connection with these Terms, or any collateral contract, whether in contract, tort (including negligence) or otherwise (a “Claim”), shall be limited in respect of any one incident, or series of connected incidents to (a) in the case of incidents not connected with implementation of the Solution, a sum equal to the usage fees paid by You to the Company in the twelve (12) month period immediately prior to the period giving rise to such Claim; and (b) in the case of incidents connected with implementation of the Solution, the fees paid or payable in respect of implementation of the Solution up until the “go-live” date.
8.11 Waiver of Subrogation. The Client and the Company agree that with respect to any loss which is covered by insurance then being carried by the Client or the Company, respectively, the party carrying such insurance and suffering said loss releases the other of and from any and all claims with respect to such loss, and they further agree that their respective insurance companies shall have no right of subrogation against the other on account thereof.
9. LIMITED WARRANTY
9.1 The Solution is provided with a limited warranty.
Software is inherently problematic. Errors and bugs can and do occur.
Any errors, bugs or defects identified during the Warranty Period will be resolved by The Company at no charge. (Refer Section 2, Clause 4.1)
Any errors, bugs or defects identified after the Warranty Period which arise as a result of a systemic problem, rather than as a result of Your particular circumstances, will be resolved by the Company as the company provides upgrades to the Solution over time as part of the monthly usage fee. (Refer Section 2)
Where such errors, bugs, and defects occur, the Company reserves the right to determine the nature and timing of the resolution. (Refer Section 2 )
9.2 The Warranty Period is 60 days from the time of “go-live” for any particular phase or milestone in the implementation process, following which time the terms of the Service Level Agreement (Section 2) will apply.
9.3 OfficeTorque Service Level Agreement (SLA)
The Company provides several levels of support that are defined in the attached Service Level Agreement. (Refer Section 2)
9.4 In no event shall the Company or any other party who may have distributed the Solution, be liable to You for any special, incidental or consequential damages arising out of the use or inability to use the Solution (including but not limited to loss of data or data being rendered inaccurate or losses sustained by You or third parties or a failure of the Solution to operate with any other programs), even if such holder or other party has been advised of the possibility of such damages.
9.5 Each Party warrants that no additional authorisation, consent, approval, filing or registration with any court or government department, commission, agency or instrumentality is or will be necessary or required for the Party to enter into and give effect to this Agreement.
10.1 Either Party may terminate this Agreement immediately by written notice to the other party (Defaulting Party) if:
(a) there is a material breach of this Agreement by the Defaulting Party which can be remedied but is not remedied by the Defaulting Party within fourteen (14) days of being instructed to do so (or within such other period reasonably specified in the instruction); or
(b) an order is made or an effective resolution is passed for the liquidation, receivership, voluntary administration or other insolvency administration of the Defaulting Party.
10.2 Following full “go-live” of the Solution, if the Client is unable to access the Services as a result of errors or downtime for 10% or greater of normal business hours average over a consecutive 3-month period, the Client shall have grounds to terminate this Agreement upon written notice to the Company. This provision excludes any scheduled maintenance, adds, moves or changes, and is subject to the Clauses in section 4.0 above.
10.3 Early Termination Penalties: Except where You lawfully terminate this Agreement under clause 10.1, if You have a term contract with the Company and terminate this Agreement prior to the expiry of the contract, then the following penalty payment will apply:
The penalty fee will be calculated at 100% of all unpaid Implementation Fees, plus 100% of all Monthly Fees for the balance of the term of the contract from ‘Full Go-Live’ date. If the contract is terminated by the customer prior to ‘ Full Go-Live’ date, then the contract commencement date will start from the date of formal termination notice from the Client, at which time, 100% of the balance of all the Implementation Fees, plus 100% of all the Monthly Fees for the full contract period will apply.
If no contract term applies, then the Client must provide 3 calendar months’ notice of termination, and pay the full Monthly Fees for this period.
10.4 Upon termination for any reason:
(a) all rights granted to You under these Terms shall cease;
(b) You must cease all activities authorised by these Terms;
(c) You must immediately pay to the Company any sums due to the Company under these Terms including any partial month usage fees when paying in arrears;
(d) You will not be entitled to any refund or credit in respect of any fee paid by You in advance or partial month fees, including any Minimum Fees that apply, incurred for any cancelled Solution;
(e) You will immediately pay any early termination penalty fees owing as per clause 10.2 above;
(f) a copy of all of Your information held in the Company system will be provided to You at Your cost, prior to deleting it from Our servers;
(g) transition assistance will be provided by the Company to the Client at standard hourly rates as defined in Section 2, clause 4.0;
(h) any confidential information held by either Party pertaining to the other Party will immediately be returned to the issuing party.
11. TRANSFER OF RIGHTS AND OBLIGATIONS
11.1 These Terms are binding on You and Us, and on Our respective successors and assigns.
11.2 You may not transfer, assign, charge or otherwise dispose of these Terms or any of Your rights or obligations arising hereunder, without Our prior written consent.
All notices given by You to Us must be given to OfficeTorque Limited at email@example.com or in writing to OfficeTorque Limited, PO Box 300-002 Albany, Auckland 0752, New Zealand. We may give notice to You at either the e-mail or postal address You provided to Us when registering. Notice will be deemed received and properly served; 24 hours after an e-mail is sent, or six days after the date of posting of any letter. In proving the serving of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
13. EVENTS OUTSIDE OUR CONTROL
13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of Our obligations hereunder that is caused by events outside Our reasonable control (a “Force Majeure Event”).
13.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond Our reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other disaster whether man made or natural;
(d) impossibility of the use of public or private telecommunications and data networks.
13.3 Our performance is deemed to be suspended for the period that the Force Majeure Event continues, and We will have an extension of time for performance for the duration of that period. We will use Our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which Our obligations under these Terms may be performed despite the Force Majeure Event.
14.1 If either Party fails, at any time to insist upon strict performance of any of the other Party’s obligations under these Terms, or if a Party fails to exercise any of the rights or remedies to which it is entitled hereunder, this shall not constitute a waiver of such rights or remedies and shall not relieve the other Party from compliance with such obligations.
14.2 A waiver of any default shall not constitute a waiver of any subsequent default.
14.3 No waiver by either Party of any of these Terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the other Party in writing.
15.1 If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
16. ENTIRE AGREEMENT
16.1 These Terms and any document expressly referred to in it represents the entire agreement between Us in relation to the use of the Websites and the provision of the Solution and supersedes any prior agreement, understanding or arrangement between Us, or any agent representing Us, whether oral or in writing.
16.2 We each acknowledge that, in entering into these Terms, neither of Us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between Us prior to entering into these Terms except as expressly stated herein.
17. DISPUTES RESOLUTION
17.1 If a dispute arises out of or relates to these terms and conditions (the Dispute) a party to the Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause except where the party seeks urgent interlocutory relief.
17.2 A Party claiming the Dispute has arisen under or in relation to the Agreement must give written notice to the other Party specifying the nature of the Dispute.
17.3 On receipt of that notice, the Parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
17.4 If the Dispute is not resolved within 15 Working Days of the notice being given pursuant to clause 17.2 (or within such further period agreed in writing by the Parties) either Party may, by giving written notice to the other Party, request the Dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by the Parties or, failing agreement within 5 Working Days of the notice requiring arbitration, by the President or Vice President of the New Zealand Law Society on application of either Party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.
18.1 A Party shall not without the prior written approval of the other Party, disclose the other Party’s confidential information.
18.2 A Party shall not be in breach of sub-clause 18.1 in circumstances where it is legally compelled to disclose the other Party’s confidential information.
18.3 Each Party shall take all reasonable steps to ensure that its employees and agents and any subcontractors engaged for the purposes of this Agreement, do not make public or disclose the other Party’s confidential information.
18.4 A Party may at any time require the other Party to arrange for its employees, agents or subcontractors engaged in the performance of this Agreement to execute a suitable confidentiality agreement.
18.5 The Company shall on demand return to the Client any documents supplied by the Client to the Company in connection with this Agreement.
18.6 Notwithstanding any other provision of this clause, the Client may disclose the terms of this Agreement (other than confidential information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
18.7 You agree to allow the Company to collect and publish summary data (non company specific, and non identifiable) about overall trends and the performance of Our users over time.
18.8 This clause shall survive the termination of this Agreement.
19. GOVERNING LAW AND JURISDICTION
This legal notice shall be governed by and construed in accordance with New Zealand law. Disputes arising in connection with this legal notice shall be subject to the jurisdictions of the New Zealand Courts.
20. ISSUING PARTY & CONTACTS
20.1 These Terms are issued by OfficeTorque Limited, a private limited liability company registered in New Zealand.
20.2 If You have any questions, concerns or complaints in relation to the Websites, the Solution or these terms and conditions, please contact OfficeTorque Ltd or by sending an email to: firstname.lastname@example.org or in writing to PO Box 300-002 Albany, Auckland 0752, New Zealand.
Section 2 – OfficeTorque Standard Service Level Agreement
The following document outlines the scope of the Service Level Agreement between OfficeTorque Limited (the Company) and the Client. OfficeTorque has several levels of Support and they are outlined as follows.
1.0 First Level Support
1.1 Where the Client becomes aware of any problem with the operation of the Solution, it will take all reasonable steps to investigate and diagnose the problem to determine whether the problem is caused by:
• human error or misuse of the Solution;
• any problem with any other software, hardware or networking technology used by the End User;
• any known issue with the Solution notified to the Client which the Client is able to correct without requiring Second Level Support; or
• and, where the Client determines that the problem is caused by any of the above factors, take such steps as may be necessary to remedy the problem.
1.2 Where the Client reasonably believes that any problem with the operation of the Solution is caused by an Error or is otherwise unable to remedy a problem it will notify OfficeTorque by email and by phone or mobile. In doing so, the Client will specify:
• the impact on the operation of the Solution caused by the problem and the Client’s assessment of the priority level of the problem;
• any work undertaken by the Client to diagnose and rectify the problem; and
• the suspected cause of the problem.
1.3 In providing First Level Support, OfficeTorque will ensure that all personnel involved in the provision of First Level Support are:
• suitably qualified and experienced, and have undertaken appropriate training in the operation, installation, configuration and identification of any issues with the Software;
• act to the best of their skill and ability and in accordance with accepted professional standards for persons having those qualifications and experience;
• carry out all their obligations under this Agreement and exercise all proper professional skill, care and judgment which may be expected of an experienced specialist providing a Solution similar to the First Level Support.
1.4 All issues submitted via Our support email and tracking system are monitored during Normal Business Hours. If however, You require First Level Support at any time You will be required to contact Us by phone or mobile to ensure that We are aware of the issue.
2.0 Second Level Support
2.1 OfficeTorque will monitor the support e-mail address and any phone messages periodically during Normal Business Hours but not on a 24 x 7 basis in order to handle enquiries and reporting of Errors by the Client.
2.2 On receipt of an Error Notice, OfficeTorque will use its best endeavours to:
• investigate and diagnose the problem notified to OfficeTorque and notify the Client as soon as reasonably practicable of the results of such investigation and diagnosis;
• where the investigation and diagnosis indicates an Error with the Software, take such steps as may be reasonably necessary to rectify that Error, which may include:
o establishing or recommending workarounds to enable the Software to continue operations pending full correction of the Error; and
o providing patches, bug fixes, modifications, enhancements or other solutions to remedy or correct Errors in accordance with this SLA.
• The response times will vary depending on the classification of the error and are defined in Clause 2.7 below.
2.4 OfficeTorque will provide any enhancements to or new releases of, the Supported Software/Solution (Updates) to the Client as they become available. There may be implementation costs involved in installing or configuring these enhancements for the Client. Release notes will be provided identifying significant changes and new features in each Update. Any additional enhancements that are client specific or outside the current functionality of the Solution would be fully scoped, a proposal prepared and presented, and client approval obtained.
2.6 The Client may also submit queries to OfficeTorque regarding the operation of the Supported Solution by email (email@example.com). OfficeTorque will use all reasonable endeavours to answer any such queries.
2.7 Errors will be classified by OfficeTorque based on their severity and impact on the Client’s operations. The classification assigned by OfficeTorque will be agreed with the Client, and may be downgraded where a mutually agreed work-around has been implemented in respect of an Error classified as Critical or High. Errors are classified and responses are provided on the criteria set out below:
|Critical||The Software is inoperable and cannot perform mandatory daily functions.
Unrecoverable loss/corruption of data.
|Call acknowledgement within 2 working hours.
Continuous effort until the Error is resolved or a mutually agreed work-around is implemented.
Daily progress updates.
|High||A Critical Error for which a work-around could be implemented to allow completion of all significant business functions.||Call acknowledgement within 2 working hours.
Continuous effort during OfficeTorque’s standard business hours until the Error is resolved or a mutually agreed work-around is implemented.
Daily progress updates.
|Medium||An Error that does not prevent critical application processing or reporting. It may also be desirable new functionality either at a generic or client specific level.||Call acknowledgement within 2 Business Days.
Correction of the fault on an next interim Software release.
Weekly progress reporting.
|Low||A trivial or cosmetic Error.||Call acknowledgement within 5 Business Days.
Correction in the next Update.
Monthly progress reporting.
3.0 The Client Reporting/Communications
The parties will meet at regular intervals by telephone, to review the following:
• classification of individual Errors;
• completeness of the OfficeTorque Error log;
• progress on outstanding Errors, including expediting Errors as necessary;
• service level performance;
• training needs; and
• any other support matter.
4.0 Support Costs
4.1 These are defined in Your Agreement.
5.0 Contact Information
For further information about this document:
Phone: +64 (09) 280 3260
Postal: PO Box 300-002 Albany, Auckland 0752, New Zealand.
For lodgement of a Support Issue:
NZ phone: 0800 000940
Australia phone: (02) 9098 0982