The Conditions of the Purchase/Maintenance/Licence Agreement exists between:
MULI MANAGEMENT PTY LTD (MULI) ABN: 90 002 268 126
of 124 Fox Valley Rd, Wahroonga NSW 2076 Ph: 02 9487 3241 Fax: 02 9487 3583
1. Nominated MULI support organisation is: ………………………………………………………………………………………
2. ENTIRE UNDERSTANDING – The Agreement contains the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof. It shall not be modified except by an instrument in writing signed by the parties hereto.
3. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of New South Wales, Australia.
4. FORCE MAJEURE. MULI shall not be liable for any failure or delay in performance of its obligations hereunder if such failure or delay is due in any part to circumstances beyond its direct control.
5. ASSIGNMENT. The rights, duties, and obligations of the Purchaser shall not be assigned or transferred without the prior written consent of MULI.
6. NON WAIVER. MULI’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of any such rights.
7. NOTICE. Any notices required to be given hereunder shall be given in writing and delivered, posted, or faxed to the address of each party set out in the party details above, or to such other address as either party may substitute by written notice to the other.
8. WARRANTY AND LIABILITY.
a. To the extent permitted by law, MULI excludes all warranties, guarantees and conditions that would otherwise be implied into this agreement by law. Where MULI is not able to exclude such a warranty, guarantee or condition, MULI limits, to the extent permitted by law, its liability for a breach of that warranty, guarantee or condition to one or more of the following at its option:
- in the case of goods, any one or more of the following:
- the replacement of the goods or the supply of equivalent goods
- the repair of the goods
- the payment of the cost of replacing the goods or of acquiring equivalent goods
- the payment of the cost of having the goods repaired; and
- in the case of services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again
This paragraph a. takes precedence over the balance of this clause 8.
b. All packages are offered on an “as is” “machine code” basis without any modifications.
c. MULI’s liability is limited to repair and the replacement of the MULI application software component, which, in the opinion of MULI, is not in good working order. MULI will be under no liability for damages to the Purchaser or any other person for any loss in respect of or arising out of the system, its condition, performance or use.
d. MULI has no liability to any person arising under or in relation to this agreement (whether in tort, contract, equity or otherwise) for any loss in the nature of consequential or economic loss. In particular, MULI has no liability to any person for any: lost profits; loss of savings, income or revenue; revenue not meeting targets or certain levels; uptime or availability of internet connectivity or of the ability of third parties to access a website, loss of opportunity; or loss of or corruption of data. The exclusions in this clause 8d. apply even in respect of loss or damage that was foreseeable or about which either or both of the parties were aware was likely to arise.
9. OPERATING ENVIRONMENT
a. The operating system and system utilities are configured to run the MULI system. Where MULI’s support organisation provides the hardware and operating systems these configurations are included. Hardware and operating systems not provided by MULI that require special work in obtaining porting configuring device drivers for Servers networking workstations and printers, etc. shall be at the Purchaser’s expense.
b. Environment and Utility Support Software such as Linux Mail, IMAP, LDAP, Libre Office, PDF Display, Client, mail, diary etc. utilised by MULI require to be maintained at coordinated issued levels to reduce bugs and allow future enhancements. All licence/maintenance/upgrade costs incurred along with MULI’s’ installation support time in installing same are at the Purchasers’ expense.
10. NON-ASSIGNABLE LICENCE.
MULI grants to the Purchaser a non-exclusive, non-assignable licence for use of the MULI Base Software forming part of the System supplied under the Agreement. Where the Purchaser acquires additional modules, MULI grants to the Purchaser a non-exclusive, non-assignable licence for the use of the relevant module. Licences granted under this clause 10 specifically exclude the right to reproduce, publish or licence the software covered by the licence to others. The term of the licence for the MULI Base Software is the term of this Agreement and the term of other software modules is the term for which the Purchaser pays for those modules. MULI may terminate or, at its option, suspend any licence referred to in this clause 10 by notice to the Purchaser at any time the Purchaser is in breach of any of the Purchaser’s obligations under this Agreement. The Purchaser expressly acknowledges that the entire right and title to such Software shall remain with MULI and MULI has the exclusive right to protect by copyright or other means, to reproduce, publish, sell and distribute such Software. The licences referred to in this clause 10 are granted only in respect of the MULI software forming part of the System. MULI does not grant any licences in respect of any other part of the System.
11. SOFTWARE PURCHASE
MULI software is sold on a 2-element usage Licence comprising:
a. Purchased modules
b. Sizing Items as set out in the Software Pricing Schedule attached. The upgrade value is the difference in cost between previous paid value and new calculated value, which is invoiced on upgrade.
c. Clients upgrading their licence to obtain extra users, modules, functionality or to migrate from a Muli Entrée to a MULI licence shall be charged a Licence Upgrade amount that is calculated as per the Software Pricing Schedule.
d. Pricing of software and services may be adjusted over time.
12. SOFTWARE MAINTENANCE & LICENCE.
a. Muli Entrée software has a specific limitation of 2 active users. To move to a 3-user solution requires upgrading to the MULI solution. Muli Entrée users may purchase any MULI extension at the module prices.
The database is common to both Entrée and MULI solutions.
b. The MULI Software package deployed on a client’s server is provided by module on an annual licence basis requiring the payment of an annual or monthly combined Software Maintenance and Licence Fee in advance.
c. The licence fee entitles the Purchaser to general software system upgrades on purchased modules.
d. The MULIi software maintenance includes telephone support of one-half hour per month for authorised Administrators and responsible Executives. Should the System Administrator change, then the Purchaser shall arrange for training of a new Administrator, OR MULI may charge for support services. Support shall be provided by the nominated MULI support organisation listed in Item 1. Further assistance will be charged at MULI’s published Charge Rates. (A call is regarded as a minimum of 0.3 hour.)
The MULI Hosting Service includes:
– Virtual computer with Raid hard disk
– Daily database dump
– Backup of data to another storage device
– Hosting in data centre with quality Internet connectivity
– Monitoring of service
The Hosting Service is normally invoiced monthly in advance
14. FIXED IP ADDRESS
Where Users have an in-house server or require a direct printing facility (ie: cheque printing) then they are required to have a fixed IP address for support and functional operation.
15. LIMITATIONS OF SERVICE.
a. MULI Software Maintenance does not include Network administration maintenance and Utility support, While other products (such as operating systems, terminal emulators, network communications & storage, print managers, word processors, spreadsheets, mail) may be utilised in the total solution provided by MULI, all maintenance rectification, tuning and upgrades required to maintain their correct functionality is at the Purchaser’s expense.
b. The services specified above are performed during normal business hours, 9.00 am to 5.00 pm EST., Monday to Friday, excluding Public Holidays and extended Christmas and Easter shut-down
c. Software Maintenance costs do not include the time and materials to re-format and establish the operating systems and application programs on the hard disk required after having a disk failure or operating system upgrades, which will be provided on time & materials basis and this will usually require the use of a new disk.
d. MULI shall be under no obligation for support services under this Agreement should repair be required because of: Improper use; natural disasters, e.g. earthquake; strikes, riots, or acts of war or nuclear disaster; repair, maintenance, modifications, or relocation and re-installation made by other than MULI personnel or without MULI’s supervision and written approval; unusual shock or electrical damage, accident, fire, flood, storm or water damage, neglect, air conditioning failure, a corrosive atmosphere harmful to electronic circuitry, damage during transportation by the customer, or causes other than ordinary use; failure by the customer to maintain the site specifications recommended by MULI. If support services are required as a result of the causes stated above, such service shall be provided at MULI’s commercial rates.
e. Where MULI provides hardware as part of a solution, that hardware comes with hardware manufacturer’s warranty. No added or implied warranty is provided by MULI except to the extent required by law.
f. The Purchaser acknowledges that the information developed by MULI for loading procedures/ integrating of the various software packages/hardware platforms form part of MULI’s’ proprietary information and those procedures do not form part of purchased system. They are intended for use by MULI personnel in providing a quality service.
16. RESPONSIBILITIES OF THE PURCHASER.
a. MONTHLY PAYMENTS. Where a monthly payment contract exists, the Purchaser shall complete MULI’s Direct Debit Request Form with their bank information and authority to debit their bank account. If, for any reason MULI has to revert to manual invoicing for recurring amounts then a 10% administration fee will be applied.
b. PAYMENT OF INVOICED ACCOUNTS. MULI’s standard payment terms are 10 working days from date of invoice and the Purchaser must pay all accounts in full within this period. MULI reserves the right to add interest to overdue accounts until payment, at 2% per month or part thereof, compounded monthly.
c. VIDEO DISPLAY. MULI recommends configured minimum resolution of 1024 x 768 on 17″ monitor on all workstations accessing MULI. For key operators, MULI recommends 23” HD wide screen.
Provision of a fixed IP address broadband Internet connection for direct support to the server is the responsibility of the Purchaser and shall be in place prior to MULI server installation.
User side Internet connections, MULI recommends you ensure your Internet Service Provider (ISP) provides a maximum ping of 100 ms with average working ping under 50 ms.
The User is responsible for maintaining a secure fire wall on their site and enabling port forwarding for printing, if required.
Maintenance of correct user side firewalls.
Establish a permanent open virtual private network (VPN) to enable efficient use of file sharing and printing.
Payment of network connections, including traffic costs
e. Provision of suitable computer hardware as required.
f. DATA RECONSTRUCTION. The Purchaser will follow routine operator procedures for the products. Note in particular regular “BACKUP” and verification of backed up data.
17. ONGOING SUPPORT.
In the event of MULI ceasing support operations for any reason, MULI shall arrange ongoing support of the software within a reasonable period, or provide source code to the Purchaser, provided their account is fully paid.
a. The Purchaser acknowledges the training effort by MULI in respect of its staff and undertakes to pay MULI a commission of 30% of cost should they engage either directly or indirectly MULI’s current or past staff.
b. When required by MULI, the System Administrator and the Chief Executive of the Purchaser organisation shall sign a statement that the MULI software systems and Intellectual Property including approaches, solutions and presentations have not been and will not be, made available to or utilised by other manual or computer system providers.
c. Should a User or his/her employee be found to have provided the MULI software, confidential information or Intellectual Property including approaches, solutions, or presentations to unauthorised persons or organisations, then, in addition to any other rights available to MULI, Purchaser must pay to MULI by way of liquidated damages 10 times the relevant module price as compensation for part of the loss suffered by MULI as a result. Payment of this liquidated amount is not in substitution for damages that MULI may recover and does not limit the amount of damage MULI may recover.
d. Purchaser must keep MULI’s confidential information confidential and not use it for any purpose other than fulfilling its obligations under this Agreement. For the purposes of this agreement all information provided by MULI to the Purchaser (including without limitation, approaches, solutions, presentations and other expressions of MULI know how) are the confidential information of MULI except for information which is lawfully in the public domain or which the Purchaser can prove was known to the Purchaser prior to disclosure by MULI.
19. TERMINATION. The Purchaser may terminate this Agreement at any time upon 30 days’ written notice to MULI. MULI may terminate this Agreement upon sixty (60) days’ written notice to the Purchaser. Any termination hereunder shall not affect any existing rights or obligations of any party, either before notice is given or during period of notice. Upon termination all licences granted by MULI under or in relation to this agreement cease and the Purchaser must return to MULI all confidential information of MULI.
20. ARBITRATION. In the event that the parties hereto cannot agree, any dispute, controversy or claims arising out of or relating to this agreement or the breach, termination or invalidity thereof shall first be the subject of conciliation, administered by the Australian Commercial Disputes Centre Limited (ACDC) conducted and held in accordance with conciliation Rules of ACDC in force at the date of this agreement. In the event that the dispute, controversy or claim has not been resolved within twenty eight (28) days after the appointment of a Conciliator by the parties hereto the dispute, controversy or claim shall be submitted to arbitration, administered by ACDC. The arbitrator shall be agreed between the parties from a panel suggested by ACDC or failing agreement an arbitrator appointed by the Secretary General of ACDC. Subject to the foregoing arbitration shall be conducted and held in accordance with and subject to the laws of the state of New South Wales. The arbitrator shall not be the same person as the conciliator. Any conciliation or arbitration meetings shall be heard in Sydney. In the event of arbitration the arbitrators decision will be final.
MULI Management Pty Ltd ___________________ Purchaser __________________________
ACCOUNTING / TAXATION DISCLAIMER
Muli Management Pty Ltd is not professionally qualified or registered to provide legal, accounting or taxation advice.
Muli write and sell accounting system packages. We provide generalised procedures with the view that these procedures will assist you in complying with your obligations at law, including in relation to accounting and taxation obligations. The Purchaser must verify that the operation of the software is consistent with your obligations.
While Muli’s Staff and its Associates aim to provide procedures and solutions that enable the production of documents and may assist in the communication of information to the recipients, the Purchaser must review and modify all contractual/financial documents generated through Muli in order that they are appropriate for the Purchaser’s business.
Muli has included proforma documents for a number of external processes (i.e.: Subcontract writing). The Purchaser must ensure they obtain legal right to use all documents created through Muli.
I/We, the Company Officers of the Purchaser confirm that we understand that Muli provides information services to assist our professional staff and consultants in the operation of the business and that the Purchaser must review the data and procedures used to ensure correct documentation and/or returns are made on behalf of the Purchaser.
The person signing this page personally warrants they are authorised to do so and will ensure that the content is brought to the attention of the Chief Executive Officer & Chief Financial Officer