Terms of Service

XUNO Suite Software Licence Agreement

1. Definitions and Interpretations
    
   
   1. 'Semaphore Consulting' means Semaphore Consulting Pty Ltd (ABN 79 007 089 661) a company incorporated in Victoria, with its office at Suite 18, 79 Mahoneys Road, Forest Hill, VIC 3131.
   2. 'Customer' means you the customer who has purchased the XUNO Suite software application.
   3. 'Software' means the XUNO Suite web-based computer software product including all related and associated documentation, provisions, services, and third-party applications and services.
   4. 'Software Licence' and 'Licence' means the licence of software granted pursuant to this agreement.
   5. 'Annual Licence Fee' and 'Licence Fees' means the amount so specified in the invoice for the Software.
   6. 'Software Licence Period' and 'Licence Period' means a twelve (12) month period as specified in the invoice for the Software for which the Customer is granted the right to use the Software pursuant to this agreement.
   7. 'Support Fees' means the amount so specified in the invoice.
   8. 'Renewal Anniversary Date' means the anniversary date on which Software Licence will expire and the Annual Licence Fee is due.
   9. The singular shall include the plural and vice versa. Headings are included for convenience only and shall not affect the construction or interpretation of this agreement.
 

2. Licence
    
   
   1. This Licence Agreement is entered into between Semaphore Consulting and the Customer; and
   2. Semaphore Consulting hereby grants to the Customer a non-exclusive, non-transferable licence to use the company's proprietary Software, and/or Software of partner companies, for the Annual Licence Fee agreed between the parties.
   3. It should be noted that the Licence Fee and Software Licence Period is an annual twelve (12) month licence with no monthly or pro-rata options.
   4. By installing and using the licenced Software, as permitted by this licence, the Customer agrees to be bound by the terms of this Agreement.
   5. The Annual Licence Fee includes software upgrades, however, it does not necessarily cover all new features or products released by Semaphore Consulting from time to time; and such new products will be offered to the Customer for additional purchase if required at the discretion of Semaphore Consulting.
   6. The Software is provided "as is" without warranty of any kind. The entire risk as to the results and performance of the Software is assumed by you. Semaphore Consulting does not make any representations regarding the performance of the Software in terms of reliability, correctness or otherwise. Semaphore Consulting shall not be responsible for any direct, indirect, consequential or incidental damages arising out of the use of, or the inability to use, the Software. As some countries or states do not allow the exclusion or limitation of warranties, some of the above may not apply to you.
 

3. Support
    
   
   1. The Annual Licence Fee includes unlimited access to the Software support site at no cost for the Software Licence Period; and
   2. Phone, email and remote dial-in support is provided at no cost during normal business hours for the duration of the Software Licence Period
   3. Support includes telephone, fax and email support and advice of a technical nature directly attributable to the use of the Software.
   4. Support is available from 9.00am to 5.00pm EST on weekdays, excluding public holidays, the two week Christmas closedown period and any other period when notified to clients by the support team
   5. The provision of training in the use of the Software is not included in annual support and nor is setup of your database and any other areas that would normally be considered training or other fee-for-service provision and not support, including the provision of support to School personnel who have not undertaken training in the Software.
   6. Semaphore Consulting reserves the right to charge its standard rates when providing support not covered by this agreement or as a result of the Software having been used incorrectly or not as designed, or where problems not attributable to the Software are encountered
 

4. Fees and Cancellation
    
   
   1. The Annual Licence Fee is due at the beginning of the Software Licence Period and payable in advance of the Renewal Anniversary Date, and the cost of Annual Licence Fee is calculated on the amount of active students on the date of renewal.
   2. Unless otherwise expressly stated, the Licence Fees and Support Fees do not include Goods and Services Tax ('GST') which the Customer shall pay in addition to the Licence Fees and Support Fees as set out on the tax invoice.
   3. The Software Licence will automatically be renewed each year unless the Customer cancels the Software Licence in writing prior to the Renewal Anniversary Date. Should the Customer cancel the Software Licence after the Renewal Anniversary Date then Semaphore Consulting reserves the right to charge the full Annual Licence Fee.
   4. Within the first thirty (30) days of this Agreement the Customer may cancel the Software Licence if not entirely satisfied with the Software or service provided; and in such an instance the Customer will receive a refund of the Licence Fees less the costs associated with implementation and training including travel costs.
   5. Within fourteen (14) days after the expiration of the Software Licence Period stated with the Annual Licence Fee or upon termination of this agreement or the termination of the Software Licence the Customer hereby agrees to uninstall and remove all on-premise instances of the Software and provide Semaphore Consulting with written confirmation that they have done just so.
   6. Should the Customer require access to data after the Software Licence has expired or cancelled then Semaphore Consulting reserves the right to charge for staff time and resources required to access the data and provide this to the Customer.
   7. The Customer agrees to pay all Licence Fee and Support Fee invoices issued by Semaphore Consulting by the due date specified on the invoice; and
   8. If payment is not made by the due date stated on the invoice then Semaphore Consulting shall be entitled, at its discretion, to:
      1. Provide the Customer with a grace period for late payment of up to thirty (30) days after the start of the licence period; and/or
      2. Charge the Customer an interest/late payment fee of 2.5% per month (30% per annum); and/or
      3. Suspend its remaining obligations under this agreement until the payment (and any interest due thereon) has been paid in full by the Customer; and/or
      4. Terminate the licence; and/or
      5. Re-possess the software; and/or
      6. Cease to provide the support services.


5. Acceptance
    
   
   1. Upon initial installation of the Software the Customer shall be deemed to have accepted the software.


6. Modifications and Reverse Engineering
    
   
   1. The Customer shall not modify the whole or any part of the Software without the prior consent in writing of Semaphore Consulting.
   2. The Customer shall fully indemnify and hold harmless Semaphore Consulting against any liability incurred if the said modifications infringe the intellectual property rights or a third person.
   3. The Software as modified remains the property of Semaphore Consulting.
   4. This agreement shall continue to apply to the Software as modified.
   5. The Customer shall not reverse assemble, reverse engineer, reverse compile, re-compile, disassemble or use for their own or a third personís purpose any part of the Software or remove the licencing restrictions in the Software.
 

7. Technical
    
   
   1. Backup and maintenance of all data stored, created and implemented in any way, is the responsibility of the Customer.
   2. The Customer shall be responsible for protecting the Software at all times from unauthorised access, use or damage.
 

8. Ownership
    
   
   1. The Customer acknowledges that Semaphore Consulting is the owner, or the licensed distributor of the software who retains ownership of the product, whether in its original form or as modified by the Customer during the term of the licence.
 

9. Confidentiality
    
   
   1. The Customer agrees to restrict access to and knowledge of any proprietary information with respect to the Software to those employees or contractors of the Customer who are directly concerned with the use of the Software and the Customer shall keep such information confidential.
   2. Semaphore Consulting shall treat as confidential, all information regarding the Customer which comes into its possession pursuant to or as a result of or in the performance of this agreement. Semaphore Consulting shall not, without the written permission of the Customer, disclose such confidential information to a third party; and
   3. Semaphore Consulting shall upon termination of this agreement or expiration of the software licence destroy all confidential information it has of the Customer including usernames and passwords, remote access details, and any whole or in-part copies of the Customer Software databases.
   4. The Customer and Semaphore Consulting shall comply fully with their respective obligations under the Privacy Act 1988, including the National Privacy Principles.
   5. The operation of this clause shall survive the termination or expiry of this agreement.
 

10. Indemnity
     
    
    1. Semaphore Consulting is not liable to the Customer or any third party under this agreement or under general law to the extent that any loss or damage is caused or contributed to:
        
       
       1. by the negligence of the Customer or any third party;
       2. by any breach by the Customer of the terms and conditions of this agreement;
       3. by the use of the software in a manner or for a purpose for that it was not intended to be used or in conjunction with any other software not approved in writing by Semaphore Consulting for use with the Software.
    2. Semaphore Consulting shall in no circumstances be liable to the Customer or any third party or under general law for any loss of profits, indirect economic loss, breaches of security, loss of data, damages, claims or expenses caused by or arising from the supply of the Software or the use of the Software by the Customer or any third party.
    3. The operation of this clause shall survive the termination or expiry of this agreement.
 

11. Compliance
     
    
    1. Semaphore Consulting will comply with and remain compliant with PCI DSS for all applicable services using XUNO payment system.
12. General
     
    
    1. Semaphore Consulting reserves the right to change the terms and conditions of use and alter Annual Licence Fee with prior written notice, or as otherwise agreed with the Customer.
    2. This Agreement shall be governed by and construed in accordance with the laws of Victoria, Australia. In the event of dispute the parties agree to submit to the exclusive jurisdiction of the Victorian Courts.