1) Definitions

The following words have these meanings in this Agreement:

(i)    Error means:

a) a Non Compliance; or

b) any part of the Software (or data written by and accessed by the Software) that:

c) causes an error message to be displayed (whether generated by the Software or by the operating system running the Software);

d) results in the Software doing something that it was not designed to do; or

e) results in the Software not doing something that it was designed to do.

(ii)   Helpdesk Services is defined in section 4 ("Helpdesk Services").

(iii)   Modification means any change, deletion, addition, replacement or amendment to the Software whether in the form of a bug fix, patch, workaround, error correction or other remedial work, generic modification or enhancement, but does not include Enhancements.

(iv)   Non Compliance means any failure of the Software to meet the Specification.

(v)    Support Period means the duration of the Subscription Agreement for which the subscription fee has been paid

(vi)   Workaround means a change to the Software, or a different way of using the Software (other than using part of the Software that causes the Error), which materially reduces the impact of the Error.

2) User Subscriptions.

(i)    Services are purchased as User subscriptions

(ii)   Subscriptions are on a per month basis with the subscription term outlined in the schedule

(iii)  Subscription fees are invoiced in arrears for the number of licensed users at month end (i.e. those people who log into the system during the month)

(iv)  Additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder

(v)  User subscriptions are for designated users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require use of the Services.

3) Software services

(i)  UniPhi agrees to provide technical support relating to the functional operation of the system. This is limited to issues relating to the software being fit for purpose and does not include support relating to actual use of the system.

(ii) The following services are included:

a) Provision of software patches for software components no longer functional

b) Reinstall of software

c) Provision of software upgrades and new releases within the support period

d) Provision of the hosting environment to allow for forms based authentication access to the application

e) Backup and recovery of data

4) Helpdesk Services

(i)    Provision of services

UniPhi must provide the Helpdesk Services to The Company according to this section 4.  In this section "Helpdesk Services" means a telephone, facsimile, e-mail and website support service available to The Company to:

a)  answer questions and give technical assistance about the installation, use and support of the Software; and

b) log reports of Errors and advise on progress of their correction.  

(ii)   Availability

Helpdesk Services must be available to The Company requirements, 9am - 5pm AEDT Business Days.

(iii)   Response Times

Call Type

Immediate - Malfunction of software (or a material part of it causing serious disruption to normal operations

Initial Response - Investigate within 2 working days

Respond & Follow Up - Rectify error within 5 working days

High - Obvious and serious flaw in the Software (or a material part of it ) eg significantly impairs the use by 50% of end users.

Initial Response - Investigate within 3 working days

Respond & Follow Up - Rectify error within 10 working days

Normal - All Errors not covered by "Immediate" or "High" above. 

Initial Response - Investigate within 5 working days

Respond & Follow Up - Rectify error within 20 working days or next software release as determined by the company

Project - Software Enhancement request that can be planned into a normal release cycle.  These requests are agreed using the Enhancement Work Order process.

Initial Response - Investigate within 5 working days

Respond & Follow Up - By negotiation

For reports, the time taken to respond is measured from the time that UniPhi's Helpdesk personnel receive the report to the time that one of UniPhi's technical support staff responds (ie calls back, faxes back, sends a reply email).

For questions, the time taken to respond is measured from the time that UniPhi's Helpdesk personnel receive the question to the time that it is satisfactorily answered.

5)  Error correction Services

(i)    Reported Errors

UniPhi must correct any Error reported to it by The Company within the response time for its severity level, as set out in section 3.2 ("Response Time").

(ii)  Response Times

Immediate

Workaround - 2 working days

Correction - 5 working days

High

Workaround - 3 working days

Correction - 10 working days

Normal

Workaround - 5 working days

Correction - 20 working days or next revision as determined by The Company

(iii)          Detected Errors

When UniPhi detects any Error, it must immediately notify The Company of the Error and correct the Error within the Response Time.

(iv)   Continued use

UniPhi must use its best efforts to implement a workaround within the Response Time but is not required to do so if it reasonably considers that the implementation may compromise correction of the Error within the Response Time.

(v)    Resources

Correction of Errors may be by remote diagnosis, on site assistance or otherwise but UniPhi must apply whatever resources and provide whatever services (including new software) are necessary to correct an Error within the Response Time ("Resources").  If UniPhi does not correct an Error within the Response Time it must continue to apply the Resources and correct the Error as soon as possible.

(vi)   Means of correction

If UniPhi complies with its obligations to correct an Error by supplying a Modification.  The Modification must be capable of being installed without having to:

a)  make any changes to data or to a database schema (unless the changes can be completed within 4 hours of implementing them or the change to data or database schema is the only way to correct the Error); or

b)  upgrade any software that is used with the Software (unless the upgrade is the only way to correct the Error).

(vii)  Data correction

If The Company's data is corrupted due to any Error, UniPhi must give reasonable assistance to The Company to restore The Company's data.

(viii) Caused by The Company

The Company must pay UniPhi at the Additional Services Rate for correction of any Error caused solely by The Company or The Company's equipment.

(ix)   Third party assistance

If  UniPhi is unable to correct any Error within the Response Time or repeated Errors of a substantially similar nature occur then, without prejudice to UniPhi's other obligations, The Company may:

a)    to the extent possible, engage a third party to correct the Error or correct the Error itself, and UniPhi must reimburse The Company the cost of that correction; and/or

b)    withhold the next Subscription Fee payment until the Error is corrected.

6) System up time

(i)    UniPhi aims to achieve 100% Web Application Availability

(ii)   Remedy: except under the conditions mentioned in the next section below, if the Web Application Availability of The Company's deployment is less than 100%, UniPhi will issue a credit to You according to the following:

Total Downtime in a 30 day month

99.99% to 100%

0 to 5 minutes

Credit percentage of monthly subscription fee 0%

98% to 99.99%

5.01 minutes to 15 hours

Credit percentage of monthly subscription fee 10%

95% to 97.99%

15 hours 1 minute to 36 hours

Credit percentage of monthly subscription fee 20%

90% to 94.9%

36 hours 1 minute to 72 hours

Credit percentage of monthly subscription fee 40%

89% or below

More than 72 hours

Credit percentage of monthly subscription fee 80%

(iii)   UniPhi will do its best to announce any scheduled maintenance at least 24 hours ahead of time to the The Company.

(iv)   Server downtime is not recorded and no credit is issued during scheduled or emergency system maintenance. Outages caused by the actions beyond UniPhi's control including, but not limited to DoS attacks or other forms of intrusion are excluded from the uptime/downtime calculations.

(v)   To guarantee optimal performance of the hosting infrastructure, it is necessary for UniPhi to perform routine maintenance on the servers. Such maintenance often requires taking UniPhi web servers off-line, typically performed during off-peak hours. UniPhi will give you advance notice of maintenance requiring the servers to be taken off-line whenever possible. UniPhi reserves one hour of Service unavailability per month for maintenance purposes. Such unavailability is not included in the Service Availability calculation.

(vi)   UniPhi reserves the right to perform emergency maintenance without any prior notification, should it be deemed necessary to protect and maintain the security and integrity of the Service.

(vii)    The Company shall not receive any credits under this SLA in connection with any failure or deficiency of Web Application Availability caused by or associated with:

a) Circumstances beyond UniPhi's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, ecommerce software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this SLA;

b) failure of access circuits to the UniPhi's Network or it's upstream providers, unless such failure is caused solely by UniPhi;

c) scheduled maintenance and emergency maintenance and upgrades;

d) DNS issues outside the direct control of UniPhi;

e) false SLA breaches reported as a result of outages or errors of any UniPhi's measurement system;

f) The Company's acts or omissions (or acts or omissions of others engaged or authorised by The Company), including, without limitation, custom scripting or coding (e.g., CGI, Perl, HTML, ASP, etc.), any negligence, wilful misconduct, or use of the Services in breach of UniPhi's Terms of Service and Acceptable Use Policy;

g) Outages elsewhere on the Internet that hinder access to your account. UniPhi is not responsible for browser or DNS caching that may make your site appear inaccessible when others can still access it. UniPhi will guarantee only those areas considered under the control of UniPhi: UniPhi server links to the Internet, and UniPhi's servers.

7)  Data ownership and back up

i)     UniPhi acquires no right, title or interest from the Company or the Company's licensors under this Agreement in or to the Company Data, including any intellectual property rights therein.

ii)    Upon subscription end, UniPhi will provide the Company on Flash Drive or via FTP transfer to the Company's server PDF versions of all UniPhi documents, Microsoft Excel 2007 versions of all UniPhi reports and all native documents uploaded to the system in a directory structure matching the UniPhi filtering system. Note that this content can be generated at any time by the Company using the document export function in the Admin module.

iii)   UniPhi performs backups of content on a daily basis with the following provisions:

a) UniPhi makes every effort to insure that these backups are valid.

b) UniPhi assumes no liability for any information published to any server including all The Company web site content, related files, backup files, databases hosted at UniPhi.

c) Backup arrangements for the Company content for any frequency other than the standard backup frequency must be made by written contract and acceptance by UniPhi and any such contract will be subject to premium monthly charges.

d) UniPhi does not backup any Server without a written contract to do so

8)  Supplementary support services

(i)    Implementation of Modifications

UniPhi must give The Company a sufficiently detailed explanation of the effect and use of the Modification (including a list of all the functions added, removed or affected by the Modification).

(ii)   Required time for Installation or provision of Modifications

If the Modification is:

a) to provide a workaround or to correct an Error - within the relevant Response Time above;

b) other than for (a) - as soon as reasonably possible.

(iii)   Impact

UniPhi must use its best efforts to ensure that all Modifications can be implemented without the need to change data or any other software used in conjunction with the Software.

(iv)  Modification fees

UniPhi will quote for each work order using the following standard rates for resources:

a) Software development - $150 per hour or $1,000 per day

b) System architecture - $250 per hour or $1,200 per day

c) Business analysis - $200 per hour or $1,600 per day

d) Project management - $200 per hour or $1,600 per day

(v)    Consulting support services

(a)   Initial consulting support services are detailed in the schedule.

(b) Additional consulting services will be provided on an as needs basis. Prices are as follows:

a) On-site system use support - $150 per hour billed in 30 minute increments

b) Phone and email support - $200 per hour billed in 15 minutes increments

c) Business consulting services - $300 per hour billed in 30 minute increments

(vi)  Training

UniPhi must give The Company's personnel any training reasonably necessitated by a Modification within seven days of installation or provision of the Modification. Pricing for the training will be included in the quote for modification but is based off the following:

a) classroom training - $200 per hour course for 10 attendees

b) web based training - $250 per hour

(vii) Out of pocket expenses

All out of pocket travel expenses for support services will be billed in an arrears basis

(viii) Claims

a) support services claims will be made on a monthly basis in arrears based off progress towards an enhancement or for hours/days spent in consulting and/or training.

b) all invoices are net 30 days

9) Subscription fee rebates

(i)   Other than system up time which has already had the rebate described, if UniPhi fails to meet the Service Levels specified within this contract in a particular month, The Company is entitled to a rebate on the subscription fee as follows: 

Rebate 1 month's subscription fee

a)      Within 60 days or

b)      Discounted from next 6 monthly payment (only if agreed by The Company)

10) Privacy & Confidentiality

(i)   UniPhi will not reveal, sell, or in any way divulge information about the Company or the Internet usage of the Company to any individual, business, marketing, or research group without prior consent of the The Company or without legal warrant.

(ii)  UniPhi Agrees that confidential information

a)    may only be used by UniPhi for the purposes of this Agreement

b)    must be kept confidential

c)    may be disclosed only to those persons who have a need to know (and only to the extent that each has a need to know)

d)    must not be copied in whole or in part other than as is strictly necessary for UniPhi's work for the Company.

(iii)    On expiry or termination of this Agreement, UniPhi must immediately:

a)    stop using and return to the Company or at the Company's option delete or destroy, all Confidential Information in UniPhi’s possession, custody or control; and

b)    cease any remote access to the Companies information systems (other than remote access to the Cmpanies public website using the internet)

(iv)    UniPhi's obligation of confidentiality does not extend to information which:

a)    is public knowledge (other than as a result of breach of this Agreement); or

b)    is required by law to be disclosed.

(v)    UniPhi acknowledges that the obligations of clauses 10(ii) and 10(iii) will continue indefinitely after the expiry or termination of this Agreement

(vi)    Confidential Information means the following information, regardless of its form and whether UniPhi becomes aware of it before or after the date of this Agreement:

a)    all technical data, designs, know how, drawings and business information relating to The Compnay's business, its clients or customers;

b)    all other information treated by The Company as confidential; and

c)    all copies of the information, notes and other records referred to in paragraphs (i) and (ii) generated in the course of, or in connection with, UniPhi's appointment by The Company

11) Publication at the Company's Risk 

The Company accepts responsibility for all information and material issued by the Company over any Service, and indemnifies UniPhi against any liability in relation thereto. In particular the Company undertakes that it shall not publish, distribute or issue any information that is illegal, including copyrighted materials. The Company also acknowledges that UniPhi does not vet or approve any information or material available through any service and that UniPhi does not accept any liability. To the full extent permitted by law the Company accesses and uses such information and material at its own risk.

12) Exclusion of Liability 

(i) UniPhi is not liable to the Conpany or any other person for:

a) any cost, loss or liability (including loss of profit or other consequential damage) arising from UniPhi's supply or failure or delay in supplying Service;

b) the content, context, or confidentiality of any communications made using the Service. 

13) Termination 

(i) Either party may terminate this agreement with 30 days written notice. No refunds are made for unused portfions of a subscription term. Any balance owing on an account must be paid prior to closure. 

(ii) UniPhi may terminate any agreement of the provision of any Service within 7 days of written notice if:

a) The Company breaches any term of the agreement

b) UniPhi forms the opinion in good faith that the Company is or may be insolvent. Refunds will be given at the discretion of the Company Management. All outstanding charges become immediately payable on giving of such notice

14) Suspension of Service UniPhi may from time to time without notice, for reasons other than payment (reasonable notice will be given when possible) suspend any Service or disconnect or deny the Company access to any Service:

i) During any technical failure, modification or maintenance involved in the Service provided that UniPhi will endeavour to procure the resumption of the Services as reasonably practicable; or

ii) If the Company fails to comply with any agreement (including failure to pay charges due, having been notified of the overdue amount) until the breach (if capable of remedy) is remedied, or does, or allows to be done anything which in UniPhi's opinion may have the effect of jeopardising the operation of any Service. Notwithstanding any suspension of any Service under this clause the Company shall remain liable for all charges due through the period of suspension. An account that is suspended may not be altered or closed until full payment on any outstanding balance is received.

15) Governing Law

This Agreement is governed by the laws of the State of New South Wales.