DEFINITIV: Definitiv Group Pty Ltd (ACN 147 808 026)
Definitiv International Pty Ltd (ACN 607 247 512)
Proactiv Payroll Australia Pty Ltd (ACN 600 296 400)
Address: Ground Floor, 50 Kings Park Road, West Perth 6005, Western Australia
Contact: Roy Mellon
BUYER: A Person or entity who engages Definitiv under this agreement.
1. Application of Terms
1.1 The terms of this Agreement as amended by Definitiv from time to time apply to any Services (whether paid or complimentary) which Definitiv supplies to the Buyer.
1.2 The terms of this Agreement (collectively) (“Terms”) are the terms:
(a) as amended by Definitiv from time to time;
(b) the latest version of which is and will be available online;
(c) applicable at the time each Order from a Buyer is accepted by Definitiv.
1.3 Each Order accepted by Definitiv constitutes a separate contract with the Buyer for the Services covered by that Order and provided under these Terms.
1.4 If Definitiv accepts an Order, it will do so:
(a) on the Terms;
(b) on the terms of the Order (as amended) and any specific terms provided by Definitiv for the Services under the particular Order.
1.5 Each contract commences on the date the Order from the Buyer is accepted by Definitiv.
1.6 Each contract ends on the earlier of:
(a) completion of that contract; or
(b) termination of the contract in accordance with these Terms.
2.1 The Services provided or to be provided by Definitiv will be based on the terms of the contract and the Buyer’s requirements in the contract.
2.2 The Services, and in particular maintenance services, shall commence from the date of Go-Live of the Software and for so long as the Buyer continues to pay to use the Software.
2.3 Definitiv is not obligated to collect Content for a Buyer but may do so to enable it to provide a Service. It is the responsibility of the Buyer to fulfil any Content requirements associated with an Order or otherwise to enable Definitiv to provide a Service under a contract.
2.4 The Buyer shall supply Definitiv with any Content associated with the Order by the date and in the manner specified by Definitiv. It is a condition of the supply of a Service that the Buyer supplies such Content and, if it fails or delays in doing so, it remains liable under the contract to Definitiv for payments.
2.5 If the Buyer fails to provide the whole or any part of any Content as required by Definitiv, Definitiv is entitled to use any Content already supplied or received to provide a Service and the Buyer remains liable to pay the Price in full.
2.6 Unless a Buyer expressly instructs otherwise, Definitiv is entitled to collect Content from any source other than the Buyer.
2.7 The Buyer shall be responsible for the currency and accuracy of the Content however received by Definitiv.
2.8 Definitiv may at any time reject or remove any Content in respect of a Service or amend, delete, withdraw, disable or suspend the use of any Content and the supply of any Service for any reason and without prior notice to the Buyer including, but not limited to:
(a) under the Terms;
(b) if Definitiv reasonably believes that the Content, or the use of it, contravenes any Law or is likely to infringe the rights of third parties or is otherwise inappropriate, objectionable, unsuitable, offensive, obscene, defamatory or indecent.
2.9 In respect of a Service, Definitiv shall be entitled to require such Content as it considers appropriate to enable it to provide a Service under the Order.
2.10 When a contract is completed or terminated or a Service is canceled, Definitiv may retain or delete any Content received and if retained, may grant to the Buyer a “read only” access to the Content on such terms as may be agreed.
2.11 The Buyer acknowledges that Definitiv, through the use of Definitiv, is not providing an agent service and is not responsible for the preparation of any taxation, superannuation or other related documents on behalf of the Buyer’s business/entity. It can, however, submit transmissions (e.g. lodgements and prefill) through the Australian Tax Office (ATO) SBR channel.
Types of Support
2.12 Definitiv shall supply to the Buyer the Services under the terms of a contract and these Terms and such Services shall include:
(a) help desk support;
(b) response or rectification of defects, incidents, queries, or other similar issues relating to technical problems, software assurance or maintenance.
Help Desk Support
2.13 Help desk support includes troubleshooting, technical advice in relation to the Software, its application, simple problem resolution, upgrading and support.
2.14 Definitiv will provide help desk services in such manner as it considers appropriate in response to the Buyer’s requirements including but not limited to by telephone, email, ticketing system and, subject to the Buyer’s requirements and confidentiality matters, dial-in or remote support.
2.15 Definitiv will provide help desk services to a Buyer’s authorised representatives only. It is the Buyer’s responsibility to keep Definitiv up-to-date on the representatives that are authorised to speak to Definitiv on behalf of the Buyer.
2.16 Where on-site support is required, the Buyer shall be liable for reasonable or agreed charges in connection therewith including by way of example, travel, accommodation and out-of-pocket expenses.
2.17 If in connection with providing such support, it is the opinion of Definitiv that resolution of a Buyer’s inquiry or difficulty will require a specific upgrade or amendment to the Software, Definitiv shall not be obliged to do so and shall not be required to provide further support.
2.18 Help desk support is available through the following channels;
(a) Online ticketing system: Raising a request directly through the Definitiv Help Desk ticketing system.
(b) Telephone: Calling help desk support to discuss a logged request within the Definitiv Help Desk ticketing system.
2.19 Requests to help desk support will be categorised into one of the following priority levels;
(a) Critical: Critical issues or emergencies cause the Software to be inaccessible to all users or a significant risk to the security of the platform has been identified.
Events categorised as critical;
i. The Software cannot be accessed by all users via the web or mobile applications due to an unplanned system outage.
ii. A potential security breach has been identified within the Software.
(b) High: High issues have a significant impact on one or multiple Buyers’ pay run processes and/or a Buyer’s system administrator is unable to access the Software.
Events categorised as high;
i. Technical issues impacting the current pay run process, payment deadline and/or preventing the ability to meet legislative requirements.
ii. A system administrator requires their two-factor authentication to be reset.
iii. Technical issues impacting time and attendance events (i.e. timesheets or leave applications) that will impact the Buyer’s current pay run.
(c) Normal: Normal issues relate to warning and/or error messages as well as issues that are not impacting current pay run processes.
Events categorised as normal;
i. A general user is unable to access their account within the Software.
ii. Assistance with errors within the current pay run.
iii. Assistance with current third-party payment (i.e. superannuation) errors.
iv. Technical issues that are not impacting the pay run process.
(c) Low: Low issues relate to technical advice, user guidance and defects or errors that do not have a material effect on the operation or outcomes under a contract.
Events categorised as low, include but are not limited to;
i. Initial advice on system setup, configuration and behaviour of the Software.
ii. Guidance on how to perform a task within the Software that falls within a 20 minute timeframe.
iii. Any events not included in sections 2.20 (a) (b) (c) will be categorised as low and/or assessed by help desk support.
Response Times & Resolution Targets
2.20 The Buyer shall notify Definitiv of their issue or problem, together with such details as Definitiv may require, to enable Definitiv to reasonably respond to the Buyer’s notification and resolve the Buyer’s issue within the following Resolution Targets;
|Priority||Availability||Initial Response Time||Resolution Target|
|Critical||24 hours||Within 1 hour (business hours)
Within 4 hours (outside of business hours)
|High||8.30am to 5.00pm (AWST)||Within 2 hours (business hours)||Within 2 business days|
|Normal||8.30am to 5.00pm (AWST)||Within 1 business day||Within 3 business days|
|Low||8.30am to 5.00pm (AWST)||Within 2 business days||Within 5 business days|
2.21 If development is required to resolve an issue, the development time is not included within the Resolution Target. If development is required, Definitiv will provide the Buyer with a workaround, where possible, within the Resolution Target timeframe.
2.22 Definitiv may deliver to the Buyer information explaining the appropriate amendment and, if necessary, provide the training and/or assistance required to enable the Buyer to operate the Software thereafter under the contract.
2.23 Definitiv will notify the Buyer if there is an additional charge in respect of any Services provided in connection with a request to help desk support if:
(a) the request of the Buyer did not require a response from Definitiv;
(b) the Buyer has directly caused the issue(s);
(c) the troubleshooting, investigation or issue correction was in all the circumstances not necessary; or
(d) the technical advice or user guidance resulting from the troubleshooting will be more than 20 minutes.
2.24 If technical advice, user guidance or training beyond 20 minutes is required, Definitiv will supply the Buyer with a work order detailing the charge for approval before proceeding with the technical advice, user guidance or training (see Schedule 1 for consulting rates).
Approved Third-Party Providers
2.25 2.25 The Buyer acknowledges and agrees that Definitiv may utilise third-party providers to provide its Services and Software to the Buyer. Downtime or technical issues with these providers are not included within Definitiv’s Priority Levels and/or Resolution Targets.
2.26 Definitiv, will endeavour to keep the Buyer updated of any technical issues with an approved third-party provider, if it is currently impacting the Buyer, including but not limited to any confirmed resolution timings.
2.27 Definitiv may, from time to time, release to the Buyer upgrades to the Software or improved versions of the Software provided always that Definitiv is not required to provide this service if:
(a) the Buyer has undertaken alterations to the Software such that the upgrade or improved version will act inconsistently with the amended Software;
(b) the Buyer is in breach of these Terms;
(c) the Buyer is specifically in breach of the Payment Terms.
2.28 To enable the Buyer to benefit from the receipt thereof and, for that purpose Definitiv may assist the Buyer to assess and understand what features, functional improvements and error modifications have been made.
2.29 Maintenance for the purposes of these Terms includes any maintenance in response to any legislative changes that may occur in connection with the provision of a Service to the Buyer.
2.30 Definitiv may, in its discretion, and acting in good faith, apply any solution to a specific problem encountered by the Buyer or at the request of the Buyer in order to provide a Service.
2.31 In respect of any upgrade, enhancement or new versions of the Software, Definitiv at its sole discretion may provide such training, if required, from time to time.
2.32 The Services under these Terms provided by Definitiv do not include the following:
(a) response to or rectification of any damage or disruption resulting from a source for which Definitiv is not responsible including, without limitation and by way example only, supply of electrical power to the Buyer, criminal or negligent conduct, accident, mishandling and fire;
(b) a service or a support service required as a result of the conduct of the Buyer or its employees or agent. It shall be the responsibility of the Buyer to ensure that the Software is used by competent and trained employees or by persons under their supervision;
(c) a service required as a result of the Buyer altering the Software or any part of it without the prior consent of Definitiv;
(d) a service required as a result of work in connection with the Software being undertaken by a person other than Definitiv;
(e) a service required as a result of the Buyer combining, attaching or linking the Software with any other programs not provided by Definitiv;
(f) work carried out by Definitiv in response to or to rectify problems for which the Buyer is responsible including but not limited to, and by way of example, variations to the Software; and
(g) consulting, training (including upgrading) or any similar services that are performed at the Buyer’s location.
2.33 The Buyer may issue an Order for an Excluded Service for acceptance by Definitiv and if Definitiv accepts that Order, it shall be on such terms, rates of charge and payments as may be notified by Definitiv to the Buyer including costs, charges and expenses in connection with a third party providing the whole of any part of an Excluded Service.
3. Payment Terms
3.1 Definitiv may invoice the Buyer in various ways including, without limitation and by way of example only, by email or internet.
3.2 The Buyer shall pay the invoice Price by the due date and otherwise as specified in the invoice, and such obligation survives completion or termination (for any reason whatsoever) of a contract or an Order.
3.3 The Price may include additional administration fees, management fees or non-refundable set-up fees or similar charges.
3.4 Definitiv shall be entitled to require payment in advance before the provision of a Service.
3.5 Payment for maintenance and telephone support service are inclusive of the licence fee issued by Definitiv.
3.6 Definitiv shall be entitled to reconcile all accounts issued at any time to the Buyer and to invoice the Buyer for any shortfalls or charges that should have been made but were not made from time to time.
3.7 If Definitiv does not receive full payment of the Price as agreed with the Buyer (whether payment is required in full or by instalments in which case the failure by Definitiv to receive an instalment), Definitiv may:
(a) charge the Buyer interest on the unpaid amount (such interest calculated at the Reserve Bank’s Official Cash Rate at the time the amount was due plus five per cent (5%) from the date of the invoice until the full amount is paid;
(b) charge the Buyer on an indemnity basis any debt collection and legal costs incurred in connection with the failure to pay an amount;
(c) cancel any and all Services;
(d) withdraw access to the Software or reduce or restrict access by the Buyer to a Service or to the Software.
3.8 If the Buyer disputes the whole or part of any tax invoice or the liability to make any payment, then:
(a) the Buyer must nevertheless make the payment in respect of which the liability is in whole or in part disputed;
(b) the dispute resolution provisions of these Terms apply.
3.9 Unless specifically stated otherwise in a contract, all payments under these Terms do not include any amount on account of GST.
3.10 Where Definitiv makes a taxable supply to a Buyer and the consideration for that supply does not expressly include GST, the Buyer must also pay Definitiv an amount equal to the GST that may be payable by Definitiv. The amount to be paid by the Buyer shall be the amount set out in the tax invoice from Definitiv.
3.11 In these Terms:
(a) terms used that are defined in the New Tax System (Goods & Services Tax) Act 1999 (Cth) have the meaning given in that Act, unless the context makes it clear that a different meaning is intended; and
(b) consideration includes non-monetary consideration, for which the Parties must agree on a market value, acting reasonably.
4. Intellectual Property Rights
Buyer’s Intellectual Property
4.1 The Buyer grants to Definitiv and its Related Bodies Corporate a royalty free licence to access, use, reproduce, modify, adapt, communicate to the public and sub-licence the Content for the purposes of providing a Service and for such purpose, Definitiv may disclose the Intellectual Property to a third party or its Related Bodies Corporate work.
4.2 If the Buyer does not wish any part of its Intellectual Property to be subject to the provisions of this clause, the Buyer shall expressly, and in writing, bring that restriction to the attention of Definitiv provided always that such restriction shall not interfere with the provision of a Service by Definitiv to the Buyer.
4.3 The Buyer grants to Definitiv and its Related Bodies Corporate a royalty free licence in particular the Buyer’s logos and designs for marketing and promotion purposes.
4.4 The Buyer accepts and agrees that Definitiv or its Related Bodies Corporate have all rights, interests and titles in and to all Intellectual Property in and in respect of:
(a) the Software;
(b) any material, of whatever nature, substance or form in connection with which or by the use of which a Service exists or is provided;
(c) any data, results and reports generated by Definitiv;
(d) any new work created by Definitiv by modifying, amending, adapting or otherwise dealing with any part of a Service.
4.5 The Buyer covenants and undertakes not to challenge or otherwise interfere with the Intellectual Property Rights of Definitiv or its Related Bodies Corporate and must not cause, allow or permit the reproduction or the sharing or the distribution or circulation of the Intellectual Property Rights of Definitiv or its Related Bodies Corporate.
4.6 Upon demand by Definitiv, the Buyer shall forthwith, within the time stipulated by Definitiv, return in full (or destroy if that is required by Definitiv) any Intellectual Property in the Buyer’s possession.
4.7 The Buyer shall not at any time, whether during the duration of a contract or at any time during which it has access to or is in possession of or is able to access or recollect any matter in connection with Definitiv’s Intellectual Property Rights use, apply or take the benefit of, directly or indirectly such Intellectual Property Rights:
(a) without the prior written consent of Definitiv;
(b) to engage in a business or other relationship with another person;
(c) otherwise to take advantage of Definitiv’s Intellectual Property Rights.
Termination by Buyer
5.1 The Buyer may withdraw an Order at any time prior to acceptance by Definitiv, and such withdrawal shall be without charge to the Buyer.
5.2 The Buyer may terminate a contract (in whole or in part) by giving to Definitiv thirty (30) days prior notice in writing and by payment of an applicable cancellation fee of the average License over the last three (3) months or the last month’s License; whichever is greater, will be used to calculate the charges if notice is not served for the full Term specified in Schedule 1.
5.3 Upon termination under these Terms by the Buyer, Definitiv shall be entitled to charge a cancellation fee which includes all expenses incurred and all fees, payments, costs and charges to which Definitiv may have been entitled but for the termination, to be paid by the Buyer to Definitiv within seven (7) Business Days of giving notice of termination.
5.4 The Buyer accepts and declares that the cancellation fee together with all charges in connection with the termination by the Buyer represent a genuine attempt by Definitiv to calculate and pre-estimate its losses arising from the termination or cancellation and if the Buyer considers that the cancellation fee and associated charges are a “penalty”, it shall be the responsibility of the Buyer to prove that contention.
5.5 The Buyer can request, read only access to the Software after the Buyer’s contract has been canceled at the Buyer’s cost outline in Schedule 1.1(f); per twelve (12) month period.
Termination by Definitiv
5.6 Definitiv may terminate a contract (in whole or in part) or suspend or cancel a Service by giving to the Buyer thirty (30) days written notice without cause in which event Definitiv will refund the Price on a pro-rata basis.
5.7 The Buyer shall pay a cancellation fee and associated charges to Definitiv if cancellation or suspension of a Service or a contract by Definitiv occurs in one or more of the following circumstances:
(a) the Buyer breaches a Term or a term of a contract;
(b) Definitiv has reason to believe that the Buyer is unable to pay its debts as they fall due or that the Buyer is otherwise insolvent, or the Buyer enters or is likely to enter into a composition or scheme of arrangement with its creditors;
(c) Definitiv has failed to receive full payment in respect of an invoice within the agreed payment terms;
(d) Definitiv has reasonable grounds to believe that the Buyer seeks to wind up, dissolve, liquidate or re-organise (other than to reconstruct or amalgamate while solvent);
(e) a controller, receiver, administrator, official, manager or other similar officer is appointed in respect of the Buyer or any of its assets or revenue;
(f) the Buyer seeks or attempts to seek or is granted protection from its creditors.
5.8 Definitiv may terminate the contract or suspend the provision of a Service due to a Force Majeure event.
5.9 Upon termination or cancellation of a contract or a Service:
(a) Definitiv will not have any obligation to refund any component of the Price (together with any GST paid) which has already been paid prior to the termination or cancellation, other than as set out in these Terms;
(b) the Buyer will not be required to pay any further components of the Price, other than payments required to be made under these Terms;
(c) Definitiv may remove the Service supplied to the Buyer or the Content.
5.10 Termination or cancellation does not affect:
(a) any obligations or rights of any of the Parties which accrued prior to the termination or cancellation;
(b) any provision of this agreement which expressly or by its nature survives termination of this agreement.
6. Confidentiality & Privacy
6.1 Save as provided in this agreement, each party must keep secret and confidential, and must not use, divulge or disclose directly or indirectly by itself or by its contractors, sub-contractors, agents and servants any information relating to:
(a) the business, assets or affairs of another party;
(b) the terms of an Order;
(c) the terms of a contract;
(d) the nature of the Services provided or to be provided by Definitiv other than the Services set out in these Terms.
6.2 A party may disclose confidential information only in the following circumstances:
(a) with the consent of each other party to this agreement and if the confidential information relates to a Related Body Corporate of a party, the consent of that Related Body Corporate;
(b) pursuant to an obligation at Law;
(c) by a party to its Related Bodies Corporate;
(d) by prior written notice to the other party, the information is disclosed to a party’s bona fide purchaser of that party’s business or an investor or shareholder in it;
(e) the information is disclosed to a party’s financiers, consultants, legal advisers, auditors and accountants;
(f) a party wishes to disclose the simple fact that it is in a business relationship with another party to this agreement (without disclosing the terms of or in connection with this agreement).
6.3 Under each contract, the Buyer acknowledges that Definitiv and its Related Bodies Corporate are entitled to access, collect, use and apply the Content pursuant to these Terms.
6.4 When Definitiv communicates with the Buyer electronically (for example, but not limited to emails):
(a) the Buyer is solely responsible for ensuring that its email, address and contact details are current and accurate;
(b) the Buyer shall promptly notify Definitiv of any changes to the Buyer’s contact details;
(c) the Buyer is deemed to have received an electronic communication sent by Definitiv which is not thereafter obliged to take any further action to confirm that the Buyer has received, opened, read or otherwise accessed the electronic communication;
(d) if Definitiv receives an automated email non-delivery notification indicating that the Buyer has not received an electronic communication, Definitiv shall take only such reasonable steps as it considers appropriate in attempting to contact the Buyer.
7. Limitation of Liability
7.1 The Buyer declares that the state of the scientific and technical aspects of the Services to be provided are such that Definitiv cannot provide any assurance or guarantee that the Services as requested by the Buyer and as required can be supplied or fulfilled absolutely or completely.
7.2 Definitiv will use all such due care, skill, attention and effort in relation to the provision of the Service as it considers appropriate as a professional service provider but neither Definitiv nor its Related Bodies Corporate warrant, certify or guarantee that:
(a) the Service will be free from any errors or omissions within a particular time frame;
(b) that Definitiv or its Related Bodies Corporate shall monitor or continue to monitor the Buyer’s Content to ensure that the Content complies with the Law and with the provision of a Service by Definitiv.
7.3 If a Service provided by Definitiv is claimed by the Buyer to fail to meet the Terms of a contract, Definitiv may, at its cost, undertake such work as it considers appropriate to respond to the Buyer’s claim and to review the Service provided.
7.4 If Definitiv or a Related Bodies Corporate is found to be liable to the Buyer in any manner whatsoever, their liability for that failure is limited to:
(a) the supply or re-supply of the Service; or
(b) refunding to the Buyer any monies the Buyer has paid in respect of the Service or the part of the Service in respect of which Definitiv or its Related Bodies Corporate is found to be liable.
7.5 Definitiv does not recommend any particular Superannuation Fund or Superannuation Clearing House provider. Definitiv does not provide advice or a recommendation in relation to any financial product.
7.6 The Buyer, otherwise, then as agreed in these Terms, shall not be entitled to make a Claim against Definitiv whether in respect of a Loss or otherwise.
7.7 The Buyer shall indemnify and keep indemnified Definitiv and its Related Bodies Corporate against all Claims caused directly or indirectly by the Buyer’s:
(a) act, default or omission or any breach of a provision of a contract;
(b) provision of Content upon which Definitiv relies; and/or
(c) breach of these Terms or the terms of a contract,
to the extent that any loss or damage incurred by Definitiv has been caused or contributed to by the Buyer, it’s employees, or agents.
8.1 Definitiv will at its own expense, obtain and maintain, at all times during the Term, insurance policies with a reputable insurer with coverage limits as set out below:
(a) public liability and product insurance with a minimum cover of $10 million per claim;
(b) insurance against any liability which may arise under law, including any relevant workers’ or accident compensation legislation;
(c) insurance against a cyber attack or data breach; and
(d) professional indemnity insurance covering the liability of Definitiv for all professional services provided by Definitiv under this agreement with a minimum cover of $10 million per claim.
8.2 The Buyer will at its own expense, obtain and maintain, at all times during the Term, the insurance policies with a reputable insurer with coverage limits as set out below:
(a) public liability and product insurance with a minimum cover of $10 million per claim;
(b) insurance against any liability which may arise under law, including any relevant workers’ or accident compensation legislation;
(c) insurance against cyber attack or data breach; and
(d) professional indemnity insurance covering the liability of Definitiv for all professional services provided by Definitiv under this Agreement with a minimum cover of $10 million per claim.
8.3 Both Definitiv and the Buyer will provide each other with documentary proof that the insurance cover is in place promptly following a request.
9. Dispute Resolution
9.1 In the event of a Dispute between the Buyer and Definitiv or a Related Bodies Corporate, howsoever arising, then the parties shall immediately contact each other informally, whether by telephone, email or otherwise in a genuine attempt, acting bona fide, to resolve the Dispute and for the purposes of this clause, the relevant persons are:
(a) on behalf of the Buyer, its nominated senior manager or director with authority to resolve the Dispute;
(b) on behalf of Definitiv, its Chief Executive or a director with authority to resolve the Dispute;
(c) the Buyer acknowledges the cost to resolve the Dispute will be borne by the Buyer.
9.2 If the Dispute or part thereof is unable to be resolved, then at the request of a party, the Dispute or that part of it which remains unresolved, shall be determined by an independent expert appointed as follows:
(a) if the issue relates to a legal issue, the expert shall be a practising barrister or solicitor (or both) appointed for that purpose by the President of the Law Society of Western Australia;
(b) if the Dispute relates to a technical issue in connection with the provision of a Service, or the operation of the Software, the expert shall be an appropriately qualified technical person appointed by either:
i. a body of qualified and recognised persons qualified in that issue; or
ii. a qualified person appointed by the President for the time being of the Australian Computer Society;
iii. the appointed person shall act as an expert and not as an arbitrator and the cost of the expert and the process of resolution shall be paid by each party in equal shares unless otherwise decided by the appointed expert;
iv. the decision of the appointed expert shall be final and binding on all parties to this agreement.
9.3 Despite the existence of a Dispute, each party shall continue to perform its obligations under this agreement unless it is impossible to do so as a result of the substantive matters in connection with the Dispute.
10. General Provisions
10.1 Entire Agreement
This agreement states and records all the express terms agreed by the parties in respect of its subject matter and supersedes all prior discussions, understandings, negotiations and agreements in respect of its subject matter.
(a) rights arising out of or under this agreement are not assignable by a party without the prior written consent of each of the other parties, such consent is not to be unreasonably withheld.
10.3 Waivers and Indulgences
(a) In this subclause, the following words have the meanings assigned to them:
i. “conduct” includes delay in the exercise of, or the non-exercise of, a right or entitlement;
ii. “right” includes any right arising under or in connection with this agreement including a right to rely on this clause;
iii. “waiver” includes an election between rights and remedies and conduct which might otherwise give rise to an estoppel.
(b) No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
(c) An indulgence by one party to another does not constitute a waiver.
10.4 Further Assurances
Each party must do all things and execute all further documents and do all acts reasonably necessary to give full effect to this agreement and their obligations under it.
10.5 Prohibition and Enforceability
(a) A provision of, or the application of any provision of, this agreement that is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction and, for the purposes of this clause, “jurisdiction” includes a jurisdiction outside the Commonwealth of Australia.
(b) A provision of, or the application of any provision of, this agreement or any right, power, authority, discretion or remedy conferred by this agreement that is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
10.6 Governing Law and Jurisdiction
(a) This agreement is governed by the laws enforced in the State of Western Australia.
(b) Each party irrevocably submits to the non-exclusive jurisdiction of Courts exercising jurisdiction in Western Australia and Courts of Appeal from them in respect of any action or proceeding arising out of or in connection with this agreement.
(c) The parties irrevocably waive any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
10.7 Remedies Cumulative
Except as provided in this agreement and to the fullest extent permitted by Law, the rights, powers and remedies provided in this agreement are cumulative with and not exclusive to the rights, powers or remedies provided by Law independently of this agreement.
10.8 Survival after Termination
Except where otherwise expressly provided in this agreement, where the provisions of this agreement confer rights and entitlements and impose duties and obligations on the parties in respect of matters occurring after termination of the agreement, those provisions shall:
(a) survive and not merge in termination; and
(b) continue to apply and remain in full force and effect and endure for the benefit of the parties according to their terms.
If any part of this agreement is, or becomes, void (for any reason whatsoever) or unenforceable, that part is, or will be, severed from this agreement so that all parts that are not, or do not become, void or unenforceable remain in full force and effect and are unaffected by that severance.
Definitiv is committed to the highest standards of conduct, ethical behaviour and good corporate governance. Definitiv also supports a culture of safe, honest, ethical and transparent behaviour as well as compliance with required laws and regulation.
However, if the Buyer believes they have seen something seriously wrong, including unethical, illegal, fraudulent or undesirable conduct by Definitiv, Definitiv encourages the Buyer to disclose any potential misconduct directly with ASIC or responsible regulatory body.
The Buyer can find out more information on how to report a potential misconduct on the ASIC website here.
11. Publicity and Marketing
11.1 Unless otherwise agreed to by the Buyer and Definitiv, during the Term, Definitiv may disclose the Buyer’s name as a customer of Definitiv and/or user of the Definitiv Platform. The Buyer hereby grants Definitiv the right to display the Buyer’s name, company, and logo in Definitiv’s marketing materials and on Definitiv’s public website, in each case in accordance with any branding guidelines the Buyer may provide to Definitiv.
11.2 The Buyer may request that Definitiv stop disclosing the Buyer as a customer by submitting an email to email@example.com at any time. Please note that it may take Definitiv up to 30 days to process the request.
12. Definition and Interpretation
12.1 Definition and Dictionary
In this document, the following terms have the meanings set out below:
|Business Day||a day that is not Saturday or Sunday or public holiday in the Commonwealth of Australia or in a relevant State or Territory.|
|Business Hours||8.30am to 5.00pm (Australian Western Standard Time) on a Business Day.|
|Buyer||a Buyer or a group of buyers and Related Bodies of a Buyer.|
|Claim||a legal demand by the buyer for compensation, payment, or reimbursement for a loss under the contract.|
|Confidential Information||(a) all information or data which has been or may be disclosed by the Buyer or any of its representatives to Defnitiv or any of its representatives (whether orally, in writing or otherwise) from time to time, including (without limitation), Personal Information, and all information or data to be processed, formatted, generated, compiled, tabulated, transformed, arranged, manipulated or otherwise operated upon in the course of performing the Services; and
(b) all information or data which has been or may be disclosed by Definitiv or any of its Representatives to the Buyer or any of its representatives (whether orally, in writing or otherwise) from time to time, including (without limitation) Personal Information, and all information or data to be processed, formatted, generated, compiled, tabulated, transformed, arranged, manipulated or otherwise operated upon in the course of performing the Services;
(c) all results and output (of any kind and in any form whatsoever) of the information or data operations referred to in (a) and (b) above);
but does not include:
(a) information which is or becomes public knowledge other than by a breach of this Agreement or any other confidentiality obligation; or
(b) information which has been independently developed or acquired by Definitiv or the Buyer as established by written evidence.
|Content||any information (including Personal Information) data, information which Definitiv considers to be essential for the provision of a service and information which the Buyer considers or reasonably assist Definitiv in providing a Service.|
|Dispute||where the parties are unable to reach an agreement or resolve any dispute, difference or uncertainty whether in connection with interpretation of Terms, contract, provision or application of a Service or an Excluded Service.|
|Force Majeure||an unexpected event for which no party can be held accountable that restricts or prevents a party from fulfilling their contractual obligations.|
|Go-Live||The date the Buyer goes live with the Definitiv software as specified in the Buyer’s agreed Project Plan.|
|GST||as defined in the GST Act.|
|GST Act||a New Tax System (Good & Services Tax) Act 1999 (Cth).|
|Intellectual Property||all present and future rights conferred by law in relation to copyright, patents, inventions, designs, trademarks, trade and business names, rights to sue for passing off or for unfair competition, copyright, rights in databases, chip or semiconductor topography rights, domain names, rights in information (including proprietary information), including, but not limited to, Software and know-how and all other similar or equivalent rights in any part of the world, in each case whether registered or unregistered or patentable.
These rights include all rights in all applications to register these rights and all renewals and extensions of these rights.
|Intellectual Property Rights||a party’s legal ownership of intellectual property, protected by patents, trademarks, copyright, designs, circuit layouts, and/or plant breeder’s rights.|
|Law||law that governs oral and written agreements associated with exchange of goods and services, money, and properties.|
|License||based on unique paid employees, per calendar month, per entity.|
|Loss||the value placed on a breach of contract by another party.|
|Order||the document (however provided; printed, electronic, voice signature) setting particulars of the Buyer’s order and details of the Service the Buyer wishes to purchase including any amendment, renewal, replacement of order.|
|Paid Employee||an employee processed within a pay run.|
|Personal Information||as defined in the Privacy Act 1988 (Cth).|
|Project Plan||agreed documented milestones and timeframes between Definitiv and the Buyer for the implementation of the Definitiv software.|
|Price||price, fees, charges, costs, expenses whether notified to the Buyer in an invoice or otherwise, from time to time, and whether payable in full or in instalments.|
|Priority Level||category assigned by Definitiv to a support request based on the impact and urgency of the support request.|
|Related Bodies Corporate||as defined in the Corporations Act 2001 (Cth).|
|Resolution Target||the period of time within which the help desk aims to resolve a Buyer’s support request.|
|Response Time||the period of time within which the help desk aims to initially respond to the Buyer’s support request.|
|Single Touch Payroll Lodgements Charge||a charge for the lodgement of data to the ATO via a Sending Service Provider. The lodgement is charged as per employee, per payrun.|
|Software||Definitiv includes upgrading, enhancement of Software or new versions thereof.|
12.2 Interpretation and Application
In this document, unless the context otherwise requires:
(a) titles, headings and sub-headings do not affect the interpretation of this agreement;
(b) the singular includes the plural and vice versa and words of a gender include all genders;
(c) a reference to a group of persons or people is a reference to all of them collectively or to each of them individually;
(d) if the date on or by which an act or thing must be done is not a Business Day, the act or thing must be done on or by the next Business Day;
(e) a “person” includes an individual, partnership, firm, company, trust, government, joint venture, association (whether incorporated or unincorporated), authority, corporation or other body corporate;
(f) references to a party to this document include that party’s executors, administrators, personal representatives, substitutes, successors and permitted assigns;
(g) except as otherwise provided in this agreement, a promise, covenant, obligation or benefit made by, or for the benefit of, two (2) or more persons bind, and is enforceable against or may be exercised by those persons jointly and each of them severally;
(h) a reference to any Law includes any amendment, restatement, re-enactment, replacement or consolidation of the Law;
(i) other parts of speech and grammatical forms of a word or phrase defined in this document have a corresponding meaning;
(j) unless otherwise expressly stated, references to parties, background, clauses, schedules and annexures are references to parties, background, clauses, schedules and annexures in this document;
(k) unless expressly stated otherwise, “$” or “dollars” is a reference to the currency of the Commonwealth of Australia;
(l) a reference to a contract or agreement or deed includes a deed and any legally enforceable undertaking, promise, agreement, arrangement or understanding, whether or not in writing;
(m) where the expression “to the fullest extent permitted by Law” or similar expression is used, that expression is applied unless a mandatory provision of a Law applies without exception;
(n) no provision of this document will be construed adversely to a party because that party was responsible for the preparation, amendment or finalisation of the document as an agreement or deed;
(o) the use of the expressions “includes” or “for example” or similar expressions do not limit or restrict what else is included.
1.1 Software Licensing
(a) Definitiv – Essential Pack
i. $10.00 per unique paid employee; per calendar month, per entity.
ii. Minimum license price is $500.00 per calendar month when under 50 licenses
(b) Definitiv – Compliance Module
i. $4.00 per unique paid employee; per calendar month, per entity.
ii. Minimum license price is $200.00 per calendar month when under 50 licenses
(c) Definitiv – Onboarding Module
i. $1.00 per unique paid employee; per calendar month, per entity.
ii. Minimum license price is $50.00 per calendar month when under 50 licenses
(d) Definitiv – Work Restrictions Module
i. $2.00 per unique paid employee; per calendar month, per entity.
ii. Minimum license price is $100.00 per calendar month when under 50 licenses
(d) Definitiv – Plant and Equipment Module
i. $4.00 per unique paid employee; per calendar month, per entity.
ii. Minimum license price is $200.00 per calendar month when under 50 licenses
(e) Test Environment access is available at $200.00 per calendar month
i. includes a database refresh once per calendar month, on request from the Buyer
(f) Read Only access is $3,000 per year
(g) Pricing subject to change with 30 days’ notice
(a) Charged in arrears on the last day of each calendar month
(b) Charges are not pro-rata for any part-month service
(a) Initial Twenty-Four (24) Month Term
(b) Automatic renewal of 12 months unless notified in writing prior to the expiry date
1.4 Payment Term
(a) Strictly 14 days from Invoice date
(b) Services are charged at 50% upfront; 25% on Parallel Pay Run #1 and 25% on the agreed Go-Live date
(c) Definitiv books its resources in accordance with the tasks and dates outlined in the Project Plan. If the Buyer requires changes to the agreed Project Plan after the project has commenced, and the Go-Live date needs to be extended, the Buyer will be charged for the delay. The Buyer will be charged the total amount defined under ‘License Fees’ within the Fees section of the SaaS Agreement, charged monthly in arrears, from the Go-Live date set in the originally agreed Project Plan, up until the date the Buyer goes live on Definitiv.
1.5 Other Rates
(a) Any changes outside the scope, agreement or otherwise will be charged at the following rates per hour;
i. $200.00 – Payroll Consultant
ii. $250.00 – Team Lead
iii. $300.00 – Technical/Development
iv. $350.00 – Senior Manager
(b) Single Touch Payroll Lodgements Charge: $0.05 per employee, per payrun
Definitiv’s Terms and Conditions have been updated and the above Terms and Conditions came into effect on 24 May 2021. You can access the previous version here.