ReDBox SUPPORT AGREEMENT

Transcription

1 ReDBox SUPPORT AGREEMENT This Agreement is made the. day of 2012, with a Commencement Date of the day of BETWEEN: (1 QUEENSLAND CYBER INFRASTRUCTURE FOUNDATION LTD of c/- Maths, University of Queensland, St Lucia Campus, Brisbane, QLD, 4072 AUSTRALIA ( QCIF" AND (2.., ( CLIENT RECITAL QCIF has worked with ANDS to develop and productise the open source ReDBox Software originally developed with ANDS funding at the University of Southern Queensland (USQ. While ReDBox Software is an open source product freely available; research organisations deploying ReDBox may require access to software Support Services. QCIF agrees to provide ReDBox Software support to an Australian research institution (CLIENT which has deployed ReDBox, in return for payment to QCIF of an annual software support fee, upon the terms and conditions of this Agreement. In addition to investigating and resolving software defects, the annual support fee enables QCIF to maintain knowledge and skills in the ReDBox Software and its ongoing development, to the benefit of the community of ReDBox users. DEFINITIONS AND INTERPRETATION In this Agreement: Agreement means this document. ANDS means Australian National Data Services. Business Day means a day, which is not a Saturday, Sunday, or bank or public holiday in Brisbane, Queensland. GST means the Goods and Services Tax as per the A New Tax System (Goods and Services Tax Act 1999 (Cth. Initial Fee means the fee specified in Schedule 2 and payable in respect of the Initial Term. Initial Term means the period specified in Schedule 1 and commencing on the Commencement Date. Party means a party to this Agreement. Priority means the degree of difficulty experienced by the CLIENT as a result of a possible ReDBox defect. Priority 1 means that the CLIENT is unable to continue processing or has a serious loss of functionality. Priority 2 means that the CLIENT has experienced a problem that is not stopping processing, but a solution may be needed before the next product release. Priority 3 means that the CLIENT has identified a problem or enhancement where normal processing is not affected and the Resolution may be included in a future major product release. ReDBox Software means the versions of the open source software released by QCIF. Renewal Fee means the fee specified in Schedule 2 and payable in respect of any Renewal Term as notified by invoice by QCIF to the CLIENT prior to the commencement of the Renewal Term. ReDBox Support Agreement ID: xx Page 1 of 8

2 Renewal Term means the period specified in Schedule 1 and commencing on the anniversary of the Commencement Date. Response means a reply to the CLIENT indicating that the Support Request has been received by QCIF and allocated to a support developer and includes where possible an expectation of the time to resolve the Support Request. Resolution means that once the support request has been resolved, the CLIENT will be advised. If a patch release or workaround instructions are provided as a temporary solution, they will be provided to the CLIENT for the CLIENT to install and test. Where appropriate, any such Resolution will be included into the next major release of the ReDBox Software. Support Request means a request submitted by the CLIENT describing a possible defect or issue with the ReDBox software and indicating the Priority of the request for support. Support Services means providing investigation and Resolution of defects in the ReDBox Software, reported through Support Requests. Resolution of a defect may require a documented workaround or a patch release which may need to be applied to the CLIENT s implementation of ReDBox. The core services provided under Support Services are: i. Support Request submission via or web interface ii. Web interface for Support Request tracking and monitoring iii. Support Request investigation and where appropriate development of a resolution iv. Release of software patch, workaround instructions or configuration updates in response to a Support Request Resolution v. Release from time to time of software and documentation updates in response to Support Request Resolutions THE PARTIES AGREE: 1. REDBOX SUPPORT SERVICES a. QCIF provides Support Services to the CLIENT to resolve technical defects with the ReDBox Software to enable it to operate effectively in the CLIENT s environment. b. The CLIENT can access the ReDBox Support Services by submitting a Support Request. Details of the process to submit a Support Request along with the required information are available on the internet at c. Given the non business critical nature of the ReDBox Software, QCIF provides the following service response times for Support Requests with the following different Priorities: i. For Priority 1 Support Requests, QCIF will provide a Response within 1 Business Day; ii. For Priority 2 Support Requests, QCIF will provide a Response within 2 Business Days; iii. For Priority 3 Support Requests, QCIF will provide a Response within 5 Business Days. d. QCIF provides Support Services during the hours of Eastern Standard Time, on Business Days. e. QCIF does not provide on-site Support Services as a standard service. 2. CLIENT RESPONSIBILITIES a. The CLIENT will manage, administer, and train the users of their ReDBox deployment. b. The CLIENT will investigate any user reported defects and submit Support Requests to QCIF for those defects which are not related to user error and relate to the ReDBox Software. c. Unless otherwise agreed, the CLIENT will be responsible for managing and administering the application hosting environment including: i. Providing sufficient computing resources to ensure the ReDBox application operates effectively; ReDBox Support Agreement ID: xx Page 2 of 8

3 ii. Keeping adequate backup copies of their data and software, including verifying backups to ensure effective data restoration; and iii. Restoring the system from backups when necessary. d. The CLIENT will provide QCIF remote access to the CLIENT s ReDBox implementation to aid problem resolution if requested by QCIF, and such access will not be unreasonably withheld. e. The CLIENT will maintain a test instance of ReDBox, for user acceptance testing of Support Request resolutions, in addition to their production instance of ReDBox. f. Support Requests for a CLIENT must be submitted by one of the two CLIENT staff members identified in Schedule 1 as the Client Primary Support Person and the Client Secondary Support Person. This will ensure there is a managed interface between QCIF and the CLIENT in relation to ReDBox Support Services. 3. TERM a. QCIF will provide the Support Services during the Initial Term on the terms and conditions set out in this Agreement provided the CLIENT pays the Initial Fee by the Commencement Date. b. If the CLIENT does not wish to renew the Support Services, it must notify QCIF no less than 30 Business Days before the date of the end of the current term, otherwise QCIF will assume the CLIENT intends to renew the Support Services and invoice the CLIENT. c. QCIF will provide the Support Services during the Renewal Term provided the CLIENT pays the Renewal Fee by the commencement date of the Renewal Term. Payment of the Renewal Fee shall indicate the CLIENT s agreement to QCIF providing the Support Services during the Renewal Term on the terms and conditions set out in this Agreement. 4. PAYMENT AND PAYMENT TERMS a. CLIENT must pay to QCIF the amounts specified in Schedule 2, as amended by QCIF from time to time and notified to CLIENT. b. All amounts payable by CLIENT under this Agreement are specified exclusive of GST and all other taxes, duties, fees or government levies or charges. c. QCIF will provide a tax invoice for the amount payable including GST to the CLIENT at least 30 Business Days before the commencement of the Renewal Term and CLIENT must pay the invoice before the commencement of the Renewal Term. d. If the Renewal Fee is not paid by the commencement of the Renewal Term, QCIF may charge a reinstatement fee of 5% of the then current Renewal Fee. e. With the CLIENT s prior written approval, QCIF will invoice CLIENT for all travel related expenses incurred in providing the Support Services at the CLIENT s site as a non-standard service. f. Any pre-paid Initial Fee or Renewal Fee shall not be non-refundable. 5. ADDITIONAL SERVICES QCIF may, at its discretion, provide additional services requested by the CLIENT, subject to payment of additional fees charged at QCIF s applicable current rates and payable within 30 days of the date of an appropriate tax invoice. These services include, but are not limited to, the services listed in Schedule TERMINATION This agreement may be terminated: a. By either Party upon giving not less than 30 Business Days notice to the other Party; b. Immediately by QCIF if the CLIENT fails to pay any amount due under this agreement within 30 days of the due date; ReDBox Support Agreement ID: xx Page 3 of 8

4 c. Immediately by either Party if the other commits any material breach of any obligation under this agreement and which (in the case of a breach capable of being remedied shall not have been remedied within one (1 calendar month of a written notice of the material breach. Regardless of who terminates this agreement, QCIF will be discharged from the performance of any further obligations under this agreement from the effective date of the termination and QCIF will not be liable to pay any amount of compensation or unused portion of the Initial Fee or Renewal Fee arising from such termination. 7. WARRANTIES AND INDEMNITIES a. Unless specified otherwise, QCIF warrants that it will exercise reasonable care and skill in carrying out its obligations under this Agreement. b. Except as expressly provided in this Agreement and except for any condition or warranty the exclusion of which could be void or otherwise contravene the Competition and Consumer Act 2010 (Cth or any other equivalent competition or consumer law (Non Excludable Condition, QCIF makes no warranties, express or implied, other than the express written covenants contained in this agreement. QCIF shall have no liability for any damages or losses of the CLIENT arising from its, or its users, use of ReDBox, whether such damages are direct, indirect, consequential, incidental or otherwise. In no event shall QCIF S total liability (including under the indemnity in clause 1(c for any claim of breach under this agreement exceed the Initial Fee or Renewal Fee, whichever is current at the time of the claim. c. Each Party ( the indemnifying Party irrevocably and unconditionally indemnifies and agrees to keep indemnified each of the other Parties and their respective directors, officers, employees, agents and contractors ( those indemnified from and against any and all liability, loss, harm, damage, cost or expense (including legal fees on a standard basis and net of any GST input tax credits to which those indemnified are entitled howsoever arising that those indemnified may suffer, incur or sustain as a result of: i. any breach of this Agreement by the indemnifying Party; ii. unlawful or negligent act or omission by the indemnifying Party or any of its directors, officers, employees, agents or contractors arising in connection with this Agreement. However, a Party's liability under this indemnity clause will be reduced proportionately to the extent its liability arises as a direct or indirect consequence of the acts or omissions of the other Party. d. In no event will either Party be liable for any loss of revenue, loss of profit, loss of goodwill, lost opportunity, loss of data, or any other indirect or consequential loss arising from or in relation to this agreement and notwithstanding termination of this agreement by either party. 8. DISPUTE RESOLUTION a. If any dispute arises between the parties in relation to the effect of this Agreement and that dispute is not mutually resolved within one (1 calendar month, the parties may appoint a person who may be a senior member of QCIF or a person independent of QCIF to resolve the dispute, failing which the dispute may be referred to arbitration in accordance with the laws relating to arbitration in force in the State of Queensland. b. At such arbitration, a duly qualified legal practitioner may represent each of the parties. c. The costs of arbitration shall be dealt with as follows: i. The costs of each of the parties shall be borne by the party that incurred them and not by the other party; and 9. GENERAL ii. The fees and expenses of the arbitrator and any costs of arbitration shall be borne equally by the two parties. ReDBox Support Agreement ID: xx Page 4 of 8

5 a. The Agreement is governed by and is to be construed in accordance with the laws applicable in Queensland. Each Party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and any courts which have jurisdiction to hear appeals from any of those courts, and waives any right to object to any proceedings being brought in those courts. b. This Agreement contains the entire understanding between the parties as to the subject matter of this document. ReDBox Support Agreement ID: xx Page 5 of 8

6 SIGNED AS AN AGREEMENT: Signed for and on behalf of CLIENT in the presence of:... Witness Signature... Witness Name (Please Print Signed for and on behalf of QCIF in the presence of:... Witness Signature... Witness Name (Please Print ReDBox Support Agreement ID: xx Page 6 of 8

7 SCHEDULE 1 GENERAL PROVISIONS i. Support Agreement ID: (QCIF to insert ii. Period of Initial Term: 12 months iii. Period of each Renewal Term: 12 months iv. QCIF Authorised Representative: Rob Cook, CEO, QCIF v. Client Authorised Representative: vi. Client Primary Support Person: vii. Name and Position: viii. ix. Phone: x. Mobile: xi. Client Secondary Support Person: xii. Name and Position: xiii. xiv. Phone: xv. Mobile: xvi. QCIF Address for Notices: QCIF Ltd xvii. Address: c/- Maths, University of Queensland, St Lucia Campus, Brisbane, QLD, 4072 AUSTRALIA xviii. For Attention: Kathy Green xix. Telephone: ( xx. Facsimile: ( xxi. k.green@qcif.edu.au xxii. xxiii. xxiv. xxv. xxvi. xxvii. Client Address for Notices and Invoices: Address: For Attention: Telephone: Facsimile: SCHEDULE 2 FEES PAYABLE Fee Type Description Amount (ex-gst Initial Fee The first annual ReDBox Support Service fee for the AUD$15,000 Initial Period for each production instance of ReDBox. Renewal Fee The subsequent annual ReDBox Support Service fee for AUD$15,000 # each Renewal Period for each production instance of ReDBox. # QCIF reserves the right to amend the Renewal Fee from time to time to meet changes in support costs and QCIF will provide notice of such amendments in the Fees to CLIENT. ReDBox Support Agreement ID: xx Page 7 of 8

8 SCHEDULE 3 ADDITIONAL SERVICES Service Description Fee (ex-gst Minor Upgrade Upgrade one test and one production system with a specific AUD$1,700 # patch release to the ReDBox Software as a Resolution to a Support Request. The CLIENT is responsible for providing the test resources and testing the upgrade on their test system and providing approval to QCIF to upgrade the production system. This service requires the CLIENT to provide remote access to their systems for QCIF to carry out the associated work activities from QCIF s offices. The suggested approach is for the CLIENT to issue a Purchase Order to QCIF to invoice for carry out a Minor Upgrade. Major Upgrade Upgrade one test and one production system with a specific AUD$3,500 # major ReDBox Software release. The CLIENT is responsible for providing the test resources and testing the upgrade on their test system and providing approval to QCIF to upgrade the production system. This service requires the CLIENT to provide remote access to their systems for QCIF to carry out the associated work activities from Brisbane. The suggested approach is for the CLIENT to issue a Purchase Order to QCIF to invoice for and carry out a Major Upgrade. ReDBox Consultancy The QCIF ReDBox team provides consultancy on configuration, branding, and integration of the ReDBox software with other systems in the CLIENT s environment. This may involve advice to the CLIENT or assistance to the CLIENT technical staff on aspects of implementation. Time & Materials ReDBox Software Enhancement (Feature Development QCIF will provide a proposal indicating costs, deliverables, timelines, and responsibilities of the parties for CLIENT s consideration. The ReDBox team provides enhancements and modifications to the ReDBox Software for the CLIENT in line with an agreed and documented requirements specification. As a Consultancy service QCIF will provide a proposal indicating costs, deliverables, timelines, and responsibilities of the parties for CLIENT s consideration. Time & Materials # QCIF reserves the right to amend the fee from time to time to meet changes in service costs. ReDBox Support Agreement ID: xx Page 8 of 8