Terms & Conditions
End User Licence Agreement & Direct Debit Service Agreement
This document sets out the End User Licence Agreement (“Agreement”) and Direct Debit Service Agreement between Companion Systems Pty Ltd (ABN: 77 102 775 762), Level 7, 1 Horwood Place, Parramatta NSW 2150 (“Companion Systems”) and the client (“Client”). By signing or accepting a proposal from Companion Systems you agree to be bound by these terms in full.
All modifications to this Agreement must be in writing and signed by both parties. This Agreement cancels all previous written and oral agreements in relation to the Software.
END USER LICENSE AGREEMENT
What Information We Collect
1.0 The Agreement
This Software Agreement (“Agreement”) is effective from the date stated on the accepted proposal (the “Effective Date”) by and between Companion Systems Pty Limited ABN: 77 102 775 762 (“Companion Systems”), with their principal place of business at Level 7, 1 Horwood Place, Parramatta, NSW, 2150, and the Client as identified in the accepted proposal. Companion Systems will use best efforts to provide OnSite Companion — the construction management software — which Client may use (the “Software”).
2.0 Licence
Subject to the terms and conditions of this Agreement, Companion Systems grants Client a non-sublicensable, non-exclusive and non-transferable Licence (the “Licence”) to use the Software, in installed form only, and only in conjunction with any restrictions stated in connection with the installation.
Except as expressly authorised by Companion Systems at the time of installation, Client will not, directly or indirectly:
Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software;
Modify, translate, or create derivative works based on the Software;
Copy (except for archival purposes), rent, lease, distribute, assign, or otherwise transfer rights to the Software;
Use the Software for the benefit of a third party; or
Remove any proprietary notices or labels.
As between the parties, Client acknowledges that Companion Systems and its licensors retain ownership of all components of the Software, any portions or copies thereof, and all rights therein.
Subject to the terms and conditions of this Agreement, Companion Systems will provide Client with ongoing support and maintenance (the “Support”). If issues require site support, this is provided at Companion Systems’ discretion. Additional fees may apply to site support if the cause of the issue is not a result of Companion Systems’ products or services.
Support is provided during business hours 9am–5pm Monday to Friday AEST/AEDT as appropriate, unless otherwise stated. Client will receive all release and version upgrades of the Software whilst the leased Licence is current and fees are paid in full.
Client will use the Software only for lawful purposes.
3.0 Term & Termination
This Agreement is annual commencing from the date of execution, automatically renewable for additional one-year terms. Client may terminate the Agreement every twelve (12) months from the date of execution by giving Companion Systems sixty (60) days prior written notice.
Either party may terminate this Agreement at any time in the event of a material breach by the other party which remains uncured after thirty (30) days written notice thereof.
Unless otherwise specified, it Client terminates this Agreement prior to the end of the one-year initial term or any automatically renewed twelve (12) month term, Client shall notify Companion Systems in writing and shall remit the total amount of fees due for the remaining months as per the total Licences on acceptance of proposal and pricing schedule, ten (10) days from the date of Client's written request for termination.
In the event of termination of this Agreement during the term, Companion Systems reserves the right to uninstall and remove all of the Software from the possession of Client. Data may be exported and provided to Client in the Client's preferred format at the Client's expense.
4.0 Payment of Fees
Client agrees to pay Companion Systems according to the Companion Systems schedule of Software and Service fees based upon seat usage. Companion Systems reserves the right to change the Licence fees or applicable charges, including but not limited to Support and Maintenance fees, and to institute new charges as required with thirty (30) days prior notice to Client (which may be sent by email).
Client agrees to provide Companion Systems with a signed direct debit authority as the preferred method of payment within 14 days of signing the agreement. Companion Systems agrees to debit the account of the Client in line with the terms of invoice.
5.0 Limitation of Liability
COMPANION SYSTEMS’ AND CLIENT’S TOTAL LIABILITY, IF ANY, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID BY CLIENT TO COMPANION SYSTEMS FOR THE SOFTWARE UNDER THIS AGREEMENT. COMPANION SYSTEMS AND ITS LICENSORS WILL NOT BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND EVEN IF COMPANION SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.0 Limited Warranty & Disclaimer
Companion Systems warrants that the Software does not infringe the copyright, patent, trademark, trade secret or other rights of third parties and that Companion Systems has the rights to grant the Licence under this Agreement.
NOTWITHSTANDING THE ABOVE, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND COMPANION SYSTEMS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.0 Miscellaneous
A. The failure of either party to exercise any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
B. The Agreement will be governed by and construed in accordance with the laws of the state of New South Wales without regard to the conflict of law provisions thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and cancels all previous written and oral agreements in relation to the Software. All modifications must be in writing signed by both parties.
C. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have the authority to bind Companion Systems in any respect whatsoever.
D. All notices under this Agreement will be in writing and will be deemed to have been duly given when received; if personally delivered, when receipt is electronically confirmed; if transmitted by facsimile or email, the day after it is sent; upon receipt, if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt is requested.
E. Companion Systems and Client agree that facsimile signatures shall be as effective as if originals.
F. Companion Systems require a 50% deposit (training and implementation fees) and balance on delivery. The lease Licence fee is payable monthly, in advance, upon implementation.
G. Travel and living expenses incurred during Implementation and Training are billed separately and in addition to implementation and training fees.
H. Fees, including travel and living expenses, apply to site support that falls outside of the scope of the support and maintenance agreement.
Direct Debit Request Service Agreement
This is your Direct Debit Service Agreement with Companion Systems Pty Ltd (314011) ABN 77 102 775 762. It explains your obligations when undertaking a Direct Debit arrangement with us and details our obligations to you as your Direct Debit provider. Please keep this agreement for future reference — it forms part of the terms and conditions of your Direct Debit Request (DDR) and should be read in conjunction with your DDR authorisation.
How to Contact Us
All communication addressed to us should include your Customer Number. Enquiries should be made at least 7 working days prior to the next scheduled drawing date.
Phone: (02) 96350000
Email: mmcamenzuli@companionsystems.com.au
Mail: PO Box 306, Parramatta, NSW, Australia 2150
Definitions
account
The account held at your financial institution from which we are authorised to arrange for funds to be debited.
agreement
This Direct Debit Request Service Agreement between you and us.
banking day
A day other than a Saturday, Sunday, or a public holiday listed throughout Australia.
debit day
The day that payment by you to us is due.
debit payment
A particular transaction where a debit is made.
direct debit request
The Direct Debit Request between us and you.
us / we
Companion Systems Pty Ltd (314011), whom you have authorised by requesting a Direct Debit Request.
you
The customer who has signed or authorised by other means the Direct Debit Request.
your financial institution
The financial institution nominated by you on the DDR at which the account is maintained.
Debiting Your Account
By signing a Direct Debit Request or by providing us with a valid instruction, you have authorised us to arrange for funds to be debited from your account. You should refer to the Direct Debit Request and this agreement for the terms of the arrangement between us and you.
We will only arrange for funds to be debited from your account as authorised in the Direct Debit Request, or if we have sent to the address nominated by you a billing advice which specifies the amount payable by you to us and when it is due.
If the debit day falls on a day that is not a banking day, we may direct your financial institution to debit your account on the following banking day. If you are unsure about which day your account has or will be debited, you should ask your financial institution.
Amendments by Us
We may vary any details of this agreement or a Direct Debit Request at any time by giving you at least fourteen (14) days written notice.
Amendments by You
You may change, stop or defer a debit payment, or terminate this agreement by providing us with at least 7 days notification by writing to: PO Box 306, Parramatta, NSW, Australia 2150; or by telephoning us on (02) 96350000 during business hours; or by arranging it through your financial institution, which is required to act promptly on your instructions.
Your Obligations
It is your responsibility to ensure that there are sufficient clear funds available in your account to allow a debit payment to be made in accordance with the Direct Debit Request.
If there are insufficient clear funds in your account to meet a debit payment:
you may be charged a fee and/or interest by your financial institution;
you may also incur fees or charges imposed or incurred by us; and
you must arrange for the debit payment to be made by another method or arrange for sufficient clear funds to be in your account by an agreed time so that we can process the debit payment.
You should check your account statement to verify that the amounts debited from your account are correct.
Dispute
If you believe that there has been an error in debiting your account, you should notify us directly on (02) 96350000 and confirm that notice in writing with us as soon as possible so that we can resolve your query more quickly. Alternatively you can take it up directly with your financial institution.
If we conclude as a result of our investigations that your account has been incorrectly debited, we will respond to your query by arranging for your financial institution to adjust your account (including interest and charges) accordingly. We will also notify you in writing of the amount by which your account has been adjusted.
If we conclude as a result of our investigations that your account has not been incorrectly debited, we will respond to your query by providing you with reasons and any evidence for this finding in writing.
Accounts
You should check:
with your financial institution whether direct debiting is available from your account, as direct debiting is not available on all accounts offered by financial institutions;
your account details which you have provided to us are correct by checking them against a recent account statement; and
with your financial institution before completing the Direct Debit Request if you have any queries about how to complete the Direct Debit Request.
Confidentiality
We will keep any information (including your account details) in your Direct Debit Request confidential. We will make reasonable efforts to keep any such information that we have about you secure and to ensure that any of our employees or agents who have access to information about you do not make any unauthorised use, modification, reproduction or disclosure of that information.
We will only disclose information that we have about you:
to the extent specifically required by law; or
for the purposes of this agreement (including disclosing information in connection with any query or claim).
Notice
If you wish to notify us in writing about anything relating to this agreement, you should write to: Companion Systems Pty Ltd, PO Box 306, Parramatta, NSW, Australia 2150.
We will notify you by sending a notice in the ordinary post to the address you have given us in the Direct Debit Request. Any notice will be deemed to have been received on the third banking day after posting.