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  • Sarah Gatehouse

    Sarah Gatehouse.

    Fujitsu General Australia

    "In 2016 we rolled out intelliHR, and in 2017 we had our best financial year yet. That makes a massive statement to show how valuable an investment in people and technology can be."

  • Sarah Gatehouse

    Sarah Gatehouse.

    Fujitsu General Australia

    "With the implementation of intelliHR, the improvements in our culture are clearly visible. intelliHR is a tool that helps with our strategic cultural goal of being a great place to work, with improved engagement, communication and goal management now well on track."

  • Belinda Maybury

    Belinda Maybury.

    Sheldon Commercial Interiors

    "

    Since starting regular staff check-ins through intelliHR, we discovered how much more capability one staff member had than we initially thought. We have since assisted his career progression and conducted a remuneration review. The outcome was a happy employee feeling valued and appreciated. Without intelliHR prompting us to address this in real-time, we could have lost this valuable employee.

    "

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Software Licence Terms

Background

  1. The Customer has entered into the Customer Contract with the Reseller to purchase the Licensed Material and receive the Software Maintenance and Support Services.
  2. As a condition of using the Licensed Material and receiving the Software Maintenance and Support Services, the Customer must agree to these Licence Terms (including the Software Maintenance and Support Terms) with the Licensor.

It is agreed

 

1. Definitions and Interpretation

1.1 Definitions

In these Licence Terms the following definitions apply unless the context requires otherwise:

Business Day means:

(a)          for receiving a notice under clause 13, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the Notice is received; and

(b)          for all other purposes, a day that is not a Saturday, Sunday, public holiday or bank holiday in Queensland.

Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.

Commencement Date means the later of the date the Customer Contract takes effect or the date the Customer accepts these Licence Terms.

Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, exchanged between the parties before, on or after the Commencement Date relating to the business, services, technology or other affairs of the discloser of the information.

Corporations Act means the Corporations Act 2001 (Cth).

Customer means the person who has entered into a Customer Contract with the Reseller for the supply of the intelliHR Software and the Software Maintenance and Support Services.

Customer Contract means an agreement between a Reseller and a Customer for the supply of the intelliHR Software and the Software Maintenance and Support Services.

Customer Materials means any trademarks, images, content or other materials developed by the Customer prior to the Commencement Date or independently of these Licence Terms and includes any Customer Data.

Customer Data means data owned or supplied by the Customer and stored on the Licensor systems through the Customer’s usage of the Licensed Materials.

Discloser means the party disclosing Confidential Information.

Force Majeure Event means any event beyond the reasonable control of the non-performing party and which the party could not have prevented by reasonable precautions or could not have remedied by the exercise of reasonable efforts or could not have prevented by taking steps specifically required under these Licence Terms, including but not limited to the extent that a disaster recovery plan or business continuity plan is able to prevent or remedy such event, which is limited to the following:

(a)          fire, flood, earthquake, elements of nature or act of God;

(b)          acts of way, terrorism, riot, civil disorder, rebellion or revolution, all by a third party; or

(c)          strikes, lockouts or labour disputes of a general nature that extend beyond the non-performing party’s Personnel (such as a general or industry-wide strike),

but does not include an act, omission or event caused or contributed to by a Related Entity of the non-performing party.

Intellectual Property Rights means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, including all copyrights, patent rights, trade mark rights (including any goodwill associated with those trade mark rights), design rights and trade secrets, whether or not registered and including the right to register such rights.

intelliHR Software means an online Human Capital Management System including but not limited to Human Capital Management Business Intelligence, Contemporary People Management Tools and HR Automation Capabilities, and any enhancements, upgrades or modifications to that software.

Licence means the licence granted by the Licensor to the Customer as specified in clause 2.1.

Licensed Material means the intelliHR Software.

Licensed Person means an employee or contractor of the Customer who is authorised by the Customer to access and use the Licensed Material, and Licensed Personnel will be reference to each such Licensed Person.

Licensor means intelliHR Systems Pty Ltd ACN 167 233 310.

Licensor’s Website means the website of the Licensor located at the web address http://www.intellihr.com.au.

Loss means claims, liability, loss, damage costs and expenses including but not limited to legal costs on a full indemnity basis.

Personnel includes officers, employees, agents, contractors, consultants and representatives.

Recipient means the party receiving Confidential Information.

Related Entities has the meaning it has in the Corporations Act, and Related Entity has a corresponding meaning.

Reseller means the person authorised by the Licensor to resell the intelliHR Software who has entered into a Customer Contract with the Customer.

Software Maintenance and Support Services means the services provided under the Software Maintenance and Support Terms.

Software Maintenance and Support Terms means the terms of that name attached to or provided at or about the same time as these Licence Terms.

Term means the term of these Licence Terms commencing on the Commencement Date until terminated in accordance with clause 11.

 

1.2 Interpretation

In these Licence Terms the following rules of interpretation apply unless the contrary intention appears:

(a)          headings are for convenience only and do not affect the interpretation of these Licence Terms;

(b)          the singular includes the plural and vice versa;

(c)           words that are gender neutral or gender specific include each gender;

(d)          where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(e)          the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;

(f)           a reference to:

(i)           a person includes a natural person, partnership, joint venture, Government agency, association, corporation or other body corporate;

(ii)          a thing (including, but not limited to, a chose in action or other right) includes a part of that thing;

(iii)         a party includes its successors and permitted assigns;

(iv)         a document includes all amendments or supplements to that document;

(v)          a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to these Licence Terms;

(vi)         these Licence Terms include all schedules and attachments to them;

(vii)        a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;

(viii)       an agreement other than these Licence Terms includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and

(ix)         a monetary amount is in Australian dollars;

(g)          an obligation on the part of two or more persons binds them jointly and severally;

(h)          when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day;

(i)            in determining the time of day, where relevant to these Licence Terms, the relevant time of day is:

(i)            for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or

(ii)           for any other purpose under these Licence Terms, the time of day in the place where the party required to perform an obligation is located;

(j)           no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Licence Terms or any part of them.

(k)          A term or expression starting with a capital letter:

(i)            which is defined in clause 1.1, has the meaning given to it in clause 1.1; and

(ii)           which is defined in the Corporations Act, but is not defined in clause 1.1, has the meaning given to it in the Corporations Act.

 

2. Licensed Material

2.1 Licence

The Licensor grants to the Customer a non-exclusive, non-transferable Licence for the Term to access the Licensed Material.

 

2.2 Authorised Use

(a)          The Customer agrees that only Licensed Personnel may access and use the Licensed Material.

(b)          The Customer must ensure that Licensed Personnel access and use all or any of the Licensed Material in accordance with these Licence Terms.

(c)           To the extent that the Licensed Material is accessible through a website, such access is subject to the terms and conditions of use that appear on that website and any click and accept end user licence terms, together with privacy and acceptable use standards.

 

2.3 Co-operation

Upon the reasonable request of the Licensor, the Customer will provide the Licensor with all information and co-operation reasonably necessary to enable the Licensor to perform its obligations under these Licence Terms and its related business operations.

 

2.4 Restrictions

The Customer must:

(a)          use the Licensed Material only in furtherance of its own internal business requirements;

(b)          not use the Licensed Material in any way that could damage the reputation of the Licensor or the goodwill or other rights associated with the Licensed Material;

(c)           not permit any third party to use the Licensed Material other than as set out in these Licence Terms;

(d)          not reproduce any part of the Licensed Material for sale or incorporation in any product or service intended for sale or supply to third parties;

(e)          except as expressly permitted by these Licence Terms, and except to the extent that applicable laws allow, including the Copyright Act 1968 (Cth), not prevent the Licensor restraining the Customer from:

             (i)            reproducing or making error corrections to or otherwise modify or adapt the Licensed Material or create any derivative works based upon the Licensed Material;

             (ii)           de-compiling, disassembling or otherwise reverse engineering the Licensed Material or permit any third party to do so.

 

3. Software Maintenance and Support Services

The Licensor performs the Software Maintenance and Support Services in relation to the Licensed Material in accordance with the Software Maintenance and Support Terms.

 

4. Intellectual Property

4.1 Ownership

(a)          The Licensor warrants that it is entitled to grant the rights in respect of the Licensed Material subject to the terms and conditions of these Licence Terms.

(b)          The Customer acknowledges that all Intellectual Property Rights subsisting in the Licensed Material are either owned or licensed from third parties (as the case may be) by the Licensor and that nothing in these Licence Terms has the effect of or should be construed as passing ownership of any Intellectual Property Rights of the Licensor to any person.

(c)           The Licensor acknowledges that all Intellectual Property Rights subsisting in the Customer Materials are either owned or licensed from third parties (as the case may be) by the Customer and that nothing in these Licence Terms has the effect of or should be construed as passing ownership of any Intellectual Property Rights in the Customer Material to any person.

(d)          The Customer acknowledges that the Licensor retains ownership of all Intellectual Property Rights relating to the Licensed Material created by or for the Licensor.

(e)          Irrespective of whether the Licensed Material (or part of it) is owned or licensed by the Licensor, the Customer may not, and must ensure that its employees, agents, officers and / or contractors do not:

(i)           remove or modify any program markings or any notice of proprietary rights, irrespective of whether such markings or notices are those of the Licensor or a third party;

(ii)          make any of the Licensed Material available in any manner to any third party for use in that third party’s business operations, or otherwise sublicense, rent, assign, communicate to the public or otherwise deal (wholly or in part) with the Licensed Material;

(iii)         copy, adapt, modify, merge or otherwise reproduce any element of any of the Licensed Material; or

(iv)         disassemble, decompile or reverse engineer any software forming part of the Licensed Material, unless the Customer is specifically authorised to do so.

 

5. Customer Data

5.1 Provision of Information

Through the usage of the Licensed Material, Customers will provide and have stored on the Licensor servers, Customer Data.  Customer Data may be stored on servers owned by third parties pursuant to arrangements between the Licensor and any such applicable third party.

 

5.2 Security

The Licensor shall use all reasonable endeavours to ensure that the Licensor’s servants, contractors, agents and employees provide a secure environment for all Customer Data held on its systems as a result of use of the Licensed Material. The Customer however acknowledges that no information which is available on the internet is completely secure and agrees that the Licensor will not be liable to any extent for loss or damage, should such security measures be overcome or breached.

 

5.3 Customer Infringement

The Customer shall not knowingly do any act or thing in relation to data which would infringe any party’s copyright or Intellectual Property Rights and shall be responsible for obtaining consent, approval or licence from the holders of any Intellectual Property Rights required to enable the Customer to deal with any relevant data or to do any act or thing in relation to those Intellectual Property Rights.

 

5.4 Use of Customer Data

The Customer grants and the Licensor reserves the right to use, test, manipulate or put to any other application the Customer Data for the purpose of aggregating data for benchmarking, case studies, marketing or improving the Licensed Material.

 

5.5 Limitations

The Licensor will not, subject to clause 5.4, use the Customer Data for any other purpose without the consent in writing of the Customer.

 

5.6 Confidentiality

In making use of Customer Data in accordance with clause 5.4, the Licensor will use all reasonable endeavours to preserve the confidentiality of the Customer Data, including the amendment or alteration of information to cause it to be unidentifiable.

 

5.7 Return of Customer Data

On the termination or expiry of the Customer Contract, on request, the Licensor agrees to return the Customer Data to the Customer within a reasonable timeframe. The Customer Data will be returned in a format that the Licensor reasonably determines.

 

6. Service Availability

6.1 Availability

The Licensor shall use reasonable endeavours to provide the access to the Licensed Material on a continuous basis during the Term, provided however that the Licensor may, without notice, suspend all or part of any access to the Licensed Material immediately, where:

(a)          there is a malfunction or breakdown of any of the Licensor’s equipment or the equipment of any 3rd Parties providing services to the Licensor;

(b)          the Licensor is required to undertake the repair, maintenance or service of any part of the Licensed Material;

(c)           there is an electrical storm, tempest, electrical short circuit, power failure, telecommunications failure or fault;

(d)          there is an industrial dispute or lockout;

(e)          it is reasonably required to reduce or prevent breach (or reasonably anticipated breach) of these Licence Terms, fraud or interference with the Licensed Material;

(f)           the Licensor is required to comply with an order, instruction or request of government, or other such competent body;

(g)          the Reseller has failed to pay fees that are due and payable to the Licensor relating to the provision of the Licensed Material and Software Maintenance and Support Services to the Customer; and / or

(h)          there is a Force Majeure Event.

The Licensor will use reasonable endeavours to notify the Customer of any such suspension as soon as reasonably practicable, and to minimise the duration of any such suspension.

 

6.2 Downtime

The Customer acknowledges and agrees that access to the Licensed Material is reliant upon various factors outside the control of the Licensor, including, without limitation, the Customer’s internet service provider, the Licensor’s hosting and web server and other factors which may impact upon the delivery of the Licensed Material to the Customer via the internet. While the Licensor will use all reasonable endeavours to ensure the Customer has continuous access to the Licensed Material, the Licensor shall not be liable to the Customer or any other person for any Claim or to any other extent for loss or damage caused by such factors.

 

6.3 Viability

The Licensor may discontinue or suspend access to the Licensed Material if:

(a)          the ability to provide the Licensed Material is restricted or altered in such a way that the Licensor considers it is impractical, impossible or not commercially viable to continue to provide the Licensed Material; or

(b)          a claim is made that:

(i)            alleges that the continued provision of the Licensed Material infringes the rights of any person;

(ii)           exposes the Licensor to liability to any third party; or

(iii)          exposes the Licensor to liability prosecution for an offence or liability to a statutory penalty.

 

6.4 Notice

In the event that access to the Licensed Material is discontinued in accordance with clause 6.3, the Licensor will endeavour to provide the Customer with prior written notice where it is reasonable and practicable in the Licensor’s opinion to do so.

 

6.5 Notice of Maintenance Requiring Downtime

The Licensor will use its reasonable endeavours to, except in emergency situations:

(a)          provide the Customer with 72 hours’ notice of any scheduled maintenance requiring downtime of the Licensed Material; and

(b)          undertake any scheduled maintenance requiring downtime between the hours of 7pm and 7am AEST on weekdays or at any time on weekends.

 

6.6 Loss of Access

The Customer shall have no claim against the Licensor in respect of loss of access or functionality to the Licensed Material referred to in this clause whether such claim lies in contract, tort or otherwise (including negligence) for any loss or damage howsoever arising.

 

6.7 Malfunctions

The Licensor does not warrant that the Licensed Material is or will be completely free of errors, bugs, faults, omissions or miscalculations.

 

7. Liability and Indemnity

7.1 Implied terms and warranties excluded

(a)          The provisions of various laws, statutes, rules or regulations in force from time to time might imply certain conditions, warranties, and obligations in these Licence Terms.  To the extent permitted by law, and subject to clause 7.1(b) and 7.4 below, all such conditions, warranties, and obligations are hereby expressly excluded from having any application to these Licence Terms.

(b)          Nothing in this clause 7 is intended to limit users’ non-excludable rights under the Competition and Consumer Act 2010 (Cth).

 

7.2 Cap on Liability

Subject to clauses 7.3 and 7.4, other than in relation to an obligation on the Customer to pay Fees to the Licensor, a party’s liability to another party for all claims, loss or damage, however caused (including by the negligence of the Licensor), made by that party under or in connection with these Licence Terms is, in aggregate, capped at the amounts paid by the Customer to the Licensor under these Licence Terms as at the date the liability arose.

 

7.3 Indirect losses excluded

(a)          Subject to clause 7.4, in no event will any party be liable to another for indirect or Consequential Loss or damage suffered or incurred in connection with these Licence Terms.

(b)          Consequential Loss in clause 7.3(a) means a loss of any one or more of the following:

(i)           profits;

(ii)          business;

(iii)         business opportunity;

(iv)         revenue;

(v)          reputation;

(vi)         loss or corruption of data;

(vii)        goodwill; or

(viii)       anticipated savings.

 

7.4 Australian consumer law

If the Australian Consumer Law or similar law imposes any guarantees in relation to the supply of goods or services under these Licence Terms, and the Licensor cannot exclude liability for breach of those guarantees but can limit it, clauses 7.1, 7.2 and 7.3 do not apply and instead the Licensor limits its liability (at its option), to the resupply or payment of the cost of resupply of the relevant services, to the extent it is fair and reasonable to do so.

 

8. Confidentiality, Privacy and Security

8.1 Treatment of Confidential Information

Each party acknowledges that the Confidential Information of the other party is valuable to the other party.  Each party (a “Recipient”) undertakes to keep the Confidential Information of the other party (a “Discloser”) secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.

 

8.2 Use of Confidential Information

A Recipient may only use or reproduce the Confidential Information of the Discloser for the purposes of performing the Recipient’s obligations or exercising the Recipient’s rights under these Licence Terms.

 

8.3 Disclosure by Recipient

A Recipient disclosing information under these Licence Terms must use all reasonable endeavours to ensure that persons receiving Confidential Information from it do not disclose the information except in the circumstances permitted under these Licence Terms.

 

8.4 Return of Confidential Information

At the request of a Discloser, a Recipient must:

(a)          return to the Discloser all Confidential Information of the Discloser; or

(b)          destroy the Discloser ‘s Confidential Information and certify to the Discloser that it has been destroyed.

 

8.5 Privacy

(a)          The Customer must provide all notifications, and obtain all consents, necessary to ensure that the Licensor can perform its obligations, and exercise its rights, under these Licence Terms in relation to the Customer Data.  The Customer indemnifies the Licensor in respect of any Claim arising against the Licensor as a result of a breach of this clause.

(b)          If, as a result of these Licence Terms, a party is able to access any personal information about identifiable individuals, then that party:

(i)            must comply with the Privacy Act 1988 (Cth) and all other applicable privacy laws and such other data protection laws as may be in force from time to time which regulate the collection, storage, use and disclosure of information, as if it were regulated by these laws;

(ii)           must comply with any privacy code or policy which has been adopted by the Customer (copies available on request) as if it were bound by that code or policy;

(iii)          must take all reasonable measures to ensure that such information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse and that only authorised representatives, employees and officers have access to it;

(iv)         must immediately notify the other party upon it becoming aware of a breach of these Licence Terms by itself or any representative, employee or officer;

(v)          must co-operate with the other party in the resolution of any complaint under or relating to, any of the laws, codes or policies referred to in (a) and (b) above.

 

8.6 Exceptions

Nothing in these Licence Terms prohibits the use or disclosure of any Confidential Information to the extent that the Recipient can demonstrate that:

(a)          the information is received by the Recipient from a third party who is not under an obligation of confidence in relation to such information;

(b)          the information is generally and publicly available other than as a result of a breach of confidence by the person disclosing or receiving the information;

(c)           the information is independently developed by the Recipient’s Personnel who do not have access to any of the Discloser’s Confidential Information; or

(d)          the Information was lawfully known to the Recipient prior to receipt of the information from the Discloser.

 

8.7 Damage and other Remedies

Each party acknowledges that a breach of this clause 8 may cause the other party irreparable damage for which monetary damages may not be an adequate remedy.  Accordingly, in addition to other remedies that may be available, each party may seek and obtain injunctive relief against such a breach or threatened breach.

 

9. Term

These Licence Terms commence on the Commencement Date and continues in force until the Customer Contract expires or is terminated.

 

10. Notices

The Customer acknowledges and agrees that the Licensor may give any notice, consent, approval or other communication (each a ‘notice’) under these Licence Terms by giving it to the Reseller.

 

11. Assignment

11.1 By the Licensor

The Licensor may assign its rights under these Licence Terms without the prior written consent of the Customer.

 

11.2 By the Customer

The Customer must not assign its rights under these Licence Terms without the prior written consent of the Licensor.  Any attempted assignment without the Licensor’s consent is void.

 

12. Force Majeure Events

(a)          If a Force Majeure Event occurs, the party affected (“Affected Party”) must give written notice to the other party of particulars of the Force Majeure Event and the extent to which the Affected Party is unable to carry out its obligations.

(b)          If the Affected Party provides the notice referred to above:

(i)            the obligations of the Affected Party will be suspended from the time the notice is received by the other party until the Affected Party is no longer prevented from or delayed in complying with those obligations by the Force Majeure Event; and

(ii)           the Affected Party must take reasonable steps to remove or mitigate the relevant Force Majeure Event.

(c)           A party cannot claim a Force Majeure Event continues to apply to the extent that it can be rectified by a disaster recovery plan or business continuity plan.  The Licensor must prepare and implement a disaster recovery plan or business continuity plan unless the Force Majeure Event prevents it from doing so.

 

13. General

13.1 Jurisdiction

(a)          These Licence Terms are governed by the law in force in the State of Queensland.

(b)          Each party submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to these Licence Terms.

(c)           Each party irrevocably waives any objection it may have now or in the future to the venue of any proceedings where that venue falls within Queensland.

 

Schedule 1  – Terms of Software Maintenance and Support

These Terms and Conditions are annexed to and form part of the Software Licence Terms and govern the provision of support and maintenance services by the Licensor for all software forming part of the Licensed Material provided under the Software Licence Terms.

Where the provisions of these Terms and Conditions contradict or are inconsistent with the provisions of the Software Licence Terms, the provisions of these Terms and Conditions prevail.  Where a term is defined in the Software Licence Terms, that term shall have a corresponding meaning in these Terms and Conditions unless a contrary intention appears on the face of these Terms and Conditions.

 

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In these Terms and Conditions, unless the context requires otherwise:

Excluded Services means those services set out in clause 5;

New Release means an update to the Software which provided primarily to implement an extension, alteration, improvement or additional functionality to the Software or otherwise improve functionality or correct an error in the Software;

Priority has the meaning given by clause 3.2;

Software means software forming part of the Licensed Material;

Software Licence Terms means the Licence Terms to which these Terms and Conditions are attached and form part of;

Target Resolution Time has the meaning given by clause 3.5;

Target Response Time has the meaning given by clause 3.5; and

Terms and Conditions means the terms and conditions set out in this Schedule 3 to the Agreement;

Update means software which has been produced primarily to overcome defects in the Software.

 

1.2 Interpretation

The rules of interpretation applying to the Software Licence Terms apply to these Terms and Conditions.

 

2. Nature of services

2.1 Obligation

(a)          These Terms and Conditions set out the Software Maintenance and Support Services the Licensor will provide to the Customer on behalf of the Reseller and applies to the extent of any inconsistency with the Customer Contract.  Despite anything contained in the Customer Contract, the Licensor is not required to do anything for the Customer beyond what is contemplated by these Terms and Conditions.

(b)          During the currency of these Terms and Conditions:

(i)           the Licensor will perform such services as it considers reasonable to the Customer in order to ensure the Software remains in substantial conformity with its specifications (“Support Services”); and

(ii)          the Licensor will provide New Releases from time to time.

(c)           Where the Licensor is providing Support Services, such support shall, at the sole option of the Licensor, take the form of:

(i)           telephone advice;

(ii)          email transmission correspondence;

(iii)         error correction by means of Updates or New Releases; and

(iv)         such services as the Licensor considers are effectively provided off-site.

 

2.2 Third Parties

(a)          The Licensor will deal only and exclusively with the Reseller and the Customer or any of its authorised, suitably qualified or informed representatives when performing the Support and Maintenance Services.

(b)          The Customer must appoint a suitably qualified or informed representative to deal with and be the first point of contact in relation to the Support Services.

 

2.3 Report

The Licensor shall provide the Support Services in response to a report or request by the Customer to the Licensor:

(a)          of a suspected defect or error in the Software, which defect or error allegedly causes the Software to deviate from its specifications; or

(b)          for assistance or guidance from the Licensor.

 

2.4 Written Defect Notice

Immediately after making a request for Support Services, which may involve error correction or program modification, the Customer shall give the Licensor a documented example of the defect or error which it alleges prevents conformity of the Software with its specifications.  The Customer shall, if so requested by the Licensor, give the Licensor a listing of output and any other data which the Licensor requires in order to reproduce operating conditions similar to those present when any alleged defect or error in the Software was discovered.

 

3. Service response

3.1 Customer Report

When providing the report contemplated by clause 2.3, the Customer must designate the Priority of the issue, in its reasonable opinion.

 

3.2 Priority

The Priority of an issue for which the Customer requests the Licensor to provide Software Maintenance and Support Services must be one of the following:

Critical, which means the Software is inoperable and fails catastrophically;

High, which means a part of the Software function is unavailable, the system crashes for some end users or there is material and adverse loss of function or degraded performance for important activities but work can continue;

Medium, which means a part of the Software is not operating efficiently, and causing inconvenience but workarounds are available; and

Low, which means a training or educational issue with users generally not related to a defect in the Software.

 

3.3 Target Response Time

After the Licensor receives the report contemplated by clause 2.3, the Licensor will use its best endeavours to respond to the report by the Target Response Time listed in clause 3.5, but not to provide a resolution to the issue.

 

3.4 Target Resolution Time

After the Licensor receives the report contemplated by clause 2.3, the Licensor will use its best endeavours to provide a resolution to the issue by the Target Resolution Time listed in clause 3.5.

 

3.5 Targets

Priority Target Response Time
(Business Hours)
Target Resolution Time
(Business Hours/Days)
Critical 1 hour 4 Hours
High 3 hours 3 days
Medium 1 day 10 days
Low 3 days 15 days

 

3.6  Licensor Obligations

(a)          The Licensor provides no warranty that it will meet either the Target Response Time or the Target Resolution Time.

(b)          The Licensor may use any method, system, process, patch, Update or New Release to resolve any issue, in its sole discretion.

 

4. Support and Maintenance availability

The Licensor shall provide the Support Services between 0900 hours and 1700 hours on every day except Saturday, Sunday or a public holiday in the State of Queensland.  The Licensor does not warrant that it will be capable of promptly receiving, processing or otherwise acting upon a request for Support Services which is made outside these hours or that it can provide on-site Support Services outside these hours.

 

5. Exclusions

Services to be provided by the Licensor under these Terms and Conditions do not include:

(a)          correction of errors or defects caused by operation of the Software in a manner other than that currently specified by the Licensor;

(b)          correction of errors resulting from data migration or transformation, whether performed by the Licensor or third parties;

(c)           correction of errors or defects caused by modification, revision, variation, translation or alteration of the Software not authorised by the Licensor;

(d)          correction of errors caused in whole or in part by the use of computer programs other than the Software;

(e)          correction of errors caused by the failure of the Customer to provide suitably qualified and adequately trained operating and programming staff for the operation of the Software;

(f)           training of operating or programming staff;

(g)          rectification of operator errors;

(h)          rectification of errors caused by incorrect use of the Software;

(i)           rectification of errors caused by the Customer or third party equipment fault;

(j)           the Customer or third party equipment maintenance;

(k)          diagnosis or rectification of faults not associated with the Software;

(l)           installation of the Software;

(m)         third party materials;

(n)          rectification of errors in the Customer’s or third party’s data;

(o)          furnishing or maintenance of accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by the Licensor;

(p)          correction of errors arising directly or indirectly out of the Customer’s failure to comply with the Software Licence Terms or any other agreement with the Licensor;

(q)          correction of errors arising directly or indirectly out of any third party’s failure to comply with any agreement between that third party and the Licensor;

(r)           correction of errors or defects which are the subject of a warranty under another agreement ; or

(s)           to provide Support and Maintenance Services:

(i)            “on-site”; or

(ii)           to any third party, at any location.

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