FYB ENGAGEMENT TERMS
ABOUT FYB
FYB Pty Ltd (FYB) was founded in 2004 and since then have captured a diverse customer base across Australasia. At FYB our customer promise is to provide secure, easy to use, leading edge technological solutions, to enable organisations to harness the power of their information so they can provide excellent services to the community. We’ve stayed true to our core beliefs—to deliver the best information governance, systems and solutions to our customers. We owe a huge thanks to our customers for joining us on this awesome journey, and we hope that they will continue to be part of our story.
OUR ENGAGEMENT TERMS
This document sets out the general terms that apply to all the products and services that we provide to you, which could be a combination of:
• FYB Software Apps, Add-ins or Connectors
• Third Party Software
• FYB Support Membership
• Other Services
The details of the products and services we are providing, and the fees, are described in Proposals that we give to you. Additional end user licence terms may also apply for software products, as referred to in the general terms or a Proposal.
These terms are © FYB Pty Ltd, and contain confidential information of FYB. It may only be disclosed to customer staff who need access in order to assess our proposal and implement the agreed services. It may not be disclosed to third parties without FYB’s prior consent.
ENGAGEMENT TERMS
In the terms below, FYB, us or we means FYB Pty Ltd (ABN 68 108 771 731), and customer or you means the customer company or other organisation named in the Acceptance section.
1. DEFINITIONS
Additional Services means services outside the scope of FYB Support Membership which we provide to you as agreed in a Proposal. Charges means the charges for the Software and Services as set out in a Proposal.
Confidential Information means any information provided by a party or any of its employees, agents, related parties or representatives to the other party or any of its employees, agents, related parties or representatives, or otherwise obtained by that party (whether oral, written or viewed by inspection) which is marked as "proprietary" or "confidential" or similar language or which the recipient knows or reasonably should know is proprietary or confidential. Confidential Information includes: (a) our Charges; (b) the Software and other Intellectual Property; (c) details of each party’s internal systems, business processes, future product plans, marketing, customers, prospects, finances, personnel and operations; and (d) the customer’s data which is processed on the Software.
FYB Software means the software packages developed by FYB and offered in a Proposal.
FYB Support Membership means the FYB services described in a Proposal, including maintenance and support for the Software.
Infringement Claim means a claim by a third party against you alleging that any part of the FYB Software or documentation or your use of them as authorized under these terms infringes that party's Intellectual Property Rights. Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
Intellectual Property Rights means, for the duration of the rights in any part of the world, any moral rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
Proposal means a written proposal or quotation from FYB to the customer. Services means the FYB services offered in a proposal, comprising FYB Support Membership &/or Additional Services.
Software means the software packages offered in a Proposal, which may comprise FYB Software &/or Third Party Software.
Third Party Software means the software packages developed by a third party vendor and offered for resale by FYB in a Proposal.
User means any user of the Software via the customer’s account. Vendor means the third party that develops and licences Third Party Software; for example (as at the date these terms are signed) OpenText, Ezescan, Digitus, Moarch360, Archive360 and Intelledox.
2. CONTRACT TERMS
2.1 This document sets out the general terms on which we offer to provide Software and Services to you. The details of the Software or Services, including the Charges, subscription period and any additional terms, are set out in Proposals. You may accept a Proposal by signing it, or FYB Engagement Terms Page | 2 placing an order for the products or services, or by accepting the products or services we provide to you.
2.2 Once you accept a Proposal, it creates a contract between us incorporating these general terms plus the specific terms of the Proposal (Contract). If the Proposal has terms which are inconsistent with these general terms, the specific terms of the Proposal prevail.
2.3 Where we provide Software to you, your use of that Software is governed by the software licence terms which we (or the Vendor) provide with the Software. These may include terms available online or which you or Users are required to accept as part of installing or using the Software.
2.4 Apart from the software licence terms referred to above, the Contract contains everything we have agreed about what we will provide to you, and you are not relying on anything else we have said which is not stated in the Proposal. This Contract overrides any other terms and conditions (including, for example, standard purchasing terms referred to in your purchase orders).
3. SOFTWARE
3.1 We will supply the Software to you on the terms of the Proposal. If you choose to install the Software yourself, we will give you access to a portal to download the Software. If we are helping you to install the Software as an Additional Service, we will install the Software as part of the project as described in the Proposal. The Software is provided only in machine-readable (not source code) format.
3.2 Future Products and Modules: FYB may from time to time offer additional software modules, connectors, add-ins, integrations or services that extend the functionality of the Software. Where the Customer elects to purchase or subscribe to those products or services under a Proposal, they will be governed by these Engagement Terms and any applicable licence terms unless otherwise stated in the Proposal.
3.3 Unless a separate acceptance test regime is agreed by us in writing, you are deemed to have accepted the Software a reasonable period after we make it available for you, or when you use the Software in a production environment.
3.4 Compliance Responsibility: The Software is designed to assist the Customer in managing information and records. The Customer remains responsible for determining whether its configuration and use of the Software satisfies its legal, regulatory, information governance and recordkeeping obligations.
3.5 Automated Processing: The Software may perform automated processes including data capture, transfer, classification, synchronisation or reporting functions. These processes operate according to configuration settings determined by the Customer. The Customer is responsible for validating configuration settings and reviewing the outputs of automated processing.
3.6 You are responsible for: (a) maintaining the computing environment on which the Software is installed, according to the minimum requirements as specified by us or the Vendors; (b) ensuring that your Users are properly trained in using the Software, and that they install and use the Software properly; and (c) taking reasonable steps to prevent unauthorized access to the Software, and notifying us promptly of any known or suspected wrongful use of the Software.
3.7 You will take all reasonable measures in accordance with currently accepted commercial practice to protect your data including by: (a) making adequate and timely back-up copies of the data and programs and maintaining these in a secure manner; (b) where you operate a critical on-line system including business transactions - maintaining summary back-up records of transactions so that your data may be restored promptly; and (c) providing and testing contingency procedures to enable you to continue to perform your principal business activities in the event of a system failure. We will help you if this is part of FYB Support Membership, or as an Additional Service.
3.8 You acknowledge that your use of the Software is subject to the restrictions (if any) set out in the Proposal (such as the number of Users), and to the licence terms provided with the Software. For FYB Software, those licence terms are available at https://fyb.com.au/end-user-license-agreement. For Third Party Software, the licence terms are available on the Vendor’s website, &/or provided to you as part of installing the Software. We will provide access to the Vendor’s terms on request, however we are a reseller and the licence terms are between you and the Vendor.
3.9 Third Party Systems: The operation of integrations with Third Party Software or other external systems depends on the continued availability and behaviour of those systems. FYB is not responsible for failures, outages or changes in third-party platforms that affect the operation of integrations. 3.10 Your licence to use the Software continues for as long as you pay the Charges, as described in the Proposal. The Software contains a time-based activation code, which will expire the day after your licence expires or is terminated. Your Users will not be able to use the Software after this code expires.
4. FYB SUPPORT MEMBERSHIP
4.1 We will provide the FYB Support Membership to you as described in our Proposal, and according to the support service processes and SLAs as referred to in a Proposal. We may update our support processes from time to time by giving you at least one month’s notice, but only where we make this change for our customers generally (for example, details of how to log a support ticket) and the changes do not materially reduce the scope or level of support (for example, we may not unilaterally reduce the response time SLAs).
4.2 We may amend the FYB Support Membership to remove support for any superseded versions of the Software by FYB Engagement Terms Page | 3 giving you at least one months’ notice, or if the Software is licensed for use on an operating system, software application or computer that is no longer supported by their developer or manufacturer, by giving you as much notice as reasonably possible.
4.3 In order for us to provide the FYB Support Membership, you will be responsible for the items or activities described in the Proposal, plus: (a) ensuring your Users have enough knowledge and experience of software products for proper interaction with our technical staff regarding support services, including authority to implement remedial actions as instructed by us; (b) giving us documentation, details and assistance with respect to any reported errors to enable us to reproduce and verify the same as an error; and (c) assisting us to diagnose and correct reported errors by providing reasonable remote access to your environment and hardware on which the Software is installed and operating.
5. ADDITIONAL SERVICES
5.1 We will provide Additional Services to you on the terms of a Proposal which: (a) refers to these engagement terms (and not your standard terms of purchase); (b) sets out the type of Additional Services to be provided, and, if applicable, the timeline for the supply of Additional Services, any customer responsibilities or any other terms specific to those Additional Services; and (c) sets out the Charges for the Additional Services.
6. CHARGES
6.1 You agree to pay us the Charges described in the Proposal. Unless specified otherwise in the Proposal: (a) all Charges for Software and FYB Support Membership are payable annually in advance; and (b) all Charges are due within 30 days of our invoice.
6.2 If your payment is overdue, we may suspend our Services, by giving you at least two weeks’ notice. We may also recover interest on late payments as allowed by law.
6.3 If the Charges are based on a variable or maximum number of Users or other metric as set out in the Proposal, and you exceed the maximum level/s, then you will pay our then-current Charges for the additional Users (or other metric). Ongoing Charges such as for FYB Support Membership may be adjusted annually, if set out in a Proposal.
6.4 If we ask for it, you agree to give us access to all your relevant records (and remote access to your computing systems on which the Software is installed) to audit and verify that you have complied with the maximum number of Users or other metric as set out in the Proposal. If the audit reveals non-compliance, you will pay any excess Charges from the first date you exceeded the relevant limit/s, plus any external costs we have incurred in conducting the audit. We will exercise these audit rights no more than once per year.
6.5 The Charges are quoted exclusive of GST and other taxes, duties and charges. We will increase the invoiced amount to take account of any such taxes and will show the tax separately on our invoices. We will issue a tax invoice complying with the GST law.
6.6 Unless the Proposal says otherwise, we will not charge you separately for third party expenses we incur in providing the Services, such as travel and accommodation expenses.
7. PRIVACY
7.1 If you give us access to personal data as part of us providing the Software and Services, then we will collect, use and protect that data according to our then-current Privacy Policy (available at https://fyb.com.au/privacy); and according to any applicable privacy or data protection laws.
7.2 Customer Data: Customer data remains under the control of the Customer. FYB will only access or process Customer data to the extent reasonably necessary to provide the Software or Services.
7.3 We will only use your personal data for the purposes of providing Software and Services to you. We will not transfer your personal data outside Australia without your prior consent. We will take commercially reasonable steps to ensure that your personal data which we have control over, is protected from unauthorised use or disclosure.
8. INTELLECTUAL PROPERTY
8.1 You acknowledge that FYB Software is our Intellectual Property, and that Third Party Software is the Intellectual Property of the relevant Vendor. We acknowledge that you retain ownership of your data that you process using the Software.
8.2 We own Intellectual Property Rights in any materials that we create while providing our Services to you, including customisations, documentation, reports or other deliverables. We grant you a non-exclusive, royalty-free licence to use, copy and modify those materials to the extent needed for you to use the Software and get the benefit of the Services (and subject to the confidentiality terms in clause 8).
9. CONFIDENTIALITY
9.1 Where one party (in this clause, recipient) receives Confidential Information from the other party (discloser), recipient must: (a) hold the discloser’s Confidential Information in strict confidence, and apply at least the standard of care used by the recipient in protecting its own Confidential Information, but not less than a reasonable standard of care; (b) not disclose such Confidential Information to any third party, except as permitted under this Contract; (c) not use any Confidential Information of the discloser except as reasonably required to exercise its rights or perform its obligations under a Contract between us; (d) immediately notify discloser of any potential, suspected or actual unauthorised use, copying or disclosure of its Confidential Information; and (e) cause its employees, subcontractors, agents and, if permitted, related companies, who require FYB Engagement Terms Page | 4 access to such Confidential Information to abide by such obligations.
9.2 Recipient may use or disclose the Confidential Information to the extent necessary to comply with any law or the requirements of a regulatory body (including a stock exchange), or to obtain professional legal or accounting advice, or for use in legal proceedings regarding a Contract.
9.3 Clause 9.1 does not apply to Confidential Information which recipient can prove: (a) is in or becomes part of the public domain other than through breach of an obligation of confidence; (b) was known to recipient at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence; (c) was independently developed by recipient; or (d) is acquired from a third party who was entitled to disclose it.
9.4 The obligations in this clause 9 continue to apply after a Contract ends.
10. WARRANTIES
10.1 We warrant that for so long as you pay the annual subscription Charges for FYB Support Membership: (a) the FYB Software will perform substantially in accordance with the documentation for that Software as provided by us; and (b) we will pass on to you the benefit of any warranties for Third Party Software as given by the Vendor (where you don’t already have the benefit of those warranties directly from the Vendor).
10.2 If the Software fails to comply with this warranty, you agree to promptly notify us in writing of any alleged defects. We will have 30 days from receipt of such notice or an additional period of time as reasonably agreed to by both of us to correct such defects in accordance with our support processes. If we are unable to correct such defects within this time, you may elect to terminate your licence to that Software and receive a refund of all Charges you previously paid for such Software.
10.3 We warrant that our Services will be provided: (a) promptly, carefully, exercising all due care, skill and judgement, in an efficient and professional manner and in accordance with generally accepted professional and business practices; and (b) using appropriately trained and skilled personnel. If the Services fail to comply with this warranty, you agree to promptly notify us in writing of any alleged defects. Upon such notice, we will promptly re-perform any such Services in accordance with this Contract.
11. IP INFRINGEMENT CLAIMS
11.1 We will indemnify you from: (a) all damages, costs, and legal fees finally awarded against you with respect to an Infringement Claim; (b) all out-of-pocket costs (including reasonable legal fees) reasonably incurred by you in connection with the defence of an Infringement Claim (other than legal costs incurred without our consent after we have accepted defence of such claim); and (c) all amounts that we agreed to pay to any third party (or which you agreed to pay, with our consent) to settle an Infringement Claim. We will not be responsible for alleged infringement that is due to the combination of FYB Software with goods or services provided by third parties, or use of the FYB Software contrary to the terms of this Contract or our licence terms.
11.2 If an Infringement Claim arises, you agree: (a) to give us prompt written notice of the claim; (b) to give us control over the defence and settlement of the claim (as long as the settlement does not require you to pay anything); (c) to give us reasonable help (if we ask for it) with the defence and settlement of the claim; and (d) not to make any admission of liability about the claim.
11.3 If you are prohibited from using the FYB Software because of an Infringement Claim covered by our indemnity, then we will, at our expense and option, either: (a) obtain for you the right to use the allegedly infringing portions of the FYB Software; (b) modify the allegedly infringing portions of the FYB Software so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the FYB Software with non-infringing items of substantially similar functionality.
11.4 If we determine that none of these remedies is commercially reasonable, then either party may terminate the Contract, and in such case, we will provide a prorated refund to you for any prepaid Charges received by us for the relevant FYB Software.
11.5 The remedy set out in this clause 11 is your sole and exclusive remedy for any actual or alleged infringement by the FYB Software or related documents of any third-party Intellectual Property Rights. Our obligations in this clause 11 are subject to the exclusion of indirect losses in clause 12.2(a), but not the cap on damages in clause 12.2(b).
12. LIABILITY
12.1 You acknowledge that the warranties in these general terms and a Proposal (or in our Software licence agreement) are the only warranties we give, and (to the extent allowed by law) we disclaim all other warranties, express or implied, about the Software or Services, including any warranty of merchantability, fitness for a particular purpose, accuracy or reliability. We do not warrant that the Software or Services will operate error-free or that we will be able to correct all Software errors. We will not be liable for any claims or damages caused by the unauthorized use of the Software or acts of abuse or misuse by customer or Users. We will also not be liable for any loss or damage in connection with or arising out of the interruption or loss of use of the Software or the loss or corruption of data or files processed or stored by the Software.
12.2 Subject to clause 12.3, in respect of liability arising directly or indirectly under or in connection with a Contract or the performance or non-performance of a Contract and whether arising under any indemnity, FYB Engagement Terms Page | 5 statute, in tort (for negligence or otherwise), or on any other basis in law or equity: (a) Each party excludes all liability for any loss of product, loss of data, loss of revenue, loss of profit, loss of or damage to reputation, loss of anticipated savings or benefits, or any indirect, special or punitive loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against the other party;(b) FYB’s aggregate liability for any and all claims is capped at the greater of: $30,000 or 100% of the Charges paid under the relevant Contract.
12.3 The limitations in clause 12.2 do not apply to: interest due by any party for late payments; personal injury or tangible property damage caused by negligence; losses relating to fraud or wilful misconduct; or where statute does not allow liability to be limited.
12.4 Each party’s liability shall be reduced proportionately to the extent that the other party’s acts or omissions causes or contributes to, directly or indirectly, the loss or damage for which the first party is liable.
12.5 Each party will not be liable for, or be considered to be in breach of or default under a Contract (except an obligation to pay money) on account of, any delay or failure to perform as required by the Contract a result of any cause or condition beyond that party’s reasonable control.
13. TERM & TERMINATION
13.1 These general terms continue to apply for as long as we supply any Software or Services to you.
13.2 The starting date, initial term, renewal period/s and end date (if applicable) for each Contract are set out in the relevant Proposal. Unless the Proposal provides otherwise, after the initial term you may terminate Contract for convenience, however there is no refund of pre-paid Charges.
13.3 Either party may terminate a Contract if the other party: (a) breaches the Contract and does not remedy the breach within two weeks of written notice; (b) breaches any term of the Contract which cannot be remedied (including a breach of confidentiality or Intellectual Property Rights); or (c) is unable to pay its debts or becomes subject to an event of insolvency (including having an administrator, receiver or liquidator appointed).
13.4 When a Contract is terminated or expires: (a) your licence to use the Software ends; (b) Each party must immediately return (or certify that it has destroyed) all of the other party’s Confidential Information, except for any information which the recipient needs to retain in order to perform any ongoing obligation under another Contract (and any archive or back-up copies, subject to ongoing confidentiality restrictions); (c) Any clause which by its terms is intended to survive the expiration or termination will do so, including clauses 8, 9, 12, 13 and 14.
14. GENERAL
14.1 The parties are independent contractors, not employees, agents, partners, franchisees, or representatives of each other. Each party is not authorized to, and will not attempt to, create or assume any obligation or liability, express or implied, in the name or otherwise on behalf of the other party.
14.2 Under some circumstances we may subcontract any part of the Services to a suitably qualified and experienced, Australian based subcontractor. We remain responsible for the performance of the Services and for the acts and omissions of our subcontractors as if they were our own employees. We will ensure that any subcontractor who has access to your Confidential Information (or personal data) is bound by obligations of confidentiality (and privacy/data protection) that are no less protective than those in this Contract.
14.3 These general terms are properly executed if each party executes an identical document, which may be by electronic signature. A Contract may only be varied by both parties agreeing in writing. A waiver by a party is only effective if it is in writing.
14.4 Words like including, for example, such as or similar expressions are to be interpreted as meaning including, without limitation. If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way.
14.5 We may assign a Contract as part of any corporate reorganization or sale of our assets or business, provided: (a) the assignee agrees in writing to assume all our obligations under the Contract, and (b) we give you written notice of the assignment. 14.6 All Contracts are governed by the laws of Australia wide. Each party submits to the non-exclusive jurisdiction of courts with jurisdiction there.
