Contract and terms of business with Tower Systems International (Aust.) Pty Ltd ABN 61 007 009 752
This Contract documents the Terms and Conditions of contract between any business or individual doing business with Tower Systems including, but not limited to, renting Tower Systems software, purchasing Tower Systems software, using Tower Systems software support, purchasing any professional services from Tower Systems, buying consumable items from Tower Systems, buying hardware from Tower Systems.
This Contract outlines overall terms as well as terms specific to:
- TOWER SYSTEMS SOFTWARE.
- TOWER SYSTEMS SUPPORT.
- TOWER SYSTEMS SERVICES.
- TOWER SYSTEMS CONSUMABLES
- TOWER SYSTEMS HARDWARE.
1) THE CONTRACT. The Contract between Tower Systems International (Aust.) Pty. Ltd. (Tower Systems) ABN 61 007 009 752 and the business named (the Client) is made up only of these terms and conditions, any priced quote and any documentation provided by Tower Systems to the Client prior to their making payment.
a) "Agreement" means these Terms.
b) "Access Fee" or "Subscription Fee" means the monthly fee (excluding or including any taxes and duties as noted with prices from time to time) payable.
c) "Client" or "Customer" refers to the contracting party or business agreeing to these terms and conditions by purchasing any Software, Support, Services, Consumables or Hardware from Tower Systems by any means.
d) "Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
e) "Consumables" and "Tower Systems Consumables" includes consumables sold by Tower Systems for use with the Tower Systems software: labels, printer ribbons.
f) "Customer Service Manager" is an official senior customer contact point within Tower Systems: firstname.lastname@example.org.
g) "Data" means any data supplied by Client or their representatives or entered by Client or their representatives into software from Tower Systems and / or this website.
h) "Hardware" or "Tower Systems Hardware" means computer hardware purchased from Tower Systems.
i) "Intellectual Property Right" means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
j) "Service" or "Services" of "Tower Systems Services" means services purchased or accessed from Tower Systems: training, data conversion, computer setup.
k) "Software" or "Tower Systems Software" means software developed and provided by Tower Systems to the Client.
l) "Support" or "Tower Systems Support" means the provision of advice and assistance in the use of the Tower Systems Software.
m) "Website" means the Internet site at the domain www.towersystems.com.au or any other website operated by Tower Systems.
n) "Tower" and "Tower Systems" and "Company" mean Tower Systems International (Aust.) Pty Ltd and all current and future global subsidiaries of Tower.
o) "Subscriber" and "customer" mean the person or entity who registers to use the Service.
p) "You" and "Your" means the Subscriber or Customer.
q) "Software Support" and "Support" mean support provided by Tower Systems specifically in the use of software it has provided. Including but not limited to, online Knowledge Base access, Help Desk access, Web Site access, and Software updates.
3) Changes to these terms must be approved in writing by a Director of Tower Systems prior to acceptance.
4) Authority. Any person who provides payment details for the provision of any product or service provided by Tower Systems represents that they have authority to enter into the Contract on behalf of the Client business and accepts personal liability for terms and conditions contained herein.
5) Entire offer. Any written offer from Tower Systems and any digital terms advised via the Tower website represent the entire offer and may only be varied in writing signed by the parties.
6) Price. Any price noted by Tower Systems is for the product and / or service noted and no others.
7) Lease finance. Tower Systems itself does not offer or provide lease finance.
8) GENERAL TERMS AND CONDITIONS.
a) Tower Systems accepts no obligation to chase any payment. It is the obligation of the customer to settle any invoice or rental payment requirement on time.
b) Tower Systems reserves the right to levy a late payment fee for any payment that is late with such a fee to cover reasonable costs incurred by the company because of late payment.
c) Title for any goods supplied by Tower Systems does not pass to the Client until Tower Systems is paid in full. If the software is rented, title as such does not pass - rather, Tower Systems offers use of the software while rental is paid.
d) Cancellation, delay. Cancellation of the provision of any Services 7 days prior or less to an agreed supply date incurs a charge of 50% of the cost of the services which is agreed to be a genuine pre-estimate of the costs and loss suffered by Tower Systems consequent upon said cancellation.
e) Dispute. Any concerns whatsoever in relation to the provision of Software, Support, Services, Consumables, or Hardware by Tower Systems is to be put to the Customer Service Manager of Tower Systems in writing within 7 days of the Client becoming aware of any concern.
f) Change of ownership.
i) The Client shall notify the Company of any change of ownership using the form provided on the Company's website.
ii) Tower Systems shall approve any such change in ownership in regards to the software licenses.
iii) Following a notified and approved change of ownership, the new Client shall be required to rent the software from Tower Systems. No outright licenses will be transferred. If the new Client does not wish to rent the software, access to the software shall be permanently restricted.
iv) Following an approved change in ownership, the new Client shall be required to purchase training services from Tower Systems if Tower Systems determines that their training level is inadequate.
g) Means of contact. Tower Systems uses email as its prime form of communication contact:
i) Sales: email@example.com.
ii) Support: firstname.lastname@example.org.
iii) Customer Service Management: email@example.com.
iv) Accounts: firstname.lastname@example.org.
v) Mail address for the Company. This is the then noted Head Office found at the Tower Systems website www.towersystems.com.au. The current office address is 3A Lynch Street, Hawthorn, Victoria, 3122, Australia.
i) Waiver. If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
j) Delays. Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
k) Assignment. Tower Systems may assign novate, assign or otherwise transfer or deal with any of its rights benefits or obligations under the agreement without your consent and for this purpose, to the extent necessary, the client provides its consent including disclosing any information or documents concerning the agreement or the client to any person whom Tower Systems assigns or may assign its rights under the agreement. If this agreement is assigned or transferred to a person a reference to Tower Systems includes that person and consequently that person may exercise our rights pursuant to the assignment or transfer under this agreement.
l) Confidentiality. Unless the relevant party has the prior written consent of the other or unless required to do so by law:
(i) Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
(ii) Each party's obligations under this clause will survive termination of these Terms.
(iii) The provisions of clauses l.i and l.ii shall not apply to any information which:
(1) is or becomes public knowledge other than by a breach of this clause;
(2) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
(3)is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(4) is independently developed without access to the Confidential Information.
n) Intellectual Property. Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Tower.
o) Ownership of Data. Title to, and all Intellectual Property Rights in, the Data remain Your property. However, your access to the Data is contingent on payment of any fees as they fall due. You grant Tower permission to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
p) Backup of Data. You must maintain copies of all Data inputted into the Service.
9) WARRANTIES AND ACKNOWLEDGEMENTS
a) Tower does not warrant that the use of its Software or its Services will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, required third party websites, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Tower is not in any way responsible for any such interference or prevention of your access or use of the Software or Services.
b) It is your sole responsibility to determine if any Software or Services you access meet your needs of and are suitable for your business.
c) No warranties. Tower gives no warranty about the Software or Services. Tower does not warrant that the Software or Services will meet your requirements or that they will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title, and non-infringement.
10) LIMITATION OF LIABILITY
a) To the maximum extent permitted by law, Tower excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits, and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, Services or Software or any Tower Website.
b) If You suffer loss or damage because of Tower's negligence or failure to comply with these Terms, any claim by You against Tower arising from Tower's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Fees paid by You in the previous 12 months.
c) If You are not satisfied with the Software or Service, your sole and exclusive remedy is to terminate these Terms in accordance with Termination clause.
d) Governing Law. Access to any products or services from Tower Systems is provided explicitly subject to the laws of the State of Victoria in the Commonwealth of Australia and you acknowledge and submit to the exclusive legal jurisdiction of the courts of the State of Victoria.
e) The only legal venue for settling disputes. It is agreed between the parties that VCAT, the Victorian Civil Administrative Tribunal and its legal successor is the only legal forum to which any dispute between the parties may be put given that Tower Systems is headquartered in Victoria.
f) Severability. If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
g) Notices. Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Tower must be sent to or to any other email address notified by email to You by Tower. Notices to You will be sent to the email address which You provided to Tower.
11) TOWER SYSTEMS SOFTWARE.
a) Off the shelf software. Tower Systems software is “off the shelf software.” It is offered as is. Unless explicitly noted by the Customer in writing and agreed by Tower Systems in writing, no software changes are included or offered.
b) Suitability. It is the obligation of the Client to ensure the software meets their needs prior to entering this contract.
c) Software demonstrations. Unlimited live demonstrations of the software are available for its evaluation as to suitability and appropriateness prior to entering this contract.
d) Claims as to software functionality. Tower Systems warrants that the software it makes meets claims made by the company from time to time as to its functionality and performance.
e) Documentation. No data conversion is included unless explicitly noted and agreed between Tower Systems and the Client in advance of undertaking any Contract. No guarantee is offered as to what data will be converted. No guarantee is offered as to the quality of any data converted. Tower Systems reserves the right to levy a data conversion fee should data conversion work take more time than anticipated.
f) Data Conversion. Unlimited live demonstrations of the software are available for its evaluation as to suitability and appropriateness prior to entering this contract.
g) Software acquisition option. Rental and outright purchase options are offered by Tower Systems. It is your responsibility to determine the best option for your business.
h) Copyright. Tower Systems software, system design, screen layouts, data structures, report layouts, label layouts and other system outputs and report designs are protected by international copyright laws and are not to be reproduced in any form without written permission from a Director of Tower Systems. No Tower Systems materials including Software are to be provided to any other party without written permission of a Director of Tower Systems. Tower Systems software is not to be copied to any additional device without written permission of a Tower Systems Director.
i) Resale of software Tower Systems software is licensed to the specific Client, or the specific location noted on the contract. It may not be resold or used in another location whatsoever.
12) TOWER SYSTEMS HARDWARE.
a) Hardware standards. Non-Tower Systems supplied hardware must meet and be configured to Tower Systems’ specifications as contained in the company’s publicly accessible knowledge base article titled “Retailer Hardware Configuration” available at the time of installation.
b) Warranty. Hardware provided by Tower Systems comes with manufacturer’s return to base, or manufacturer’s on-site warranty. Each manufacturer’s on-site warranty has terms and conditions that are available from Tower Systems upon request.
c) Hardware setup.
i) Hardware purchased from Tower Systems is to be setup by the Customer according to Tower Systems published “Retailer Hardware Configuration” knowledgebase article. Tower Systems is not obligated to train the Customer in said hardware.
ii) Tower Systems is not obligated to setup and train on hardware not supplied by Tower.
d) Additional hardware. Additional parts required to connect anything to your own hardware is at your cost for time and materials.
13) TOWER SYSTEMS CONSUMABLES.
a) Tower Systems is not responsible for mistakes made by Clients in choosing Consumables.
b) Consumables sold by Tower Systems are sold for the specific hardware items noted for those items on the Tower Systems website.
c) Tower Systems does not accept any obligation for Consumables once they have been received by a Client and held in their possession for more than one business day.
14) TOWER SYSTEMS SUPPORT.
a) Provision of Tower Software Support is a prepaid only service.
b) Support includes for no additional cost:
i) Access to the Tower Systems help desk as per times promoted by the Company on its website and in its Client communications from time to time.
ii) Access to after-hours support for urgent computer system down calls.
iii) Access to the Tower Systems Knowledge Base through the Tower Systems website.
iv) Access to Tower Systems Software updates as released by the company from time to time.
v) Access to group training sessions from by Tower Systems from time to time.
c) Clients accessing the Tower Software through rental have access to all Support services for no additional cost.
d) Clients accessing the Tower Systems software through a paid outright arrangement have optional access to Tower Systems Support on the payment of a Support fee as advised by the Company from time to time.
i) Support coverage for Clients accessing the Software through an outright purchase arrangement is offered for periods of not less than one year, after the period noted on the order or contract has elapsed, regardless of payment method, unless agreed to by Tower Systems.
e) All Tower Systems Software locations owned by a customer (either directly or indirectly, wholly or in part) must be covered by support for the entire same period unless alternative arrangements are agreed by Tower Systems. Specifically, Clients may not take support for one business they own, or part own using the system and not another.
f) Time spent resolving a reported problem where the problem has been caused by incorrect or negligent use of the software or data problems caused by the Client may be billed at the discretion of Tower Systems.
g) Time spent resolving a reported problem where the problem has been caused by a virus or other software may be billed at the discretion of Tower Systems.
h) Tower Systems reserves the right to charge for after-hours access for problems deemed by Tower Systems to not be an emergency.
i) Each customer taking on Support coverage undertakes to ensure that each person seeking Support is well trained in the use of the Software. Tower Systems reserves the right to charge for calls resulting from a lack of knowledge of the system.
j) Tower Systems reserves the right to charge for training due to lack of user knowledge.
k) Assistance with hardware and/or software not provided by Tower Systems or hardware provided by Tower Systems that is out of its warranty period is not covered by Tower Systems Support and may be billed at the discretion of Tower Systems.
l) On site or in person help is not included in Support.
m) Tower Systems reserves the right to discontinue Support for older versions of the software.
n) Clients are required to use the Tower Systems Software on hardware acceptable to the standards laid down by the company and available from the company.
15) TOWER SYSTEMS SERVICES.
a) Tower Systems Services are for the provision of time-based services by representatives of Tower Systems.
b) Services are only available during regular Australian Eastern Standard Time office hours between Monday and Friday and excluding Public Holidays.
c) No warranty or guarantee is offered or provided in relation to what may be achieved from or expected from the provision of said Services.
d) Any decision by a Client to end the provision of services on any day earlier than planned does not obligate Tower Systems to keep or store for future use the time not used.
16) YOUR OBLIGATIONS.
a) Payment for Software, Support, Services, Consumables and Hardware is required in advance of these being provided.
b) Payment obligations: Software rental is required to be paid in advance of each rental period and failure to do so will result in access to the Software being denied as outlined in 19. Termination.
c) General obligations: You must only use the Tower Systems software website for your own lawful internal business purposes, in accordance with these Terms and any notice sent by Tower or Terms and Conditions posted on the Website.
d) Access Conditions. You must ensure that all usernames and passwords required to access the service are kept secure and confidential. You must immediately notify Tower of any unauthorised use of your passwords.
e) You must take all other actions that Tower deems necessary to maintain or enhance the security of Tower’s computing systems and networks and your access to the services. As a condition of these Terms, when accessing and using the Services, You must:
i) not attempt to undermine the security or integrity of Tower computing systems or networks to which you have access;
ii) not use, or misuse, the Services in any way which may impair the functionality of the Services or impair the ability of any other user to use the Services or Website;
iii) not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
iv) not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
v) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary.
f) Usage Limitations: Use of the Service may be subject to limitations. Any such limitations will be advised.
g) Indemnity. You indemnify Tower against all claims, costs, damage, and loss arising from your breach of any of these Terms or any obligation You may have to Tower, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
17) SERVICE COSTS AND PAYMENTS.
a) Except where specifically expressed, all prices quoted or that appear on the Tower Systems website and in Tower Systems printed materials are inclusive of Australian Goods and services Tax.
b) All prices are subject to change.
c)Software rental price changes will be notified to the email address supplied by you at time of signup, 30 days before the next billing is incurred.
d) You represent and warrant that if you are purchasing something from us that
i) Any credit information you supply is true and complete.
ii) Charges incurred by you will be honoured by your credit card company.
iii) All payments are in advance of services being offered. Failure to pay will result in services being suspended until such time as payment has been received.
18) THIRD PARTY SERVICES.
a) From time to time, we need to access third-party sites and or services to enable us to perform some aspects of Software and or Services offered. You accept and understand that we do not operate or control the products or services offered by these third-party sites. You agree that use of such sites is at your sole risk and is without warranties of any kind by us, expressed, implied or otherwise, including warranties of title, fitness for purpose, non-infringement. Under no circumstances are we liable for any damages arising from the transactions between you and these third-party sites or for any information appearing on merchant sites or any other site linked to our site.
a) If You terminate these Terms for any reason whatsoever:
i) You shall be liable to pay all relevant fees a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.
ii) You forfeit any and all amounts paid for unused periods of Service or Software access pre-paid.
b) Breach. It will constitute a breach of this Contract if You:
i) Fail to pay for Software, or Services in full by the relevant due date; or
ii) breach any of these Terms and do not remedy the breach within 7 days after receiving notice of the breach if the breach is capable of being remedied; or
iii) You or Your business become insolvent, or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
c) Upon Breach, Tower may take any or all the following actions, at its sole discretion:
i) Terminate this Agreement and Your use of Software, Services, and the Website;
ii) Suspend for any period, Your use of Software, Services, and the Website;
iii) Suspend or terminate access to all or any Data.
d) Accrued Rights: Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement, You will:
i)remain liable for any accrued charges and amounts which become due for payment before or after termination; and
ii) immediately cease to use the Services and the Website.
20) DIRECT DEBIT CLIENT SERVICE AGREEMENT.
a) Drawing arrangements:
i) Your Credit Card will be debited on every month based on the signup dates of the applicable service you are subscribing to.
ii) From time to time, we may alter the amount charged for the subscribed service. If such a change occurs, we will notify you in writing at least 14 days prior if we wish to vary the direct debit arrangement.
iii) We reserve the right to cancel your access to any Service or Software if a direct debit is unable to proceed for any reason.
iv) We will keep all information pertaining to your credit card private and confidential. We will only disclose information that we have about you:
1) to the extent specifically required by law; or
2) for the purposes of this agreement (including disclosing information in connection with any query or claim).
b) Your rights:
i) You may terminate your direct debit arrangement after any initial period, by giving written notice directly to us 7 days prior to the next direct debit.
ii) Where you consider that a drawing has been initiated incorrectly you may take the matter up directly with the Tower Systems International (Aust.) Pty. Ltd. accounts department.
c) Your responsibilities:
i) It is your responsibility to ensure that sufficient funds are available in the nominated account to meet a drawing on its due date.
ii) It is your responsibility to ensure that you are authorised to give us permission to deduct your monthly payment from your nominated card.
iii) It is your responsibility to advise us if there are any changes to your nominated credit card.
iv) It is your responsibility to arrange with us a suitable alternate payment method if you wish to cancel the Tower Advantage™ membership direct debit.