Chintaro Terms & Conditions
Last updated on: 14 January 2019
Issued by: MDB Consulting Pty Ltd (MDB) - ABN 60 070 751 094
Payment of renewal invoice assumes the Licencee’s acceptance of these Terms & Conditions.
A) The Licensor has the right to license the Software and the Materials.
B) The Licensee wishes to use the Software and the Materials.
C) The Licensor has agreed to license the Software and the Materials to the Licensee for the Permitted Purpose and the Licensee accepts the licence on the following terms and conditions.
The parties agree:
1.1 The Licensor grants non-exclusive, non-transferable, revocable licence to the Licensee to Use the Software and Materials for the Permitted Purpose.
1.2 The Licensee may not assign the Licence.
1.3 The Licensee may not sublicense the Licence. The Licensee is not permitted to adapt/modify the code.
1.4 The Licensee is not permitted to reverse engineer, reverse assemble or reverse compile or otherwise endeavour to obtain the source code from the object code.
1.5 The Licensee is limited to the number of concurrent user licences for which it is invoiced. If the Licensee wishes to use the Software over this limit, the Licensee agrees to seek the Licensor’s permission in writing and the Licensor reserves the right to charge an additional Licence fee in line with current pricing. The Licensor will issue the Licensee with a tax invoice for any additional licence(s) at a pro-rata rate.
1.6 The Licensee may not violate any applicable laws, rules or regulations in connection with its use of the software.
1.7 The Licensee may only use the Software on a computer that it owns or controls and as permitted by the Microsoft Services Agreement and, where applicable, the Parallels End User Licence Agreement.
1.8 The Licensee may not use the Software to send automated queries to any website or to send any unsolicited commercial email.
1.9 The Licensee may not use the Software for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by MDB.
1.10 The Licensee may not use any proprietary information or interfaces of MDB or other intellectual property of MDB in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Software.
1.11 The Licensee is entitled to operate a Test, and/or Training version of the Software and any users connected to these do not require separate licences. This access is granted on the condition that the Licensee is not to use the Software in this format to conduct business.
1.12 With permission from the Licensor, the Licensee may run their business across multiple central databases, each with a separate data set. In such instances, the total number of licences connected to any of the databases at a given time must not exceed the number of licences purchased by the Licensee.
2. Term of Licence
2.1 The parties agree that the Licence is for a period of one (1) year unless terminated by either party as set out in these Terms & Conditions.
3. Support Services
3.1 The Licensor will provide assistance to ensure that the Software is installed and functioning correctly. It is the Licensee’s responsibility to ensure that the Software has been installed in accordance with instructions provided by the Licensor as well as in line with the Licensee’s local information technology specifications.
3.2 The Licensor will ensure that the Software works correctly as designed and will act upon any reported instance of the Software not working as expected, by working with the Licensee to determine the cause and by applying any data or software fixes as necessary.
3.3 The Licensor will grant the Licensee access to its online Learning Management System which is an online, automated training course covering the main functions of the Software.
3.4 The Licensor will grant the Licensee access to the Software’s online knowledge base which provides instructions relating to the software’s use, functions and common troubleshooting.
3.5 The Licensor grants the Licensee access to a web-based helpdesk system, allowing Licensees to report issues and request help for the duration of the contract. The Licensor provides telephone helpdesk support in Australia and New Zealand during the hours of 8:00am to 5:00pm Australian Eastern Standard Time or Australian Eastern Daylight Time (whichever is current in Victoria, Australia at the time). When unattended, Licensees may also leave voice messages. The Licensor will respond to helpdesk tickets with an active response based on the categorisations outlined in Clause 4.
4. Service Response
4.1 Where a problem with the Software is reported by the Licensee, the Licensor will endeavour to actively address the incident as follows:
4.1.1 Urgent - Where the Licensee’s version has failed resulting in users being unable to use the Software, the Licensor will prioritise the incident above all non-critical incidents and actively address it until it is resolved.
4.1.2 High Priority Incident - Where the Licensee’s version has partially failed with the result that users are unable to use one or several components of the Software, the Licensor will prioritise the incident and actively address the incident until solved.
4.1.3 Medium Priority Incident - Where the Licensee’s version has a bug or error that requires a workaround by the users, the Licensee will provide a fix as soon as it is reasonably possible.
4.1.4 Low Priority Incident - Where the Licensee’s users are still able to continue using the Software and may only be limited by their own lack of knowledge, the Licensee will prioritise and address the issue as soon as is reasonably possible.
5. Data Conversion
5.1 The Licensor will convert legacy data from other database systems or sources and import that data into the Software where possible. The Licensor reserves the right to decline provision of a data conversion where the data supplied is not appropriate. Data Conversion services are quoted prior to commencement and are based on the estimated level of effort and the Licensor’s current daily consulting rate.
6.1 The Licensee will pay the Licensor the fee stipulated in the issued Tax Invoice.
6.2 The Licensee will pay the Licensor for any travel costs and expenses which may result from required travel.
6.3 The Licensee is not obliged to pay any fee due unless it has received a Tax Invoice from the Licensor.
6.4 If the Licensor proposes to implement any increase in fees, it must provide the Licensee with notice in writing (including electronic mail) setting out the details of such increases and the proposed date those increases will apply, at least 30 days prior to implementing such increases.
6.5 The Licensee has the right to negotiate the increases with the Licensor.
6.6 In the event the fee increases proposed by the Licensor are unacceptable to the Licensee, and the parties are unable to otherwise negotiate, the Licensee may terminate these Terms & Conditions by providing 30 days’ notice in writing.
7. Intellectual Property
7.1 The Licensor retains ownership of all intellectual property presented in software, reports, training materials and other documents brought to and developed during the course of supporting the Licensee. Disclosure to a third party is prohibited without permission.
7.2 The Licensee must not alter, remove or obscure any trade mark or copyright symbol or legend or other proprietary mark on the Software and the Materials.
8. Confidential Information
8.1 The Licensee acknowledges and agrees that the Software and the Materials contain Confidential Information belonging to the Licensor.
8.2 The Licensee agrees to disclose the Software and Materials only to its employees and contractors who need to access such information so that the Licensee can exercise its rights and obligations under these Terms & Conditions.
9. Licensor Representations and Warranties
9.1 The Licensor represents and warrants that it has the right to license the Software and the Materials to the Licensee.
9.2 The Licensee’s Use of the Software and the Materials will not infringe the rights including Intellectual Property Rights of any third party.
10. Licensee Warranties, Obligations and Acknowledgements
10.1 The Licensee warrants that it has not relied upon any representation made by the Licensor other than as set out in these Terms & Conditions.
10.2 The Licensee is not permitted to sell, charge, mortgage or otherwise encumber the Software and/or the Materials in any way.
10.3 The Licensee is solely responsible for the use, supervision, management and control of the Software and the Materials.
10.4 The Licensee will ensure that the Software and Materials are at all times protected from access, use or misuse and damage and destruction by any person not authorised by either the Licensor or the Licensee, and the Licensee will notify the Licensor immediately if it becomes aware of any unauthorised use of the Software and/or Materials.
10.5 The Licensee acknowledges that, subject to Clause 1, it has no Intellectual Property Rights in the Software and/or the Materials.
10.6 The Licensee acknowledges that the Licensor gives no guarantee as to the accuracy or completeness of the Software and the Materials or that they are free from error.
10.7 The Licensee acknowledges and agrees that the Software is provided on an “as is” and “as available” basis, and that the licensee’s use of or reliance upon the Software and any third-party content and services access thereby is at the Licensee’s sole risk and discretion. MDB hereby disclaims any and all representations, warranties and guarantees regarding the Software and third-party content and services, whether express, implied or statutory, and including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
10.8 Should a Licensee require a customisation that will have no benefit to other Licensees, the Licensor may agree to provide changes to the Software at cost to the Licensee. The Licensor will provide a written quotation to the Licensee, and on acceptance, will provide the requested modifications.
11. Limitation of Liability
11.1 To the fullest extent permitted by law, the Licensor expressly disclaims all implied warranties and conditions including without limitation implied warranties as to merchantability and fitness for purpose of the Software and Materials.
11.2 To the extent that any liability of the Licensor under the Competition and Consumer Act 2010 (Cth) (Australia) or Fair Trading Act 1986 (New Zealand) and cannot be excluded, the Licensor’s liability is limited to replacing the Software and/or Materials.
11.3 To the fullest extent permitted by law, and where the Licensor has exercised duty of care and the loss is not attributable, by an act or omission, by the Licensor, the Licensor excludes all liability for indirect and consequential loss including without limitation the loss or corruption of the Software, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind arising from these Terms & Conditions.
12. Source Code in Escrow
12.1 The parties agree that source code is not required to be placed in escrow.
13.1 Licences may be renewed for subsequent annual terms.
13.2 The Licensor will send the Licensee a renewal invoice at least one (1) month prior to the renewal date.
13.3 Price increases are applied from the commencement of the renewal date for the duration of the agreed term of the renewal.
14.1 If the Licensee does not require renewal of the agreed number of licences for a further annual term they shall provide at least thirty (30) days’ notice in writing before the expiry. At the end of the licence period, all of the Software files must be removed from User server (if applicable) and each individual computer on which the Software is installed, by the Licensee, at the Licensee’s own cost.
14.2 Where the Licensee fails to perform any of its obligations set out in these Terms & Conditions, the Licensor reserves the right to immediately terminate the Licence with Notice to the Licensee.
14.3 Subject to Clause 14.5, on termination the parties agree that all rights granted to the Licensee under this Agreement will cease immediately and the Licensee will remove the Software completely from the User server (if applicable) and each individual computer on which the Software is installed.
14.4 The Licensee will provide Notice to the Licensor stating that the Software has been removed from the User server (if applicable) and all computers on which the Software has been installed.
14.5 Following termination, the parties agree that the provisions set out in 9 (Licensor Representations and Warranties), 10 (Licensee Warranties, Obligations and Acknowledgements) and 11 (Limitation of Liability) will continue to be binding.
14.6 If the Licensee terminates the agreement, they shall not be entitled to a refund of any part of their annual fee.
15. Dispute Resolution
15.1 In the event of a dispute arising between the parties in respect of any right or obligation under this Licence, each party covenants with the other in good faith to take all steps necessary to attempt to resolve the dispute.
15.2 In the event that the parties are unable between themselves to resolve a dispute within a reasonable period having regard to the nature of the Licence and the dispute, then either party may apply to their local State/Territory Alternative Dispute Resolution centre for resolution of the dispute. At the time of the dispute referral, both the Licensee and Licensor will discuss and agree on the treatment of travel costs required for the arbitration or mediation.
16. General Provisions
16.1 (Law and Jurisdiction) The parties submit to the non-exclusive jurisdiction of the courts of Australia and any courts that may hear appeals from those courts in respect of any proceedings in connection with this contract.
16.2 (Relationship) Nothing in these Terms & Conditions will constitute or be deemed to constitute a partnership, joint venture or agency between the parties.
16.3 (Entire Terms & Conditions) These Terms & Conditions constitute the entirety of these Terms & Conditions and all understandings, prior representations, arrangements or commitments that are not contained in these Terms & Conditions have no effect whatsoever and do not bind the parties.
16.4 (Waiver): No waiver of any right or remedy will be effective unless in writing and shall not operate as a waiver of that right or remedy or any other right or remedy on a future occasion.
16.5 (Implied Terms): Any implied term under law that can be excluded is hereby expressly excluded and no term is to be implied as being a term of these Terms & Conditions unless by law it cannot be excluded.
17. Invoicing and Payments
17.1 The Licensor will issue invoices referencing a valid purchase order. Undisputed invoice amounts must be paid by the Licensee within 14 days of date of receipt of an invoice by the Licensee.
18.1 These Terms & Conditions may be amended or varied by the Licensor at any time providing at least 30 days’ notice in writing (including electronic mail) to the Licensee.
“Confidential Information” means all information in whatsoever form that is:
- marked or identified as “Confidential”, “Secret”, “Not to be Disclosed” or “Private”;
- is designated, described or referred to by the discloser in any document or correspondence as confidential, secret or private or not to be disclosed;
- the receiving party knows or ought to know is confidential;
- but does not include any information which prior to the date of these Terms & Conditions was lawfully in the public domain or which the discloser has published, circulated or announced publicly or was developed by the receiving party independently of the disclosing party.
"Intellectual Property Rights” means all rights in copyright, circuit layout, designs, trademarks, patents and all other rights in intellectual property as defined in Article 2 of the World Intellectual Property Organisation (WIPO) Convention whether registrable, registered, patentable or not.
“Licence” means the software licence granted by the Licensor to the Licensee in Clause 1.
“Materials” means the documentation provided by the Licensor to the Licensee including the operating manuals and other materials set out in Part A of the Schedule relating to the Software and includes updates to those materials.
“Permitted Purpose” means the purpose set out in Part B of the Schedule.
“Software” means the computer program/s provided by the Licensor set out in Part C of the Schedule and includes any updates provided by the Licensor during the term of these Terms & Conditions.
“Tax Invoice” means an invoice that is GST compliant.
“Use” means use/load, run.
The schedule of fees will be updated annually before 1 July and will be available on the Chintaro Knowledge Base.
All clients based in New Zealand will be charged in Australian dollars ($AUD).
Part A – Materials
All available electronically.
Part B – Permitted Purpose
For use by the Licensee only.
Part C – Software
Chintaro, which is a product of MDB Consulting Pty. Ltd.; and Upgrades. Chintaro consists of a central Database and one or more Client(s). Each person in the organisation that wishes to use Chintaro will do so using the Chintaro client software, which connects to the central database.
The Chintaro licence expires after one calendar year unless specified otherwise in these Terms & Conditions. Payment for licences must be made on or by the due date of the issued Tax Invoice.
Chintaro consultant rates are charged at a daily rate.
The cost of training is dependent upon a number of variables including the size of the cohort requiring training, the availability of suitable training resources (if training to be conducted in person) as well as the breadth and depth of training required to suit the needs of the Licensee.
The cost of training will be determined after consultation with the Licensee implementation lead.
All training delivered in person outside of the Melbourne CBD, Victoria, will incur additional travel costs.
Travel expenses, with the exception of per diems, will be charged at cost and include, but are not limited to:
- Flights (if applicable)
- Accommodation (if applicable)
- Taxi fares (if applicable)
- Parking (if applicable)
- Mileage (if applicable)
- Additional per diem (to cover meals and other incidentals)
Data Conversion Packages
|Data Conversion Type ||Details|
|Template Conversion||An Excel template is provided to load the|
|Basic Conversion||The following data from a Third-Party system is extracted and then uploaded into Chintaro:|
|The following data from a Third-Party system is extracted and then uploaded into Chintaro:|
|Comprehensive Conversion||The following data from a Third-Party system is extracted and then uploaded into Chintaro:|