Entity Name
Intelligent Technology Solutions Pty Ltd (trading as Sharing Minds) shall be referred to in this document as SHARING MINDS.
Any organisation engaging SHARING MINDS shall be referred to in this document as the Client.
Terms and Conditions
These terms are governed by the laws of Queensland (QLD) and Australia. The terms and conditions contained herein supersede any previous terms and conditions.
SHARING MINDS reserves the right to change these terms and conditions at our discretion and without notice. A copy of our current terms and conditions is always displayed on our website. This legal disclaimer is in no way limited or altered by any other terms or conditions on this website.
Limited Liability
To the full extent permitted by law, and subject to the remainder of this clause, SHARING MINDS, its affiliates and their officers, directors, employees, agents and subcontractors shall not have any liability, obligation or responsibility, whether in contract, tort (including but not limited to negligence), under statute or on any other basis, for any indirect, incidental, consequential, special or exemplary damages, or damages for loss of profits, revenue, data or use, arising from their provision of products or services. The limitation of liability does not extend to willful damage and/or gross negligence to the extent this applies under statute.
Under the Competition and Consumer Act 2010 Act No. 51 of 1974 as amended (Cth) when implied conditions and warranties cannot be expressly excluded, SHARING MINDS limits its liabilities in the case of Services, to the supplying of the Services again, or the payment of the cost of having the Services supplied again at the discretion of SHARING MINDS. SHARING MINDS’ maximum aggregate liability for damages under or in relation to this Agreement or in tort (including negligence), under statute or otherwise shall not exceed the amount of the fees paid by Client to SHARING MINDS under this Agreement during the previous 12-month period in which such claim arises.
Confidentiality
Both SHARING MINDS and the Client must keep confidential all information provided by or in respect of the Client which is gained by access pursuant to any work order, support agreement or other engagement and which is not in the public domain.
Copyright
The Intellectual Property rights, copyright and company trade secrets of SHARING MINDS (conceived May 2008) as vested in all software products, upgrades, dual-media software, hard-copy or electronic manuals and documentation are vested in SHARING MINDS, which reserves the right to use the software or material, or any part of it in other applications and for its own use.
Intellectual Property (IP) Rights
Use of IP without permission or a license is infringement and is actionable under law. You may access the material on the sites only for your personal, non-commercial use. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our sites. You agree not to create any kind of derivative works from or exploit the content of our services or content provided to you, in any way.
Any use of items or expressly permitted by these Terms and Conditions is deemed a breach and may violate copyright, trademark and other laws.
Privacy Policy
You acknowledge that SHARING MINDS will handle any personal data relating to you that is provided to us or our Affiliates for the purpose of these Terms in accordance with the Privacy Policy.
As with these Terms and Conditions, SHARING MINDS Privacy Policy link can be located on our website at: www.sharingminds.com.au on our home page in the footer.
TIME AND MATERIALS Work
Unless specified otherwise in writing the Client/Partner authorises SHARING MINDS to undertake work on an hourly-rate basis. SHARING MINDS may provide an estimated time to complete this work. Such estimates are not binding, and all hours designated as performed will be charged at the rates set out or otherwise agreed. The minimum time chargeable for on-site work is 8 (eight) hours per person, per visit. The minimum time chargeable for off-site work is 4 (four) hour per person, per request.
Prepaid Work or monthly recurring retainer
This is where SHARING MINDS is engaged with Clients/Partners in pre-paying time in blocks, either as part of a single block of hours to be drawn down on over a maximum 6 (six) month period or a monthly agreed set of hours. Client/Partners at the time of purchase will define the type (single or monthly retainer), and if the blocks of hours are to be used for Support or Development. A block of hours cannot be used for both development and support. SHARING MINDS reserves the right to pause effort to be delivered under such an engagement if initial or ongoing payments are not made. Unused prepaid credit will expire at the end or the term, either 6 (six) months for a once-off purchase of hours or 12 (twelve) months for a retainer. Hours cannot be rolled into subsequent blocks of hours that are purchased. No refund will be made for unused prepaid credit. A minimum of 2 (two) hours per month will be charged for Account Upkeep and Project Administration.
Fixed Price Work
SHARING MINDS may agree to perform certain work or provide a software product for a fixed price in accordance with an agreed specification. In this case, the specification is binding, and additional or previously unspecified work will be to the Client's account. A 30 (thirty) percent payment is required prior to commencement, and the balance payable upon delivery of the software for User Acceptance Testing. SHARING MINDS conducts all development and testing in an environment with a default configuration. Unless stated otherwise, the following are excluded from any fixed price agreement: specification development, production deployment, third party component integration, data migration, network infrastructure or hardware services, graphic design including mock-ups. A minimum of 2 (two) hours per month will be charged for Account Upkeep and Project Administration on any non-utilised Block Hours and Fixed Price projects, each month.
Requests for Work
Work requested by the Client (including employees or representatives of the Client), in written, electronic, or verbal form, is deemed authorised by the Client. The Client may choose to work through a "Company-Champion." If so, the Client must inform SHARING MINDS of this decision in writing. After this advice, the Company Champion has sole authority to request billable work. All requests that the Company Champion is copied (cc'd) on are considered authorised.
Out of Hours Work
Unless agreed prior, where possible all work will be completed within standard business hours (between 8:00am – 5:00pm, business days), however should any project work, support services or unscheduled work be required outside of these times, standard SHARING MINDS overtime rates will apply. The estimated cost of overtime will be provided and must be approved by the Client in writing before commencement.
Delegated Administration
Any works including projects, hourly works or support work conducted within a Client’s Microsoft Azure or Microsoft Office 365 environment will require the granting of Delegated Administrator rights to SHARING MINDS. This ensures that all SHARING MINDS resources have adequate access to platforms, services, etc. as well as providing a full audit trail of system access to both SHARING MINDS and the Client.
Equipment/Hardware
SHARING MINDS is not liable for any equipment or hardware failures be it SHARING MINDS' equipment or hardware or that (equipment) provided by the Client or on the Client site.
Resources
SHARING MINDS reserves the right to utilise its network of subcontractors for non-contact activities and development tasks. SHARING MINDS further reserves the right to allocate the provision of services to its technology and service partners.
Change Management
In addition to service of all notices, the Client must provide a minimum of 48 (forty-eight) hours’ notice of any platform changes, updates, outages or expected impacts. These are expected to go through formal change management and require Notification and Acceptance by SHARING MINDS and the Client.
Change Management does not include content changes and migration services.
Training and Documentation
Training is charged in half day or full day sessions. Documentation, if required, is at additional cost. If documentation has not been specifically estimated or quoted, it will not be supplied. All custom documentation, including additions, deletions and amendments is charged to the Client's account.
Testing
The Client/Partner agrees that prior to a version being submitted to the Client/Partner, the SHARING MINDS developers may:
Perform automated testing with SHARING MINDS tools
Perform automated testing via Unit Tests
Perform an internal "Test Please" (aka "Alpha Testing" e.g. only that pages or forms load, not checking the business rules)
Then send a "Test Please" to the Client/Partner (aka "Acceptance Testing" to check the business rules)
If testing is not completed in allocated time of projects, this may invoke a formal variation, with additional charges or agreement all changes are accepted if not signed off in agreed time frame.
SHARING MINDS will not warrant any code within a Client/Partner’s Test, UAT or Production environment, where all three environments are not identical. Any fault/bug/error/etc within any of these will be rectified at the Client/Partner’s cost, even in the event of a fixed work agreement.
Support
Software will be supported either on an Hourly Basis Maintenance Support Agreement or on a Per Issue basis. A Per Issue basis will be charged at a ‘time and materials’ rate at SHARING MINDS full hourly rate (no discount) and at a minimum of 4 (four) hours per issue.
Warranty
A 30 day warranty begins upon delivery of any part of the solution for User Acceptance Testing (UAT), of any fixed price work. No warranty applies to work done on an hourly basis, or where the Client/Partner’s Dev/UAT/Prod environments are not identical, this includes bug fixing. SHARING MINDS also takes no responsibility for third party (including Microsoft) errors that impact the work delivered by SHARING MINDS.
To the maximum extent permitted by law, SHARING MINDS and its suppliers disclaim all other warranties, either express or implied, including, but not limited to, implied warranties or merchantability and fitness for a particular purpose, with regard to the software, the accompanying written materials, and any accompanying hardware. The Client/Partner may have the benefit of certain rights or remedies pursuant to the laws of the Commonwealth, State or Territories (including the Competition and Consumer Act 2010 and any superseding legislation). This Agreement does not exclude, restrict or modify any condition, warranty or liability, which is implied by the law where to do so is illegal or would render any provision of this Agreement void.
Viruses
While SHARING MINDS endeavours to have all its hardware virus-free, SHARING MINDS and the Client are expected to have current virus protection. SHARING MINDS is not liable for any accidental infection of Client hardware.
Bugs
A bug is a reproducible coding error that causes an unexpected defect, fault, flaw, or imperfection in a computer program. In other words, if any SHARING MINDS software does not perform as the developers intended, it is most likely a bug. Any unspecified feature or modification is not a bug and will be reviewed for addition to a future release at the developer's discretion. All bugs with a project may be reported within 30 days of project close for review and rectification at no cost. All bugs reported after 30 days have passed will be reviewed for cost.
Source Code Ownership
The Client is granted a nonexclusive, transferable, perpetual Australian right and license to use, deploy and modify the software within the Client's group of companies for the Client's own internal purposes. SHARING MINDS reserves the right to use generic code from other projects as part of the Client's project. SHARING MINDS reserves the right to use generic code from the Client's project in future projects. Some projects contain SHARING MINDS Framework code that is common to other projects. The Client has access to the source code of the SHARING MINDS Framework at the end of the development, royalty free.
Assumptions, Limitations and Conditions
Each SHARING MINDS proposal may include several assumptions, limitations or conditions. These are provided to meet specific outcomes of the works outlined within the proposal. Any specifics noted within assumptions, limitations or conditions in a SHARING MINDS proposal override any item noted within this document.
Uninvited Solicitation
Direct or uninvited solicitation of any SHARING MINDS employee by the Client is prohibited unless authorised in writing by SHARING MINDS. The Client warrants that should the Client solicit an employee, thereby breaching the prohibition, the Client will pay damages to SHARING MINDS of an amount proportionate to 21(twenty-one) percent +GST of the total remuneration package offered to the employee plus liquidated damages of 4 (four) weeks’ pay +GST of the total remuneration package.
Service of all Notices
Service of all notices shall be sufficient if delivered or sent by any form of email (preferred), facsimile, or post (standard, certified or registered) to either party's business address.
Cancellations Policy
By Client
If any scheduled job is cancelled by the Client after commencement, SHARING MINDS will charge for all hours consumed up to that point in time.
If an hourly job is cancelled by the Client, any prepaid work not fully completed will not be refunded; however, the remaining balance will be credited to the Client’s account for future utilisation.
If any fixed price job is cancelled by the Client, SHARING MINDS will retain the initial percent of prepaid value. Any further hours completed will be charged to the Client as a proportion of the quoted price based on hours completed to that point in time.
By SHARING MINDS
SHARING MINDS reserves the right to terminate any previously agreed project specification for fixed price work without prior notice. SHARING MINDS will charge on a pro-rata basis for any work completed.
SHARING MINDS reserves the right to terminate any previously purchased prepaid work blocks without prior notice. In this case, the Client will be refunded for hours not completed as a proportion of the prepaid blocks purchase value.
SHARING MINDS reserves the right to terminate any ongoing service contract including, but not limited to hosting and database updates, with 14 (fourteen) days’ notice. In this case, any paid unexecuted services will be refunded as proportion of the charged price based on percentage of specified project completed.
Credit Terms
SHARING MINDS reserves to the right to refuse or withdraw credit for any reason. In the event of credit being refused SHARING MINDS may agree to conduct work on a prepaid basis. If credit is offered, the Client agrees to keep within terms of 7 (seven) days and limit of AUD$20,000 (+GST). Client agrees that SHARING MINDS can stop work if either of these are exceeded.
SHARING MINDS reserves the right to take legal action to recover debt and/or withhold source code until invoices are paid in full. The Client has 14 (fourteen) days from date of receipt of an invoice to query invoice or timesheet. Client abrogates any right of reply after this time.
Any Fixed Price work will require an up-front 20 (twenty) percent payment on commencement, with the remainder paid on completion, within 7 (seven) days.
late payment fee
SHARING MINDS reserves the right to charge a late payment fee on all overdue accounts (including fees and disbursements) at a rate of $250 per month for each month an account is overdue. Overdue accounts are deemed to be those accounts that remain unpaid after 14 (fourteen) days from the Due Date of invoice for services or products provided by SHARING MINDS.
Credit Card Details
SHARING MINDS’ Payment platform complies with the Payment Card Industry Data Security Standard (PCI DSS). Our platform is a level 3 merchant and outsources credit card processing functions to PCI DSS-compliant level one service providers. Sharing Minds is compliant with PCI DSS v3.2, SAQ A.
Deadlines
SHARING MINDS may choose to estimate the completion date of a project, which precludes any issues, realised risks or changes to scope. A Preliminary Project Plan will be presented for the Client’s review and approval, with baselines updated in accordance with any documented deviations. While we will endeavour to meet all deadlines, we do not offer any guarantees, and SHARING MINDS is not liable for losses suffered due to a project being completed after the estimated completion date.
Force Majeure
SHARING MINDS are excused from performing our obligations to the extent we are prevented by circumstances beyond our reasonable control including, but not limited to, acts of God, pandemics, natural disasters, acts of war, riots and strikes.
Requests for Information
Any requests by SHARING MINDS for the provision of information are required to be satisfied by the close of the following business day. Should the requested information not be provided within this timeframe then any work will be rescheduled to a later date once the information is received.
Expenses and Travel
Any expenses will be priced separately to all business quotations and proposals unless otherwise stated.
SHARING MINDS’ On-Site Work is based on an 8 (eight) hour working day. Travel inside the Capital City Metropolitan area is not charged.
Where a SHARING MINDS resource is required to travel to site, unless otherwise agreed in writing, SHARING MINDS note that the first half-hour of travel is provided at no charge. Subsequent travel time is charged at the standard hourly rate door-to-door.
The Client shall organise and pay for ordinary expenses, such as hotel, airfare, taxis or transportation. Note: when booking airfares, all fares must be flexible where possible.
The Client shall provision AUD$80 (eighty) per diem, per person per day, if meals are not provided.
Goods and Services Tax ("GST")
All prices quoted, whether on an hourly basis or a fixed price basis, are exclusive of GST unless otherwise stated. In addition to the amounts quoted the Client must pay GST on those amounts (if applicable). This will increase the quoted price by 10 (ten) percent. GST is payable by the Client at the same time as the Client pays the SHARING MINDS invoice.
Indemnification
As the Client you agree to indemnify, defend and hold SHARING MINDS harmless from and against any and all claims, including but not limited to third party claims, damages, costs and liabilities, including reasonable attorneys’ fees arising out of, or in connection with your violation of these Terms and Conditions as well as any claims arising from any unauthorised use you may make of the services or information we provide.
Severability
Each of the above clauses is severable and is enforceable separately. If any portion of these Terms (one or more clauses) are deemed invalid or unenforceable, this does not affect the validity of the remainder of the terms which will remain in full force and effect.
novation
SHARING MINDS reserves the right to novate any agreement to a third party entity, in the event that SHARING MINDS and/or its Intellectual Property is in part, or whole, acquired by such third party. Clients/Partners will be notified in writing within 30 days of such an acquisition and subsequent novation. In such an event all obligations of SHARING MINDS will be transferred to the new entity on any open/current agreements.
Last updated June 2024