Confidentiality Notice: This document and the processes, procedures, concepts and comments contained herein are proprietary, including third-party proprietary rights. It may not be distributed to or read by anyone not authorised by Progressive Business Technologies.
1
Introduction
1.1At Progressive Business Technologies (PBT), we strive to build strong, long-term relationships with our clients. Our goal is to make a real difference to your business and to be your trusted advisor on technology and business systems.
1.2To make sure both sides have a clear understanding of how we work together, these Terms and Conditions of Service (Terms) set out the basis of our engagement. By signing a sales proposal, statement of work, support agreement, or other engagement document with us, or by confirming a written quote, you agree these Terms apply.
1.3These Terms operate together with any sales proposal, statement of work, support agreement, IT services agreement, or written quote (Engagement Document) signed or accepted by the Client. The Engagement Documents and these Terms together form the agreement between the parties (the Agreement). If anything in a signed Engagement Document conflicts with these Terms, the relevant terms within the Engagement Document will be applicable.
1.4By signing, you confirm that you have had the opportunity to obtain independent legal and commercial advice on these Terms.
1.5We may update these Terms from time to time as our services and the regulatory environment evolve. Updated Terms apply automatically to new Engagement Documents. For any change affecting an existing Engagement Document, we will let you know at least 30 days before it takes effect, and you may terminate the affected Engagement Document without penalty during that notice period if you do not accept the change. The current version is always available at www.pbt.net.au.
2
Definitions and Interpretation
2.1 Key Definitions
2.1In these Terms:
(a)ACL means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(b)Background IP means intellectual property owned, developed or licensed by a party prior to or independently of the engagement, including methodologies, frameworks, code libraries, configuration templates, scripts and tools.
(c)Client Data means data, content, files and information provided by, generated for, or processed on behalf of the Client.
(d)Confidential Information has the meaning given in clause 12.
(e)Deliverable means a tangible output specifically commissioned by the Client and identified as a deliverable in an Engagement Document.
(f)GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(g)Privacy Act means the Privacy Act 1988 (Cth) and includes the Australian Privacy Principles.
(h)Third Party Software means software products PBT resells, supports or implements but does not own, including (without limitation) Sage Intacct, Microsoft Dynamics 365 Business Central, Sybiz Vision and Visipay, Employment Hero and KeyPay, and Ostendo.
2.2 Interpretation
2.2Headings are for convenience and do not affect interpretation. References to legislation include subordinate instruments and amendments. The singular includes the plural and vice versa. Where the Client comprises more than one entity, their obligations are joint and several.
3
Support and Consulting Services
3.1Service rates. PBT provides services at the rates set out in the applicable Engagement Document. Where no rate is specified, PBT's then-current standard rates apply, available on request. PBT may review rates annually with at least 30 days' written notice. The Client's continued instruction of services after the effective date constitutes acceptance.
3.2Time billing. Ad hoc support is billed on a time and materials basis in 10-minute increments. Quoted, planned or project work is billed on a time and materials or fixed-price basis as agreed in the Engagement Document.
3.3After-hours services. Services performed Monday to Friday between 5:00 PM and 8:00 AM (based on location of the client), and on weekends and public holidays, are charged at 1.5 times the standard rate unless otherwise agreed.
3.4Support agreements. Clients of PBT's ERP & Finance Systems and HR & Payroll-related systems and services require a current support agreement. The support agreement sets out additional terms specific to support services, including any included support time. Support agreements are governed by these Terms.
3.5Service delivery. Services may be delivered by phone, remote access, or onsite, at PBT's reasonable election unless the Engagement Document specifies otherwise.
3.6Chargeable activity. Chargeable time includes time spent communicating with the Client, recording case details and resolutions, liaising with software vendors, reproducing or investigating issues in test instances, and reviewing data necessary to resolve a case. The Client acknowledges that resolution time often exceeds direct interaction time.
3.7Invoice queries. The Client must raise any dispute regarding an invoice in writing within 30 days of receipt of the invoice. After this period, the invoice is final and payable in full, except for amounts disputed in good faith and in writing within that period.
3.8Authorised reseller status. Unless stated otherwise, PBT does not own the software it supports and acts as an independent reseller and authorised partner of the relevant vendors.
3.9Software defects. PBT does not have access to modify Third Party Software source code and cannot fix defects within vendor software. PBT will troubleshoot, identify potential workarounds, and escalate to the vendor. Time spent investigating and working on solutions is chargeable. Final resolution timelines depend on the vendor's processes.
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Software Sales
4.1Suitability. Where appropriate, PBT will demonstrate products and answer Client questions before sale. Detailed solution design typically occurs as part of project services after sale. The Client acknowledges that it has gained sufficient information to satisfy itself as to the suitability of any product before purchase.
4.2Acceptance. A signed sales proposal, signed Engagement Document, or written confirmation in response to an emailed quote (including by reply email) constitutes acceptance and creates a binding obligation to pay the associated charges on the agreed terms.
4.3Cancellation and supplier costs. Once ordered, software products may not be returned, and orders may not be cancelled, without PBT's prior written approval (granted at PBT's discretion). The Client is liable for any unavoidable charges, restocking fees, non-refundable licence fees, or other costs imposed on PBT by its suppliers as a direct result of the Client's order or cancellation, on production of reasonable evidence of those costs.
4.4Subscriptions. Software is often supplied on a subscription basis for a committed term. The Client must pay for the full term regardless of actual usage. Discontinuing PBT's services does not relieve the Client of subscription payment obligations.
4.5Vendor licence terms and warranties. Use of Third Party Software is governed by the licence terms of the relevant vendor, which include the vendor's warranties and limitations of liability. These are available from the vendor or on request. PBT does not give any warranty as to the operation, performance, or fitness for purpose of Third Party Software, beyond what is required by non-excludable law.
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Hardware Sales
5.1PBT supplies hardware products (computers, servers, networking equipment and accessories) subject to availability and supplier lead times.
5.2Hardware warranties are those provided by the manufacturer. PBT gives no separate warranty.
5.3Hardware invoices are due within 7 days of delivery. Externally financed orders require approval documents prior to processing.
5.4PBT is not liable for delays caused by shipping providers or manufacturers.
5.5Confirmed orders may not be cancelled or modified without PBT's written approval. The Client is liable for cancellation or restocking fees imposed by suppliers, on production of reasonable evidence.
5.6Hardware defects must be claimed against the manufacturer under their warranty. PBT will reasonably assist the Client in raising and pursuing such claims.
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Software Implementation Services
6.1 Estimates
6.1Estimates. Unless an Engagement Document expressly states a fixed price, project services for software implementations are estimates only. Actual services, costs and timelines may vary, sometimes materially, including due to:
(a)decisions made during the project regarding allocation of tasks;
(b)changes to the planned solution as new information emerges;
(c)issues with existing client data, reconciliations, or integrations;
(d)availability and engagement of Client resources;
(e)third-party vendor delays or product limitations; and
(f)circumstances not reasonably foreseeable when the Engagement Document was signed.
6.2Change control. Where a change becomes necessary or is requested, the parties will document it in a written change request describing the change and its impact on scope, schedule and cost. A change takes effect only when signed or confirmed in writing by both parties (including by email). PBT may decline to proceed with work outside the agreed scope until a change request is approved.
6.3Acceptance testing. Where the Engagement Document provides for acceptance testing, the Client will perform testing within the agreed window. Defects materially affecting the documented functionality of a Deliverable must be notified in writing within the testing window. The Deliverable is deemed accepted if the Client uses it in production, fails to notify defects within the testing window, or expressly accepts it. Minor defects do not prevent acceptance and will be addressed under standard support.
6.4Client responsibilities. The Client will (a) provide timely access to people, data, systems and decision-makers; (b) appoint a project sponsor and project manager; (c) make timely decisions; (d) maintain backups; and (e) ensure sufficient internal resourcing. PBT is not responsible for delay or additional cost caused by the Client's failure to do so, and the Client will pay for time PBT incurs as a result.
6.5Standard of care. PBT will perform implementation services with due care and skill consistent with industry practice. PBT does not warrant any specific outcome, go-live date, or performance metric except as expressly stated in an Engagement Document.
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Artificial Intelligence Tools
7.1Use of AI tools. In delivering services, PBT may use third-party AI tools and platforms (including large language models and generative AI services) to assist with tasks such as analysis, drafting, summarisation, code generation, data review, document preparation, and configuration. PBT only uses AI services whose contractual terms expressly prohibit the use of customer inputs to train the provider's general-purpose or foundation models. By engaging PBT, the Client consents to Client Data being processed by such AI services for the purpose of service delivery, on this basis. PBT handles Client Data processed through AI services consistently with clauses 11 (Data Security and Privacy) and 12 (Confidentiality).
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Intellectual Property
8.1Background IP. Each party retains ownership of its Background IP. PBT grants the Client a perpetual, non-exclusive, worldwide, royalty-free licence to use PBT Background IP solely to the extent embedded in or required for the use of any Deliverable.
8.2Client Data. The Client owns all Client Data. The Client grants PBT a non-exclusive licence to use Client Data solely to provide the services and as required by law.
8.3Deliverables. Subject to clause 8.1 and full payment, the Client receives a perpetual, irrevocable, non-exclusive, worldwide, royalty-free licence to use the Deliverables for the Client's own internal business purposes. The Client may permit its employees, professional advisers, and contractors engaged to provide services to the Client (each bound by appropriate confidentiality obligations) to use the Deliverables on the Client's behalf for those purposes. The Client may not commercialise, sell, license, distribute, or otherwise make the Deliverables available to any third party except as expressly permitted in this clause 8.
8.4PBT-retained tools. PBT retains all right, title, and interest in methodologies, code libraries, scripts, frameworks, configuration templates, accelerators, and tools developed independently of, or reused across, multiple client engagements. Nothing in this Agreement transfers ownership of those items to the Client.
8.5Change of control. If all or substantially all of the Client's business is sold or transferred to a successor entity, the licence in clause 8.3 may be assigned to that successor entity to continue use of the Deliverables for the same internal business purposes, on prior written notice to PBT.
8.6Restrictions. The Client may not:
(a)sell, sublicense, rent, lease, or commercially distribute the Deliverables;
(b)provide the Deliverables to any competitor of PBT;
(c)remove or alter any proprietary notices on the Deliverables; or
(d)use the Deliverables to develop a competing product or service.
8.7IP indemnity. PBT indemnifies the Client against third-party claims that a Deliverable created by PBT (excluding Third Party Software, Client Data, and modifications made by anyone other than PBT) infringes Australian copyright. PBT's liability under this indemnity is subject to clause 18 and conditional on the Client (a) promptly notifying PBT, (b) giving PBT control of the defence and settlement, and (c) reasonably cooperating.
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Client Data
9.1The Client is responsible for the accuracy, completeness, and integrity of Client Data.
9.2PBT will exercise due care and skill when assisting with data-related tasks, but the Client is responsible for reviewing and validating data accuracy, including for any data modifications, corrections, migrations, transformations, conversions, or imports.
9.3The Client acknowledges that data tasks carry inherent risk. The Client must ensure that appropriate backups are in place before any data-related work and must test results before relying on them.
9.4Subject to clause 18, PBT is not liable for data loss, corruption, or unintended consequences resulting from data modifications, except to the extent caused by PBT's breach of its duty of care under this Agreement.
10
Data Backup
10.1PBT is not responsible for taking backups of Client systems unless a separate backup service is agreed in writing.
10.2The Client must take regular backups consistent with industry practice, including for any data PBT is working on (other than data on PBT's own infrastructure or consultant equipment).
10.3Where PBT provides backup services, the PBT Managed Online Backup Terms apply.
11
Data Security and Privacy
11.1Security commitments. PBT maintains the security of Client Data in accordance with industry practice, including encryption in transit and at rest where appropriate, access controls, and secure storage. PBT's Data Security Policy (as updated from time to time, available at www.pbt.net.au) sets out the applicable measures.
11.2Privacy Act compliance. Where PBT collects, holds, uses, or discloses personal information on behalf of the Client, both parties will comply with the Privacy Act and the Australian Privacy Principles. The Client warrants that it has obtained all consents required to provide personal information to PBT.
11.3Notifiable data breaches. If either party becomes aware of an actual or suspected eligible data breach (within the meaning of Part IIIC of the Privacy Act) affecting the other party's data, it will notify the other party as soon as reasonably practicable and reasonably cooperate in any required notifications and remediation.
11.4Client security obligations. The Client must comply with its own internal security policies and applicable law when granting PBT access to Client systems, and must ensure credentials provided to PBT are kept current and revoked promptly when no longer required.
12
Confidentiality
12.1Confidential Information means non-public information disclosed by one party to the other in connection with this Agreement, including business plans, financial information, customer information, technical information, pricing, and the terms of this Agreement.
12.2Each party will (a) keep the other's Confidential Information confidential, (b) use it only for the purposes of this Agreement, and (c) restrict access to personnel and contractors with a genuine need who are bound by equivalent confidentiality obligations.
12.3Confidentiality does not apply to information that:
(a)is or becomes public other than by breach;
(b)was lawfully known before disclosure;
(c)is independently developed without reference to the disclosing party's information; or
(d)is required to be disclosed by law (in which case the receiving party will, where lawful, give prior notice to enable the disclosing party to seek protective relief).
12.4PBT may identify the Client by name and logo as a customer in PBT's marketing materials and credentials, unless the Client requests otherwise in writing.
12.5Confidentiality obligations survive termination for 5 years, except that information that is a trade secret remains protected for as long as it retains trade secret status.
13
Insurance
13.1PBT maintains, at its own expense, insurance appropriate to the services provided, including professional indemnity insurance and public liability insurance, each in commercially reasonable amounts. PBT will provide certificates of currency on reasonable request.
14
Force Majeure
14.1Neither party is liable for failure or delay in performance (other than payment obligations) caused by events beyond its reasonable control, including natural disasters, fire, flood, pandemic, government action, war, terrorism, civil disturbance, strikes (other than of its own workforce), failure of utility or telecommunications providers, internet outages, or failure of cloud or hosting providers (each a Force Majeure Event).
14.2The affected party will (a) promptly notify the other, (b) use reasonable efforts to mitigate, and (c) resume performance as soon as reasonably possible.
14.3If a Force Majeure Event continues for more than 60 days, either party may terminate the affected services on 14 days' written notice without further liability except for amounts accrued before termination.
15
Non-Solicitation
15.1Neither party will, directly or indirectly, solicit, offer employment to, or hire any current employee or subcontractor of the other party, or any former employee or subcontractor whose engagement ended within the 6 months immediately before the alleged solicitation.
15.2Breach of clause 15.1 entitles the non-breaching party to recover liquidated damages equal to the greater of (a) 6 months of the relevant person's most recent annual base salary while engaged by the non-breaching party, or (b) the documented recruitment and replacement costs incurred. The parties agree this is a genuine pre-estimate of the loss arising from breach and not a penalty.
15.3This clause remains in force during the engagement and for 12 months after termination.
16
Term and Termination
16.1This Agreement starts on signature and continues until terminated under this clause.
16.2Termination for convenience. Either party may terminate this Agreement, or any individual Engagement Document, on 1 month's written notice. Subscription terms, fixed-term commitments, and project work in progress must be honoured to their agreed end date or completion, unless the parties agree otherwise.
16.3Termination for cause. Either party may terminate this Agreement immediately on written notice if the other (a) commits a material breach not remedied within 14 days of written notice, or (b) becomes insolvent, enters administration, or has a controller appointed.
16.4No refunds. PBT will not issue refunds or pro-rata adjustments on termination of committed products or services, except where termination is for PBT's uncured material breach.
16.5Outstanding amounts. Amounts owed at termination must be paid by the termination date or, for amounts not yet invoiced, within 30 days of invoice.
16.6Data return. Within 30 days of termination, on the Client's written request, PBT will return Client Data in PBT's standard export format or, where reasonably practicable, the Client's nominated format. PBT may charge time and materials for non-standard export formats. After 60 days from termination (or longer if required by law), PBT may delete Client Data, subject to retention of backups in the ordinary course.
16.7Survival. The following clauses survive termination: clause 8 (IP), clause 9 (Client Data), clause 10 (Data Backup), clause 11 (Data Security and Privacy), clause 12 (Confidentiality), clause 13 (Insurance), clause 15 (Non-Solicitation), clauses 16.4–16.6, clause 17 (Dispute Resolution), clause 18 (Limitation of Liability), and clause 19 (General Provisions). Termination does not affect any rights or obligations accrued before termination.
17
Dispute Resolution
17.1The parties will use reasonable efforts to resolve any dispute through good faith negotiation. A dispute is initiated by written notice.
17.2If not resolved within 14 days, the parties will attempt mediation in South Australia, with a mediator agreed between them or, failing agreement within 7 days, appointed by the Australian Disputes Centre. Mediation costs are shared equally.
17.3If mediation does not resolve the dispute within 30 days of commencement, either party may commence proceedings exclusively in the courts of South Australia.
17.4Nothing in this clause prevents a party from seeking urgent injunctive or equitable relief, or from taking action to recover undisputed debts.
18
Limitation of Liability
18.1Excluded losses. Neither party is liable for any indirect, incidental, special, or consequential loss, including loss of profits, loss of revenue, loss of business opportunity, loss or corruption of data (except as expressly stated), or business interruption, however arising.
18.2Liability cap. Subject to clauses 18.3 and 18.4, the total aggregate liability of each party under or in connection with this Agreement, whether in contract, tort (including negligence), under statute, or otherwise, is capped at the greater of (a) the Services Fees paid by the Client to PBT under the relevant Engagement Document in the 6 months preceding the event giving rise to the claim, or (b) AUD $250,000. Services Fees means fees paid for PBT's support, consulting, project, and software development services, and excludes payments for software subscriptions, licences, hardware, and third-party products or services on-supplied by PBT.
18.3Excluded from cap. The cap in clause 18.2 does not apply to:
(a)the Client's payment obligations;
(b)breach of clause 12 (Confidentiality);
(c)PBT's IP indemnity in clause 8.7;
(d)liability for fraud or wilful misconduct; or
(e)liability that cannot be excluded or limited at law.
18.4Non-excludable rights. Nothing in this Agreement excludes, restricts, or modifies any consumer guarantee, right, or remedy under the ACL or other law that cannot be excluded, restricted, or modified by agreement. Where PBT's liability for breach of a non-excludable consumer guarantee for services not of a kind ordinarily acquired for personal, domestic, or household use can be limited under section 64A of the ACL, it is limited (at PBT's option) to: re-supplying the services; paying the cost of re-supply; replacing or repairing goods; paying the cost of replacement or repair; or supplying equivalent goods.
18.5Third-party software and vendor defects. PBT is not liable for damage caused by Third Party Software defects, vendor failures, or events beyond PBT's reasonable control.
18.6Mutual indemnity. Each party indemnifies the other against third-party claims arising out of (a) the indemnifying party's breach of clause 11 (Data Security and Privacy) or clause 12 (Confidentiality), (b) personal injury or property damage caused by the indemnifying party's negligence or wilful misconduct, or (c) the indemnifying party's breach of law. This clause is subject to clauses 18.1 and 18.2.
18.7Mitigation. Each party must take reasonable steps to mitigate its loss.
19
General Provisions
19.1Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, understandings, and agreements on its subject matter.
19.2Variations. Variations must be in writing and signed by both parties, except for variations to these Terms made under clause 1.5.
19.3Assignment. Neither party may assign without the other's prior written consent (not to be unreasonably withheld), except that either party may assign to a related body corporate or in connection with a sale of all or substantially all of its business or relevant business unit on written notice.
19.4Subcontracting. PBT may subcontract any of its obligations to qualified third parties, provided PBT remains responsible for the subcontractor's performance.
19.5Notices. Notices must be in writing and delivered by email to the address nominated by each party (or another address notified in writing). Email notices are deemed received on the next business day after sending, absent evidence of non-delivery.
19.6Severability. If any provision is held unenforceable, it is severed and the remainder continues in force.
19.7No waiver. Failure or delay in exercising a right is not a waiver. A waiver is effective only if in writing.
19.8GST. Unless stated otherwise, prices are exclusive of GST. Where GST applies, the Client will pay it on receipt of a valid tax invoice.
19.9Counterparts and electronic signature. This Agreement may be signed in counterparts and electronically.
19.10Relationship. The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship.
19.11Governing law and jurisdiction. This Agreement is governed by the laws of South Australia. The parties submit to the exclusive jurisdiction of the courts of South Australia and any appellate courts.
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