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In the event that you download any software from the
site, the software, including any files, images incorporated
in or generated by the software, and data accompanying
the software (collectively, the "Software")
are non-exclusively licensed to you by CMO. CMO does
not transfer title to the Software to you. CMO retains
full and complete title to the Software, and all intellectual
property rights therein. You may not redistribute, sell,
decompile, reverse engineer, disassemble, or otherwise
reduce the Software to a human-perceivable form.
DISCLAIMER
THE MATERIALS IN THIS SITE ARE PROVIDED "AS IS"
AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR
IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT
TO APPLICABLE LAW, CMO DISCLAIMS ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
CMO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN
THE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT
DEFECTS WILL BE CORRECTED, OR THAT THIS SITEOR THE SERVER
THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS. CMO DOES NOT WARRANT OR MAKE ANY
REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF
THE USE OF THE MATERIALS IN THIS SITE IN TERMS OF THEIR
CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU
(AND NOT CMO) ASSUME THE ENTIRE COST OF ALL NECESSARY
SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY
NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE
ABOVE EXCLUSION MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY'S (AND/OR, IN THE CASE OF CMO, ITS LICENSORS') AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH TO PRODUCTS OR SERVICES PROVIDED BY CMO, INCLUDING BUT NOT LIMITED TO ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE EXCLUSIONS IN THIS CLAUSE SHALL APPLY TO THE FULLEST EXTENT PERMISSABLE AT LAW. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OR DAMAGES OR FOR PERSONAL INJURY CAUSED BY NEGLIGENCE, FOR FRAUD OR FRAUDULENT MISREPRESENTATION OR FOR CERTAIN OTHER TYPES OF DAMAGES, SO THE EXCLUSIONS IN THIS CLAUSE MAY NOT APPLY TO YOU.
INDEMNITIES
You shall indemnify and hold CMO, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with: (i) a claim alleging that use of any submissions on this website infringes the rights of, or has caused harm to, a third party; (ii) a claim alleging that products or services developed specifically for you directly infringes a copyright or a trademark of a third party in the United Kingdom, Australia or United States of America; or (iii) a claim, which if true, would constitute a violation by you of your representations and warranties.CMO shall indemnify and hold you and your officers, directors and employees harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) actually awarded against you, your officers, directors and/or employees arising out of or in connection with: (i) a claim, which if true, would constitute a violation by CMO of its representations or warranties; provided that you (a) promptly give written notice of the claim to CMO; (b) give CMO sole control of the defense and settlement of the claim (provided that CMO may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to CMO all available information and assistance; and (d) have not compromised or settled such claim. CMO shall have no indemnification obligation, and you shall indemnify CMO pursuant to this Agreement, for claims arising from any infringement arising from the combination of products or services provided with any of your or third party products, software, service, hardware or business process(s).
Terms of Engagement
Payment required within 30 days of receipt of invoice
unless completion of works invoiced is disputed within
15 working days, unless agreed otherwise.
The Intellectual Property in any product or solution
developed by CMO is owned by CMO unless agreed otherwise.
A fee of at least 50% of the product or solution development
fee will be required to transfer the ownership of Intellectual
Property and associated code.
Pricing does not include any actual training, support,
customisation or any server hosting fees payable to
a hosting facility unless explicitly agreed otherwise.
Pricing does include onsite or remote installation
unless explicitly agreed otherwise.
All quotes are valid for 30 days, unless otherwise
stated.
1. Support Services
CMO represents and undertakes that it will provide
the following support services to Clients pursuant to
the payment of an agreed maintenance fee:
| Support Type |
Support Hours |
Support Contact |
| Email (Preferred) |
365 x 24 x 7. Responses will be made within
24 hours. |
support@cmohandheldsoftware.com |
| Web |
365 x 24 x 7. Responses will be made within 24
hours. |
www.cmohandheldsoftware.com/support |
| Telephone |
During Business Days:
Australia: 9am – 5pm
United Kingdom: 9am - 5pm
USA: 8am - 4pm Eastern Time
|
+61 3 9018 7263
+44 207 193 1982
+1 859-648-0336
|
Support requests should be in the format of the Fault
Report Form available at www.cmohandheldsoftware.com/support,
as well as clearly identify the exact issue, so that
the CMO Support team can attempt to replicate the error
if required.
2. Support Allowance
Each Client will be allocated an allowance of issues
before additional charges are incurred for Support fees:
- Each Client will be given an allowance
of 12 independent issues per year, irrespective of
the time it takes the CMO Support team to resolve
each issue.
- Issues are to be recorded with the CMO
Support team as per the above clause.
- Integration with existing systems, custom
report development and other customisation of the
application for particular users is not included in
the support allowance.
3. Error Correction Services
CMO shall use its reasonable endeavours to correct
any defects or errors found in software on the following
basis:
- If a Client discovers that the latest release
of the software (The “Current Release”) fails to function
as documented, a Client shall then as soon as reasonably
practicable notify CMO of such defect or error and
shall provide CMO (so far as it is able) with details
of the defect or error as follows:
- if the defect or error arises during
the Support Hours, a Client shall contact CMO to
discuss the defect or error in question pursuant
to this agreement. CMO may require a Client to complete
and submit to CMO's relevant point of contact by
electronic mail CMO's fault report form which shall
contain sufficient information to describe the nature
of the defect or error and its impact on a Client's
operations to enable CMO to classify the defect
or error which shall be classified into one of the
three following priorities:
Level A recurring catastrophic failure for which
no detour exists
Level B a defect or error severe enough to result
in serious inconvenience to a Client
Level C all other problems which a Client can reasonably
avoid or detour including any defects or errors
which are not reproducible or for which there is
no urgency to resolve
and a Client shall, wherever possible, provide CMO
with a documented example of the defect or error;
and
CMO shall, after receiving the Fault Report Form
pursuant to Clause 5.3(a) above, commence to work
on correction procedures to remedy the defect or error
in question within the following timescales:
aa) Level A
48 hours to resolve
and return resolution to a Client
bb) Level B
5 calendar days
to resolve and return resolution to a Client
cc) Level C
as soon as reasonably
practicable subject always to the provisions
- Forthwith upon such correction being completed,
CMO shall deliver to a Client the corrected version
of the object code of the Current Release. The Client
shall evaluate the corrected version of the Current
Release pursuant to Clause 5.6 in order to ascertain
whether or not the defect or error has either been
resolved to its reasonable satisfaction. The Client
shall not unreasonably withhold or delay its agreement
to any such reclassification.
- CMO shall provide a Client with all such
assistance including site visits (to be charged at
CMO's tariff then current) as may be reasonably required
by a Client to enable a Client to implement the use
of the corrected version of the Current Release.
- The foregoing error correction service
shall not include any Maintenance Services or other
support in respect of:
- any defects or errors which, in the reasonable
opinion of CMO, result from any modifications of
the Current Release made by any person other than
CMO;
- use any version of the software other
than the Current Release;
- incorrect use of the Current Release
or database or operator error;
- any fault in the Equipment or in any
programs used in conjunction with the Current Release;
- any defects or errors caused by the
use of the Current Release on or with equipment
(other than the Equipment) [or programs] not supplied
by or approved in writing by CMO [provided that
for this purpose any programs designated for use
with the Current Release shall be deemed to have
the written approval of CMO];
- any unauthorised modification of the
Current Release if such modification would result
in a departure from the purpose of the Software;
- operation of the Current Release outside
CMO's recommended applicable operating conditions
and environmental specifications;
- improper site preparation or maintenance;
- accident, neglect, hazard or misuse;
natural calamity; failure or fluctuation of electrical
power or environmental conditions; or
- any unauthorised maintenance of the
Current Release or other failure of a Client to
perform its obligations under this Agreement;
- If CMO, in its sole and absolute discretion,
provides any Maintenance Services or other support
services in:
- circumstances where CMO reasonably determines
that the Current Release is substantially fulfilling
the Specification; or
- respect of any of the matters referred
to in Clause 5.3(h) above,
then CMO shall do so on its terms and at its tariff
then current.
- The parties acknowledge the Software such
as the Current Release is complex, and that certain
errors and defects are incapable of correction or
may require an inordinate amount of time and money
to correct. If CMO reasonably concludes that a Software
defect or error falls into either of these categories,
then CMO shall have no obligation to correct such
defect or error.
- In performing its obligations under this
Agreement, CMO may in its sole and absolute discretion:
- provide a local fix or patch;
- provide a temporary by pass solution;
- schedule the resolution of the defect
or error for inclusion in a subsequent Release;
- modify documentation to reflect operating
limitations and correct operating procedures; and
- request such additional information
from a Client as may be required to enable it to
identify and correct the malfunction or error in
question.
4. Software Maintenance
From time to time, CMO may be required to undertake
maintenance on Software that may result in the loss
of access to some or all areas and functionality of
Software developed. Although CMO will undertake to minimize
as far as possible the inconvenience of any such down-time
and, if possible, notify users by email ahead of time,
the General Warranty and Disclaimer above applies equally
to any losses or damage that may result regardless of
whether such loss or damage may have been foreseeable.
5. CMO COMPLIANCE
If you are purchasing CMO COMPLIANCE or any associated services, then the terms of the CMO COMPLIANCE Master Services Agreement apply.
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