Fees and payment
The Client agrees to pay Capsifi the fees and charges set out in Scope of Work (Fees), plus any applicable goods and services tax (GST) and other taxes on provision of services and other deliverables in accordance with Scope of Work and within thirty (30) days after the date of our invoice issued for those Fees.
The Client must reimburse for all reasonable out of pocket costs and expenses Capsifi incur in connection with the Scope of Work, including for any goods and services purchased on the Client’s behalf. All expenses incurred must be pre-approved by the Client.
- Interest on late payment
If any Fees are more than sixty (60) days overdue Capsifi may charge interest at an annual rate of 9%, as at the date the payment of those Fees were due.
If payment is more than sixty (60) days overdue or the Client otherwise are in breach of this Agreement Capsifi may suspend provision of the Services and/or the Deliverables.
- GST – Unless otherwise stated in Scope of Work, Capsifi’s Fees are GST exclusive. If Capsifi makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in Scope of Work as GST inclusive):
- the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased by, and the Client must also pay to Capsifi, an amount equal to the GST payable by Capsifi on that supply; and
- the amount by which the GST exclusive consideration is increased must be paid to Capsifi by the Client without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
- Estimates non-binding – Any estimate given by Capsifi of any fees or charges, whether before or after the date of the Scope of Work, will be given after reasonable consideration of the information given to Capsifi at the time, but will not be binding.
- Additional User Fees
At the end of each Billing Period, the Subscription Fees will be adjusted to reflect any increase in the number of users. The Client declares that it is aware that for any additional user the Client shall pay an additional user fee on renewal; and the Client may at any time access the current number of users from the Software Admin Tools page.
- Disputed invoices
If the Client has any issue in relation to an invoice the Client must pay the amount that is not in dispute, and notify Capsifi of the dispute within seven days of receiving the disputed invoice. If it is resolved or agreed that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Client must pay the amount finally resolved or agreed together with any interest on that amount.
- License Certifications and Audits
At Capsifi’s request, the Client agrees to provide a signed certification that the Client is using the Software pursuant to the terms of this Agreement, including the Scope of Permitted Use. The Client agrees to allow Capsifi, or Capsifi’s authorised agent, to audit the Client’s use of the Software. Capsifi will provide the Client with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. Capsifi will bear all out-of-pocket costs that Capsifi incur for the audit, unless the audit reveals that the Client has exceeded the Scope of Permitted Use. The Client will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at the Client’s own cost. If the Client exceeds its Scope of Permitted Use, Capsifi may invoice the Client for any past or ongoing excessive use, and the Client will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Capsifi at law or equity or under this Agreement.
License and Service Fees
- In full and complete consideration of the granted license and services hereunder, the Client shall pay to Capsifi the fees set forth in the Website or by direct agreement.
- All fees, charges and any additional sums payable are set exclusive of any and all relevant taxes, including goods and services (GST) or value added taxes which shall be paid by the Client at the rate and in the manner for the time being prescribed by law. Goods and services taxes (GST) or value added taxes shall be included if applicable.
- The fee includes:
- Initial Software user license according to selected fee plan;
- Software updates for the period of the Term according to a schedule, approved and applied by Capsifi.
- Amount of fees are valid for the respective billing cycle. Capsifi has the right to increase or decrease the amount of fees at its own discretion. In case that Capsifi decides to raise the amount of fees, Capsifi shall do that after the expiry of all use terms, prepaid by the Client. After the expiry of the prepaid periods the Client shall have the option to continue using the Software at the new fee rates or to cease using the Software.
- Fees shall be paid via bank transfer or with a credit card, according to the instructions in the Website or by direct agreement.
- The Client has the right to use the Software only until the fees are being paid properly and on time and the Client complies with its obligations.
Warranties, Compatibility, Remedies, Exclusions
- The Client understands that the Software cannot and shall not be used in the event that (a) the Software is not properly used or configured due to some action, failure or limitation caused by the Client, its employees of the Client or Third Parties; (b) the Software has been subjected to illegal use by the Client, or the hardware upon which the Software is accessed is inoperable due to a failure of electric power, lack of internet connection or faulty environmental controls not within the control of Capsifi; or (c) any person other than an authorised Capsifi representative modifies the Software.
- Any set up or support actions may be performed only by Capsifi or Capsifi Personnel unless covered by a direct agreement.
- Limitation of Liability
In any case the direct damages for either party are limited to the total amount of fees paid for subscription license for the current year. Neither Capsifi, nor the Client shall be liable to each other for any indirect, consequential, incidental, special (including multiple or punitive) or other indirect damages that are claimed to be incurred by the other Party whether such claim arises under contract, tort, (including strict liability), lost profits, lost data, business interruption, loss of business reputation or goodwill, even if the party has been advised of the possibility of such damages or any other theory of law. In any case Capsifi shall not be liable for any damages of any sort, if such damages result from actions or omissions of Third Parties, which are not under the control of Capsifi.
- Capsifi shall not be liable for:
- Destruction or loss of data owned by the Client for reasons beyond the control of Capsifi; Inability of the Client to use the Software, due to reasons beyond the control of Capsifi;
- Claims made by Third Parties against the Client in regard with the use of the Software be the Client;
- Loss of data, damages or future earnings due to untimely payment for the Software by the Client;
- If the Client cannot get access due to problems beyond the control of Capsifi (hardware problem, software problem, a problem with Internet connectivity, etc.).
- Capsifi shall not be responsible for stored, distributed, used, transmitted information, data, text, files, software, photo materials, video materials, audio materials, messages, links, references and any other materials and content, stored by the Client or any of its employees, as well as for the activity of the Client or any of its employees, performed with the Software.
- Capsifi shall not be responsible for any damages or loss of profits by the Client as a consequence of the termination, suspension, modification or limitation of the Software or the Services, as well as for removal of materials or content in cases that the Client has failed to fulfil its obligations.
- Capsifi shall not be responsible for not providing services in case of non-payment of sums due within the relevant deadline by the Client, in case of non-adherence to the guidelines and the technological requirements for use of the Software, in case of improper handling of the Software, as well as a result of tests performed by Capsifi to check the Software, connections, networks, etc., as well as tests aimed at improving or optimizing the Software.
- Capsifi may include in the provided services other services, provided by Third Parties. The provider can’t be and is not responsible for the quality of the services provided by Third Parties and is not responsible for any damage to the Client due to problems with the services from these Third Parties.
Personal Data Protection
- The content, which the Client enters into the Software, including Private User Content, is property of the Client and the Client’s sole responsibility.
- The Client shall be responsible for entering somebody else’s personal data without due authorisation.
- The Client shall be obliged to obtain the explicit agreement of all Third Parties, whose personal data is entered by the Client or in any way affected by the use of the Software by the Client, for gathering, processing and storage of their personal data (if any) and to perform the necessary registrations and other activities, in order to legally collect, process, and store such data (if such are required by law). The Client is responsible for the way the Client collects, processes and stores the personal data of Third Parties, as well as for the consents and permissions the Client gives on behalf of Third Parties.
- The Client agrees that Capsifi may collect email addresses for authentication purposes and add them to Capsifi mailing list to send updates about new releases and developments through Capsifi communications. If at any time the Client or any of its employees would like to unsubscribe from receiving future emails, he or she must follow the instructions on how to unsubscribe at the bottom of Capsifi emails.
- Unless directed by the Client and agreed by Capsifi to de-activate analytics reporting for its instance, the Client agrees that Capsifi may monitor and analyse cumulative behaviour via the Website and the Software. Capsifi may then use the cumulative data to improve the Website, the Software and the overall Capsifi customer service.
- Although Capsifi will take all reasonable precautions to keep personal data safe and secure, Capsifi shall not be liable for extraneous circumstances such as theft, communication errors or tampering.
- The Client agrees that Capsifi will be free to change and integrate any services in the Software, including services provided by Third Parties. If such change or integration demands transfer of personal data to Third Parties, Capsifi shall notify the administrator of the Client’s account (who shall be appointed and authorised by the Client) by showing a message within the Software. The administrator shall be given the opportunity to accept or deny the new service/functionality of the Software, as well as the transfer of personal data, if required. If the administrator accepts the new service/functionality and gives his/her consent for the transfer, it shall be considered that the Client has given the Client’s consent for the transfer on behalf of all Third Parties, whose personal data is affected. Personal data shall be then transferred only after and if Capsifi has received the consent of the Client through the Client’s account administrator as described above. The consent of the Client shall be valid for all personal data, entered by the Client in the Software, including personal data of Third Parties. It shall be the Client’s responsibility to acquire the consent of such Third Parties on the transfer. The Client acknowledges that Capsifi does not control the content, entered by the Client and has no contact with any Third Parties, whose personal data the Client may enter in the software. If the third party is not situated in the EU, the rules for personal data transfer shall also apply. If the Client objects to such transfer, the Client shall not be able to use those new/integrated services/functionalities.
- Even if the Client has not objected initially to the transfer, the Client may at all times inform in writing Capsifi that he/she does not want the Client’s personal data to be transferred any more to Third Parties in case of new service integration and Capsifi shall not transfer in the future such data after the date on which Capsifi has received the communication from the Client. However, if the Client has initially accepted such transfer and has not later on informed Capsifi in writing about his/her objection, it shall be considered that the Client has given the Client’s consent for data transfers until the date of the objection. If the Client objects to such transfer, the Client shall not be able to use those new/integrated services/functionalities anymore.
- The Client will retain all right, title and interest in and to the Client’s Data in the form provided to Capsifi. Subject to the terms of this Agreement, the Client hereby grants to Capsifi a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of the Client’s Data, in each case solely to the extent necessary to provide the applicable Hosted Service to the Client and (b) for Hosted Services that enable the Client to share the Client’s Data or interact with other people, to distribute and publicly perform and display the Client’s Data as the Client (or the Client’s authorised users) direct or enable through the Hosted Service. Capsifi may also access the Client’s account or instance in order to respond to the Client’s support requests.
Personal Data Transfer
- The Client understands and agrees that the Software hosting for Capsifi Cloud Hosting uses Amazon Web Services (AWS) as its underlying infrastructure. The default region used for AWS is located in (AU) East Coast Australia. By explicit arrangement Clients that prefer another region can consult with our team.
- Client’s using the Capsifi Cloud Hosting service understand and agree that at initial registration the Client shall be automatically directed to the cloud hosting infrastructure, located in Australia, outside the EU.
- Client’s using the Capsifi Cloud Hosting service hereby gives the Client’s explicit and unambiguous consent that the Client’s Data may be transferred and stored on the territory of Australia or an alternative region agreed by explicit arrangement.
- Client’s using the Capsifi Cloud Hosting service understand and agree that if the Client shall enter or store any personal data, protected by the EU legislation (including but not limited to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and any other applicable legislation), the Client gives the Client’s unambiguous consent that such data may be transferred and stored on the territory of Australia or an alternative region agreed by explicit arrangement.
- Client’s using the Capsifi Cloud Hosting service understand and agrees that the Client shall be also responsible to obtain the unambiguous preliminary consent by any of its employees, agents or Third Parties, whose data the Client may enter or store in the Software, that their data may be transferred and stored on the territory of Australia or an alternative region agreed by explicit arrangement.
- The Client acknowledges that Capsifi does not control the content, entered by the Client, and has no knowledge that the Client may enter Third Parties’ personal data in the Software, also Capsifi has no contact with such Third Parties, whose personal data the Client may enter in the Software. Therefore the Client accepts that it shall be the Client’s sole responsibility to take the necessary measures for protection of personal data, entered or stored by the Client in the Software, according to applicable law.
- Client’s using the Capsifi Cloud Hosting service understand that Australia may be considered as a third country lacking adequate protection and shall be responsible for forwarding this information to any Third Parties, whose information the Client may enter or store in the Software.
- The Client shall be liable and hold Capsifi harmless against any claims by Third Parties and shall compensate Capsifi for any penalties by competent authorities, compensations or expenses, paid or imposed in connection with the failure of the Client to provide such unambiguous consent and measures for protection of personal data as described above.
- If Client’s using the Capsifi Cloud Hosting service wish that the Client’s Data and the data of any third party, which may be entered during the use of the Software, will not be transferred and stored on the territory of Australia any more, the Client shall inform Capsifi and Capsifi shall take the necessary steps to direct the hosting of the Client to an alternative region agreed by explicit arrangement. The Client understands that such an amendment may cause temporary lack of service (for a period up to 24 hours) and Capsifi shall not be liable for any damages or lost profits of the Client during this period.
Capsifi implements security procedures to help protect the Client’s Data from security attacks. However, the Client understands that use of the Hosted Services necessarily involves transmission of the Client’s Data over networks that are not owned, operated or controlled by Capsifi, and Capsifi are not responsible for any of the Client’s Data lost, altered, intercepted or stored across such networks. Capsifi cannot guarantee that its security procedures will be error-free, that transmissions of the Client’s Data will always be secure or that unauthorised third parties will never be able to defeat Capsifi’s security measures or those of Capsifi third party service providers.
Service and Support
- Service Level
For free Subscription Plans, Capsifi will fulfil service level agreements on a commercially reasonable efforts basis. For paid Subscription Plans, Capsifi guarantees that the Software will be available 99% of the time, 24 hours a day, 365 days a year. This Software availability guarantee does not cover services that are not directly delivered by Capsifi and whose availability is outside of Capsifi’s control: these include the availability of an Internet connection at the Client’s location, software or hardware problems that are affecting the Client’s computers, and others. The 99% uptime calculation does not include maintenance windows that are scheduled to occur at certain times, and are communicated to all Clients before they occur.
- Scheduled Downtime
For paid Subscription Plans, Capsifi will use commercially reasonable efforts to give Client at least 24 hours prior notice of all scheduled outages of the Software.
For free Subscription Plans, Capsifi will not provide any support to the Client, but the online help and other documentation may be available at the Website. For paid Subscription Plans, Capsifi will use its commercially reasonable efforts to provide standard support services to the Client in accordance with the Capsifi best practices in effect from time to time through: a) online help and other documentation available at the Website; b) via email by opening a support ticket at firstname.lastname@example.org. When a support ticket is opened, Capsifi staff will use its commercially reasonable efforts to respond to it in a timely manner: a reply to the support ticket is typically provided within 12 (twelve) business hours.
- The Client is an independent contractor and not an agent, employee, franchisee or partner of Capsifi.
- The Client does not have any authority to, and will not, create or assume any obligation, express or implied, on behalf of Capsifi.
Liability, Disclaimers and Indemnifications
- The Client shall defend, indemnify, and hold harmless Capsifi, from and against any claims, suits, liabilities, losses, fines, penalties, damages and expenses arising from:
- any claim that the Software or Services infringes any patent, copyright, trademark or other proprietary right of any third party to the extent the such infringement arises from:
- alterations of the Software by the Client or any third party,
- Software modified by Capsifi for the Client in accordance with Client’s specifications or requests.
- Limitation and exclusion – To the maximum extent permitted by law and subject to clause 3, Capsifi:
- excludes all liability for:
- loss of all actual or anticipated profit, revenue, capital, goodwill, savings, data, customers, use and benefits;
- downtime costs, loss of or damage to reputation, Losses under or in relation to any other contract and Losses suffered or incurred by any third party;
- all indirect, special, exemplary or punitive or consequential Losses; and
- any other Loss that does not arise naturally (that is according to the usual course of things) from an event giving rise to the Loss;
- limits Capsifi liability to (at Capsifi’s option):
- in relation to goods, repairing or replacing the goods or paying the cost of having the goods repaired or replaced; and
- in relation to the Software or Services, re-supplying the Software or Services or paying the cost of having the Software or Services re-supplied; and
- limit Capsifi’s total cumulative liability for Losses in any Agreement Year to the amount of the Liability Cap for that Agreement Year.
- Exclusion of warranties and implied terms – To the extent permitted by law and subject to any express statements in this Agreement, all express or implied conditions, warranties, representations, guarantees, statements, terms and conditions relating to this Agreement are excluded. The Client acknowledges and agrees that the Client has not been induced to enter into this Agreement by any warranty or representation.
- Capsifi retains the rights to the Software and the Website, including the rights to market, license, make, reproduce, use, distribute and otherwise deal with the Software and the Website.
- Capsifi acknowledges and agrees that the Clients Materials remain at all times the Clients property.
- The Client shall obtain Capsifi’s prior written consent to using any Capsifi Mark in any advertising and promotional material it generates.
- The Client shall not alter, remove, deface or obscure any notice of Capsifi Mark, patent, copyright, proprietary right or trade secret on the Software and shall not add to the Software and Documentation any other trademark. Any goodwill arising out of the Client’s use of any of the Capsifi Marks hereunder will inure solely to the benefit of Capsifi.
- Capsifi may give directions concerning the use of Capsifi´s trademarks, trade names and other symbols and the Client undertakes to follow such directions at all times. The Client’s right to use Capsifi’s trademarks, trade names and other symbols, if granted by Capsifi, will cease immediately upon the expiration or termination, for any reason, of the use of the Software.
- The Client shall give a written notice to Capsifi of any knowledge that may come to the Client concerning infringement of the trademarks or any other industrial and/or intellectual property rights of Capsifi that comes into the Client’s attention. In the event of any such infringement Capsifi may prosecute any action necessary to terminate such infringement.
- Publicity Rights
Capsifi may identify the Client as a Capsifi customer in Capsifi promotional materials. The Client may request that Capsifi stop doing so by submitting an email to email@example.com at any time. Please note that it may take Capsifi up to 30 days to process the Client’s request.
- Termination conditions
- Either Party may terminate the use of the Software immediately upon notice if the other Party is or becomes insolvent, or files or suffers the filing against it of any petition in bankruptcy or other law for the protection of debtors.
- Effect of Termination
Upon expiration or termination of the Term, all rights and obligations of the Parties shall cease, except that the Client shall not be relieved of its obligations to pay Capsifi any money due or to become due as of the date of expiration or termination.
- Termination of use of the Software will immediately terminate the rights of the Client to use the Software after such termination.
- Upon termination all of the following shall apply:
- The Client shall immediately cease use of the Software.
- Capsifi may disable all Client and Users access to the Software and Capsifi Materials.
- All amounts payable or accrued to Capsifi shall become immediately due and payable.
- Deletion at End of Subscription Term
Capsifi may remove or delete the Client’s Data within a reasonable period of time after the termination of the Client’s Subscription Term.
Any expiration or termination will be final and absolute. The Client waives any right, either express or implied by applicable law or otherwise, to renew the use of the Software, unless agreed to in writing by both Parties hereto, or for any damages or compensation directly related to any expiration or termination of the use of the Software.
- If either Party is affected by Force Majeure it will as soon as reasonably practical notify the other Party in writing, and take all reasonable steps to mitigate the effect of the Force Majeure. If an event of Force Majeure results in delay or non-performance of a Party for a period of three (3) months or longer, then either Party shall have the right to terminate the use of the Software or the Services with immediate effect without liability towards the other Party.
- Neither Party shall disclose to Third Parties nor use for any purpose other than for the proper fulfilment of its obligations any technical, financial or commercial information (“Confidential Information”) received from the other Party in whatever form under or in connection with the use of the Software without the prior express written permission of the disclosing Party.
- The above obligations shall not apply to Confidential Information which:
- was required by a competent authority or should be provided by the virtue of the law;
- was in the possession of the receiving Party prior to disclosure hereunder;
- was in the public domain at the time of disclosure or becomes part of the public domain without breach of the confidentiality obligations herein contained;
- was disclosed by a third party without breach of any obligation of confidentiality owed to the disclosing Party; or
- was independently developed by personnel of the receiving Party having no access to the Confidential Information.
- The provisions of this Clause shall bind the Parties for a period of three (3) years from the date of disclosure of any item of the Confidential Information regardless of any earlier termination, expiry or fulfilment of the use of the Software.
- The Client shall be obliged to provide confidentiality in respect of the Software’s source code and all its elements, methods of operation and functionality without any limitation in time and regardless of any termination of the use of the Software.
- The Client shall at all times protect and preserve the confidentiality of all proprietary technology, software, engineering data, schematics, and product designs, and all non-public business, financial, or marketing plans or information. No reproduction, use or disclosure of any such information shall be permitted without the prior written consent of Capsifi in each instance.
- The Client shall further assure that its personnel comply fully with such obligations of confidentiality.
Changes to this Agreement
The Client declares that use of the Software by the Client does not and will not violate any law, order, judgment or decree.
The Client shall not assign or transfer the use of the Software or any interest or right hereunder, or subcontract or delegate the performance of any of its obligations hereunder to any third party, without the prior written consent of Capsifi, which consent may be withheld in Capsifi’s sole discretion.
If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (for example, by sending an email to the billing or technical contact, posting on our website, or in the Software itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to free Subscription Plans, accepting the updated Agreement is required for you to continue using the free Subscription Plan. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use the free Subscription Software.
- the Licence Schedule Capsifi and the Client have signed
- the Pilot Schedule Capsifi and the Client have signed
- the Coaching Services Schedule Capsifi and the Client have signed
- the Scope of Work Capsifi and the Client have signed;
- Notices to Capsifi:
- Address: Level 13, 61 York St, Sydney, NSW 2000, Australia.
- Email address: firstname.lastname@example.org;
- Contact person: Mr. Terry Roach.
- Notices to the Client: as indicated in the agreement or registration form of the Client.
Dispute Settlement and Applicable Law
- All unsettled matters and disputes shall be governed by and construed in accordance with the laws of New South Wales, Australia and shall be subject to the non-exclusive jurisdiction of the New South Wales courts.
Schedule 1 – Support
Hosting, Administration, Support and Maintenance
The Client requests and we agree to provide Support for the support Term. Support is only available in respect of Supported Versions and is provided solely on our website, via email or telephone or in any combination thereof.
Capsifi will log all problems with the software reported by the Client by email to the Help Desk contact email address detailed below. Upon identification of any Error, the Client shall provide Capsifi with enough information to investigate and attempt to reproduce the Error.
Capsifi shall use all reasonable endeavors to correct any Error in the software, with a level of effort commensurate with the Error Severity Levels as determined by Capsifi, within the Resolution Time.
As part of the Support, Capsifi will make Patches and Upgrades available to the Client within a reasonable time after their publication. Capsifi provide regular Upgrades with Patches as required. Support does not include any services to be performed on the Client’s premises or elsewhere outside of Capsifi’s premises, and the offering of any such services shall be at the sole option of Capsifi and subject to additional fees and charges to be agreed separately for each such situation.
The provision of Support by Capsifi is contingent on the Client’s compliance with the following additional obligations:
- The Client’s Personnel shall have professional knowledge and experience of software products sufficient for proper interaction with Capsifi technical Personnel in matters of support of the software.
- The Client shall provide Capsifi Personnel with sufficient documentation, data, details and assistance with respect to any reported Errors so as to enable Capsifi to investigate and attempt to reproduce and verify the same as an Error.
- The Client shall assist Capsifi to diagnose and correct reported Errors by, providing reasonable access (on-site or remote as requested by Capsifi) to the applicable software, the hardware platform on which such software is installed and operating and all relevant documentation and records, and shall provide all reasonable assistance as Capsifi may request, including the provision of sample output and other diagnostic information.
- Self-hosted Client’s shall maintain a current backup copy of the Software and its data.
Capsifi shall have no obligation to provide Support in connection with any Error, questions or problems that arise from:
- any modification, customisation, alteration or addition to the Software, or attempt thereof, made by the Client (excluding configuration changes to the Client’s model, or permitted by Capsifi’s prior written authorisation);
- use of the Software:
- in a manner other than described in Capsifi’s supporting materials or otherwise authorised by Capsifi
- in conjunction with Software, equipment, or an operating environment that was not the Operating Environment, or
- the negligence or intentional misconduct of any user of the Software;
- any patch or upgrade to the Operating Environment for Self-hosted Client’s, or other hardware or software, unless Capsifi has notified the Client of its support for such patched or upgraded Operating Environments;
- the malfunction of any element of the Operating Environment, third party products or hardware platform not caused or contributed to by Capsifi or the Software;
- failure by the Client within a reasonable period of time to implement reasonable recommendations in respect of or solutions to Errors previously advised by Capsifi; or
- changes to the Operating Environment, operating software or other hardware or software not authorised by Capsifi or inconsistent with the Capsifi’s supporting materials.
Capsifi offers two hosting options; Capsifi Cloud Hosting, or Client Self-Hosting:
Capsifi Cloud Hosting Service
For Clients that use the Capsifi Cloud Hosting Service, software releases are managed by the Capsifi support team and are deployed on regular basis throughout the year, so the Client can take advantage of new and improved functionality that comes with every release.
The Capsifi Cloud Hosting Service utilizes Amazon Web Services as its underlying infrastructure. The default region is Sydney but if the Client prefers another region the Client can consult with the Capsifi team.
The Software uses multitenancy which enables Cloud Clients to share technology resources cost-efficiently and securely. Multiple tenants share a common infrastructure and access a set of highly secure services, with complete privacy from other tenants. The cloud resources are highly scalable, reliable, and future-proofed from infrastructure architecture changes. (If requested, the Client may be set up as a single dedicated cloud tenant – the pricing for this option is available on request).
Self-hosting Clients need to manage their own licenses for the underlying platform, and Capsifi works with the Client to establish arrangements for applying software releases.
Capsifi offers Remote Server Administration services from qualified Capsifi staff to configure, install, tune, upgrade and patch the Jalapeno Server.
Hosting Support and Administration Services are mandatory for Self-hosting customers; quoted on an annual basis, and are payable in advance on the anniversary of the license subscription.
Capsifi Support Services cover Category 2 and 3 Support for product issues. Support Categories are defined as:
- Category 1
Support for simple issues relating to the normal usage of the software.
This category of support is provided by Capsifi Coaching Services (refer Coaching Services section above) and billed against Coaching Services contracts when they are in force and active. When there is no Coaching Services engagement in place, the Client is encouraged to maintain adequately trained Jalapeno Software “Super Users” who can provide Category 1 Support to the Client’s Personnel. Any other ad-hoc Category 1 User Support provided outside of a Coaching Services engagement will be billed at standard Coaching Services hourly rates.
- Category 2
Support to users for Errors with the configuration and/or installation of a Jalapeno Server.
Category 2 Support is provided to Self-hosting Clients by appropriate Capsifi Support staff and/or administrators depending on the Error type and Severity Level. Severity Levels and Response times are described in the table below.
- Category 3
Support to users for product Errors in the Software.
Category 3 Support is provided by appropriate Capsifi Support Personnel depending on the Error type and Severity Level. Severity Levels and Response times are described in the table below.
Gaps in product functionality are not considered bugs. Functionality gaps may be scheduled into the product development roadmap at Capsifi’s discretion if they are deemed to be broadly required by a significant portion of Capsifi’s customers.
Alternatively gaps not selected for inclusion in the roadmap may be quoted and contracted separately as a custom build at the discretion of Capsifi. Capsifi reserves the right to include specific features and changes to the Software, and to subsequently choose to migrate custom builds into the core product at Capsifi’s sole discretion.
For self-hosted Client installations; if a software release is provided or if software fix is necessary, the software release or software patch update can be provided to the Client by Capsifi Support. The software update can either downloaded from a secure facility by the Client’s personnel and the Client’s personnel then follow the instructions provided by Capsifi to apply the update, or alternatively the Client can provide remote access to Capsifi Personnel through a browser-based remote control feature, which is real-time and secure for this purpose.
By remotely accessing the Client’s machine to troubleshoot Capsifi Software issues, Capsifi’s Personnel can obtain an immediate and clear view of the Client’s configuration and environment which can reduce the number of contact iterations and the time taken to resolve incidents, configure, and deploy fixes if needed.
Software maintenance provides unrestricted access to all Capsifi documentation, Upgrades, Patches and Fixes as they become available. The annual license subscription includes continuous software maintenance for the Software.
Software Maintenance for self-hosted Client installations includes the cost for two annual software upgrades as well as regular application of Patches. The Client can either download the update from a secure facility and follow the instructions provided by Capsifi to apply the update, or facilitate remote access to Capsifi Personnel and Support Personnel for this purpose. Where this is not possible, on-site administration fees and travel costs will apply.
Error Severity Levels
The table below shows the response times in respect of the Error Severity Levels.
Support Cases will be categorised and handled according to the assigned Error Severity Levels as set forth below. The case severity level will be determined at the time of case submission, and will be updated by Capsifi as follows:
|Error Severity Level
||Resolution Time – Temporary Fix or Workaround
||Resolution Time – Permanent Fix (Estimated)
||within 12 Hours*
||within 12 Hours*
||5 Business Days*
||within 1 Business Day*
||90 Business Days*
||within 5 Business Days*
||Considered for next Upgrade
||within 5 Business Days*
||Considered for next Upgrade
Help Desk Support
Capsifi help desk provides support for Severity 1 and Severity 2 incidents, and notifications on software releases.
The method of communication is by email to the Help Desk contact email address above.
Once a support case has been logged by email, a support ticket will be created and the Client will be notified by return email that the support request has been received. All communications with Capsifi customer support will be in English.
Hours of Support
Support will be provided during Business Hours.
Issue Management and Escalation Problem Resolution
The assigned Capsifi Support engineer will work on determining the nature of the incident. The engineer will work closely with the Client to assist in clarifying specific questions about the incident and if applicable, endeavour to recreate the incident within Capsifi. Once the cause has been identified, the Support engineer will provide a solution if one exists, or continue to work the incident by gathering any additional information (logs, dumps, etc.) in preparation for transfer to Capsifi’s Technical engineers.
Capsifi’s Technical engineers will then work with the Support engineers and in some cases with the Client to resolve the incident. The resolution of the incident may be in the form of a Fix or Patch. Capsifi Support will use reasonable efforts in accordance to industry standards to achieve Capsifi’s Service Level Objectives for response times.
If resolution of an incident does not meet the Client’s expectations, the Client may escalate to Capsifi’s Management Team. The Client may receive a named contact that will be responsible for owning the escalation through to resolution. This individual will be responsible for providing regular updates, focus and direction on the escalation. They will also be a central point of contact for the Client until the escalation is considered resolved. Capsifi will use its discretion to engage further Personnel if required.
Product Support and Upgrades
The Software is designed for cloud computing, so businesses can avoid the costs and complexity associated with the purchase, installation, configuration, and ongoing maintenance of an on-premises data center and dedicated hardware, software, and accompanying administrative staff.
For Clients that use the Capsifi Cloud Hosting Service, software releases are managed by the Capsifi Support team and are deployed on regular basis throughout the year, so the Client can take advantage of new and improved functionality that comes with every release.
For self-hosted Clients, software releases are managed by Capsifi’s Support team in consultation with the nominated support contact. For self-hosted Clients, supported releases are the latest major product release and one previous major product release.
Capsifi provides release notes for each release.
Currently the product lifecycle for the Software is:
- Major Version Release 12 Months; and
- Minor Version Updates 3-12 week cycles which may include new and improved functionality that adds value as well as minor Fixes.
Capsifi retains the right to amend these indicative timelines at anytime without notice to the Client.
Support will be provided during Business Hours.
Schedule 2 – Coaching Services and Professional Services
In Capsifi’s experience, most Clients are keen to be able to develop an internal Jalapeno Software skill set that helps to enhance the organisations flexibility and self-sufficiency in the on-going configuration and enhancement of their Jalapeno-based business solutions. Capsifi encourages and supports its Clients to invest in developing an in-house Jalapeno competency.
The Software includes context sensitive help to walk the user through a functional process, reducing support overheads and minimising productivity loss.
Capsifi Jalapeno Coaching Services are obligatory during the first 3 months to ensure that Client’s derive the value from purchasing a licence subscription. This can be supplemented by the purchase of additional Coaching or Mentoring packages.
Scope of Coaching Services and Professional Services
Capsifi will provide to the Client the Coaching Services or Professional Services specified in each Statement of Work (SOW) or Order Form (as applicable), subject to the Client’s payment of all applicable fees as set forth in the “Client Obligations” section of this Agreement.
Capsifi shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any Coaching, Consulting or Training Services Capsifi provides (“Reference Materials”). Any Reference Materials provided to the Client may be used only in connection with the Software subject to the same use restrictions for the Software.
Relationship to Software Services
This schedule is limited to Coaching Services or Professional Services and does not convey any right to use the Software Services.
The Client agree that the Client’s purchase of Coaching Services or Professional Services is not contingent on the delivery of any future Software Service functionality or features, other than Deliverables, subject to the terms of the applicable SOW or Order Form.
The Client will cooperate reasonably and in good faith with Capsifi in Capsifi’s performance of Coaching Services or Professional Services by, without limitation:
- Allocating sufficient resources and timely performing any tasks reasonably necessary to enable Capsifi to perform Capsifi’s obligations under each SOW or Order Form;
- timely delivering any materials and other obligations required under each SOW or Order Form;
- Timely responding to Capsifi’s inquiries or Capsifi’s Personnel inquiries related to the Coaching Services or Professional Services;
- Assigning an internal project manager for each SOW or Order Form to serve as a primary point of contact for Capsifi;
- Actively participating in scheduled project meetings;
- Providing, in a timely manner and at no charge to Capsifi, office workspace, telephone and other facilities, suitably configured computer equipment with Internet access, access to the Client’s appropriate and knowledgeable employees and agents, and continuous administrative access to the Client’s Online Service account, and coordination of onsite, online and telephonic meetings all as reasonably required by Capsifi; and
- Complete, accurate and timely information, data and feedback all as reasonably required.
Any delays in the performance of Coaching Services or Professional Services or delivery of Deliverables caused by the Client may result in additional applicable charges for resource time.
Delivery, Acceptance and Change Orders
- Delivery of Services
Capsifi will provide the Coaching Services or Professional Services, including any Deliverables, in accordance with the Agreement and the applicable SOWs or Order Forms.
- Upon completion of each Deliverable under an SOW or Order Form, Capsifi will, as applicable:
- submit a complete copy to the Client; and
- at the Client’s request, demonstrate its functionality to the Client.
- The Client is responsible for reviewing and testing all Deliverables in accordance with such SOW or Order Form pursuant to any acceptance criteria or test plans mutually agreed upon in writing by the Parties for such Deliverable. The Client will provide Capsifi with written notification of acceptance for each Deliverable promptly upon acceptance; however, failure to reject a Deliverable, as set forth below, will be deemed acceptance.
- If the Client, in the Client’s reasonable and good faith judgment, determines that any submitted Deliverable does not satisfy the agreed-upon acceptance criteria as specified in the applicable SOW or as mutually agreed upon in writing by the Parties for such Deliverable, the Client must so notify Capsifi in writing within 10 business days after Capsifi’s submission of the Deliverable, specifying the deficiencies in detail. Capsifi will use commercially reasonable efforts to correct such deficiencies and resubmit the Deliverable to the Client as soon as practicable. The Client will again review and test the Deliverable against the agreed-upon acceptance criteria, and detail any deficiencies to Capsifi in writing within 10 business days after resubmission of the Deliverable.
- If a Deliverable fails to meet the functional requirements specified in the applicable SOW or Order Form after its second resubmission to the Client, the Client may either, as the Client’s sole and exclusive remedy:
- again reject the Deliverable and return it to Capsifi for further correction and resubmission in accordance with the process described above (if the Deliverable is not accepted after two resubmissions, the matter will be escalated to the Client’s executive sponsor for the project associated with the SOW or Order Form and Capsifi’s Engagement Manager), or
- terminate the relevant SOW or Order Form immediately upon written notice and recover all Coaching Services and Professional Services fees paid under such SOW or Order Form for such deficient Deliverable. If the Parties determine that a Deliverable’s functional requirements specified in a SOW or Order Form require modification (for example, due to incorrect assumptions or changed requirements), they will cooperate in good faith to execute a Change Order for such revised requirements.
- Change Orders
Changes to a SOW or Order Form will require a written Change Order signed by the Parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.