1. Introduction
These terms are the general terms of the relationship between Us and You. The terms cover any transactions where we provide Services to you. The commercial terms of any transaction will be contained in an Order (or a SOW) that will incorporate these terms. The Order will prevail if there is a conflict of meaning. Nothing in the terms obligates any party to enter into any orders.
  1. Definitions and interpretation
Definitions. In the Agreement:
Additional Fee means a charge you must pay us for the supply of any Services outside of an Order, which charge must be made at our then current standard rates, unless otherwise agreed in writing between us;
Agreement means the Agreement between us and you, consisting of the terms and any orders that we enter into;
Business Day means any day other than a Saturday, a Sunday, or a holiday (including a public or bank holiday) in New South Wales, Australia;
Business Hours means our normal business hours on business days;
Effective Date means in respect of each Order, the effective date stipulated in each Order, in the absence of which it will be the date the Order is accepted by us;
Existing Material means any code, forms, algorithms or materials developed by or for either party independently and outside of the Agreement and provided during the course of the Agreement;
Fees mean the fees that You will pay to Us in respect of Services we provide under orders;
Order means a Services Order agreed to and signed by both the parties describing the specific Services that we will provide to you. An Order may also be referred to in certain documents as a SOW or a statement of work;
Our Technology means any technology that we have created, acquired or otherwise have rights in and may, in connection with the performance of our obligations under the Agreement, employ, provide, modify, create or otherwise acquire rights in and includes any: concepts or ideas; methods or methodologies; procedures or processes; know-how or techniques; function, process, system, data, or object models; templates; the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs; general purpose consulting and software tools, utilities, routines or frameworks; logic, coherence and methods of operation of systems; and patches or enhancements to open source libraries;
Personnel means any representative of either party, including any director, employee, agent, affiliate, consultant, or contractor;
Related and Related Persons means related bodies corporate as set out in section 50 of the Corporations Act 2001 (Cth);
Services means any Services we or related persons provide to you, under Orders;
Sign means the handwritten signature or an electronic signature that the parties agree to use, of each of our duly authorised representatives;
Signature Date means the date of signature by the party signing last;
Tax means any:
  • tax (including general sales tax and withholding tax);
  • duty (including stamp duty);
  • tariff, rate, levy; or
  • any other governmental charge or expense payable;
Terms means the terms, consisting of:
  • these generic terms; and
  • any specific terms contained in an Order
Third Party Contractor means any contractor, supplier, service provider or licensor of a part of the Services, which is not a party to the Agreement;
Third Party Software means any software that is owned by a person other than us but legally licensed to us for use in providing the Services;
We, Us, or Our means the service provider that enters into an Order and, if specified in the Order, those related to it;
Writing means the reproduction of information or data in physical form (includes handwritten documents, hard copy printouts and fax transmissions) or any mode of reproducing information or data in electronic form that the parties agree to use (like pdf), but excludes information or data in the form of email;
You or Your means the customer that enters into an Order and, if specified in the Order, those related to it;
Your Data means your data that:
  • you (or any third party on your behalf) provide to us; or
  • we generate, process, or supply to you in providing the Services; but excludes any derived data that we create for our own internal purposes or which is proprietary or confidential to us or our third party contractors;
Definitions in the Order. Words defined (or assigned a meaning) in an Order will have that meaning in the terms, unless the context clearly indicates otherwise.
Interpretation. All headings are inserted for reference purposes only and must not affect the interpretation of the Agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the Agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in the Agreement, when any number of days is prescribed in the Agreement the first day will be excluded and the last day included. The rule of construction that an Agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +10 will be used to calculate any times.
Conflict. If there is a conflict of meaning between these terms and any Order, the Order will prevail in respect of your use of the relevant Services.
  1. Duration
The terms commence on acceptance and continue until terminated. Specific or explicit term may be specified in an Order.
  1. Orders
4.1 Capacity. You represent and warrant that you (and any person who places an Order):
  • are old enough under applicable law to enter into the Agreement;
  • are legally capable of concluding any transaction;
  • possess the legal right, full power, and authority to enter into the agreement; and
  • will submit true, accurate and correct information to us.
4.2 Invitation to do business. The marketing of the Services by us is merely an invitation to do business or for you to make an offer to procure Services. The parties only conclude a valid and binding Order when we accept the offer made by you. Unless proven to the contrary, we only accept an offer relating to Services, when we begin providing the Services.
4.3 Fees. The Fees to be paid by you are set out in the Order.
4.4 Orders. Terms in effect at the time you make an offer will govern the Order. Each Order will create a separate Agreement. Despite that, we may consider the breach of any one Order to constitute a breach of any or all orders.
  1. Services
We will provide the Services to you as described or specified in the Order. If we agreed on scope, specifications or parameters that apply to some or all of the Services, we will make our best commercial efforts under the circumstances to deliver the Services in accordance with these.
  1. Change control
6.1 Changes to Services. During the currency of an Order, events may occur which require a change to the nature and scope of the Services. The parties will not implement a change unless they comply with this clause.
6.2 Change request. A party may propose a change to the nature and scope of Services by sending a scope change document to the other party detailing the desired changes.
6.3 Scope change document. If a scope change document is made by:
  • you, you will specify the reasons for that change and describe the change in sufficient detail to enable us to formulate a response. We will investigate the likely impact of any proposed changes on the provision of Services and will provide you with a scope change proposal, including amended pricing and timeframes; or
  • us, we will detail in a scope change proposal the reasons for and impact of the change, the Services required to implement the change and the effect that the changes, if implemented, will have on the relevant Order.
6.4 Sign-off. The parties will discuss and agree the proposed changes and make the necessary amendments to our scope change proposal. You will then consider the scope change proposal and may approve or reject it in writing within three business days. If you:
  • accept a scope change proposal, a duly authorised representatives of the parties will sign off the scope change proposal and it will be incorporated into the relevant Order; or
  • reject a scope change proposal, we will continue to provide the goods or Services on the existing terms.
6.5 No change effective until sign-off. No party may proceed with any change to an Order until the change and all matters relating to the change have been agreed in writing between the parties. Pending sign-off, the parties will continue to perform their obligations without taking account of the proposed changes. No party must agree to any change, but a party will not unreasonably delay or withhold their Agreement to a proposed change.
6.6 Exception. Amendments to the content of the Agreement that do not directly impact the nature and scope of the Services will not be subject to this change control procedure, but the parties will execute it in writing.
  1. Personnel
7.1 Access. Where we provide Services to you on your premises, you will allow us and our personnel access (at all reasonable times) with effect from the signature date for the purposes of fulfilling our obligations under orders.
7.2 Compliance with your policies. We will take all reasonable steps to comply, and ensure that our personnel comply, with your policies. You must notify us of all of your policies prior to the effective date and give us and the relevant personnel reasonable written notice of any change in your existing policies or the implementation of your new policies.
7.3 Allocation of resources We may allocate and re-allocate all our personnel who provide Services under the Agreement.
  1. Your data
8.1 Your data. We are not responsible for any of your data on our system.
8.2 Privacy and protection of personal information.
  • Legal obligations. We are responsible for complying with our obligations and you are responsible for complying with your obligations under under the Privacy Act 1988 (Cth).
  • You agree to indemnify, defend, and hold us harmless (and those related to us and our personnel) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to you failing to comply with your obligations under this clause.
8.3 Preservation of integrity of your data. Both of us will take reasonable precautions (having regard to the nature of each of our obligations under the Agreement), to preserve the integrity of your data and prevent any unauthorised access, corruption or loss of your data.
  1. Intellectual property
9.1 Retention of rights. We have created, acquired or otherwise obtained rights in our technology and despite anything contained in the Agreement, we will own all right, title, and interest in our technology.
9.2 Use of our technology. If we utilise any of our technology in connection with our performance under an Order, our technology will remain our property and any right or interest that you may acquire will be specified in the Order.
9.3 Trademarks. Our logo and sub-logos, marks, and trade names are our trademarks and no person may use them without permission. Any other trademark or trade name that may appear on our marketing material is the property of its respective owner.
9.4 Restrictions. Except as expressly permitted under the Agreement, the Services may not be:
  • modified, distributed, or used to make derivative works;
  • rented, leased, loaned, sold, transferred or assigned;
  • decompiled, reverse engineered, or copied; or
  • reproduced, transferred, or distributed.
9.5 Prosecution. All violations of proprietary rights or the Agreement will be prosecuted to the fullest extent permissible under applicable law.
  1. Confidential information
10.1 Responsibility to keep information confidential. Each party must keep confidential any information it receives from the other party or under this Agreement.
10.2 The receiving party’s responsibilities. The party that receives confidential information agrees to protect the interests of the party it is from, and will:
  • only use it to comply with its responsibilities under this Agreement;
  • only give the information to the any of its employees or agents that need it, and only give as much of it as they need;
  • use reasonable security procedures to make sure employees or agents keep the information confidential;
  • get promises of confidentiality from those employees or agents who need access to the information;
  • not reveal the information to anyone else; and
  • not use it for any purpose other than this Agreement.
10.3 End of this Agreement. At the end of an Agreement, the parties will give back to the other all originals and copies of confidential information of the other that they have. If the other agrees, they may destroy the confidential information they have.
10.4 Exceptions. These responsibilities will not apply to any information that:
  • is lawfully in the public domain (available to the general public) when a party received it;
  • lawfully becomes part of the public domain afterwards;
  • is given to the receiving party afterwards by a different person who is allowed to reveal the confidential information; or
  • is given to comply with a court Order or other legal duty.
10.5 Indemnity. You indemnify us against any loss or damage that we may suffer because of a breach of this clause by you or your employees or agents.
10.6 Survival This clause about confidential information is separate from the rest of this Agreement and remains valid for five years after the end of this Agreement.
  1. Our warranties
11.1 General warranties. We warrant further that:
  • we have the legal right and full power and authority to execute and deliver, and to exercise our rights and perform our obligations under the Agreement; and
  • we and our personnel will not knowingly introduce any malicious software into your material or your system.
11.2 Service warranties. We warrant that in relation to the Services:
  • we and our personnel will possess and have the right to use knowledge and expertise sufficient to enable us to provide the Services;
  • we will employ a sufficient number of suitably trained personnel to provide the Services and to achieve the service levels; and
  • we will provide the Services in accordance with all applicable laws.
  1. Implied warranties
12.1 Pursuant to the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)):
  • this sub-clause 12.1 applies in respect of any of any goods or Services supplied under this Agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this sub-clause will not apply if the you establish that reliance on it would not be fair and reasonable;
  • our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure;
  • liability for breach of a guarantee conferred by the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth), other than those conferred by ss 51–53 of that Law, is limited: in the case of Services, to any one of the following as determined by us:
    • the supplying of the Services again; or
    • the payment of the cost of having the Services supplied again.
  1. Disclaimer of warranties
13.1 Except for the representations and warranties expressly set out above the Services, all third party software, all third party Services, and any other Services, software, information, technology, content, equipment and materials are provided by us are on an “as is” and “as available” basis, and we do not make any, and expressly disclaims all other warranties, express or implied, including any warranties of merchantability, fitness for a particular purpose, non-infringement and title. Without limitation of the foregoing, we do not represent or warrant that the Services or any third party software or third party service will meet your requirements or will be uninterrupted, error-free, or secure, and your use of and access to third party software and third party Services is at your sole risk. No advice, results or information obtained by you from us or through any Services or any documentationwill create any warranty. The only representations and warranties with respect to third party software and third party Services are those, if any, that are made by the applicable third party providers directly to you.
  1. Your warranties
You warrant that:
14.1 You have not been induced to enter into the Agreement by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in this Agreement;
14.2 By entering into an Order you are not acting in breach of any Agreement to which you are party;
and you agree to indemnify, defend, and hold harmless us (and those related to us and our personnel, co-branders or other partners) from and against any claim for damages by any third party as a result of the breach of these warranties, including all legal costs. If permissible under applicable law, legal costs will be on an attorney and own client basis.
  1. Fees and payment
15.1 Due dates. You will be liable for and pay the fees specified in the Order and any Additional Fees promptly on the due date, without any deduction, set off or demand and free of exchange in the currency specified in the Order.
15.2 Manner of payment. You must make payment in the manner specified in an Order. If payment terms are not specified in an Order, you must pay us within seven days from the date you received an invoice from us, provided that the invoice specifies the Services that we provided for which you need to pay.
15.3 Late payments. Any additional surcharges and penalties specified will apply to any payment received after the due date to cover collection fees and additional administration costs. You must pay the surcharges and penalties to us on-demand. We may halt the provision of any Services until you have paid all amounts that are due.
15.4 Interest on overdue amounts. Without limiting any other rights we may have, if any amounts payable by you, excluding any invoices that are subject to a bona fide dispute, are overdue under this Agreement, we may charge the youinterest on the unpaid amount. The interest will be charged at the rate of 2% above the National Australia Bank (NAB) prime rate for 90 day prime commercial bills calculated daily, from and including the due date to and including the date of payment. If the interest rate specified is not quoted during the particular period, we may nominate an equivalent alternative interest rate.
15.5 Appropriation. We may appropriate any payment received from you towards the satisfaction of any indebtedness of you to us under the Agreement.
15.6 Withhold payment. You may not withhold payment of any amount due to us for any reason.
15.7 Tax. All fees exclude any tax, which will be payable where applicable by you in addition to the fees.
16 Intellectual property infringement
16.1 Defense. We will defend you against any claims made by an unaffiliated third party that any Services infringe its patent, design, copyright, or trade mark and will pay the amount of any resulting adverse final judgement (or settlement to which we consent). We will reimburse you with all costs you reasonably incurred in connection with assisting us with the defense of the action. You will promptly notify us of the claim in writing and we will have sole control over its defense or settlement.
16.2 Consequences of successful claim by third parties. If any third party succeeds in its claim for the infringement of any intellectual property rights, we may within 30 calendar days of the infringing item having been found to so infringe:
  • obtain for you the right to continue using the infringing item or the parts that constitute the infringement;
  • replace the infringing item or the parts that constitute the infringement with another product that does not infringe and that in all respects operates substantially in accordance with its specifications;
  • alter the infringing item in a way as to render it non infringing while still in all respects operating substantially in accordance with its specifications; or
  • withdraw the infringing item and refund to you all fees paid by you to us under the relevant Order specifically with regard to the infringing item in the preceding six calendar month period.
16.3 Exclusion. We will not be liable for any claim that arises out of goods or Services you select and acquire from third parties.
16.4 Survival. This clause will survive termination of the Agreement.
  1. Limitation of liability
17.1 Notwithstanding anything in this Agreement to the contrary to the full extend permitted by applicable law:
  • neither party will be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages arising out of or related to the Services or this Agreement, including damages for interruption of business, loss of profits, loss of goodwill, or loss or corruption of data, regardless of the form of action, whether in contract, tort (including negligence), strict liability or other legal theory, even if the party was advised in advance of the possibility of those damages and even if those damages were foreseeable; and
  • in no event will either party’s maximum aggregate liability to the other arising out of or related to the Services or this Agreement exceed the amounts paid by you during the 12 month period preceding the event or circumstances giving rise to that liability. For avoidance of doubt, the foregoing limitation of liability does not apply to your obligation to pay fees.
  1. Breach and termination
18.1 Either party may immediately terminate all or part of this Agreement at any time by giving notice in writing:
  • if the other party commits a material breach of this Agreement which it fails to remedy within 30 days of Written notice by the first party; or
  • if the other party becomes Insolvent or wilfully defrauds the other party.
  1. Termination
19.1 Termination for good cause. We may immediately terminate this Agreement at any time by giving you notice in writing if:
  • we discontinue the Services;
  • we believe providing the Services could create an economic or technical burden or material security risk for us; or
  • termination is necessitated by us having to comply with any applicable law or requests of governmental entities.
19.2 Duties on termination. On termination, cancellation, or expiry of this Agreement:
  • we will stop providing the Services;
  • your access rights will cease to exist; and
  • we will erase your data, unless we have agreed to provide you with post termination assistance in writing.
19.3 Survival. The termination, cancellation, or expiry of this Agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.
  1. Effect of termination
20.1 Amounts due to us become due and payable. On termination, cancellation, or expiry this Agreement, all amounts due to us for Services rendered before termination will become due and payable even if we have not yet invoiced them. You may not withhold the amounts for any reason, unless the arbitrator directs otherwise.
20.2 Post termination assistance. Following termination, you may take advantage of any post-termination assistance that we may generally make available (such as data retrieval arrangements). We may provide you with post-termination assistance, but we will not be under an obligation to do so. Your right to take advantage of any post termination assistance will depend on your acceptance of and compliance with any Additional Fees and terms that we may impose for such assistance.
20.3 No expectation. We acknowledge and confirm that no expectation has been created by anyone, by the Agreement or any other Agreement, entitling us or you to expect: the renewal or extension of the term of any Agreement; or
10.4 Survival. The termination, cancellation, or expiry of this Agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.
21 Resolving disputes
21.1 Notifying each other. There will be a dispute about or from this Agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:
  • negotiation (direct talks to try and agree how to end the dispute); failing which
  • mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute)
21.2 Negotiation. Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written Agreement within 15 more business days.
21.3 Mediation. If negotiation fails, the parties must refer the dispute to mediation for resolution by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation will be conducted in accordance with the ACDC Guidelines for Commercial Mediation (“Guidelines”) that is operating at the time the matter is referred to the ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are hereby deemed incorporated into this Agreement.
21.4 Legal proceedings. If the parties do not agree to refer the dispute for resolution by mediation, or such mediation concludes without settlement of the dispute, either party may commence legal proceedings in relation to the dispute. The provisions of this clause 21 will survive termination of this Agreement.
21.5 Periods. The parties may agree in writing to change the periods for negotiation or mediation.
21.6 Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised.
21.7 Severability. This clause is separate and divisible from the rest of this Agreement and remains effective even if this Agreement ends or is invalid.
  1. Notices and domicile
22.1 Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, registered post, fax, or email to an address or number given in the Order.
22.2 Deemed delivery. Notice will be considered to be delivered on the date shown on any hand-delivered, registered post, courier, fax or email confirmation of delivery.
22.3 Notice actually received. If a party actually receives any notice or other communication, this will be good enough.
  1. Force majeure
23.1 Parties not liable No party will be responsible for any breach of this Agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.
23.2 Party affected to notify other party. If there is an event of force majeure, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this Agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.
23.3 Right to cancel. If a party cannot fulfil a material (significant) part of its responsibilities under this Agreement for more than 60 days because of force majeure, the other party may cancel this Agreement by written notice.
  1. Assignment and subcontracting.
24.1 No assignment. No party may assign its rights under this Agreement, in whole or in part. We may assign this Agreement to any successor or purchaser of our business or some of our assets.
24.2 Exception. Despite this clause, we may cede and assign all rights and obligations under this Agreement to a related person without your prior written consent, provided that we notify you within a reasonable time of the event occurring.
24.3 Our third party contractors. We may sub-contract or delegate our obligations under this Agreement to third party contractors. We will remain liable for performance of the third party contractors. No one may require us to disclose the terms (including payment terms) of any sub-contract entered into with respect to our obligations under this Agreement.
25 Non Solicitation
25.1 The restriction period. For a period of one year following the execution of this Agreement or its expiration or termination of any other Agreement between the parties, the later of the two events (the “Restriction Period”) the parties will not, directly or indirectly, in any capacity (whether as principal, agent, partner, employee, shareholder, unit holder, joint venture, director, trustee, beneficiary, manager, consultant or adviser), in any way endeavour to hire or to keep as a free contractor or representative, any person who is a worker of the other party, whether they be employees or contractors. To clarify, this restriction would apply even if such worker’s employment with a party has expired or terminated during the Restriction Period.
25.2 When approached. In the case where a party is approached by a person who is or was an employee or contractor of the other party during the Restriction Period, the other party will not propose to nor hire or keep as an independent service provider or representative any such person.
  1. Relationship
26.1 No partnership. Nothing in this Agreement will be construed as constituting a partnership between the parties and no party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.
26.2 No employment relationship. Each party enters into the Agreement as an independent contractor. The Agreement does not create any other relationship, including employment for any purpose, partnership, agency or joint venture relationship.
  1. General
27.1 Entire Agreement. The Agreement is the entire Agreement between the parties on the subject.
27.2 Changes to the terms. We may change the terms at any time and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on our website or by email. If you do not agree with the change you must stop using the Services. If you continue to use the Services following notification of a change to the terms, the changed terms will apply to you and you will be deemed to have accepted such terms.
27.3 Changes to any third party software license Agreement. We will notify you of any changes to any third party software license terms by placing a notice in a prominent place on our website, or notifying you by email. The updated third party software license terms will be effective immediately and you will be deemed to have accepted them upon notification.
27.4 Waiver (giving up of rights). Any favour we may allow you will not affect or substitute any of our rights against you.
27.5 Severability. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this Agreement if it does not change its purpose.
27.6 Governing law. The laws of New South Wales govern this Agreement.
27.7 Jurisdiction. The parties submit to the exclusive jurisdiction of courts of New South Wales.
27.8 Non-exclusivity. We may provide any Services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.
27.9 Costs. Each party is responsible for its own costs of drafting and negotiating this Agreement.
27.10 Right to reference. You consent to us using your name and a general description of the goods or Services in any marketing or sales material.
27.11 Publicity. A party will not make any announcement or statement to the press about this Agreement, without first getting written permission from the other party.
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