1.1 Documents Forming Agreement and Priority
(a) These Terms and the accompanying Proposal are our offer of Services to you and constitute our Agreement with you.
(b) If there is any inconsistency between the Proposal and these Terms, the Proposal will take priority to the extent of the inconsistency.
You accept and agree to be bound by our Agreement where, after receiving a copy of these Terms and the Proposal you:
(a) execute our Proposal;
(b) communicate to us, either verbally or in writing that you have accepted our Proposal; or
(c) otherwise provide us instructions to commence work in accordance with the Proposal, including by instructing us to obtain a licence to any Third Party Product.
2.1 Project Work
Where our Services involve the delivery of a specific project as scoped in our Proposal, this Agreement commences on the Acceptance Date and will continue for the Term of the project as specified in the Proposal.
2.2 Continuing Engagement
(a) Where the Services specified in the Proposal are for a continuing engagement, this Agreement commences on the Acceptance Date and continues:
(i) for the Initial Term; and
(ii) after expiry of the Initial Term, for the Rollover Periods, until terminated in accordance with clause 15.
(b) If no Initial Term or Rollover Period has been specified in the Proposal:
(i) the Initial Term will be deemed to be 6 months from the Acceptance Date; and
(ii) each Rollover Period will be deemed to be 6 months, commencing on the day immediately following the final day of the preceding term.
3. Delivery of Services
3.1 Scope and Nature
(a) Our Proposal will set out the scope and nature of the Services that we are to provide to you as well as any Third Party Products or integrations that are required in order for us to deliver the Services.
(b) You may request a variation to the Services agreed in the Proposal by giving us written notice of the requested variation (Variation Request), which we may accept or refuse at our discretion.
(c) If we agree to a Variation Request, the additional or altered services that we are to provide as well as our fees associated with doing so will be governed by these Terms.
3.2 Services Generally
(a) We will provide the Services to you in a professional manner with due care, skill and diligence.
(b) We will use our best endeavours to undertake and complete all Services in line with the timeframes we have provided in our Proposal. However, you acknowledge and agree that all timeframes provided are estimates only, and that we will not be liable for any delay in final delivery of the Services.
(c) You acknowledge that technical difficulties or other unforeseen events may arise during the delivery of our Services which may require an adjustment to the estimated timeframes.
(d) We are not responsible for any delay in completing or delivering Services, in circumstances where:
(i) you have made a Variation Request (as defined in clause 3.1(b);
(ii) the delay is caused by circumstances out of our reasonable control; or
(iii) the delay is caused by an event of Force Majeure.
4.1 Product Testing
(a) Where our Services involve the development of new Software, or the implementation of an existing Software solution for you, unless an alternative process is specified in the Proposal:
(i) we will conduct our own testing on the Software prior to project completion to ensure the Software meets all specifications agreed in our Proposal (Quality Test); and
(ii) following completion of our Quality Tests we will provide you with access to a version of the Software, and will request that you:
(A) undertake your own testing to confirm the Software meets the specifications agreed in our Proposal; and
(B) if you do not consider the Software meets the required specifications, provide us, within fourteen days, with a detailed notice setting out the deficiencies you consider exist in the Software (Issues Notice).
(b) If you do not provide us with an Issues Notice in the prescribed period, or do not otherwise choose to undertake your own testing in the manner contemplated in 4.1(a)(ii), you are confirming that you are satisfied with the Software and that it complies with all specifications set out in our Proposal or as otherwise agreed.
(c) In the event that we receive an Issues Notice:
(i) where we consider the matters raised in the Issues Notice to be accurate and correct, we will take steps to rectify the identified deficiencies; or
(ii) if we consider the matters raised in the Issues Notice are not accurate and correct and do not require rectification, we will provide you with a detailed explanation of our conclusions in this regard.
(d) If you dispute our conclusions regarding any matters that you have raised in an Issues Notice, the dispute is to be resolved in accordance with the process for disputes set out in clause 14.
4.2 Third Party Products
(a) If as part of the delivery of our Services you are required to obtain any Third Party Product, you acknowledge and agree:
(i) you must comply with all of your contractual obligations with respect to the implementation and use of the relevant Third Party Product;
(ii) you are responsible for all fees and expenses that are associated with the Third Party Product;
(iii) we are not responsible for and make no representation or warranty regarding the nature, quality, functionality, availability or fitness for purpose of any Third Party Product; and
(iv) the availability and functionality of Third Party Products may impact on and detrimentally effect our ability to deliver the Services.
(b) You agree that you indemnify us against any Claim made against us by the provider of a Third Party Product arising howsoever from your use of that product, or failure to comply with your obligations with respect to that Third Party Product.
(c) You hereby release and hold us harmless in respect of any Loss that you may suffer as a result of your implementation and use of any Third Party Product (including where we are implementing the Third Party Product on your behalf).
You acknowledge that where our Services incorporate or integrate with Third Party Products, you may be required to update or upgrade the relevant Third Party Products, at your expense, in order to enable us to continue to deliver the Services to you.
6.1 Access to Software
(a) To the extent that we have provided customised Software as part of the Services (including as a modification to or integration with a Third Party Product), we grant you a Licence in respect of the Software during the Term subject to your compliance with the terms of this Agreement and any reasonable and lawful direction that we provide from time to time.
(b) You agree that subject to any right under, sections 47B (3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), you will not either directly or indirectly, copy, reproduce, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software or the Services.
7. Data Migration and Loading
(a) Where specified in the Proposal, we will provide data migration or data loading services to you following the completion of our Services or implementation of new or developed Software or Third Party Products.
(b) You acknowledge and agree that you are responsible for ensuring that you have appropriately backed-up all data that is to be migrated or loaded into any new Software or Third Party Product.
(c) You hereby release and hold us harmless from any Loss suffered by you as a result of the corruption, conversion or loss of any data arising from or relating to the delivery of our Services or any data migration or data loading services.
8.1 Service Level Agreement (SLA)
(a) The support levels and services that we provide to you as part of our Services, or any Software that we have provided, are as set out in our Service Level Agreement.
(b) If our Service Level Agreement did not form part of the Proposal that we provided to you, then you are not entitled to the benefit of support services, unless otherwise specified in our Proposal as included in the Fees that you are paying to us.
9. Your responsibilities
9.1 Your Systems
(a) You are solely responsible for obtaining and maintaining all systems needed to use any Third Party Product, Software or Services we provide.
(b) Where you are required to update your own systems in order to continue integrating or interacting with any Third Party Product, you acknowledge and agree that you are solely responsible for all costs and expenses associated with such upgrades.
9.2 Your warranties
You represent and warrant that:
(a) you will provide us with all information and co-operation reasonably necessary to enable us to perform our obligations under this Agreement;
(b) you have the right to:
(i) provide us with access to your systems and infrastructure; and
(ii) grant us a licence, and do grant us a licence, to use all data, documentation, content and materials that you provide to us, for the purposes of our delivery of the Services;
(c) you have the capacity and authority to enter into this Agreement and to perform all your obligations under it.
9.3 Your acknowledgements
You acknowledge and agree that:
(a) we will not be liable for any Loss or damage caused by factors outside of our control that impact the delivery of the Services or operation of any Software and Third Party Products, including without limitation factors caused by your internet service provider, telecommunications provider, third-party hosting and web servers or any other third party factors;
(b) we have not made any representations or warranties that the Services, Software or any Third Party Product will be error free or available at all times without interruption; and
(c) we may immediately suspend your access to any Software we have provided, or the delivery of our Services, without any liability or notice to you where we consider it necessary because:
(i) a Claim is made alleging that the continued provision of the Services or Software or any part of it infringes the rights of any person, or is in breach of any Law;
(ii) we are reasonably of the view that you have breached or are likely to breach a provision of this Agreement; or
(iii) any Fees that are due and payable in accordance with the terms of this Agreement have not been paid as and when they fall due.
9.4 Publicity and Association
(a) You agree that we may publish your branding and any case studies regarding the Services that we have delivered to you on our website or in any other marketing content that we develop.
(b) You acknowledge and agree that:
(i) if we are required to disclose information in accordance with the ASX continuous disclosure obligations, we may disclose your company name, and the nature and value of our agreement;
(ii) in certain circumstances we may obtain benefits from our service partners (such as Microsoft) that are linked to customers associating us with the implementation of that service partner’s products (Association Benefit); and
(ii) you will comply with our request and direction and take all reasonable steps required in order to assist us in obtaining the Association Benefit.
10. Fees, charges and payments
(a) Our Proposal sets out the Fees that you are required to pay to us in consideration for our delivery of the Services.
(b) The Proposal may also set out an ongoing Fee for a licence to use any Software that we have provided in the delivery of our Services.
(c) Fees must be paid to us at the times and in the manner specified in our Proposal, or as otherwise agreed between us from time to time.
(d) We will issue you with a Tax Invoice setting out the Fees payable in each relevant billing period, as prescribed in the Proposal.
10.2 Fee Variation
Where the nature of our engagement is ongoing in the manner contemplated by clause 2.2, you acknowledge and agree that our Fees will increase on each anniversary of the Acceptance Date by a maximum of the rise of the Brisbane consumer price index from the previous year (as measured by the Australian Bureau of Statistics).
Any costs and reasonable out-of-pocket expenses which are necessary to provide access to the Software or to deliver the Services (Expenses) will be paid or reimbursed (as the case may be) by you where we have received prior written approval from you.
10.4 Failure to Pay
If you fail to make payment of all amounts rightfully due and owing to us in accordance with this Agreement, we may:
(a) immediately suspend access to the Software or delivery of our Services;
(b) charge interest on the overdue amount at the Default Rate as from the first day that payment is overdue; and
(c) charge you for all costs and expenses incurred by us in recovering our outstanding Fees from you, including legal fees (on a solicitor and own client basis) and court costs, which you agree to pay upon demand.
Unless otherwise expressly stated, all amounts under this Agreement are exclusive of GST. If GST is imposed on any supply made under or in connection with this Agreement and GST has not been accounted for in determining the consideration payable, we may recover the GST amount from you.
11. Disputed Fee
(a) If you dispute the whole or any portion of the amount claimed in a Tax Invoice that we have issued, you must:
(i) pay the portion of the Tax Invoice which is not in dispute; and
(ii) provide Notice to us within seven (7) days of receipt of the Tax Invoice of your reasons for disputing the Tax Invoice.
(b) Following receipt of your disputed invoice Notice, we will within a reasonable time provide you with evidence substantiating the Tax Invoice and addressing your reasons of dispute.
(c) If the dispute cannot be resolved within seven (7) days of us providing evidence under paragraph 11(b), then the dispute will be decided in accordance with the dispute resolution process set out in clause 14.
12. Intellectual Property Rights
(a) Each party retains all right, title and interest in and to its pre-existing Intellectual Property Rights.
(b) Nothing in this Agreement is to be construed as an assignment of ownership of any of our Intellectual Property Rights in any content, materials, Software or documents to you, whether developed prior to or throughout the term of this Agreement.
(c) We hereby grant to you a revocable, non-sublicensable, non-exclusive licence to use any Intellectual Property Rights in content, materials, Software and documents that we have provided to you strictly for the purposes of your use of any Software that we have provided to you, or to enable you to obtain the benefit of the Services that we are providing to you. For the avoidance of doubt this licence does not extend to the sale or provision to any third party of the content, materials, Software or documents that we provide to you.
(a) Each party must keep confidential all information that is by its nature confidential, or is designated by a party as confidential, or that a party knows or ought to know is confidential, other than information which is or becomes public knowledge otherwise than by breach of this Agreement or any other confidentiality obligation.
(b) The obligations in clause 13(a) do not apply to the extent necessary to enable a party to make any disclosure required by Law, to the extent necessary to enable a party to perform its obligations under this Agreement or to any disclosure agreed in writing between the parties.
(a) If a dispute arises between the parties to this Agreement which they cannot resolve, then the party claiming that a dispute has arisen must deliver to the other party a notice containing particulars of the dispute (Dispute Notice).
(b) During the period of 10 Business Days after delivery of the Dispute Notice, or any longer period agreed in writing by the parties to the Dispute (Initial Period), the parties must meet in good faith in an attempt to resolve the Dispute.
(c) If the parties cannot resolve the Dispute within the Initial Period then unless they all agree in writing otherwise, they must appoint a mediator to mediate the Dispute in accordance with the rules of the Resolution Institute. The parties must participate in the mediation in good faith.
(d) The mediator must be agreed on by the parties within 10 Business Days after the Dispute Notice is given to the parties and if they cannot agree within that time the mediator will be nominated by the president of the Resolution Institute.
(e) The mediation concludes when:
(i) all the parties agree in writing on a resolution of the Dispute; or
(ii) a party, not earlier than 20 Business Days after appointment of the mediator, has given 5 Business Days’ notice to the other parties and to the mediator, terminating the mediation, and that 5 Business Days has expired without all the parties agreeing in writing on a resolution of the issue.
15.1 Termination by Notice
Either party may terminate this Agreement upon the provision of thirty (30) days written notice to the other party.
15.2 Termination for Breach
(a) If either party breaches any provision of this Agreement and such a breach is capable of rectification, the other party must give the defaulting party written notice requesting that the breach be rectified within 10 Business Days (Breach Notice).
(b) If a breach has not been rectified within 10 Business Days of the giving of a Breach Notice, the party giving the Breach Notice may terminate this Agreement immediately by notice in writing to the other.
(c) If any party breaches a material term and the breach is not capable of rectification, the other party may terminate this Agreement immediately by notice in writing to the party in breach.
15.3 Effect of Termination
Upon termination or expiry of this Agreement:
(a) you must pay all outstanding Fees, Expenses and any other payments due to us under or in connection with this Agreement;
(b) you specifically acknowledge that where you have exercised a right of termination pursuant to clause 15.1 you remain liable for and must pay to us
(i) all Expenses that:
(A) we have incurred on your behalf prior to your notice of termination; and
(B) that we will incur following your termination, where such Expenses were committed to prior to our receipt of your notice of termination;
(ii) where our engagement has been for defined project work of the nature contemplated in 2.1, all Fees that would have otherwise become due and payable to us pursuant to this Agreement;
(c) you must return or delete all of our Confidential Information that has been provided to you or accessed by you under or in connection with the Agreement;
(d) we must return or delete all of your Confidential Information that has been provided to us or accessed by us under or in connection with this Agreement except for one copy where required for quality assurance, legal or insurance purposes; and
(e) any accrued rights or liabilities of a party will not be affected.
16. Restrictive Covenants
(a) You undertake to us that you will not during this Agreement or for a period of 12 months after it engage in any activity to solicit, canvass, induce or encourage any person who was at any time during the term of this Agreement an employee, a director, or agent of ours, to leave our employment or agency.
(b) For the avoidance of doubt the posting of an advertisement for a job opportunity to a public forum or board will not fall within the scope of the restraint contemplated in 16(a).
17.1 Your indemnity
You agree to indemnify us and to keep us indemnified against any Loss that may be suffered by us arising from or in connection with (directly or indirectly):
(a) any breach or default by you of this Agreement (including any breach of warranty);
(b) a negligent act or omission by you; and
(c) your failure to comply with any Law.
17.2 Our indemnity
(a) Subject to clause 17.2(b), we will indemnify you with respect to any damages awarded against you in connection with a Claim made by a third party that that the Software or any part of the Services that we provide (excluding any Third Party Products) infringe the Intellectual Property Rights of that third party.
(b) We will not be liable to you under clause 17.2(a) if:
(i) you do not notify us of the other person’s Claim within 10 Business Days after becoming aware of it;
(ii) our ability to defend the Claim has been prejudiced by your non-compliance with any of your obligations under this Agreement;
(iii) you do not give us reasonable assistance (based on the circumstances) in defending the Claim; or
(iv) you do not permit us to have control of the defence of the Claim and all related settlement negotiations.
(a) Subject to clause 18(c), to the extent permitted by Law, neither party will be liable to the other party for any Consequential Loss suffered or incurred by the other party whether in contract, equity, tort (including negligence) or otherwise in connection with the Agreement even where the other party were appraised of the likelihood of such Loss occurring.
(b) Subject to clause 18(c), to the extent permitted by Law, our maximum liability to you, whether in contract, equity, tort (including negligence) or otherwise in connection with the Agreement (including under an indemnity), is limited to the greater of:
(i) the amount paid out to us under any relevant insurance policy (less any excess); and
(ii) the Fees that you have paid to us in the 12 month period immediately preceding the event giving rise to the liability.
(c) The exclusions and limitations of liability in clauses 18(a)and 18(b) do not apply to liability in relation to:
(i) personal injury, including sickness and death;
(ii) any fraudulent act or omission; or
(iii) any breach by us of any of our confidentiality obligations under clause 13.
(d) A party who suffers Loss must use reasonable steps to mitigate its Loss. The other party will not be responsible for any Loss to the extent that the injured party could have avoided or reduced the amount of the Loss by taking reasonable steps to mitigate its Loss.
(e) Subject to sub clause (f), any condition, guarantee or warranty which would otherwise be implied in this Agreement is excluded.
(f) Liability for breach of a guarantee conferred by the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to us providing the Services again or the payment of the cost of having the Services supplied again.
(a) Subject to clause 19(b), a party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.
(b) Notwithstanding clause 19(a) you hereby consent to our assignment, novation and transfer of our rights and obligations under this Agreement without further notice to you where we:
(i) merge or amalgamate with another company;
(ii) sell or dispose of our business (whether through share or trade sale); or
(iii) are otherwise involved in a reconstruction of our corporate group.
(c) You acknowledge and agree that if we exercise our rights in the manner contemplated by 19(b), we may transfer your materials, personal information, confidential information and other documentation and materials to an incoming third party in order to give effect to the proposed transaction.
20. General matters
Clauses 10, 12, 13, 14, 15.3, 17, 18, and 20.1 survive the expiration or termination of this Agreement along with all other provisions which by their nature would be reasonably expected to survive.
Subject to any express right granted by a preceding provision of this Agreement, this Agreement may only be varied by a further written agreement signed by or on behalf of each of the parties.
20.3 Force majeure
Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement, other than an obligation to make payment for Services that have been delivered, if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds thirty (30) days, either party may immediately terminate this Agreement on providing Notice to the other party.
20.4 Entire Agreement
This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.
This Agreement is governed by the law in force in the State of Queensland and each party submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this Agreement.
21. Definitions and interpretation
In this Agreement:
Acceptance Date means the date the agreement is accepted by you or on your behalf under clause 1.2.
Agreement means this document and any schedules or annexures to it or contemplated by it and our Proposal.
Business Day means a day that is not a Saturday, Sunday or any other day that is a public holiday or bank holiday in the place where an act is to be performed or a payment is to be made.
Claim includes a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
Confidential Information means information that is by its nature confidential, or is designated by a party as confidential, or that a party knows or ought to know is confidential, other than information which is or becomes public knowledge otherwise than by breach of this Agreement or any other confidentiality obligation.
Consequential Loss means indirect economic loss, loss of income or profit, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of contract, loss of data, liability under other agreements or to third parties, loss of opportunity or any other special, indirect, remote or punitive loss or damage.
Default Rate means 10% per annum accruing from and including the date that payment is one day overdue and ceasing to accrue on the date we receive payment in full of all overdue Fees and other amounts rightfully due and owing to it under the Agreement.
Fees mean the fees payable to us under this Agreement calculated in accordance with the Proposal. Except where otherwise agreed, to ensure efficient and effective delivery, resources will be allocated to work in 0.25 day, 0.5 day, and full day increments and when exceeding the full day, time will be allocated in 1 hour increments.
Force Majeure means any cause beyond the reasonable control of a party and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost, including an act of God, fire, earthquake, storm or flood, pandemic, epidemic, order of a government authority and the failure of third-party equipment, software, technology or other services necessary for the performance of a party’s obligations under this Agreement.
Initial Term means the period described in the Proposal or as otherwise prescribed by clause 2.2(b).
Intellectual Property Rights include all copyright, trade mark, design, patents, semiconductor or circuit layout rights and other proprietary rights, and any rights to registration of such rights existing anywhere in the world, whether created before or after the date of the Agreement.
Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise.
Licence means a revocable, worldwide, non-exclusive and non-transferable licence to access and use the Software.
Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.
Proposal means our documentation that contains information about the specific contract between the parties.
Rollover Period means the period described in the Proposal or as otherwise prescribed by clause 2.2(b)
Service Level Agreement means the agreement that we provide to you that is separate to these Terms and our Proposal, that sets out the level of support and assistance we will provide to you in regard to the Software and the Services.
Services means the scope of services that we will provide to you as set out in our Proposal.
Software means, as the context dictates, either a program or application that we have developed for you in accordance with the specifications set out in our Proposal, or an existing program or application that we have implemented on your systems and infrastructure as part of the delivery of our Services.
Support Services means those services as set out in our Service Level Agreement.
Tax Invoice means an invoice issued by us for payments required under this Agreement.
Term means the duration of this Agreement comprising:
(a) the period for completion of a specific project, as defined in clause 2.2(a); or, where the context dictates
(b) the Initial Term and each subsequent Rollover Period.
Terms means this document and the rights and obligations set-out herein.
Third Party Product means any third-party software product that we provide to you or that you otherwise obtain as part of our engagement with you.
User Documentation means any documentation or material provided to you containing technical information regarding our Services, any Software that we have provided or any Third Party Product.
Unless it is expressly stated that a different rule of interpretation will apply:
(a) a reference to an agreement includes any variation or replacement of the agreement;
(b) “include”, “includes” and “including” must be read as if followed by the words “without limitation”;
(c) agreements, representations and warranties made by two or more people will bind them jointly and severally;
(d) no rule of construction will apply to a provision of a document to the disadvantage of a party merely because that party drafted the provision or would otherwise benefit from it; and
(e) if any part of the Agreement is invalid, unlawful or unenforceable, the invalid, unlawful or unenforceable part of the Agreement will not apply but the other parts of the Agreement will not be affected.