Agreements for the supply of products and services
- If we issue a quotation to you, the quotation is only open and capable of acceptance for a period of 30 days from the date of issue.
- In respect of each Accepted Quotation, provided that you have supplied us with the Accepted Quotation, an executed direct debit form and paid any deposit, specified in the Accepted Quotation, a separate legally binding contract between you and us will be formed, comprised of the following documents (each such contract, an Agreement):
- these Terms of Service;
- the Service Schedule(s); and
- the Accepted Quotation.
- To the extent of any inconsistency between any of the documents listed in subclauses 2(a) to 1.2(c), the document listed first in clause 1.2 will prevail, except to the extent expressly specified otherwise in the Service Schedule(s) or Accepted Quotation.
- Our obligation to supply products and services under an Agreement is limited to those products and services expressly specified in the relevant Accepted Quotation.
- We may update these Terms of Service or a Service Schedule at our discretion at any time before you enter into an Agreement with us. Unless otherwise agreed between the parties in writing, any changes will only apply to Agreements entered into after we make the amendments. We will provide you with a copy of the amended versions or upload them to our website. It is your responsibility to ensure that you have reviewed and understood them before you enter into an Agreement with us.
Term of an Agreement
- Each Agreement starts on the date specified in the Accepted Quotation, or if the Accepted Quotation does not specify a commencement date, the Agreement will start on the date of execution of the Accepted Quotation by you (Commencement Date).
- If a contract term, initial term or minimum term or minimum period is specified in the Accepted Quotation (Initial Term) we will notify you at least 90 days prior to the expiry of the Initial Term or then current Renewal Term of the forthcoming renewal of the Agreement and remind you of your and our respective rights to terminate the Agreement in accordance with clause 3.
- Upon expiry of the Initial Term or the then current Renewal Term (as applicable), the Agreement will automatically continue for subsequent consecutive periods each of equivalent length to the Initial Term (each such period, a Renewal Term), until and unless either party notifies the other party in writing that it wishes to terminate the Agreement at least 60 days prior to the expiry of the Initial Term or the then current Renewal Term (as applicable), in which case if such notice is provided, the Agreement will terminate at the end of the Initial Term or the then current Renewal Term (as applicable).
- If an Agreement does not have an Initial Term, the Agreement will commence on the Commencement Date and will continue until the Requested Products have been delivered in full and the Services have been configured and are ready for use, and thereafter until:
- you terminate the Agreement on thirty (30) days’ prior written notice to us; or
- we terminate the Agreement on sixty (60) days’ prior written notice to you.
Supply of Requested Products and/or Services
- If you enter into an Agreement with us, we will use our best endeavours to supply and/or procure the supply of the products and/or services specified in the Accepted Quotation (Requested Products and/or Services) to you, substantially in accordance with any Specifications.
- You must provide all necessary:
- cooperation, permissions, authorisations, assistance and consents; and
- access to Your Personnel, Your Systems, servers, networks, data, content, premises, documentation, records, resources, equipment, sites and information,
that is reasonably required by us to supply and/or procure the supply of the Requested Products and/or Services to you.
- To the extent reasonably required by us, you must arrange safe and timely access to Your Site for Our Personnel to provision, install, support and maintain any applicable Requested Product and/or Service. Support and maintenance in relation to any Requested Product and/or Service is outside the scope of an Agreement unless the applicable Accepted Quotation expressly specifies that they will be provided. For the avoidance of doubt, even where a Service Schedule refers to the supply of support or maintenance services, we have no obligation to provide such services unless the applicable Accepted Quotation expressly specifies that such services will be provided.
- We bear no liability for:
- the security and content of any communication that you receive, access, transmit or rely upon when using any Requested Product and/or Service;
- undertaking any installation, integration, provisioning configuration or setup of any Requested Product and/or Service; or
- ensuring that Your Systems are compatible or interoperable with any Requested Product and/or Service,
except to the extent expressly specified to the contrary in an Accepted Quotation or Service Schedule.
Availability and performance of the Requested Products and/or Services
- We warrant and guarantee that the Requested Products and Services will operate materially in accordance with the Specifications.
- Subject to the ACL and any other non-excludable guarantees implied into an Agreement or any other Applicable Law, we do not guarantee or warrant that any Requested Product or Service will be:
- uninterrupted and error-free;
- meet your specific needs; or
- satisfy your specific requirements,
unless expressly specified otherwise in an Accepted Quotation.
- Before entering into an Agreement with us for the provision of Requested Products and/or Services, you must ensure that your details specified in the relevant Accepted Quotation are correct and that the Requested Products and Services are fit for your needs and intended uses.
- If an Accepted Quotation specifies Service Levels, we will use our best endeavours to meet them.
- We may vary any Requested Products and Services in our sole discretion, but only if it doesn’t materially reduce their performance, remove functionality or result in the Requested Products and Services becoming incompatible with any of your other products or services that the Accepted Quotation expressly specified the Requested Products and Services will be compatible with.
Your Data
- In an Agreement, the term “Your Data” means data in any form that is entered into, uploaded into or generated by any Requested Product and/or Service by your End Users.
- As between you and us, you own the Intellectual Property Rights in Your Data and an Agreement does not transfer any Intellectual Property Rights in Your Data to us. To the extent that we own any such Intellectual Property Rights, we hereby assign them to you.
- You hereby grant us an irrevocable, non-exclusive, transferable, assignable and sub-licensable worldwide, perpetual licence to collect, record, organise, structure, use, store, adapt, modify, alter, retrieve, disclose, disseminate, align, combine, erase, destroy, commercialise and exploit Your Data:
- to perform our obligations under an Agreement with you;
- to comply with our legal obligations; and
- otherwise to improve our products and services, provided that we first de-identify Your Data.
- You are responsible for ensuring that:
- your End Users are lawfully entitled (and where required, licensed) to disclose all of Your Data that is entered by them into Your Systems, Our Systems and any Requested Product and/or Service, to us;
- all of Your Data is accurate and up-to-date; and
- the exercising of our rights under the licence granted pursuant to clause 3 by us and/or Our Personnel does not breach any Applicable Law or any person’s rights; and
- you have obtained any necessary approvals, licences and consents required for us and/or Our Personnel to exercise our rights under the licence granted pursuant to clause 3.
- We do not provide data backup services in respect of Your Data unless an applicable Accepted Quotation expressly specifies that we will.
- Some of our products and services may be “cloud-based” services. This means that they are hosted using servers located in third party data centres. For cloud-based Requested Products and/or Services, Your Data may be hosted by us or our Third Party Providers on hardware or infrastructure located inside or outside Australia that may not be owned by us.
- Data loss and corruption can occur, even though we take precautions to ensure it doesn’t occur. In the unfortunate event of any loss, destruction, corruption or damage to any of Your Data that is stored in any Requested Products and/or Services, subject to any non-excludable remedies available to you under Applicable Law:
- your sole and exclusive remedy against us is to request that we use reasonable endeavours to restore Your Data that has been lost from the latest back-up that we can access; and
- we aren’t liable for any such loss, destruction, alteration, corruption or damage, or for any unauthorised access or disclosure, to Your Data except to the extent it was caused or contributed to by our negligent act, wilful misconduct or breach of the Agreement.
- You must indemnify us in respect of any loss and damage that we suffer or incur as a result of any claim by a third party that:
- our and/or Our Personnel’s use of Your Data in accordance with the licence granted in clause 3 infringes the Intellectual Property Rights and/or any other rights of any person or breaches any Applicable Law; or
- access to and/or use of Your Data by any End User breaches the Intellectual Property Rights and/or any other rights of any person or breaches any Applicable Law,
except to the extent caused or contributed to by our negligent act, wilful misconduct or breach of the Agreement.
Your Systems and Our Systems
- An Agreement does not transfer or assign any ownership in any of Our Systems to you, nor in any of Your Systems to us.
- You must not grant or permit the grant or existence of any security interest in Our Systems (except a security interest in our favour) unless we agree in writing.
- We will not permit the grant of existence of any security interest in Your Systems by us, unless you agree in writing.
- We are not responsible for Your Systems. You acknowledge and agree that you are responsible for ensuring that Your Systems are:
- compatible with Requested Products and/or Services; and
- suitably maintained, including by ensuring that all applicable security and other patches are applied, and Your Systems are used, in each case in accordance with the manufacturer’s recommendations.
Intellectual Property Rights
- As between you and us, we and our licensors, and not you, own all Intellectual Property Rights in:
- any Requested Product and/or Service (including in any software, Source Code, Object Code, databases and database structures that are incorporated therein, installed on, or supplied in relation to, each Requested Product and/or Service);
- any changes, improvements, inventions, discoveries, upgrades or updates made to any Requested Product and/or Service (irrespective of which person suggested or requested them); and
- all reports and other output (excluding Your Data) delivered or made available in or via any Requested Product and/or Service; and
- any software tools, reports, configurations, Source Code, Object Code, libraries and reports that we may develop at any time (irrespective of which person suggested or requested them),
(collectively, Our Intellectual Property Rights).
- To the extent that you own any of Our Intellectual Property Rights, you hereby assign them to us.
- You must not represent to third parties that you own any of Our Intellectual Property Rights.
- You must not, and you must ensure that Your Personnel do not, directly or indirectly do anything that would or could interfere with, invalidate, jeopardise, limit, or put in dispute any of Our Intellectual Property Rights, nor may you authorise any act that would or could be inconsistent with Our Intellectual Property Rights.
- You hereby assign to us all Intellectual Property Rights in all modifications, improvements, inventions, discoveries, upgrades, updates and comments that you or Your Personnel make in respect of any Requested Product and/or Service, including any requests for new features, that you and/or your employees may make or suggest regarding them (each, an Enhancement). Each such Enhancement becomes our sole and exclusive property upon assignment to us. The assignment is effective when you and/or your employees make or suggest the Enhancement including under section 197 of the Copyright Act 1968 (Cth) and in equity. You must procure from Your Personnel, and upon request by us, supply to us, a freely given, irrevocable written consent from each of them to the infringement of any Moral Rights that they may have in any Enhancement by us or any third parties that we determine in our sole discretion.
Confidentiality
- Each party may receive information from the other party (disclosing party) during the Term that is marked as confidential or that has the quality of confidential information under Applicable Law (Confidential Information).
- The party that receives Confidential Information from the disclosing party (receiving party) must not at any time, without the disclosing party’s prior written consent, use and/or disclose any Confidential Information, except to:
- exercise its rights (including under any licence granted to it under this Agreement); and
- satisfy its obligations,
under the Agreement or to comply with Applicable Law.
- We may disclose your Confidential Information to our suppliers where required under a contract in place with the supplier for the supplier to provide us with goods or services that we use to supply any Requested Product and/or Service.
- Confidential Information excludes:
- information that has been independently developed, obtained or is known by the receiving party, without breaching any duty of confidence owed to the disclosing party;
- information that was already known to it at the time of disclosure to the receiving party by the disclosing party, as evidenced using contemporaneous documents;
- information that is in the public domain, except where due to any breach of any duty of confidence or an Agreement;
- information that the receiving party must disclose under the rules of any recognised stock exchange on which it or its holding company is listed; and
- Your Data.
- You acknowledge and agree that we may include your name, logo and the location of Your Site, as well as a general description of the Requested Products and/or Services that you obtain from us, in any marketing, sales or promotional material that we publish or disseminate in any form.
Acceptable Use
- You acknowledge and agree that you are responsible for ensuring that any person that accesses or uses any Requested Product and/or Service (each, an End User):
- adheres to all applicable Documentation, Applicable Law, and our directives and policies in respect of such access or use;
- does not, and does not permit others to, infringe Our Intellectual Property Rights;
- grants us access to Your Data, Your Personnel, Your Systems, and provides any cooperation and assistance reasonably required by us to fulfill our obligations under the Agreement;
- does not share their unique password or any other access credentials for any Requested Product and/or Service with others; and
- immediately informs us of any suspected or actual unauthorised use or disclosure of access credentials for any Requested Product and/or Service.
- You acknowledge and agree that you must:
- maintain a reliable internet connection so that we can gain remote access to Your Systems (and Our Systems, if Our Systems are installed at Your Site) when reasonably required by us to provide any Requested Product and/or Service;
- maintain Your Site in a manner suitable for the use of Requested Products and/or Services;
- safely install and properly maintain all building cabling at Your Site in accordance with applicable industry standards required for Requested Products and/or Services;
- not, nor permit any person to, interfere with or prevent the proper functioning of, any Requested Product and/or Service; and
- not, nor permit any person to, remove, any trademark or copyright notices, or confidentiality legends, notices, or other means of identification, used in relation to any Requested Product or Service.
- The availability of each Requested Product and/or Service is subject to bandwidth limitations, internet and network downtime and congestion, database size limitations, throughput limitations, and other technical and non-technical restrictions, as outlined in the Documentation.
- Unless expressly specified otherwise in an Agreement, you must not, and must not permit any person to:
- copy, alter, modify, tamper with, or create any derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer or reverse compile any Requested Product or Service;
- use any Requested Product or Service in a way that breaches Applicable Law or infringes upon the legal rights of any person in any jurisdiction;
- license, sublicense, resell, assign, transfer, novate, distribute, or provide access to any Requested Product or Service without our prior written consent;
- develop, manufacture or supply any product or service in competition with any Requested Product or Service;
- to “frame”, “mirror” or serve any Requested Product or Service on any web server or other computer server over the Internet or any other network;
- use any Requested Product or Service to infringe upon our or any third party’s Intellectual Property Rights;
- use any Requested Product or Service to store, transmit, distribute, or introduce malicious programs into Our Systems, network, or servers (e.g., viruses, worms, trojan horses, e-mail bombs);
- use any Requested Product or Service to make fraudulent offers of goods or services;
- create derivative works or any other material incorporating, using, or developing any of Our Intellectual Property Rights;
- use any Requested Product or Service to carry out security breaches or disruptions of network communication, including accessing data of which you are not an intended recipient, logging into a server or account that you are not expressly authorised to access, corrupting any data, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
- use any Requested Product or Service to cause damage or injury to any person or property;
- use any Requested Product or Service to execute any form of network monitoring designed to intercept data not intended for you; or
- use any Requested Product or Service to circumvent user authentication or security of any of our hosts, networks, or accounts or those of our customers or Third Party Providers,
(together, the Acceptable Use Policy).
- You must indemnify us for any loss and damage that we may suffer or incur as a result of your breach of our Acceptable Use Policy, except to the extent that it was caused or contributed to by our negligent act, wilful misconduct or breach of the Agreement.
- You acknowledge and agree that you must promptly notify us if:
- any person breaches or is likely to breach our Acceptable Use Policy; or
- any person alleges that a Requested Product or Service infringes upon a third party’s Intellectual Property Rights or other rights, and in such circumstances, you agree to:
- cooperate with us and provide us with assistance in connection with such claims; and
- grant us full control over any action or proceedings related to our Intellectual Property Rights.
Fees
- You must pay the Fees to us in accordance with the Payment Terms and the applicable Service Schedule, without setoff, deduction or counterclaim.
- You must also reimburse us for all out of pocket expenses reasonably incurred by us in connection with the supply of any Requested Product and/or Service, including parking fees and where applicable, interstate travel, overnight accommodation and meals.
- Except as otherwise agreed in an Accepted Quotation, the Fees are exclusive of all taxes such as GST and must pay all such taxes to us, in respect of any Supply (as that term is defined in the GST Law) made for the purposes of an Agreement at the same time as the Fees.
- If you fail to make any payment due to us under an Agreement in accordance with the Payment Terms then, without limiting our rights and remedies:
- we may suspend our obligations under the Agreement (in whole or in part) and your access to Requested Products and/or Services (in whole or in part) until you pay any outstanding amounts;
- you shall pay interest on the overdue amount at a rate equal to 2% per annum above the current overdraft rate that we have with our principal banker from time to time, or the highest rate permitted under Applicable Law, whichever is lowest. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and you shall pay the interest together with the overdue amount upon demand by us;
- you must indemnify us from and against all and any legal costs and disbursements (on a full indemnity basis) that we incur in connection with your failure to pay any monies in accordance with the Payment Terms, including any debt recovery fees, and any legal costs and expenses (including solicitors fees, barristers fees and disbursements) that we are required to pay in connection with any legal proceedings commenced to recover any monies that you owe to us;
- we may refuse to deliver any Requested Product and/or Service that has not yet been delivered by us under an Agreement;
- we may deduct any monies owed by you to us under an Agreement from any deposit or other advance payment made by you in connection with any Agreement and require you to replenish the deposit or advance payment within 7 days;
- we may repossess any Requested Products already delivered to you that you have not fully paid us for; and/or
- we may terminate the Agreement under clause 1.
- Following the anniversary of the Commencement Date and then no more than once in any 12 month period, we may increase the Fees payable under an Agreement:
whichever is highest.
Liability
- The output of each Requested Product and/or Service (including any report generated from each Requested Product or Service) does not and will not constitute our advice, including professional, financial, legal or other advice. You must obtain all appropriate professional, financial, legal and other advice as applicable before relying on the output that you obtain from any Requested Product and/or Service. You must not represent (either expressly or impliedly) that the output of any Requested Product and/or Service is or may constitute our advice.
- We are not liable for any failure to perform or deliver any Requested Product and/or Service caused by any breach of an Agreement by you or Your Personnel.
- We are not liable to you, and you are not liable to us, for any loss of profits, loss of business opportunity, loss of revenue (other than caused by your failure to pay the Fees) or loss of savings, whether arising in contract, tort (including negligence) or otherwise, and whether the loss or damage was foreseeable or not.
- We are not liable for any loss or damage due to fair wear and tear of any Requested Product or for any loss or damage caused by any Requested Product and/or Service due to any Force Majeure Event that you suffer.
- To the extent that a party’s liability is not already excluded, each party’s (for the purposes of this clause 5, the first party) total aggregate liability for all claims for all and any loss or damage that the other party may suffer or incur due to the first party’s breach of an Agreement is capped at an amount equivalent to the value of the Fees paid or payable by you under that Agreement in respect of the Requested Products and/or Services to which the breach relates. Any claims shall be reduced to the extent that the other party, its Personnel and/or End Users caused, were responsible for, or contributed to, such loss or damage.
- Where liability for breach of any guarantees under the ACL or equivalent state or territory Applicable Law can be limited, our liability arising from any breach of those guarantees (if any) is limited, at our option: (i) with respect to the supply of goods, to the replacement or repair of the goods or the cost of resupply or replacement of the goods; and/or (ii) with respect to services, to the supply of services again or the cost of re-supplying the services again.
- Other than any non-excludable guarantees implied into an Agreement under the ACL or other Applicable Law (if any), all conditions, warranties and guarantees that would be implied in the Agreement are hereby excluded from the Agreement.
- Notwithstanding any other provisions of this clause 11, nothing in this clause 11 limits a party’s liability for any breach of clauses 7, 8 or 9 of these Terms of Service.
- Either party may obtain urgent interlocutory relief from a court of competent jurisdiction to prevent any actual or potential breach of the Agreement.
Force Majeure Event
- No party will be liable for any failure to perform its obligations (except for the payment of monies) under the Agreement if such failure was caused by a Force Majeure Event.
- If a party (for the purpose of this clause 2, the first party) suffers a Force Majeure Event that continues for 60 consecutive days, the other party may terminate the Agreement by written notice to the first party.
Insurance
- We will, at our own cost and expense, obtain and maintain during the Term of the Agreement and for 3 years thereafter, the following insurances for all and any claims arising in connection with the performance of the Agreement:
- workers compensation insurance covering liability for your employees;
- public liability insurance in the sum of twenty million dollars ($20,000,000) in respect of each claim;
- cyber liability and privacy protection insurance in the amount of at least five million dollars ($5,000,000).
- You must, at your cost and expense, obtain and maintain the insurances specified in each Service Schedule.
- In respect of the insurances required under clause 2:
- you must promptly upon our request (and in no event more than 48 hours after such request) provide us with the applicable certificates of currency and evidence of payment of any associated insurance premiums; and
- if you do not comply with your obligations under clause 2, then we may (but are not required to) obtain the required insurances and the cost of doing so shall be borne by you and shall become immediately due and payable upon demand.
Trustee Provisions
- This clause 14 applies if you enter into an Agreement as a trustee of a trust (Trust).
- You represent and warrant to us that:
- the Trust has been validly created and is in existence as at the date of the Agreement;
- the Trust is solely constituted by the trust deed of the Trust as varied (if at all);
- the trustee has been validly appointed as trustee of the relevant Trust, is the sole trustee of the Trust and no action has been taken or is proposed to be taken to remove it as trustee of its Trust;
- the trustee has power and authority under the Trust to enter into the Agreement and perform its obligations under the Agreement;
- the trustee enters into this Agreement for a proper purpose of the Trust;
- the trustee has the right to be indemnified fully out of the Trust property before the Trust’s beneficiaries for all liabilities the trustee may incur under or in connection with the Agreement;
- there are no proceedings which could have a material effect on the assets or financial position of the Trust; and
- no action has been taken or is proposed to be taken to terminate the Trust.
- You must not, without our prior written consent, distribute any capital of the Trust, retire as trustee or be replaced as trustee, re-settle the Trust, amend the trust deed of the Trust or otherwise vary the terms of the Trust, grant a security interest over any of the assets of the Trust, or breach any terms of the Trust, and the trustee must notify us in writing immediately if any of these events occur.
- You acknowledge and agree that in enforcing any security interest provided for by an Agreement, we may have recourse to and may satisfy any of the trustee liability directly out of the Trust assets.
Termination
- A party (for the purposes of this clause 15, the first party) may terminate an Agreement by written notice to the other party if the other party (defaulting party) commits a material breach of the Agreement that is not remediable, or if the breach is a remediable and the defaulting party fails to remedy the breach within 14 days of written notice from the first party requiring the breach to be remedied.
- Either party may terminate an Agreement by written notice to the other party if the other party:
- suffers an Insolvency Event;
- the other party purports to assign any of its rights or novate any of its obligations under an Agreement in breach of the Agreement; or
- breaches any Applicable Law or any person’s rights.
- If an Agreement is terminated for any reason:
- each party shall, at the other party’s option and upon the other party’s request, promptly return or destroy all copies of the other party’s Confidential Information in in its possession or control, except to the extent that the party is required to retain it in order to comply with Applicable Law;
- you shall pay to us all monies payable, due for payment or owing by you under the Agreement, including any Fees due;
- we shall cease to have any further obligation to deliver or provide any Requested Product and/or Service; and
- any licenses and rights granted by each party to the other party pursuant to the Agreement that are not perpetual and irrevocable, immediately terminate.
- Without limiting any other rights or remedies available to us, if an Agreement is terminated prior to the expiry of the Term (other than due to our breach or where it is terminated due to us suffering an Insolvency Event), you will pay the applicable early termination fees in respect of the Requested Products and/or Services in accordance with each applicable Service Schedule or as set out in the applicable Accepted Quotation (ETF).
- If an ETF is payable, we shall send you a tax invoice in respect of the ETF and you will pay that invoice within 30 days. You agree that: (i) payment of the ETF is not intended to be, and will not be construed as, punitive and will compensate us for reasonable losses resulting from early termination of the Agreement; and (ii) the ETF is no more than is necessary to compensate us for our genuine pre-estimate of loss that we will suffer as a result of the early termination of an Agreement.
- Any rights or obligations that, by their nature, survive termination shall so survive termination of an Agreement, including any provision dealing with confidentiality, Intellectual Property Rights, liability, dispute resolution and jurisdiction.
- Termination does not affect any accrued rights of either party.
Notices
- All notices required or permitted to be made under an Agreement shall be in writing in English and shall be deemed delivered if:
- delivered in person;
- sent by post to the recipient’s postal addresses identified in the relevant Accepted Quotation; or
- sent by email to the recipient’s email addresses identified in the relevant Accepted Quotation.
- Notice given under subclause 1(a) shall be deemed to have been validly and effectively given upon delivery.
- Notice given under subclause 1(b) shall be deemed to have been validly and effectively given 6 Business Days after posting if posted domestically in Australia, or 20 Business Days after posting if posted to or from Australia from any other country.
- Notice given under subclause 1(c) shall be deemed to have been validly and effectively given on the day on which it is transmitted if the sender receives a read or delivery receipt confirming delivery or receipt of the email or a reply to the email.
- Any party may change its address for notice hereunder by giving written notice to the other party in accordance with this clause 16.
General
- Subject to clause 2, a party may not assign its rights or novate its obligations under an Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed).
- Each party may assign or novate its rights and/or obligations under an Agreement at any time in connection with any corporate restructure, merger, sale or acquisition of any of its assets or businesses, without the other party’s prior written consent.
- If any provision of an Agreement is deemed invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain enforceable.
- The relationship between you and us is non-exclusive and nothing in an Agreement will prevent you or us from supplying any goods or services to any third party in our absolute discretion. We are an independent contractor and nothing contained in an Agreement creates any relationship of partnership, employment, joint venture or agency between the parties.
- Each Agreement is the entire agreement between you and us about its subject matter and supersedes all other proposals, arrangements or agreements between you and us about its subject matter.
- An Agreement may be amended only by a written document signed by the parties and a provision of or a right under an Agreement may not be waived or varied except in writing signed by the party to be bound.
- Each Agreement is governed by the laws in force in the State of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts located in the State of New South Wales and the courts of appeal from them in relation to any proceedings and disputes concerning the Agreement.
Definitions and Interpretation
- In an Agreement, words defined in bold font in parentheses or otherwise, have the meanings given to them therein. In addition, the following words have the following meanings:
Acceptable Use Policy has the meaning given to it in clause 9.4.
Accepted Quotation means a document that meets all of the following criteria: (a) it is entitled “Quotation”, “Order”, “Commercial Terms”, “Proposal” or similar; (b) it is prepared by us; (c) it is issued to you by us; (d) it has been executed by you; (e) you have provided us with the version executed by you; and (f) the executed version that you have provided to us does not include any additional terms and conditions or amendments specified by you, and other than being executed by you, is identical to the version that we provided to you.
ACL means schedule 2 to the Competition and Consumer Act 2010 (Cth).
Agreement has the meaning given to it in clause 1.2.
Applicable Law means any legislation, rule of the general law, including common law and equity, judicial order or consent or requisition from, by or with any governmental agency, including any Data Protection Laws, in any applicable jurisdiction.
Business Day means any day from Monday to Friday excluding public holidays in the State of NSW.
Business Hours means 9:00am – 5:00pm on Business Days, in the location of the applicable Site(s).
Commencement Date has the meaning given to it in clause 2.1.
Confidential Information has the meaning given to it in clause 8.1.
CPI means the annual increase in the all groups CPI, Australia in the period commencing 12 months prior.
Data Protection Laws means all applicable data protection and privacy laws in any applicable jurisdiction, including the Privacy Act 1988 (Cth).
defaulting party has the meaning given at clause 15.1.
disclosing party has the meaning given at clause 8.1.
Documentation means any user manuals, notes, technical instructions and documentation issued to you by us in respect of Requested Products and/or Services.
End User has the meaning given to it in clause 9.1.
Enhancement has the meaning given to it in clause 7.5.
ETF has the meaning given in clause 15.4.
Fees means any fees, rates, commissions and charges set out in the relevant Agreement.
Force Majeure Event means war, industrial action, government action, natural disaster, flood, labour disturbance, pandemic, harmful code or component, communication outage, Internet outage, interruption of service, denial of service attack, downtime of any third party hosting provider, fire, threatened or actual act of terrorism, earthquake, act of God, or other circumstances beyond a party’s reasonable control, including such circumstances that prevent us from providing Requested Products or Ordered Services under an Agreement.
GST and GST Law have the respective meanings given to them by section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means, in respect of a party: (a) the party ceases to carry on business, is unable to pay its debts as and when they fall due, or is deemed to be insolvent or bankrupt; (b) a receiver or a liquidator or provisional liquidator or an administrator is appointed to the party, or an application (including voluntary application filed by that party) is lodged or an order is made or a resolution is passed for the winding up (whether voluntary or compulsory) or reduction of capital of that party; (c) the party enters into an arrangement with its creditors; (d) where the party is a partnership, the partnership is dissolved or an application is made for its dissolution; (e) the party suspends payment of its debts to the other party or a third party, or the party takes the benefit of any law for the relief of insolvent debtors; or (f) anything analogous or having a substantially similar effect to any of the events described in (a) – (e) above occurs under the law of any applicable jurisdiction.
Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under Article 2 of the Convention Establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
Object Code means Source Code in compiled or binary form.
Our Intellectual Property Rights has the meaning given to it in clause 7.1.
Our Personnel means our officers, agents, employees, contractors and suppliers.
Our Systems means any equipment, systems, software, networks, servers, hardware, cabling, ports, switches and other ancillary equipment owned and/or operated by us.
Payment Terms means the payment terms set out in the applicable Accepted Quotation.
Personnel means Our Personnel and/or Your Personnel, as the context dictates.
receiving party has the meaning given at clause 8.2.
Renewal Term has the meaning given in clause 2.3.
Requested Product means a product (including software and hardware) specified in an Accepted Quotation.
Requested Products and/or Services has the meaning given to it in clause 3.1.
Requested Service means a service (including any software-as-a-service) specified in an Accepted Quotation.
Service Schedule means a document with “Service Schedule” or “Services Schedule” or similar in the title of the document, that we supply to you.
Source Code means human readable computer code.
Specifications means the technical and non-technical specifications for Requested Products and/or Services set out in an Accepted Quotation or otherwise issued in writing by us to you from time to time.
Term means the term of an Agreement determined pursuant to clause 2.
Trust has the meaning given to it in clause 14.1.
Third Party Provider means any of our third party suppliers, subcontractors and/or providers who provide any goods or services that we supply or resupply as part of Requested Products and/or Services, or that we rely on to supply any Requested Products and/or Services.
Your Data has the meaning given to it in clause 5.1.
Your Systems means any systems, software, networks, servers, equipment, hardware, cabling, ports, switches and/or other ancillary equipment or tools owned by you or operated by you or on your behalf, excluding Our Systems.
Your Personnel means your officers, agents, employees, contractors and suppliers, excluding us and Our Personnel.
Your Site means any site owned, controlled or occupied by you, specified in an Accepted Quotation.
you means you, if you have entered into an Agreement with us by accepting an Accepted Quotation.
we, our and us means Mypos Pty Ltd
(ABN 39 639 115 067).
- In an Agreement, unless the context requires otherwise:
- a reference to “a party” means you or us (as the context dictates) and a reference to “the parties” means you and us;
- headings and underlinings are for convenience only and do not affect the construction of the Agreement;
- a provision of an Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision;
- currency or “$” refers to Australian dollars;
- a reference to “in writing” or “written” includes email;
- a reference to a statute or regulation includes amendments thereto;
- a reference to time is to time in New South Wales;
- a reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity;
- the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not words of limitation and shall be interpreted as if the words ‘but not limited to’ immediately followed them in each case; and
- a reference to the singular incudes the plural and vice versa.
