TERMS & CONDITIONS
IT PROS PTY LTD & IT PROS HOSTING PTY LTD
trading as “IT PROS PTY LTD”
(ABN 63 106 133 948
(the Company) and “IT Pros Hosting Pty Ltd (ABN 72 161 107 820 (the Company)
Definitions & Interpretation
1.1 The following definitions apply in this agreement unless the context requires otherwise:
Authorised Third Party Disclosee means any Representative of a Disclosee to whom that Disclosee discloses Confidential Information in accordance with clause 7.
Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Adelaide, South Australia are open for business.
Change of Control means, in respect of a particular entity, a person who Controls that entity ceasing to do so or another person acquiring Control of it.
Charges means Fees and Expenses.
Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).
Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:
a) any information that is specifically designated by any of them as confidential;
b) any information which, by its nature, may reasonably be regarded as confidential;
c) any information relating to any:
(i) agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
(ii) customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
(iii) Intellectual Property Rights,
of any of them; and
d) any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information
Control has the meaning given in Section 50AA of the Corporations Act.
Company means IT PROS PTY LTD trading as “IT PROS PTY LTD” (ABN 63 106 133 948), and “IT Pros Hosting Pty Ltd (ABN 72 161 107 820 the Company) Address: Level 1/183 Melbourne St, North Adelaide SA 5006, Australia, Email:
Copyright Act means the Copyright Act 1968 (Cth). Corporations Act means the Corporations Act 2001 (Cth). Default Rate means a rate of interest of 5.00% per annum.
Disclosee means, in respect of any particular Confidential Information, any party that has received that Confidential Information (whether directly or indirectly) from another party.
Discloser means, in respect of any particular Confidential Information, any party that has disclosed or discloses that Confidential Information (whether directly or indirectly) to another party.
Event of Default means any of the following on the part of the Recipient:
a) committing any material or persistent breach of this agreement;
b) repudiating or, or, in the reasonable opinion of the Company, evincing an intention to repudiate, this agreement;
c) undergoing a Change of Control without the prior written consent of the Company;
d) the appointment of any type of insolvency administrator in respect of the property or affairs of the Recipient;
e) the entry or proposed entry by the Recipient into any scheme, composition or arrangement with any of its creditors;
f) Material Adverse Event;
g) Any payment due from the Recipient to the Company pursuant to this agreement remains unpaid for 21 days;
h) The Recipient being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
i) misleading the Company in any material way; and/or
j) an Insolvency Event occurring in respect of the Recipient
Expenses mean the expenses of the Company for which the Company is entitled to be reimbursed by the Recipient pursuant to clause 4.6.
Fees has the meaning given in clause 4.1.
Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
GST has the same meaning given to that expression in the GST Law.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.
GST Law has the same meaning given to that expression in the GST Act.
Insolvency Event means, in respect of a party:
a) where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
b) where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
c) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
d) the party is otherwise unable to pay its debts as and when they fall due.
In-Scope Work means work that has been expressly and specifically designated as being within the scope of the Services.
Input Tax Credit has the meaning given in the GST Law.
Installation means the installation of the Purchased Equipment at the Installation Site.
Installation Date means the date specified in the Quote and or Annexure 1 for Installation of the Supplied Equipment and or Purchased Equipment.
Installation Site means the site specified in the Annexure 1 where the Installation of the Supplied Equipment and or Purchased Equipment is to be effected.
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:
- liabilities on account of Tax;
- interest and other amounts payable to third parties;
- legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
- all amounts paid in settlement of any
Material Adverse Event means any of the following occurs in relation to a party:
- there is a material reduction in the aggregate value of the party’s assets;
- the party is in negotiations to, or have agreed or undertaken to, sell, convey, assign, transfer or otherwise dispose of any material assets used in the party’s business; or
- the party is in negotiations to, or has resolved, agreed or undertaken to, change the general nature or discontinue the party’s business.
Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.
Non-Solicitation Period means each period of time specified in Schedule 2.
Out-of-Scope Rate has the meaning given in clause 4.2.
Out-of-Scope Work means any work that is not In-Scope Work, including the work specifically described as being out of scope in the Quote (if any).
Personal Information has the meaning given in the Privacy Act.
Planned Outage means a period of time, as reasonably determined by the Company, that the Company may interrupt supply of the Service to the Recipient for routine maintenance, upgrading or other similar activities, after giving Recipient reasonable prior notice.
PPSA means the Personal Property Securities Act 2009 (Cth) and the regulations under that statute.
Privacy Act means the Privacy Act 1998 (Cth).
Purchased Equipment means the items of equipment (if any) purchased or, to be purchased by the Recipient from the Company from time to time
Quote means the quote, proposal, work order or other similar document or as issued from time to time by the Company to the Recipient that is attached and or otherwise incorporated into this agreement as Annexure 1.
Recipient means the legal entity or person receiving Services and or goods from the Company, the party contracting to be supplied the goods and or Services in this agreement, any person who signs this agreement (whether on their own behalf or the behalf of any other person or legal entity, any person named and described as the Recipient and or client or customer, or any person purporting to be the preceding, and if there is more than one, Recipient is a reference to each Recipient jointly and severally, the executors, representatives, administrators, and/or assigns of any person deemed to be the Recipient and any person(s) buying the goods and or Services as specified in an invoice, Quote, document or order, and if there is more than one, Recipient is a reference to each Recipient jointly and severally.
Recipient Data means all data and information and all rights relating to that data and information associated with the Recipient which is entered, stored, generated, processed, handled or dealt with through or in the course of providing the Services.
Recipient’s Users means any person who the Recipient permits to use or otherwise provides access to the Service (intentionally or otherwise).
Relevant IP means all Intellectual Property Rights that the Company makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) in the course of, or arising out of, the provision of the Services and/or Company’s engagement with the Recipient, including any Intellectual Property Rights so made, developed or conceived:
- using the premises, resources or facilities of the Recipient or any of its customers, clients or suppliers;
- in the course of, as a consequence of, or in relation to, the provision of the Services by the Company and/or the performance (whether proper or improper) of the Company’s duties and responsibilities to the Recipient under this agreement or otherwise;
- as a direct or indirect result of any person’s access to any Confidential Information or Intellectual Property Rights of the Recipient or any of its customers, clients or suppliers; or
- in respect of any of the products or services of the Recipient or any of its customers, clients or suppliers, or any alterations, additions or methods of making, using, marketing, selling or providing such products or services.
Relevant Trust means, in respect of any Trustee, the trust in respect of which the Trustee is expressed to have entered into this agreement as trustee.
Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.
Services means the services that the Company has agreed to provide to the Recipient as more specifically described in the Quote.
Service Level Target means the target percentage level for the Company in supplying the Services to the Recipient as specified in the applicable Quote.
Service Provider Equipment means any items of equipment owned or used by the Company in the provision of the Service, including, without limitation, computer hardware and software used as part of or in connection with the provision of any Service.
Stamp Duty means any stamp, transaction or registration duty or similar charge imposed by any Governmental Agency and includes any interest, fine, penalty, charge or other amount in respect of the above, but excludes any GST.
Start Date means the day on which the Quote has been accepted by the Recipient and the Company commences supplying the Service(s) or such other date as the parties may agree in writing.
Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).
Tax or Taxation means:
- any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);
- unless the context otherwise requires, Stamp Duty and GST; and
- any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.
Third Party Content means all software, data, text, images, audio, video, photographs and other content or material, in any format, that are obtained from or derived from third party sources that the Recipient may access through, within or in conjunction with the Recipient’s use of a Service.
Works means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.
1.2 The following rules of interpretation apply in this agreement unless the context requires otherwise:
- headings in this agreement are for convenience only and do not affect its interpretation or construction;
- no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;
- where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
- a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
- references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;
- in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;
- a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
- an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
- a reference to writing includes any communication sent by post, facsimile or email;
- a reference to time refers to time in Adelaide, South Australia and time is of the essence;
- all monetary amounts are in Australian currency;
- a reference to a “liability” includes a present, prospective, future or contingent liability;
- the word “month” means calendar month and the word “year” means 12 calendar months;
- the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
- a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;
- a reference to any thing is a reference to the whole and each part of it;
- a reference to a group of persons is a reference to all of them collectively and to each of them individually;
- words in the singular include the plural and vice versa; and
- a reference to one gender includes a reference to the other
2. Engagement as Company
2.1 The Recipient hereby engages the Company on a non-exclusive basis to provide the Services to the Recipient, and the Company hereby accepts that engagement and agrees to provide the Services to the Recipient, in accordance with the terms of this agreement.
Commencement & Duration
2.2 The Company's engagement with the Recipient will:
- commence on the Start Date; and
- continue indefinitely unless and until it is terminated in accordance with clause 11.3
Nature of Relationship
2.3 The Company is an independent contractor of the Recipient and nothing in this agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties.
2.4 Each party represents and warrants to the other that:
- It has the power and authority to enter into this Agreement and to perform its obligations under this Agreement, and that the execution of this Agreement has been properly authorised;
- This Agreement constitutes a legal, valid and binding obligation on it, enforceable in accordance with its terms by appropriate legal remedy;
- It will not represent that it is authorised to act on behalf of the other party, except where expressly authorised to do so in writing;
- It has and will maintain all licences, authorisations, consents, approvals and permits required by applicable laws and regulatory requirements in order to meet its obligations under this Agreement; and
- No insolvency event has occurred in respect of it or is threatened against
2.5 Each party represents and warrants to the other that each of them has had the opportunity to seek independent legal advice in relation to the terms of this Agreement and in relation to the Schedules and any annexures to this
Recipient's Warranties & Obligations
2.6 The Recipient will:
- notify the Company within 7 days if a Material Adverse Event occurs or is threatened to occur;
- be liable for the content of its data, Recipient Data and or site (including all content that the Company hosts on its behalf as part of the Service);
- responsible for maintaining the secrecy and confidentiality of all identification and log-in information required by the Recipient to access the Service;
- be liable for all fees resulting from use of the Service accessed through the Recipient’s identification or log-in information, whether authorised by the Recipient or not;
- ensure that the content that is hosted on its behalf does not contain any virus or otherwise disrupt or corrupt the data or systems of any person, entity and or organisation;
- at all times be responsible for all dealings it has with the users, customers, clients and or other third party’s;
- co-operate fully with the Company’s personnel in the diagnosis of any alleged non-conformity of any software and or aspect of the Services;
- comply with all reasonable directions by the Company regard to the access and or use of the Service;
- refrain from disruptive activities which may include, but are not limited to, the circulation of any unsolicited publicity or advertising material, propagation of computer worms and viruses, use of the Service to gain unauthorised access to any other computer system, the sending of harassing, obscene, offensive or threatening electronic mail, forgery of electronic mail and the placement or transmission or storage of any defamatory material on the internet;
- not access, nor permit any other party to access, the Service for any purpose or activity of an illegal or fraudulent nature;
- not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information accessed through or received from the Service that would infringe the intellectual property right of any person;
- ensure that any software and the Service Provider’s Equipment are used in a proper manner by competent and trained employees only or by persons under their supervision;
- make available to the Company free of charge all information, facilities and services reasonably required to enable the Company to perform its obligations under this Agreement; and
- will provide such telecommunication facilities and access as are reasonably required by the Company for testing and diagnostic purposes at the Recipient’s sole expense.
3. Provision of the Services
3.1 The Company must, in providing the Services, comply with the standards and duties set out in Schedule
3.2 The Company reserves the right to vary the method of the provision of the relevant Service, the equipment and or software used to supply the Service and any third party supplier used in connection with the supply of the Service.
3.3 The Recipient will use the Service for the specified purpose:
- in accordance with the terms of the Agreement; and
- all applicable laws and
Service Level Targets
3.4 The Company will endeavour to achieve any applicable Service Level
3.5 If the Recipient considers that the Company has failed to achieve a Service Level Target, the Recipient must notify the Company in writing outlining the details of the claimed failure including the duration and the aspects of the Servic
3.6 On receipt of a notice under clause 5, the Company will review the circumstances described in the notice and, if it determines that a Service Level Target has not been met, it will take reasonable commercial steps to prevent further failures in the future.
3.7 The Recipient acknowledges that the Company will not have failed to achieve a Service Level Target where the supply of Services has been disrupted, prevented or otherwise affected by:
- a Planned Outage or Emergency Outage;
- an act or omission of the Recipient, its officers, employees, agents or contractors or any other person acting under their direction or with their authority; or
- Force Majeure
3.8 The Recipient acknowledges that any failure by the Company to achieve a Service Level Target will not constitute a breach of the Agreement.
3.9 The Company may subcontract for the performance of this agreement or any part of this agreement without the prior consent of the Recipient.
3.10 The Recipient will prepare the Delivery Site in accordance with the specifications contained in the Quote or otherwise at the direction of the Company.
3.11 The Company may refuse to deliver the Supplied Equipment and or Purchased Equipment if the Delivery Site has not been prepared in accordance with the preceding paragraph clause.
3.12 The Recipient will fully indemnify the Company for direct or indirect costs arising out of a delay caused by the circumstances described in the preceding clause, save that the Company will be deemed to have approved the site if it does not carry out an inspection of the site prior to Delivery of the Equipment.
3.13 The Company will deliver the Purchased Equipment on the date or during the period specified in the Quote 1 as the Delivery Date.
3.14 Delivery will be effected at the Installation Site specified in the
3.15 If the Recipient is unable to accept Delivery on the Delivery Date, it will fully indemnify the Company for direct or indirect costs incurred by the subsequent delay in Delivery. If the Recipient’s inability or refusal to accept Delivery extends for a period in excess of 5 days beyond the Delivery Date, the Company will have the option of treating the non-delivery as an Event of Default.
3.16 Upon completion of Installation, the Company will test the Supplied Equipment and or Purchased Equipment and ensure its operation conforms with the specifications described in the Quote.
3.17 The Company will ensure that the Supplied Equipment and or Purchased Equipment conforms with the operating specifications referred to in 3.16 within 7 days of Installation.
3.18 If the Supplied Equipment and or Purchased Equipment fails to conform with the operating specifications within the period prescribed in clause 3.17 the Recipient will grant the Company a further period of 7 days in which to rectify the defect.
3.19 If, after the period prescribed in clause 18 the Supplied Equipment and or Purchased Equipment still does not satisfy the operating specifications the Recipient may at its option extend the test period or treat the failure to satisfy the specifications as an Event of Default.
3.20 The Supplied Equipment and or Purchased Equipment will be deemed to be accepted if it satisfies the test specifications during any of the periods referred to in clauses 3.17, 3.18, and 3.18.
3.21 For the duration of this agreement, the Recipient will ensure the Company is provided with full and safe access to the Supplied Equipment and or Purchased Equipment and is provided free of charge with all information, facilities and services reasonably required to enable Services to be delivered effectively and promptly.
3.22 If requested by the Recipient, the Company shall provide the Recipient with training in the use of Supplied Equipment and or Purchased Equipment in accordance with the Quote.
3.23 If clause 22 applies, the training will be extended to such number of personnel specified in the Quote and will take place at the location specified in Quote and for the minimum number of hours specified in the Quote and within the period of time following Installation as nominated in the Quote.
3.24 The Company will provide the Recipient with a copy of the operating manual specified in the The operating manual will be adequate for the purpose of enabling the Recipient to operate the Equipment in a manner reasonably contemplated by the parties.
4. Pricing & Invoicing
4.1 In consideration for the provision of the Services by the Company, the Recipient will pay the Company:
- As indicated by the Quote provided by the Company’s Quote, valid for the period stated in the Quote, excluding GST;
- A fixed fee excluding GST as indicated by the Quote provided by the Company’s Quote, valid for the period stated in the Quote, excluding GST;
- Any other amount excluding GST required to be paid by the Recipient to the Company to provide the Services to the Recipient, in the frequency and manner directed by the Company;
- If the Recipient disputes the whole or any part of the amount claimed in an invoice submitted by the Company pursuant to this agreement, the Recipient will pay the undisputed portion on the due The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this agreement. If it is subsequently resolved that a further amount is payable, the Recipient will pay that amount together with interest at the Default Rate;
- In the event of any inconsistency, the amount specified in the Quote and or Annexure 1 of the agreement
Out Of Scope Work
4.2 Notwithstanding clause 1, the Recipient will pay the Company an hourly rate of AUD 200.00 (the Out-of-Scope Rate) for any Out-of-Scope Work.
Out Of Scope Rates
4.3 Out-of-Scope Rates shall be proportionately charged for work involving periods of one hour or more.
4.4 The Company must keep and maintain accurate records of the number of hours of Services in respect of which the Out-of- Scope Rate applies and provide the Recipient with a copy of such records upon reasonable notice as may be requested by the Recipient from time to time.
4.5 The Out-of-Scope Rate may only be changed by way of an amendment to this agreement pursuant to clause 35.
4.6 The Recipient will pay all reasonable expenses properly and necessarily incurred by the Company in the course of providing the Services, provided that:
- the Company:
- obtains the Recipient’s written consent before incurring the expenses;
- provides the Recipient with acceptable documentation for the expenses incurred; and
- complies with any applicable expenses policy of the Recipient in force from time to time, provided that a copy of the policy has been provided to the Company by the Recipient prior to the relevant expense being incurred; and
- the Recipient will not be required to reimburse the Company for any amount of GST that the Company has paid, or is liable to pay, in relation to any supply acquired by the Company from any third party if the Company has received, or is entitled to receive, an Input Tax Credit for that GST.
4.7 The Recipient agrees pay any software licence fees to the Company in advance within 7 days after the Start
4.8 The Licence Fee is exclusive of all taxes, duties and surcharges payable in respect of the Software and in respect of this
If payment is not made within 7 days of the due date, interest will be payable by the Recipient at the rate of 5% per annum on the overdue amount and, if any payment is owing after 21 days from the due date, the Supplier will be entitled to suspend its remaining obligations under this or any related Agreement and to re-possess the Software.
Timing of Payments
5.1 The Recipient (and or any Guarantor) must pay to the Company all Charges properly invoiced pursuant to clause 4 in full on or before the date that is 15 Business Days after the Recipient’s receipt of the relevant invoice.
Method of Payment
5.2 All amounts to be paid by a party to another party under or in connection with this agreement must be paid in cash or by way of bank cheque or electronic funds transfer into the account nominated by the other party, or via the Company’s online payment gateway provider(s) including but not limited to Stripe . In the event such payment attracts a surcharge, the Recipient must pay the equivalent amount.
No Set Off or Deduction
5.3 All amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement (unless otherwise required by law).
5.4 If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with this agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.
5.5 If a party fails to pay any sum payable by it under this agreement to another party at the time and otherwise in the manner provided in this agreement, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year and compounded monthly. Interest will accrue from day to day and will be payable on The payment of interest by a party to another party in respect of any late payment under this clause 5.5 is in addition to any other remedies that the other party may have in respect of such late payment.
5.6 If a liability of a party to another party under this agreement becomes merged in a judgement or order and the interest rate that applies under that judgement or order is lower than the Default Rate, that party must, as an independent obligation, pay to the other party, at the same time and in the same manner as the sum that is the subject of that judgement or order is to be paid, such additional interest on that sum as is required to ensure that the total amount of interest that the other party receives in respect of that liability is equal to the Default Rate.
5.7 As security for the due and punctual payment and performance of the Recipient’s obligations under this Agreement, the Recipient may be required to (at the Company’s discretion), prior to the undertaking of Services by the Company, provide to Company a Guarantor to enter into this Agreement and guarantee and indemnify Company on any or all of the following terms without prejudice to any of the Company’s other rights or remedies under this agreement:
- The Guarantor unconditionally guarantees full payment of all money owed by the Recipient under this Agreement and any ancillary documents and the observance and performance of all of the Recipient’s obligations as specified in or implied by this Agreement;
- The Guarantor indemnifies and must keep indemnified Company against any costs, expenses, claims, liabilities, losses and damaged incurred by Company in respect of any default by the Recipient under this Agreement, or arising out of any claim by any third-party relating to the terms of this Agreement;
- This guarantee covers all Services undertaken by the Company, including variations and or out of scope Service(s);
- This guarantee is in favour of Company and its employees, successors, assigns and agents;
- This guarantee extends to claims by the Company for breaches of material terms of this Agreement and repudiation of this Agreement and to the Company’s reasonable legal and other expenses of seeking to enforce those obligations; and
- The Company may require the Guarantor under this guarantee to pay to Company any outstanding amounts, or any other amount to compensate Company for any loss or damage incurred under this Agreement, without Company being required to institute any proceedings against the Recipient in respect of such claims or breaches
5.8 The Comapny's rights against the Guarantor are not affected by:
- the death, bankruptcy or winding up of the Recipient or Guarantor;
- the Recipient’s liability under this Agreement, any variation or any other ancillary documents, assignments or extensions of the Agreement between the Parties; or
- any release of the Recipient or any
5.9 The Company may require the Guarantor under this guarantee to pay to Company any outstanding amounts, or any other amount to compensate Company for any loss or damage incurred under this Agreement, without Company being required to institute any proceedings against the Recipient in respect of such claims or breached.
5.10 This Guarantee is to be a continuing Guarantee and will be irrevocable and will remain in full force and effect until the whole of the money payable or which may become payable pursuant to the provisions of this Agreement has been paid and until all obligations of the Recipient, pursuant to this Agreement, have been duly and properly observed and performed or satisfied.
Charge & Caveat
5.11 In consideration of Company agreeing to supply the Services under this Agreement, the Recipient charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Recipient either now or in the future, to secure the performance by the Recipient of its obligations under these terms and conditions (including, but not limited to, the payment of any money) or otherwise arising from the carrying out of the
5.12 The Recipient acknowledges and agrees that Company has a caveatable interest in the land from upon execution of this Agreement and that Company is entitled to lodge and maintain a caveat on the title to the Land notifying of the Company’s interested created by this Agreement.
5.13 The Recipient agrees that upon execution of this Agreement to deliver to the Company, a caveat in registerable form with the consent to caveat signed by the Recipient to lodge and maintain a caveat on the title to the land notifying Company in this Agreement together with a cheque in favour of the Lands Title Office for registration fee on the caveat.
5.14 The Recipient agrees that Company is entitled to register and a lodge a caveat on the Recipient’s property in the Company’s favour and that Company will withdraw the caveat once all moneys owing to Company by the Recipient pursuant to this Agreement are paid in full to Company.
5.15 The Recipient indemnifies Company from and against all Company costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Company’s rights under this clause.
5.16 The Recipient irrevocably appoints Company and each director and or Trustee of Company as the Recipient’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 5 including, but not limited to, signing any document on the Recipient’s behalf.
5.17 The Recipient acknowledges that Company is entitled to apply to a Court for the sale of the property for the purpose of recovering any debt that may be outstanding under this Agreement relating to building works.
5.18 The Recipient agrees it has sought and received independent legal advice in relation to this clause 5
Definitions Regarding GST
6.1 In this clause 6:
- expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;
- any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 6; and
- any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 6.
Consideration Is Exclusive Of GST
6.2 Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 6.
Receiving Party To Pay Additional Amount
6.3 If GST is imposed on any supply made under or in accordance with this agreement, the recipient of the supply (Receiving Party) must pay to the supplier (Providing Party) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with this agreement.
Fines, Penalties And Interest
6.4 The amount recoverable on account of GST under this clause 6 by the Providing Party will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Receiving Party under this clause 6.
6.5 If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with this agreement, the amount must be reduced by the amount for which the other party can claim an Input Tax Credit, partial Input Tax Credit or other similar
6.6 If, at any time, an adjustment event arises in respect of any supply made by a party under this agreement, a corresponding adjustment must be made between the parties in respect of any amount paid to the Providing Party by the Receiving Party pursuant to clause 3 and payments to give effect to the adjustment must be made and the Providing Party must issue an adjustment note.
7.1 Subject to clauses 3 and 7.4, a Disclosee must:
- keep all Confidential Information confidential;
- not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with this agreement;
- not disclose or make available any Confidential Information in whole or in part to any third party;
- not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with this agreement (and any such copies, reductions to writing and records will be the property of the Discloser); and
- ensure that any and all Authorised Third Party Disclosees:
- comply with the obligations in this agreement as if each of them was a party to this agreement in the place of the Disclosee; and
- do not do, or omit to do, anything which, if done or omitted to be done by the Disclosee, would constitute a breach of this agreement by the Disclosee.
7.2 The Disclosee shall be responsible for, and liable to the Discloser in respect of, the actions or omissions of any and all of its Authorised Third Party Disclosees in relation to the Confidential Information as if they were the actions or omissions of the Disclosee.
7.3 The Disclosee may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information but only in the proper provision of the Services and performance of its duties under this agreement and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.
7.4 Subject to clause 5, the obligations in clause 7.1 will not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the relevant Disclosee’s possession):
- was already known to the Disclosee on a non-confidential basis prior to the time of its first disclosure by the Discloser to the Discloser, unless it came to be so known as a direct or indirect result of having been:
- unlawfully obtained by the Disclosee, whether from a third party or otherwise; or
- received by the Disclosee from a third party that owed a confidentiality obligation to the Discloser in respect of that information at the time of such receipt, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the third party owed that confidentiality obligation to the Discloser;
- is or becomes generally available to the public, unless it became so generally available as a direct or indirect result of having been disclosed by any person:
- in circumstances that constitute a breach of this agreement by the Disclosee (for the avoidance of doubt, including any breach by the Disclosee of its obligations under clause 1(e) to ensure that its Authorised Third Party Disclosees comply with the obligations in this agreement as if they were parties to this agreement in the place of the Disclosee); or
- that owed a confidentiality obligation to the Discloser in respect of that information at the time of such disclosure, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the person owed that confidentiality obligation to the Discloser;
- is, after the time of its first disclosure by the Discloser to the Disclosee, lawfully received by the Disclosee from a third party and the Disclosee reasonably believed, after due enquiry, that the information was not so received as a direct or indirect result of a breach by any person of a confidentiality obligation owed to the Discloser;
- is required by law or court order to be disclosed, provided that the Disclosee must:
- promptly notify the Discloser in writing in advance of any such disclosure, if reasonably practicable; and
- reasonably assist the Discloser in obtaining confidential treatment for, or avoiding or minimising such disclosure of, the relevant Confidential Information to the extent reasonably requested by the Discloser;
- is independently developed by the Disclosee without any direct or indirect use of, reference to, or reliance on any Confidential Information; or
- is authorised for release or use by the written pre-approval of the Discloser but only to the extent of such written pre-approval.
7.5 The exceptions in clause 4 shall not apply to any specific Confidential Information merely because it is included in more generally non-confidential information, nor to any specific combination of Confidential Information merely because individual elements, but not the combination, are included in non-confidential information.
8.1 Subject to clauses 8.2, on and from the date of this agreement, each party must not:
- make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party; or
- cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so,
and must take all reasonable steps to prevent its Representatives from doing so.
8.2 Clause 1 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must:
- promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable; and
- reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.
9. Intellectual Property
9.1 The parties agree that all Relevant IP will be owned by, and vest in, the Company.
9.2 The Recipient hereby assigns, transfers and conveys to the Company all current and future right, title and interest in all Relevant IP and acknowledges that all future Relevant IP will vest in the Company on and from creation.
Recipient’s Duty To Assist The Company
9.3 The Recipient must do anything necessary, including executing any documents, for the purpose of effecting, perfecting and/or protecting the Company’s title to any Relevant IP, in Australia or in such other countries as the Company may require at its discretion.
9.4 The Recipient may not use or reproduce any Relevant IP or any other Intellectual Property Rights of the Company or any of the Company’s customers, clients or suppliers without the Company’s prior written approval, except in the performance of its duties under this agreement.
9.5 The Recipient consents to the doing of any acts, or making of any omissions, by the Company or any of the Company's employees, officers, contractors, agents, licensees or assigns that infringes its Moral Rights in any Works that constitute Relevant IP, including:
- not naming the Recipient as the author of a Work; or
- amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if the Recipient is not named as the author of the amended or modified Work
whether those acts or omissions occur before, on or after the date of this agreement. The Recipient acknowledges that its consent pursuant to this clause 9.5 is genuinely given without duress of any kind and that it has been given the opportunity to seek legal advice on the effect of giving that consent.
9.6 Except as expressly permitted by part 3 division 4A of the Copyright Act 1968 (Cth), the Recipient must not reverse assemble or reverse compile any software or part thereof which was provided by the Company during the course of the Service.
Ownership of Software
9.7 Nothing in this agreement affects ownership of any software or Intellectual Property Rights in any software. For the avoidance of doubt, the software is licensed to the Recipient pursuant to the terms and conditions of the applicable software vendor and is provided to the Recipient by the Company on an as-is basis and in accordance with the software vendor’s end user licence agreement.
10. Liability and Remedies
10.1 The Recipient shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold the Company harmless from and against, any and all Losses that may be suffered by the Company and which arise, directly or indirectly, in connection with any breach of this agreement by the Recipient and/or any negligent or other tortious conduct in the provision of the Services.
10.2 Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.
Limitation of Liability
10.3 To the maximum extent permitted by law, the Company and its Representatives expressly:
- (Disclaimer of warranties) disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Without limitation to the foregoing, the Company and its Representatives make no representation, and provide no warranty or guarantee, that:
- the Recipient will achieve any particular results from the provision of the Services;
- any particular individuals will perform the Services on behalf of the Company; or
- the Services will be:
- error-free or that errors or defects will be corrected; or
- meet the Recipient's requirements or expectations; and
- (Limitation of liability) limit their aggregate liability in respect of any and all Claims for any Losses that the Recipient and/or any of its Representatives may bring against the Company under this agreement or otherwise in respect of the Services to the following remedies (the choice of which is to be at the Company's sole discretion):
- re-supply of the Services;
- payment of the costs of supply of the Services by a third party; or
- the refund of any amounts paid by the Recipient to the Company under this agreement in respect to the Services, even if the Company has been advised of the possibility of such Losses, and the Recipient acknowledges and agrees that the Company holds the benefit of this clause 10.3 for itself and as agent and trustee for and on behalf of each of its Representatives.
10.4 To the maximum extent permitted by law, the Company and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Company under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Company and the Company shall be entitled to a reasonable extension of time for the performance of such obligations, and the Recipient acknowledges and agrees that the Company holds the benefit of this clause 10.4 for itself and as agent and trustee for and on behalf of each of its Representatives, such circumstances including but not being limited to the following:
- Riot, war, embargo, invasion, act of foreign enemies, hostilities (whether war be declared or not) acts of terrorism, civil war, rebellion, revolt, revolution, insurrection of military or usurped power, requisition, or compulsory acquisition by any governmental or competent authority;
- Ionising radiation or contamination, radio activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component;
- Pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;
- An act of God, pandemic, epidemic, plague, pestilence, earthquake, flood, tempest, tsunami, tidal wave, rogue wave, tornado, hurricane, typhoon, tempest, cyclone, multi-cell storm, supercell storm, dust-devil, water-sprout, fire, bushfire, brushfire, lightning, ball-lightning, chain-lightning, storm, explosion, implosion, celestial event, solar flare, electromagnetic pulse, coronal mass ejection, asteroid impact, meteor impact, comet impact, geomagnetic storm, solar radiation, atmospheric disturbance or other physical or natural disaster;
- Strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labour not employed by the affected party, its subcontractors or its suppliers and which affect an essential portion of the works but excluding any industrial dispute which is specific to the performance of the works or this contract; and
- Strike, lockout or other interference with work, blockade, disturbance, governmental or quasi-governmental restraint, expropriation prohibition intervention direct or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi-governmental approvals consents permits licenses authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the party affected.
Remedies for Breach
10.5 Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 7 (Confidentiality), clause 8 (Non-disparagement) or clause 12 (Non-solicitation), damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, without the necessity of showing actual damage and without any security being required, together with recovery of costs. Any Claims asserted by such other party against the first-mentioned party shall not constitute a defence in any such injunction action, application or motion.
Termination & Suspension
Termination for Breach
11.1 The Company may terminate this agreement immediately by notice to the Recipient if an Event of Default occurs in respect of the Recipient.
11.2 If the Company commits any material or persistent breach of this agreement, the Recipient may (but is not obliged to) provide the Company with a notice of breach in writing. If the Company fails to remedy the breach within 20 Business Days after the date of its receipt of such notice, the Recipient may terminate this agreement with immediate effect upon providing the Company with a further notice of termination in writing.
Termination with Notice
11.3 The Recipient may, without limitation to its rights under clause 11.2, terminate this agreement after the initial contract term by giving at least 90 days of notice to the Company.
11.4 The Company may, without limitation to its rights under clause 11.1, terminate this agreement at any time by giving at least 90 days of notice to the Recipient. The Recipient may waive all or part of such notice period.
Effect of Termination
11.5 In the event of any termination of this Agreement, the Recipient will not have any liability to make any further payments to the Company except that, if such termination takes effect part of the way through a particular month of the Services, the Recipient will remain liable to pay the pro rata proportion of the Charges for that month accrued prior to the date on which such termination takes effect, subject always to receipt of an appropriate invoice from the Company under clause 4 and clauses 5 will apply in respect thereof.
During Notice Period
11.6 In the event that the Company’s engagement under this agreement is terminated upon notice by either party, the Company may refrain from providing the Services during the relevant notice period.
Partially Completed Deliverables
11.7 Upon the cessation of the Company’s engagement under this agreement, subject to payment of all outstanding Charges by the Recipient in accordance with the terms of this agreement, the Company will deliver to the Recipient any and all partially completed deliverables that are included within the scope of the Services.
Return of property
11.8 The Recipient will, immediately on termination by the Company pursuant to clause 11.1, return to the Company any software, data, hardware, media, documentation and all copies of the software, data, media, all revisions, enhancements and upgrades of the software, data, the media and documentation. Alternatively, if the Company requests, the Recipient must destroy such software, data, media, documentation, copies, revisions, enhancements and upgrades by erasing them, and must certify in writing to the Company that they have been destroyed.
Ipso facto legislation
11.9 If any provision of this agreement is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), upon the occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other provision of this agreement, to the maximum extent permitted by law:
- time is of the essence in respect of all obligations of that party under this agreement (whether falling due for performance before, upon or after the occurrence of that Insolvency Event); and
- any breach of this agreement by that party (whether occurring before, upon or after the occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with the occurrence of that Insolvency Event) be deemed to be a material breach of this agreement,
and, if any such material breach has occurred or occurs, the parties acknowledge and agree that such provision will instead be enforceable by virtue of the occurrence of that material breach.
11.10 Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.
11.11 The obligations of the parties under clause 5 (Payment & Guarantee), clause 7 (Confidentiality), clause 8 (Non- disparagement), clause 9 (Intellectual Property), clause 10 (Liability and remedies), clause 12 (Non-solicitation) and this clause 11 will survive the termination of this Agreement.
Deletion of Data
11.12 The Company is entitled to delete all copies of the Recipient’s data after 20 business days following termination of this agreement. The Recipient is entitled to receive a backup of their user data provided the request is made within 15 business days following termination of this Agreement and the Recipient is not in breach of this Agreement.
Suspension of Service & Default in Payment
11.13 Without prejudice to any of the Company’s other rights or remedies under this agreement, if the Recipient fails to make any payment for the Service(s) when payment falls due, then:
- The Recipient may be charged an administrative fee of $100.00 plus GST for each time the Company has to follow up a late payment; and
- The Company may pause, terminate, or suspend any Service at which point the Recipient must be a reinstatement fee of $150.00 + GST to the Company for the resumption of Services.
11.14 The Company does not accept any liability, costs, losses or damages that may be incurred by the Recipient as a result of this clause 11 being invoked.
11.15 In addition to the Company’s rights under this agreement, the Company may, upon five (5) business days of notice, without liability and with immediate effect suspend the Service(s) for as long as the Company, acting reasonably, consider necessary:
- if doing so is necessary to allow the Company or a third-party supplier to repair, maintain or service any part of Company network or supplier network used to supply the Services;
- problems are experienced interconnecting the Company’s network with any supplier network;
- if the Company believes it is necessary to do so to comply with any law, to protect any person, equipment or the Company’s network, or a supplier of the Company, or to enable authorised person to attend to any emergency; and
- if the Recipient owes any money to the Company under this
12. Non-solicitation & Conflicts of Interest
12.1 During the Company's engagement with the Recipient under this agreement and for each Non-Solicitation Period thereafter, the Recipient must not, without the Company's prior written consent (which the Company may withhold or delay in its absolute discretion), directly or indirectly:
- (non-solicitation suppliers) interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between the Company and any of the Company's suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or
- (non-solicitation of staff) induce, encourage or solicit any of the Company's officers, employees, contractors or agents to cease their employment, engagement or agency with the Company.
12.2 The Recipient acknowledges and agrees that:
- the restraints in clause 1 constitute several separate covenants and restraints consisting of each of clauses 12.1(a) and (b) combined with each separate Non-Solicitation Period severally;
- each of those separate covenants and restraints is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect the Company's goodwill and business;
- the Recipient has received substantial and valuable consideration for each of those separate covenants and restraints, including its receipt of the Services; and
- breach by the Recipient of any of those separate covenants and restraints would be unfair and calculated to damage the Company's goodwill and business and would lead to substantial loss to the Company.
12.3 The parties intend the covenants and restraints under clauses 12.1 to operate to the maximum extent. If any of those separate covenants and restraints would, in the absence of this clause 12.3, be void as unreasonable for the protection of the interests of the Company but would not be so void if any part of the wording in this clause 12 or Schedule 2 was deleted or amended, the separate covenants and restraints will apply with the minimum modifications necessary to make them effective.
Duty to Avoid Conflict
12.4 The Recipient warrants to the Company that it will ensure that its personnel do not, have a conflict of interest when performing their duties under this Agreement. The Recipient must promptly inform the Company of any matter which may give rise to an actual, potential or perceived conflict of interest and comply with any reasonable directions given by the Company in terms of dealing with that conflict. The failure by the Company with this clause will constitute a breach of a material term of this Agreement.
12.5 For the purposes of this clause, a conflict of interest means circumstances in which, due to a direct or indirect relationship (commercial or otherwise and including any potential relationship or opportunity or inducement and any such situation which comes Recipient existence subsequent to the commencement of this Agreement) involving the Recipient or its personnel and another person or entity, the Recipient is unable to discharge its obligations under this Agreement to the Company in an objective and independent manner and to the best of its ability.
13.1 A notice given to a party under this agreement must be:
- in writing in English;
- sent to the address, fax number or email address of the relevant party as set out in the list of parties that starts on page Error! Bookmark not defined. of this Agreement (or such other address, fax number or email address as the relevant party may notify to the other party from time to time); and
- delivered/sent either:
- by commercial courier;
- by pre-paid post;
- if the notice is to be served by post outside the country from which it is sent, by airmail;
- by fax; or
- by e-mail
13.2 A notice is deemed to have been received:
- if delivered personally, at the time of delivery;
- if delivered by commercial courier, at the time of signature of the courier’s receipt;
- if sent by pre-paid post, 48 hours from the date of posting;
- if sent by airmail, five days after the date of posting;
- if sent by fax, at the time shown in the transmission report generated by the machine from which the fax was sent; or
- if sent by e-mail, 4 hours after the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the party’s email server or internet service provider that the message has not been delivered to the party,
except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:00 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.
13.3 To prove service, it is sufficient to prove that:
- in the case of post – that the envelope containing the notice was properly addressed and posted;
- in the case of fax – the notice was transmitted to the fax number of the party; and
- in the case of email – the email was transmitted to the party’s email server or internet service
14. Privacy, data breaches, access & cyber security
14.1 The Recipient will ensure that its dealings with User Data acquired from the Company or from any other third party in connection with this Agreement:
- conform with its statutory obligations under the Privacy Laws; and
- to the extent that different Privacy Laws apply to each party, conform with the statutory obligations applicable to the other party as if they were binding upon it.
14.2 The Recipient must:
- immediately notify the Company if it becomes aware of any unauthorised access to, or unauthorised disclosure of personal information or User Data under its control by virtue of this agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;
- comply with any direction from the Company as to which party will discharge any mandatory reporting obligation arising from the incident;
- conduct or assist the Company in conducting a reasonable and expeditious assessment of the breach;
- ensure compliance with all mandatory data breach reporting obligations arising out of the breach or suspected breach;
- provide the Company with all information, assistance and co-operation reasonably requested by the Company to enable the Company to meet its obligations under the Agreement or its compliance with any legal or regulatory obligations including, but not limited to, the provision of information to a Government Agency;
- not do, omit to do or permit to be done anything which could have an adverse effect on the operation and maintenance of the Company Equipment or the Company’s ability to fulfil its obligations under the Agreement;
- provide the Company and its suppliers, contractors, agents and employees with prompt and safe access to the Recipient’s premises as reasonably required for the delivery of the Service;
- permit the Company access its premises and or place of business to undertake any audit or investigation for the purpose of complying with the Company’s obligations under any Privacy Laws; and
- provide all reasonable assistance and take all safety precautions as reasonably necessary or otherwise requested by the Company for the safe and proper performance by the Company of the Service at the Recipient’s premises or such other premises as the Recipient directs the Company to supply the Service.
14.3 The Company warrants that it has taken reasonable steps to provide security to protect from cyber hacking as part of the Services, however the Company will not be held liable for any loss or damage caused as a result of any hacking,
unauthorised access or other cyber security incident, and it is the sole responsibility of the Recipient to insure against loss or damage which may arise as a result of cyber hacking.
14.4 The Company will not be liable for any loss arising out of the Recipient (and any other end user, customer, client, or third party who deals with the Recipient), using an unsecure password, failing to use two (2) factor authentication, or failing to take adequate steps to protect any user data, failing to exercise adequate cyber awareness, or any other act or omission.
14.5 The Recipient agrees to hold the Company harmless in respect of any data breach or cyber hacking and will indemnify the Company in respect of claims from any third party in respect of a data breach attributed to the Recipient and or the Recipient’s end users, customers, or any other third party which engages with the Recipient.
14.6 The Recipient agrees to take out and maintain a current stand-alone cyber-insurance policy and provide evidence of such insurance to the Company on demand. This is in addition to any other policy of insurance that the Company may require the Recipient to hold from time to time.
14.7 If applicable, the Recipient must provide and maintain its own network and network security.
14.8 The Recipient must comply with the Company’s operational procedures, directions and technical specifications.
14.9 If relevant, the Company will archive data on a regular basis for the purpose of disaster recovery and, in the event of data corruption or equipment failure, will restore the Recipient’s data from the last retention point.
14.10 If clause 14.9 applies, the Recipient agrees that the data retained by the Company may be out of date and to the full extent permitted by law clause 14.9 sets out the Company’s entire obligation with respect to disaster recovery and loss of data, and the Company hereby excludes all liability to the Recipient arising from any loss of, or corruption of data, other than liability arising directly from a breach by the Company of clause 14.9.
15.1 If either party enters into this agreement in the capacity as a Trustee of a Relevant Trust:
- Each Trustee enters into this agreement only in its capacity as trustee of the Relevant Trust and in no other
- A liability arising under or in connection with this agreement can be enforced against a Trustee only to the extent to which it can be satisfied out of property of the Relevant Trust out of which the applicable Trustee is actually indemnified for the liability
- This limitation of each Trustee ‘s liability applies despite any other provision of this agreement and extends to all liabilities and obligations of each Trustee in any way connected with this agreement, including any representation, warranty, conduct, omission, agreement or transaction related to this agreement.
- No party may sue a Trustee in any capacity other than as trustee of the Relevant Trust, including seeking the appointment of a receiver (except in relation to property of the Relevant Trust), a liquidator, an administrator or any similar person to the applicable Trustee or to prove in any liquidation, administration or arrangement of or affecting the applicable Trustee (except in relation to property of the Relevant Trust).
- Clauses 15.1 (a) and 15.1 (d) will not apply to any obligation or liability of a Trustee to the extent that it is not satisfied because, under the trust agreement establishing the Relevant Trust or by operation of law, there is a reduction in the extent of the Trustee‘s indemnification out of the assets of the Relevant Trust, as a result of the Trustee‘s fraud, negligence or breach of trust.
- No Trustee is obliged to do, or refrain from doing, anything under this agreement (including incurring any liability) unless its liability is limited in the same manner as set out in clauses 15.1 (a) and 15.1 (d).
- Each Trustee (both in its own right and as trustee of the Relevant Trust) represents and warrants to each other party that:
- (Status of the Relevant Trust) the Relevant Trust is validly constituted and has not been terminated, nor has any action been taken to wind up, terminate or resettle it, nor has any event occurred for the vesting of its assets;
- (Status as trustee) it is a trustee of the Relevant Trust and it has not given any notice of resignation and no action has been taken to remove it;
- (Trust power) it has power under the constituent documents of the Relevant Trust to enter into, and perform its obligations under, this agreement;
- (Trust authority) all action has been taken that is necessary or desirable under the constituent documents of the Relevant Trust or at law to authorise its entry into this agreement and its performance of its obligations hereunder;
- (Benefit of beneficiaries) it is entering into this agreement as part of the proper administration of the Relevant Trust for the commercial benefit of the Relevant Trust and for the benefit of the beneficiaries of the Relevant Trust;
- (Right of indemnity) it has the right to be indemnified out of the assets of the Relevant Trust in relation to any liability arising under or in connection with the proper performance of its obligations under this agreement. The assets of the Relevant Trust are sufficient to satisfy that right in full and it has not released or disposed of its equitable lien over those assets; and
- (No breach) it is not in breach of any material obligations imposed on it in its capacity as trustee of the Relevant Trust, whether under the constituent documents of the Relevant Trust or otherwise.
15.2 The Recipient acknowledges that Company may use the Recipient’s name and or trading name, the public description of the Recipient and the content of the Recipient’s profile information and the Recipient’s company profile on the Company’s website for marketing and other related purposes.
Use of Service
15.3 The Recipient agrees that:
- it is fully responsible for the use of the Service and all Fees and Charges due in relation to the use of any Service by any recipient user;
- the Company network is not necessarily a secure and confidential method of communications and if, as part of the use of the Service, the Recipient transmits data on the Company network it does so at its own risk;
- the Company is not responsible for ensuring that any material sent or received by use of the Service is sent or received correctly; and
- the Company is not bound by any electronic communication, unless the communication was actually sent by Company or with the Company’s actual authority.
15.4 The Recipient must not use the Service:
- for any improper or unlawful purpose or allow others to do so (intentionally or otherwise);
- for the transmission of content which is, or may be, defamatory, offensive, abusive, indecent, discriminatory, menacing, unwanted, in breach of confidence, illegal or which does or may damage the reputation of the Company or any of its directors, employees or agents; or
- in a manner which disrupts, interferes or otherwise damages any computer network or any other person’s use of software, hardware, network or services, including, but not limited, to the transmission or hosting of information which contains viruses or other harmful code or data.
15.5 The Recipient will be responsible for the Supplied Equipment and must compensate the Company for any loss, damage, unauthorised modification, theft, or destruction of that equipment unless such loss or damage is caused by the Company.
15.6 If the Recipient becomes aware of any loss or damage to, fault with or malfunction of the Supplied Equipment, the Recipient must notify the Company immediately.
15.7 In respect of any Supplied Equipment that has not been purchased in full from the Company, the Recipient must:
- provide an adequate power supply and a suitable physical environment as specified in the Service Schedule or otherwise advised by the Company to the Recipient;
- keep the Supplied Equipment in good working order and condition (fair wear and tear excepted);
- only allow the Supplied Equipment to be repaired, serviced, relocated or disconnected by the Company unless otherwise authorised by the Company in writing;
- not remove, conceal or obscure any marks on the Supplied Equipment identifying the Company as the owner of the Supplied Equipment;
- make the Company’s ownership of the Supplied Equipment clear to all persons;
- keep the Company’s Supplied Equipment separate from the Recipient’s property in a clear and distinguishable manner;
- not store the Supplied Equipment in a warehouse where doing so may give rise to a storage lien;
- comply with any reasonable directions given by the Company for the purposes of protecting the Company’s ownership of the Supplied Equipment or the Supplied Equipment itself from loss or damage; and
- take all reasonable steps to protect the Company’s ownership of the Supplied
15.8 The Company will supply the Purchased Equipment to the Recipient as stipulated in the Agreement provided by the Company and accepted by the Recipient in writing or the invoice sent by the Company to the Recipient.
15.9 The Company will deliver the Purchased Equipment to the location nominated by the Recipient in writing. The Recipient acknowledges that risk for loss or damage to the Purchased Equipment passes to the Recipient on delivery of the equipment to the Recipient’s nominated delivery address.
15.10 The Recipient acknowledges that title to the Purchased Equipment will only pass from the Company to the Recipient on payment of the Equipment Purchase Price to the Supplier in full and cleared funds. Unless the Company sells any equipment to the Recipient, and receives payment from Recipient in clear funds, such equipment is held by the Recipient as bailee for the Company.
15.11 If the Purchased Equipment is delivered to the Recipient’s nominated delivery address before title passes to the Recipient pursuant to clause 15.10 then the Recipient:
- must insure and keep the Purchased Equipment insured with a reputable insurer for their full replacement value against loss or damage by fire, theft, accident and such other risks as a prudent person in a similar business to the Recipient would insure that equipment against and, if requested by the Company, promptly provide the Company with a certificate of currency relating to that insurance; and
- must not:
- part with possession of the Purchased Equipment; or
- permit any of the Purchased Equipment to become a fixture or an accession to anything, without the Company’s prior written consent.
15.12 If the Recipient has not paid the Company the Equipment Purchase Price in full and cleared funds, the Company may retain, repossess or re-sell the relevant Purchased Equipment and for that purpose the Company is authorised to enter the premises where the Purchased Equipment is located on reasonable prior notice to the Recipient. Any part payment made in respect of the Purchased Equipment will be refunded on repossession of the Purchased Equipment subject to the setting-off of any outstanding Service Fees or other fees and charges owed to the Company.
15.13 The Recipient acknowledges and accepts that the Company may be entitled under the PPSA to register its interests in the Purchased Equipment for which the Equipment Purchase Price has not been paid in full and the Recipient waives its rights to receive a notice of that registration.
15.14 The Recipient must, if required by the Company, fully cooperate and execute any document that the Company reasonably considers necessary to enable it to register its interest in the Purchased Equipment within the prescribed time period and/or preserve its rights under the PPSA.
15.15 To the extent permitted by law:
- the Company will use all commercially reasonable efforts to assign to the Recipient the benefit of any manufacturer’s warranties given to the Company in respect of the Purchased Equipment; and
- other than as provided in clause 15(a), the Company does not provide any warranties to the Recipient in respect of the Purchased Equipment.
15.16 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
15.17 Upon assenting to this Agreement in writing the Recipient acknowledges and agrees that this Agreement constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Recipient to the Company for Services – that have previously been supplied and that will be supplied in the future by the Company to the Recipient.
15.18 The Recipient undertakes to:
- Promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which the Company may reasonably require to;
- register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
- register any other document required to be registered by the PPSA; or
- correct a defect in a statement;
- indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
- not register a financing change statement in respect of a security interest without the prior written consent of the Company;
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Company; and
- immediately advise the Company of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales or in respect of the Client’s personal circumstances
15.19 The Company and the Recipient agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by this Agreement.
15.20 The Recipient hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
15.21 The Recipient waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
15.22 Unless otherwise agreed to in writing by the Company, the Recipient waives its right to receive a verification statement in accordance with section 157 of the PPSA
15.23 Subject to any express provision to the contrary (including those contained in this clause 15.17 – 15.23) nothing in this Agreement is intended to have the effect of contracting out of any of the provisions of the PPSA.
15.24 The Recipient unconditionally ratifies any actions taken by the Company under clause 15.17 – 15.23 subject to any express provisions to the contrary (including those contained in this clause 15.17- 15.23).
15.25 If a dispute arises between the parties in relation to this Agreement, the dispute must be dealt with in accordance with this clause.
15.26 Any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute.
15.27 If the dispute is not resolved by agreement within five working days of the Second Party receiving the notice referred to in clause 15.26 above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further five (5) working days or failing agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited. The costs of the mediator must be borne equally between the disputing parties. The chosen mediator must determine the procedures for the mediation. The chosen mediator will not have the power or authority to make any other determination in relation to the dispute.
15.28 If the parties have not mediated a resolution of the dispute within 20 business days of the selection of a mediator, neither party must be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it thinks fit in relation to the dispute.
15.29 Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.
15.30 This agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
15.31 All costs and expenses in connection with the negotiation, preparation and execution of this Agreement, and any other agreements or documents entered into or signed pursuant to this agreement, will be borne by the party that incurred the costs.
15.32 This Agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.
15.33 If a provision of this Agreement is invalid or unenforceable in a jurisdiction:
- it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
- that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining
15.34 No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this Agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this Agreement.
15.35 This Agreement may not be varied except by written instrument executed by all of the parties.
15.36 A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights, whether in whole or part, under this Agreement without the prior written consent of the other party. A purported assignment without written consent will be deemed to be void.
15.37 This Agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.
15.38 Delivery of an executed counterpart of this agreement by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.
15.39 If a party delivers an executed counterpart of this agreement under clause 15.38:
- it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this agreement; and
- in any legal proceedings relating to this agreement, each party waives the right to raise any defence based upon any such failure.
Governing law and jurisdiction
15.40 This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of South Australia, Australia.
15.41 The parties irrevocably agree that the courts of South Australia, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non- contractual disputes or claims).
Schedule 1 | Standard & Duties
The Company must, in providing the Services:
- (Honesty and diligence) be honest and diligent and provide the Services to it to the best of its knowledge and abilities;
- (Standards) at all times maintain reasonable ethical, professional and technical standards;
- (Discrimination and harassment) not unlawfully discriminate against, sexually harass or otherwise physically or verbally abuse any person; and
- (Privacy) in relation to any Personal Information of any customer, client, supplier or Representative of the Recipient, any user or prospective user or any other person, comply with:
- the Privacy Act and any guidelines, information sheets and other relevant material issued from time to time by the Commonwealth Privacy Commissioner; and
Schedule 2 | Non-Solicitation Periods
3 months; 6 months; 9 months; 12 months; 18 months; 24 months; 30 months; 36 months