Terms & Conditions

1. Agreement

These Terms and Conditions together with the attached Schedules and the Order (collectively, the Agreement) set out the terms and conditions which govern the provision of the Services by Supplier to Customer. If there is an inconsistency between the various parts of the Agreement, the following order of precedence will apply to the extent of the inconsistency:

(a) these Terms and Conditions;

(b) the Schedules; and

2. Term and Exclusivity

2.1 Term

(a) This Agreement commences on the Commencement Date and continues for the initial term (if any) specified in the Order, following which it will automatically extend for the renewal period specified in the Order unless it is terminated in accordance with clause 13 (the Term).

(b) If no initial term is specified in the Order, the Agreement will proceed on a month-to-month basis unless it is terminated in accordance with clause 13.

2.2 Exclusivity

(a) Customer must not engage, or enter into an agreement to engage, another supplier of services which are the same as or similar to the Services during the Term without Supplier’s prior written approval.

(b) Supplier provides the Services to Customer on a non-exclusive basis. Nothing in this Agreement prevents the Supplier from providing, or entering into an agreement to provide, services which are the same as or similar to the Services to any third party.

3. Provision of Services

3.1 General

(a) Supplier will:

(i) use the reasonable care and skill that can be expected from a competent service provider in providing the Services to Customer in accordance with the Service Levels;

(ii) retain sufficient and appropriately qualified and experienced Personnel to provide the Services; and

(iii) use its best endeavours to meet the targeted response times and targeted resolution times for applicable Services based on the agreed Service Levels.

(b) Customer acknowledges and agrees that:

(i) the Services or components of the Services may be performed via third parties, including telecommunications and internet service providers;

(ii) outages, performance degradations or unavailability attributable to such third parties are beyond the control of Supplier and may impact Supplier’s ability to provide the Services in accordance with the Service Levels; and

(iii) Supplier will take all reasonable steps to ensure that such third parties comply with the availability requirements of this Agreement.

(c) Supplier may subcontract the performance of all or part of the Services. Supplier will remain responsible for the provision of any subcontracted Services.

(d) Unless otherwise agreed between the Parties, any administrative credentials required by Supplier to provide the Services to Customer will be held exclusively by Supplier.

3.2 Scheduled Maintenance

If scheduled maintenance is to be carried out, such maintenance will be performed during the times specified in the Order (Maintenance Window). If the scheduled maintenance is unable to be completed within the Maintenance Window, Supplier will promptly notify Customer. If emergency maintenance is required, subject to Supplier providing Customer with prior notice, it may be performed at alternative times to the Maintenance Window.

3.3 On-boarding and Off-boarding assistance

(a) If specified in the Order and prior to the provision of the Services, Supplier will provide the On-boarding Assistance.

(b) If specified in the Order and prior to the end of the Term, Supplier will provide Customer with Off-boarding Assistance. If either party terminates this Agreement, Supplier will assist Customer in the orderly termination of Services, including timely transfer of the Services to another designated provider.

(d) Supplier will advise Customer on the on-boarding and/or off-boarding timeframes applicable to Customer. Customer acknowledges that Supplier’s timeframes to on-board and/or off-board Customer are dependent on several factors, including the Customer Environment and the number of End Users.

3.4 Changes

(a) Either party may issue a Change Request to the other party in respect of a proposed Change.

(b) The parties must negotiate in good faith and agree upon any Change Request issued under this clause 3.4 within 14 days of the issue of a Change Request or a later date agreed by the parties.

(c) If the parties agree upon the matters relating to the Change Request, those variations that are accepted will be reflected in a formal written variation to the applicable Order or the issue of a new Order if required.

(d) If the parties are unable to agree upon the matters relating to a Change Request pursuant to clause 3.4(b), Supplier may elect to:

(i) continue to provide the Services in accordance with this Agreement as if the Change Request had not been issued;

(ii) terminate this Agreement or the relevant Services under an Order by written notice if the Change Request relates to a change in Law or an assumption not being correct in any material respect; or

(iii) refer the issue to dispute resolution under clause 14.

(e) Nothing in this Agreement requires Supplier to agree to a Change in respect of any Services, including the replacement of the Services or the addition of new Services. Supplier is not required to give reasons for declining a Change.

3.5 Project Based Work

(a) This clause applies to the extent that Customer requests project based work, including new hardware installation, data migrations and company relocations, in the Order (Project Based Work).

(b) Where specified in the Order, Supplier will provide the Project Based Work to Customer.

(c) Project Based Work will be charged on either a time and materials basis in accordance with Schedule or on a fixed fee basis, as advised by Supplier to Customer.

4. Software and Equipment

4.1 General obligations, Access and Rights

(a) Subject to clause 4.2, Customer acknowledges that all title in and to any Software or Equipment, for example anti-virus licences, backup licences, managed firewalls or Supplier servers, used by Supplier in connection with the provision of the Services remain at all times with Supplier.

(b) The Equipment will only be affixed to the Site if it is reasonably necessary for its ordinary use. If the Equipment is attached to the Site, the Equipment does not become a fixture and Supplier can still remove the Equipment in accordance with this Agreement.

(d) Customer must:

(i) properly operate any Equipment in accordance with the reasonable requirements and instructions of Supplier;

(ii) ensure the Equipment is maintained in substantially good repair and condition during the Term; and

(iii) ensure the Equipment does not damage, hinder or unduly interfere with any other third party or their equipment.

(e) Subject to any negligent act or omission of Supplier and to the extent permitted by any applicable Laws, Customer remains solely responsible and liable for its access and use of its own equipment and software (Customer Equipment) and indemnifies Supplier against all Claims, losses, liabilities, damage and injury incurred by Customer, Supplier or any third party by or as a result of use of such Customer Equipment.

4.2 Third Party Material

(a) Supplier may provide Customer with Software licensed by a third party (Third Party Material). If this occurs, Customer acknowledges that:

(i) its use of the Third Party Material will be subject to the third party licensor’s licence agreement; and

(ii) all licences with respect to Customer’s use of the Third Party Material will be between Customer and the third party licensor.

(Third Party Licence).

(b) Title in any Third Party Material remains at all times with the Third Party.

(c) Customer is solely responsible for its compliance with the Third Party Licence and Supplier will not be responsible for, or have any obligation to ensure, that Customer agrees to or complies with the Third Party Licence.

(d) Where requested by Customer, Supplier will use reasonable endeavours to provide Customer with a copy of the Third Party Licence

4.3 Procurement and Sale of Hardware

(a) This clause applies to the extent Supplier supplies Hardware to Customer under the Order. The supply of Hardware is independent of the provision of Services and must be specified in the Order.

(b) Supplier will use all reasonable endeavours to dispatch Hardware by the due date, but does not accept any liability for non-delivery or failure to deliver on time (or at all) where this is caused by circumstances beyond the reasonable control of Supplier, including, for example, due to failures in supply to Supplier or delays caused by third parties, such as delivery companies or manufacturers. Customer must be available to accept the Hardware at Customer’s nominated delivery address during Business Hours unless otherwise arranged.

(c) Risk in the Hardware passes to Customer immediately on delivery of Hardware to the Site, and title to the Hardware passes to Customer when the Fees have been paid in full to Supplier. Customer must pay the Fees in respect of the Hardware in advance and prior to delivery, unless otherwise agreed in the Order.

(d) Customer must not do anything to affect ownership of the Hardware unless or until title has passed to Customer.

(e) Subject to the payment of the applicable Fees, where Customer requests installation of the Hardware, Supplier agrees to ensure the Hardware is installed and operational, in accordance with the Operating Manuals, at the Site and to install the Hardware on or before the installation date agreed between the Parties during Customer’s normal business hours.

(g) Customer must obtain and maintain all necessary consents, permits, licences, registrations and approvals from any Government, body corporate, landlord or entity for the Hardware to be installed, used, hired, maintained, upgraded, inspected and/or accessed at the Site by Supplier or its Personnel.

(h) Subject to clause 11, Customer acknowledges and agrees that Supplier makes no representations and gives no warranties in respect of Hardware, including that the Hardware is fit for any particular purpose.

5. Third Party Products and Services

(a) This clause applies to the extent that Customer purchases Third Party Products and Services in connection with this Agreement. The supply of Third Party Products and Services is independent of the provision of Services and must be specified in the Order.

(b) Where Supplier procures Third Party Products and Services for or on behalf of Customer, Customer acknowledges and agrees that its access to and use of such Third Party Products and Services are governed by the Third Party Terms between Customer and the Third Party Supplier and Customer is solely responsible for its compliance with such Third Party Terms.

(c) Subject to clause 11, Customer acknowledges and agrees that Supplier makes no representations and gives no warranties in respect of the Third Party Products and Services, including that:

(i) the Third Party Products and Services are fit for any particular purpose; or

(ii) the Third Party Products and Services will be effective in protecting Customer from, or preventing, Cyber Breaches or eliminating the risk of Cyber Breaches entirely.

(d) Subject to clause 11, Customer acknowledges and agrees that Supplier makes no representations and gives no warranties in respect of the Third Party Security Products, including that the Third Party Security Products are fit for any particular purpose or will be effective in preventing a Cyber Breach.

6. Customer Obligations

6.1 General

(a) Customer agrees and undertakes to:

(i) do all things necessary to enable Supplier to perform its obligations under this Agreement including performing any works, providing any equipment or connecting any services as reasonably required by Supplier from time to time;

(ii) provide Supplier and its Personnel with access to the Site and Customer’s Personnel as and when reasonably requested by Supplier;

(iii) provide Supplier and its Personnel with access to the Customer Environment as reasonably required by the Supplier to perform its obligations under this Agreement;

(iv) comply with all Laws applicable to the Site including occupational health and safety laws;

(v) comply with all data retention Laws applicable to Customer, including Laws related to the security of information including Personal Information;

(vi) comply with all requirements and obligations of regulators or governmental agencies, including responding to queries, audit requests and investigations by regulators;

(vii) provide Supplier with all information and documentation as reasonably requested by, or as otherwise necessary for Supplier;

(viii) use reasonable security precautions in connection with its use of the Services;

(ix) co-operate with Supplier’s reasonable investigations of outages, security problems and any suspected breach of this Agreement;

(x) keep the contact and other account information that Supplier holds about it up-to-date;

(xi) not use or attempt to use the Services for any activity which breaches any Law, order, regulation or industry code of practice;

(xii) not distribute, store or publish any content or material that is restricted, illegal or otherwise unlawful under any applicable Law, or which is likely to be offensive or obscene to a reasonable person; and

(xiii) not interfere or attempt to interfere in any manner with the functionality or proper operation of the Services.

(b) Customer must implement and incorporate any recommended changes in respect of the Customer Environment which Supplier reasonably requires to ensure the effective and timely provision of the Services (Recommendations).

6.2 Site and Access Requirements

Customer must:

(a) at its own expense and in accordance with the reasonable directions and specifications of Supplier and its suppliers, prepare and provide access to the Site prior to the supply of the Services;

(b) ensure that the Site is maintained in good working repair and condition;

(d) ensure existing building connection frames, cables and sockets are in good working order; and

(e) allow Supplier Personnel to access its Site, facilities and specified equipment to perform its obligations under this Agreement, as and when reasonably requested by Supplier.

7. Fees and Payment

7.1 Fees

(a) Customer will pay the Fees which are specified and invoiced by Supplier in accordance with the Order.

(b) Without limiting clause 7.1(b), the Parties agree that the Fees will increase by the greater of:

(i) the CPI rate (all groups) over the preceding 12-month period;

(ii) 5%; or

(iii) a percentage specified in the Order,

each year on the anniversary of the Commencement Date.

(c) During the Term and in addition to its rights under clause 7.1(b) Supplier may increase the Fees on written notice to Customer as follows:

(i) following any increase in the costs of providing the Services as result of any change or increase in costs passed on by any third party suppliers; and

(ii) following any material increase in the costs of providing the Services as a result of any change or increase in the costs of labour, insurance or such other internal cost to Supplier.

(d) If Customer does not agree with a variation to the Fees made under clauses 7.1(b) or 7.1(c):

(i) Customer must provide notice to Supplier within two (2) Business Days that it does not agree to the variation; and

(ii) the Parties will discuss the variation in good faith within ten (10) Business Days of the date on which Supplier receives the notice from Customer with a view to reaching an agreement as to the variation and, if an agreement cannot be reached on the date of the discussion, either Party may terminate the Agreement in accordance with clause 13.3 and no variation will be made to this Agreement.

7.2 Invoicing and Payment

(a) Supplier will issue invoices for the Fees in accordance with the Order and Customer must pay all undisputed invoices within fourteen (14) days from the date of the invoice, unless otherwise specified in the Order or Schedules.

(b) If Customer disputes in good faith any Fixed Monthly Fees or any amount on an invoice provided by Supplier, then Customer is not obligated to pay the disputed amount until the dispute is resolved, but must pay all other undisputed amounts. Any disputed Fixed Monthly Fees or invoice will be resolved in accordance with clause 14.

(c) Subject to clause 7.2(b), if Customer fails to pay any Fees by the due date, Supplier may charge interest at the Interest Rate on the outstanding Fees or any other monies due and unpaid by Customer, until such time as Customer has paid in full, the outstanding amount and any interest accrued on the outstanding amount, and Customer will pay to Supplier any reasonable costs incurred by Supplier in relation to collection of any amounts owing.

7.3 Taxes

The Fees are exclusive of GST, and where applicable, GST and other taxes, duties or levies will be added to the Fees payable at the then prevailing rate.

8. Intellectual Property

(a) Customer acknowledges that Supplier and its licensors own or are entitled to all right, title to and interest including all Intellectual Property Rights in the Services and any documentation supplied by Supplier to Customer in connection with the Services (including quotes, scope of work proposals and bill of materials).

(b) Nothing in this Agreement transfers ownership of the Supplier’s Intellectual Property Rights subsisting in the Services and related documentation except as expressly permitted by the terms of this Agreement.

(c) For the avoidance of doubt, Customer must not use, reproduce, distribute, transmit, modify, or otherwise exploit in any form or by any means, Supplier’s Intellectual Property Rights subsisting in the Services and related documentation without the prior written consent of the Supplier.

9. Privacy

9.1 Personal Information

If the performance of rights and obligations under this Agreement involves the handling of any Personal Information, then each Party must:

(a) comply with all applicable provisions of the Privacy Act;

(b) comply with all reasonable requests or directions of the other Party in connection with an obligation of the other Party under the Privacy Act;

(d) not transfer that Personal Information outside of Australia or allow persons outside of Australia to have access to that Personal Information, unless the other Party has consented in writing to such transfer or access;

(e) take all necessary steps to ensure that such Personal Information is protected against misuse, loss and unauthorised access; and

(f) without undue delay, notify the other Party if it becomes aware of a breach of any applicable privacy laws in connection with this Agreement.

9.2 Eligible Data Breach

Promptly, and no later than 7 days upon becoming aware of an actual or suspected Cyber Breach, in relation to the Customer Environment, Customer will:

(a) immediately investigate, or procure the investigation of, the Cyber Breach;

(b) assess if the Cyber Breach constitutes an Eligible Data Breach and notify Supplier of the following:

(i) the reasons why Customer considers that a reasonable person would or would not conclude that the Cyber Breach is an Eligible Data Breach;

(ii) whether Customer will make any statements to the affected individuals and the Office of the Australian Information Commissioner; and

(iii) where there are reasonable grounds to conclude that the Cyber Breach constitutes an Eligible Data Breach, prepare statements in accordance with section 26WK of Part IIIC of the Privacy Act and make statements to the affected individuals and the Office of the Australian Information Commissioner to notify them of the Cyber Breach; and

(c) otherwise take full responsibility for complying with its own obligations under the Privacy Act with respect to a Cyber Breach and/or Eligible Data Breach.

10. Confidentiality

10.1 Treatment of Confidential Information

Each Party acknowledges that the Confidential Information of the other Party is valuable to the other Party. Each Party undertakes to keep the Confidential Information of the other Party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other Party.

10.2 Use of Confidential Information

A Recipient may only use the Confidential Information of the Discloser for the purposes of performing the Recipient’s obligations or exercising the Recipient’s rights under this Agreement.

10.3 Disclosure of Confidential Information

A Recipient may not disclose Confidential Information of the Discloser to any person except:

(a) representatives, legal advisers, auditors and other consultants of the Recipient who require it for the purposes of performing its obligations or exercising its rights under this Agreement and then only on a need to know basis; or

(b) if required to do so by Law or a stock exchange.

10.4 Return of Confidential Information

Upon the expiry or termination of this Agreement, the Recipient must promptly deliver to the Discloser all documents or other materials containing or referring to the Discloser’s Confidential Information which are in the Recipient’s possession, power or control or in the possession power or control of persons who have received the Confidential Information from the Recipient under clause 10.3.

10.5 Publicity

Neither Party may, without the written consent of the other:

(a) make any public announcement regarding this Agreement or the Services; or

(b) use the name, logo or trademark of the other, or the name of the other Party’s Personnel.

11. Warranties

11.1 Supplier Warranties

(a) Supplier’s goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, Customer is entitled:

(i) to cancel its service contract with Supplier; and

(ii) to a refund for the unused portion, or to compensation for its reduced value.

(b) Customer is also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, Customer is entitled to have the failure rectified in a reasonable time. If this is not done Customer is entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

(d) To the extent permitted by Law and subject to this clause 11, Supplier excludes all conditions, warranties and terms not expressly set out in this Agreement. Where applicable Law provides any consumer guarantee, condition or warranty which cannot be excluded, Supplier’s liability for any breach of such consumer guarantee, condition or warranty will be limited to the extent permitted by applicable Law to, at its option to the provision of the entitlements set out in clauses 11.1(a) or 11.1(b).

11.2 Customer Warranties

Customer warrants that:

(a) it owns the rights or has the right to use any software, hardware, systems, IP addresses, domain names and all other items in the Customer Environment;

(b) the Customer Environment is in good working order and it has sole responsibility for the availability and integrity of the Customer Environment;

(i) take all reasonable precautions to safeguard its business and specifically its Customer Environment, the Software and Equipment and all applicable software, hardware and data to minimise any loss or disruption, including (as applicable) implementing effective audit control, firewalls, virus checking controls, data security measures and appropriate data and software back-ups; and

(ii) comply with Supplier’s or the applicable vendor’s written instructions for the access and use of all Software and Equipment used within the Customer Environment.

11.3 Cyber Security Services

To the extent that Supplier is providing Cyber Security Services to Customer, the warranties under clause 11.2(c)(i) may be varied in the Order.

12. Liability

12.1 Limitation on liability

(a) To the extent permitted by Law, Supplier’s total aggregate liability whether in tort (including negligence), contract, breach of statutory duty, misrepresentation, restitution or otherwise, excluding liability for any Hardware and Third Party Products and Services Fees, is limited to the Fees paid under this Agreement in the six (6) months following the Commencement Date.

(b) To the extent permitted by Law, Supplier is not responsible for any loss or damage incurred by Customer or any third party and Customer releases Supplier and its Personnel from all Claims in connection with:

(i) a Cyber Breach or security incident, irrespective of whether caused or contributed to by Supplier, its Personnel or a third party vendor including but not limited to, any statutory fines or penalties;

(ii) Customer’s failure to comply with its obligations or warranties under clause 6 (including Customer’s failure to implement any Recommendation); or

(iii) a third party’s failure to comply with its obligations to Customer, including under any Third Party Terms or any other terms entered into by a Customer and the relevant third party.

12.2 Cyber Breaches

(a) Unless otherwise specified in an Order:

(i) Supplier’s only obligation arising from a Cyber Breach is to attempt the restoration of such Customer Data to the last available backup; and

(ii) any Cyber Breach remediation services will only be provided by Supplier if agreed in writing between the parties at the Customer’s cost.

(b) Customer acknowledges that Supplier makes no representations and gives no warranties about the availability, quality or extent of Customer Data that may be restored or recoverable under clause 12.2(a)(i).

12.3 Exclusions from liability

To the extent permitted by Law and unless specified otherwise in the Order, Supplier will not be liable for loss (including under a warranty or indemnity) suffered by Customer, or failure to provide the Services, to the extent caused or contributed to by any of the following:

(b) the Customer’s decision not to, or failure to, implement any Recommendation by Supplier, including in relation to the Customer Environment, Customer’s security measures or practices or other relevant changes to the Services;

(d) use of the Services in breach of this Agreement;

(e) operation or use of any Software, Hardware or Equipment supplied under the Agreement other than in accordance with the recommended operating procedures and relevant user documentation or in accordance with normal business use and requirements;

(f) Customer’s uninstallation of Software provided by the Supplier for the purposes of performing its obligations under this Agreement;

(g) Customer’s use of any new devices without first informing Supplier of the existence of such new devices and allowing Supplier to extend the Services to those devices;

(h) any Third Party Products and Services, including any faults, failures, malfunctions or defects in such software, services or products;

(i) any access or use of administrative credentials by Customer or a third party on behalf of Customer;

(j) any unauthorised access to Customer’s Environment, network, systems, device applications, services or Customer Data by any party other than the Supplier and its Personnel; or

(k) telecommunications or power failure or fault or defective network or internet connection affecting Customer, or affecting Supplier provided that Supplier is unable to reasonably mitigate through its business continuity and disaster plan.

12.4 No Consequential Loss

To the extent permitted by law, neither Party is liable whether in tort (including for negligence), contract, breach of statutory duty, misrepresentation, restitution or otherwise for indirect loss of profits, loss of business, depletion of goodwill, loss or corruption of data or information, or pure economic loss, or for any other special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.

12.5 Proportional Liability

A Party’s liability under this Agreement will be reduced to the extent that the other Party caused or contributed to the relevant liability or the act giving rise to the liability.

12.6 Avoiding or Minimising Loss

A Party which incurs a loss under this Agreement must take reasonable steps to avoid or minimise the loss.

12.7 Indemnity

(a) To the extent permitted by Law in connection with the provision of the Services, Supplier agrees to indemnify the Customer against Claims arising under this Agreement and directly out of:

(i) death or personal injury; or

(ii) damage to tangible or real property.

(b) The obligation under clause 12.7(a) to indemnify Customer will not apply to the extent of the following:

(i) Customer failing to promptly provide Supplier with written notice of such a Claim against Customer;

(ii) Customer failing to give Supplier sole control of the defence and settlement of such a Claim against Customer; or

(iii) Customer failing to provide Supplier with all reasonable assistance in relation to the defence and settlement of such a Claim.

(c) To the extent permitted by Law, Customer indemnifies Supplier, and will keep Supplier indemnified, from and against any Claims that Supplier suffers, incurs or is liable for, whether or not contemplated by the Parties, as a result of any:

(i) loss of, or damage to, any property caused by any act or omission of Customer or Customer’s Personnel, including through negligence;

(ii) personal injury (including sickness or death) caused by an act or omission of Customer or Customer’s Personnel, including through negligence;

(iii) all Claims, arising from or in connection with a Cyber Breach caused or contributed to by Customer or its Personnel; and

(iv) fraud, criminal offence or wilful misconduct by Customer or Customer’s Personnel.

13. Termination

13.1 Termination for Convenience

Not less than two (2) months prior to the end of the then current Term or Renewal Term, or anytime if no Term or Renewal Term is specified, either Party may terminate this Agreement for convenience by giving the other Party not less than one (1) month’s written notice.

13.2 Termination for Cause

(a) This Agreement may be terminated at any time during the Term immediately by a Party if the other Party:

(i) is in material breach of any of its obligations under this Agreement and it has not rectified the breach within thirty (30) Business Days from receiving written notice requiring it to do so;

(ii) is no longer able to perform its obligations under this Agreement due to a change in Law which prevents a Party from performing its obligations under this Agreement; or

(iii) suffers an Insolvency Event.

(b) Without limiting clause 13.2(a), Supplier may terminate this Agreement or suspend the Services if Customer fails to make payment and has not rectified the non-payment within ten (10) Business Days from receiving written notice requiring it to do so.

13.3 Termination for Variation

(a) This Agreement may be terminated during the Term by Supplier on a no fault basis after following the process in clause 3.4(d)(ii).

(b) This Agreement may be terminated during the Term by either Party on a no fault basis after following the process in clause 7.1(d).

13.4 Consequences of Termination

Upon termination of this Agreement in accordance with this clause 13:

(a) where Customer terminates this Agreement under clause 13.1 or the Agreement is terminated under clause 13.3, Customer agrees to pay for any costs or expenses (including any pre-paid subscriptions, Hardware purchases and licences) incurred directly under this Agreement by Supplier as a result of such early termination;

(b) all amounts due and payable to Supplier, whether or not invoiced, including any Fees for Services provided up to the date of termination, as at the date of termination become a debt due and payable on the effective date of termination;

(d) subject to a dispute in good faith under clause 14, Customer acknowledges Supplier may retain all admin credentials and not grant access to Customer or other third parties until all amounts due and payable to the Supplier are paid;

(e) Supplier will remove all software and hardware supplied or licensed to Customer for the purposes of providing the Services under this Agreement; and

(f) each Party must promptly return or destroy the other Party’s Confidential Information, as directed by the other Party.

13.5 Return of Customer Data

(a) On request, Supplier will deliver to Customer a file containing the Customer Data within thirty (30) days of termination or expiry of this Agreement. Provision of such data will be either charged on a time and materials basis in accordance with the Order or on a fixed fee basis, as advised by Supplier to Customer.

(b) Customer acknowledges and agrees that Supplier is not obliged to retain the Customer Data after the time period specified in clause 13.5(a) and that Supplier may irretrievably erase the Customer Data after such period.

13.6 Survival of Rights

Termination of this Agreement does not affect the rights of a Party which have accrued up to the date of such termination.

14. Dispute Resolution

14.1 Dispute Notice

If any dispute or difference arises between the Parties with respect to the construction, effect or operation of this Agreement, or with respect to any matter connected with this Agreement or arising out of it (a Dispute), the Parties must take the following steps to attempt to resolve the Dispute:

(a) either Party may serve a written notice on the other Party stating the nature of the Dispute and invoking the dispute resolution process set out in this clause 14 (a Dispute Notice); and

(b) the Parties must meet within ten (10) Business Days after the date of the receipt of the Dispute Notice, or such other period as the Parties agree in writing, and negotiate in good faith to resolve the Dispute.

14.2 Mediation

lf the Dispute is not resolved in accordance with this clause 14 within twenty (20) Business Days of the date of the Dispute Notice, or such other period as the Parties agree in writing, the Dispute will be referred to mediation with the Parties to agree on a mediator who possesses the requisite skills and qualifications to assist the Parties in resolving the Dispute. The Parties will equally share all the costs of the mediation, including without limitation any fees charged by mediator.

14.3 Commencing Proceedings

Other than proceedings for urgent interlocutory relief, a Party may not commence or maintain any proceedings in any court with respect to a Dispute unless and until that Party has complied with the procedures in this clause 14.

15. Non-Solicitation

Each Party agrees not to directly or indirectly solicit, recruit or make an offer of employment to the Personnel of the other Party during the Term and for a period of:

(a) twelve (12) months;

(b) six (6) months; or

following expiration or termination of the Agreement.

16. Insurance

16.1 Insurance Requirements

Each Party must procure and maintain the following insurance policies at its own expense:

(a) workers compensation insurance, as required by Law;

(b) public and product liability insurance, with a limit of $10,000,000 in the aggregate;

(d) cyber insurance, with a limit of $1,000,000 in the aggregate.

16.2 Certificates of Insurance

Either Party may reasonably request certificates of insurance as evidence that the other Party is in compliance with clause 16.1 and the other Party must provide the relevant certificates within thirty (30) days of receiving such a request.

17. PPSA

(a) This clause 17 applies to the extent Supplier makes Hardware available to the Customer which has not been paid for up front in full by the Customer.

(b) Customer acknowledges that Supplier’s interest under this Agreement is a Security Interest for the purposes of the PPSA and:

(i) that Security Interest relates to the Equipment and all proceeds of any kind; and

(ii) this Agreement is a security agreement for the purposes of the PPSA.

(c) Customer consents to Supplier effecting a registration on the PPSR (in any manner Supplier considers appropriate) in relation to any Security Interest arising under or in connection with this Agreement.

(d) Customer waives its right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

(e) Customer must do all things (including signing any document) and provide all information necessary to enable Supplier to perfect and maintain the perfection of any and each Security Interest granted to Supplier by Customer.

(f) For the purposes of this clause 17, Customer irrevocably appoints Supplier to be its attorney with power to do all things necessary or expedient including entering into any documents deemed necessary by it to give effect to Customer’s obligations under this Agreement.

(g) If Chapter 4 of the PPSA applies to the enforcement of a Security Interest arising under or in connection with this Agreement, Customer agrees the following provisions of the PPSA will not apply to the enforcement of that Security Interest:

(i) section 95 (Secured party must give notice of removal of accession), to the extent that it requires Supplier to give Customer a notice;

(ii) section 96 (When a person with an interest in the whole may retain accession);

(iii) subsection 121(4) (Enforcement of security interests in liquid assets – notice to higher priority parties and grantor);

(iv) section 125 (Obligation to dispose of or retain collateral);

(v) section 130 (Notice of disposal of collateral), to the extent that it requires Supplier to give Customer a notice;

(vi) paragraph 132(3)(d) (Secured party to give statement of account – statement of account following disposal);

(vii) subsection 132(4) (Secured party to give statement of account – statement of account if no disposal);

(viii) section 142 (Entitled persons may redeem collateral); and

(ix) section 143 (Entitled persons may reinstate security agreement).

(h) Where a person is a controller in relation to the Equipment, the Parties agree that Part 4.3 of the PPSA will not apply to the enforcement of any Security Interest in the Equipment by that controller.

(i) Notices or documents required or permitted to be given to Customer for the purposes of the PPSA must be given in accordance with the PPSA.

18. Modern Slavery

The parties acknowledge that each have obligations to comply with Modern Slavery Laws, and represent and warrant to the other party that, at the date of entering into this Agreement, it:

(a) has no knowledge of any Modern Slavery Offence currently occurring within its organisation or supply chains; and

(b) will take and continue to take reasonable steps to identify the risk of, and prevent the occurrence of, Modern Slavery Offences within its organisation or supply chains.

19. General

19.1 Force Majeure

(a) Neither Party will be liable to the other for any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.

(b) If a Force Majeure Event arises:

(i) the affected Party must notify the other Party of the extent to which the affected Party is unable to perform its obligations;

(ii) the affected Party will use its reasonable endeavours to mitigate the effect of the Force Majeure Event; and

(iii) the affected Party will not be liable to the other Party for any Claim the other Party suffers or incurs as a result of that Force Majeure Event.

(c) A Force Majeure Event does not relieve a Party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner.

(d) If the Force Majeure Event continues for a period of more than thirty (30) days, either Party may terminate this Agreement by written notice to the other Party.

19.2 Notices

Any notice given in connection with this Agreement must be in legible writing and must be addressed to a Party and either hand delivered to, or sent by post to the relevant address or emailed to the relevant email address, as set out in Item 2 of the Agreement Details. A notice is taken to have been given:

(a) in the case of being hand delivered, on the date on which it is delivered;

(b) in the case of being sent by post, on the fifth (ninth if sent to an address in another country) day after the date of posting; or

(c) in the case of delivery by email, at the time sent, unless the sender is notified, by a system or person involved in the delivery of the email, that the email was not successfully sent.

19.3 Governing Law

This Agreement is governed by the law of Victoria. Each Party submits to the non-exclusive jurisdiction of the courts of Victoria and its appellate courts.

19.4 Counterparts

This Agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute the same Agreement.

19.5 Waiver

A provision of this Agreement or a right created under it, may not be waived or varied except in writing, signed by the Party or Parties to be bound.

19.6 Costs

Each Party musty bear its own costs arising out of the negotiation, preparation and execution of this Agreement.

19.7 Severability

If any part or provision of this Agreement is judged invalid or unenforceable in a jurisdiction, it is severed for that jurisdiction, and the remainder of this Agreement will continue to operate in full force.

19.8 Assignment and Novation

Customer may not assign, novate or transfer its rights and obligations under this Agreement without the prior written consent of Supplier. Supplier may assign, transfer or novate its rights and obligations under this Agreement without the prior written consent of Customer.

19.9 Remedies

The rights of a Party under this Agreement are cumulative and not exclusive of any rights provided by Law.

19.10 Amendments

Any amendment to this Agreement has no force or effect, unless effected by a document executed by the Parties.

19.11 Survival

Clauses 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19 and 20 survive termination of this Agreement.

19.12 Entire Agreement

This Agreement constitutes the entire agreement between the Parties about its subject-matter and supersedes any previous understandings or agreements on that subject-matter.

19.13 Relationship of the Parties

Nothing in this Agreement is intended to create a partnership, joint venture, or agency relationship between the Parties, and each of the Parties agree that they are entering into this Agreement only as independent contractors.

20. Definitions and Interpretation

20.1 Definitions

In this Agreement, unless the context requires otherwise:

Agreement is defined in clause 1;

Agreement Details means the section of this Agreement entitled ‘Agreement Details’;

Business Day means a day that is not a Saturday, Sunday or public holiday in Victoria;

Change means the happening of any of the following events:

(a) the Customer wishes for Supplier to provide any additional Services or vary any Services;

(b) either party becomes aware of any other factor that gives rise to a need for a change to the Agreement, including to the scope, timing, delivery, or quantity of the Services;

(d) the number of End Users increases or decreases and/or the Customer Environment changes materially;

(e) Supplier becomes aware of a change in Law that necessitates a change to any of the Services or the provision of additional Services; or

(f) Supplier becomes aware at any time that any of its assumptions or any information provided by the Customer is not correct in any material respect;

Change Request means a written request in respect of a Change;

Claim means any claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a Party to this Agreement;

Commencement Date means the commencement date of this Agreement, as specified in Item 3 of the Agreement Details;

Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, exchanged between the Parties, before, on or after the date of this Agreement, relating to the business, products, services, customers or other affairs of the Discloser of the information but does not include information which is in or becomes part of the public domain other than through breach of this Agreement;

Corporations Act means the Corporations Act 2001 (Cth);

Customer Acceptance Form means the form Customer or its agent signs upon the delivery and/or installation of the Hardware;

Customer Data means all data and information relating to Customer, and its operations, facilitates, customers, Personnel, assets and Customer Environment (including Personal Information) in whatever form that information may exist and which:

(a) is supplied or made available by Customer to Supplier;

(b) is created or accessed by or on behalf of Supplier in the course of performing the Services; or

Customer Environment means Customer’s information technology, telecommunications, internet and other relevant infrastructure that interfaces with the Services;

Customer Equipment is defined in clause 4.1(e);

Cyber Breach means any incident in respect of the Customer Environment or Customer Data (including in respect of Personal Information held or stored by Supplier on behalf of Customer) (Data) that results in:

(a) an Eligible Data Breach;

(b) the Data having been misused, interfered with, corrupted or subject to unauthorised access, modification or disclosure;

(d) that Data or the storage device or computer system on which such information is stored being lost or misplaced; or

(e) any part of the Data becoming corrupted, not accessible, incorrectly modified or deleted as a result of loss, unauthorised disclosure or unauthorised access;

Cyber Security Services means the cyber security services to be provided by Supplier to Customer, as described in the Order;

Discloser means a discloser of Confidential Information;

Dispute is defined in clause 14.1;

Dispute Notice is defined in clause 14.1;

Eligible Data Breach has the meaning set out in the Privacy Act;

End User means an employee, contractor, business partner or customer of Customer who interacts with or uses the Customer Environment;

Equipment means any equipment, hardware or tools forming part of the Services which are provided by Supplier to Customer;

Fees means the fees payable by Customer for the Services, Hardware, Third Party Products and Services, Project Based Work, On-boarding Assistance or Off-boarding Assistance as specified in the Order;

Fixed Monthly Fees means the proportion of the Fees which are to be paid on a monthly basis and are as specified in the Order.

Force Majeure Event means an event which is beyond the reasonable control of the party affected, whether foreseeable or otherwise, and which could not have been prevented by the party affected exercising reasonable diligence and includes an act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning strike, storm, tempest, drought, war or pandemic (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection, explosion, government intervention, act of public enemy, sabotage, malicious damage, terrorism, civil unrest; contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel, confiscation, requisition, expropriation, prohibition, embargo, damage to property by or under the order of any government authority, strikes at a national level or industrial disputes at a national level, or any failure of the internet or telecommunications services, any failure of public service, absence of transport facilities, absence of raw material supplies, plant breakdown or failure of plant to perform to expected specifications;

GST has the meaning given in the GST Law;

GST Law has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and terms used which are not defined in this Agreement, but which are defined in the GST Law, have the meanings given in the GST Law;

Hardware means any hardware which Customer independently procures from Supplier;

Insolvency Event means in respect of a Party, the occurrence of one or more of the following events:

(a) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the company;

(b) a provisional liquidator, liquidator or person having a similar function under the Laws of any relevant jurisdiction is appointed in respect of the company or any action is taken to appoint such a person and the action is not stayed, dismissed or withdrawn within ten (10) Business Days;

(c) the company is deregistered under the Corporations Act or other legislation or notice of its proposed deregistration is given to it; or

(d) anything analogous to or of a similar effect to anything described above under the Laws of any relevant jurisdiction;

Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967;

Interest Rate means 2.5% per annum above the overdraft reference rate quoted by Supplier’s banker on the first day of the applicable month;

Law means any:

(a) law including Commonwealth, State, Territory, local government legislation or any regulations, by-laws, declarations, ministerial directions and other subordinate legislation;

(b) common law;

(c) government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity requirement or authorisation (including conditions in respect of any authorisation); and

(d) code of conduct, writ, order, injunction or judgment;

Maintenance Window is defined in clause 3.1(c);

Modern Slavery Laws means laws in force with respect to modern slavery, being the Modern Slavery Act 2018 (Cth), and any applicable Federal, State and Territory-based legislation (if any) in Australia, including guidance and/or related orders and/or directives issued by any regulator under modern slavery laws from time to time and any amendments, updates or replacements to any of them from time to time;

Modern Slavery Offences means any conduct which would constitute ‘modern slavery’ under the Modern Slavery Laws;

Off-boarding Assistance means the off-boarding assistance specified in the Order;

On-boarding Assistance means the on-boarding assistance specified in the Order;

Operating Manual means the documentation that provides instructions on the installation and use of Hardware;

Order means the order form document in the form of Schedule 1 that details the Services to be provided to Customer;

Party means a party to this Agreement and Parties means both of them;

Personal Information has the meaning given in the Privacy Act;

Personnel means in respect of a Party, that Party’s employees, officers, contractors and agents;

PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it;

PPSR means the Personal Properties Securities Register established pursuant to the PPSA;

Privacy Act means the Privacy Act 1988 (Cth);

Project Based Work is defined in clause 3.5;

Recipient means a recipient of Confidential Information;

Recommendations is defined in clause 6.1(b);

Related Body Corporate has the meaning it is given in the Corporations Act;

Security Interest has the same meaning given in the PPSA;

Services means the managed services to be provided by Supplier to Customer, as described in the Order;

Service Level means the service levels in respect of the Services, as set out in Schedule 2;

Site means the location for the provision of the Services, as specified in the relevant Order;

Software means any software forming part of the Services which is provided by Supplier to Customer;

Term has the meaning given in clause 2;

Third Party Licence has the meaning given in clause 4.2(a)(ii);

Third Party Material has the meaning given in clause 4.2(a);

Third Party Products and Services means any software, software-as-a service or other products or services which Supplier resells on behalf of a Third Party Supplier to Customer as set out in the Order;

Third Party Terms has the meaning given in clause 5(b); and

Third Party Supplier means the provider of Third Party Products and Services.

20.2 Interpretation

The following apply in the interpretation of this Agreement, unless the context otherwise requires:

(a) a reference to any Act, regulation, rule or similar instrument includes any consolidations, amendments or re-enactments of it, any replacements of it, and any regulation or other statutory instrument issued under it;

(b) a reference to the singular includes the plural number and vice versa;

(d) person includes a firm, corporation, body corporate, unincorporated association and a governmental authority;

(e) a reference to a party or a person includes that party’s or person’s executors, legal personal representatives, successors, liquidators, administrators, trustees in bankruptcy and similar officers and, where permitted under this agreement, their substitutes and assigns;

(f) an agreement on the part of, or in favour of, two or more persons binds or is for the benefit of them jointly and severally;

(g) includes means includes but without limitation;

(h) where a word or expression has a defined meaning, its other grammatical forms have a corresponding meaning;

(i) a reference to doing something includes an omission, statement or undertaking (whether or not in writing) and includes executing a document;

(j) a reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or an annexure to this Agreement; and

(k) a heading is for reference only. It does not affect the meaning or interpretation of this Agreement.