Confidentiality
(a) Except as expressly provided elsewhere under this Agreement, each party shall maintain in confidence the Confidential Information disclosed by the other party and apply security measures no less stringent than the measures which that party applies to protect its own like information (but in any event not less than a reasonable degree of care) to prevent unauthorised disclosure and use of the Confidential Information.
(b) The parties agree that information shall not be regarded as Confidential Information and that the recipient shall have no obligation with respect to any information which the recipient can demonstrate: (i) is already known to or in the possession of the recipient without obligations of confidentiality prior to its receipt from the disclosing party or which is publicly available at the time of disclosure; or (ii) is or becomes known to the public through no wrongful act of the recipient; or
(iii) is received from a third party who is not in breach of any obligation of confidentiality in respect thereof; or
(iv) is disclosed to a third party by the disclosing party without a restriction of confidentiality; or (v) is disclosed with the prior written permission of the Supplier; or (vi) is disclosed by the recipient in compliance with a legal requirement of a governmental agency or court of law; or (vii) is independently conceived of by the recipient without reference to the Confidential Information.
Intellectual Property Ownership and Licensing
The ownership and licensing of any Intellectual Property Rights in the Goods and Services, as the context admits, shall be regulated by the terms set out in each relevant Annex to this Agreement.
Risk Apportionment
No Liability for Consequential Loss
Notwithstanding anything to the contrary contained in this agreement or an individual contract or otherwise, neither party will be liable to the other or a third party for any indirect, special, incidental, punitive, exemplary or consequential loss or damages whether such damages are alleged as a result of tortious conduct (including negligence) or breach of contract or a liability arising under an indemnity or otherwise even if the other party has been advised of the possibility of such damages and regardless of whether any remedy herein shall have proven ineffective. Such loss or damages shall include but not be limited to cost of removal and reinstallation of the goods, claims by third parties, loss of goodwill, loss of profits, loss of use of data or software, interruption of business or other economic loss.
Limitation of Liability
(a) Subject to the provisions of clause 6.1, the maximum liability of the Supplier to the Customer in aggregate for all claims, damages, costs, losses and expenses, made against the Supplier in respect of this Agreement or an Individual Contract shall be limited to, at the discretion of the Supplier:
(i) to the supply of the Goods or Services again (as applicable); or
(ii) the cost of having the Goods or Services supplied again (as applicable).
(b) Notwithstanding any provision to the contrary in this Agreement or any Individual Contract, the liability of the Supplier shall not exceed the Price paid by the Customer to the Supplier for the Goods and/or Services in the 12 months preceding the date the cause of action arose.
(c) Subject to the limitations and exclusions of liability in this clause, if a party (‘Claimant’) makes a claim or commences proceedings against the other party (‘Recipient’) seeking indemnification against, compensation for or recovery of any liabilities, losses, damages, costs or expenses suffered or incurred by the Claimant in connection with this Agreement or an Individual Contract, the Recipient’s liability for that claim or those proceedings will be reduced proportionately to the extent that any act or omission of the Claimant or any of its officers, agents, employees or contractors causes or contributed to those liabilities, losses, damages, cost or expenses.
Termination
(a) Either party may terminate this Agreement or each Individual Contract immediately where the other party:
(i) commits a material breach of this Agreement or an Individual Contract which is not capable of being remedied;
(ii) fails to remedy a material breach of this Agreement or an Individual Contract which is capable of remedy within 60 days of receipt of a written notice specifying such breach; or
(iii) commits an act of insolvency, comes under any form of insolvency administration or assigns its rights otherwise than in accordance with this Agreement.
(b) On termination of this Agreement or an Individual Contract:
(i) the accrued rights and remedies of each Party remain unaffected;
(ii) the Supplier will deliver a Tax Invoice to the Customer in respect of any delivered Goods and/or Services that the Supplier has not invoiced the Customer at the date of termination of the relevant Individual Contract;
(iii) each party shall at the other party’s option, either destroy or return to the other party any of its Confidential Information, including any copies thereof in its possession or control; and
(iv) in respect of a termination effected by the Supplier pursuant to clause 8(a), any licenses in respect of any Developed Software granted under an Individual Contract to the Customer shall cease and the Customer shall, at the Supplier’s option, either destroy or return to the Supplier any copies of such Developed Software in the Customer’s possession or control.
Personal Property Securities Act 2009 (“PPSA”)
For the purposes of the PPSA:
(a) Purchase money security interest
The Hirer acknowledges that the Supplier holds a purchase money security interest in the Equipment supplied by the Supplier as security for the price payable by the Customer to the Supplier at any time for the Goods.
(b) Customer to do all things necessary for “perfection”
If requested by the Supplier, the Customer shall promptly and without undue delay execute any documents (including any new contracts or mortgages over real estate), provide all information required in order to complete a Financing Statement (as defined under the PPSA) and comply with any other reasonable requests by the Supplier to ensure that the Supplier’s purchase money security interest(s) and general security interest are perfected. The Customer shall immediately notify the Supplier in writing of any change in the Customer’s name and shall also provide all information required in order to complete a financing change statement.
(c) Customer waives right to receive verification statement
The Customer waives its right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement in relation to the Supplier’s security interests.
(d) Customer to pay all filing fees for financing statement
The Customer shall be responsible for all costs, expenses and other charges incurred, expended or payable by the Supplier in relation to the filing of a financing statement or a financing change statement.
(e) Opt-out of enforcement provisions
The Customer waives its rights under sections 95 (notice of removal of accession) , 118 (enforcing security interests in accordance with land law decisions), 121(4) (enforcement of liquid assets), 125 (obligation to dispose of or retain collateral), 128 (secured party may dispose of collateral), 129 (disposal by purchase), 130 (notice of disposal), 132(3)(d) (contents of statement of account after disposal), 132(4) (statement of account if no disposal), 135 (notice of retention), 142 (redemption of collateral) and 143 (reinstatement of security interest) of the PPSA and the parties agree that those provisions do not apply to this Agreement or any supply of the Goods pursuant to this Agreement.
(f) Re-lease of Collateral
If the Supplier repossesses the Goods, for the purpose of the PPSA it shall be permitted to re-hire the Goods in any manner and on terms that it sees fit.
(g) Confidentiality
Each party agrees that it will not disclose information of the kind referred to section 275(1) of the PPSA and that this clause constitutes a confidentiality agreement for the purposes of section 275 of the PPSA and other provisions of the PPSA. The Customer agrees to waive any right it may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of information of the kind referred to section 275(1) of the PPSA.
General
Subcontracting
Unless set out to the contrary in a Commercial Engagement Document, the Supplier may sub-contract the performance of an Individual Contract or any part of an Individual Contract.
Force Majeure
The Supplier is excused from performing its obligations to the extent it is prevented by circumstances beyond its reasonable control (other than lack of funds for any reason), including but not limited to acts of God, natural disasters, acts of war, riots and strikes.
Notices
A notice, consent, approval, request or demand in connection with this Agreement:
(a) must be in writing and in English;
(b) must be signed by the party giving it or that party’s authorised representative, officer, attorney, or solicitor;
(c) must be either:
(i) sent by facsimile to the facsimile number of the address specified by the parties, or if the addressee notifies another facsimile number for receipt of documents under this clause, then to that address; and
(ii) left at or posted by prepaid post (airmail, if posted outside Australia) to the address of the addressee specified by the parties, or if the addressee notifies another address for receipt of documents under this clause, then at or to that address;
(iii) sent by electronic mail to an authorised representative;
(d) is taken to be received:
(i) if hand delivered, on delivery;
(ii) if posted in Australia, on the third Business Day after posting;
(iii) if posted outside Australia, on the seventh Business Day after posting; and
(iv) if sent by facsimile, when the sender’s fax machine produces a report that the facsimile was sent in full to the addressee;
(v) if sent by electronic mail, on the next Business Day after sending the electronic mail, provided that no undeliverable notice or out of office notification was received by the sender.
(e) unless a later date is specified in it, takes effect on the date it is taken to be received.
Assignment
The Supplier may at any time transfer, assign or novate any or all of its rights, obligations, benefit or interest under this Agreement or an Individual Contract.
Severability
If any of the provisions of this Agreement or an Individual Contract are unenforceable, void, voidable or illegal, then such shall be severed and the other provisions of this Agreement or Individual Contract (as applicable) remain in full force and effect.
Variations
This Agreement may be varied from time to time providing that both parties agree to the variations in writing. Any such variations must take into account any variations in costs and delivery timeframes that may result.
Waiver
Failure or delay by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. No amendment or waiver of any provision of this Agreement shall take place unless so agreed in writing by the Supplier.
Entire Agreement
This Agreement, including all Annexes, constitutes the entire agreement between the parties with respect to the subject matter hereof.
Governing Law and Jurisdiction
Unless set out the contrary in a Commercial Engagement Document, this Agreement shall be governed by and construed with reference to the laws of the State of Queensland and each party submits to the non-exclusive jurisdiction of the courts of Queensland.
Confirmation of Acceptance
The Customer confirms its acceptance of the following Annexes contained in this Agreement:
(a) Hardware Hire Annex;
(b) SaaS Annex;
(c) Data Annex; and
(d) Sale of Goods Annex.
HARDWARE HIRE ANNEX
Hire
The Supplier agrees to hire the Goods to the Customer in accordance with each Individual Contract.
Hire Period
(a) The hire period is for the period stated in the Commercial Engagement Document (“Hire Period”).
(b) Renewal or extension of the Hire Period for one or more definite periods will require a new Individual Contract to be entered into by the parties.
Hire Charge
(a) The Price is to be calculated on a weekly basis at the hire rate set out in the Commercial Engagement Document.
(b) No adjustment is to be made for the time during which the Goods are not in use by the Customer (including if the Goods is returned to the Supplier prior to the end of the Hire Period), unless otherwise agreed by the Supplier in writing.
(c) The Price is exclusive of and the Customer must pay for any additional charges including collection and/or delivery of the Goods or which are otherwise payable by the Customer under this Annex (e.g. damage to the Goods).
Customer’s Responsibility
The Customer agrees to:
(a) store the Goods in a safe and secure environment such that it may not be tampered with, damaged or stolen by any other person;
(b) return at the end of the hire any item, article, document or thing supplied in conjunction with the Goods including operating manuals. Any such items not returned shall be charged to the Customer at full replacement cost;
(c) be responsible for any loss or damage to the Goods whether such loss is caused by the negligence of the Customer or any persons under its control during the Hire Period;
(d) not alter, mark or make any additions to, deface or erase any identifying mark, plate or number on or in the Goods or in any other manner interfere with the Goods; and
(e) accept full responsibility for, and indemnify the Supplier against all claims in respect of any injury to persons, or losses or damage to property, arising out of the delivery, servicing, storage, possession or use of the Goods by the Customer, or any persons under its control during the Hire Period.
Breakdowns
(a) If the Goods malfunction or become unsafe to use during the Hire Period the Customer must:
(i) immediately stop using the Goods and notify the Supplier;
(ii) take all steps necessary to prevent any further damage to the Goods; and
(iii) not repair or attempt to repair the Goods without the Supplier’s written consent.
(b) Except if clause 5(c) applies, upon receiving notice from the Customer under clause 5(a), the Supplier will:
(i) take reasonable steps necessary to repair the Goods or provide a suitable substitute Goods;
(ii) charge the Customer a service fee, as set out in the Commercial Engagement Document, to cover transport and associated costs for any repair or replacement of the Goods;
(iii) not impose a Hire Charge for that portion of the Hire Period for which the Goods was broken down or unsafe.
(c) If the Goods malfunction or become unsafe to use as a result of the Customer’s negligence or misuse, the Customer’s breach of this Agreement or if the Goods are lost, stolen or damaged beyond fair wear and tear during the hire, the Customer will be liable for:
(i) any costs incurred by the Supplier to recover and repair or replace the Goods; and
(ii) the Hire Charge for that portion of the Hire Period during which the Goods are being recovered and repaired or replaced.
Retention of Title and Ownership
(a) The Goods shall remain the property of the Supplier at all times. The Customer is not entitled to sell, transfer, mortgage, charge or encumber the Goods in any way without the Supplier’s prior written permission, part with possession of the Goods.
(b) The Supplier reserves the right to inspect the Goods at any time, and to terminate an Individual Contract if the Supplier reasonably believes that the Goods are not being used and maintained in accordance with the terms of the Individual Contract.
Indemnity
The Customer will indemnify and hold harmless the Supplier from and against all actions, suits, claims, demands and proceedings made, from losses, liabilities, damages and costs claimed or alleged and from charges and expenses incurred by the Supplier arising out of or in connection with the Customer’s breach of the Individual Contract including loss or damage to the Goods.
Termination of Hire
Upon termination of an Individual Contract or at the end of the Hire Period:
(a) the Customer must immediately return the Goods to the Supplier; and
(b) if the Customer fails to comply with its obligations under clause 8(a), the Supplier may without notice to the Customer enter any premises occupied by the Customer or any other place where the Goods may be and recover possession of them.
SOFTWARE AS A SERVICE (“SAAS”) ANNEX
1.1 Right to use
(a) The Customer has the non-exclusive, non- assignable, royalty free, worldwide limited right to use the SaaS solely for the Customer’s internal business operations and subject to the terms of each Individual Contract.
(b) Upon the end of the Individual Contract the Customer’s right to access or use the SaaS shall terminate.
1.2 No guarantee
The Supplier:
(a) does not guarantee the uptime of the SaaS; and
(b) will not be liable for any damages caused by the Customer’s inability to access the SaaS as a result of network or server downtime, transmission problems or otherwise.
1.3 Maintenance
(a) The Supplier may perform scheduled maintenance on the SaaS from time to time.
(b) In addition, the Supplier may in its sole discretion need to perform emergency or unscheduled maintenance. These maintenance activities may cause interruptions to access to the SaaS.
(c) The Supplier will use reasonable efforts to inform the Customer in advance of any such maintenance.
2.1 Safeguards
The Supplier will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer’s Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Customer’s Data by the Supplier personnel except:
(a) to provide the SaaS and prevent or address service or technical problems;
(b) as compelled by law; or
(c) as the Customer expressly permits in writing.
2.2 Disclaimer
The Supplier adheres to its best practice policies and procedures to prevent data loss, including a data back-up
regime, but does not make any guarantees that there will be no loss of the Customer’s Data. The Supplier expressly excludes liability for any loss or corruption of the Customer’s Data except to the extent caused by the Supplier.
3.1 Networks Needed to Use the SaaS
Except to the extent the Supplier has agreed to rent Goods or supply a Data Service to the Customer, the Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the SaaS, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.
3.2 The Customer’s Responsibility for Customer Users
(a) The Customer is:
(i) responsible for each of the Customer Users’ compliance with each Individual Contract;
(ii) responsible for identifying and authenticating all Customer Users, for approving access by such Users to the SaaS, for controlling against unauthorised access by Users, and for maintaining the confidentiality of usernames, passwords and account information; and
(iii) responsible for all activities that occur under the Customer’s and the Customer Users’ usernames, passwords or accounts or as a result of the Customers or the Customer Users’ access to the SaaS, and agrees to notify the Supplier immediately of any unauthorised use.
(b) The Supplier is not responsible for any harm caused by Customer Users, including individuals who were not authorised to have access to the SaaS but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in the Customer’s local identity management infrastructure or the Customer’s local computers.
3.3 Service Access Conditions
The Customer will not:
(a) attempt to undermine the security or integrity of the Supplier’s computing systems or networks or, where the SaaS are hosted by a third party, that third party’s computing systems and networks;
(b) use, or misuse, the SaaS in any way which may impair the functionality of the SaaS, or other systems used to deliver the SaaS or impair the ability of any other user to use the SaaS;
(c) attempt to gain unauthorised access to any materials other than those to which the Customer have been given express permission to access or to the computer system on which the SaaS are hosted; and
(d) transmit, or input into the SaaS, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or the Customer’s Data in violation of any law.
4.1 Ownership of the Customer’s Data
(a) The Customer retains all ownership and intellectual property rights in and to the Customer’s Data.
(b) The Customer grants the Supplier a licence to use, copy, transmit, store, and back-up the Customer’s Data for the purposes of enabling the Customer to access and use the SaaS and for any other purpose related to provision of services to the Customer.
(c) If the Customer enables third-party applications for use in conjunction with the SaaS, the Customer acknowledges that:
(i) the Supplier may allow the providers of those third-party applications to access the Customer’s Data as required for the interoperation of such third-party applications with the SaaS. the Supplier shall not be responsible for any disclosure, modification or deletion of the Customer’s Data resulting from any such access by third-party application providers; and
(ii) the Customer’s right to use such third party applications is governed by the terms of the third party applications license agreement and not under this Agreement.
4.2 Derived Data
The Supplier has the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the SaaS and related systems and technologies (including, without limitation, information concerning the Customer’s Data and data derived therefrom), and the Supplier will be free, at any time, to:
(a) use such information and data to improve and enhance the SaaS and for other development, diagnostic and corrective purposes in connection with the SaaS and other the Supplier offerings; and
(b) disclose, use, exploit and/or commercialise such data solely in aggregate or other de-identified form in connection with its business.
4.3 Intellectual Property Rights in the SaaS
(a) The Supplier retains all ownership and Intellectual Property Rights to the SaaS and to anything developed and delivered under an Individual Contract, including improvement to the SaaS.
(b) The Customer must not:
(i) make the programs or materials resulting from the SaaS available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the SaaS);
(ii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the SaaS; or
(iii) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the SaaS available to any third party other than as expressly permitted under the terms of this Agreement.
4.4 Mutual Indemnity – Intellectual Property Right Infringements
(a) If use by the Supplier of Intellectual Property Rights received from the Customer or the Customer’s agents results in the Supplier being subject to a claim for infringement of any Intellectual Property Right of a third party the Customer agree to indemnify the Supplier against any claims, demands, damages, costs and expenses made against or suffered by the Supplier as a result of any such claim or action.
(b) If use by the Customer of the SaaS, results in the Customer being subject to a claim for infringement of any Intellectual Property Right of a third party the Supplier agrees to indemnify the Customer against any claims, demands, damages, costs and expenses made against or suffered by the Customer as a result of any such claim or action.
5.1 Warranties
Except as otherwise set out in this Agreement, the Supplier:
(a) provides the SaaS to you on an “as is” basis; and
(b) does not warrant that the SaaS will be error-free or will operate without interruption or will perform in the manner intended by the Customer or will meet the Customer’s requirements.
5.2 Exclusion of Implied Warranties
To the extent permitted by law, all implied conditions or warranties are excluded, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
6.1 The Supplier reserves the right to suspend the SaaS without liability to the Customer:
(a) upon seven days’ notice, in the event of non-payment of any of the Supplier’s invoices;
(b) immediately in the event of insolvency of the Customer, or appointment of any receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer; and
(c) immediately, in the event of an emergency.
DATA ANNEX
(a) Supplier shall supply the Data Services to the Customer in accordance with the Data Plan selected by the Customer in the Commercial Engagement Document and as agreed by the parties from time to time.
(b) The Data Services will only be supplied in respect of devices and Hardware specified by the Customer.
(a) The data consumption per device is calculated by summing the device’s data transmitted and received.
(b) The data consumption is calculated in 1 kilobyte increments per session. Sessions that make up part of 1 kilobyte will be rounded up to the next full 1 kilobyte increment. The minimum billable message size is 15 bytes.
(c) The data consumption is rounded up to nearest 10 bytes on a per device basis.
(a) Each device is charged a monthly subscription fee for the Data Plan.
(b) Monthly subscription fees for the Data Plan are payable in advance.
(c) Prices quoted are in AUD but are subject to exchange rate variations whereby fluctuations may occur against the USD.
(a) Data overage occurs when the data consumption exceeds the data included in the Data Plan.
(b) A data overage fee set out in the Commercial Engagement Document is applied on a per byte basis and is invoiced monthly at the rate applicable to the Data Plan.
All unused data expires with a Data Plan and will not be rolled over into following periods.
(a) The Data Plan for each device will be renewed automatically to the same data plan after 28 days.
(b) If the Customer wishes to terminate the Data Services or a particular Data Plan, it must do so by giving written notice to the Supplier no less than [xxx] days before the end of current billing period.
If the Customer has used up the allowed data quantity of its Data Plan prior to the end of the current period, the Customer may upgrade its Data Plan.
(a) Should the Customer wish to downgrade to a smaller size Data Plan it may do so at any time.
(b) If the Customer downgrades its Data Plan before the Customer has used up the allowed data quantity, the remaining data quantity of the current Data Plan will not be rolled over into the new Data Plan.
SALE OF GOODS ANNEX
1.1 “Delivery Date” means Supplier’s estimated or indicative delivery date of the Goods as specified in a Commercial Engagement Document.
2.1 Supplier agrees to procure for and supply to the Customer the Goods in accordance with the terms of each Individual Contract.
3.1 Estimated Delivery Dates are based on information available to Supplier from suppliers and are subject to change at any time, without prior notice. Supplier is not responsible for delays in delivery caused by a supplier or for other reasons beyond the reasonable control of Supplier. The Customer acknowledges that Supplier is not responsible for an inability to supply certain products as a result of changes related to the supply of certain third party products by the manufacturer.
4.1 Risk of loss or damage to Goods will pass to the Customer when the Goods are delivered to the Customer or to the Customer’s authorised representative.
4.2 Notwithstanding the passing of risk:
(a) All Goods delivered by Supplier to the Customer remain the property of Supplier until all monies owing to Supplier have been paid in full.
(b) Prior to any sale by the Customer, the Customer shall hold the Goods as bailee for Supplier and shall return the Goods to Supplier on demand.
(c) Until payment has been received in full, Supplier will be entitled to enter the premises of the Customer (or any receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer) at any reasonable time to inspect all records in relation to all Goods supplied by Supplier and all records in respect of the sale of those Goods by the Customer.
(d) Supplier will be entitled to enter the premises of the Customer (or any receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer) at any reasonable time to recover possession of those Goods for which payment in full has not been made.
(e) The Customer must insure the Goods against loss or damage of any kind for their full value until full payment of the purchase price has been made.
5.1 The Customer warrants that all information pertaining to its site and specifications is complete, accurate and has been provided to Supplier prior to formal agreement on an Individual Contract to enable the successful supply of the relevant Goods and Services to the Customer.
5.2 The Customer is solely responsible for the accuracy of the terms of any purchase order, the evaluation of its own requirements, the selection of the Goods necessary to satisfy those requirements and the results obtained from the use of such Goods.
6.1 The Customer’s use, rights and obligations in respect of Software is governed by its applicable EULA, unless it is varied by agreement between the parties to that EULA.
6.2 The Customer agrees to execute and be bound by the terms of the Software owner’s EULA.
7.1 To the extent permitted by law, and except as set out in these Annexes or otherwise specifically agreed in an Individual Contract, Supplier:
(a) provides the Goods to the Customer on an “AS IS” basis; and
(b) excludes all warranties and conditions, express, implied or statutory (including all implied warranties of merchantability, fitness for a particular purpose, lack of viruses, uninterrupted or error free operation, accuracy or completeness of responses or results, lack of workmanlike effort or non-infringement) regarding the Goods provided to the Customer.
7.2 Supplier accepts no liability whatsoever for any resultant loss or damage arising directly or indirectly from any connectivity or integration with any existing Customer process, product, materials, environment or System that is not adequately accounted for in a Commercial Engagement Document, or inaccurate or incomplete Customer information.
DEFINITIONS
In these terms and conditions, unless the context otherwise indicates, each of the following expressions shall have the meaning as assigned to it below:
Annex means each annex to this Agreement, and any additional annexes inserted by
agreement of the parties. For information purposes only, it is the intention that
each annex will set out the specific terms applicable to the supply of the type
and nature of Goods and Services as are described in such annex
Business Day means a day that is not a Saturday, Sunday or any other day that is a gazetted
public holiday or a bank holiday in the place where an act is to be performed or
a payment is to be made, as the context admits.
Confidential Information means:
(a) any trade secrets embodied in any information relating to, but not limited
to, the commercial activities, product pricing, technologies, business
processes, client relationships, strategic information, Price, and any other
information related to the conduct of each parties businesses;
(b) any information designated in writing by either party, by appropriate
legend, as confidential;
(c) any information which is identified as confidential at the time of disclosure;
and
(d) the terms and conditions of this Agreement and each Individual Contract.
Commercial Engagement Document means a written document agreed to by the parties that sets out the specific
details pertaining to the supply of certain Hardware, Third Party Maintenance
Contracts, Software and Services, in particular, quantities, price, product
descriptions, due dates, acceptance testing requirements, IPR matters, project
scope documents and any associated functional specifications. For information
purposes only, it is expected that a Commercial Engagement Document may
take the form of an accepted the Supplier quotation or sales proposal,
Customer purchase order expressly accepted by the Supplier, the Supplier
tender response accepted by Customer or an agreed statement of work or
scope of services setting out the nature, scope and parameters of work to be
performed.
Customer means:
(a) with respect to each Individual Contract formed pursuant to this
Agreement, the specific Customer Group Company that enters into such
Individual Contract; and
(b) where used in this Agreement, the company referred to on the header
page of this Agreement.
Customer Data means to the data, content and information inputted into the SaaS by the
Customer or devices owned or rented by the Customer.
Customer Group means each Customer and each Related Body Corporate of the Customer, as
the context admits.
Customer Company means those individuals authorised by you or on your behalf to use the SaaS.
Data Plan means the Data Services Plan selected by the Customer in the Commercial
Engagement Document.
Data Services means the telecommunications and satellite data services as described in the Commercial Engagement Document and otherwise provided on the terms set out in the Data Service Annex.
Developed Software means Software created by or on behalf of the Supplier for the Customer
pursuant to this Agreement, as further particularised in the Commercial
Engagement Document.
GST is defined in the A New Tax System (Goods and Services Tax) Act 1999.
Goods means either Hardware or Software procured, rented or supplied pursuant to
this Agreement as the context admits.
Hardware means any physical product manufactured by the Supplier or a third party,
including any associated third party maintenance service contracts, as
specified in a Commercial Engagement Document and includes each
individual item, unit or component of such product.
Incidental costs means delivery costs, Tax, installation, support or maintenance of Goods (after
the expiry of any applicable manufacturer’s or licensor’s warranty period), any
preparation of the site, or any audit of or work on the Customer’s physical
environments, any overtime rates, any miscellaneous costs or expenses
including associated travel or accommodation
Individual Contract means a separate and distinct legally binding contract formed between the
Parties in accordance with the provisions of clause 2(a).
Intellectual Property Rights or IPR includes copyright, trade mark, design, patent, semiconductor or circuit layout
rights, trade, business or company names, any right to have confidential information kept confidential or other proprietary rights or any rights to registration of those rights whether created before or after the date of this
Agreement or the relevant Individual Contract as the context admits and whether existing in Australia or otherwise.
Price in relation to Goods and Services means the price payable for those Goods
and Services as detailed in a Commercial Engagement Document.
Related Body Corporate has the meaning given to that term as in the Corporations Act 2001.
SaaS means the “software as a service”, as described in the Commercial
Engagement Document and otherwise provided on the terms set out in Service
and Software as a Service Annex.
Services means the services supplied by the Supplier to the Customer pursuant to an
Individual Contract, including SaaS and Data Services.
Software means any licensed, packaged, developed or supported software, such as
Third Party Software or Developed Software as the context admits, as
specified in a Commercial Engagement Document, ownership of which does
not pass to the Customer unless agreed. For the purposes of this Agreement,
Software expressly excludes SaaS.
Tax Invoice has the meaning as defined in the A New Tax System (Goods and Services
Tax) Act 1999.
Tax includes any tax, GST, withholding tax, charge, rate, duty or impost imposed
by any authority, but does not include any income or capital gains tax.
Third Party Software means a contract for the supply of maintenance services, typically over hardware of software, that is procured by the Supplier on behalf of the Customer, the terms of which form a contract directly between the Customer and the relevant maintenance service provider
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