Professional Services Terms and Conditions
A. The Service Provider provides as part of its service offerings to customers various professional services including consulting, software and content development, installation, implementation, support, and training.
B. The Client desires that the Service Provider provide the Client certain professional services on the terms and conditions set out herein.
1.1. The Service Provider agrees to provide to the Client certain professional services (hereinafter referred to as the
“Services”) as specified in a Statement Of Work schedule (hereinafter referred to as an “SOW”) or a Request For
Service schedule (hereinafter referred to as an “RFS”) attached and incorporated into this Agreement and governed
by the terms and conditions set out in this Agreement.
2. Software Rights
2.1. The Client warrants that where Services (including development of customisations or interfaces or configurations or other enhancements or modifications) provided by the Service Provider involve software in use by the Client, the Client is legally entitled to use the software and permit third parties, as applicable, to access, use and develop, modify or enhance that software. The Client shall indemnify and hold the Service Provider, its officers, directors, employees, contractors and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs, and expenses (including legal fees) resulting from or arising out of any breach of this warranty, and the Client shall defend and settle, at its expense, all suits or proceedings arising therefrom.
3. SOW & RFS Schedules
3.1. A SOW or RFS schedule will come into force upon execution by both parties and will continue until either: (1) this Agreement is terminated in accordance with clause 20; or (2) the work specified in the applicable SOW or RFS schedule is delivered by the Service Provider, accepted by the Client (as set out in clause 10) and paid for by the Client (as set out in clause 7).
3.2. Each SOW or RFS schedule detailing the Services to be performed will include but not be limited to, a description and scope of the work to be undertaken, Fees, a payment schedule and the Deliverables to be furnished by the Service Provider.
4. Engagement & Scope of Services
4.1. The Client engages the Service Provider and the Service Provider agrees to provide to the Client the Services as defined in each SOW or RFS schedule in consideration of the payment by the Client of the Fees per clause 6, and upon being executed by both parties each SOW or RFS schedule is hereby incorporated by reference as part of this Agreement.
4.2. The Client must pay the Fees for Services provided under this Agreement in accordance with the terms set out in a SOW or RFS schedule.
5.1. This Agreement will come into force upon execution by both parties and will continue until terminated in accordance with clause 20 or otherwise by agreement between the parties.
6.1. Fees and expenses are payable in Australian Dollars (AU$) and as specified in the relevant SOW or RFS schedule.
6.2. Where additional Services are provided to the Client, to those set out in the SOW or RFS schedule at its date of execution,
(a) subject to an agreed change through the application of clause 9 (if applicable), or
(b) Upon request by the Client for one-off delivery or other short-term engagements,
or where additional charges are applicable,
(c) in relation to delays through the application of clause 16.1(e)
then the Service Provider’s current time and material rates for those Services will be used for calculating the Fees for such additional Services. Service Providers time and material rates at date of execution is set out in Appendix 2.
7.1. Unless otherwise stated, all Fees and any other charges payable under this Agreement shall be payable within fourteen (14) days from the date of successful email of the Tax invoice.
7.2. If the Client genuinely disputes the whole or any portion of the amount claimed in a Tax invoice submitted by the Service Provider, the Client shall pay the portion of the amount stated in the Tax invoice which is not in dispute and shall notify the Service Provider in writing, within 14 days after receipt of the relevant Tax invoice, of a Dispute for resolution in accordance with clause 15.1 and include the reasons for the disputed portion of the Tax invoice.
8.1. The Client shall reimburse the Service Provider for all actual expenses incurred by the Service Provider in the delivery of any Services based on an initial estimate (where applicable) set out in the SOW or RFS schedule.
9. Change Control
9.1. It is acknowledged by both parties that during the delivery of Services as documented in an SOW or RFS, changes may be identified which may vary any of the agreed scope of work, Deliverables, project plan, Fees and other charges, and resources. Such variations to a SOW or RFS schedule are to be mutually agreed and documented in a Services Change Control Schedule (hereinafter referred to as an “SCC”). Upon agreement and signing by both parties of an SCC, the delivery of Services with respect to such variations will be in accordance with the terms and conditions of this Agreement.
10. Acceptance of Deliverables
10.1. All Deliverables will be deemed to have been accepted by the Client after the expiry of ten (10) Business Days following their delivery and installation if applicable, unless the Client has provided the Service Provider with a detailed written description of the grounds of non-acceptance concerning the Deliverable. If the Client and the Service Provider mutually agree such grounds fall within the scope of the agreed requirements or specifications or testing for that Deliverable set out or referred to in the SOW or RFS schedule, the Service Provider shall, within a reasonable time, provide the Client with the revised Deliverable.
11.1. It is agreed that during the term of this Agreement a party will not employ or contract or solicit for the purposes of either employment or a contract for services, either directly or indirectly, any employee or contractor of the other party that in relation to a SOW or RFS schedule is currently working or providing services or has worked or provided services for the other party within 18 months of this agreement being signed.
12. Work Environment & Access
12.1. Where work is undertaken by the Service Provider personnel and/or its contractors on the Client’s premises, the Client is responsible for ensuring a safe and secure working environment that complies with Safety Legislation current at the time.
12.2. The Client will also ensure that reasonable access is provided to its premises during normal Business Hours, and similarly in the event of work being required outside of normal Business Hours.
12.3. The Client will provide the Service Provider personnel and/or its contractors with reasonable working space including desks, chairs, and access to telephone facilities.
12.4. The Client will ensure onsite and remote access to its staff and computer facilities is provided for the Service Provider to complete the work as defined in the SOW or RFS schedule.
12.5. The Service Provider will make all reasonable endeavours to provide Services within normal Business Hours and comply with dress regulations and applicable work standards, in the manner the Client has in place for its own staff.
13.1. A party agrees that any Confidential Information it receives from the other party is the exclusive and proprietary property of the disclosing party and may include trade secrets and other highly confidential information.
13.2. A party agrees to receive and hold any Confidential Information in confidence and further agrees:
(a) To protect the Confidential Information against unauthorised use, publication or disclosure;
(b) Not to use any Confidential Information except as specifically authorised by the party that has disclosed its Confidential Information;
(c) to restrict access to Confidential Information to those of its officers, directors and employees who have a need to know, have been advised of the confidential nature of the Confidential Information, and who are under obligations of confidentiality; and
(d) To follow the other party’s reasonable on-site security procedures.
13.3. The above confidentiality provisions will not apply to Confidential Information that:
(a) Is in the public domain at the time of its disclosure; or
(b) Is disclosed with the prior written consent of the disclosing party; or
(c) becomes known to the receiving party from a source other than the disclosing party, provided such source is legally entitled to have and disclose the information; or
(d) Is disclosed by a court or regulatory authority or because of mandatory laws, rules or regulations.
13.4. Upon the:
(a) termination of the Agreement: or
(b) Completion and acceptance of Deliverables under a SOW or RFS schedule and the payment by the Client of Fees per clause 6 -
each party will promptly return Confidential Information of the other party in its disclosed media form or, as directed by the disclosing party, certify that it has destroyed the applicable media.
14. Exclusion of Set-Off
14.1 The Client acknowledges that Service Provider may now or in the future owe the Client money or some other obligation or liability under this Agreement or under any other agreement between it and Service Provider. Nonetheless, the Client will pay all amounts payable by it to Service Provider pursuant to this Agreement in full on the due date for payment and will not withhold payment or seek a reduction of those amounts by raising any defence on any grounds whatsoever including by way of set-off, cross-claim, abatement or counter-claim.
14.2 The Client further acknowledges that this Agreement is divisible. Each invoice raised for work performed or goods delivered during any period will be payable in full, in accordance with the terms of payment applicable to that invoice, without reference to and despite any defect or default in the work performed or to be performed or in the goods delivered or to be delivered in any other period.
15.1. Dispute Resolution - The parties agree that they will cooperate at all times in good faith. In the event of any dispute as to the performance by the Service Provider or the Client with respect to a SOW or RFS schedule or any other obligation or right under this Agreement (in each case a “Dispute“), which cannot be readily resolved, the parties will escalate the matter to their senior management who will meet in person or by telephone within 7 Business Days or such shorter or longer period as may be necessary and appropriate in regard to the dispute to attempt to resolve the Dispute. Under this clause 15.1 a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the provisions of this clause except where to seek urgent interlocutory relief.
15.2. Suspension of Services – In the event that the Client commits a material breach of this Agreement, including non-payment of Fees, and such breach is not resolved within thirty (30) calendar days of written notice from the Service provider to cure such breach, without limitation to its remedies arising from the material breach, the Service Provider reserves the right to withhold its provision of Services until the material breach has been resolved.
15.3. Assignment – A party may not assign or delegate any rights or responsibilities under this Agreement or any SOW or RFS schedule without the other party’s prior written consent except that a party may, by notice in writing to the other, transfer or assign any of its rights and obligations under all or any part of this Agreement to a solvent Related Body Corporate.
15.4. Complete agreement – This Agreement shall incorporate all SOW, RFS and SCC schedules executed between the Client and the Service Provider, and constitute the entire understanding of the parties with respect to the Services and the other terms and conditions of this Agreement.
15.5. Variation – This Agreement or an SOW, RFS or SCC schedule shall not be modified except in writing and signed by an authorised representative from each party.
15.6. Severability – If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain in full force apart from such provision, which shall be deemed deleted.
15.7. Survival – The provisions of this Agreement which are capable of having effect after its expiration or termination shall remain in full force and effect following such expiration or termination.
15.8. Publicity – Unless required by the mandatory rules of a recognized stock exchange or as required by law or regulation, neither party will make any public announcement or issue any press release relating to the obligations under this Agreement without the other party’s written consent.
15.9. Governing Law – This Agreement shall be deemed to have been entered into in New South Wales and shall be construed according to the law of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts in that state and any courts competent to hear appeals from those courts.
15.10. Counterparts – This Agreement may be executed in duplicate counterparts. Each such counterpart shall be an original and both together shall constitute one and the same document.
16. Client Acknowledgments
16.1. The Client acknowledges and agrees that:
(a) project completion date is achieved when certificate of acceptance is achieved, or as otherwise agreed by the parties. Client will not unreasonably withhold acceptance of the project.
(b) if Client requires that the certificate of acceptance date occurs before a certain date, then that date will be specified in the SoW or RFS attached. If Service Provider fails to achieve certificate of acceptance in accordance with the SOW by three months later than the date specified in the SoW or RFS, then the Service Provider shall be in breach of the Contract under clause 19 of the Contract.
(c) the Service Provider will not become involved in, nor be responsible for, any dispute, issue or discussion with any of the Client’s employees or contractors that arises while the Service Provider personnel are present at the Client’s premises providing Services unless such dispute, issue or discussion arises as a consequence of the delivery of Services or falls within the scope of matters addressed under clause 15.1. the Service Provider may recommend changes to the Services under a SOW or RFS schedule, subsequent to its execution, or any related adjustments to the Fees from time to time, such recommended changes including, but not limited to the replacement or upgrade of faulty or obsolete hardware, software, engineering services or other items as the Service Provider considers necessary for it to provide the Services. If the Client elects not to agree to the changes recommended by the Service Provider under this clause 16.1©, then the Service Provider reserves the right to terminate this Agreement or the SOW or RFS by notice in writing, if, in its reasonable opinion, the failure to agree to the changes will either
(i) materially impede the Service Provider’s ability to continue to provide the Services; or
(ii) result in excessive costs (beyond that assessed by the Service Provider as at the date of execution of the SOW or RFS schedule or the date that a prior change pursuant to clause 16.1(c) took effect, whichever applicable) to the Service Provider in continuing to provide the Service.
(e) In the event that the Client is at fault for delay in discharging a Client responsibility which discharge is a dependency for the Service Provider to continue to perform its obligations under an SOW, RFS or SCC schedule then the Service Provider may do any of the following:
(i) reallocate or reorganise the deployment of its personnel to another of its customer’s projects provided it remains able to provide substitute personnel as needed to perform its obligations under the SOW, RFS or SCC schedule; or
(ii) where the Service Provider is not able to reallocate or reorganise the deployment of its personnel to another of its customer’s projects as contemplated under 15.1 (d)(i), charge the Client based on the applicable agreed personnel rate from the date the personnel is available to provide the Services until to the date the personnel is required to resume the provision of Services after the delay is remedied; or
(iii) in the event the delay exceeds 30 days or greater and causes the scheduled project milestone payment date under a SOW, RFS or SCC schedule to be delayed, without prejudice its other rights under this Agreement, invoice the Client the time incurred at the agreed rate for providing Services up to the date the delay commenced; or
(iv) Charge the Client fees based on the Service Provider’s current time and materials rates for additional attendance time directly incurred by the Service Provider in response to the delay.
16.2. In addition to clause 16.1(d), for the avoidance of doubt, where the Client’s fault that causes delay in discharging a Client responsibility (which discharge is a dependency for the Service Provider to continue to perform its obligations under an SOW, RFS or SCC schedule), is caused by the failure of a third party to provide the Client with a service or product then the Service Provider shall not be responsible nor have any liability to the Client for the consequences of such failure.
17.1. The Service Provider must:
(a) Use Personal Information received from the Client only for the purposes of fulfilling its obligations under this Agreement, a SOW, RFS or SCC schedule
(b) Not otherwise use, modify or disclose Personal Information received from the Client except with the prior written consent of the Client;
(c) Restrict access to the Personal Information referred to in clause 17.1(a) to such of its employees and contractors who need to access that Personal Information to fulfil the Service Provider’s obligations under this Agreement
(d) take all reasonable measures to ensure that any Personal Information in its possession or control or to which it has access in connection with this Agreement as referred to in clause 17.1(a), is protected against loss and unauthorised access, use, modification or disclosure;
(e) Comply with all legal requirements and regulations which concern the security, use and disclosure of Personal Information referred to in clause 17.1(a);
(f) comply with any reasonable and lawful direction, policy or guidelines of the Client as prior notified in writing to the Service Provider which concern the security, use and disclosure of Personal Information referred to in clause 17.1(a) (including any such direction, policy or guideline that the Client is entitled to make under the Privacy Amendment (Private Sector) Act (Cth) 2000); and
(g) ensure that any person who is authorised to have access to any Personal Information, referred to in clause 17.1(a), is made aware of, and undertakes in writing, to observe the obligations of this clause -
provided this clause will survive the expiration or termination of this Agreement.
18. Intellectual Property Rights
18.1. Nothing in this Agreement affects the ownership of a party’s Pre-existing IPR.
18.2. From the date of its creation, the Service Provider owns and will own all existing and future rights, title and interest (including all Intellectual Property Rights) in its Pre-existing IPR. the Service Provider grants to the Client in perpetuity a non-exclusive, royalty free, licence to use only transferable with Service Provider approval that is not unreasonable withheld (in accordance with the Service Provider’s instructions for proper use) the Service Provider’s Pre-existing IPR that are incorporated into a Deliverable (which does not include use on a stand-alone basis in conjunction with a Deliverable) during and after the term of this Agreement subject to any restrictions imposed by third parties for the use of third party tools that are included in the Pre-existing IPR.
18.3. The Client owns all Client Data (including any adaptations) relating to its business, employees and clients used or created in the course of the Service Provider providing the Services.
18.4. The Client agrees that Developed Materials produced or developed by the Service Provider, or under the Service Provider’s or the Client’s direction, in the course of providing the Services will remain the sole and complete property of the Service Provider, whether such property is tangible or in the nature of industrial and Intellectual Property Rights (including copyright and rights of confidential information).
18.5. For Developed Materials produced or developed by the Service Provider, or under the Service Provider’s or the Client’s direction, in the course of providing the Services, the Service Provider grants to the Client in perpetuity a non-exclusive, royalty free and non-transferable licence to use such Developed Materials as set out in an SOW, RFS or SCC schedule for the Client’s internal business purposes only and not for commercial dealing by way of license hire or otherwise with third parties.
18.6. This clause will survive the expiration or termination of this Agreement.
19. Warranties & Limitation of Liability
19.1. Limited warranty and exclusion of warranties
(a) The Service Provider warrants that the Services will be performed in a diligent, prompt and professional manner, in accordance to the specifications outlined in the SOW.
(b) In case of the breach of the warranty in clause 19.1(a), the Service Provider will promptly use all reasonable efforts to investigate and identify the cause of any such failure or non-compliance and shall promptly provide the service to remedy the failure or non-compliance to the Client’s satisfaction. The remedy referred to in this clause 19.1(b) shall be the exclusive remedy for the breach of this warranty.
(c) Other than as expressly set out herein and subject to clause 19.3, the Service Provider does not make any other express or implied representations or warranties regarding its Services including any implied warranty of merchantability or fitness for a particular purpose or the implied warranties arising from course of dealing or course of performance; an
(d) No oral advice or written information given by the Service Provider, its employees or contractors to the Client or by the Service Provider to its other clients will constitute the provision of a warranty in relation to this Agreement and the Client is not entitled to rely on any such information or advice except as expressly warranted and set out in a relevant SOW or RFS schedule.
19.2. Exclusion of certain damages
To the extent permitted by law a party will not be liable to the other party for any indirect, special, incidental or consequential damages arising out of or in connection with the Services or this Agreement and pursuant to claims, actions or proceedings, and regardless of whether such liability is based on breach of contract, tort (including negligence), strict liability, breach of warranty or otherwise even if the party is advised of the possibility of such damages, provided this exclusion of liability shall not apply to the Client ‘s indemnity obligation arising under Clause
19.3. Limitation under statutory warranties
The Service Provider excludes any condition or warranty implied into this Agreement or any SOW, RFS or SCC schedule by the Competition and Consumer Act 2010 (or equivalent State or Territory legislation) to the extent it is able to do so but to the extent it may not exclude or restrict those conditions or warranties, the Service Provider ’s maximum liability for breach of a condition or warranty implied by any such statute is limited, at the Service Provider’s exclusive option, to either supplying the Services again or the payment of the cost of having the Services supplied again.
19. 4. General limitation
Notwithstanding any other provision and to the extent permitted by law ,the maximum liability of a party, arising out of or in connection with the Services provided under an SOW, RFS or SCC schedule, and pursuant to claims, actions or proceedings in relation to that applicable SOW, RFS or SCC schedule , and whether such liability is based on breach of contract, tort (including negligence), strict liability, breach of warranty or otherwise, will be an amount equal to the aggregate of the Fees paid or payable under that applicable SOW, RFS or SCC schedule in the 12 month period prior to the cause of action arising (or if less than a 12 month period, then the total amount of fees paid in the applicable period) provided this limitation of liability shall not apply to the Client ‘s indemnity obligation arising under Clause 2.1.
20.1. Parties’ rights to terminate - This Agreement may be terminated immediately by notice in writing from a party to the other party where the other party;
(i) continues to be in breach of any obligation to be performed under this Agreement after being given at least 30 days written notice of the failure to remedy that breach; or
(ii) is the subject of an application or order for dissolution or winding up or a resolution is passed or any steps are taken to pass a resolution for its dissolution or winding up; or
(iii) has had appointed either a receiver, administrator, official manager, provisional liquidator, liquidator or a person having similar function under the Corporations Act or action is taken to appoint such a person; or
(iv) ceases or threatens to cease conducting its business in the normal manner.
20.2. The Service Provider’s right to terminate
(a) This Agreement may be terminated immediately by notice in writing by the Service Provider to the Client in the event the Client does not pay any of the Fees or other charges under this Agreement on time and in the manner required under this Agreement and such non-payment has not been rectified within 14 days after notice in writing from the Service Provider requiring the Client to do so.
(b) This Agreement may be terminated immediately by notice in writing by the Service Provider to the Client in the circumstances referred to in clause 16.1 (c).
20.3. Client’s right to terminate - the Service Provider acknowledges that the Client may terminate this Agreement immediately by notice in writing if the Service Provider breaches any obligation under this Agreement and either:
(i) the breach is a material breach that cannot be remedied; or
(ii) the breach is a material breach that can be remedied, but the Service Provider.
(a) fails to remedy the breach within 30 Days of a notice from the Client specifying the breach and requiring its remedy; or
(b) fails to obtain agreement with the Client on a plan to remedy the breach and implement it within the said 30 Days
20.4. In the event the Client requests to terminate in writing an SOW or RFS Schedule without cause, and this is agreed to in writing by the Service Provider, then the Client shall pay either:
(i) Where the termination occurs after 50% of the total deliverables have been provided, fees due and payable up to the date of termination; or
(ii) Where the termination occurs before 50% of the total deliverables have been provided, remaining balance totalling 50% of the fees as detailed under the SOW or RFS.
20.5. Force Majeure – Per clause 21.4, a party may terminate this Agreement by (unless otherwise stated) immediate written notice to the other party if there is a Force Majeure and the Force Majeure has occurred for at least 20 Business Days.
20.6. Payment of Fees d–e - Upon termination of this Agreement, the Client will pay the Service Provider Fees due and payable for the Services satisfactorily performed by the Service Provider up to the date of termination. The Service Provider may recover any unpaid Fees from the Client from services satisfactorily performed as a debt due and payable.
20.7. Accrued rights - Termination of this Agreement is without prejudice to any accrued rights or remedies of a party prior to the date of termination.
21. Force Majeure
21.1. Where Force Majeure prevents or delays a party from performing an obligation under this Agreement, that obligation is suspended as long as the Force Majeure continues.
21.2. If a party is prevented or delayed by Force Majeure from performing an obligation under this Agreement, the affected party must, as soon as possible after that event occurs, notify the other party of full details of:-
(a) The event;
(b) The effect of the event on performance of the affected party’s obligations;
(c) The anticipated period of delay; and
(d) The action (if any) the affected party intends to take to mitigate or remove the effect and delay.
21.3. Whichever party is affected, it must diligently act to mitigate or remove the Force Majeure and its effect.
21.4. If the Force Majeure continues for a period of 20 consecutive Business Days or more, a party may (without affecting the accrued rights and obligations of the parties at the date of termination) terminate this Agreement by giving written notice to the other party.
22. Goods & Services Tax
22.1. To the extent that monies payable by the Client to the Service Provider under this Agreement or other monies payable under this Agreement are a Taxable Supply and subject to payment of GST:
(a) The monies payable shall have added to it an additional 10% per cent increment (or such other percentage as may replace the 10% tax payable under GST Law); and
(b) The party entitled to payment for a Taxable Supply shall issue a Tax invoice for such monies to enable the party liable to pay the monies to obtain an Input tax credit for the payment GST.
For the purposes of this clause 22.1:
(a) “GST” means the tax imposed by the GST Law;
(b) “GST Law” means A New Tax System (Goods and Services Tax) 1999 of the Commonwealth of Australia as amended from time to time;
(c) “Tax invoice” means as defined in the GST Law;
(d) “Input tax credit” means as defined in the GST Law;
(e) “Taxable Supply” means as defined in the GST Law.
23.1. A notice or other communication connected with this Agreement (“Notice”) has no legal effect unless it is in writing or sent via email. An email is deemed to be delivered if no system failure notice is received by the sender of the email.
23.2. In addition to any other method of service provided by law, the Notice may be sent by:
(i) prepaid post to; or
(ii) delivered at
- the address of the addressee set out in this Agreement or as subsequently notified in writing.
23.3. If the Notice is sent or delivered in a manner provided by clause 23.2, it must be treated as given to and received by the party to which it is addressed:
(i) if sent by post, on the 2nd Business Day (at the address to which it is posted) after posting;
(ii) if otherwise delivered, before 5pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.
In this Agreement, where the context permits, the following terms shall have the following meanings:
“Business Day” means a day that is not a Saturday, Sunday or any other day which is a public holiday or bank holiday in the place where an act is to be performed or a payment is to be made.
“Business Hours” means the hours of 9:00 am to 5:00pm on a Business Day.
“Client Data” means any data, information, record, illustration or file content object, in electronic form.
“Confidential Information” means information of a party:
(a) regarding the business or affairs of that party or its Related Bodies Corporate; or
(b) regarding the customers, employees or contractors of, or other persons doing business with, that party or its Related Bodies Corporate; or
(c) regarding the terms of this Agreement, or the commercial arrangements between the parties; or
(d) which is by its nature confidential or which is designated as confidential by that party; or
(e) which is Personal Information and which either party holds, creates or receives in relation to the performance of a party’s obligations or the exercise of their rights under this Agreement; or
(f) which the other party knows, or ought to know, is confidential; or
(g) in particular for the Service Provider includes but is not limited to the Service Provider’s proprietary software (object and source codes), methodologies and related documentation and its Services proposals.
“Deliverable” means each deliverable to be provided by the Service Provider to the Client as set out in a Statement of Work or RFS schedule including, where applicable, Developed Materials, other software deliverables, specifications and documentation or other works, items, materials or information.
“Developed Materials” means any software (and related specifications) or other Material developed by the Service Provider, as set out in a Statement of Work or RFS schedule and provided to the Client pursuant to the Services.
“Force Majeure” means an event which is not within the reasonable control of a party (other than a payment obligation) including without limitation:
(a) An act of God; or
(b) Importation of a software virus into any software utilised by the Service Provider in providing the Services; or
(c) Ministerial or governmental direction or order; or
(d) Strikes, lockouts, embargo, labour disputes, explosion, national emergency (whether in fact or law), power shortage, civil strife, terrorism, war or act of foreign enemies, hostilities (whether war is declared or not), confiscation, destruction of or damage to any property by or under any order of a government or other competent authority.
“Intellectual Property Rights” means any of copyright (including moral rights), patents, designs (registered or unregistered), trade and service marks (registered or unregistered) and other intellectual property rights as defined by Article 2 of the World Intellectual Property Organisation Convention of 1967 (as amended from time to time) and includes all rights to register or procure the registration of any intellectual property or to protect any intellectual property.
“Material” means any of tools, methodologies, processes, libraries, databases, software, firmware, documentation or other material in whatever form.
“Personal Information” means information or an opinion, however it is stored, whether recorded in material form or not, whether true or not, about a natural person whose identity is apparent or can be reasonably be ascertained from information or opinion.
“Pre-existing IPR” means proprietary Material of a party existing as at the date of this Agreement or a SOW or RFS schedule, as applicable, or created independently of this Agreement or a SOW or RFS schedule, and any and customisation, modification, enhancement or derivative work of that Material.
“Related Body Corporate “means as defined per section 9 of the Corporations Act 2001.
“Safety Legislation” means all applicable Occupational Health and Safety, Environment Protection, Dangerous Goods and Electricity Safety legislation and regulations made under such legislation together with any directions on safety or notices issued by any relevant authority or any code of practice or compliance code appropriate or relevant to the supply of the Services.
“Services” means the services to be provided by the Service Provider to the Client as set out in this Agreement and applicable SOW or RFS schedule executed by the parties from time to time.
25.1. Reference to:
(a) one gender includes the others;
(b) the singular includes the plural and the plural includes the singular;
(c) a person includes a body corporate;
(d) a party includes the party’s executors, administrators, successors and permitted assigns;
(e) a statute, regulation, code or other law or a provision of any of them includes:
(i) any amendment or replacement of it; and
(ii) another regulation or other statutory instrument made under it, or made under it as amended or replaced; and
25.2. Reference to money is to Australian dollars, unless otherwise stated.
25.3. Reference to “Including” and similar expressions are not words of limitation.
25.4. Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
25.5. Headings and any table of contents or index are for convenience only and do not form part of this Agreement or affect its interpretation.
25.6. A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.
25.7. If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.
(i) If a party consists of more than 1 person, this Agreement binds each of them separately and any 2 or more of them jointly.
(ii) An obligation, representation or warranty in favour of more than 1 person is for the benefit of them separately and jointly.
(iii) A party which is a trustee is bound both personally and in its capacity as a trustee
26.1. The rights hereby granted to the Client are not assignable, without the prior written consent of Service Provider which will not be unreasonable upheld or delayed.