Business Terms and Conditions

1. Definitions and interpretation

1.1. Definitions

The definitions in this clause apply in this Business Terms and Conditions:

(a) Additional Services has the meaning in clause 4.2(a) of the Master Services Agreement;

(b) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes;

(c) Agreement means the Master Service Agreement; together with these Business Terms and Conditions, and any attached schedules and annexures;

(d) Approved Software has the meaning in clause 5.1(a) of the Master Services Agreement;

(e) Business Day means each day excluding Saturdays, Sundays and public holidays in Victoria;

(f) Business Hours means between the hours of 8:30AM to 6:00PM (Australian Eastern Daylight Time or Australian Eastern Standard Time (which ever applies) on Business Days;

(g) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise;

(h) Client, you or your means the party identified in clause 1.1 of the Master Services Agreement as the Client, your Personnel and Affiliates;

(i) Commencement Date has the meaning in clause 2.2 of the Master Service Agreement;

(j) Confidential Information means all information of a confidential nature that a party obtains, receives or has access to as a result of the discussions leading up to, or the entering into or the performance of, the Agreement (whether written, oral or in electronic form, or on magnetic or other media), including, but not limited to:

(i) all pricing information, business and financial information, sales and supply details, marketing strategies, customer and supplier listings, staff information, business listings, information concerning the business or customers relating to the Client or the Managed IT Services;
(ii) all processes, procedures, techniques, concepts, systems, manuals, licence agreements, disclosure documents, documents, agreements, contracts, notes, file and database structures and software relating to the Managed IT Services; and
(iii) all financial, business, operational and technical or other data, concepts and methods, ideas, know-how, designs, inventions, product or service plans, marketing information, trade secrets, programs, data or application systems codes and all other information of a party;

(k) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties on the Commencement Date as a likely result of breach of the agreement:

(i) direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;
(ii) loss of revenue, profit, income, bargain, opportunity (including marketing or advertising opportunity), use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data;
(iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
(iv) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.

(l) Force Majeure Event means any act, event, omission or accident beyond a party’s reasonable control, including but not limited to, acts of God, governmental actions, shipping, postal or other relevant transport strike, failure or accident, lockouts or other labour difficulty, war or national emergency, acts of terrorism, fire, explosion, flood, an act or omission of a third party, epidemic, pandemic, mandatory government shutdown or lockdown, shortage of or inability to obtain any necessary materials, equipment, facilities or services, the failure of performance provided by others, hacker attacks, denial of service attacks, internet interruption or virus, accidents or breakdown of plant, machinery, software, hardware or communication network, or default of hosting or data centre providers;

(m) Hardware means the third party computer hardware and accessories provided by the Supplier to the Client in accordance with the terms of this Agreement;

(n) GST has the meaning given by the GST Law;

(o) GST Law has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

(p) Insolvency Event means a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or any event that has a substantially similar effect to the above events;

(q) Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world

(r) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including Consequential Loss;

(s) Managed IT Services means the provision of onsite and remote technical support of supported software and hardware equipment as specified in the Master Services Agreement;

(t) Personnel means any officer, employee, agent, contractor, sub-contractor or consultant of a party;

(u) Personal Information has the same meaning that it has under Privacy Laws, namely information or an opinion about an identified individual or an individual who is reasonably identifiable, whether the information or opinion is true or not and recorded in a material form or not;

(v) Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended), the Australian Privacy Principles and any other legislation, codes and policies relating to the handling of Personal Information;

(w) Service Level Agreement or SLA means the standards of service which the Supplier shall use reasonable endeavours to achieve in providing the Client with Managed IT Services and Additional Services (if any);

(x) Site has the meaning in clause 4.1(d) of the Master Services Agreement;

(y) Supplier, we, our or us means WebPal Pty Ltd (ABN 67 665 038 514), and where the context permits, includes our Personnel and Affiliates;

(z) Supplier IP has the meaning in clause 7.1;

(aa) Supplied Software has the meaning in clause 5.1(d)(i) of the Master Services Agreement;

(bb) Supplied Software Owners means the owner or licensor of the Supplied Software;

(cc) Term means the collective period of the Initial Term and each Renewed Term;

(dd) Third Party Products and Services means any Approved Software, Hardware, products, services, content or technology (including all Intellectual Property Rights contained therein) that:

(i) are provided by third parties;
(ii) interoperate with the Managed IT Services or the Additional Services; or
(iii) may be identified as third party products or services.

(ee) Travel Time means to and from the Client’s account address;

(ff) User means Personnel of the Client who may access and use the Supplied Software provided by, or managed by, the Supplier on the Client’s behalf; and

(gg) Website means the website located at www.webpal.com.au and any other website notified by us from time to time.

1.2. Interpretations

In this Agreement, unless the contrary intention appears:

(a) headings are for ease of reference only and do not affect the meaning of this Agreement;

(b) the singular includes the plural and vice versa and words importing a gender include other genders;

(d) parties must perform their obligations on the dates and times fixed by reference to Melbourne, Victoria;

(e) a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;

(f) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

(g) a reference to a statute, ordinance, code or other law includes regulations, rules and other instruments under it and any consolidations, amendments, re-enactments or replacements of any of them;

(h) any agreement, obligation, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

(i) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; and

(j) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it.

2. Our obligations

2.1. During the Term, the Supplier shall use reasonable endeavour to provide the Client with Managed IT Services and Additional Services (if any) in accordance with the Managed Services Agreement and the SLA.

2.2. In the event the Supplier fails to provide the Managed IT Services and/or Additional Services in accordance with clause 2.1, the Supplier shall, at our expense, use reasonable endeavours to correct any such non-conformance, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution (together with the remedies in the SLA) constitute the Client’s sole and exclusive remedies for any breach of clause 2.1.

3. Your obligations

3.1. During the Term, the Client must:

(a) pay all fees and charges specified in this Agreement in accordance with the payment terms;

(b) provide the Supplier with all necessary co-operation in relation to this Agreement and all necessary access to Personnel, information, Client Data, systems (including system access details, such as username and passwords) and building clearances rights (including keys and access passes) as may be required by the Supplier in order to provide the Managed It Services and Additional Services (if any);

(d) comply with all reasonable directions, policies and guidelines of the Supplier or the licensor of the Supplied Software and/or Hardware as advised from time to time;

(e) carry out all of its responsibilities set out in this Agreement in a timely and efficient manner; and

(f) ensure that Users use the Supplied Software, Hardware, Managed IT Services and Additional Services (if any) strictly in accordance with this Agreement and the Client will be responsible for any act or omission of a User or a User’s breach of this Agreement (as if it was your act or omission).

3.2. The Client may be required to provide data to the Supplier, including:

(a) data relating to the Client’s business, software system and computer hardware and your Personnel, including Personal Information; and

(b) any other data disclosed by the Client or otherwise brought to the attention of the Supplier (and all Intellectual Property Rights contained therein),

(collectively, Client Data).

3.3. The Client will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Client Data. The Client will ensure that your Personnel or other third parties have given their authority and consent for the provision by the Client of their data to the Supplier (including Personal Information) and its use in accordance with this Agreement.

3.4. The Customer authorises the Supplier to:

(a) use Client Data to perform (and improve the performance of) the Managed IT Services and Additional Services (if any), and in the course of performing or delivering the Managed IT Services and Additional Services (if any) to use Client Data (and all Intellectual Property Rights contained therein);

(b) use Client Data to inform the Client of other products, software, hardware or services that the Supplier may offer from time to time or in relation to Third Party Products and Services; and

(c) share Client Data, in aggregated anonymized form, with our Affiliates or other third parties (with whom the Supplier may contract or be affiliated with from time to time) for the purposes of performing or improving the Managed IT Services and Additional Services or delivering the Managed IT Services and Additional Services to you.

4. Payment

4.1. The Client must pay the Monthly Fees, Setup Fees, Out of Scope Labour Charges and other any amounts owing to us under this Agreement in accordance with clause 6 of the Master Services Agreement.

4.2. At any time the Supplier may, at our absolute discretion, invoice the Client for any fees accrued under this Agreement that we failed to invoice in the month in which the fees were incurred.

4.3. If the Client fails to pay the Supplier the Monthly Fees, Setup Service Fees and Out of Scope Labour Charges or any other amounts owing to the Supplier under this Agreement by the due date, without limiting any other remedies available to the Supplier under this Agreement or at law, the Supplier may, at our absolute discretion, do all or any of the following:

(a) immediately suspend the Managed IT Services and/or the Additional Services (if any) until all overdue amounts (including interest) are paid in full;

(b) charge interest on such overdue amounts, from the due date up to the date of actual payment, at an interest rate of 1.25% per month (15% per annum). Such interest will accrue on a daily basis and be compounded quarterly;

(c) add $35 to the outstanding debt for each calendar week that your invoice remains outstanding as liquidated damages for dealing with, and enforcing, the outstanding invoice;

(d) set-off any and all overdue amounts against any amounts owing to the Client by the Supplier (including Service Credits) under this Agreement; or

(e) terminate the Agreement in accordance with clause 9.

4.4. If the Client disputes the amount of any invoice (Disputed Invoice) under this Agreement, the Client shall issue a notice in writing setting out its objection to the Disputed Invoice (including the amount in dispute). The Supplier shall promptly respond in writing to the Client following receipt of any such objection. If the parties cannot reach agreement following receipt of the Supplier’s response, the matter may be submitted to the dispute resolution procedure in accordance with clause 10.

5. Direct Debit Authority

5.1. You may pay any and all other fees owing under this Agreement by credit or debit card (Visa, Mastercard or AMEX) or by means of direct debit in accordance with the Direct Debit Authority.

5.2. If you agree to set up a direct debit, you authorise us to arrange for all fees owing under this Agreement to be debited from your credit card or bank account (as applicable) as and when such fees are due and payable under this Agreement (Direct Debit Authority).

5.3. You may cancel, defer or change your Direct Debit Authority by notifying us in writing at least seven days before the day on which your next debit is due. If you cancel or defer Direct Debit Authority, we may not be able to provide you with Managed IT Services, unless you provide us with new Direct Debit Authority.

5.4. It is your responsibility to ensure that there are sufficient funds available on your credit card or bank account (as applicable) to allow each debit to be made in accordance with the Direct Debit Authority. If there are insufficient funds:

(a) the transaction will be rejected and the payment will be treated as if it were never made;

(b) your financial institution may charge you a fee and/or interest;

(d) you must arrange for the debit to be made by another method or arrange for sufficient funds to be available by an agreed time so that we can process the debit.

5.5. It is your responsibility to check your credit card or bank account statement (as applicable) to verify that the amounts debited from your credit card or bank account are correct.

5.6. If you believe that an error has been made in debiting your credit card or bank account (as applicable), you should notify us as soon as possible in writing and we will promptly investigate and we will adjust your credit card or bank account balance as required.

5.7. If you cancel the Direct Debit Authority, your right to access and use the Managed IT Services will cease at the end of the current billing cycle.

6. Confidentiality

6.1. Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other party (Disclosing Party) acknowledges that the Disclosing Party’s Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clauses 6.2 and 6.3, the Receiving Party must:

(a) keep the Disclosing Party’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;

(b) take all steps to secure and keep secure all Disclosing Party’s Confidential Information coming into its possession or control; and

(c) not use, modify, reverse engineer or make copies, notes or records of the Disclosing Party’s Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under this Agreement.

6.2. The Supplier may disclose the Confidential Information of the Client only to the Supplier’s Personnel who have a need to know (and only to the extent that each has a need to know).

6.3. The obligations of confidentiality under this Agreement do not extend to information that:

(a) is in the public domain;

(b) enters the public domain after the commencement of this Agreement otherwise than as a result of any unauthorised act or omission of the person to whom that information is disclosed;

(c) is already in the possession of the person to whom information was disclosed at the time of disclosure and is not subject to objections of confidentiality; or

(d) is required to be disclosed by any applicable law.

6.4. The Supplier shall comply with all Privacy Laws relating to the collection, access to, storage of and use of Personal Information disclosed to or made available to the Supplier in the course of providing the Managed IT Services or Additional Services (if any), or otherwise dealt with by the Supplier under or in connection with this Agreement.

7. Intellectual Property Rights

7.1. The Client acknowledges that, notwithstanding anything else, the Supplier and/or its licensors own all Intellectual Property Rights in the Managed IT Services and/or Additional Services (and anything arising or generated therefrom) (collectively, the Supplier IP). Using the Managed IT Services and/or Additional Services does not give the Client (or anyone else) ownership of, or any right, title or interest in any of the foregoing (or any Supplier IP contained therein), or any information, content, Supplied Software or Hardware that may be provided to, or accessed by, the Client in connection with your use, all of which is, and will remain, owned by the Supplier or its licensors.

7.2. The Client will remain the owner of your Client Data, provided the Client grants the Supplier a royalty-free, non-exclusive and worldwide licence for the Supplier you’re your Affiliates) to use any Client Data that the Client makes available to the Supplier (and all Intellectual Property Rights contained therein) for the purpose of providing the Managed IT Services, the Additional Services (if any) or any ancillary services.

8. Liability

8.1. To the maximum extent permitted by law, the Supplier excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the access to, and use of, the Managed IT Services, Additional Services and any Supplied Software or Hardware.

8.2. Nothing contained in this Agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.

8.3. To the maximum extent permitted by law, the Supplier will not be liable to the Client, your Personnel or any third party for any:

(a) Claims or Losses (including Consequential Loss); or

(b) loss of, or damage to, any property or any personal injury, illness or death to you, your Personnel or any third person,

arising out of, relating or connected to, the provision or use of the Managed IT Services, Additional Services (if any), any Supplied Software and/or Hardware and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

8.4. Under no circumstances will the Supplier’s aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the fees paid by the Client to the Supplier under this Agreement in the preceding 3 months of the claim.

8.5. You agree to defend, indemnify and hold the Supplier, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims or Losses, that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of:

(a) the access to, and use of, the Managed IT Services, Additional Services (if any), any Supplied Software and/or Hardware by the Client, your Users or any third party;

(b) any breach of any third party’s Intellectual Property Rights or other rights caused by the Clients or your Users; or

9. Termination or suspension

9.1. Either party may terminate this Agreement by giving the other party at least 90 days’ written notice of termination, except that if you terminate the Agreement in accordance with clause 9.1 you will be required to pay, by way of liquidated damages, an early termination fee equal to six months of the Monthly Fees (Early Termination Fee).

9.2. Either party may terminate this Agreement immediately by notice in writing if:

(a) the other party is in breach of any term of this Agreement and such breach is not remedied within 7 Business Days after receiving notice requiring it to do so;

(b) the other party is in breach of any term of this Agreement and such breach is not capable of remedy; or

9.3. On expiry or termination of this Agreement for any reason:

(a) the Client must immediately pay all outstanding fees (including the Early Termination Fee in the event you terminate the Agreement in accordance with clause 9.1) and any other amount owing to the Supplier under this Agreement (including interest);

(b) the Customer must immediately return to the Supplier all Confidential Information, Supplier IP, Supplied Software or Hardware provided by the Supplier and any other property belonging to the Supplier in your possession, custody or control and certify to the Supplier, in writing, that you have done so;

(c) the Supplier will uninstall all remote monitoring and management software from all Client hardware and systems. The Client acknowledges that this may leave your computers and other equipment without adequate systems for updates to operating systems, software, and virus scanning programs. The Supplier shall not be held responsible for any Claims or Losses (including Consequential Loss) resulting from the removal of remote monitoring and management software; and

(d) all licences and rights granted to the Client under this Agreement shall immediately terminate.

9.4. You agree that the Supplier may, at any time and at our sole discretion, with or without cause or any notice to you, terminate, suspend or block your access to (either temporarily or permanently):

(a) the Managed IT Services and/or Additional Services (if any); and/or

(b) any Supplied Software and/or Hardware provided by the Supplier.

9.5. Cause for such suspension or termination under clause 9.4 may include, but are not limited to:

(a) any serious or repeated breaches or violations of this Agreement, our policies and guidelines and any other agreements entered into between the parties;

(b) serious or repeated breaches or violations of the Supplier IP or a third party service providers’ Intellectual Property Rights;

(d) an emergency; or

(e) requests by law enforcement or other government agencies.

10. Dispute resolution

10.1. You must, before resorting to court proceedings, refer any dispute with us under or relating to this Agreement initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within this period, then either party may, in its absolute discretion, initiate court proceedings.

11. Third party providers

11.1. The Client acknowledges that the Managed IT Services and Additional Services (if any) may enable or assist the Client to use or access Third Party Products and Services and that the Client does so solely at its own risk.

11.2. We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such Third Party Products and Services, or any transactions completed, and any contract entered into by the Client, with the owner, licensor or operator of such Third Party Products and Services.

11.3. The Supplier recommends that the Client refer to the third party’s terms and conditions and privacy policy prior to using the relevant Third Party Products and Services.

11.4. Any rights the Client may have to access Third Party Products and Services shall be limited to:

(a) the extent of the Supplier’s ability to pass on such rights to Client; or

(b) the relevant third party licensor terms

12. Supplied Software

12.1. The Supplier procures for the Client a personal, non-exclusive, non-transferable and revocable licence to access and use the Supplied Software as listed in Appendix C of the Master Service Agreement. The number of Users licensed to use the Supplied Software and the Monthly Fees payable for these Users are set out in the Master Services Agreement.

12.2. All Supplied Software supplied in accordance with the Master Services Agreement is procured subject to the Supplied Software Owners’ licence terms and conditions (which is available on the website of the Supplied Software Owner) and on terms and conditions of this Agreement and on a ‘licence only’ basis. No title to the Supplied Software (or any Intellectual Property Rights contained therein) is transferred to the Client or your Users under this Agreement.

12.3. The Client must not do (nor attempt to do) any of the following:

(a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Supplied Software and Documentation (as applicable) in any form or media or by any means;

(b) violate the Supplied Software Owner’s Intellectual Property Rights;

(c) copy, modify or use the Supplied Software in any way not expressly permitted by this Agreement or the Supplied Software Owner’s licence terms and conditions (if any);

(d) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Supplied Software in any way or otherwise learn the source code or algorithms underlying the Supplied Software

(e) access all or any part of the Supplied Software in order to build a product, service or code which competes with the Supplied Software;

(f) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Supplied Software available to any third party except your Users;

(g) attempt to obtain, or assist third parties in obtaining, access to Supplied Software, other than as expressly provided under this Agreement;

(h) alter, remove, obscure or interfere with any notices relating to Intellectual Property Rights (including copyright, acknowledgment, attribution, trade mark, warning, disclaimer statement, rights management information or serial numbers) appearing in, or on, or affixed to, the Supplied Software or any other literature relating to the Supplied Software;

(i) bundle, package or otherwise distribute the Supplied Software with, or as part of, any other product or collection of products;

(j) misuse or engage in illegal behaviour, including unauthorized access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; use of an Internet account or computer without the owner’s authorization; collecting information by deceit, including, but not limited to Internet scamming, password robbery, phishing, security hole scanning, and port scanning; and any activity or conduct that is in breach of any relevant laws; and

(k) make or publish any false, disparaging, malicious or defamatory statement or content (whether written or oral, including, without limitation, on social media) about the Supplied Software Owners or the Supplied Software.

12.4. The Client will indemnify the Indemnified and the Supplied Software Owner from and against any and all Claims or Losses, that may be brought against the Indemnified and/or the Supplied Software Owner or which the Indemnified and/or the Supplied Software Owner may pay, sustain or incur as a direct or indirect result of or arising out of, any breach by the Client, your Users or your Personnel of the:

(a) Intellectual Property Rights of the Supplied Software Owners; or

(b) Supplied Software Owners’ licence terms and conditions (if any) or this Agreement.

12.5. You acknowledge that clauses 12.3 and 12.4 of this Agreement are for the benefit of the Supplier and the Supplied Software Owners. Any right or licence expressed to be for Supplier’s benefit is also for the benefit of the Supplied Software Owners.

12.6. The Supplier holds the benefit of clauses 12.3 and 12.4 of this Agreement for the Supplier and on trust for each Supplied Software Owner and the Supplier is entitled to:

(a) enforce clauses 12.3 and 12.4 of this Agreement, whether by way of equitable, legal or statutory relief for itself and on behalf of any Supplied Software Owner; and/or

(b) transfer, novate or assign all of its rights under clauses 12.3 and 12.4 of this Agreement to a Supplied Software Owner for the purpose of the Supplied Software Owner enforcing its rights under clauses 12.3 and 12.4 of this Agreement.

12.7. The Supplier may terminate this Agreement immediately or the Client’s right to access and use any or all of the Supplied Software immediately by notice in writing if:

(c) the Client or your Users commit any serious or repeated breaches or violations of the Supplied Software Owners’ licence terms and conditions (if any) or this Agreement; or

(d) the Client or your Users commit serious or repeated breaches or violations of the Supplied Software Owners’ Intellectual Property Rights; or

(e) the Client fails to pay the Monthly Fees or any other fees payable in connection with the Supplied Software: or

(f) the Client’s or your User’s activities, conduct or transactions on, or, via, the Supplied Software, brings, or has the capacity to bring, the Supplier, the Supplied Software Owners, the Managed IT Services, Additional Services (if any) and Supplied Software into disrepute.

13. Leasing of Hardware

13.1. The Supplier may, at our absolute discretion, accept or decline to lend Hardware to the Client. If the Supplier agrees to lend Hardware to the Client, the hire period commenced when the Client takes possession of the Hardware and ends when the Hardware is back in the Supplier’s possession (Hire Period).

13.2. The Client will pay the hire fees as specified in the Master Services Agreement.

13.3. The Hardware shall remain at the sole risk of the Client all times during the Hire Period, and Hardware will remain the property of the Supplier.

13.4. The Client must not, without prior written consent of the Supplier part with control of, transfer, sub-let, assign, sell or offer for sale or lend or otherwise encumber the Hardware.

13.5. The Client shall at all times during the Hire Period:

(a) ensure that the Hardware is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent Personnel;

(b) satisfy itself as to the suitability, condition and fitness for purpose of the Hardware without relying upon the skills or judgment of the Supplier. The Supplier is entitled to assume that the Hardware was received by the Client in good working order and condition;

(c) make no alteration or repair to the Hair and shall not remove any existing components or parts from the Hardware without the prior written consent of the Supplier; and

(d) permit the Supplier to inspect the Hardware at reasonable times and to enter upon the Site or any premises at which the Hardware may be located, and the Client shall grant the Supplier reasonable access to such facilities for the purpose of inspection;

13.6. The Client shall be responsible for any loss or damage, liability or cost caused by or to the Hardware during the Hire Period or caused by any act or omission of the Client, its Personnel or by third parties during the Hire Period. The Client shall remain responsible at all times for any act or omission of a third party.

14. Non-solicitation

14.1. The Client agrees not to engage, employ or solicit the Supplier’s Personnel during the term of this Agreement and for 12 months after the termination or expiry of this Agreement (or, if this is deemed invalid, for 6 months from the date of termination of this Agreement).

15. Force Majeure

15.1. Subject to the remaining provisions of this clause 14, the Supplier shall not be liable to the Customer for any delay or non-performance of our obligations under this Agreement to the extent that such non-performance is due to, or arises as a result of, a Force Majeure Event.

15.2. In the event that the Supplier is delayed or prevented from performing our obligations under this Agreement by a Force Majeure Event, the Supplier shall notify the Client in writing of the Force Majeure Event.

15.3. As soon as practicable following the Supplier’s notification, the parties shall consult with each other in good faith and use all reasonable endeavours to agree appropriate terms to mitigate the effects of the Force Majeure Event and to facilitate the continued performance of this Agreement.

15.4. Subject to clause 14.5, the Supplier shall notify the Client as soon as practicable after the Force Majeure Event ceases or no longer causes the Supplier to be unable to comply with its obligations under this Agreement. Following such notification, this Agreement shall continue to be performed on the terms existing immediately prior to the occurrence of the Force Majeure Event unless agreed otherwise in writing by the parties.

15.5. Where the duration of the delay or failure continues for more than 20 Business Days and the parties are unable to agree on a course of action, either party may immediately terminate Agreement by written notice to the other party.

16. Notices

16.1. All notices, requests, demands, consents, approvals, offers, agreements or other communications (notices) given by a party under or in connection with this Agreement must be:

(a) in writing;

(b) signed by a person duly authorised by the sender or, where transmitted by e‑mail, sent by a person duly authorised by the sender;

(d) hand-delivered, sent by prepaid post or transmitted by e‑mail to that address.

16.2. A notice given in accordance with this clause is taken as having been given and received:

(a) if hand-delivered, on delivery;

(b) if sent by prepaid post: (i) within Australia, on the fourth Business Day after the date of posting; or (ii) to or from a place outside Australia, on the seventh Business Day after the date of posting; or

but, if the delivery or transmission is not on a Business Day or is after 5.00pm (recipient’s time) on a Business Day, the notice is taken to be received at 9.00am (recipient’s time) on the next Business Day.

16.3. The parties’ respective details for the purposes of this clause are set out in clause 7 of the Master Services Agreement (unless otherwise notified in writing by one party to the other).

17. General

17.1. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

17.2. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

17.3. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, then the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

17.4. These Business Terms and Conditions, the Managed Services Agreement and any documents referred to therein, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

17.5. Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge or deal in any other manner with all or any of its rights or obligations under this Agreement, except that the Supplier may assign, sell or transfer our rights or obligations under this Agreement to an Affiliate or bona fide third party purchaser of the Supplier’s business.

17.6. Nothing in this Agreement is to be construed as constituting a partnership, employment relationship, joint venture, or any other form of association between the parties in which one party may be liable for the acts or omissions of any other party.

17.7. If there is any inconstancy between the terms of the Managed Services Agreement and these Business Terms and Conditions, the terms of these Business Terms and Conditions shall prevail to the extent of the inconsistency.

17.8. Clauses 2.2, 4, 6, 7, 8, 9, 10, 11.2 12.6, 13, 14, 15, 16 and any other obligation which is expressed to, or by its nature, survive expiry or termination of this Agreement, will survive expiry or termination of this Agreement and are enforceable at any time at law or in equity.

17.9. The laws of the state of Victoria, Australia govern this Agreement. The parties agree to submit to the exclusive jurisdiction of the courts of Victoria.

Terms and Conditions current as of July 2023.