Website Hosting Terms and Conditions

Hosting Package Options

Each package includes

• Website Security and Maintenance 
• **Australian standard Domain name renewal (if in Hicaliber Domain registrar) 
• SSL Certificate – a digital certificate that authenticates a website’s identity and enables an encrypted connection.
• Fast Cache Speed Enhancer – increases performance by reducing the response time to hosts and provides higher output during peak times.
• Dedicated WordPress Only Server – additional layer of security.
• Server Security Monitoring Checks – performed and monitored daily.
• Server Threat Detection & Blocking – performed and monitored daily.
• Daily backups of the Website.
• Restoring a backup in the event of a major error or fault.
• Smart Plugin Manager for approved plugin updates.

FAQs

We often get asked the following questions and here are our Scotias. We hope this assists you in the decision making process.

Q. Can I use the hours for new work on my website?
A. No, the hours included in the hosting agreement are for hosting related support and plugin or theme updates.

Q. Can I get a discount?
A. No, we cannot discount our rates but we do offer incentives and bonuses for long term relationships.

Q. Do the hours expire if not used?
A. Yes, if they are not utilised each month they will expire.

Q. Can I get a refund?
A. No, we cannot offer a refund. If you are suffering from hardship we encourage you to reach out and in some cases we can suspend the services for a period of time.

Q. Can I terminate the services at any time?
A. Yes, however we require a minimum of 30 days notice for any cancellation. You must log a ticket in our CLIENT SUPPORT providing us with notice.

Q. Can you help me migrate my site to another provider?

A. Yes, our Hosting Manager can assist with your website migration. You must log a ticket in our CLIENT SUPPORT providing us with 30 days notice. Our Customer Success Team can quote you on the time involved.

Response Times

Hours and days referred to above are within Hicaliber business hours which is Monday to Friday from 9am to 5pm and Weekends from 10am – 3pm AEST. Tickets logged where Scotia times fall outside of business hours will rollover to next business day.

• All packages include Helpdesk Support, Client Portal and Knowledge Base with Video Tutorials to assist you and your team.
• Scotia time is the amount of time between when a customer opens a ticket and when the agent first responds. These Scotia times are not guaranteed service levels, they are targeted Scotia times provided on a best effort basis.
• Targeted Resolution time is the estimated amount of time between when a first Scotia is applied to a ticket and when that ticket is solved (i.e. closed) where escalation to another team or third party is not required. Best efforts will be applied to accommodate third party availability.
• Critical / Urgent refers to significant outage or component failure affecting all users and/or business reputation e.g. Website offline, Server outage.

Services

Website Updates

• Scheduled updates to the WordPress core (If an update is available). If an update becomes available after our scheduled updates, this will be updated in the following month.
• Quarterly or Biannual WordPress Core and Plugin updates will be performed. If there is an urgent vulnerability identified this may be more frequent.
• Additional updates can be requested as part of our “Fee for Service” or as a mini project outside of this agreement.

Plugin Management Inclusions

• Renewal of existing approved plugin subscriptions and ensuring they remain active on the website. (note the plugin subscription costs are not included and will be on-charged, if Hicaliber does not have control/ access to where the plugin was purchased this will be the responsibility of the client.)
• Scheduled update to all active Plugins (if an update is available). If an update becomes available after our scheduled updates, this will be updated in the following month.
• Additional plugin updates can be requested as part of our “Fee for Service” or as a mini project outside of this agreement.
• All plugin tasks are capped per month based on the agreement included hours. Additional requirements may need to be scoped as a “Fee for Service” or as a mini project outside of this agreement.

WordPress Backups Inclusions

• Backups of the Website, any additional backups required will be treated as a “Fee for Service” or as a mini project outside of this agreement.

Technical & Troubleshooting Inclusions

• Restoring a backup in the event of a major error or fault.
• Additional requirements may need to be scoped as a “Fee for Service” or as a mini project.
• Uninstalling and reinstalling WordPress plugins where required.
• Troubleshoot Plugin, WordPress and Database Errors.

Example Fee for Service Items

• Additional websites not included in the package offering
• Additional time required outside of the package offering limits
• Additional pages and/or new functionality
• Changes to the design and styling of the Website
• Adjustments or patches required from a WordPress or Plugin Update
• Animation and SVG creation
• Creation of content, images and videos. This must be provided by you
• Data importing and/ or data analysis
• Development of API and/ or Integrations
• New plugins and /or addon installations
• Images with a royalty fee
• SEO / Keyword / Image Optimisation and Adjustments
• Plugin Subscription Costs
• Issues arising from third party or client amendments to backend of WordPress
• Migration of websites from one server to another.
• Domains not within our Hicaliber Domain Registrar.
• Anything not specifically mentioned in the inclusions of each package.

Technical Advice and Assistance – Fee for Service

From time to time the client may request technical advice from Hicaliber team members. Including but not limited to;

• Attending meetings with third party service providers relating to technical solutions.
• Investigating and assessing various proptech solutions.
• Attending meeting with Franchisees
• Providing assistance to Franchisees
• Providing assistance to Head Office staff

Advice is limited to the experience our team members possess. This does not include financial or legal advice.

* Approved Themes & Plugins

Any plugin updates outside of this list will need to be quoted separately as part of a fee for service.

Terms and Conditions for Services

BACKGROUND

(a) The Customer wishes to contract with the Supplier for the supply of the Services to the Supplier Customer and any Authorised Service Recipients from time to time on the terms set out in this Agreement (including the Statement of Work attached at Schedule 1) and, the Supplier has agreed to provide such Services for the benefit of the Customer and such Authorised Service Recipients (if any) on the terms of this Agreement set out below.

1 Definitions

1.1 Definitions

Meanings will apply to capitalised terms used in this Agreement as specified in this provision, unless the context otherwise requires:

Acceptance has the meaning given in clause 7.

Acceptance Criteria means, subject to clause 7, those tests or other acceptance criteria described in the SOW.

Additional Conditions means those additional conditions as set out in the SOW.

Agreement means this agreement together with the SOW. 

Approved Amount means the amount on account of expenses which the Supplier may incur without the express consent of the Customer as specified in the SOW.

Authorised Service Recipients means each member of the Customer Group. 

Commencement Date means the date specified as such in the SOW.

Confidential Information means:

(a) all oral and written information (in any form) that is either designated by a Party as confidential prior to the other Party obtaining access thereto, or information that should reasonably be expected to be treated as confidential by the recipient having regard to the nature of that information or the circumstances in which it was provided, whether or not such information is designated as confidential;

(b) all other information disclosed by one Party to the other Party, relating to the trade secrets, operations, processes, plans, intentions, product information, know-how, designs, market opportunities, transactions, affairs and/or business of that Party and/or its, clients, or in the case of the Customer, in relation to any Customer Group, or details of any discussions or negotiations with regard to the same, and includes any information, analyses, compilations, notes, studies, memoranda or other documents derived from, containing or reflecting such information.

Customer Group means the Customer, and parties identified in the Reference Schedule.

Deliverables mean those deliverables described in the SOW.

Dollar or $ means the lawful currency of the Commonwealth of Australia.

Due Completion Date means the date specified as such in the SOW.

Effective Date means the date on which this Agreement was entered into which will be the earlier of the date of acceptance (or deemed acceptance) of the SOW or the date of this agreement.

GST means the tax imposed by the GST Law.

GST Amount means, in relation to a Payment (as defined in clause 16(b)), an amount arrived at by multiplying the Payment (or the relevant part of a Payment if only part of a Payment is the consideration for a taxable supply) by the appropriate rate of GST.

GST Law has the meaning defined in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Initial Term means the period specified in the Reference Schedule commencing on the Effective Date.

Intellectual Property Rights all patents, rights to inventions, utility models, improvements, modifications, techniques, methods, devices, concepts, new products, formulae, technical information and data, copyright and related rights, trademarks, service marks, rights to trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights,  rights in confidential information (including know-how and trade secrets) and any other statutory or legally enforceable intellectual property and proprietary rights (including as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation dated 14 July 1967, as amended from time to time), in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Interest Rate means the rate specified in the Reference Schedule.

Jurisdiction means the state specified in the Reference Schedule.

Personal Information has the meaning given to it in the Privacy Act and relates only to personal information, or any part of such personal information, of which the Customer is the data controller and in relation to which the Supplier is providing Services under this Agreement.

Privacy Act means the Privacy Act 1988 (Cth) and includes the Australian Privacy Principles contained within that Act.

Privacy Laws means all Commonwealth, State and Territory legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to the Personal Information including the Privacy Act.

Service Levels means in relation to the Services, the performance, availability, capacity, Scotia times, and other levels or standards in respect of the Services as specified in the SOW.

Services means the services and/or the supply of goods to be provided by the Supplier under this Agreement, as set out in the SOW and the Supplier’s obligations under this agreement.

Statement of Work and SOW means a formal document that captures and defines the work activities or supply of services and/or goods, deliverables, the Supplier Personnel and timelines (as may be appropriate), as set out in Schedule 1 (as may be varied from time to time in accordance with this Agreement).

Supplier Personnel means those employees or agents or subcontractors of the Supplier that carry out the tasks set out in the SOW.

Supplier Materials means any materials or data  (including methodologies), Supplier proprietary software (whether written in human or machine-readable format) and any subsequent modifications to the same, owned or, created by on behalf of or for the benefit of the Supplier prior to or independently of this Agreement or outside the engagement under the SOW pursuant to this Agreement which are used to create, are embedded in or are required to operate or maintain the Deliverables (or any part thereof).

Term means the period commencing on the Effective Date of this Agreement and ending on the date of termination of this Agreement in accordance with clause 13.1, 13.2 or 17.2.

1.2 Interpretation

Rules of interpretation will apply to this Agreement as specified in this provision, unless the context otherwise requires:

(a) clause, schedule and paragraph headings will not affect the interpretation of this Agreement;

(b) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns;

(c) the ‘Background’, all schedules and annexes form part of this Agreement and will have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Background’, all schedules and annexes;

(d) words in the singular will include the plural and vice versa;

(e) a reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it;

(f) where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and will not limit the sense of the words preceding them;

(g) any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce to that thing being done;

(h) references to clauses and schedules are to the clauses and schedules of this Agreement;

(i) the words “include”, “including”, “for example” or “such as” and similar expressions when used in this Deed are without limitation;

(j) at any time includes reference to past, present and future time and the performance of any action from time to time and any liability at all times during any specified period;

(k) claim includes any claim, demand, request, requisition, notice, direction, allegation, objection, action, proceeding, damage or judgement arising in any manner and at any time, and whether present, immediate, unascertained, future or contingent;

(l) cost includes any cost, charge, expense, disbursement, fee, commission, outgoing, premium, tax, levy, fine, penalty or loss incurred at any time, whether directly or indirectly;

(m) default includes any default, breach, non-performance, non-compliance or repudiation;

(n) liability includes any liability or obligation of any nature, whether present, prospective or contingent; and

(o) loss includes any loss, cost, damage or liability.

1.3 Inconsistency

If there is any inconsistency between the operative provisions of this Agreement, a schedule to this agreement or a documents incorporated by reference to this Agreement, the order of precedence in interpretation will be as follows:

(a) the SOW;

(b) the Additional Conditions;

(c) the operative provisions of this Agreement;

(d) any other document incorporated by reference in this Agreement.

2 Commencement and Duration

2.1 Term

This Agreement will commence on the Effective Date and will continue until the end of the Term unless terminated earlier in accordance with this Agreement.

2.2 Commencement of Services

The Supplier will provide the Services from the Commencement Date in each case, and the Services supplied under this Agreement will continue to be supplied until the Due Completion Date as specified in the SOW.

3 Scope of Work (SOW)

3.1 Scope

The SOW, together with its exhibits (if any), will define the scope of the work for this Agreement. 

3.2 Additional Details

Additional written and detailed technical specifications (if appropriate) for the Scope of Work to be performed may be attached to the SOW as numbered exhibit(s). Each such exhibit, when so attached and signed by the parties, is incorporated by reference and will become a part of the SOW.

4 Supplier’s Responsibilities

4.1 Services

The Supplier will provide the Services to the Customer and the Authorised Service Recipients on the terms and conditions of this Agreement and in accordance with the SOW.

4.2 Service Levels

The Supplier must:

(a) at all times use suitably qualified and experienced persons exercising due skill, care and diligence and judgement to the best of its knowledge and expertise; 

(b) not knowingly be a party to the doing of any act, matter, omission or thing whereby the goodwill or reputation of the Customer or the Customer’s business may be prejudicially affected in any manner;

(c) unless otherwise agreed and set out in the SOW, in performing the Services, the Supplier must also provide all services, resources and technology which are necessary for or incidental to the provision of Deliverables or Services;

(d) meet any performance dates and Due Completion Date specified in the SOW; 

(e) meet or exceed the Service Levels;

(f) provide the reports specified in the SOW;

(g) perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry for similar services in a timely and professional manner; and

(h) conform with all descriptions and specifications provided to the Customer by the Supplier, including the SOW, in the provision of the Services.

4.3 Compliance Obligations

The Supplier must:

(a) only engage Supplier Personnel who are properly qualified and experienced to perform the duties allocated to them and who exhibit a high standard of work and conduct;

(b) procure that the Supplier Personnel carry out the SOW using appropriate professional standards;

(c) observe, and ensure that all Supplier Personnel observe, all health and safety rules and regulations and any other policies, procedures or other security requirements that apply at any of the Customer’s premises or Authorised Service Recipient’s premises.  The Customer reserves the right to refuse the Supplier Personnel access to the Customer’s Authorised Service Recipient’s premises, which will only be given to the extent necessary for the performance of the Services;

(d) notify the Customer as soon as it becomes aware of any health and safety hazards or issues which arise in relation to the Services; and

(e) comply with all laws applicable to the Services and Deliverables or otherwise in the performance of its obligations under this Agreement; and

(f) before the date on which the Services are to start, obtain, and at all times maintain, all necessary licences and consents and comply with all relevant legislation in relation to the provision of the Services under this Agreement and in accordance with the SOW.  

5 Customer’s Obligations 

5.1 General Obligations

(a) The Customer must:

(i) cooperate with the Supplier in all matters relating to the Services;

(ii) provide such access to the Customer’s and Authorised Service Recipient’s premises and data, and other facilities as may reasonably be requested by the Supplier for the purposes of the Services; 

(iii) provide such information as the Supplier may reasonably request and the Customer considers reasonably necessary, in order to carry out the Services, in a timely manner; and 

(iv) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s or Authorised Service Recipient’s premises.

(b) To the extent the Supplier provides Services to the Customer’s Authorised Service Recipients, the Customer acknowledges and agrees that it will be solely responsible and liable for all obligations for itself and the Authorised Service Recipients, pursuant to this Agreement, including payment obligations.

5.2 Use of Services

(a) The Customer must and must procure each Authorised Service Recipient to, in connection with the receipt and use of, and access to, Services:

(i) obtain and keep in force all necessary permits, licenses and consents: and

(ii)comply with all relevant Law

(b) The Customer must not, and must procure that each Authorised Service Recipient does not, use the Services in any way that:

(i) does not comply with any Laws or the terms of any permit, licence or consent applicable to the Customer, the relevant Authorised Service Recipient or their use of the Services (as applicable); 

(ii) is unlawful, offensive, defamatory, indecent, abusive or menacing;

(iii) does not comply with any instructions given by the Supplier or any public telecommunications operator or other competent authority in any country where the Services are provided; or 

(iv) the Customer or Authorised Service Recipient (as applicable) knows would put the Supplier in breach of any agreement that the Supplier has with any vendor or public telecommunications operator, or interfere or disrupt any telecommunications and/or computer network or system owned, operated or required by the Supplier or any of its subsidiaries (collectively, Supplier Group) or any of its agents or third party suppliers in the conduct of the business of the Supplier Group.

(c) The Customer indemnifies and must keep indemnified the Supplier against any and all liabilities, loss, damages, costs and expenses suffered or incurred by the Supplier in connection with the use of the Services by the Customer, any Authorised Service Recipient or any other member of the Customer Group, which is in breach of this clause 5.2, except to the extent that such liabilities, loss, damages, costs or expenses are caused or contributed to by the Supplier, any other member of the Supplier Group or any Supplier Personnel (whether wilfully or negligently) or third party.

(d) Notwithstanding anything else in this Agreement, the Supplier is not liable for, and the Customer must not make a Claim against the Supplier in respect of, any delays in or interruptions to the provision of any Service as a result of or to the extent contributed by an act or omission of (including a breach of this Agreement by) the Customer, any Authorised Service Recipient or any other member of the Customer Group (whether wilfully or negligently) or a third party.

5.3 No Solicitations

The Customer will not at any time during the term, directly or indirectly solicit or entice away or endeavour to solicit or entice away any person employed by or acting as consultant to the Supplier (whose departure from the Supplier would have a material adverse effect on the business of the Supplier) with a view to inducing that person to leave such employment and to act for another person in the same or similar capacity in relation to the same field of work. This clause will only apply to the solicitation or enticement of the Supplier’s employees or consultants with whom the Customer has had direct contact as a result of this Agreement.  

6 Change to Scope

6.1 Change Request

If either party wishes to change the scope or execution of the Services, it will submit details of the requested change to the other in writing, detailing the proposed change.

6.2 Estimate

If either party requests a change to the scope or execution of the Services, the Supplier will, within a reasonable time (and in any event not more than 5 working days after receipt of the Customer’s request), provide a written estimate to the Customer of: 

(a) the likely time required to implement the change;

(b) any necessary variations to the Supplier’s charges arising from the change; and 

(c) any other impact of the change on this Agreement and the SOW.

6.3 Consent Required

Unless both parties consent to a proposed change, there will be no change to this Agreement or SOW.

6.4 Variation

If both parties consent to a proposed change, the change will be made, only after agreement of the necessary variations to the Supplier’s charges, the Services and any other relevant terms of this Agreement (or SOW) to take account of the change that has been reached and this Agreement has been varied.

6.5 Compliance

(a) If the Supplier requests a change to the scope or execution of the Services (including a change to the fees), in order to comply with any applicable safety or statutory requirements, the Customer will not unreasonably withhold or delay consent to it. 

(b) If the request for change referred to in clause 6.5(a) is required by the Supplier and the Customer has not consented to the change request within 10 days, the Supplier may terminate this Agreement and all fees and charges due and payable as at the date of termination will be due and payable on the date of termination,

7 Acceptance

Acceptance will occur when the Deliverables under the SOW meet the Acceptance Criteria defined in the SOW. In the absence of specifically defined Acceptance Criteria then the Deliverables will be deemed to have been accepted on the earliest to occur of: (a) the Deliverables being delivered and the Customer having confirmed its acceptance of those Deliverables in writing; (b) the Customer providing the Supplier with confirmation that the SOW is completed; and (c) the first date that any of the Deliverables are used by the Customer or an Authorised Service Recipient provided that all Deliverables are available for use as at that date.

8 Charges and Payment

8.1 Charges

In consideration of the provision of the Services by the Supplier, the Customer must pay the charges and fees as set out in the SOW, which will specify whether they will be on a time and materials basis, a fixed price basis or a combination of both. Clause 8.2 will apply if the Supplier provides Services on a time and materials basis, and clause 8.3 will apply if the Supplier provides Services to the Customer and the Authorised Service Recipients for a fixed price. The remainder of this clause 8 will apply in either case.

8.2 Time and Materials Basis

Where Services are provided on a time and materials basis:

(a) the charges payable for the Services will be calculated in accordance with the daily fee rates for the Supplier Personnel and the rates for materials and consumables (including consumption based services) as set out in the SOW;

(b) Unless specified otherwise in the SOW, the Supplier’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between 8.00 am and 5.00 pm on weekdays (excluding public holidays);

(c) all charges quoted to the Customer will be exclusive of GST, which the Supplier will add to its invoices at the appropriate rate specified by law;

(d) subject to the SOW, the Supplier will invoice the Customer monthly in arrears for its charges for time, properly included expenses (if agreed by the parties to apply in the SOW) and materials (together with GST where appropriate) for the month concerned, calculated as provided in this clause 8.2 and clause 8.4. Each invoice will set out the time spent by each member of the Supplier Personnel and provide a detailed breakdown of any expenses (if agreed by the parties to apply in the SOW) and materials, accompanied by the relevant receipts.

8.3 Fixed Price

(a) Where Services are provided for a fixed price, the total price for the Services will be the amount set out in the SOW for those Services, specified in the SOW. 

(b) The total price will be paid to the Supplier in instalments and in accordance with the dates or upon completion of the Milestones specified in the SOW.  

(c) In respect of when an instalment is due, the Supplier will invoice the Customer for the charges that are then payable, together with expenses (if explicitly agreed by the parties to apply in the SOW), the costs of materials (and GST, where appropriate) calculated as provided in clause 8.4

8.4 Exclusions from Fixed Price

Unless specified otherwise in the SOW, any fixed price contained in the SOW, excludes:

(a) the cost of accommodation, subsistence, travelling and any other ancillary expenses reasonably incurred by members of the Supplier’s team in connection with the provision of the relevant Services; 

(b) the cost of any materials and services reasonably and properly obtained from third parties and reasonably required by the Supplier for the purposes of enabling the Supplier to provide the relevant Services in accordance with the SOW; 

(c) any costs identified in the SOW as being payable but not included from the fixed price; and 

(d) GST, which the Supplier will add to its invoices at the appropriate rate as specified by Law.

8.5 Expenses Generally

(a) Subject at all times to clause 8.5(b), unless otherwise expressly provided in the SOW, the Customer agrees to reimburse the Supplier for all expenses reasonably incurred by the Supplier in the performance of Services, including those specified in clauses 8.4(a), 8.4(b), and the SOW.

(b) The Supplier must obtain the Customer’s written approval before incurring any such expense, material or service exceeding the Approved Amount, or where there is no ‘Approved Amount’ specified in the SOW, then any amount exceeding $500.

8.6 Payment

The Customer will pay each invoice which is properly due and submitted to it by the Supplier, within 30 days of receipt, to a bank account nominated in writing by the Supplier (from time to time).

8.7 Failure to Pay

If the Customer fails to pay any amount payable by it under this Agreement, the Supplier may charge the Customer interest on the overdue amount from the due date up to the date of actual payment, after as well as before judgement, at the Interest Rate. Such interest will accrue on a daily basis and be compounded quarterly and the Customer will pay the interest immediately on demand. 

9 Cost Dispute

9.1 Omission or Error

If, in the Customer’s reasonable opinion, there is an omission or error in relation to a charge on an invoice, the Customer may, within 1 calendar month of the invoice date, dispute the invoice by giving written notice (Billing Dispute Notice) of a billing dispute to the Supplier. 

9.2 Billing Dispute Notice

The Billing Dispute Notice must, as a minimum, include the date and number of the disputed invoice, itemised details of the charges in dispute, detailed reasons for dispute and any documentation sufficient to support the Customer’s claim and to enable the Supplier to investigate it.

9.3 Investigation

(a) Upon receipt of a Billing Dispute Notice that complies with clause 9.2, the Supplier will assess the dispute and provide the Customer with its findings in relation to the dispute raised in the Billing Dispute Notice and, if the Supplier determines appropriate, a refund or credit note for all or part of the disputed invoice amount. If the Customer asks the Supplier to investigate a dispute using material provided by the Customer, the Customer must pay any third party costs reasonably incurred by the Supplier in evaluating such material if, following the investigation, the Supplier determines (acting reasonably) that the Customer’s dispute is not substantiated.

(b) If the Customer is not satisfied with the findings reached by the Supplier then the parties must seek to resolve the dispute in accordance with clause 19.

9.4 Payment Of Undisputed Amounts

The Customer must pay any undisputed amount invoiced to it under this Agreement by the invoice due date.

10 Intellectual Property Rights

10.1 No assignment

(a) The Supplier does not assign or transfer any Intellectual Property Rights nor any other rights in the products, goods or the Services (including the Deliverables). 

(b) Subject to clause 10.3(b), the Customer will retain all Intellectual Property Rights to any intellectual property owned by and made available by the Customer to the Supplier during the course of this Agreement.

10.2 Vesting

The Customer acknowledges that the Supplier will own all Intellectual Property Rights in the products, goods and the Services and also the techniques, processes and methods it has developed to deliver the Services. 

10.3 Licence

(a) The Supplier grants to the Customer, for the Term, a non-exclusive, non-transferrable, royalty-free, worldwide licence (which for the avoidance of doubt, is sub-licensable only to and amongst the Authorised Service Recipients, but to no other person) to use all Intellectual Property Rights in the products, goods, the Services (including the Deliverables) and the Supplier Materials but only to the extent required to use and receive the benefit of the Services and the Deliverables in accordance with this Agreement.  For the avoidance of doubt, the granting of this licence does not extend to the sale of or gift to or usage by any third parties of any Supplier Materials or any further exploitation other than as expressly specified in this clause 10.3(a).

(b) Without limiting clause 10.3(a), to the extent any software is to be provided by the Supplier under the SOW, the Supplier grants the Customer a non-exclusive, non-transferrable, royalty-free, worldwide licence (which for the avoidance of doubt, is sub-licensable only to and amongst the Authorised Service Recipients, but to no other person) to store, run and use the software in accordance with this Agreement. The Customer must not, and must procure that each Authorised Service Recipient and other member of the Customer Group does not, copy, sell, lease, alter, modify, adapt, translate, decompile, disassemble or reverse engineer the software or attempt to do any such thing.

(c) The Customer grants to the Supplier, for the Term, a non-exclusive, non-transferrable, royalty-free, worldwide licence to use the Customer Intellectual Property but only to the extent required to deliver the Services and perform its obligations under this Agreement. In this clause 10.3(c),
“Customer Intellectual Property” means any materials, document, data and Intellectual Property Rights that are owned, created, written or otherwise brought into existence by or on behalf of any member of the Customer Group, whether existing as at the date of this Agreement or produced thereafter, but for the avoidance of doubt, does not include any Supplier Materials.

11 Confidentiality 

11.1 Confidential Information

Other than as agreed in writing, where a Party (Receiving Party) receives any Confidential Information from the other Party (Disclosing Party) or on the Disclosing Party’s behalf, the Receiving Party will treat the Confidential Information as set out herein. 

11.2 Keep Confidential

The Receiving Party will:

(a) keep the Disclosing Party’s Confidential Information confidential; 

(b) not disclose the Disclosing Party’s Confidential Information to any person unless it obtains the prior written consent of the Disclosing Party;

(c) not use the Disclosing Party’s Confidential Information for any purpose other than for the provision of the Services.

11.3 Exceptions

The consent referred to in clause 11.2(b) will not be required for disclosure by the Receiving Party of the Disclosing Party’s Confidential Information where:

(a) the Confidential Information is disclosed to its employees, members, directors, agents and subcontractors, to the extent reasonably necessary for such persons to perform or support the performance of the Services, provided that such persons will be made aware by the relevant Receiving Party of its obligations under this Agreement and will be required by the relevant Receiving Party to observe substantially similar restrictions on the use of the Confidential Information as are to those contained in this clause 11;

(b) the Confidential Information was lawfully received from a third party without obligations of confidentiality, whether express or implied; 

(c) the Confidential Information becomes known in the public domain otherwise than by breach of this Agreement or other obligation of confidence owed to the Disclosing Party by the Receiving Party;

(d) it is necessary for the Receiving Party to disclose to its professional advisers who are bound to the relevant Receiving Party by a duty of confidence which applies to any information disclosed;

(e) it is required by applicable law or any regulatory body or pursuant to any order of court or any other competent authority or tribunal;

(f) the Receiving Party can prove that it lawfully possessed the Confidential Information prior to obtaining it from the Disclosing Party.

11.4 Legal Proceedings

Pursuant to clause 11.3(f), if the Receiving Party is required to disclose Confidential Information of the Disclosing Party as part of a judicial process, government investigation, legal proceedings or similar process, the Receiving Party will, to the extent permitted by applicable law, give prior written notice of such requirement to the Disclosing Party. The Receiving Party will use reasonable endeavours to provide such notice in sufficient time to allow the Disclosing Party to seek an appropriate confidentiality agreement, protective order or modification of any disclosure and the Receiving Party will provide reasonable assistance in such efforts.

11.5 Treatment

The Receiving Party will treat any Confidential Information provided as confidential and will afford such information the same level of security that it would afford its own work papers.  

11.6 Employees

The Supplier will restrict disclosure of such Confidential Information to such of its employees as need to know the same for the purpose of discharging the Supplier’s obligations to the Customer and will ensure that such employees are subject to obligations of confidentiality corresponding to those which bind the Supplier. 

11.7 Return & Destruction

The Receiving Party will promptly on request of the Disclosing Party:

(a) return to the Disclosing Party in an industry standard format;

(b) destroy (to the extent reasonably technically practicable) and confirm in writing to the Disclosing Party the destruction of; or 

(c) destroy and permit an employee, agent or individual contractor of the Disclosing Party to witness the destruction of,

(d) the Confidential Information disclosed by the Disclosing Party which is in the Receiving Party’s possession or control other than:

(e) one copy of any notes and/or other information that a Party is required to retain by either:

(i) in accordance with applicable law, or 

(ii) its own professional record keeping purposes; and

(f) information that the Client is required to disclose in order to comply with any of the obligations referred to in Clause 11.3(e),

(g) such Confidential Information to be kept in accordance with the confidentiality terms set out above and such right to retain will continue after expiry or termination of this Agreement for whatever reason.

11.8 Obligation on Termination

On expiry or termination of this Agreement, each Party agrees that:

(a) it will continue to keep confidential the other Party’s Confidential Information in accordance with this clause 11; and

(b) its rights to use and disclose the other Party’s Confidential Information will cease other than in relation to information any Party is required to disclose in order to comply with any obligations referred to in Clause 11.3(e).

11.9 Remedies

Without prejudice to any other rights or remedies of the Parties, each Party acknowledges that damages might not be an adequate remedy for any breach of the confidentiality provisions of this Agreement. Either Party may, without proof of special damage, seek the remedies of injunction and specific performance and any other equitable remedies to prevent any threatened or actual breach of the confidentiality provisions of this Agreement by the other Party.

12 DATA SECURITY AND PRIVACY

12.1 Security Measures

(a) The Supplier will put in place measures designed to ensure the security of Customer data, which will mean all data and information, in whatever form, provided to the Supplier by the Customer relating to the Customer, any Customer Group and any of their employees, contractors, agents, clients, partners, suppliers, joint ventures, advisors, financial institutions, counterparties, contacts or end users where such data is stored on the Supplier systems or under the Supplier control. 

(b) The Supplier must ensure that any premises and systems used by the Supplier for the creation and supply of the Deliverables and Services are reasonably secure.  

(c) To enable the Customer to review the security practices and management of the Supplier’s systems and premises, and to verify the Supplier’s compliance with its data security obligations under this Agreement, the Supplier will provide the Customer, on request, a copy of the annual independent audit report commissioned by the Supplier to assess its compliance with the requirements of ISO 270001 standard(s).

(d) The Supplier must:

(i) limit access to the Customer’s data to Supplier Personnel who need to have access to such data in order to perform the Services, and ensure that they do not remove the data when leaving an area where such access is available;

(ii) take all reasonable steps to maintain the security of the Customer’s data including by:

A. securing its physical facilities and data storage devices;

B. implementing authentication and access controls; 

C. implementing any other administrative, physical and technical safeguards to protect the data; and 

D. encrypting the data stored on any media, or transmitted over public or wireless networks;

(iii) ensure that the Customer’s data is only copied to the extent necessary to perform the Services, and ensure that all copies (including back-up copies) are maintained in accordance with the Customer’s policies and procedures; and

(iv) promptly investigate, and notify the Customer of, any suspected unusual or unauthorised activity relating to the Customer’s data or any other non-trivial security breaches.

(e) The Supplier acknowledges that any breach of this clause 12.1 is a material breach.

12.2 Breach of Security

If the Supplier becomes aware of a material breach or potential material breach of security that may affect the systems or data of the Customer, the Supplier must:

(a) promptly notify the Customer of the material breach or potential material breach of security and report the potential effect of such breach on the Customer;

(b) investigate and use commercially reasonable endeavours to remedy the breach (to the extent capable of remedy) to the Customer’s reasonable satisfaction and provide the Customer with regular updates during the investigative and remedial phase; 

(c) take reasonable commercial measures to ensure that the breach does not occur again; 

(d) except where otherwise required by law, not disclose to any third party the occurrence, existence or circumstances surrounding the breach of security, without the prior written approval of the Customer;

(e) except where otherwise required by law, not notify a third party of a breach of security under this clause 12.2 where the Customer provides notice to the Supplier that the Customer will notify that third party themselves; 

(f) retain system logs and other information that may be relevant to the breach of security, or to assessing the cause or impact of the breach of security;

(g) use its best endeavours to ensure that any potential breach does not become an actual breach;

(h) provide the Customer with a written report detailing the cause of, and procedure for correcting, the breach of security and mitigating its consequences;

(i) use its best endeavours to assist the Customer in identifying compromised Customer data; and

(j) promptly make such modifications to its systems and procedures as are reasonably necessary and reasonably practicable to minimise the risk that a breach of security of that nature will occur again, including by complying with any reasonable directions from the Customer, and keeping the Customer informed at all times of any actions that the Supplier takes or proposes to take under this clause 12.2. 

The Supplier acknowledges that a failure by the Supplier to comply with this clause 12.2 is a material breach of this Agreement.

12.3 Use of Personal Information

The Supplier must:

(a) use the Personal Information in compliance with all applicable laws and regulations;

(b) use the Personal Information only to the extent, and in such a manner, as is necessary for the purposes of providing the Services under this Agreement or as otherwise approved by the Customer, and will not use the Personal Information for any other purpose; and

(c) promptly comply with any request from the Customer to amend, update, transfer or delete the Personal Information.

The Supplier acknowledges that any breach of this clause 12.3 is a material breach.

12.4 Transfer of Personal Information

The Supplier will not transfer the Personal Information without the prior written consent of the Customer. Where the Customer consents to the transfer of the Personal Information, the Supplier will, where reasonably requested to do so by the Customer for legal or regulatory purposes. The Supplier acknowledges that any breach of this clause 12.4 is a material breach.

13 Termination

13.1 Termination by Notice

This Agreement may be terminated by either party on 90 days’ prior written notice to the other party, provided that a party may only give a notice of termination under this clause 13.1 during the Initial Term where that notice specifies that the Agreement will terminate at the end of the Initial Term. 

13.2 Termination for Default

Without prejudice to any other rights or remedies which the parties may have, either party may terminate this agreement immediately on giving written notice to the other if:

(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default at least 30 days after being notified in writing to make such payment; or

(b) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or

(d) the other party enters into liquidation or provisional liquidation or an order is made or a resolution is effectively passed for the winding up of the other party (except for the purpose of reconstruction or amalgamation with the prior written consent of the Lessor which consent must not be unreasonably withheld) or stops payment or is unable to pay its debts within the meaning of the Corporations Act 2001; or

(e) the other party fails or is deemed to have failed to comply with a statutory demand given to it pursuant to the Corporations Act 2001; or

(f) the other party makes an assignment for the benefit of or enters into an arrangement or composition with its creditors; or

(g) a receiver, a receiver and manager, an administrator or controller is appointed to the other party or the other party’s property or assets or any of them; or

(h) the other party takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation; or

(i) the other party becomes an insolvent under administration as defined in the Corporations Act 2001; or

(j) execution is levied against the other party and not discharged within thirty (30) days; or 

(k) the other party (being an individual) brings his or her estate within the operation of any law relating to bankrupts.

13.3 Implications of Termination

Upon termination of this Agreement, all fees for Services provided by the Supplier up to and including the date of termination will become immediately due and payable, including fees for all:

(a) goods and services acquired or ordered from a third party supplier based on the SOW; and

(b) all other relevant and reasonable costs incurred and invoices issued as at the date of termination in accordance with this Agreement.

13.4 Return of Information

On termination of this Agreement for any reason, the Supplier will make available to the Customer all copies of information and data provided by the Customer to the Supplier for the purposes of this Agreement. The Supplier will certify to the Customer that it has not retained any copies of such information or data, except for one copy which the Supplier may use for audit purposes only and subject to the confidentiality obligations in clause 11.

13.5 Survival

On termination of this Agreement (however arising) the accrued rights and liabilities of the parties as at termination, and the following clauses, will survive and continue in full force and effect:

(a) Clause 10 (Intellectual Property);

(b) Clause 11 (Confidentiality);

(c) Clause 12 (Data Security and Privacy);

(d) Clauses 13.3 to this clause 13.5 (both inclusive) (Termination); 

(e) Clause 14 (Limitations on liability);

(f) Clause 16 (GST);

(g) Clause 19 (Dispute resolution);

(h) Clause 20 (Notices);

(i) Clause 21 (Governing law and jurisdiction);

(j) Clause 22 (General provision); and

(k) any other provisions which are expressed to or, by their nature, survive expiry or termination of this Agreement, will survive expiry or termination of this Agreement.

14 Limitation of Liability

14.1 Implied terms exclusion

Subject to clause 14.2, any condition, representation or warranty that would be implied into this Agreement by any law is excluded, to the fullest extent permitted by law.

14.2 Statutory terms

This Agreement contains any condition, warranty or other term as an implied provision to the extent that its implication is compelled by any law, despite anything in this Agreement to contrary effect.

14.3 Statutory liability limitation

The Supplier does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified, or which cannot be excluded, restricted or modified except to a limited extent, as between the Supplier and the Customer by law, including liability under the Competition and Consumer Act 2010 (Cth). However, where such statutory provisions apply, to the extent the Supplier is entitled to do so, the liability of the Supplier for any default under any implied agreement compelled by any law is limited in the event of any default, in the decision of the Supplier:

(a) relating to any goods, to:

(i) replacement or the supply of equivalent goods;

(ii) rectification;

(iii) payment of replacement cost or the acquisition cost of equivalent goods; or

(iv) payment of rectification cost; and

(b) relating to any services, to:

(i) resupply of the services; or

(ii) payment of that resupply cost.

14.4 Cap on Liability

Notwithstanding any other provision of this Agreement, the Supplier’s liability under or in connection with this Agreement is limited to $1,000,000. 

14.5 No Consequential Loss 

(a) Notwithstanding any other provision in this Agreement, neither party is liable to the other party for any Consequential Loss in respect of any claim under or in connection with this Agreement.

(b) For the purposes of clause 14.5(a), “Consequential Loss” means, in respect of a party:

(i) any loss, damage or expense suffered by that party that cannot reasonably be considered to arise naturally from a breach or event, fact, matter or circumstance, or to have been in the contemplation of the parties at the time of entry into this Agreement as a probable result of a breach or event, fact, matter or circumstance; or

(ii) any and all special, indirect, exemplary or punitive Liabilities and any and all Liability relating to loss of profit, loss of goodwill, loss of production or loss of actual or potential business opportunity in relation to a breach or event, fact, matter or circumstance, even if such liability could reasonably be considered to arise naturally from that breach or the event, fact, matter or circumstance or could reasonably be considered to have been in the contemplation of the parties at the time the parties entered into this agreement as a probable result of that breach or the event, fact, matter or circumstance,

whether arising in contract, tort (including negligence) or equity or under statute.

15 Assignment 

15.1 Supplier

The Supplier may assign the whole or any part of this Agreement to any person, provided that the Supplier provides the Customer with written notice of such assignment no less than 45 days prior to the proposed date of the assignment.

15.2 Customer

The Customer may not transfer, assign, charge, mortgage or encumber any of its rights under this Agreement without the prior written consent of the Supplier, which may be granted or withheld at the Supplier’s discretion.

16 Goods and Services Tax

(a) Expressions set out in italics in this clause 16 bear the same meaning as those expressions in the GST Law.

(b) All monetary consideration paid or provided by one party to another for any supply made under or in connection with this Agreement (including any amount payable by way of indemnity, reimbursement, compensation or damages, but excluding any GST Amount payable under clause 16) (Payments) have been set or determined without regard to the impact of GST.

(c) Subject to clause 16(e), if the whole or any part of a Payment by a party (including amounts referred to in clause 16(d)) is the consideration for a taxable supply, the GST Amount in respect of the Payment must be paid to the supplier of the taxable supply as an additional amount, at the same time and in the same manner as the Payment is otherwise payable or as otherwise agreed in writing.

(d) If a Payment due under this Agreement is a reimbursement or indemnification by one party of an expense, loss or liability incurred or to be incurred by the other party, the Payment will exclude any GST forming part of the amount to be reimbursed or indemnified to the extent to which the other party can claim an input tax credit.

(e) A party’s obligation to make payment under clause 16(c) is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.

(f) Where the supplier has become subject to any penalties or interest because of a late payment by the supplier to the Australian Taxation Office of any GST Amount and that late payment is a result of the failure of the recipient to comply with the terms of this clause 16, the recipient must pay to the supplier an additional amount on demand equal to the amount of those penalties and interest.

(g) The recipient must indemnify the supplier on demand in respect of all loss or damage arising from a breach by the recipient of its obligations under this clause 16.

17 Force Majeure

17.1 Deferring Performance

Each party reserves the right to defer the date for performance of its obligations under this Agreement (other than an obligation to pay money) if it is prevented from, or delayed in, performing those obligations or carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lockouts or other industrial disputes (whether involving the workforce of the Customer or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction,  breakdown of plant or machinery, fire, flood, storm or default of suppliers (each being a Force Majeure Event). 

17.2 Termination

Each party reserves the right to terminate this Agreement in the event that a Force Majeure Event continues for more than 60 consecutive days. 

18 Additional Conditions

The parties agree to be bound by the Additional Conditions set out in the SOW.

19 Dispute Resolution

19.1 First stage

If a dispute arises between the parties in relation to any matter under this Agreement (except a question of law and any matter specified in this Agreement to be determined or resolved differently), the parties agree that they must use their best endeavours to resolve the dispute as follows:

(a) the Party seeking resolution of a dispute must give written notice of the dispute (including details of the dispute) to the other Party and each Party must use its best efforts to resolve the Dispute through mutual negotiation between a representative from each Party with authority to agree to a resolution of the Dispute (Authorised Officers) within 10 Business Days after that notice is given; and

(b) if within the period referred to in clause 19.1(a) the dispute is not resolved or the Parties do not meet as required by clause 19.1(a), either Party may refer the dispute for mediation under clause 19.2.

19.2 Mediation

The following applies in the case of any dispute referred for mediation under this clause 19:

(a) the dispute must be referred to the Australian Disputes Centre (ADC) for mediation; 

(b) the mediation will be in accordance with the ADC commercial mediation guidelines applicable at the time of referral to the ADC (ADC Guidelines) and will include the procedures to be adopted, the process of selection of the mediator and the costs involved;

(c) the terms of the ADC Guidelines are deemed to be incorporated into this Agreement; and

(d) mediation does not limit a party’s right to seek an order from a competent court or tribunal.

20 Notices

20.1 Form

Any notice to or by a party under this Agreement will be in writing and signed by the sender or the sender’s solicitor, or  if a corporate party, an authorised officer of the sender or under the seal of or any power of attorney conferred by the sender or the sender’s solicitor.

20.2 Service method

Any notice may be served by delivery in person or by post or by email (if specified in the SOW or this Agreement) to the address of the recipient specified in this provision or this Agreement, or most recently notified by the recipient to the sender.

20.3 Receipt

Any notice will be effective and deemed to have been delivered for the purposes of this Agreement:

(a) if delivered personally, at the time of delivery;

(b) if sent by email, upon receipt by the recipient email server (even if received or categorised or filtered as unwanted email or spam), unless the sender receives an automated notice that delivery has failed; and

(c) if sent by post, on the second day (if posted within Australia) or seventh day (if posted outside Australia) after the day of posting, 

but if delivery or receipt is on a day which is not a business day in the place in which the notice was delivered or sent or is after 4.00 pm local time on such business day, notice will be deemed to have been delivered as at 9.00 am on the next business day.

20.4 Service details

Details initially specified for service of notice are set out in the Reference Schedule.

21 Governing law and jurisdiction

21.1 Governing law

This Agreement will be governed by and construed under the law of the Jurisdiction.

21.2 Jurisdiction

Any legal action in relation to this Agreement against any party or its property may be brought in any court of competent jurisdiction in the Jurisdiction.

21.3 Submission

Each party by execution of this Agreement irrevocably, generally and unconditionally submits to the non-exclusive jurisdiction of any court specified in this provision in relation to both itself and its property.

22 General provision

22.1 Relationship

Nothing in this Agreement is intended to, or will operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party will have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

22.2 Subcontracting

The Supplier may subcontract or otherwise arrange, wholly or partially, for the Services to be performed by any other person with the consent of the Customer, which will not be unreasonably withheld.

22.3 Amendments

Any amendment of this Agreement will have no force or effect, unless effected by a document executed by the parties.

22.4 Third Parties

This Agreement will confer rights only upon a person expressed to be a party, and not upon any other person.

22.5 Pre-contractual negotiation

This Agreement (including the SOW):

(a) expresses and incorporates the entire agreement between the parties in relation to its subject-matter, and all the terms of that agreement; and

(b) supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties in relation to that subject-matter or any term of that agreement.

22.6 Further assurance

Each party will execute any document and perform any action necessary to give full effect to this Agreement, whether prior or subsequent to performance of this Agreement.

22.7 Continuing performance

(a) The provisions of this Agreement will not merge with any action performed or document executed by any party for the purposes of performance of this Agreement.

(b) Any representation in this Agreement will survive the execution of any document for the purposes of, and continue subsequent to, performance of this Agreement.

(c) Any indemnity agreed by any party under this Agreement will:

(i) constitute an obligation of that party separate and independent from any other liability of that party under this Agreement or any other agreement; and

(ii) survive and continue subsequent to performance of this Agreement

22.8 Waivers

Any failure or delay by any party to exercise any right under this Agreement will not operate as a waiver and the single or partial exercise of any right by that party will not preclude any other or further exercise of that or any other right by that party.

22.9 Remedies

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

22.10 Severability

Any provision of this Agreement which is invalid in any jurisdiction will be ineffective in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

22.11 Counterparts

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

23 Supplier Indemnities 

The Supplier indemnifies the Customer from and against any and all liabilities, losses, damages, costs and expenses suffered or incurred by the Customer in connection with:

(a) a contravention of any applicable law by the Supplier or its personnel, or by the Customer as a result of an act or omission of the Supplier or its personnel;

(b) a claim by a third party that the Services, Deliverables, the provision of the Services or the Deliverables by the Supplier or the receipt or use of the Services or the Deliverables by the Customer, infringes the Intellectual Property Rights of a third party; 

(c) the Supplier’s breach of its obligations under clause 11 (confidentiality), clause 12.1 (data security ) (other than clause 12.1(d)(iv)) or clause 12.3 or 12.4 (personal information) of this Agreement; and

(d) any gross negligence, fraud, misrepresentation, unlawful act or omission, or wilful misconduct by the Supplier in connection with this Agreement.