TERMS AND CONDITIONS
1. Definitions: In this Agreement: Additional Fees means the amount/s described in the Quote; Affiliate in relation to a party, means any entity: (a) that controls the party; (b) that is controlled by the party; or (c) that is controlled by an entity that also controls the party, where "control" includes direct or indirect control, and Affiliate includes any subsidiary, holding company or operating division of the party from time to time; Agreement means this document including the Quote and all the schedules to this Agreement; Australian Consumer Law means the Australian Consumer Laws set out in the Competition and Consumer Act 2010 (Cth); Client means the party set out in the Quote; Confidential Information means in relation to each party (for the purposes of this definition, the Discloser) (a) the terms of this Agreement (including the Fees); (b) all information relating to or used by the Discloser or any of its Affiliates, including know-how, trade secrets, ideas, marketing strategies and operational information; and (c) all information concerning the business affairs (including products, services, customers and suppliers) or property of the Discloser or any of its Affiliates, including any business, property or transaction in which the Discloser or any other member of its group may be or may have been concerned or interested in, but excluding any information (i) which is publicly known; (ii) which is disclosed to the other party without restriction by a third party and without any breach of confidentiality by the third party; or (iii) which is developed independently by the other party without reliance on any of the Discloser's Confidential Information; CTS Cap means an amount equal to half (being 50%) the total Fees (excluding GST) invoiced and paid during the previous 12 months of this Agreement, or if the Agreement has been operating for less than 12 months, that period; CTS means Corporate Technology Services Pty Ltd, ABN 28 121 567 995; CTS Manual means the CTS handbook manual owned and created by CTS prior to and/or during the Term of this Agreement; Fee/s means the Standard Fees and and Additional Fees as set out in the Quote; Further Term means the period described in the Quote; GST and GST Law mean the goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth); Initial Term means the period described in the Quote; Intellectual Property Rights means all rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world; Interest Rate means 5%, on the full amount owing from the date payment became due, calculated daily until the date of full and final payment; Introduction Fee means a fee of 18% of the salary of the hired personnel or $15,000 plus GST, whichever is lower; Personnel includes any natural person or company or independent contractor that a party to this Agreement employs or engages and whom a party comes into direct contact with in the course of the provision of the Services (whether or not such personnel are Staff providing the Services); Post Term Period means 12 months from the end of the Term; Quote means a CTS quotation for the supply of particular Services containing details as specified in clause 2.1; Relevant Period means the Term and the Post Term Period following the conclusion of the Term; Services means the services described in the Quote, as amended from time to time in accordance with this Agreement; Staff means employees, contractors, Personnel, and/or sub-contractors of a party to this Agreement; Standard Fees means the amount/s described in the Quote; Term means the Initial Term together with any applicable Further Term; Work Product(s) means all papers, documents, memos, letters, databases, drawings, source code, object code, data dictionaries, user manuals, handbooks, data or other deliverables, or other printed, written or computer material created by CTS and/or Staff in connection with the provision of the Services.
2. Acceptance, SERVICES & Quotes
2.1 Acceptance and the Provision of Services:: The Client accepts the terms of this Agreement when: (a) the Client accepts a Quote; (b) the Client accepts the Services or any part of, the Services of a Quote; or (c) the Client make a payment, or partial payment, of any amount relating to or for any Services supplied by CTS, whichever occurs first. The Services to be provided by CTS are as set out in the Quote.
2.2 Quotes and Orders: The Client may request a Quote from CTS relating to the potential supply of Services. CTS may provide the Client a Quote for the potential supply of Services. The Quote will include the price and the Services proposed to be supplied by CTS and other relevant details. A Quote is valid for 30 days only. CTS reserve the right to withdraw a Quote at any time before the Client accepts the Quote. If the CTS Quote is acceptable, the Client may place an order for the supply of Services by accepting the Quote. Unless otherwise agreed by CTS in writing, the terms of this Agreement will prevail over, and CTS will not be bound by, any conditions (express or implied) added or provided by the Client.
2.3 Provision of Staff: (a) CTS shall provide Staff to perform the Services; (b) CTS shall ensure that all Staff are suitably qualified and skilled for the performance of the Services and shall be solely responsible for ensuring its Staff's full compliance with all relevant terms and conditions of this Agreement; (c) any specific Client equipment training or other equipment related training that is necessary or required in order to provide the Services will be covered under the hours for the Services (the Client is responsible for co-ordinating this for primary and any secondary support Staff).
2.4 Access to Site: (a) the Client shall ensure that at all times it maintains a safe workplace, complies with all applicable occupational health and safety laws and provides appropriate information to CTS's Staff to ensure their health and safety while such Staff are required to perform the Services at sites owned or controlled by the Client.
2.5 Non-solicitation of Staff during Relevant Period: (a) each party must not, without the prior written consent of the other party, attempt, or otherwise take any steps to employ or engage the services of the other party’s Staff (whether directly, or through a third party) during the Relevant Period and other than as set out below in the remainder of this clause 2.5; (b) where, during the Relevant Period, a party wishes to employ or engage, and/or employs or engages any of the other party’s Staff (including where a party procures a third party to approach, employ and/or engage any of the other party’s Staff), that party must (i) notify the other party of any intent to offer employment or an engagement; and (ii) if consent is given and the relevant Staff member accepts the offer of employment or engagement, pay to the other party an Introduction Fee, within 30 days of receipt of an invoice listing the relevant Introduction Fee. Each party warrants that, notwithstanding any matter set out in this clause 2.5, it will not take any intentional steps to induce, conspire with or otherwise encourage the other party’s Staff to breach any contractual obligation owed to the other party by such Staff.
3. FEES And PAYMENT
3.1 Fees : In consideration for the Services provided by CTS, the Client must pay to CTS the Fees set out in the applicable Quote.
3.2 GST: Unless otherwise agreed, prices with respect to any taxable supply are exclusive of GST. The Client is liable for and must pay to CTS all taxes including GST, in addition to any other amounts payable by the Client in respect of the Services.
3.3 Payment: (a) all sums due to CTS under this Agreement must be paid by the Client in accordance with the terms of a Quote, as agreed in writing by the parties or otherwise within 30 days of the Client's receipt of a correct, valid and properly rendered invoice from CTS; (b) payments shall be made by direct bank transfer to CTS' nominated bank account; (c) any applicable discounts applied to a Quote or the Fees will only be valid and applicable if the Client pays the Fees inaccordance with the terms of a Quote, or as agreed in writing by the parties or otherwise within 30 days of the Client's receipt of an invoice from CTS; (d) If invoices remain unpaid 90 days after the due date (as set out in the relevant invoice), interest is payable by the Client to CTS on any overdue invoice/s at the Interest Rate. CTS may, at its sole discretion, suspend further performance of the Services for any non-compliance with this clause 3.3.
4. TERM AND TERMINATION
4.1 Either party shall be entitled to terminate this Agreement immediately upon written notice to the other party in the event that (a) the other party commits a breach of this Agreement which breach is not capable of remedy, or which breach (if capable of remedy) is not remedied within 30 days after the service of written notice by the non-defaulting party requiring the defaulting party to remedy the breach; (b) a Force Majeure Event continues for more than 14 days; or (c) the other party commits an act of bankruptcy or insolvency, or in the reasonable opinion of the other party, it is unable to pay its debts as and when they fall due.
4.2 If the Client terminates this Agreement other than as permitted under clause 4.1 or as agreed in writing by the parties. the Client must, without prejudice to any other rights or remedies CTS may have, pay to CTS an amount equal to the minimum Fees that would have been payable by the Client during the remainder of the Term of the Agreement had the Agreement not been terminated.
4.3 Termination of this Agreement shall not affect the accrued rights and remedies of either party in relation to any default of the other party prior to such termination or the survival of any other provision of this Agreement which are expressly or by implication intended to survive termination.
4.4 Following expiration or termination of this Agreement for any reason (a) any and all amounts owing by the Client to CTS will become immediately due and payable; (b) CTS may immediately cease providing the Services, or may cease providing the Services from such other date as may be agreed by the parties in writing; and (c) each party shall immediately, and in any event, within 7 days from the other party's request, return or delete all materials and copies (whether in hard or electronic format) relating to the Confidential Information provided by the other party to the first party under this Agreement, except that the Client may retain a single copy of all materials and Confidential Information in order to comply with its professional obligations and statutory record keeping requirements.
5. INTELLECTUAL PROPERTY
5.1 Pre-Existing Intellectual Property: (a) each party shall retain ownership of its Intellectual Property Rights existing at the Commencement Date; (b) The Client grants to CTS a royalty free, non-exclusive license to use, modify and copy (and to permit the Sub-contractors to use, modify and copy) the Client's pre-existing Intellectual Property Rights (including intellectual property licensed by the Client from third parties), solely to the extent necessary for the purposes of providing the Services; (c) in the case of any intellectual property licensed from a third party, the Client warrants that it has obtained any necessary authority, permission or licence from the relevant third party in order to grant the above sub-license; (d) the Client acknowledges that CTS is the owner of all Intellectual Property Rights in the CTS Manual.
5.2 Intellectual Property in Work Products: The Client acknowledges that CTS is the owner of all Intellectual Property Rights in Work Products, except as set out in clause 5.2. The Client must take such steps as are reasonably necessary to protect CTS's Intellectual Property Rights in Work Products, including by treating Work Products as Confidential Information if appropriate. CTS grants to the Client a worldwide, royalty-free, fully paid up, perpetual, non-exclusive, transferable right and licence (with the right to sub-license) to copy, modify and use Work Products solely for the Client's business purposes. If CTS develops any Work Products specifically for the Client and/or containing the Client's Intellectual Property Rights and the Client has paid CTS, in full, for its Services in developing those Work Products, the Client shall own any Intellectual Property Rights in such Work Products (Client Work Products) and the Client grants CTS a worldwide, royalty-free, fully paid up, perpetual, non-exclusive, transferable right and licence to copy, modify and use the Client Work Products solely for CTS's business purposes.
6. CONFIDENTIALITY AND PRIVACY:
6.1 Each party must not, during the Term of the Agreement and for 5 years after the end of the Term, disclose to any third party any Confidential Information, either directly or indirectly, and must keep the Confidential Information of the other party secure and protect such Confidential Information from unauthorised access and/or use. Both parties undertake to disclose Confidential Information only (a) to those of its Staff and Personnel to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement, and to procure that such Staff and Personnel observe the terms of the confidentiality obligations set out in this clause 6; or (b) where required by law.
6.2 The parties will: (a) use any personal information obtained or collected under this Agreement, only for the purposes of performing its obligations under this Agreement; (b) not disclose any personal information without the prior written consent of the other party; and (c) comply with the Privacy Act 1988 (Cth).
7.1 Except as expressly provided in this Agreement, and to the full extent permitted by law, CTS is not liable to the Client for any loss or damage, except to the extent that such loss or damage arises as a result of CTS' or its Staff's negligence or wilful misconduct.
7.2 Notwithstanding any other clause of this Agreement, and subject to the provisions of the Australian Consumer Law, neither party shall be liable to the other for any indirect or consequential loss, or loss of profit.
7.3 Subject to clause 7.2 and notwithstanding any other clause in this Agreement, and to the extent permitted by law, the aggregate liability of CTS to the Client for all loss, damages or claims arising out of or in connection with this Agreement, whether in contract, tort (including negligence), indemnity, breach of warranty or otherwise is limited to the CTS Cap.
8. INSURANCE: CTS shall, obtain and maintain throughout the Term of this Agreement the following insurances (a) public liability insurance in an amount of A$20 million; (b) professional indemnity insurance in the amount of A$10 million; and (c) any other insurance required by law. CTS will provide the Client with a copy of current certificates of currency on request.
9. DISPUTE RESOLUTION: Each party must not commence any court or arbitration proceedings if a dispute arises under this Agreement unless it has first complied with this clause 9 in the following order: (a) the dispute must be referred to the party's contract manager who will give written notice to the other party's contract manager, specifying the nature of the dispute; (b) on receipt of written notice by the other party under clause 9), the parties' respective contract managers will attempt in good faith to resolve such dispute as soon as possible. Nothing in this clause 9 affects or limits or is intended to affect or limit the rights of a Party to seek or obtain urgent interlocutory, interim or equitable relief.
10. AMENDMENTS: The terms of this agreement can only be varied by mutual written agreement of both parties.
11. ASSIGNMENT: Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent cannot be unreasonably withheld.
12. Entire Agreement: This Agreement (including the Quote and any schedules) constitutes the entire agreement between the parties and supersedes all prior communications, representations and agreements in connection with the Services.
13. Survival: Clauses 1, 2.5, 3, 4, 5, 6, 7, 9 to 14 survive if this Agreement ends for any reason.
14. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws and courts of New South Wales.