Terms of Service

Milnsbridge IT Voice & Data Pty Ltd (ABN 70 099 539 009), trading as Milnsbridge Managed IT Services

1. Agreement

These Procurement Terms and Conditions together with the attached Proposal (collectively, the Agreement) set out the terms and conditions which govern the provision of the Services by Supplier to Customer. If there is an inconsistency between the various parts of the Agreement, the following order of precedence will apply to the extent of the inconsistency:

1. the Proposal; and
2. these Terms and Conditions.

2. Term

This Agreement commences on the Proposal Commencement Date and continues:

1. for the procurement of Hardware or Software, until the later of the date the relevant invoice is issued and paid, and the date the Hardware or Software is delivered to Customer in accordance with this Agreement; or
2. for Project Based Work, until the expiry of the delivery period specified in the Proposal (unless a later date is agreed by the parties in writing); or
3. for all other Services, for the duration of the Services as set out in the Proposal,

unless it is terminated in accordance with clause 14 (the Term).

3. Provision of Services

Supplier will:

1. use the reasonable care and skill that can be expected from a competent service provider in providing the Services to Customer; and
2. retain sufficient and appropriately qualified and experienced Personnel to provide the Services.

Customer acknowledges and agrees that:

1. the Services or components of the Services may be performed via third parties;
2. outages, performance degradations or unavailability attributable to such third parties are beyond the control of Supplier and may impact Supplier's ability to provide the Services; and
3. Supplier will take all reasonable steps to ensure that such third parties comply with the availability requirements of this Agreement.

4. Software and Equipment

4.1 Customer Equipment

Subject to any negligent act or omission of Supplier and to the extent permitted by any applicable Laws, Customer remains solely responsible and liable for its access and use of its own equipment and software (Customer Equipment) and indemnifies Supplier against all Claims, losses, liabilities, damage and injury incurred by Customer, Supplier or any third party by or as a result of use of such Customer Equipment.

4.2 Procurement and Sale of Hardware

This clause applies to the extent Supplier supplies Hardware to Customer under the Proposal. The supply of Hardware is independent of the provision of Services and must be specified in the Proposal.

1. Supplier will use all reasonable endeavours to dispatch Hardware by the due date, but does not accept any liability for non-delivery or failure to deliver on time (or at all) where this is caused by circumstances beyond the reasonable control of Supplier, including, for example, due to failures in supply to Supplier or delays caused by Customer or third parties, such as delivery companies or manufacturers. Customer must be available to accept the Hardware at Customer's nominated delivery address during Business Hours unless otherwise arranged.
2. Risk in the Hardware passes to Customer immediately on delivery of Hardware to the Site, and title to the Hardware passes to Customer when the Fees have been paid in full to Supplier. Customer must pay the Fees in respect of the Hardware in advance and prior to delivery, unless otherwise agreed in the Proposal.
3. Customer must not do anything to affect ownership of the Hardware unless or until title has passed to Customer.
4. Subject to the payment of the applicable Fees, where Customer requests installation of the Hardware, Supplier agrees to ensure the Hardware is installed and operational, in accordance with the Operating Manuals, at the Site and to install the Hardware on or before the installation date agreed between the Parties during Customer's normal business hours.
5. Customer will sign a Delivery Docket upon installation of the Hardware as confirmation that Customer has accepted delivery and installation of the Hardware. If the Delivery Docket is not signed, the Hardware will be deemed to have been accepted by Customer within five (5) Business Days of installation of the Hardware.
6. Subject to clause 12, Customer acknowledges and agrees that Supplier makes no representations and gives no warranties in respect of Hardware, including that the Hardware is fit for any particular purpose.

4.3 Procurement and Sale of Software

This clause applies to the extent Supplier supplies Software to Customer under the Proposal. The supply of Software is independent of the provision of Services and must be specified in the Proposal.

1. Unless otherwise agreed in the Proposal, Customer must pay the Fees in respect of the Software in advance and prior to delivery.
2. Risk in the Software passes to the Customer immediately on delivery of the Software in accordance with the Proposal, and the licences to the Software pass to Customer when the Fees have been paid in full to Supplier.
3. Customer acknowledges and agrees that:
   1. its access to and use of such Software are governed by the Third Party Terms between Customer and the Third Party Supplier and Customer is solely responsible for its compliance with such Third Party Terms;
   2. Supplier makes no representations and gives no warranties in respect of Software, including that the Software is fit for any particular purpose; and
   3. all warranty claims in relation to the Software are managed directly by the relevant Third Party Supplier.

5. Project Based Work

1. This clause applies to the extent that Customer requests project based work, including new hardware, general hardware installation, data migrations and company relocations, in the Proposal (Project Based Work).
2. Where specified in the Proposal, Supplier will provide the Project Based Work to the Customer.
3. Project Based Work will be charged on either a time and materials basis in accordance with the Supplier's then current time and materials rates, or on a fixed fee basis as specified in the Proposal.

6. Third Party Products and Services

1. This clause applies to the extent that Customer purchases Third Party Products and Services in connection with this Agreement. The supply of Third Party Products and Services is independent of the provision of Services and must be specified in the Proposal.
2. Where Supplier procures Third Party Products and Services for or on behalf of Customer, Customer acknowledges and agrees that its access to and use of such Third Party Products and Services are governed by the Third Party Terms between Customer and the Third Party Supplier and Customer is solely responsible for its compliance with such Third Party Terms.
3. Subject to clause 12, Customer acknowledges and agrees that Supplier makes no representations and gives no warranties in respect of the Third Party Products and Services, including that:
   1. the Third Party Products and Services are fit for any particular purpose; or
   2. the Third Party Products and Services will be effective in protecting Customer from, or preventing, Cyber Breaches or eliminating the risk of Cyber Breaches entirely.

7. Customer Obligations

7.1 General

Customer agrees and undertakes to:

1. do all things necessary to enable Supplier to perform its obligations under this Agreement including performing any works, providing any equipment or connecting any services as reasonably required by Supplier from time to time;
2. provide Supplier and its Personnel with access to the Site and Customer's Personnel as and when reasonably requested by Supplier;
3. provide Supplier and its Personnel with access to the Customer Environment as reasonably required by the Supplier to perform its obligations under this Agreement;
4. comply with all Laws applicable to the Site including workplace occupational health and safety laws; and
5. provide Supplier with all information and documentation as reasonably requested by, or as otherwise necessary for Supplier.

Customer acknowledges and agrees that:

1. Supplier retains sole discretion and authority regarding the Services, installation of Hardware and Project Based Work; and
2. any failure or delay in performing its obligations under this clause 7 entitles Supplier, without liability to Customer, to:
   1. a reasonable extension of timeframe to perform its obligations affected by such failure or delay by Customer, which may include rescheduling of the Services or Project Based Work; or
   2. the Supplier issuing a revised Proposal or variation to reflect any increased costs, resource requirements, or changes in scope to the Services.

7.2 Site and Access Requirements

Customer must:

1. at its own expense and in accordance with the reasonable directions and specifications of Supplier and its suppliers, prepare and provide access to the Site prior to the supply of the Services;
2. ensure that the Site is maintained in good working repair and condition;
3. ensure the supply of adequate electric current and electrical and mechanical fittings at the Site;
4. ensure existing building connection frames, cables and sockets are in good working order; and
5. allow Supplier Personnel to access its Site, facilities and specified equipment to perform its obligations under this Agreement, as and when reasonably requested by Supplier.

7.3 Faults

1. To the extent that Customer requires additional assistance in relation to Services outside the scope of a Proposal, Supplier will charge the Customer on a time and materials basis at its then current rates.
2. Customer must promptly notify Supplier in writing of any Faults within 90 days of receiving the relevant Services.
3. Supplier is not obliged to correct any Fault if, in Supplier's reasonable opinion, the Fault:
   1. does not result in the performance of the affected part of the Services substantially deviating from its intended purpose;
   2. is the result of any unauthorised alterations, additions or modifications to the Services by persons other than Supplier or its Personnel;
   3. is the result of the Services being used in combination with equipment, programs or services other than those which Customer specifically informed Supplier would be used;
   4. arises from the presence of any virus, malware, malicious code, error or bug not attributable to the acts or omissions of Supplier or its Personnel;
   5. arises from any problem in any underlying or third party software as part of the Customer's Environment; or
   6. arises from the Customer or its Personnel failing to follow any reasonable instructions provided by Supplier.
4. Nothing in this clause limits Supplier's obligations under clause 12.1.

8. Fees and Payment

8.1 Fees

1. Customer will pay the Fees which are specified and invoiced by Supplier in accordance with the Proposal.
2. During the Term, Supplier may increase the Fees on seven (7) days written notice to Customer as follows:
   1. following any increase in the costs of providing the Services as result of any change or increase in costs passed on by any third party suppliers; and
   2. following any material increase in the costs of providing the Services as a result of any change or increase in the costs of labour, insurance or such other internal cost to Supplier.

8.2 Invoicing and Payment

1. Supplier will issue invoices for the Fees in accordance with the Proposal and Customer must pay all undisputed invoices on the specified payment term of each invoice, unless otherwise specified in the Proposal.
2. Unless otherwise specified in a Proposal or notified by Supplier in writing, Supplier will invoice Fees for:
   1. fixed or recurring charges and Hardware in advance;
   2. usage charges (or other variable charges) in arrears;
   3. milestone payments of 50%, 40% and 10% of the Fees for Project Based Work, as specified on the invoice;
   4. Software in advance; and
   5. installation charges in advance or split in accordance with the milestone payments for Project Based Work outlined at clause 8.2(b)(iii).
3. If Customer fails to pay any Fees by the due date, Supplier may charge interest at the Interest Rate on the outstanding Fees or any other monies due and unpaid by Customer, until such time as Customer has paid in full, the outstanding amount and any interest accrued on the outstanding amount, and Customer will pay to Supplier any reasonable costs incurred by Supplier in relation to collection of any amounts owing.

8.3 Taxes

The Fees are exclusive of GST, and where applicable, GST and other taxes, duties or levies will be added to the Fees payable at the then prevailing rate.

8.4 Credit

1. Supplier, in its reasonable discretion may offer Customer the opportunity to submit a Customer Credit Application from time to time.
2. Customer acknowledges and agrees that:
   1. Supplier has sole discretion (acting reasonably) to determine whether credit is granted to Customer on the terms of the Customer Credit Application;
   2. grant of credit is independent of the provision of the Services under the Agreement; and
   3. Supplier can revoke credit under the terms of the Customer Credit Application by providing seven (7) days written notice if the Customer does not pay any Fees by the due date.

9. Intellectual Property Rights

1. Customer acknowledges that Supplier and its licensors own or are entitled to all right, title to and interest including all Intellectual Property Rights in the Services, including any Software and any documentation supplied by Supplier to Customer in connection with the Services (including quotes, scope of work proposals and bills of materials).
2. Nothing in this Agreement transfers ownership of the Supplier's Intellectual Property Rights subsisting in the Services, Software and related documentation except as expressly permitted by the terms of this Agreement.
3. For the avoidance of doubt, Customer must not use, reproduce, distribute, transmit, modify, or otherwise exploit in any form Supplier's Intellectual Property Rights subsisting in the Services and related documentation without the prior written consent of the Supplier.
4. Customer grants to Supplier a non-exclusive, royalty-free licence during the Term to use (and allow its authorised Personnel to use) any Intellectual Property Rights in any materials supplied by the Customer (including the Customer Data) solely for the purpose of Supplier performing its obligations under this Agreement.

10. Privacy

10.1 Personal Information

1. If the performance of rights and obligations under this Agreement involves the handling of any Personal Information, then each Party must:
   1. comply with all applicable provisions of the Privacy Act; and
   2. use the Personal Information only for the purposes of performing its obligations under this Agreement.
2. Without limiting Supplier's obligations under clause 10.1(a):
   1. Customer consents to Supplier using Customer's details for future marketing purposes, including to send Customer information about Supplier's promotions, products and services;
   2. Customer consents to Supplier disclosing information relating to the Customer to Third Party Suppliers for the purpose of procuring Third Party Products and Services where specified under a Proposal; and
   3. Supplier will otherwise handle Personal Information it collects in connection with this Agreement in accordance with its Privacy Policy available at https://stg-milnsbridgeprod-staging.kinsta.cloud/privacy-policy/.

10.2 Eligible Data Breach

Promptly, and no later than 7 days upon becoming aware of an actual or suspected Cyber Breach, in relation to the Customer Environment, Customer will:

1. immediately investigate, or procure the investigation of, the Cyber Breach;
2. assess if the Cyber Breach constitutes an Eligible Data Breach and notify Supplier of the following:
   1. the reasons why Customer considers that a reasonable person would or would not conclude that the Cyber Breach is an Eligible Data Breach;
   2. whether Customer will make any statements to the affected individuals and the Office of the Australian Information Commissioner; and
   3. where there are reasonable grounds to conclude that the Cyber Breach constitutes an Eligible Data Breach, that Customer will prepare statements in accordance with section 26WK of Part IIIC of the Privacy Act and make statements to the affected individuals and the Office of the Australian Information Commissioner to notify them of the Cyber Breach; and
3. otherwise take full responsibility for complying with its own obligations under the Privacy Act with respect to a Cyber Breach and/or Eligible Data Breach.

10.3 Credit

1. Customer acknowledges and agrees that Supplier may:
   1. use information (which may include Personal Information) for the purpose of assessing Customer's creditworthiness, including to contact any trade references, as part of Customer's Credit Application, or for collecting overdue payments; and
   2. obtaining information (which may include Personal Information) from, and disclosing information to, credit providers and credit reporting bodies in relation to a Customer's Credit Application, including to obtain a credit report or recover overdue payments.
2. Customer warrants that it has procured the consent of its relevant Personnel and trade references to disclose their Personal Information to Supplier for the purposes described under clause 10.3(a).

11. Confidentiality

11.1 Treatment of Confidential Information

Each Party acknowledges that the Confidential Information of the other Party is valuable to the other Party. Each Party undertakes to keep the Confidential Information of the other Party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other Party.

11.2 Use of Confidential Information

A Recipient may only use the Confidential Information of the Discloser for the purposes of performing the Recipient's obligations or exercising the Recipient's rights under this Agreement. Customer acknowledges and agrees that Supplier may disclose Customer's Confidential Information to Third Party Suppliers for the purpose of providing the Services.

11.3 Disclosure of Confidential Information

A Recipient may not disclose Confidential Information of the Discloser to any person except:

1. representatives, legal advisers, auditors and other consultants of the Recipient who require it for the purposes of performing its obligations or exercising its rights under this Agreement and then only on a need to know basis; or
2. if required to do so by Law or a stock exchange.

11.4 Return of Confidential Information

Upon the expiry or termination of this Agreement, the Recipient must promptly deliver to the Discloser all documents or other materials containing or referring to the Discloser's Confidential Information which are in the Recipient's possession, power or control or in the possession power or control of persons who have received the Confidential Information from the Recipient under clause 11.3.

11.5 Publicity

Neither Party may, without the written consent of the other:

1. make any public announcement regarding this Agreement or the Services; or
2. use the name, logo or trademark of the other, or the name of the other Party's Personnel.

12. Warranties

12.1 Supplier Warranties

1. Supplier's goods and services come with guarantees that cannot be excluded under the Australian Consumer Law.
2. Customer is also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, Customer is entitled to have the failure rectified in a reasonable time. If this is not done Customer is entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
3. Supplier warrants that Services do not infringe the Intellectual Property Rights of a third party.
4. To the extent permitted by Law and subject to this clause 12, Supplier excludes all conditions, warranties and terms not expressly set out in this Agreement. Where applicable Law provides any consumer guarantee, condition or warranty which cannot be excluded, Supplier's liability for any breach of such consumer guarantee, condition or warranty will be limited to the extent permitted by applicable Law to, at its option to the provision of the entitlements set out in clauses 12.1(a) or 12.1(b).

12.2 Customer Warranties

Customer warrants that:

1. it owns the rights or has the right to use any software, hardware, systems, IP addresses, domain names and all other items in the Customer Environment; and
2. where applicable, it has the right to licence or sublicence to Supplier the right to use any applicable software or other items supplied by Customer, including in the Customer Environment, solely for the purpose of Supplier performing its obligations under this Agreement.

13. Liability

13.1 Limitation on Liability

To the extent permitted by Law, Supplier's total aggregate liability whether in tort (including negligence), contract, breach of statutory duty, misrepresentation, restitution or otherwise, excluding liability for any Hardware and Third Party Products and Services Fees, is limited to the Fees paid under this Agreement.

13.2 No Consequential Loss

To the extent permitted by law, neither Party is liable whether in tort (including for negligence), contract, breach of statutory duty, misrepresentation, restitution or otherwise for indirect loss of profits, loss of business, depletion of goodwill, loss or corruption of data or information (including as a result of any reboot or restart of a server or storage device within the Customer Environment), or pure economic loss, or for any other special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.

13.3 Proportionate Liability

A Party's liability under this Agreement will be reduced to the extent that the other Party caused or contributed to the relevant liability or the act giving rise to the liability.

13.4 Avoiding or Minimising Loss

A Party which incurs a loss under this Agreement must take reasonable steps to avoid or minimise the loss.

13.5 Indemnity

To the extent permitted by Law, Customer indemnifies Supplier, and will keep Supplier indemnified, from and against any Claims that Supplier suffers, incurs or is liable for, whether or not contemplated by the Parties, as a result of any:

1. loss of, or damage to, any property caused by any act or omission of Customer or Customer's Personnel, including through negligence;
2. personal injury (including sickness or death) caused by an act or omission of Customer or Customer's Personnel, including through negligence; and
3. fraud, criminal offence or wilful misconduct by Customer or Customer's Personnel.

To the maximum extent permitted by Law, clause 13.1 does not apply to the indemnities under clauses 13.5(a) and (b).

14. Termination

14.1 Termination at End of Term

Either Party may terminate this Agreement upon expiry of the Initial Term or Renewal Period (as applicable) by providing the other Party with written notice no less than one (1) month prior to the applicable expiry date.

14.2 Termination for Convenience

Following the Initial Term, either Party may terminate this Agreement for convenience by giving the other Party no less than thirty (30) days' written notice.

14.3 Termination for Cause

1. This Agreement may be terminated at any time during the Term immediately by a Party if the other Party:
   1. is in material breach of any of its obligations under this Agreement and it has not rectified the breach within fourteen (14) Business Days from receiving written notice requiring it to do so;
   2. is no longer able to perform its obligations under this Agreement due to a change in Law which prevents a Party from performing its obligations under this Agreement; or
   3. suffers an Insolvency Event.
2. Without limiting clause 14.3(a), Supplier may terminate this Agreement or suspend part or all of the Services if:
   1. Customer fails to make payment and has not rectified the non-payment within seven (7) Business Days from receiving written notice requiring it to do so;
   2. Supplier is directed to do so by a Regulatory Authority; or
   3. a Third Party Supplier terminates an agreement to supply Third Party Products and Services to Supplier and, after making all reasonable efforts, as a consequence, Supplier is unable to provide the Services to Customer through an alternative Third Party Supplier on commercially reasonable terms, and Supplier has provided at least ten (10) Business Days' written notice to Customer of such circumstances before terminating or suspending the Services.
3. If Supplier suspends the Services under clause 14.3(b)(i), Supplier has the right to not reconnect the Services until Customer has rectified the relevant non-payment and has paid the applicable re-connection fee for the suspended Service(s).

14.4 Consequences of Termination

Upon termination of this Agreement in accordance with this clause 14:

1. where Customer terminates this Agreement under clause 14.2 or the Agreement is terminated under clause 14.3, Customer agrees to pay for any costs or expenses (including any pre-paid subscriptions, Hardware purchases and licences) incurred directly under this Agreement by Supplier as a result of such early termination;
2. where Supplier terminates this Agreement under clause 14.3(b)(iii), Supplier will, within 30 days of termination, provide Customer a pro-rata refund for any Fees paid in advance for relevant Services that Supplier cannot and has not provided, less any amounts owed, or that become due and payable as at the date of termination, to Supplier by Customer;
3. all amounts due and payable to Supplier, whether or not invoiced, including any Fees for Services provided up to the date of termination, as at the date of termination become a debt due and payable on the effective date of termination;
4. Customer acknowledges Supplier may retain all admin credentials and not grant access to Customer or other third parties until all amounts due and payable to the Supplier are paid;
5. Supplier will remove all software and hardware supplied or licensed to Customer for the purposes of providing the Services under this Agreement;
6. each Party must promptly return or destroy the other Party's Confidential Information, as directed by the other Party; and
7. for avoidance of doubt, termination of this Agreement will terminate any Proposal(s) in effect at the date this Agreement is terminated.

14.5 Survival of Rights

Termination of this Agreement does not affect the rights of a Party which have accrued up to the date of such termination.

15. Dispute Resolution

15.1 Dispute Notice

If any dispute or difference arises between the Parties with respect to the construction, effect or operation of this Agreement, or with respect to any matter connected with this Agreement or arising out of it (a Dispute), the Parties must take the following steps to attempt to resolve the Dispute:

1. either Party may serve a written notice on the other Party stating the nature of the Dispute and invoking the dispute resolution process set out in this clause 15 (a Dispute Notice); and
2. the Parties must meet within ten (10) Business Days after the date of the receipt of the Dispute Notice, or such other period as the Parties agree in writing, and negotiate in good faith to resolve the Dispute.

15.2 Mediation

If the Dispute is not resolved in accordance with this clause 15 within twenty (20) Business Days of the date of the Dispute Notice, or such other period as the Parties agree in writing, the Dispute will be referred to mediation with the Parties to agree on a mediator who possesses the requisite skills and qualifications to assist the Parties in resolving the Dispute. The Parties will equally share all the costs of the mediation, including without limitation any fees charged by mediator.

15.3 Commencing Proceedings

Other than proceedings for urgent interlocutory relief, a Party may not commence or maintain any proceedings in any court with respect to a Dispute unless and until that Party has complied with the procedures in this clause 15.

16. General

16.1 Force Majeure

1. Neither Party will be liable to the other for any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
2. A Force Majeure Event does not relieve a Party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner.
3. If the Force Majeure Event continues for a period of more than thirty (30) days, either Party may terminate this Agreement by written notice to the other Party.

16.2 Notices

Any notice given in connection with this Agreement must be in legible writing and must be addressed to a Party and either hand delivered to, or sent by post to the relevant address or emailed to the relevant email address, as set out in the Agreement Details. A notice is taken to have been given:

1. in the case of being hand delivered, on the date on which it is delivered;
2. in the case of being sent by post, on the fifth (ninth if sent to an address in another country) day after the date of posting; or
3. in the case of delivery by email, at the time sent, unless the sender is notified, by a system or person involved in the delivery of the email, that the email was not successfully sent.

16.3 Governing Law

This Agreement is governed by the law of New South Wales, Australia. Each Party submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia and its appellate courts.

16.4 Counterparts

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

16.5 Waiver

A provision of this Agreement or a right created under it, may not be waived or varied except in writing, signed by the Party or Parties to be bound.

16.6 Costs

Each Party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.

16.7 Severability

If any part or provision of this Agreement is judged invalid or unenforceable in a jurisdiction, it is severed for that jurisdiction, and the remainder of this Agreement will continue to operate in full force.

16.8 Assignment and Novation

Customer may not assign, novate or transfer its rights and obligations under this Agreement without the prior written consent of Supplier. Supplier may assign, transfer or novate its rights and obligations under this Agreement without the prior written consent of Customer.

16.9 Remedies

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

16.10 Amendments

Any amendment to this Agreement has no force or effect, unless effected by a document executed by the Parties.

16.11 Survival

Clauses 1, 8, 9, 10, 12, 13, 14, 16, and 17 survive termination of this Agreement.

16.12 Entire Agreement

1. This Agreement constitutes the entire agreement between the Parties about its subject-matter and supersedes any previous understandings or agreements on that subject-matter.
2. The Parties acknowledge and agree that prior to their execution of the Agreement they have had a reasonable opportunity to negotiate its terms, to obtain independent legal advice and to review and inform themselves of the terms of the Agreement.

16.13 Relationship of the Parties

Nothing in this Agreement is intended to create a partnership, joint venture, or agency relationship between the Parties, and each of the Parties agree that they are entering into this Agreement only as independent contractors.

16.14 Party Acting as Trustee

If a Party enters into this Agreement as trustee of a trust, that Party and its successors as trustee of the trust will be liable under this Agreement in its own right, and as trustee of the trust. Nothing releases the Party from any liability in its personal capacity. The Party warrants that at the date of this Agreement:

1. all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by the Party as trustee and have not been varied or revoked, and the trust is a valid and subsisting trust;
2. the Party is the sole trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by this Agreement on behalf of the trust, and that this Agreement is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust; and
3. no restriction on the Party's right of indemnity out of or lien over the trust's assets exists, or will be created or permitted to exist, and that right will have priority over the rights of the beneficiaries to the trust's assets.

17. Definitions and Interpretation

17.1 Definitions

In this Agreement, unless the context requires otherwise:

Agreement is defined in clause 1.

Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales.

Claim means any claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a Party to this Agreement.

Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, exchanged between the Parties, before, on or after the date of this Agreement, relating to the business, products, services, customers or other affairs of the Discloser of the information but does not include information which: (a) is in or becomes part of the public domain other than through breach of this Agreement; (b) is disclosed to the Recipient on a non-confidential basis by a third party entitled to do so; or (c) was independently developed by the Recipient without reference to any Confidential Information of the Discloser.

Corporations Act means the Corporations Act 2001 (Cth).

Customer Credit Application means Customer's written credit application for the provision of credit by Supplier to Customer for Hardware.

Customer Environment means Customer's information technology, telecommunications, internet and other relevant infrastructure that interfaces with the Services.

Customer Equipment is defined in clause 4.1.

Delivery Docket means the form Customer or its agent signs upon the installation of the Hardware.

Discloser means a discloser of Confidential Information.

Dispute is defined in clause 15.1.

Dispute Notice is defined in clause 15.1.

Eligible Data Breach has the meaning set out in the Privacy Act.

End User means an employee, contractor, business partner or customer of Customer who interacts with or uses the Customer Environment.

Equipment means any equipment, hardware or tools forming part of the Services which are provided by Supplier to Customer.

Fault means any reproducible and verifiable error in the Services such that the Services do not meet the requirements specified in this Agreement or the Proposal, but does not include any fault or error in Third Party Products and Services.

Fees means the fees payable by Customer for the Services, Hardware, Software, or Third Party Products and Services, as specified in the Proposal.

Force Majeure Event means an event which is beyond the reasonable control of the Party affected, whether foreseeable or otherwise, and which could not have been prevented by the Party affected exercising reasonable diligence and includes an act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning strike, storm, tempest, drought, war or pandemic (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection, explosion, government intervention, act of public enemy, sabotage, malicious damage, terrorism, civil unrest; contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel, confiscation, requisition, expropriation, prohibition, embargo, damage to property by or under the order of any government authority, strikes at a national level or industrial disputes at a national level, or any failure of the internet or telecommunications services, any failure of public service, absence of transport facilities, absence of raw material supplies, plant breakdown or failure of plant to perform to expected specifications.

GST has the meaning given in the GST Law.

GST Law has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and terms used which are not defined in this Agreement, but which are defined in the GST Law, have the meanings given in the GST Law.

Hardware means any hardware which Customer independently procures from Supplier.

Insolvency Event means in respect of a Party, the occurrence of one or more of the following events: (a) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the company; (b) a provisional liquidator, liquidator or person having a similar function under the Laws of any relevant jurisdiction is appointed in respect of the company or any action is taken to appoint such a person and the action is not stayed, dismissed or withdrawn within ten (10) Business Days; (c) the company is deregistered under the Corporations Act or other legislation or notice of its proposed deregistration is given to it; or (d) anything analogous to or of a similar effect to anything described above under the Laws of any relevant jurisdiction.

Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Interest Rate means 2.5% per annum above the overdraft reference rate quoted by Supplier's banker on the first day of the applicable month.

Law means any: (a) law including Commonwealth, State, Territory, local government legislation or any regulations, by-laws, declarations, ministerial directions and other subordinate legislation; (b) common law; (c) government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity requirement or authorisation (including conditions in respect of any authorisation); and (d) code of conduct, writ, order, injunction or judgment.

Off-boarding means the off-boarding assistance specified in the Proposal.

On-boarding means the on-boarding assistance specified in the Proposal.

Operating Manual means the documentation that provides instructions on the installation and use of Hardware.

Party means a party to this Agreement and Parties means both of them.

Personal Information has the meaning given in the Privacy Act.

Personnel means in respect of a Party, that Party's employees, officers, contractors and agents.

Privacy Act means the Privacy Act 1988 (Cth).

Project Based Work has the meaning given in clause 5(a).

Proposal means the proposal document as annexed to this Agreement that details the Services to be provided to Customer or as otherwise provided by Supplier from time to time, including quotations or estimates.

Proposal Commencement Date means the date specified in the Proposal.

Recipient means a recipient of Confidential Information.

Regulatory Authority means a government or government department or other body, a governmental, semi-governmental or judicial person, or a person or any national, state, territory or local agency, department or other governmental entity that is charged with the administration of a Law.

Services means the products and services (as the case may be) to be provided by Supplier to Customer, as described in the Proposal, including any related Hardware and Software.

Site means the location for the provision of the Services, as specified in the relevant Proposal.

Software means any software forming part of the Services which is provided by Supplier to Customer.

Term has the meaning given in clause 2.

Third Party Terms has the meaning given in clause 6(b).

Third Party Products and Services means any software, software-as-a-service or other products or services which Supplier resells on behalf of a Third Party Supplier to Customer as set out in the Proposal.

Third Party Supplier means the provider of Third Party Products and Services.

17.2 Interpretation

The following apply in the interpretation of this Agreement, unless the context otherwise requires:

1. a reference to any Act, regulation, rule or similar instrument includes any consolidations, amendments or re-enactments of it, any replacements of it, and any regulation or other statutory instrument issued under it;
2. a reference to the singular includes the plural number and vice versa;
3. a reference to a gender includes a reference to each gender;
4. person includes a firm, corporation, body corporate, unincorporated association and a governmental authority;
5. a reference to a party or a person includes that party's or person's executors, legal personal representatives, successors, liquidators, administrators, trustees in bankruptcy and similar officers and, where permitted under this agreement, their substitutes and assigns;
6. an agreement on the part of, or in favour of, two or more persons binds or is for the benefit of them jointly and severally;
7. includes means includes but without limitation;
8. where a word or expression has a defined meaning, its other grammatical forms have a corresponding meaning;
9. a reference to doing something includes an omission, statement or undertaking (whether or not in writing) and includes executing a document;
10. a reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or an annexure to this Agreement; and
11. a heading is for reference only. It does not affect the meaning or interpretation of this Agreement.