Terms and Conditions

1. Definitions

In this Agreement unless the context indicates otherwise, the following words shall have the following meanings:

Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);

Commencement Date means the commencement date specified in the Schedule, or if it is not specified then the date of this agreement.

Confidential Information includes any information marked as confidential and any information received or developed by P1 during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by the Client in the course of the Client's business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans;

Day or days means calendar day/s, unless stated to the contrary;

Facilities means working space, computer equipment, access to the internet and the Client's computer network, telecommunications system, or other facility, and shall include not only access to such resources, but also use of them to the extent required by P1 in order to perform the Services;

Fee(s) means the amount or rates set out in the schedule to this agreement;

Goods means any goods sourced by P1 or provided by P1 in connection with any such goods and/or services, including computer hardware and software and any goods provided in connection with any of those things.

GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Intellectual Property Rights means in relation to a person, the rights of the person in and to:

1. rights - all and any intellectual property rights, proprietary rights, industrial property rights, copyrights (including future copyright and rights in the nature of or analogous to copyright), moral rights, performers' protection, patents, designs, inventions, Image Rights, trade marks, service marks, logos, trade names, business names, brand names, plant variety rights, circuit layout rights, software, domain names, trade secrets, business methods, know-how and methods of practice, throughout the world, whether or not now existing, whether or not registrable, in registered or unregistered form, and whether or not protected by a law in force in Australia or elsewhere;
2. applications - any applications for, or rights to obtain, acquire, renew or extend, any intellectual property rights as defined in paragraph (a) of this definition;
3. franchises - any schemes or systems which may be franchised;
4. information - any information, secret processes, know how, discoveries or creations which may be protected by law or by an order of any Governmental Agency;
5. identity - any rights to use or exploit the name, appearance, voice, sound or other features or characteristics of any person or thing (whether dead or alive), or ascribed to or associated with any fictional character;
6. invention - any rights to use or exploit any idea or thing which is the direct or indirect result of human discovery, creation, invention or effort; and/or
7. other - any other intellectual property;

Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever;

Parties means P1 and the Client, and Party shall mean either one of them;

Quote means a quote provided to the Client by P1.

Related Body Corporate has the meaning given in section 50 of the Corporations Act 2001 (Cth);

Schedule means the schedule to this agreement.

Services means the Services and other aspects of those services as specified in the Schedule.

Specifications means the specifications set out in the Schedule

Successive Term means the successive term set out in the Schedule

Term means the term set out in the Schedule

Termination Date means the earlier of:

1. the date of termination of this Agreement by the Client or P1; and
2. the date of expiry of this Agreement.

2. Services

1. P1 shall provide the Services to the Client as set out in the Specifications, in consideration for the Client paying the Fee to P1, subject to the provisions of this Agreement.
2. P1 and the Client shall agree the time and place for the performance of the Services, subject to the availability of P1 and P1’s subcontractors, agents or representatives.
3. Additional services may be provided by P1 for the Client, on the same terms and conditions as this Agreement, subject to necessary changes and based on an amended or additional schedule specifying amended or additional services, which will then be deemed to be included in this agreement.
4. The Client acknowledges and agrees that the Services will be subject to any standard inclusions and exclusions and guidelines as to support and response times as set out in the specifications.

3. Duration

1. This agreement will commence on the Commencement Date for the Term.
2. At the expiration of the Term, unless terminated under clause 13, this agreement will continue for the Successive Term, on the same terms and conditions subject to necessary changes, unless either Party gives at least 30 days written notice to the other Party prior to expiration of the Term.

4. Location

P1 shall provide the Services in such places, locations or via such electronic media as P1 considers appropriate to the requirements of the Client.

5. Fee(s)

1. In consideration of the provision of the Services, the Client will pay P1 the Fee(s) on the basis of the Fee(s) set out in the Schedule or a Quote provided by P1. Where P1’s fees are based on an hourly rate, any time spent which is less than an hour will be charged on a pro-rated basis, rounded to the nearest quarter hour. P1 may require a deposit to be paid in respect of any Fees, as specified in the Schedule.
2. The Client acknowledges that the Fee shall be exclusive of any GST that may be charged by P1 to the Client, and therefore P1 will be entitled to add on GST.
3. P1 shall provide the Client with a tax invoice in accordance with the GST Law in relation to Fees payable under this clause 5, and payment shall be made by the Client to P1 within 14 days following receipt of P1's invoice. P1 may provide separate invoices for Services provided at different times.
4. P1 is permitted to charge for all costs and expenses incurred in performing the Services as are set out in the Schedule.
5. If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the Agreement, P1 shall be entitled to do all or any of the following:
   1. charge interest on the outstanding amount at the rate specified in the Penalty Interest Rates Act (Vic), as varied from time to time, with effect from the due date, which is seven days from date of invoice.
   2. not perform any further Services (or any part of the Services)
   3. subject to 2 business days written notice to the Client, may disconnect any Services, in which case the Client acknowledges and agrees that P1 will not be liable for all or any losses incurred by the Client, as a result of such disconnection.
   4. claim any costs from the Client (including any collection agency and/or legal fees on a solicitor and own client basis) that P1 may incur in order to recover its Fee(s).
6. When making a payment the Client shall quote relevant invoice numbers.
7. If the Client fails to pay any Fees on or by due date, P1 may by notice in writing require the Client to make any future payments via direct debit.

6. Client's Obligations

1. During the performance of the Services the Client will:
   1. co-operate with P1 as P1 reasonably requires, including but not limited to, allowing P1 to use all necessary and appropriate resources of the Client and its employees, subcontractors and/or agents to enable the Contractor to give effect to this Agreement;
   2. provide the information and documentation that P1 reasonably requires;
   3. make available to P1 such Facilities as P1 reasonably requires; and
   4. ensure that the Client's staff and agents co-operate with and assist P1.
2. The Client will not charge for P1's use of the Facilities made available by the Client.
3. If the Client does not provide the Facilities that P1 reasonably requires (and within the time period) to perform the Services, then any additional costs and expenses which are reasonably incurred by P1 will be paid by the Client.

7. Use of Subcontractors

1. P1 is permitted to use other persons to provide some or all of the Services.
2. P1 shall be responsible for the work of any of P1’s subcontractors.
3. Any work undertaken by any of P1’s subcontractors shall be undertaken to the same standard required of P1 in terms of this agreement.

8. Sale of Goods

1. P1 may supply Goods to the Client, based on a Quote, which Quote will be valid for 7 days unless specified otherwise.
2. Unless specified otherwise, payment for Goods will be required in advance.
3. The price in the Quote may vary from the original Quote if any price or product changes are requested by the client.
4. Freight charges will be added to the cost of any Goods and may vary depending on any changes implemented by the supplier of the freight services.
5. Unless specified otherwise, any Goods provided are covered by manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.
6. P1 will use all reasonable endeavours to dispatch Goods by the due date, but does not accept liability for non-delivery or failure to deliver on time when this is caused by a force majeure event. The Client must be available to accept any goods at their nominated delivery address doing business hours, unless arranged otherwise.
7. Delivery is deemed to have taken place when the Goods are delivered to the Client’s address, at which stage any risk in the Goods pass to the Client and the Client will ensure that any goods are adequately insured from the time of delivery. Notwithstanding delivery to the Client, P1 or the supplier of the Goods will retain title to any Goods until full payment has been received.
8. Notwithstanding any other provision of this agreement, the Client acknowledges that P1 supplies Goods subject to all applicable conditions, including returns and claim policies of any relevant manufacturer or supplier. The Client will accept Good subject to such policies and conditions and will indemnify and hold P1 harmless in respect of any further or other obligation or any failure or default on the part of a manufacturer or supplier.
9. The Client may not return goods to P1 or the supplier if they are supplied with an element of customization for the Client, the Goods are obtained from a country outside of Australia, or from a supplier who is no longer trading.
10. Subject to any manufacturer warranty, the Client will inspect all goods immediately on delivery and must advise P1 within 7 days of delivery if the Client requires a refund or wishes to make a claim in relation to the Goods. If no such notice is given on time, then the Client accepts the Goods without any such return, refund or claim.
11. Where Goods supplied by P1 have a manufacturer warranty, P1 is responsible for providing assistance in contacting the manufacturer and providing proof of purchase, but is not obliged to provide technical assistance, postage, delivery, or any form of backup or data retention free of charge. The Client may request P1 to perform any of these tasks, but the tasks will be provided at an agreed rate, or invoiced as part of the Client’s managed services.

9. Computer Utility, Functionality and Fitness for Purpose

1. The Client acknowledges that there may be service limitations in relation to the science of computing and that the provision of Services may involve trial and error in relation to novel or unknown circumstances. In particular Services may involve testing, troubleshooting, advice and recommendations that may prove incorrect, particularly in an attempt to cure a problem. To the extent that P1 is making reasonable endeavours to assist the Client in such circumstances, then the Client indemnifies and holds P1 harmless in respect of the provision of such Services.
2. The Client acknowledges that P1 may have no control over many factors involved with the suitability, function or fitness of purpose of Goods in an existing or new computer environment, for example in relation to the compatibility of goods to fit into or perform to expectations in a receiving computer/Internet environment, or the behaviour of third party suppliers, particularly in relation to support. Accordingly, the Client indemnifies and holds P1 harmless in respect of any Goods not being fit for purpose in such circumstances.

10. Disclosure and Ownership of Intellectual Property Rights

1. P1 must communicate to the Client promptly and fully all Intellectual Property Rights created or developed by P1 or P1's Personnel (either solely or jointly with others) in the course of performing the Services by P1 for the Client.
2. The obligations accepted by P1 under this clause 10 survive termination or expiry of this Agreement.
3. Notwithstanding any other provision of this clause 10, the Client acknowledges and agrees that while it will own the Intellectual Property Rights created by P1 for the Client in connection with the Services, the Intellectual Property Rights may only be used by the Client and any Related Body Corporate and the Client may not sell, license or in any way transfer the Intellectual Property Rights to any third party, or allow any other party to use the Intellectual Property Rights in any manner whatsoever, without P1’s written consent, which shall not be unreasonably withheld.
4. Notwithstanding any other provision of this clause 10, and for the avoidance of doubt, all Intellectual Property Rights and related material of P1 that is in existence prior to the date of this Agreement, or is developed by P1  independently of this Agreement remains the property of P1. The Contractor will furthermore be entitled to use any generic Intellectual Property Rights or material created in terms of this Agreement when dealing with other companies or persons, for example to develop other artistic works of a similar kind, provided there is no reference to the Client or any of its Confidential Information and the development of similar artistic works does not infringe the Intellectual Property Rights of the Client.
5. Subject to clause 10 (c) below, any Intellectual Property Rights developed by P1 for the Client in the course of performing the Services shall be the sole and exclusive property of the Client or its nominees.

11. Confidentiality

1. P1 must keep the Client's, and any Related Body Corporate of the Client’s, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
2. P1's obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by:
   1. the Client, in the case of Confidential Information pertaining to the Client's business; and
   2. the Client's client, in the case of Confidential Information pertaining to the business of any of the Client's clients.
3. At the Termination Date:
   1. all Confidential Information must be returned to the Client, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that P1 makes and any software that P1 creates based on the Confidential Information; and
   2. P1 will must erase and destroy any copies of any software containing or comprising the Confidential Information in P1's possession or under P1's control or that may have been loaded onto a computer possessed or controlled by P1.
4. The Confidential Information does not include information which:
   1. is generally available in the public domain otherwise than as a result of a breach of paragraph (a) by P1; or
   2. was known by P1 prior to the Client disclosing the information to P1.
5. The obligations accepted by P1 under this clause 11 survive termination or expiry of this Agreement.

12. Warranties, liability and indemnities

1. P1 warrants that it will use reasonable care and skill in performing the Services.
2. If P1 performs the Services (or any part of the Services) negligently or materially in breach of this Agreement then, if requested by the Client, P1 will:
   1. resupply the services or equivalent services, or
   2. pay the cost of the resupply of the services, where payment in full has been made by the Customer.
3. The Client's request referred to in paragraph 12 (b) above must be made within 6 months of the date that the Services have been provided negligently or materially in breach of this Agreement.
4. P1 acknowledges that:
   1. under applicable Commonwealth, State and Territory laws (including the Competition and Consumer Act), certain statutory express and implied guarantees and warranties will be implied into this agreement (Statutory Guarantees), and
   2. nothing in this agreement excludes, restricts or modifies the Statutory Guarantees, or any condition, warranty, right or remedy conferred on either party by the Competition and Consumer Act or any other applicable law that cannot be excluded, restricted or modified by agreement.
5. P1 shall effect all insurance required to be effected by law including worker's compensation insurance as prescribed by law for P1's Personnel and public liability insurance for a minimum of $20,000,000 (twenty million dollars).
6. P1 covenants that P1 shall be solely responsible for its own costs, including the payment to P1's subcontractors, employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as P1's employees or agents and to otherwise comply with legislation applicable to P1's employees and agents.
7. P1 provides no warranty that any result or objective can or will be achieved or attained in terms of this agreement
8. Except in the case of death or personal injury caused by P1's negligence, the liability of P1 under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the Fee(s) paid by the Client to P1 under this Agreement.
9. Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.
10. The Client shall indemnify and hold harmless P1 from and against all Claims and Losses arising from:
    1. loss, damage, liability, injury to P1, its employees and third parties, infringement of third party Intellectual Property Rights, or third party losses by reason of or arising out of any information supplied to the Client by P1, its employees or Consultants, or supplied to P1 by the Client within or without the scope of this Agreement,
    2. changes implemented or new products or updates provided by any software vendors or other third-party vendors, in which case the Client furthermore agrees that any additional work required by P1 as a result of such changes, new products or updates will be payable by the Client, or
    3. a failure by the Client to act upon any reasonable advice provided by P1.
11. Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
12. P1 warrants that P1 has no authority to engage the services of any person as an employee or agent of the Client.
13. P1 warrants that P1 shall not incur any liability on behalf of the Client or in any way pledge or purport to pledge the Client's credit or accept any other or make any contract binding upon the Client without prior approval being given by the Client.
14. The obligations accepted by P1 and the Client under this clause 12 survive termination or expiry of this Agreement.

13. Termination

1. Either Party may terminate this Agreement by notice in writing to the other if the Party notified fails to observe any term of this Agreement and fails to rectify this breach, to the satisfaction of the notifying Party, within 30 days of notice of the breach being given in writing by the notifying Party to the other Party.
2. P1 may terminate this agreement without cause on 30 days written notice to the Client.
3. Either Party may terminate this Agreement upon the happening of any of the following events:
   1. if either Party enters into a deed of arrangement or an order is made for it to be wound up;
   2. if an administrator, receiver or receiver/manager or a liquidator is appointed to either Party pursuant to the Corporations Act 2001 (Cth); or
   3. if either Party would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth)
   4. a force majeure event, as envisaged in clause 15 (a) below.
4. The Client may, at its discretion, pay to P1 the equivalent amount of the Fees payable by the Client to P1 during the notice period in lieu of any notice period relating to termination of this Agreement under paragraph (b)(i).
5. Upon termination of this Agreement any Fees, expenses or reimbursements payable by the Client to P1 in respect of any period prior to the Termination Date must be paid by the Client within 7 days after the Termination Date.

14. Dispute Resolution

1. Dispute Resolution
   If a dispute arises out of or relates to this agreement, or the breach, termination, validity or subject matter of the agreement, or to any related claim at law, in equity or pursuant to any statute (Dispute), a Party will not start arbitration or court proceedings (except proceedings seeking injunctive, declaratory or interlocutory relief) in respect of the Dispute unless it has complied with this clause.
2. Notification of Dispute
   A Party claiming that a Dispute has arisen must notify the other Party, giving details of the Dispute.
3. Resolution of Dispute
   During the 21 day period after a notice is given under clause 14 (b) (or longer period agreed in writing by the Parties to the Dispute) (Initial Period) each Party to the Dispute (Disputant) must use its best efforts to resolve the Dispute.
4. Mediation
   If the Disputants are unable to resolve the Dispute within the initial period, each Disputant agrees that the dispute must be referred for mediation, at the request of any Disputant, to:
   1. a mediator agreed on by the Disputants; or
   2. if the Disputants are unable to agree on a mediator within seven days (7) after the end of the initial period, a mediator nominated by the President or Acting President of the Law Institute of Victoria or the President’s nominee.
5. Role of Mediator
   The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a Disputant unless that Disputant has so agreed in writing.
6. Rules and Venue for Mediation
   Mediation will be in accordance with the rules of the Mediation Institute and any formal mediation will be held in Melbourne, Australia and may be held electronically.
7. Confidentiality
   Any information or documents disclosed by a Disputant under this clause:
   1. must be kept confidential; and
   2. may not be used except to attempt to resolve the Dispute.
8. Costs
   Each Disputant must bear its own costs of complying with this clause and the Disputants must bear equally the costs of any mediator engaged.
9. Termination of agreement
   This clause will not merge on termination of the agreement.

15. General

1. Force majeure
   Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party, including, but not limited to an act of war, nature, or god or pandemic or epidemic (“a force majeure event”). The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 3 months, either Party may terminate this Agreement by written notice to the other Party.
2. Amendments
   This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
3. Assignment
   1. Subject to paragraph c(ii), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
   2. A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
4. Entire agreement
   1. This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement, and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
   2. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
5. Waiver
   1. No failure or delay by P1 in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
   2. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
6. No Agency, partnership, joint venture or employment relationship
   1. This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship, employment agreement or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
   2. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
7. Further assurance
   Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
8. Severance
   If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
9. Notices
   A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement, or sent by email to the email address of the addressee. Correspondence sent by prepaid post will be deemed to have been received on the third business day after posting and if sent by email, on the date of transmission, or if that day is not a business day, then on the next business day.
10. Law and jurisdiction
    This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in Victoria, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of that state.