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Terms & Conditions
THIS AGREEMENT IS MADE BETWEEN:
Denver Technology Pty Ltd (ABN 43 626 189 553) Level One 3 Loftus St, West Leederville WA 6007 (hereinafter referred to as "Denver") AND: (hereinafter referred to as "the Client").
Denver is a respected, experienced, and quality endorsed information technology consulting, services and solutions provider.
The Client wishes to enter into a formal contractual arrangement with Denver for the provision of information, communications and technology services.
The parties have agreed that Denver will provide the Services subject to the terms and conditions of this Agreement.
The Services Denver is able and prepared to provide to the Client are described in the Contract, Support Agreement, Proposal, Quote, Detailed Design, Statement of Work or Scope of Work that refers to this Agreement, hereafter referred to as “the SOW”. Where the Client requires Denver to perform any Services, the required Services will be specified in the SOW. The agreed SOW will form part of this Agreement.
Denver agrees to provide the Services ("Services") specified in the SOW to the Client upon the terms and conditions of this Agreement.
Denver will comply with Client policies for IT systems as disclosed in writing to Denver during the Term of this Agreement. Should any deviation from stated Client policies be required to resolve an urgent issue, this will only be undertaken with prior, written approval from the Primary Client Contact named in the SOW.
The Services do not include:
the repair of computer hardware or related components other than coordination with the relevant vendor/supplier.
the repair of any third party failure other than coordination with the relevant vendor/supplier.
Denver reserves the right to exclude from the scope of its Service:
any software for which the Client does not hold valid licenses.
Any hardware or software not supported by the relevant vendor.
Standard Business Hours are 9:00am to 5:00 pm inclusive, excluding state gazetted Public Holidays for Western Australia or for Queensland (if services delivered from Brisbane). Services will only be delivered outside Business Hours if stipulated in the SOW.
Standard Service Fee:
From the Date of Agreement, the Client agrees to pay:
the Service Fees applicable to the relevant Services specified in the SOW;
in accordance with terms stated in the SOW.
All reasonable expenses incurred in the discharge of services by Denver to the Client will be on-charged to the Client.
The Client agrees to provide all travel and accommodation for travel where overseas or regional area travel is required.
Denver to Pay All Taxes, Charges and Levies:
Denver will be solely responsible for the payment of all taxes, levies and charges imposed on Denver personnel, or imposed on any person(s) engaged by Denver, including payments: levied upon or calculated with reference to the fees payable or paid to Denver personnel under this Agreement;
imposed in relation to the Services or this Agreement including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, sales tax, excise and import duties, goods and services tax and consumption tax; and
required by law, contract, industrial award or industrial agreement to be made to or in respect of any person(s) engaged by Denver personnel in the performance of the Services including wages, salaries, statutory superannuation contributions and worker's compensation payments and contributions ("the Taxes").
Denver indemnifies and will keep indemnified the Client from and against all liability for the above payments and all liabilities arising in respect of non-payment or late payment of these payments.
Denver will also be responsible for the filing of any return or other document required by any relevant government or regulatory authority in relation to any of the above payments.
Supply of Goods:
If requested by the Client to supply any hardware, software or materials ("Goods") as part of the SOW, Denver will use its best efforts to secure the supply of the Goods to the Client at the best available purchase or lease/rental price.
If Denver is able to supply the requested Goods, it will provide the SOW to the Client setting out the price and the terms and conditions of sale. If the Client accepts the SOW, the Client agrees to pay the specified price in accordance with the terms of payment as specified in the SOW.
Access to Customer Premises and Facilities:
The Client agrees to provide Denver with access to the Client's premises and facilities (including but not limited to equipment, software, documentation, and licenses) to enable Denver to fulfil its obligations under the Agreement.
Where access is temporarily denied or suspended by the Client, Denver will be entitled to an extension of time to complete any obligations which are directly and adversely affected by the access restriction imposed.
The Client warrants that it is the owner of the information technology systems subject to this Agreement, or if not the owner, that the Client has the authority to enter into this Agreement and permit Denver to perform Services on those systems.
The Client will provide a contact person to act as the liaison for all matters arising in the performance of this Agreement.
The Client will provide Denver with; free and full access (including interruption of usage, if necessary) at agreed times to its premises and computer systems; and
a suitable working area for the performance of the Service during the Term of this Agreement.
The Client further acknowledges and agrees that Denver will not be held liable for any lost profits, consequential damages or for any claim or demand made against the Client by any other third party as a result of Denver having access to its premises or computer systems except to the extent caused by Denver's negligence.
In performing the Services and without limiting any other provision of this Agreement, Denver will at all times during its engagement:
ensure that all Personnel will perform any Services in a professional manner and with due care, competence and skill;
exercise the utmost good faith in all dealings with the Client;
provide the Client with a just and faithful account of all undertakings conducted on the Client's behalf;
act in a timely, skilful, diligent, workmanlike, careful, safe and proper manner to promote the interests and welfare of the Client;
act in accordance with any applicable laws, regulations, by-laws and orders;
act in accordance with the standards and practices normally exercised by a professional in the performance of the same or similar services in the same or similar;
use equipment and materials of merchantable quality and fit for intended;
use only personnel possessing the requisite levels of skill, experience, and competence to perform the Services; and
comply with applicable Denver and Client environmental, occupational health and safety, site security and quality policies and procedures as amended from time to time.
The Client must not, without prior written approval from Denver, approach Denver Personnel during the Term of this Agreement and for a period of six (6) months thereafter in order to:
make an offer of employment with the Client or any related entity; or
Canvass, solicit, employ, enter into contract with, engage or permit employment by a third party, either directly or indirectly.
Without limiting any other rights or remedies available to Denver in the event that the Client or related third party employs or otherwise engages the services of any Denver Personnel, the Client agrees it will pay to Denver a fee equivalent to 17.5% of the annual salary package of each of the Denver Personnel thus recruited, upon receipt of written notification of such breach.
If the Client employs any Denver Personnel, either at the request of those Personnel or with Denver's written agreement, the Client agrees it will pay to Denver a fee of $15,000 or 15% of their wage (whichever is the greater amount) as a finder's fee and to cover Denver's costs to find replacement Personnel.
Denver agrees not to approach Client Personnel during the Term of this Agreement and for a period of six (6) months thereafter, without prior written approval from the Primary Client Contact, in order to:
make an offer of employment with Denver or any related entity; or
Canvass, solicit, employ, enter into contract with, engage or permit employment by a third party, either directly or indirectly.
The parties agree that each separate provision of this clause is necessary and reasonable to protect both parties’ legitimate business interests.
Denver will ensure that the following insurances are procured and maintained by itself and (where industry; appropriate) by Denver personnel for the Term of this Agreement:
Workers' Compensation insurance (and use; Occupational Disease insurance where required by law), which complies with the relevant State and Federal laws in force at the time of this Agreement;
General and Products Liability insurance with a sum insured of not less than $5,000,000 for each occurrence.
Professional Indemnity insurance of not less than $5,000,000 in respect of any one incident;
Any other Insurance, which is required by Law.
The Client is responsible, at its own expense, for procuring and maintaining suitable insurance coverage for all Client equipment accessed by Denver personnel, or undertake to "self insure" such equipment. This insurance must include such provisions or undertakings as may be required for Client equipment to be moved by Denver personnel, including equipment taken off site for any reason.
Denver will, if requested by the Client, provide copies of policies or certificates of currency of insurance to demonstrate that the insurance required under clause remains current and has not been changed.
The Client may provide Denver with certain confidential, non-public or proprietary information concerning its operations. Such information includes, without limitation, all commercial and technical information supplied to or received by Denver or acquired in the course of performing the Services, whether acquired before or after the date of this Agreement, together with all analyses, compilations, data, studies, reports or other documents prepared by Denver, containing or otherwise reflecting or generated from such information ("Information").
Denver has permission to use the Information for the purpose of performing the Services. In consideration of this Denver agrees that:
It will treat the Information as private and confidential and will not use the Information, for any purpose other than in the course of providing the Services and meeting its obligations under this Agreement.
it will not disclose the Information to any person other than those whose duties and functions require a knowledge of or access to the Information for the purpose of this Agreement either during the Term of this Agreement of for a period of five (5) years after the termination of the Agreement without the prior written consent of the Client, except to the extent required by law or court order.
it will return immediately to the Client all confidential information in the possession or control of Denver or any person(s) engaged by Denver personnel on expiry of the Term, on termination of this Agreement, or at the request of the Client.
it will, if requested by the Client, obtain a deed of confidentiality and restraint from all employees of Denver and any person(s) engaged by Denver to provide the Services, in a form acceptable to the Client, and of the same or similar terms as those in this Agreement.
Denver acknowledges that all property and intellectual property rights (including copyright) in all material created by Denver in performing the Services under this Agreement belong to the Client from its creation. <
Clause 18.1 does not affect the rights of either party with respect to material provided for the purposes of the Services which was created outside or separately to this Agreement. Either party providing such material grants a licence to the other party to use and copy such material for the purposes of this performing Agreement only.
Clause 18.1 does not restrict Denver's right to use its general expertise and knowledge accumulated in providing the Services. Specifically, Denver may use such practices and procedures as it may develop or acquire in providing the Services, but may not make any reproduction or substantial reproduction of any of the intellectual property assigned by clause 18.1 without the Client's written consent.
Neither party will make any public statements or releases to the media concerning the Services or the Agreement without the prior written approval of the other party (which approval shall not be withheld unreasonably).
This Agreement and any Schedules, attachments and appendixes hereto constitute the entire Agreement between the parties superseding all prior agreements, arrangements, understandings or representations (if any) between the parties in respect of matters dealt with by this Agreement.
AMENDMENTS TO AGREEMENT:
No amendment or variation to any provision of this Agreement will have any force or effect unless made expressly in writing and signed by both parties.
No waiver of any provision of this Agreement by a party will be effective unless in writing and signed by both parties, and then such waiver will only be in effect for the specific instance for which it is given, and will not be a waiver of any other provision.
No delay or default by a party in exercising any rights under this Agreement will operate as a waiver of any other right hereunder.
Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the express prior written consent of each party to the Agreement.
All notices, invoices and other documents required or permitted to be given to a party under this Agreement will be provided in writing and may be addressed to the respective party's postal address as outlined below or to any other such address as may be notified in writing by the Client: Denver Technology PO Box 1176 West Leederville WA 6901.
CONFLICT OF INTEREST:
Denver warrants that it is unaware of any actual or potential conflict of interest which could reasonably be expected to prevent it from properly discharging its obligations in providing the Services under this Agreement.
Denver agrees to immediately advise the Client should an actual or potential conflict of interest arise during the Term of the Agreement.
Delays in or failure of performance by a party (other than the payment of money) will not constitute a breach of this Agreement by that party if and to the extent that any delay or failure is caused by a force majeure. For the purposes of this clause "force majeure" includes any act of God, act of war, fire, flood, explosion, storm, earthquake and any other circumstance beyond the reasonable direct or indirect control of the party claiming the benefit of this clause.
A party affected by force majeure must within seven (7) days of being affected give details of the force majeure and the manner in which the performance of its obligations under this Agreement is affected and must immediately take the appropriate action to enable it to perform the obligations so affected.
In the event that any act of force majeure continues for a period of more than fourteen (14) days, the other party may terminate the Agreement by giving the party affected by the force majeure seven (7) days’ notice in writing.
Subject to clause 24(“Force Majeure), neither party will resort to legal proceedings, or terminate this Agreement, until the following provisions for dispute resolution have been duly exercised in good faith.
Nothing in this clause will prevent a party from seeking urgent interlocutory relief.
If a party considers that a dispute has arisen under this Agreement (including a breach or an alleged breach of any of the provisions of this Agreement), that party will promptly provide formal notification in writing to the other party, detailing in full the matters in dispute. Management representatives from each of the parties (or their nominees) will then endeavour good faith to negotiate a resolution.
Should the management representatives (or their nominees) fail to negotiate a mutually acceptable resolution in accordance with sub-clause 27.3 within 5 (five) working days (or such other timeframe as may be jointly agreed between the parties), the parties must proceed to mediation. The mediator will be a person agreed by the parties or, in the absence of agreement, a person nominated by the President for the time being of the Western Australian Law Society.
If mediation fails to resolve the dispute then either party may commence or initiate legal proceedings against the other.
Unless prevented by the nature of the dispute, the parties will continue to perform their obligations under this Agreement while attempts are made to resolve the dispute.
This Agreement takes effect on the date the last party signs the Agreement and remains in force for as long as specified in the SOW or, if not specified in the SOW, for a period of one year, unless terminated earlier in accordance clause 27 “Default”.
If either party breaches any of the terms of this Agreement, the other party may terminate this Agreement after thirty days’ notice if:
it has provided the other party with a written notice setting out the details of the default and a reasonable opportunity for the other party to remedy the default; and
the other party has failed to remedy the default in accordance with the written notice.
After sixty days’ notice and opportunity to cure, and in in addition to any other legal remedies it may have, Denver may repossess any unpaid goods supplied by Denver.
This Agreement shall be construed and take effect in accordance with the laws of the State of Western Australia and each party hereby submits to the exclusive jurisdiction of the courts of that State.
In this Agreement, unless the contrary intention is stated:
clause numbers and headings are provided for convenient reference only and have no effect in either limiting or extending the language of the provisions to which they refer;
use of, or reference to the singular includes the plural and vice versa;
a reference to a gender does not exclude other genders;
the word "written" or "writing" as it appears in this Agreement includes any commercially acceptable means of representing or reproducing words in human readable form, and specifically includes the use of electronic storage and transmission technologies such as e-mail and facsimile;
the word "includes" or "including" is not a word of limitation;
where a word or phrase is assigned a particular meaning, other parts of speech and grammatical forms of that word or phrase will be deemed to have corresponding meanings;
A reference to a person includes a reference to the Person's executors, administrators, successors, and permitted assigns;
A reference to a statute, regulation, ordinance, code, provision or other law includes:
that statute, regulation, ordinance, code, provision or other law as amended or re-enacted from time to time (including consolidations);
a statute, regulation, ordinance, code, provision or other law enacted in its replacement; and
Such regulations and other instruments under it;
A reference to this Agreement or any part or instrument includes any part Schedule, attachment, appendix, amendment, or replacement of the aforementioned irrespective of any change of party or any change in the identity of a party;
All the provisions in any part, Schedule, attachment or appendix to these Terms and Conditions are incorporated in and form part of this Agreement and bind the parties;
A reference to a month is to a calendar month and a reference to a year is to a calendar year unless stipulated as a financial year;
If a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated inclusive of that day;
If the date stipulated for the doing of an act is not a Business Day, the act must be done on the next Business Day; and
All monetary references are references to Australian currency