STANDARD TERMS AND CONDITIONS FOR SERVICES
Definitions
In the Agreement, unless the contrary intention appears:
“Acceptance Criteria” means the test results (if any) specified in the SOA which are to be achieved in the course of Acceptance Tests;
“Acceptance Tests” means the tests (if any) described in the SOA;
“Additional Charges” means fees and expenses over and above those specified in the SOA and which are in accordance with Creagency’s standard time and materials rates in effect from time to time;
“Agreement” means the agreement between the Parties for the provision of Services being the SOA and these Terms and Conditions;
“Charges” means the fees and expenses payable by the Customer to Creagency under the Agreement including any Additional Charges;
Creagency’s Confidential Information includes its
policies, strategies, the Deliverables, the terms and
conditions of the Agreement including pricing and any
proposals or other documents whether or not disclosed prior
to or after the date of the SOA.
“Deliverable” means where specified in the SOA, any specific result or outcome of the Services to be provided to the Customer and includes any associated materials developed by Creagency pursuant to the SOA;
Such circumstances include but are not be limited to:
acts of God, lightning strikes, earthquakes, floods,
storms, explosions, fires and any natural disaster;
acts of war, acts of public enemies, terrorism, riots,
civil commotion, malicious damage, sabotage and revolution;
strikes; and
the acts or omissions of the other Party;
“Intellectual Property Rights” means any industrial or intellectual property rights including copyright, trade mark, design, patent, semiconductor or circuit layout rights;
“Party” means either Creagency or the Customer as the context dictates;
“Services” means the services specified in the SOA;
Interpretation
In the Agreement, unless the contrary intention appears:
the clause headings are for convenient reference only and
have no effect in limiting or extending the language of the
provisions to which they refer;
a cross reference to a clause number is a reference to its
subclauses;
words in the singular number include the plural and vice
versa;
words importing a gender include any other gender;
a reference to a person includes a partnership and a body,
whether corporate or otherwise;
a reference to a clause is a reference to a clause or
subclause of these Terms and Conditions or the SOA as the
context requires;
where a word or phrase is given a particular meaning, other
parts of speech and grammatical forms of that word or phrase
have corresponding meanings;
monetary references are references to Australian currency.
Services
Creagency will provide the Services and any Deliverable in
accordance with the Agreement. If there is any conflict or
inconsistency between the SOA and these Terms and
Conditions, the SOA prevails to the extent of that
inconsistency.
Creagency may exercise its independent discretion as to the
most appropriate and effective manner of providing the
Services and of satisfying the Customer’s expectations of
those Services.
The person named in the SOA as the Creagency Representative,
will be assigned to the Customer to handle all Customer
queries, issues and any other matters relating to the
Services on a needs by basis. Creagency may advise the
Customer of a change to its nominated representative from
time to time.
Any services requested by the Customer which are not
described in the SOA will be provided at Creagency’s
discretion and may be subject to an Additional Charge.
Timeframes set out in the SOA are estimated timeframes and
provided as a guideline only. Creagency will make all
reasonable efforts to adhere to such timeframes. Any delay
by Creagency in complying with a timeframe will not
discharge the obligation of the Customer to pay the Charges
invoiced by Creagency.
In the event that:
the provision of the Services is delayed;
Creagency is required to supply the Deliverables in
circumstances other than those expressly or reasonably
assumed or contemplated by the SOA; or
there is a change in the timing or complexity of the
Services;
Only when necessary, Creagency will subcontract with third
parties to perform the Services. However, no subcontract
will relieve Creagency of its obligations to the Customer.
Subject to clause 4, Services (and all Deliverables) will be
deemed accepted by the Customer upon completion of the
Services in accordance with the SOA.
Acceptance
This clause only applies if it is specified in the SOA that
a Deliverable is to be subject to Acceptance Tests.
Unless otherwise agreed between the Parties, the Customer
must test the Deliverable in accordance with the Acceptance
Criteria within the period specified in the SOA (or such
other period as is agreed between the Parties).
Creagency must provide all reasonable assistance to enable
the Customer to conduct the Acceptance Tests.
The Customer will be responsible for the preparation of all
necessary acceptance test data specified in or relevant to
the Acceptance Criteria.
Creagency will be entitled to observe and, to the extent
considered reasonable by Creagency, participate in the
conduct of the Acceptance Tests.
In the event the Customer fails to complete the Acceptance
Tests within the timeframe specified in the SOA for reasons
other than delay caused solely by Creagency, the Customer
will be deemed to have accepted the Deliverable.
Upon completion of the Acceptance Tests:
a)Creagency will, if requested by the Customer, provide a written summary of the Acceptance Tests and the results achieved during the Acceptance Tests; and
If the Customer has not provided the written acknowledgement
of acceptance and has not notified Creagency of any failure
of the Deliverable to meet the Acceptance Criteria, within
the timeframe required by clause 4.7(b), then the Customer
will be deemed to have accepted the Deliverable and the
Services.
If the Customer provides Creagency with a notice of a
failure of a Deliverable to meet the Acceptance Criteria,
Creagency must use reasonable endeavours to promptly rectify
the failure and notify the Customer when rectification is
completed. The Customer will then repeat the Acceptance
Tests.
Customer’s Obligations
Where the Services are to be provided at the Customer’s
premises:
(a) the Customer will provide a safe workplace and all necessary access, equipment, materials, information, facilities, services and accessories reasonably required by Creagency for the performance of the Services;
(b) Creagency will comply with the Customer’s reasonable directions and such reasonable policies and procedures as are provided to Creagency;
The Customer contact nominated in the SOA will be
Creagency’s primary contact unless Creagency is otherwise
notified in writing by the Customer and the Customer contact
must be authorized to:
(a) advise Creagency on project requirements, access, security procedures and any other matter within the Customer’s knowledge or control which will assist Creagency in complying with its obligations under the Agreement;
In addition to the person referred to in clause 5.2, the
Customer must provide sufficiently qualified and
knowledgeable resources who are capable of performing any
Customer obligations and such other tasks as may be
reasonably required to facilitate the performance of the
Services. Unless otherwise stated in the SOA, all project
management and achievement of Deliverable in relation to
Services is the responsibility of the Customer.
The Customer acknowledges and agrees that the performance of
the Customer’s obligations is material to Creagency’s
ability to provide the Services. Whilst Creagency will make
all reasonable efforts to work around any failure on the
part of the Customer to perform its obligations, Creagency
may revise the SOA and or Charges, make any reasonable
Additional Charges or suspend the SOA at its option, if the
Customer’s failure to perform impacts on Creagency’s
ability to commence or proceed with the Services.
If the Customer discloses any personal information (as
defined in the Privacy Act 1988) to Creagency, the Customer
warrants that it has complied with its obligations under the
Privacy Act and that Creagency is entitled to collect and
use the personal information to the extent necessary to
provide the Services without having to provide any
disclosures or notifications to the individual concerned.
Charges
Other than where the Charges are stated as fixed in the SOA,
the Customer will be invoiced for the actual time spent by
Creagency in delivering the Services.
Unless otherwise stated in the SOA, Creagency will invoice
the Customer after the end of each calendar month for the
Services performed in that month.
The Customer will pay the Charges within fourteen (14) days
of receiving an invoice from Creagency.
The Customer will reimburse Creagency for all reasonable
expenses incurred in performing the Services including but
not limited to travel and living expenses. Upon the
Customer’s request Creagency will provide such supporting
expense documentation and receipts as are kept in accordance
with Creagency’s internal expense reimbursement policy.
If the Customer disputes the whole or any portion of the
amount claimed in an invoice submitted by Creagency, the
Customer must pay the portion of the amount stated in the
invoice which is not in dispute and must notify Creagency in
writing (within seven days of receipt of the invoice) of the
amount in dispute and the reasons for disputing that amount.
If it is resolved that some or all of the amount in dispute
was properly payable, then the Customer must pay the amount
finally resolved together with interest on that amount in
accordance with clause 6.8 such interest to be calculated
from the due date for payment of the invoice.
The Charges are exclusive of taxes, duties and charges
imposed or levied in Australia or overseas in connection
with the Services. The Customer is liable for all such
taxes and any new taxes, duties or charges imposed after the
date of the SOA.
Without limiting clause 6.6, to the extent that any supply
under or in connection with this Agreement constitutes a
taxable supply as defined in A New Tax System (Goods and
Services Tax) Act 1999, as amended from time to time, (the
GST law), the consideration payable will automatically be
increased to include an additional amount on account of
goods and services tax (GST). That amount will be the
product of the value of the consideration for the supply and
the prevailing GST rate.
Overdue payments will bear interest at the lesser of one
percent (1%) per month or the maximum rate allowed under
applicable law. Despite charging interest, if Charges are
not paid within thirty (30) days Creagency may, at its sole
discretion suspend or terminate the Services and or
terminate the Agreement by notice to the Customer.
Confidentiality
The Recipient must only use the Discloser’s Confidential
Information for the purpose for which it was supplied.
The Parties will protect each other’s Confidential
Information with at least the same degree of care and
confidentiality that it uses to protect its own information
that it does not wish disclosed to the public but not less
than a reasonable standard of care.
The Recipient must not, without the prior written approval
of the Discloser, disclose the Discloser’s Confidential
Information.
The Recipient is not in breach of clause 7. 1 in
circumstances where it is legally compelled to disclose the
Discloser’s Confidential Information provided that the
Recipient:
(a) notifies the Discloser of the requirement prior to disclosure;
(b) makes diligent efforts to avoid and or limit the disclosure;
(c) seeks confidential treatment of the information so required to be disclosed; and
Subject to clause 7.7, the Recipient must only disclose the
Confidential Information to those employees, agents and any
sub-consultants who are engaged in the performance of the
Agreement or otherwise have a need to use or access the
Confidential Information.
Each Party must take all reasonable steps to ensure that its
employees, agents, and any sub-consultants engaged for the
purposes of the Agreement, do not make public or disclose
the Discloser’s Confidential Information.
Creagency may at any time require the Customer to arrange
for its employees, agents or sub-consultants engaged in the
performance of the Agreement to execute a suitable
confidentiality deed. The Customer must arrange for all such
deeds to be executed within the timeframe reasonably
proposed by Creagency.
Notwithstanding any other provision of this clause,
Creagency may disclose the terms of the Agreement (other
than Confidential Information of a technical nature) to its
related companies, solicitors, auditors, insurers and
accountants.
The Recipient will have no confidentiality obligation with
regard to information to the extent it is or becomes
generally known to the public without any fault on the part
of the Recipient.
The Recipient must return or destroy all Confidential
Information as and when directed by the Discloser provided
that Creagency may retain a copy of any Confidential
Information provided by the Customer in order to keep
appropriate records and an audit trail of the Services
performed.
It will not be a breach of clause 7 if Creagency
discloses to third parties that Creagency is providing
Services to the Customer.
This clause survives the termination of the Agreement.
Ownership of Deliverables
The Customer acknowledges that, unless and to the extent
stipulated to the contrary in the SOA, Creagency retains all
Intellectual Property Rights associated with any
Deliverables.
If the Customer has fully complied with the Agreement,
and subject to any restrictions specified in the SOA,
Creagency grants the Customer a perpetual, non-exclusive and
non-transferable licence to use the Deliverables but only
for the purpose for which they were created.
If and to the extent it is provided in the SOA that
title in the Deliverables is to vest in the Customer, then
title only vests in the Customer when the Customer has paid
the Charges due under the SOA in full. The Customer
acknowledges that vesting of title in any Deliverables does
not affect the Intellectual Property Rights in any
pre-existing material (including but not limited to
software, documentation and data) which is incorporated into
the Deliverables, or any enhancements to this material which
remains the property of Creagency.
If requested by Creagency, the Customer must issue a notice
in a form approved by Creagency to all employees and other
authorised users of the Deliverables under its direction or
control, advising such persons of the Customer’s
obligations under this clause and also advising of the
possible civil and criminal consequences of a breach of this
clause.
Intellectual property rights
Subject to clauses 9.2, 9.4 and 9.5, Creagency will
indemnify the Customer against liability under any final
judgment in proceedings brought by a third party against the
Customer which determine that the Customer’s use of any
Deliverables constitutes an infringement of Intellectual
Property Rights.
Creagency will not indemnify the Customer unless the
Customer:
a)notifies Creagency in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;
b)gives Creagency the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;
c)provides Creagency with reasonable assistance in conducting the defence of such a claim;
d)permits Creagency to modify, alter or substitute the infringing part of the Deliverables, at its own expense, to render the Deliverables non-infringing; and
If Creagency cannot reasonably render the Deliverables
non-infringing or obtain authorisation for the Customer to
continue using the Deliverables, Creagency may terminate the
SOA, take back the affected Deliverables and refund the
Charges paid for the affected Deliverables, less a
reasonable charge for use to the date of termination.
Creagency will not indemnify the Customer if such
infringement, suspected infringement or alleged infringement
arises from:
a)the creation of Deliverables in accordance with the Customers specifications or requirements;
b)use of the Deliverables in combination by any means and in any form with other goods or services not provided by Creagency;
c)use of the Deliverables in a manner or for a purpose not reasonably contemplated or not authorised by Creagency;
d)modification or alteration of the Deliverables other than by Creagency; or
In the event that proceedings are brought or threatened by a
third party against the Customer alleging that the
Customer’s use of the Deliverables constitutes an
infringement of Intellectual Property Rights, Creagency may
at its option and at its own expense conduct the defence of
such proceedings. The Customer must provide all necessary
co-operation, information and assistance to Creagency in the
conduct of the defence of such proceedings.
The Customer must indemnify Creagency against any loss,
costs, expenses, demands or liability, whether direct or
indirect, arising out of a claim by a third party alleging
such infringement if:
or
or 9.5.
This clause 9 states the entire liability and obligations of
Creagency and the exclusive remedy of the Customer, with
respect to any actual or alleged infringement of
Intellectual Property Rights arising out of or in connection
with any Services.
Employees and contractors
Neither Party will hire for employment, either directly
or indirectly, any person who is directly involved in the
provision of the Services, while the Services are being
provided or for a period of six months after completion of
the Services. If a Party fails to comply with this
provision that Party agrees to pay the other:
(a) where the person charges out billable time, an amount equal to six (6) months consulting fees at that person’s current daily rate; or
(b) where that person does not charge out billable time, an amount equal to six (6) months of the total remuneration of the person,
A Party must promptly advise the other Party if a person
who is employed or contracted by the other Party seeks to be
employed or contracted by the firstmentioned Party whilst
still employed by the other Party.
Implied terms and liability
Subject to clause 11.2, any term, condition or warranty
which would otherwise be implied in the Agreement is hereby
excluded.
Where legislation implies in the Agreement any term,
condition or warranty, and that legislation avoids or
prohibits provisions in a contract excluding or modifying
the application of or exercise of or liability under such
term, condition or warranty, then the term, condition or
warranty is deemed to be included in the Agreement.
If Creagency is liable to the Customer:
for breach of a non-excludable implied term, condition or
warranty; or
(b) under the Agreement and the Customer notifies Creagency of its claim within ninety (90) days of the claim accruing;
then: (c) to the extent permitted by law, the liability of Creagency is limited, at the option of Creagency, to one or more of the following: A)if the breach relates to goods: i)the replacement of the goods or the supply of equivalent goods; ii)the repair of such goods; iii)the payment of the cost of replacing the goods or of acquiring equivalent goods; or iv)the payment of the cost of having the goods repaired; and B)if the breach relates to services: i)the supplying of the services again; or
Limitation of Liability
Except as otherwise specifically provided in the
Agreement and to the extent permitted by applicable law:
(a) Creagency will not be liable for incidental, consequential, or special damages including, without limitation, lost data, revenues, or profits howsoever arising (including from negligence);
Creagency is otherwise liable to the Customer, Creagency’s
liability is limited to a maximum amount equal to the
Charges paid by the Customer under the SOA to which the
claim relates.
Termination
The Agreement will remain in effect until terminated by a
Party under clause 13.2 or 13.3. For the avoidance of
doubt, if the Agreement is terminated under clause 13.3, the
SOA terminates notwithstanding that the Services may not
have been completed.
Either Party may terminate the Agreement for convenience
by giving sixty (60) days notice to the other Party provided
that termination will not take effect until all Services
under the uncompleted SOA have been completed and all
amounts payable under the SOA have been paid to Creagency.
Without limiting the generality of any other clause in
the Agreement, a Party may terminate the Agreement
immediately by notice in writing to the other Party if:
a)the other Party is in breach of any term of the Agreement and such breach is not remedied within thirty (30) days of a notice of the breach;
b)a Party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration or is unable to pay its debts as and when they become due;
If notice is given to the Customer pursuant to clause
13.3, Creagency may, in addition to terminating the
Agreement:
a)repossess any of its property in the possession, custody or control of the Customer;
b)retain any moneys paid;
c)charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
d)be regarded as discharged from any further obligations under the Agreement; and
Force Majeure
Neither Party is liable for any delay or failure to
perform its obligations (other than to pay money) under the
Agreement if such delay is due to Force Majeure.
If a delay or failure of a Party to perform its
obligations is caused or anticipated due to Force Majeure,
the performance of that Party’s obligations will be
suspended.
If a delay or failure by a Party to perform its
obligations due to Force Majeure exceeds sixty (60) days,
either Party may immediately terminate the Agreement on
providing notice in writing to the other Party.
If the Agreement is terminated pursuant to clause 14. 3,
Creagency must refund moneys previously paid by the Customer
under the Agreement for Services not provided by Creagency.
Disputes
If a difference or dispute arises between the Parties in
connection with this Agreement, the Parties agree to use
their reasonable endeavours to resolve the Dispute by
discussions in good faith between senior management of the
Parties. Any difference or dispute does not relieve the
Customer of its obligation to pay Charges when they are due
for payment.
Entire agreement
This Agreement constitutes the entire agreement between
the Parties and supersedes all prior representations,
agreements, statements and understandings, whether verbal or
in writing. If the Customer issues a purchase order or
other document covering the subject matter of this
Agreement, it is agreed that such purchase order or other
document is for the Customer’s internal purposes only and
is not legally effective.
Assignment and novation
The benefit of this Agreement cannot be assigned by
either Party without the written consent of the other Party.
Waiver
No right under this Agreement will be deemed to be waived
except by notice in writing signed by each Party.
A waiver made by a Party under clause 18. 1 will not
prejudice that Party’s rights in respect of any subsequent
breach of the Agreement by the Customer.
Subject to clause 18. 1, any failure by a Party to
enforce any clause of this Agreement, or any forbearance,
delay or indulgence granted by that Party to the other, will
not be construed as a waiver of any rights under this
Agreement.
Variation
This Agreement can only be varied by an agreement in
writing signed by both Parties provided that:
(a) only the Creagency Representative nominated in the SOA can sign a variation to the details in the SOA; and
If either Party proposes to vary the Agreement, the
proposing Party must submit a copy of the proposed
variations to the other Party. The receiving Party will
advise the proposing Party within four (4) normal working
days of receipt of the variations that it accepts or rejects
the variations.
If the receiving Party accepts the variations, the
Parties must sign a variation to the Terms and Conditions or
the SOA (as the case may be) in accordance with clause 19.1
incorporating the accepted variations.
A variation will not be effective until the Parties agree
in writing as to:
a)the effect of the variation, if any, upon the Charges; and
If the receiving Party rejects the proposed variations or
a variation is not signed, each Party will perform the
Agreement in accordance with the unvaried terms.
Severability
If any provision of the Agreement is held invalid,
unenforceable or illegal for any reason, the Agreement,
remains otherwise in full force apart from such provisions
which are deemed deleted.
Creagency’s rights
Any express statement of the rights of Creagency under
this Agreement is without prejudice to any other right of
Creagency expressly stated in this Agreement or existing at
law.
Creagency’s status
Creagency is an independent contractor and has no
authority to act on behalf of or bind the Customer in any
way.
Survival of agreement
Subject to any provision to the contrary, this Agreement
enures to the benefit of and be binding upon the Parties and
their successors, trustees, permitted assigns or receivers
but does not enure to the benefit of any other persons.
The covenants, conditions and provisions of this
Agreement which are capable of having effect after the
termination of the Agreement remain in full force and effect
following the termination of the Agreement.
General
This Agreement shall be governed by and construed under
the laws of New South Wales, Australia and the parties
accept the exclusive jurisdiction of the New South Wales
Courts.
The Customer acknowledges that the Customer is not
relying upon any representations or statements as to the
subject matter of this Agreement except as specifically set
out in this writing.
Any action against Creagency under the Agreement must be
brought within two years after the cause of action accrues.
All notices shall be in writing and shall be by personal
delivery, facsimile or first class post, postage prepaid.
Notices to the Customer shall be sent to its address in the
SOA to the attention of the named Customer contact. Notices
to Creagency shall be sent to its address in the SOA
attention: Company Secretary. Notices are effective on
delivery in the case of personal delivery, on receipt in the
case of facsimile if received on a business day or otherwise
at the commencement of the first business day following
transmission and five (5) days after mailing in the case of
post.
This Agreement may be executed in counterparts, each of
which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the
same agreement, provided that this Agreement shall be of no
force and effect until the counterparts are exchanged.