Parties
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Novo3 Pty Ltd, ABN 90 647 905 486, Suite 211, 12 Corporate Drive, Heatherton, Victoria, 3202 (Novo3).
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Customer, ‘you’ or ‘your’ named in all Novo3 SoWs, proposals and Products and/or Services.
Background
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Novo3 is in the business of supplying information systems management and related services in the nature of the Services and has represented to Customer that it has the expertise and capability and is willing to provide the Services in accordance with this Agreement.
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Customer (you or your) wishes to access and use the Products and/or Services.
1.Definitions and interpretation
1.1Definitions
In this document, unless the context requires otherwise:
Agreement means this document, including any schedule, annexure or amendment to it.
Background Intellectual Property means all Intellectual Property Rights contributed by a party to this Agreement or incorporated into the Services that a party:
(a) owned at the Commencement Date, or the date when Novo3 first commenced providing Services (whichever is earlier); or
(b) acquired or developed independently of the Services.
Business Day means a day that is not a Saturday, Sunday or any other day, which is a public holiday.
24/7 means “24 hours a day, 7 days a week” and is used to describe a service, such as computer server monitoring, that is continuous, is always available (day or night), or involves products that can run constantly without disruption or downtime
Charges means the fixed monthly charges and other charges which are payable by Customer to Novo3 for the Services under a Customer Contract.
Claims means actions, suits, causes of action, arbitrations, debts, Loss, dues, costs, claims, demands, verdicts, orders and judgments either at law or in equity or arising under a statute and whether or not the matters giving rise to those claims are known to the parties at the date of this Agreement.
Commencement Date means the date of commencement of this Agreement, as specified Item 1 of Schedule 1.
Confidential Information of a party (the Discloser), as disclosed to the other party (the Recipient) means information of or relating to the Discloser, or business, property, affairs, officers, personnel, customers, methods, processes, technologies, or research of the Discloser:
(a) which is of a confidential nature;
(b) which the Recipient knows or ought reasonably to know is confidential; or
(c) which is identified as being confidential,
but excludes information which:
(e) was obtained from a third party without breach of any obligation of confidentiality; or
(f) was already in the possession of the Recipient prior to its disclosure without any obligation of confidentiality.
Corporations Act means the Corporations Act 2001 (Cth), as amended from time to time.
CPI means the Australian All Groups Consumer Price Index for Australia’s Eight Capital Cities issued by the Australian Statistician.
Fixed Charges means the fixed monthly charges and other charges which are payable by Customer to Novo3 for the Services pursuant to this Agreement.
Initial Term means the period specified as such in Item 2 of Schedule 1.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means the occurrence of any one or more of the following events in relation to any person:
(a) an application is made to a court for an order that it be wound up or that a provisional liquidator or receiver or receiver and manager be appointed unless the application is withdrawn, struck out or dismissed within 14 days of being made;
(b) a liquidator or provisional liquidator is appointed;
(c) an administrator or a receiver or receiver and manager is appointed to any of its assets;
(d) it enters into an agreement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors;
(e) it proposes a reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors, or its winding up or dissolution;
(f) it is insolvent as disclosed in its accounts or otherwise, states that it is insolvent or it is presumed insolvent under an applicable Law;
(g) it becomes insolvent under administration as defined in section 9 of the Corporations Act or action is taken which would result in that event;
(h) it is taken to have failed to comply with a statutory demand at the end of a relevant period as a result of section 459F(1) of the Corporations Act;
(i) a notice is issued under sections 601AA or 601AB of the Corporations Act;
(j) a writ of execution is levied against it or its property;
(k) any other secured creditor taking action to enforce its security; or
(l) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in relation to copyright, future copyright, patents, business and domain names, trademarks, designs, inventions and trade secrets, know how, rights in relation to circuit layouts and Confidential Information and all other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields. These rights include:
(a) all rights in all applications to register those rights;
(b) all renewals and extensions of these rights; and
(c) all rights in the nature of these rights, including moral rights.
Loss means, in relation to any person, any damage, loss, cost expense or liability incurred by the person or any claim, action, proceeding or investigation made against the person however arising and whether present or future, fixed or unascertained, actual or contingent.
Monitoring means to monitor the IT infrastructure and related events. Ensure that sufficient chronological information is being stored in operations logs to enable the reconstruction, review and examination of the time sequences of operations and the other activities surrounding or supporting operations.
Premises means all premises occupied by Customer during the term of this Agreement.
Personnel of a party means the officers, employees, volunteers, consultants, contractors (including subcontractors and their personnel) and agents of that party.
Privacy Laws means the Privacy Act 1988 (Cth) and all other laws governing the protection and privacy of personal information in Australia.
Service Provider Material means any policies, procedures, specifications, code, scripts, applications, tools, templates and any associated documentation owned by, licensed to or supplied by Novo3, excluding any Customer Material and any Developed Material.
Services means the services described in the Scope of Work (SOW), and as varied by the parties in writing from time to time in accordance with the Services Variation Procedure, but does not include any out of scope services.
Services Variation Procedure means the procedure described in Clause 8 (Services Variation Procedure).
Term means Initial Term and as may be extended under this Agreement.
Third Party Software means any software which is owned or licenced from a third party to Customer.
1.2 Interpretation
(a) Words importing the singular meaning include the plural and vice versa, any reference to a “person” includes a corporation and words importing one gender import all others.
(b) References to any legislation or to any provision of any legislation shall include any modification or re-enactment, or any legislation or legislative provision substituted for or corresponding or similar to, and all legislative and statutory instruments issued under such legislation or such provision.
(c) Where a reference is made to a document or agreement or a provision of a document or agreement, such reference shall be deemed to refer to that document, agreement or provision as amended, supplemented, replaced or novated.
(d) A reference to a clause, paragraph, item or schedule is a reference to a clause, paragraph, item or schedule of this Agreement.
(e) A reference to a party to a document includes that party’s legal personal representatives, heirs, executors, administrators, beneficiaries, successors and permitted assigns.
(f) A reference to “$” or “dollars” is to Australian currency.
(g) Headings and any table of contents or index are for convenience only and do not affect the interpretation of this Agreement.
(h) Where an expression is defined, it has the same meaning throughout the Agreement.
(i) “Including” and other similar words are not words of limitation.
(j) General words following words describing a particular class or category are not restricted to that class or category.
2. Term
2.1 This Agreement commences on the Commencement Date in Schedule 1 and/or on the date that you commence using Novo3’s Products and/or Services and continues in effect until you cease using Novo3’s Products and/or Services or subject to extension under Clause 2.2 or earlier termination under this Agreement.
2.2 Customer has the option to renew this Agreement for a mutually agreeable term after the initial term has been served as detailed in Schedule 1 with the ability to review all schedules under this Agreement.
2.3 Customer may renew the option only if:
(a) At the time of the service of notice, Customer has complied with all of its obligations under this Agreement.
2.4 The new agreement will be on the same terms as this Agreement with the option to review and propose changes such as:
(a) the Commencement Date and Term will be amended accordingly;
(b) CPI increase will be proposed in writing for further discussion and mutual agreeance prior to being applied.
(c) any other matters either party proposes for amendment and in agreement with the other party as evidenced in writing.
4. Services
(a) Novo3 will supply the Services in respect of the Baseline IT Infrastructure at the Premises:
(i) with due care and skill and within the time periods and milestones as specified within this Agreement and/or scope of works provided;
(ii) in a proper, competent and professional manner;
(iii) in a manner in which Novo3 uses its best endeavours to achieve the Service Levels; and
(iv) all applicable laws.
(b) Novo3 must obtain and maintain all relevant regulatory and intellectual property licences to deliver the Services.
4.1 Variations
4.1 Variations
(a) Novo3 and Customer acknowledge that the Services, Premises, Service Levels or the Baseline IT Infrastructure may need to be varied from time to time, in accordance with the Services Variation Procedure described in Clause 8.
(a) Novo3 must, at its cost, obtain and maintain all appropriate internal licences and approvals to provide its Services under this Agreement
(b) Novo3 must provide to Customer, upon request, evidence of such licences and approvals.
5. Service Levels
5.1 Novo3 must use its best endeavours to meet the Service Levels.
6. Service Fees and Payment Terms
6.1 Customer offers to provide the Services for the Service Fees.
6.2 The obligation to pay the Service Fees is defined within this Agreement.
6.3 All prices set out in this Agreement are exclusive of GST and firm for the initial contract term and open for review upon any extension of the contract term.
7. GST
7.1 In this Clause 7 the expressions “adjustment note”, “consideration”, “GST”, “supply”, “tax invoice”, “supplier”, “recipient” and “taxable supply” have the meanings given to those expressions in the GST Act.
7.2 For the avoidance of doubt, “GST” excludes any penalties or additional tax imposed in relation to the GST.
7.3 Unless otherwise expressly stated, the consideration to be provided or payment obligation under this Agreement is exclusive of GST.
7.4 Despite any other provision in this Agreement, if GST is imposed on any supply made under this Agreement, the recipient must pay to the supplier an amount equal to the GST payable on the supply.
7.5 The recipient must pay the amount referred to in Clause 7.4 in addition to and at the same time as payment for the supply is required to be made under this Agreement.
7.6 If a supply is made to which GST applies or is varied under this Agreement, the supplier must provide to the recipient of the supply a valid tax invoice or adjustment note at or before the time of payment or variation.
7.7 If the amount of GST paid or payable by the supplier on any supply made under this Agreement differs from the amount of GST paid by the recipient, because the Commissioner of Taxation lawfully adjusts the value of the taxable supply for the purpose of calculating GST, then the amount of GST paid by the recipient will be adjusted accordingly by a further payment by the recipient to the supplier or the supplier to the recipient, as the case requires.
7.8 If a supply is made to which GST applies or is varied under this Agreement, the supplier must provide to the recipient of the supply a valid tax invoice or adjustment note at or before the time of payment or variation.
8. Services Variation Procedure
8.1 Either party may request a variation at any time by written notice to the other party (Variation Request). A Variation Request will be in writing and signed by both parties to form an amendment to this agreement clearly articulating the change(s) to applicable clause(s), schedules or rates if change in scope identifies additional costs.
8.2 Where a party makes a Variation Request:
(a) Novo3 will prepare and submit to Customer a quote for the variation (Change Variation Quote) within 14 days of the Variation Request.
(b) As applicable, Customer will decide within 10 Business Days (or such other time as agreed by the parties) whether to accept or reject the Variation Quote. If Customer rejects the Variation or 10 Business Days (or such other time as agreed by the parties) lapses, the Services will remain without variation.
9. Default and Termination
(a) Novo3 is deemed to have committed an Event of Default, if at any time any of the following occur (each being an independent event or occurrence, separate and distinct from any other):
(i) Novo3 breaches a term of this Agreement other than in relation to a Service Level; or
(ii) Novo3 suffers an Insolvency Event; or
(iii) In relation to a Service Level:
(A) Novo3 fails to meet any consecutive P1 or P2 Service Level and fails to remedy that default within 72 hours, over a 3 month period;
(B) Novo3 fails to meet any Service Level and fails to rectify remedy that default within 30 days;
(C) Novo3 repeatedly or persistently fails to meet any Service Level on more than 10 occasions in any 3-calendar month period (whether or not that breach has been remedied).
(a) If an Event of Default occurs under Clause 9.1(a); and Customer wishes to terminate this Agreement, then
(i) Customer must provide written notice of the default to Novo3 providing 20 Business Days to remedy the default (except in the case of an Insolvency Event).
(a) If Customer is deemed to have committed an Event of Default, if at any time any of the following occur:
(i) that Customer breaches a term of this Agreement; or
(ii) that Customer suffers an Insolvency Event.
(b) Where Customer defaults under any circumstance, all fees and charges associated with debt recovery will be on charged to Customer.
(a) If an Event of Default occurs under Clause 9.2(a) and Novo3 wishes to terminate this Agreement, then
(i) Novo3 must provide written notice of the default to Customer by providing 20 Business Days to remedy the default (except in the case of an Insolvency Event).
9.5 Termination for convenience
(a) Customer or Novo3 may terminate this Agreement upon ninety days (90) written notice without reason and without right to sue for breach of agreement provided for in Clause 9.6.
9.6 Consequence of Termination
(a) Termination of this Agreement shall not affect any other rights to which a party may be entitled under this Agreement, a Customer Contractor at law (including the right to sue for damages arising as a result of any breach of this Agreement and/or a Customer Contract and any accrued rights or liabilities of either party).
10. Novo3’s Responsibilities
10.1 Without limiting any other provision of this Agreement, Novo3 will, at all times during the Term and in the provision of the Services:
(a) use reasonable endeavours to improve the standard of Services being provided by undertaking continuous improvement measures, and actively seek to identify and implement means of improving the standard or cost effectiveness of the Services in cooperation with Customer;
(b) not at any time do anything which directly or indirectly impairs or is likely to impair the good name and reputation of Customer; and
(c) perform its obligations using appropriately qualified and experienced personnel.
(d) Ensure all of its employees who are instructed to carry out work at any of the Customer Premises are inducted and hold compliance at an individual level prior to carrying out work on site. Novo3 further agrees that should any of its employees fail to adhere to this provision, they will not be permitted on site and Customer will not be liable for the cost of lost hours to the non-compliance of the contractor or subcontractor representing Novo3.
(e) Agree that Customer is not responsible for any costs that may be incurred by Novo3, its employees, contractors or subcontractors to meet the requirements of Customer compliance requirements.
11. Confidentiality
11.1 Each party must:
(a) only use the other party’s Confidential Information solely for the purpose of this Agreement;
(b) maintain and take all steps necessary to maintain all of the other party’s Confidential Information in confidence;
(c) take all reasonable precautions necessary to prevent accidental disclosure of any of the other party’s Confidential Information; and
(d) return immediately upon request all copies of the other party’s Confidential Information. A party may retain one copy of the Confidential Information for corporate governance, claims and insurance purposes.
12. Privacy
12.1 Novo3 must:
(a) comply with all Privacy Laws;
(b) notify Customer immediately in the event of any breach of the privacy, and cooperate with any investigation and remedial action in respect of the breach; and
(c) return or destroy all personal information in relation to this Agreement promptly upon the termination of this Agreement, or at any time during the term of this Agreement upon written instructions from Customer. Customer acknowledges that Novo3 may need to retain copies of some records where required by law.
13. Intellectual Property
13.1 This Clause 15 does not affect the ownership of any Background Intellectual Property. Each party will continue to own their own Background Intellectual Property.
13.2 Subject to Clause 13.3, all Intellectual Property Rights and title in the Developed Material (if any) vests upon its creation jointly in Novo3 and Customer in equal shares.
13.3 To the extent that any Background Intellectual Property of Novo3 is incorporated into Customer Material or the Developed Material Novo3 grants to Customer a limited perpetual, irrevocable, royalty-free, world-wide, non-exclusive licence (including a right of sub-licence) to use, reproduce, modify, adapt, publish, perform, broadcast, communicate, commercialise and exploit the Intellectual Property Rights in the Background Intellectual Property of Novo3 but only for the purposes of the Customer Material or Developed Material.
14. Liaison and Decision
14.1 The parties agree to co-operate and liaise in relation to the Services.
14.2 The continuing need for prompt executive decisions and prompt and appropriate Service Provider recommendations as required in matters relating to Novo3’s services are also a key element.
14.3 Accordingly, Customer and Novo3 each agree to appoint a Contract Manager to manage liaison under this Agreement.
15. Security and Personnel
15.1 During the provision of the Services or when on any Customer Premises, Novo3’s personnel must comply with all of the relevant policies, including in relation to privacy, security, work, health and safety personal conduct, behaviour and dress in accordance to Customer compliance.
16. Liability and indemnity
16.1 Novo3 bears risk and will be liable for any damages, losses or costs incurred by Customer, arising from or otherwise in connection with the Services, including any Claim arising out of:
(a) a breach by Novo3 of this Agreement;
(b) any act or omission of Novo3 or its Personnel in connection with the provision of the Services;
(c) any negligence, recklessness or other wrongful act or omission by Novo3 or its Personnel;
(d) any injury to persons, including resulting in death and economic loss caused or contributed by Novo3 or its Personnel; and
(e) any breach of any Laws or regulatory obligations by Novo3 or its Personnel.
16.2 The liability of Novo3 will reduce proportionally to the extent that:
(a) the relevant Customer personnel caused or contributed to the Loss;
(b) the relevant indemnified party suffering the Loss fails to mitigate the Loss.
16.3 For the avoidance of doubt, the parties acknowledge that a party will not be responsible for the acts or omissions of Third Party Software or system vendors.
16.4 A party will not be liable to the other parties for any indirect or consequential loss or damage (including for loss of profit).
17. Dispute Resolution
17.1 Referral as to the scope and nature of the dispute will be made by either party by written notice to the other party (Notice of Dispute).
17.2 Both parties will meet within 5 Business Days of the Notice of Dispute being received (Notice Date) to discuss the matter in dispute and will negotiate in good faith to resolve the dispute.
17.3 If a dispute cannot be resolved by negotiation as set out above within 20 Business Days of the Notice Date, then either party may refer the Dispute to mediation by written notice to the other party.
17.4 The parties will use their reasonable endeavours to resolve the dispute.
17.5 Each party must pay its own costs of the mediation.
17.6 The appointment of a mediator will be jointly agreed to, or if no agreement can be reached referred to the Law Institute of Victoria to appoint an independent mediator.
17.7 The parties will continue to perform their obligations under this Agreement without prejudice pending resolution of a Dispute.
17.8 This Clause does not restrict or limit the right of either party to obtain interlocutory relief, or to immediately terminate this agreement where this Agreement provides such a right.
18. Force Majeure
18.1 Except for payment obligations, neither party shall be liable for any failure or delay in complying with the terms of this Agreement where such failure or delay directly or indirectly results from events beyond its reasonable control (Force Majeure Event), to the extent that the Force Majeure Event prevents that party from complying with the relevant term of this Agreement.
18.2 The frustrated party is to resume its obligations under this Agreement as soon as it reasonably can after the Force Majeure Event ceases.
18.3 If for any reason because of a Force Majeure Event a party is unable to perform any obligation under this Agreement for a period of 60 calendar days the other party may give written notice to that party to terminate this Agreement.
19. General
Novo3 may subcontract fully qualified parts of the Services to enable it to fulfil the obligations under this Agreement. Novo3 shall remain liable for the acts or omissions of such agents or subcontractors as if they were acts or omissions of Novo3.
This Agreement is governed by and construed in accordance with the law for the time being in force in Victoria, Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.