TERMS AND CONDITIONS 

Definitions and Interpretation 

In this Agreement, unless the context otherwise requires or permits: 

Business Day means any day that is not a Saturday, Sunday, gazetted public holiday or bank holiday in Australia, and concludes at 5 pm on that day; 

Confidential Information means, in respect of each party (Disclosing Party), all: 

information which is proprietary to, about or created by the Disclosing Party including, without limitation, any business plans, pitches, marketing, branding, forecasts, staffing, recruitment and all other information which is used or created by the Disclosing Party in relation to its business; 

information which relates to any actual or potential business, property or transaction (including this Agreement) in which the Disclosing Party may be or has been concerned or interested, or information the disclosure of which could be detrimental to the interests of the Disclosing Party; 

information which is designated as being Confidential Information by the Disclosing Party; and 

information which from all the relevant circumstances could reasonably be assumed by the other party to be confidential and proprietary to the Disclosing Party or to any third party with whose consent or approval the Disclosing Party uses that information. 

Fees means any fees, charges or expenses that are due and payable by the Client to the Service Provider under this Agreement; 

Force Majeure Event means strikes, lock-outs, or other labour disputes, riots, civil disturbance, actions or inaction of governmental authorities, epidemics, wars, embargoes, storms, floods, fires, earthquakes, acts of God or the public enemy, computer downtime, nuclear disasters or default of a common carrier;  

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

Intellectual Property Rights means any and all intellectual and industrial property rights subsisting in any part of the universe in any and all media (whether now known or created in the future) including, without limitation, rights in the nature of copyright, registered design or other design right, trade mark, patent rights, circuit layout rights, trade secrets and any corresponding proprietary rights (whether registered or common law) under the laws of any jurisdiction throughout the world; 

Microsoft Digital Partner of Record (DPOR) means the on-line capability to attach a Microsoft partner organisation to the Client’s Microsoft on-line subscription.  DPOR benefits the Client in that helps Microsoft customers optimise their usage of Microsoft products for desired business outcomes. 

pmo365 means the software, templates, fields, forms, workflows, reports, dashboards and utility applications, and/or services provided by the Service Provider under this Agreement (as amended from time to time in accordance with this Agreement); and 

Works means any and all products, tangible or otherwise, developed, created, procured or provided by the Service Provider in connection with this Agreement, including pmo365, pmo365 prototypes, models, templates, pmo365 code, pmo365 applications, any deliverables, plans, designs, drawings, tables, spreadsheets, databases and any products developed or created incidental to or as part of the process of developing or creating some other product, and shall include any products that were developed, created or procured by the Service Provider prior to this Agreement; 

In this Agreement, unless the context otherwise requires or permits: 

the use of headings, under-linings or marginal notes are included for convenience and ease of reference only and do not affect interpretation of this Agreement; 

references to a party will include as the context requires that party’s respective executors, administrators and successors; 

references to any agreement or document are references to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented, varied or replaced from time to time; 

references to any legislation or legislative provision will include modifying, consolidating, or replacing legislation or legislative provisions; 

references to a “breach of warranty” includes that warranty not being complete, true or accurate; 

the words “including” and “includes” and similar words are not words of limitation; 

a requirement to do anything includes a requirement to cause that thing to be done and a requirement not to do anything includes a requirement to prevent that thing being done;  

a provision of this Agreement is not to be construed adversely against a party solely on the ground that the party or its solicitors were responsible for the preparation of this Agreement or the particular provision thereof; and  

if the day on which any act, matter or thing is to be done under or pursuant to this Agreement is not a Business Day, that act, matter or thing may be done on the next Business Day. 

In the event of and to the extent of any conflict between any provisions stated in this Agreement and where it is unclear which provision is to prevail, the following is the order in which they shall have priority in descending order of importance: 

the Principal Terms & Conditions; 

any annexures and/or schedules to this Agreement; and 

these General Terms & Conditions. 

Provision of pmo365  

The Service Provider must exercise all due care and skill that is reasonably expected of a service provider of its kind and type, and having regard to the Service Provider’s knowledge of the facts, matters and circumstances, in the provision of pmo365 to the Client under this Agreement. 

In providing pmo365, or other materials developed by the Service Provider and provided to the Client in satisfaction of any obligations under this Agreement, must comply with any requirements and specifications set out in this Agreement. 

In providing pmo365 or other materials developed by the Service Provider and provided to the Client in satisfaction of any obligations under this Agreement must be reasonably fit for the purpose in which it was developed having regard to the Service Provider’s knowledge of the facts, matters and circumstances, including the terms and conditions of this Agreement. 

The parties acknowledge and agree that they must do all things reasonably necessary and appropriate to fulfil their obligations as described in this Agreement, including cooperating with the other party and any named third parties, that is required to facilitate the provision of the Services. 

In provision of pmo365, the Service Provider may present, deliver, procure or provide any version, rendition, build or unfinished or incomplete copy of any software, including pmo365, developed pursuant to this Agreement to the Client for testing and feedback in accordance with this Agreement. 

Payment of Fees  

The Client must pay the Fees due to the Service Provider in accordance with the Principal Terms & Conditions and this clause 3, and Annexure B (Schedule of Fees). 

Any invoices issued by the Service Provider to the Client in respect of the Fees must be a valid tax invoice that complies with any applicable laws and regulations. 

The parties acknowledge and agree that: 

the consideration due or payable to the Service Provider for the provision of the Services under this Agreement has been calculated without regard to, and is exclusive of, any GST; 

if any GST is imposed on any supply made under this Agreement, the supplying party may recover from the recipient party, in addition to any consideration payable for the supply, the GST amount provided that the supplying party has provided to the recipient party an invoice; and 

if the recipient party is required to pay any GST amount in accordance with this clause 3, the recipient will pay the GST amount at the same time as the consideration is due for the supply of goods, service or any other thing under this Agreement. 

If the Client disputes any Fees, it must provide written notice thereof to the Service Provider within ten (10) Business Days of receipt of any invoice relating to those Fees, including an explanation of the dispute. 

Intellectual Property 

Nothing in this Agreement transfers or assigns ownership of any Intellectual Property Rights of either Party hereto and each Party retains ownership of all intellectual property rights it develops or brings to this Agreement. 

Nothing in this Agreement requires the development of any joint intellectual property.   If the Parties intend to develop any joint intellectual property, the Parties will enter into a separate Joint development Agreement to address the terms and conditions governing such development efforts before they commence 

For the avoidance of doubt, the Service Provider shall own all right, title and interest in and to all of the Service Provider’s pre-existing property and assets, the Service Provider’s confidential  

information including all patents, copyrights, trade secrets and other intellectual property rights therein anywhere in the world. 

For the avoidance of doubt, the Client shall own all right, title and interest in and to all of the Client’s preexisting property and assets, the Client’s confidential information, including all patents, copyright, trade secrets and other intellectual property rights therein anywhere in the world. 

Warranties and Indemnities 

The Service Provider hereby warrants, represents, undertakes and agrees that: 

the Service Provider has the full right, power and authority to enter into and perform this Agreement and to assign and transfer all rights and benefits hereby granted to the Client free from all encumbrances; 

it must comply with the Privacy Act 1988 (Cth) (including the Australian Privacy Principles thereunder as if it were an “APP entity” as defined in that legislation) when handling the Client’s data and will not disclose or deal with the Client’s data, including by way of sale, lease, disposal, publication, transmission to a third party or to otherwise use it in any other way, for any purpose without the Client’s prior permission; 

that pmo365 does not, and its use will not, infringe or make unauthorised use of the rights (including Intellectual Property Rights) of any person; and 

it must comply with all applicable laws when providing pmo365. 

Insurance 

The Service Provider will, at its expense, effect and keep current with a reputable insurance company, for the Term of this Agreement, the following policies of insurance: 

a professional indemnity insurance of not less than A$10,000,000 per claim; 

public liability insurance of not less than A$20,000,000 per claim; and 

workers compensation insurance in accordance with law. 

The Service Provider will provide to Client upon request a certificate of currency for the insurance policies specified in clause 6.1. 

The Service Provider will not at any time do or allow anything which may either render the insurances described in clause 6.1 void or voidable. 

Confidentiality and Privacy 

Each party (Recipient) agrees at all times during and for so long as is legally permissible after the termination, expiration or cessation of this Agreement to keep confidential the Confidential Information of the other party and will not disclose or discuss the same without the prior written approval of that other party, except: 

as specifically provided by this Agreement or as permitted or required by law; 

to the extent required to perform any of the Recipient’s obligations under this Agreement; 

to the extent required to instruct the Recipient’s professional advisers in relation to the preparation, completion and performance of this Agreement; 

where the information is or becomes public knowledge, but not if it is because the Recipient has contravened a confidentiality obligation under this clause 7, and such public knowledge is notified and agreed in writing by the parties; or 

where the information becomes known to the Recipient after the date of this Agreement other than as the result of a breach of duty of confidentiality to the other party and such subsequent knowledge is notified and agreed in writing between the parties. 

The Recipient must not sell, transfer, assign or otherwise dispose of or grant any licence in relation to any Confidential Information or make available copies (whether by photocopying, photographic reproduction or by electronically recorded data) of any Confidential Information to any person other than with the prior written consent of the other party. 

Dispute Resolution  

In the event of a dispute, controversy or claim (Dispute) arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, the party raising such Dispute must notify the other party of the existence and nature of the Dispute, within thirty (30) days, by serving a notice on the other party setting out detailed particulars of the Dispute including, if appropriate, references to documents and provisions which relate to the Dispute, and the parties shall use their best endeavours to resolve the Dispute amicably. If the parties are unable to reach a resolution in this time frame, the next course of action is to escalate to the next level of management to resolve within an additional thirty (30) days, or a timeframe agreed as reasonable between the parties to resolve the dispute based on the nature of the dispute circumstances. 

The parties agree that in the event of a Dispute, a party must not commence any court or arbitration proceedings relating to the Dispute until it has made reasonable attempts to resolve the Dispute with the other party as per clause 8.1, and not, in any case, before the expiration of twenty (20) Business Days after the Dispute was notified to the other party. 

Nothing in this clause 8 prejudices the right of either party to seek urgent injunctive, interlocutory or declaratory relief from a court in connection with a Dispute without first having to attempt to resolve the Dispute in accordance with this clause 8. 

Termination 

Either party to this Agreement may, for any reason whatsoever, terminate this Agreement by serving twenty (20) Business Days’ written notice to the other party (Notice of Termination), and such termination shall be effective 20 Business Days after the Notice of Termination is served (Date of Termination). The Service Provider will be paid for the pmo365 service delivered up until the Date of Termination. 

An “Event of Default” occurs: 

in relation to the either party, if: 

a party breaches this Agreement and such breach is either incapable of remedy or that party fails to remedy such breach within ten (10) Business Days of receiving a notice in writing from the other party specifying the action required of the party in breach to remedy the breach; 

a party persistently fails to comply with the terms and conditions of this Agreement (other than as a result of any changes agreed to by the parties), including a failure by a party to remedy any act or omission which has prevented it from complying with the terms and conditions in this Agreement after ten (10) Business Days of being issued a written notice by the other party demanding the party in breach to remedy such act or omission; 

a court or tribunal makes an order that the Works infringe a third party's Intellectual Property Rights and the Service Provider is unable to implement a workaround or arrange an appropriate assignment or transfer of those Intellectual Property Rights to the Client; or 

a party fails to comply with any provisions in clauses 3 (Fees), 4 (Intellectual Property), 5 (Warranties and Indemnities) and 7 (Confidential Information) of these General Terms & Conditions; 

in relation to a party (the “Defaulting Party”) if: 

the Defaulting Party has a liquidator or provisional liquidator appointed to it, if such appointment is not removed within three (3) calendar months of the initial appointment;  

the Defaulting Party resolves to wind up or is subject to an order to wind up (other than for voluntary restructuring); 

the Defaulting Party has a receiver, receiver and manager or official manager properly appointed to it or in respect of a substantial proportion of its assets or undertakings, if such appointment is not removed within three (3) calendar months of the initial appointment; or 

a court or tribunal makes an order that the Defaulting Party be wound up in insolvency, unless that party successfully appeals such order. 

Where an Event of Default occurs in relation to a party, the other party may terminate this Agreement by notice in writing to the party in respect of whom an Event of Default has occurred, and such termination becomes effective on the date that it is given to or served on the relevant party. 

Upon termination or expiration of this Agreement for whatever reason, the provisions in clauses 4 (Intellectual Property), 5 (Warranties and Indemnities) and 7 (Confidential Information) of these General Terms & Conditions shall continue to apply. In addition, any Fees that are due and outstanding or that have accrued up to the Date of Termination of this Agreement shall remain payable by the Client to the Service Provider insofar as it can be demonstrated that the Fees are referrable to that part pmo365 which has been successfully completed or provided in accordance with this Agreement. 

Limitation of Liability 

Unless otherwise expressly stated to the contrary in this Agreement, in no event will either party have any liability to the other in contract, tort (including negligence) or otherwise, arising under or in connection with this Agreement, in respect of any of the following kinds of losses or damages: 

loss of revenue, loss of profit, loss of goodwill, loss of reputation, loss of anticipated savings, loss of business, loss of contracts; and 

any indirect, special or consequential loss or damage, 

even if the party on whose part liability is alleged has been advised of the possibility of such losses or damages, and both parties shall use their reasonable endeavours to mitigate any loss, damage, liability, expenses and costs suffered by them under or arising out of this Agreement. 

The Service Provider is not liable for non-provision or delay in the provision of pmo365 by the Service Provider to the extent such non-provision or delay is attributable solely to the acts or omissions of the Client within the Client's reasonable control (excluding the exercise by the Client of any lawful rights or rights under this Agreement that may have the effect of delaying the provision of pmo365). 

Each party acknowledges that the allocation of risk in this Agreement (including the exclusions and limitations set out in this clause 10) has been freely negotiated at arm's length and is regarded by it as reasonable. 

All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to this Agreement, that are not contained herein, are excluded to the fullest extent permitted by law. 

Nothing in this Agreement shall operate to limit or exclude either party’s liability to the other for: 

death or personal injury caused by that party’s negligence; 

any breach of clauses 4 (Intellectual Property), 5 (Warranties and Indemnities) or 7 (Confidential Information) of this Agreement; 

any breach of this Agreement by a party arising from fraudulent or reckless conduct by that party; or 

any other liability which cannot be limited or excluded by law. 

Relationship of Parties 

The Service Provider’s relationship with Client will be that of independent contractors. Neither the Service Provider nor Client will have (and will not represent that it has) any power, right or authority to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other or in the other’s name. 

Client agrees to designate Service Provider as its Digital Partner of Record (DPOR) for Microsoft Office Office365 - Project Online Subscription. 

Client agrees to allow Service Provider to name Client as a pmo365 customer in written materials, marketing brochures, PowerPoint presentations, etc., for as long a Client remains a user of the pmo365 service. 

Force Majeure  

Notwithstanding any other provision in this Agreement, no default, delay or failure to perform on the part of any party will be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due entirely to causes beyond the reasonable control of the party charged with such default, including, but not limited to a Force Majeure Event. 

In the case of the happening of any such Force Majeure Event, the time for performance required by a party under this Agreement will be extended for any period during which performance is prevented by the event. 

Notwithstanding the above, if a delay or failure by a party to perform its obligations under this Agreement due to a Force Majeure Event exceeds thirty (30) Business Days, either party may immediately terminate this Agreement on providing notice to the other parties, such notice to take effect ten (10) Business Days after the date of such notice.  

General 

This Agreement may only be amended, supplemented or replaced by a document in writing signed by the parties. 

Neither party may assign or otherwise transfer this Agreement or any rights or obligations under this Agreement without prior written consent of the other party, such consent not to be unreasonably withheld. This Agreement, including without limitation the rights, consents and waivers granted in this Agreement, will endure to the benefit each party and the successors. 

Any failure or delay by one party to compel performance by another party of any of the terms and conditions of this Agreement does not constitute a waiver of those terms or conditions, nor does it affect or impair the right of the first party to enforce them against the other party at a later time or to pursue remedies it may have for any subsequent breach of those terms or conditions. 

A waiver by a party of a provision or of a right under this Agreement is only binding on the party granting the waiver if it is given in writing signed by that party and is only effective in the specific instance and for the specific purpose for which it is given. 

A party may give its approval or consent conditionally or unconditionally or withhold its approval or consent in its absolute discretion unless this Agreement expressly provides otherwise. 

All notices and consents required or permitted to be given under this Agreement must be in writing and given by personal service, mail (postage prepaid) or email to the parties at their address as set out in the Principal Terms & Conditions or to such other address as either party may designate to the other by written notice. 

Each party must promptly at its own cost do all things (including executing and delivering any and all deeds, agreements and other documents) necessary or desirable to give full effect to the terms of this Agreement and the transactions contemplated by this Agreement.  

All representations and warranties in this Agreement will survive the execution and delivery of this Agreement and the completion of the transactions contemplated by it. 

This Agreement constitutes the full and complete agreement between the parties relating to the subject matter contained in this Agreement and supersedes any and all previous agreements, understandings, negotiations and representations between the parties in respect of all matters dealt with in this Agreement. 

Any provision of this Agreement which is prohibited, unenforceable or invalid in whole or in part is only ineffective to the extent of the prohibition, unenforceability or invalidity and this does not affect the remaining part of that provision or the other provisions of this Agreement, which will continue in full force and effect. 

This Agreement may be executed in counterparts and exchanged by way of email or facsimile. 

The terms of this Agreement are governed by and construed in accordance with the laws of the State of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales, Australia.