Standard Terms and Conditions for Managed Services Agreement 
Upon acceptance of the Managed Services Statement of Work, a separate and distinct contract is formed on Data#3’s standard Contract terms and conditions in this section (the “Contract”).
 
1.1.1.	General
 No purchase order, confirmation, receipt, shipment or delivery docket, quote, invoice or other document issued by or on behalf of the Customer (including the terms on any pre-printed purchase order form, or the Customer’s standard retainer document) will vary or form part of these Standard Terms and Conditions for Managed Services Agreement (“Contract”).
1.1.2.	Interpretation
In this Contract, except where the context otherwise requires:
a.	a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annex to, this Contract, and a reference to this Contract includes any schedule or annexure; 
b.	a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
c.	a reference to A$, $A, AUD, dollar or $ is to Australian currency;
d.	a reference to time is to Australian Eastern Standard time unless expressly set out to the contrary in this Contract;
e.	a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
f.	the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions;
g.	a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Contract or any part of it; 
h.	if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
i.	reference to: one gender includes each other gender; the singular includes the plural and the plural includes the singular; a person includes a body corporate; and a party includes the party's executors, administrators, successors and permitted assigns;
j.	if a party consists of more than one person, this Contract binds them jointly and each of them severally;
k.	headings are for convenience only and do not form part of this Contract or affect its interpretation;
l.	a party that is a trustee is bound both personally and in its capacity as a trustee; and
1.1.3.	Definitions
a.	“Business Day” means a day that is not a Saturday, Sunday or any other day that is a gazetted public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made, as the context admits.
b.	“Confidential Information” means (i) any trade secrets embodied in any information relating to, but not limited to, the commercial activities, product pricing, technologies, business processes, client relationships, strategic information, Candidate Information, Service Fees and any other information related to the conduct of each parties businesses; (ii) any information designated in writing by either party, by appropriate legend, as confidential; (iii) any information which if first disclosed orally is identified as confidential at the time of disclosure and is thereafter reduced to writing for confirmation and sent to the other party within thirty (30) days after its oral disclosure and designated, by appropriate legend, as confidential; and (iv) the terms and conditions of this Contract.
c.	“Existing Intellectual Property” means any Intellectual Property Rights owned by or licensed to Data#3 which exists prior to the date of this Contract or is developed or acquired by Data#3 independently of this Contract which is used by Data#3 or otherwise made available to the Customer under or in connection with this Contract. 
d.	“Foreground Intellectual Property” means any Intellectual Property Rights created or developed by Data#3 in the performance of the Services for the Customer and which is embodied in the Materials.  Foreground Intellectual Property expressly excludes any Existing Intellectual Property.
e.	“Goods” if applicable means either Hardware or Software procured or supplied pursuant to this Contract as the context admits
f.	“GST” is defined in the A New Tax System (Goods and Services Tax) Act 1999.
g.	“Hardware” means any physical product manufactured by a third party, including any associated third party maintenance service contracts,  and includes each individual item, unit or component of such product.
h.	Health and Safety Law means all health and safety related law that is in any way applicable to the Services including but not limited to the Work Health and Safety Act 2011.
i.	“Intellectual Property Rights” or “IPR” includes copyright, trade mark, design, patent, semiconductor or circuit layout rights, trade, business or company names, any right to have confidential information kept confidential or other proprietary rights or any rights to registration of those rights whether created before or after the date of this Contract and whether existing in Australia or otherwise.
j.	“Material” or “Materials” means literary works or other works of authorship (such as programs, program listings, programming tools, documentation, reports, drawings and similar works) that Data#3 may deliver to the Customer as part of a Service. The term “Material” or “Materials” does not include licensed software products which are provided in accordance with their EULA.
k.	“Parties” means Data#3 and the Customer.
l.	“Personal Information” has the same meaning as in the Privacy Act 1988 (Cth) (as amended).
m.	“Price” in relation to Goods and Services means the price payable for those Goods and Services.
n.	“Related Body Corporate” has the meaning given to that term as in the Corporations Act 2001.
o.	“Restraint Period” during the Term of this Contract until 6 months after expiration or sooner termination of this Contract.
p.	“Services” means the services supplied by Data#3 to the Customer pursuant to this Contract, including any pre-contractual advice provided relating to the Customer’s choice to purchase certain Goods.
q.	“Software” means any licensed, packaged, developed or supported software, such as Third Party Software, ownership of which does not pass to the Customer unless agreed and which use is subject to its applicable EULA.
r.	“System” means (i) any combination of Hardware or Software intended to be integrated or installed as a system; or (ii) any existing Customer combination of Hardware or Software defined as a system, which is the subject of this Contract, as the context admits.
s.	“Tax Invoice” has the meaning as defined in the A New Tax System (Goods and Services Tax) Act 1999.
t.	“Tax” includes any tax, GST, withholding tax, charge, rate, duty or impost imposed by any authority, but does not include any income or capital gains tax.
u.	“Third Party Software” means software that is manufactured, licensed or owned by a third party (other than Data#3 or the Customer) (“Third Party”) and procured on behalf of Data#3 for the Customer, the use of which is subject to that Third Party’s EULA, and where applicable, includes its associated third party support and maintenance contract
1.1.4.	Prices and Payment
a.	Data#3 will provide the Goods and Services as described in the Contract
b.	Prices for Goods and Services are set out in this Contract. Unless otherwise stated, Prices are exclusive of GST and Incidental Costs.  Data#3 will provide the Customer with a correctly rendered Tax Invoice that clearly identifies the Goods and Services.
c.	Intentionally blank.
d.	The Customer must pay the undisputed Price due to Data#3 in accordance with the Contract. If the Contract is silent with respect to payment terms, then the default terms shall be fourteen (14) days from the date of Data#3’s invoice (“Due Date”).
e.	If any sum due under this Contract is not paid by the Due Date and Data#3 has not received written notice of a genuine dispute, then (without prejudice to Data#3’s other rights and remedies in addition to the invoice amount), Data#3 reserves the right to charge interest on such sum on a day to day basis (as well as before any judgment) from the Due Date to the date of payment at the rate of 2% per annum above the prime lending rate of Data#3‘s principal banker.
f.	All sums properly due to Data#3 under this Contract shall be paid in full and the Customer shall not be entitled to assert against Data#3 any credit, set-off or counterclaim in order to justify withholding payment of any sum properly due.  If a Customer disputes payment of any sum in writing, the parties shall resolve the dispute in accordance with the process set out in clause 14.1.14.
1.1.5.	Confidentiality
a.	Except as expressly provided elsewhere under this Contract, each party shall maintain in confidence the Confidential Information disclosed by the other party and apply security measures no less stringent than the measures which that party applies to protect its own like information (but in any event not less than a reasonable degree of care) to prevent unauthorised disclosure and use of the Confidential Information. 
b.	The parties agree that information shall not be regarded as Confidential Information and that the recipient shall have no obligation with respect to any information which the recipient can demonstrate: (i) is already known to or in the possession of the recipient without obligations of confidentiality prior to its receipt from the disclosing party or which is publicly available at the time of disclosure; or (ii) is or becomes known to the public through no wrongful act of the recipient; or (iii) is received from a third party who is not in breach of any obligation of confidentiality in respect thereof; or (iv) is disclosed to a third party by the disclosing party without a restriction of confidentiality; or (v) is disclosed with the prior written permission of the owner; or (vi) is disclosed by the recipient in compliance with a legal requirement of a governmental agency or court of law; or (vii) is independently conceived of by the recipient without reference to the Confidential Information.
1.1.6.	Changes to Assumptions
a.	The Customer acknowledges that changes to any of the Assumptions set out by the parties in this Contract may affect the ability of Data#3 to deliver the Goods and Services in accordance with any agreed milestones and in such event the parties shall work together in good faith to minimise the impact of the change. Any change to a Contract resulting from any changes to any of the Assumptions shall be managed by Change Order in accordance with the provisions of Appendix 2. Data#3 shall have no liability for any delays or increased costs in the delivery of the Goods and Services which result directly from changes to any of the Assumptions.
1.1.7.	Intellectual Property
a.	Data#3 retains all right, title and interest (including ownership of copyright) in or is entitled to use, its Existing Intellectual Property. Data#3 will deliver one (1) copy of the specified Materials to the Customer. Data#3 grants the Customer a perpetual, non-exclusive, worldwide, paid-up licence (including the right to sublicense to its Related Bodies Corporate) to use, execute, reproduce, modify, adapt, display and perform and otherwise exercise all of Data#3’s Existing Intellectual Property in the Material to the extent necessary to obtain the benefit of the Services for the Customer’s internal business purposes only. The Customer agrees to reproduce the copyright notice and any other legend of ownership on any copies made under this licence.  
b.	Data#3 acknowledges that all right, title and interest in the Foreground Intellectual Property in the Material automatically vests in the Customer on its creation, subject to receipt of full payment for the Material.  To the extent that any rights in the Foreground Intellectual Property do not vest in the Customer on creation, subject to receipt of full payment for the Material, Data#3 assigns all right, title and interest in the Foreground Intellectual Property in the Material to the Customer. Data#3 must sign all documents and do anything else reasonably necessary to give effect to this clause when asked.  
c.	Data#3 shall use reasonable endeavours to obtain all third party assignments, licences, consents and waivers, including waivers of moral rights, to enable the Customer to use the Foreground Intellectual Property in the Material.
d.	Subject to the confidentiality obligations set out in this Contract, any idea, concept, know-how or technique which relates to the subject matter of a Service and is developed or provided by either of the Parties, or jointly by both, in the performance of a Service may (subject to applicable patents and copyrights) be freely used by either of the Parties.
1.1.8.	Risk Apportionment
a.	NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS CONTRACT OR OTHERWISE, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSS OR DAMAGES WHETHER SUCH DAMAGES ARE ALLEGED AS A RESULT OF TORTIOUS CONDUCT (INCLUDING NEGLIGENCE) OR BREACH OF CONTRACT OR A LIABILITY ARISING UNDER AN INDEMNITY OR OTHERWISE EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY HEREIN SHALL HAVE PROVEN INEFFECTIVE. SUCH LOSS OR DAMAGES SHALL INCLUDE BUT NOT BE LIMITED TO COST OF CLAIMS BY THIRD PARTIES, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF USE OF DATA OR SOFTWARE, INTERRUPTION OF BUSINESS OR OTHER ECONOMIC LOSS BUT NOTHING IN THIS CLAUSE SHALL OPERATE TO EXCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM EITHER PARTY’S NEGLIGENCE.
b.	Subject to the provisions of clause 14.1.8(a), the maximum liability of Data#3 to the Customer in aggregate for all claims, damages, costs, losses and expenses, made against Data#3 in contract, tort, pursuant to an indemnity or for any other common law or statutory cause of action or any wilful, unlawful or negligent act or omission of Data#3 or its employees, agents or subcontractors, under or in connection with: 
(i)	any loss of or damage to the Customer’s or a third party’s tangible property, real or personal, (but excluding loss of software or data), shall be limited to the sum of $10,000,000 per occurrence and in the aggregate;
(ii)	any breach or misappropriation of Intellectual Property Rights or breach of Confidentiality, shall be limited to the sum of $1,000,000 per occurrence and in the aggregate;
(iii)	Any loss, damage, cost or expense the subject matter of this Contract shall be limited to the Price paid by the Customer to Data#3 for such Goods and/or Services under this Contract;
(iv)	For all other claims, Data#3’s liability shall be limited to the Price paid under this Contract by the Customer to Data#3 for all Goods and Services supplied by Data#3 in the contracted months prior to the date the cause of action arose.
c.	Any Price paid shall be applied in priority of the longest outstanding invoices first. Where the Contract does not clearly differentiate its Price between the relevant Goods and Services supplied, Data#3 shall determine such differentiation in its sole discretion (acting reasonably and in good faith) having regard to the nature of the Goods and Services supplied under the Contract and the respective market values of similar offerings of Goods and Services.
d.	In respect of any Goods and Services provided for the benefit of any Customer Group Company, Data#3 will have the benefit of the limitations and exclusions of liability available to it under this Contract as if Data#3 was supplying those Goods and Services to the Customer and the Customer agrees to indemnify Data#3 in respect of any liability to each Customer Group Company to the extent the liability would not have arisen had those Goods and Services been provided to the Customer.
e.	The Customer’s exclusive remedy for any and all damages under this Contract is against Data#3 and not any of its subcontractors.  Data#3 remains fully responsible for the performance of all work in accordance with this Contract notwithstanding the engagement of a subcontractor.
f.	Subject to the limitations and exclusions of liability in this clause, if a party (‘Claimant’) makes a claim or commences proceedings against the other party (‘Recipient’) seeking indemnification against, compensation for or recovery of any liabilities, losses, damages, costs or expenses suffered or incurred by the Claimant in connection with this Contract or otherwise, the Recipient’s liability for that claim or those proceedings will be reduced proportionately to the extent that any act or omission of the Claimant or any of its officers, agents, employees or contractors causes or contributed to those liabilities, losses, damages, cost or expenses.
g.	Data#3 will indemnify the Customer in relation to any loss or damaged incurred by the Customer in respect of any personal injury or death of Data#3 personnel, officers, agents, employees or contractors, except to the extent caused by the Customer’s negligence or breach of law.
1.1.9.	Termination
a.	Either party may terminate this Contract for convenience on ninety (90) days written notice to the other party. In no event shall a party be entitled to any compensation as a result of the other party’s election to terminate this Contract pursuant to this clause. Termination of this Contract pursuant to this clause does not have the effect of terminating any other contracts between the Parties.  Data#3 is entitled to payment for any services (including disengagement services) performed up to the date of termination.
b.	Either party may terminate this Contract immediately where the other party:
(i)	commits a material breach of this Contract which is not capable of being remedied;
(ii)	fails to remedy a material breach of this Contract which is capable of remedy within 60 days of receipt of a written notice specifying such breach; or
(iii)	commits an act of insolvency, comes under any form of insolvency administration or assigns its rights otherwise than in accordance with this Contract.
c.	On termination of this Contract:
(i)	the accrued rights and remedies of each Party remain unaffected.
(ii)	By Data#3 as a consequence of the Customer’s breach of such Contract, Data#3 will deliver a Tax Invoice to the Customer in respect of any delivered Goods and Services that Data#3 has not invoiced the Customer at the date of termination of the Contract. 
(iii)	Each party shall at the other party’s option, either destroy or return to the other party any of its Confidential Information, including any copies thereof in its possession or control.
(iv)	By the Customer in accordance with clause 16.1.10(b), the applicable Early Termination Fee set out in section 10.7 may be set-off by the Customer against any loss or damage suffered by it. 
(v)	Should Customer  pre-pay funds into a draw down account for time and material engagements, products or projects, then the balance of such account will be refunded within 30 days of the effective date of termination of the Contract.
d.	The following provisions will survive termination of this Contract: Interpretation, Definitions, Prices and Payment (to the extent that any obligation under this clause remains outstanding), Confidentiality, Risk Apportionment, Restraint, General.
1.1.10.	Solicitation of Data#3’s Employees / Recruitment
a.	During the Restraint Period, neither party, its employees, sub-contractors or agents may solicit for employment to or accept any approach for employment from, either directly or indirectly, any person who is employed or contracted by the other party.
b.	Either party must immediately advise the other party if a person who is employed or contracted by the other party seeks to be employed or contracted by the first mentioned party before the end of the Restraint Period.
c.	In the event that a situation arises where both parties agree that it is in the interests of a Data#3 employee to transfer their employment to the Customer, the parties may agree a fee to be paid by the Customer to Data#3 in consideration of the transfer. This fee shall be based on Data#3 Recruitment Solution’s (Data#3’s internal recruitment business) standard schedule of recruitment fees. 
1.1.11.	Subcontracting
With the Customers prior consent, which will not be unreasonably withheld, Data#3 may sub-contract the performance of this Contract or any part of this Contract.
1.1.12.	Force Majeure
Subject to 14.1.14 (a) to (d) below, neither party will be liable for any failure or delay in performance of its obligations under this Contract (except for payment obligations) to the extent such failure or delay is caused by an act beyond its reasonable control (“force majeure”) including but limited to acts of God, natural disasters, act of war, riots and strikes.  Data#3 will use good faith efforts to redeploy resources in the event of force majeure.
1.1.13.	Privacy
Each party must ensure that any collection, use, disclosure or transfer of Personal Information complies with all applicable laws, rules and regulations in Australia, including without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles contained in Schedule 3 to that Act.
1.1.14.	Disputes
a.	In the event of a dispute arising, the parties representative account manager will meet together to attempt to resolve the dispute.  If the dispute is not resolved within ten (10) business days, the parties will establish a dispute committee consisting of representatives from both parties and any approved sub-contractors within ten (10) Business Days of the date of the dispute arising.
b.	A party shall raise a dispute by giving written notice to the other party and stating therein that its requires a dispute committee to be established in accordance with clause 16.1.14 and also stating the nature and substance of the dispute.
c.	If the dispute is not settled by agreement within fifteen (15) Business Days after the notice referred to in clause 16.1.14(b) is given, the parties may agree appoint a mediator and seek in good faith to settle the dispute through mediation. If the parties are unable to agree on a mediator within fifteen (15) Business Days after the expiration of the fifteen (15) Business Days referred to in this clause 16.1.14(c), the mediator must be a person nominated by the Australian Commercial Disputes Centre. Either party may request such nomination referred to in this clause 16.1.14(c), at any time after the expiration of the second fifteen (15) Business Day period.
d.	In the event that a mediator is appointed, all parties to this agreement agree to accept the determination of the mediator without question and to take whatever actions or pay whatever charges the mediator decides are reasonable.
1.1.15.	General
a.	Notices: A notice, consent, approval, request or demand in connection with this Contract:
(i)	must be in writing and in English and signed by the party giving it or that party's authorised representative, officer, attorney, or solicitor;
(ii)	must be either:
	sent by facsimile to the facsimile number of the address specified by the parties, or if the addressee notifies another facsimile number for receipt of documents under this clause, then to that address; and
	left at or posted by prepaid post (airmail, if posted outside Australia) to the address of the addressee specified by the parties, or if the addressee notifies another address for receipt of documents under this clause, then at or to that address;
	sent by electronic mail to an authorised representative;
(iii)	is taken to be received:
	if hand delivered, on delivery;
	if posted in Australia, on the third Business Day after posting;
	if posted outside Australia, on the seventh Business Day after posting; and
	if sent by facsimile, when the sender’s fax machine produces a report that the facsimile was sent in full to the addressee; 
	if sent by electronic mail, on the next Business Day after sending the electronic mail, provided that no undeliverable notice or out of office notification was received by the sender.
(iv)	unless a later date is specified in it, takes effect on the date it is taken to be received.
b.	Assignment: Either party may with the prior written consent of the other party (which will not be unreasonably withheld or delayed) at any time transfer, assign or novate any or all of its rights, obligations, benefit or interest under this Contract.
c.	Public Statements: Neither party shall make any public statement about this Contract unless it has first obtained the written consent from the other party.
d.	Severability: The provisions contained in each clause and sub-clause of this Contract shall be enforceable independently of each of the others and if a provision of this Contract is, or becomes, illegal, invalid, void or deemed unenforceable by any court or administrative body of competent jurisdiction it shall not affect the legality, validity or enforceability of any other provisions of this Contract. If any of these provisions is so held to be illegal, void, invalid or unenforceable but would be legal, valid or enforceable if some part of the provision were deleted, the provision in question will apply with such modification as may be necessary to make it legal, valid or enforceable.
e.	Independent Parties: Data#3 and the Customer are independent parties. Neither company nor their employees, consultants, contractors or agents are agents, employees or joint venturers of the other party, nor do they have the authority to bind the other party by contract or otherwise to any obligation. Neither party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.
f.	Variations: This Contract may be varied from time to time providing that both parties agree to the variations in writing. Any such variations must take into account any variations in costs and delivery timeframes that may result.
g.	Waiver: Failure or delay by either party to enforce any provision of this Contract shall not be deemed a waiver of future enforcement of that or any other provision. No amendment or waiver of any provision of this Contract shall take place unless so agreed in writing by Data#3. 
h.	Workplace Health and Safety: The Customer acknowledges that it is responsible for all aspects of health and safety connected with the Services performed at the Customer’s Site and must at its own cost comply with any applicable Health and Safety Law, including (where applicable) performing all functions and duties of a person conducting a business or undertaking, a person with management or control of workplaces where the Services are performed and a person with management or control of any fixtures, fittings or plant used in such workplaces or otherwise used in the performance of the Services.  Data#3 is responsible for complying with Health and Safety Law at the Data#3’s sites.  
i.	Tax: The Customer must pay all applicable taxes, charges, fees and other amounts due in respect of this Agreement.  If there is a change in legislation to increase or add a new tax, the Customer must pay all taxes, charges, fees and other amounts due in respect of the Agreement.  .
j.	Entire Agreement: This Contract, including all Appendices, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces any prior condition, warranty, representation, statement, agreement, undertaking, indemnity (whether negligently or innocently) imposed, given or made by a party, whether written, oral or implied and may only be amended in writing and signed by both parties.
k.	Governing Law and Jurisdiction: Unless set out the contrary in this Contract, this Contract shall be governed by and construed with reference to the laws of the State of South Australia and each party submits to the non-exclusive jurisdiction of the courts of South Australia and the Federal Court of Australia.