PRIVATE AND CONFIDENTIAL

Section A – Definitions and Scope

  1. Definitions and Interpretation
    1. Definitions
      1. In the Contract, unless the contrary intention appears:
        1. Acceptance means sign off by the Customer in acknowledgment that Acceptance Tests and/or agreed alternative acceptance formalities have been completed in respect of a Service or Product;
        2. Acceptance Tests means the categories or classes of tests as set out prior to conducting tests or as otherwise reasonably required to demonstrate that a Product or Service meets the Specifications, in order for a Service or Product to be accepted;
        3. Applications refers to the list of software in Attachment “Applications”;
        4. Applicable Legislation means
          1. Copyright Act 1968 (Cth)
          2. Work Health and Safety Act 2012;
          3. Workplace Privacy Act 2004;
          4. equivalent legislation in States and Territories other than South Australia;
        5. Associated Documentation means documentation that is created by the Contractor and is associated with the Applications in that it either:
          1. describes the characteristics of the Applications (including, but not limited to, technical, functional and performance characteristics); or
          2. provides instructions on how to use the Applications;
        6. Associated Tools means any tools, object libraries and methodologies created by the Contractor in connection with Applications;
        7. Business Day means a day that is not a Saturday, Sunday or public holiday in South Australia;
        8. Certificate of Acceptance means a digital mail with an equivalent response for which the product or solution that was tested or implemented has been accepted;
        9. Change Control means the process for changes to the Services as set out in Attachment “Changes”;
        10. Charges means the fees and charges payable under the Contract as calculated under clause “Charges and Payment”.
        11. Commencement Date means the date specified in the Contract Details;
        12. Consultancy Services means the consultancy services to be supplied by the Contractor to the Customer under clause “Consultancy and Enhancement Services”;
        13. Contract means the agreement between the Customer and the Contractor as set out in this document, including its Attachments;
        14. Contract Details means the details set out at the end of the terms of the Contract, which describe the specific requirements of the Customer in respect of the Services and/or Products to be delivered by the Contractor under the Contract;
        15. Contractor means the party so specified in the Contract Details and includes its Personnel;
        16. Customer means the party so specified in the Contract Details;
        17. Customer Data means the information, data, software, applications, text, logos, slogans, images (including all intellectual property contained in them) of the Customer;
        18. Customer’s System means the Customer’s information technology system used by the Customer and its Personnel.
        19. Defect means a failure of any Product or Service to operate in accordance with their Specifications, including, in the case of Applications, the Design Solution, or any error or malfunction in a Product or Service, including a failure of a Service to meet the relevant Service Levels;
        20. Developed Materials means:-
          1. Modifications;
          2. Associated Documentation;
          3. Associated Tools; and
          4. any other product, item or materials created by the Contractor under or in connection with the Contract;
        21. Existing Applications refers to the list of software in Attachment “Applications”;
        22. Existing System means the Existing Applications and the hosting facilities on which the Existing Applications are hosted;
        23. Existing Tools means tools, object libraries, methodologies existing at the Commencement Date:
          1. that are owned by the Contractor; and
          2. in which the Contractor has sufficient rights to grant sub-licences;
        24. GST refers to “A New Tax System (Goods and Services Tax Act) 1999 (Cth) (‘the GST Act’).”
        25. GST Act refers to “A New Tax System (Goods and Services Tax Act) 1999 (Cth) (‘the GST Act’).”
        26. Hardware means hardware to be supplied under this Contract by the Contractor to the Customer for the provision of services, as specified in the Contract Details;
        27. Head Agreement means either:
          1. an agreement (if any) between the Contract Authority and the Contractor which relates to this Contract; or
          2. any other agreement between the Contractor and either the Customer or a third party purchasing authority, as specified in the Contract Details, which governs the Contractor’s right to supply Services and/or Products to the Customer;
        28. Hosting Commencement Date means the date specified in the Contract Details;
        29. Hosting Services means the application hosting and support services provided by the Contractor in accordance with the Contract and as described in Attachment “Hosting Services”;
        30. Intellectual Property Rights means copyright, trade mark, design, patent, semiconductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights, whether created before, on or after the Commencement Date;
        31. Key Personnel means the Personnel nominated as being Key Personnel in the Contract Details;
        32. Managed Services means services whereby the Contractor agrees either to manage all or part of the Customer’s information technology or otherwise to manage the external delivery of services to the Customer, as specified in the Contract Details;
        33. Maintenance Commencement Date means the date specified in the Contract Details;
        34. Maintenance Services means the application maintenance and support services to be provided by the Contractor in accordance with the Contract and as described in Attachment “Maintenance Services”;
        35. Managed Third Party Contracts means the contracts specified in Attachment “Transition Plan”;
        36. Modifications means any modifications made by the Contractor or its Personnel to any software or systems, including without limitation the Applications or the nominated Customer’s System in the course of providing the Services;
        37. Moral Rights means moral rights under and in accordance with the Copyright Act 1968 (Cth);
        38. Personnel includes the employees, agents and subcontractors of that party;
        39. Product means a deliverable under this Contract which may include but which is not limited to Software, Hardware (including telecommunications equipment), plans and/or any supporting documentation to be supplied to the Customer by the Contractor;
        40. Project Plan means the plan setting out the milestone dates for the Contractor’s performance of its obligations in relation to the Transition In Services a copy of which is set out in Attachment “Transition Plan”;
        41. Providers means providers of services to the Customer other than the Contractor;
        42. Report means reports in any format, including electronic, hard copy or such other form as required by the Customer under the Contract;
        43. Service means a service (which may include but which is not limited to Consultancy Services, Managed Services, Software Development Services, Hardware Maintenance Services, Software Support Services and Systems Integration Services) to be supplied under this Contract by the Contractor to the Customer;
        44. Service Level means a level of service for a Service the Contractor is required to attain as set out in the Contract Details and Attachment “Service Levels”;
        45. Solution means the Applications as developed, configured and customised by the Contractor under or in connection with the Contract including tools, interfaces and forms;
        46. Software means Existing Applications, Applications or Third Party Software, as the context dictates;
        47. Software Development Services means services whereby the Contractor agrees to develop software in accordance with the Customer’s requirements, as specified in the Contract Details;
        48. Software Support Services means services whereby the Contractor agrees to provide support, as specified in the Contract Details, pursuant to clause “Provision of Consultancy and Enhancement Services”, in respect of either Developed Software, Licensed Software or Third Party Software;
        49. Source Code means an expression of software in native language;
        50. State means the Crown in right of the State of South Australia;
        51. System means the system specified in the Contract Details
        52. Systems Integration Services means services, as specified in the Contract Details, whereby the Contractor agrees to implement a System;
        53. Step in Manager means a person who takes control of the Contractor’s obligations in accordance with clause “Step In”;
        54. System Transition Services means the services to be provided by the Contractor under the Attachment “Transition Plan””;
        55. Taxes has the meaning given to that term in clause Taxes(a);
        56. Third Party Contracts means the Managed Third Party Contracts and the Transferred Third Party Contracts;
        57. Third Party Software means software which is owned by a person other than the Customer or the Contractor and which is the subject of a Service;
        58. Transition Plan means the transition in plan set out in Attachment “Transition Plan”;
        59. Virus means program code, programming instruction or set of instructions designed to
          1. damage Customer’s computer systems;
          2. destroy Customer’s data;
          3. interfere with or otherwise adversely affect Customer’s computer programs, data files or operations; or
          4. cause a breach of the confidentiality or privacy provisions in this Contract; and
        60. Warranty Period means the warranty period in relation to the Enhance Services and Software Development Services.
        61. Written notice means an electronic mail sent to the Customer’s Email Address under Attachment “Contract Details”.
    2. Interpretation
      1. In the Contract, unless the contrary intention appears:
        1. clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
        2. words in the singular number include the plural and vice versa;
        3. where a word or phrase is given a particular meaning, other parts of speech and
        4. grammatical forms of that word or phrase have corresponding meanings; and monetary references are references to Australian currency.
    3. Non-Completion of Contract Details
      1. To the extent that the parties have not completed particulars relevant to an item in the Contract Details, that item will be deemed ‘not applicable’ unless the contrary intention is expressed.
    4. Commencement Date and Duration
      1. Commencement of Contract
        1. The Contract commences on the date specified in the Contract Details.
      2. Duration of Contract
        1. The Contract will remain in force until request for termination in accordance with the provisions of the Contract.
      3. Priority of Documents
        1. Prioritisation of Contract Documents
          1. In the event and to the extent of any inconsistency between two or more documents which form part of the Contract, those documents will be interpreted in the following order of priority:
            1. the Head Agreement (if any);
            2. these terms and conditions (including documents incorporated by reference in these terms and conditions);
            3. the Contract Details of these terms and conditions and any attachments to the Contract Details;
            4. the remaining Attachments to these terms and conditions (including documents incorporated by reference in the Attachments); and (e) documents incorporated into the Contract by attachment to, or by reference in, Attachment “Additional Documents”.
        2. Prioritisation of Contract Details and Attachments
          1. In the event and to the extent of any inconsistency between the Contract Details and any attachment to the Contract Details, the Contract Details will take priority.
        3. Prioritisation of Documents in Attachment “Additional Documents”
          1. In the event that any of the following documents are incorporated into the Contract (whether by attachment to, or by reference in, Attachment “Additional Documents”), they will be interpreted in the following order of priority, unless expressly provided otherwise in Attachment “Additional Documents”:
            1. pre-contractual documentation which post-dates the tender;
            2. the Customer’s request for tender;
            3. the Contractor’s tender;
            4. the Customer’s request for expressions of interest;
            5. the Contractor’s expression of interest, and any further incorporated documents will be prioritised consistently with the foregoing.